C. Nallasamy and another vs Rajadurai and 4 others

M. Karpagavinayagam, J.—Rajadurai, the plaintiff is the first respondent herein. He filed a suit in O.S. No. 423 of 1985 on the file of the Subordinate Judge of Erode against his father, brothers and the appellants/defendants 5 and 6, the purchasers of the suit property, claiming partition and separate possession of his share. During the course of trial, the plaintiff examined himself as P.W. 1 and marked Exs. A1 to A8. On the side of the defendants, Defendant 5 was examined as D.W. 1 and one Rangasamy was examined as D.W. 2 and Exs. B1 to B3 were marked through them. Out of six defendants, 5th defendant and 6th defendant alone were contesting the suit on many grounds, factually as well as legally. The trial Court after trial, decreed the suit as prayed for, by granting a preliminary decree.

On being aggrieved over the said decision, the appellants/defendants 5 and 6 have preferred this first appeal before this court.

The case of the plaintiff/first respondent herein, is as follows:

The suit properties are the ancestral properties belonging to the joint family. The plaintiff is the son. The first defendant is his father. Defendants 2 to 4 are the brothers of the first defendant. For the past few years, the first defendant was leading a wayward life by addicting himself to the habit of drinks and gambling. On 15.04.1985, taking advantage of those habits, the defendants 5 and 6 got a sale deed in respect of the suit properties, by which the first defendant is purported to have sold the properties to the defendants 5 and 6 for the sale consideration of Rs. 15, 000/-. Even though on the said date the plaintiff was a major running 20 years, the defendants 5 and 6 in collusion with the first defendant got the sale deed executed by falsely mentioning that the first defendant executed the sale deed on his behalf and on behalf of the plaintiff as minor aged about 16 years. On coming to know of this, the plaintiff issued a notice seeking for division of the properties and for the allotment of his share to him. The defendants 5 and 6 sent a reply stating that the plaintiff would not be entitled to any share as he is a Christian. Though the plaintiff and the first defendant are converted Christians, they never led the Christian way of life. On the other hand, they have been following the Hindu customs. The plaintiff used to attend Hindu temples and never went to Church. Therefore, the plaintiff is entitled to the partition of the suit properties. Hence, he has filed the suit claiming 1/8th share of the suit properties to be allotted to him.

The case of the defendants 5 and 6, the purchasers of the suit properties, is as follows:

The plaintiff and the defendants 1 to 4 are not Hindus. They are not governed by Hindu Law. Since they are Christians the Indian Succession Act would be applicable to them. The Plaintiff had no right over the suit properties and succession in respect of the property of Christians opens only on his death. Since, the first defendant being the Karta of the family has sold away the properties to these defendants, the plaintiff has no right whatsoever to claim share in the properties purchased by these defendants. Having obtained the sale deed, the first defendant instigated the plaintiff to file a suit against the persons including defendants 5 and 6 also in order to get more money from the defendants. Even assuming the plaintiff as a Hindu, the sale deed was executed for the discharge of family loans incurred by the first defendant and therefore, the said suit is liable to be dismissed.

On the basis of the above pleadings, necessary issues were framed by the trial Court. The first defendant did not choose to appear and he was set ex parte. The defendants 2 to 4 would submit that the decree may be passed in favour of the plaintiff. Under those circumstances, the trial court went on by permitting the plaintiff and the defendants 5 and 6, the contesting parties, to adduce their evidence.

After trial, on an analysis of the materials which were placed, the trial Court concluded that the plaintiff being a Hindu, following the Hindu Customs, would be entitled to 1/8th share in the suit properties, and the sale deed executed by the first defendant in favour of the defendants 5 and 6 mentioning that the plaintiff was a minor at that time, though he was major, would not be binding on the plaintiff and decreed the suit as prayed for. This judgment and decree is the subject matter of the challenge in this first appeal filed by the appellants/defendants 5 and 6 before this Court.

The learned counsel appearing for the appellants would make the following contentions:

Ex. B.3 sale deed dated 15.04.1985, which was executed by the first defendant for himself and on behalf of the plaintiff the minor then would be very much binding on the plaintiff, as there is no sufficient material to show that on the date of execution of the sale deed, the plaintiff was a minor. Even assuming that he was major on the date of the sale deed, since the plaintiff is a Christian by birth and practice and he was born to Christian parents, the Hindu Succession Act would not be applicable to the plaintiff. The moment there is conversion to Christianity, the Civil right is also changed to one under the converted community, viz., the Christian community. At any rate, Ex. B.3 sale deed was executed by the father of the plaintiff, the Karta of the family for the antecedent debt of the family. Therefore the sale deed is legal and binding on the plaintiff. Therefore, the plaintiff would not be entitled to any relief.

In reply to the above submissions, the learned counsel for the first respondent/plaintiff would vehemently contend that there are sufficient materials to show that the plaintiff was a major when the sale deed was executed and that even though the plaintiff and his father were converted Christians, they did not follow the Christian customs. But, on the other hand, they worshiped Hindu Deities and followed the Hindu customs in respect of Succession, Inheritance, Marriage, adoption, etc., and as such, the finding of the trial Court with reference to the entitlement of the share to the plaintiff is correct and justified.

