MUTHOORA PALLIATH PURAKKOT PARU ALIAS PATHUMMA Vs. MUTHOORA PALLIATH PURAKKOT RAMAN NAMBIAR, (KARANAVAN AND MANAGER OF THE TAVAZHI TARWAD)

JUDGEMENT

(1.) If it were not for the authorities the question would appear to be free from difficulty. There is no doubt that under Hindu Law a member of a Marumakkathayam Tarwad on his conversion to Mahomedanism would forfeit all interest in the tarwad property. Act XXI of 1850 however provides that any law or usage which inflicts on any person forfeiture of rights or property by reason of his renouncing his religion or being deprived of caste shall cease to be enforced as law. The effect of this statute would appear to be that a convert's interest in the tarwad is unaffected by his conversion. As has been pointed out in Matungani Gupta V/s. Ram Rutton Roy (1891) I.L.R. 19 Cal. 289, 291. (F.B.) by Wilson, J., the effect is not to enlarge the convert's interest in any property or to get rid of any condition or restriction to which it was originally subject. It would therefore appear to be a sufficient answer to the reference to say that conversion to Christianity cannot give a member of a tarwad a right to a partition of tarwad property which is impartible under the Marumakkathayam Law. It has however been held in Kunhichekkan V/s. Lydia Arucanden 1912 M.W.N. 386 that the conversion of two sisters to Christianity dissolved the coparcenary till then existing between them and their brother as a tarwad and had the effect of converting them into tenants-in-common of the tarwad property without rights of survivorship, and, if this be so, it may be said that a right to partition is an ordinary incident of tenancy-in-common. The proposition that conversion has the effect of depriving the convert of his right of survivorship which may often be a most valuable right, as when the joint family consists of an old father and two brothers, one of whom becomes a convert, appears to be opposed to the express provisions of the statute that conversion is not to involve any forfeiture of property or rights. It has however been accepted Kunhichekkan v. Lydia Arukandan (1912) M.W.N. 386 as good law not only in but also in Kulada Prasad Pandey V/s. Haripada Chatterjee (1913) I.L.R. 40 Cal. 407 in which three sons two of whom had been, converted to Christianity sought to question an alienation made by the deceased father to defendants 1 to 4 as opposed to Hindu Law. It was held that the conversion of plaintiffs 1 and 2 though it did not deprive them of their interest in the joint family property had the effect of severing them in status, putting an end to rights of survivorship, and to the father's power to bind their share by alienation of family property for purposes neither illegal nor immoral. With this last question we are not now concerned. The judgment in both cases proceed on the authority of the decision of the Privy Council in Abraham V/s. Abraham 9 M.I.A. 195. ;!Now that was not a case governed by Act XXI of 1850 or the earlier Bengal Regulation VII of 1832 as the family had been converted to Christianity long before they were passed, and the property in suit had all been acquired after conversion and it seems to me with great respect, that in the observations at page 237 on which reliance is placed as to conversion severing the convert from the family and putting an end to the co-parcenership, Lord Kingsdown was merely stating the undoubted effect under Hindu Law of conversion to another religion and was not considering the effect of Act XXI of 1850 on cases governed by it. Indeed, he expressly says so at page 239, and points out that Act XXI had no application to the case. "Such then being the state of the case so far as the Hindu Law is concerned, we must next consider whether there is any other law which determines the rights over the property of a Hindu becoming a convert to Christianity. The Lex Loci Act clearly does not apply, the parties having ceased to be Hindu "in religion." Act XXI of 1850 had been described in the argument at page 218 as the Lex Loci in case of apostacy, and was clearly the Act referred to by Lord Kingdown. In a later case 33 All. 356 the Judicial Committee had to consider a case governed by Section 9 Bengal Regulation VII of 1832 the principle of which they held was extended to the rest of India by Act XXI of 1850. In that case there was a joint family consisting of one Ratan Singh and his son Daulat Singh. Ratan Singh became a Mahomedan in 1845, and subsequently Daulat Singh predeceased him. After the deaths of both their widows, a compromise was entered into by which Ratan Singh's daughter's daughter agreed to share the properties left by him with Daulat Singh's daughters. After the deaths of Daulat Singh's daughters, the sons of one of them set up that the compromise was not binding on them and contended that on the conversion of Ratan Singh the whole of the joint family properties became vested in his son Daulat Singh. This contention their Lordships rejected observing that "the effect of the Legislations of 1832 and 1850 was that on Ratan Singh's abandonment of Hinduism, Daulat Singh did not acquire any enforceable right to his father's share in the joint family property which he could either assert himself or transmit to his heirs for enforcement in a British Court of Justice-" The daughters of Daulat Singh had obtained an 8| annas share of joint family property in the compromise which was being attacked, and their Lordships had not to consider whether under the Bengal Regulation Daulat's share did not pass by survivorship on his death to his father Ratan Singh in spite of the latter's conversion to Mahomedanism. Mr. Anantakrishna Aiyar on the other hand has relied on the observation of their Lordships as to the original imperfection of Daulat Singh's title when the case came before them on an earlier occasion in 31 All. 497, at page 504 as showing that their Lordships were then of opinion that on Daulat's death his interest passed by survivorship to his father Ratan Singh to the exclusion of his own daughters. These observations may, however, have been made with reference to the case then set up that the properties in suit were all the self-acquired properties of Ratan Singh. On the whole, I have come to the conclusion that there is nothing in any of the decisions to prevent us from giving effect to what appears to me to be the plain bearing of Act XXI of 1850, and I must therefore hold that the plaintiffs are not entitled to a partition of the tarwad property by reason of their not being Hindus and that the appeal fails and must be dismissed with costs. The question of the plaintiff's right to succeed to the office of karnavan is not before us and I express no opinion about it as it may invole other considerations. The Second Appeal fails and is dismissed with costs of defendants Nos. 1 to 7 and 11 to 16. Spencer, J.

(2.) I agree with my Lord that the plaintiffs are not entitled to a partition of the tarwad property by reason of their becoming converts from Hinduism to Islam. It is clear from the preamble to the Removal of Caste Disabilities Act (Act XXI of 1850) that the effect of that Act was to preserve existing rights but not to confer any new rights such as a right of partition of property which did not exist before in the family to which the convert belonged. Impartiality being one of the incidents of a Marumakkathayam family, a right to partition could not be acquired in consequence of a change of religion.

(3.) In the District Munsif's and Subordinate Judge's Courts the plaintiffs appear to have based their title to partition on the ruling in Kunhichekkan V/s. Lydia Arucanden 1912 M.W.N. p. 386. It was therein observed that the conversion to Christianity of two daughters, Lydia, and Salome, belonging to a Marumakkathayam family in Malabar, "operating on the joint family dissolved the co-parcenary which existed under the Marumakkathayam Law" and the converts "remained as co-owners and became tenants-in-common of their joint property".