P RAJINI Vs. E RAMESH

JUDGEMENT

(1.) SUIT for partition. Plaintiffs have filed the suit alleging that suit properties belonged to one Ethirajulu and his wife Andalammal, that the plaintiffs 1 and 2 and the third defendant are daughters and defendants 1 and 2 are sons of said Ethirajulu and Andalammal, that ?A? Schedule Property building belonged to Ethirajulu, that ?B? Schedule property belonged to Andalammal, that Ethirajulu died on 25.12.1992, that Andalammal also died on 20.6.1997, that suit properties have devolved upon the plaintiffs and the defendants 1 to 3 in equal share, that the plaintiffs and the defendants are each entitled to 1/5th share, that the plaintiffs and the defendants are in joint possession of the properties, that the first plaintiff is residing in ground floor of ?A? schedule property while the defendants 1 and 2 are residing in ground floor and first floor of ?B? schedule property. that the defendants 1 and 2 have let out portions of ?A? and ?B? schedule buildings to various tenants from whom they are collection a sum of Rs.20,000 as rent per month, that the father Ethirajulu was having leasehold right in respect of a building situated in Door No.25, E.V.R. Periyar Salai, Periamet, Chennai, that the father was running a business under the name and style ?M/s.Mohana Travels?, that after th death of the father, the business has been closed, that the building that was been taken on lease by the father has been sub-let to one Sri Thiru Murugan Travels, from whom the defendants are collecting Rs.5,000 as rent, that the plaintiffs are each entitled to 1/5th share in the rental income collected by the defendants 1 and 2, that so far the plaintiffs have been denied their due share, that the plaintiffs demanded partition and separate possession of their 2/5th share, that they also issued a notice on 17.4.1999, that the defendants in spite of receipt of notice have not chosen to send any reply nor they have complied with the demands and that therefore the plaintiffs are constrained to file the suit for partition and separate possession of their 2/5th share in the suit properties.

(2.) THE defendants 1 and 2 filed their written statement contesting the claim of the plaintiffs by contending that it is true that the suit properties, namely ?A? and ?B? schedule properties originally belonged to father and mother of the plaintiffs and the defendants respectively, that the second defendant is not entitled to any share because he has converted himself into a Muslim and has married a muslim lady, that the first defendant is in occupation of the first floor of the building bearing Door No.14, Bharathi Dasan Road, Teynampet, Chennai that the second defendant is in occupation of the second floor of the said building, that it is true that ?A? and ?B? Schedule buildings have been let out to tenants, that it is false to state that the defendants ?1 and 2 are collecting rents of Rs.20,000 per month, that the defendants are only collection rent to the tune of Rs.7,750 per month, that only out of rental income, the defendants are maintaining the buildings, paying statutory charges including Corporation-tax, that the plaintiffs are not entitled to share in the rental income, that it is not true to say that the buildings situated in E.V.R.Salai has been sub-let, that the plaintiffs filed O.S.No.8322 of 1999 before the City Civil Court praying for an injunction restraining the defendants from alienating the suit properties, that the plaintiffs ought to have filed the suit including the relief of partition, that they have not obtained permission of the court reserving any right to file separate suit for partition and that therefore claim of partition is deemed to have been given up, that ?B? schedule building is in occupation of these defendants being the male members of the family, that therefore as per Sec.23 of the Hindu Succession Act, the plaintiffs cannot ask for division or allotment of their separate share in the same and that for these reasons the suit may be dismissed.

(3.) SO, even assuming for a moment that the second defendant has converted into a Muslim, there is no disqualification attached to him for claiming his due share from out of his parents properties. Moreover, it is only stated in the written statement that the second defendant has married a Muslim lady and we do not know whether the second defendant has converted himself into a Muslim or whether the marriage was performed under the Special Marriage Act. Merely by marrying a Muslim, a Hindu does not cease to be a Hindu. Even though he cannot conduct a valid marriage under the Hindu law with any woman other than a Hindu. However, in view of Sec.26, there is absolutely no disqualification for the second defendant claiming a share in his parents properties. This has been also held so in Ashok Naidu v. Raymond S.Mulu Ashok Naidu v. Raymond S.Mulu Ashok Naidu v. Raymond S.Mulu , A.I.R. 1976 Cal. 272, wherein it is observed as follows: ?Sec.26 does not disqualify a convert. It only disqualify a convert. It only disqualifies the descendants of the converts who are born to the convert after such conversion from inheriting the property of any of their Hindu relatives. Change of religion and loss of caste have long ceased to be grounds of forfeiture of property and the only disqualification to inheritance on the ground that a person has ceased to be a Hindu is confined to the heirs of such convert.? Strangely the written statement has been filed by the defendants 1 and 2 and such a claim in their statement only reveal the inconsistency in the stand taken by the defendants and certain objections are taken only for the sake of raising some objections and they have not raised the contention in serious manner.