I have given my anxious consideration to the submissions made on either side. I have also gone through the plaint, written statement, Exhibits and deposition of the parties.

According to the plaintiff, even though he was a converted Christian, he was following Hindu customs only. He continued to be Hindu by following Hindu customs only and as such, he would be entitled to the share in the ancestral properties as per the Hindu Succession Act and the sale deed would not be binding on him, since on the date of sale deed, he was a major.

On the other hand, it is contended by the defendants 5 and 6, that the plaintiff was a minor on the date of execution of the sale deed and even assuming that he was a major, he would not be entitled to any share, since under Indian Succession Act, which is applicable to the plaintiff being Christian, the properties would devolve upon his son only on the death of his father.

In the light of the rival contentions, the points for determination that may arise in this case are twofold (i) whether the plaintiff was a major on the date of execution of the sale deed, even though it was mentioned in the sale deed that he was a minor and though the sale deed was executed by the father, the first defendant on his behalf and on behalf of the plaintiff mentioning him as a minor ? (ii) Even if he was a major, could he be entitled to the share under Hindu Succession Act, when he was admittedly a converted Christian ?

In regard to the first question. I may straightway state that the contention urged by the counsel for the appellants/the defendants that there is no acceptable evidence to show that the plaintiff was major on the date of execution of the sale deed, Ex. B.3, is not acceptable and untenable.

It is the specific case of the plaintiff even from the beginning that he was 20 years old on the date of execution of the sale deed, viz., 15.04.1985. to this effect, he has also deposed, while he was examined before the Court. In order to substantiate the said statement, he has marked Ex. A.2 the school certificate. In column 7 of the said School certificate, it is clearly mentioned that the date of birth as 30.04.1965.

That apart, the plaintiff has also produced Ex. A3, which is a receipt issued by one Sivaliangam towards the discharge of loan for having received the amount of Rs. 3,200/- in favour of both the first defendant and his son, the plaintiff. This document dated is 14.03.1983. In this document, it is clearly mentioned that the plaintiff was a minor and his age was 17 years. In this document, the first defendant was a party. But, strangely in Ex. A1.(B3) the sale deed, it is mentioned that the plaintiff was a minor and he was aged about 16 years. When the plaintiff was running 17 years in the year 1983, in Ex. A1, sale deed executed in April 1985, it is mentioned that the plaintiff was minor aged about 16 years. This is nothing but falsehood.

In this context, the statement of the plaintiff that the first defendant was under the custody of the defendants 5 and 6 and by taking advantage of his drinking habits, the first defendant had to execute the sale deed, Ex. A1(B3) by falsely mentioning that the plaintiff was a minor aged about 16 years assumes importance. As such, the contention of the plaintiff that the document was executed by the first defendant either in collusion with the parties or the first defendant must have been made to execute the sale in favour of the defendants 5 and 6 under compulsion or influence is liable to be accepted.

That apart, the deposition of D.W. 1 and D.W. 2. also would make it clear that they had not deposed about the age of the plaintiff on the date of the sale deed. As a matter of fact, D.W. 1 would clearly admit that he was informed by the first defendant that the age of the plaintiff was wrong.

Under those circumstances, there is no reason as to why the defendants 5 and 6 did not make an attempt to get the signature of the plaintiff also, as he was a major. Whatever it is, the materials, oral and documentary, available on record would clearly show that on the date of execution of Ex. B.3 sale deed, he was a major and as such, it cannot be held that the sale deed would be binding on the plaintiff.

The next question, which is another hurdle for the plaintiff, is relating to the entitlement of the share in the joint family properties and the applicability of the Hindu Succession Act. According to him, though he was a converted Christian, he is not following the Christian customs, but he continues to profess the Hindu faith only and as such, Hindu Succession Act alone will be applicable to him, and not "Indian Succession Act". But, this is refuted by the counsel for the defendants contending that there is no evidence to show that he continues to follow Hindu customs or for reconversion to the Hindu religion from the Christianity.

With reference to the above aspect, we have to see the principles laid down on the issue by this Court as well as the Supreme Court in the decisions which were cited by the counsel for parties. Those decisions are as follows:

1 Kailash Sonkar Vs. Smt. Maya Devi,

S. Anbalagan Vs. B. Devarajan and Others,

S. Rajagopal Vs. C.M. Armugam and Others,

S. Pappu Reddiar Vs. Commissioner of Gift Tax,

5 C.M. Arumugam Vs. S. Rajgopal and Others,

The various principles enumerated in these decisions are given below:

(i) Normally Christians are not governed by Hindu Law. If a Hindu gets converted as a Christian, automatically he gets severed from the Hindu Family. Conversion in religion as far as Hindu law is concerned, not only affects religion, but also affects his rights.

(ii) The Christian religion does not recognise any caste classifications. All Christians are treated equals and there is no difference between one Christian and another of the type, that is recognised between members of the different caste belonging to Hindu religion. In fact, castes system prevails only among Hindus or possibly in some religions closely allied to Hindu religion.

(iii) The mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing what is being done but after the child has grown up and becomes fully mature and able to decide his future, he ought not to be bound by what his parents may have done. Therefore, in such cases, it is intention of the converter which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms, his caste automatically revives.

(iv) No particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rights need be performed and, ordinarily, he regains his caste on reconversion, unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion.

(v) The question whether on conversion to Christianity, the person concerned ceased to be a member of the Adi Dravida Caste is a mixed question of law and fact. It cannot be laid down as an absolute rule that whenever a member of the caste is converted from Hinduism to Christianity, he loses his membership of the caste. It is true that ordinarily on conversion to Christianity, he would cease to be the member of the caste, but not an invariable rule. It would depend on the structure of the caste and rules and regulations. There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians. Whether Adi Dravida is a caste which falls within this category or not is a question which would have to be determined on the evidence in the case on hand.

(vi) The mark of caste does not seem to really disappear even after some generations after conversion. In Andhra Pradesh and in Tamil Nadu, there are several thousands of Christian families whose forefathers became Christians and who, though they profess the Christian religion, none the less observe the practice of caste. There are Christian Adi-Reddies, Christian Kammas, Christian Nadars, Christian Adi-Andhras, Christian Adi Dravidas and so on. The practice of their caste is so rigorous that there are intermarriages with Hindus of the same caste but not with Christians of another caste. Now, if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact this process goes on continuously in India and generation by generation lost sheep appear to return to the caste fold and are once again assimilated in that fold. This appears to be particularly so in the caste of members of the scheduled castes, who embrace other religions in their quest for liberation, but return to their religion on finding that their disabilities have clung to them with great tenacity.

In the light of the above principles, we have to consider the evidence let in by parties with reference to the question posed. There is no dispute in the fact that the plaintiff and his father are converted Christians. The plaintiff himself would admit this in his plaint as well as his deposition. But, the case of the plaintiff is that though his father converted himself as Christian on some monetary benefit, the plaintiff never followed the Christian customs. He would state that he never attended the Church.

As laid down by the Supreme Court referred to above, once he called to be an Adi Dravida Caste, then it means that he does not belong to the Christianity, as Christian religion does not recognise the caste system.

In column No. 4 of Ex. A2, the School Certificate it is mentioned that the plaintiff belongs to Adi Dravida Caste. In column No. 5 relating to the religion, indeed the question is relating to whether he converted from Adi Dravida to Christian. This column has not been filled up. But, it is true that in column No. 4 the word Christian is also mentioned.

Ex. A6 is the sale deed executed by one Nanjaparayan in favour of the grandfather of the plaintiff on 25.07.1933. In the said document, it is mentioned that the name of the grandfather is Periyan and his caste is parayan. Another document is Ex. A7, the sale deed dated 22.07.1933, executed by one Ponnappa Gounder in favour of the grandfather of the plaintiff. In this document, the name of the grandfather is mentioned as Periyan alias Yesudoss, but his caste is mentioned as Adi Dravida. Here mentioning the alias name as Yesudoss would not be enough to hold that the grand father became Christian and followed the Christian customs, especially when in the said document it is mentioned that Periyan belongs to Adi Dravida Caste.

Similarly, Ex. A8 is the sale deed dated 11.8.1941, executed by one Pavayee in favour of the grandfather. In this document also, it is specifically mentioned that Periyan alias Yesudoss belongs to Parayan caste. These documents would show that even though the grandfather and his son, the first defendant were having the Christian names, they continued to be holding the Caste name, namely Adi Dravida or Parayan.

As indicated above, even in the School Certificate dated 30.04.1965, the plaintiffs caste is mentioned as Adi Dravida. On the basis of these documents, the plaintiff would categorically state in his plaint and the deposition that though the plaintiff and his father were converted Christians, they never professed the faith of Christianity and on the other hand, he used to attend Mariamman Temple and follow Hindu customs. It is his specific case that he never attended the Church.

Under those circumstances, it cannot be contended by the defendants that there is no evidence to show that the plaintiff followed the Hindu customs. When the particular plea had been made by the plaintiff, which is substantiated by the documents stating that he continued to profess Hindu faith, the defendants ought to have produced some evidence to show that he was not following Hindu faith and he followed the Christianity in respect of the inheritance, Marriage, baptism etc. The evidence on this aspect on the part of the defendants is clearly absent.

As held by the Supreme Court, it cannot be considered to be an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be member of the caste in which he was born and to which he belonged prior to his conversion.

In this case, in the light of the materials available on record, even the question of reconversion would not arise, as it is the specific case of the plaintiff that from the beginning, the plaintiff''s family was following the Hindu customs only.

Under those circumstances, in the absence of any contrary evidence adduced by the defendants to the effect that they are following Christian customs only, through oral and documentary evidence, it shall be held, as found by the trial Court, the plaintiff had established through acceptable materials that he continued to be the Hindu and as such, the Hindu Succession Act alone is applicable to him. In consequence the plaintiff first respondent would be entitled to the decree as prayed for. In the result, the appeal is dismissed with costs.