K. Kunhichekkan and Another vs Lydia Arucanden

The facts necessary for the disposal of this second appeal may be briefly stated. One Acha, her son Chanthan, ard her two daughters were

members of a fisherman family in Malabar governed by the Marumakkattayam law. The daughters became converts to Christianity taking the

names of Lydia and Salome. Chanthan died a Hindu in September 18S8. Lydia, who also died in 1888, left three children, Nathaniel and two

others. Nathaniel had been born a Hindu but became a Christian along with his mother. He died in 1899 leaving the plaintiff, his widow. Salome

died in 1901 leaving five children; one of whom is the 8th defendent. All her children were born after her conversion to Christianity. The suit relates

to two parambas which were mortgaged by Nathaniel to the 1st defendant on kanom in 1895. The defendants Nos. 2 to 7 are persons admittedly

holding under the kanom. The plaintiff instituted the suit for redemption of the kanom after obtaining Letters of Administration to the estate of her

husband, Nathaniel. Her case is that the property belonged solely to her husband. Admittedly, the paramba was originally owned by Acha and on

her death went to her children Chanthan, Lydia and Salome. On the 20th April 1888, Chanthan, who was then in possession of the parambas,

executed a release in favour of Nathaniel--Exhibit 0. The tenants then in possession of the land surrendered it to Nathaniel in 1894, and he

subsequently execuled the kanom Exhibit A, in favour of the 1st defendant. The kanomdar contended that the parambas did not belong exclusively

to Nathaniel, thedemisor, that the kanom was executed in his favour by Nathaniel with the consent of Chanthan, and that subsequent to Nathaniel''s

death he made payments towards the annual rent to Salome''s eldest son, Isaac Mackadan, that all the surviving children of both Lydia and Salome

were entitled to the properly and should be made parties to the suit, and that the plaintiff herself had no right to maintain it. Isaac Mackadan was

not originally made a party but was impleaded on the contention raised by the kanomdar. His pleas were similar to those raised by the kanomdar.

Issues were framed raising the question whether Salome''s children including the 8fch defendant, were entitled to the property or whether the

plaintiff''s husband was the exclusive owner. But the Munsif disposed of the case without deciding them; he held that the kanomdar was estopped

from denying the plaintiff''s right to redeem as lie, with a full knowledge of all the circumstances in connection with the ownership of the property,

took the kanomfrom Nathaniel to whose estate the plaintiff had taken out Letters of Administration. He, therefore, held that Salome''s children

including the 8tfc defendant were not necessary parties to the suit. On appeal, the Subordinate Judge agreed with the District Munsif on the

question of estoppel. He also held that Chanthan was enjoying the properties as sole owner after Acha''s death and the conversion to Christianity

of Lydia and Salome. He confirmed the decree of the District Munsif allowing redemption.

On second appeal, it is contended that Lydia and Salome were jointly entitled to the parambas wilh Chanthan, and that their rights were

inherited by their respective children; that there is no evidence that Chanthan was the sole owner daring his life-time or that Nathaniel purported to

make the demise as the exclusive heir, or that the kanomdar took the katiom treating Nathaniel as the sole owner. It is further contended that

Chanthan, Lydia and Salome were governed by the Marumakkattayam law; that the plaintiff, the widow of Nathaniel, had no title at all and,

therefore, had no right to sue, the argument being that the Marumakkttayam law of joint holding wilh rights of survivorship continued to govern the

family notwithstanding the conversion of Lydia and Salome. The respondent contends, on the other hand, that Lydia and Salome as members of a

Marumakkattayam family had only a right to maintenance in the property of the family at the time of the conversion, the ownership being vested in

Chanthan, the karnavan of the tarwad, and that by Exhibit C, Chanthan''s exclusive ownership was transferred to Nathaniel, and the plaintiff as his

heir and administratrix was, therefore, entitled to sustain the suit.

Now, assuming that Lydia and Salome had rights of ownership after they became Christians, we are unable to find any evidence that Chanthan

acquired an exclusive title by holding them adversely to Lydia and Salome or even that he excluded them from all participation in the income of the

property. The learned Counsel for the respondent was unable to draw our attention to any evidence which could support the lower Court''s finding

on this point, nor are we able to sustain the finding on the question of estoppel. The demise, Exhibit A, does not purport to be made by Nathaniel

as the sole jenmi of the property. If, as a matter of fact, he was holding it as tenant-in-common with the other children of Lydia and with Salome''s

children, the presumption would be that the kanom was executed in his capacity as joint holder with them. Nathaniel would he the proper person

to be in management on behalf of all the tenants-in-common. Exhibit A merely states that the demisor had jenam light over the property; such a

statement is usually made when a person executes a demise on behalf of himself and others as the manager of a family or otherwise. We must,

therefore, deal with the case on the footing that all persons entitled to the property of Chanthan, Lydia and Salome continued to be the owners at

the time of the demise and that they are interested in the equity of redemption and should, therefore, be made parties to the suit. We have,

therefore, to decide who were the owners of the parambas on the date of the demise, that is, in 1895.

It is not disputed that if Lydia and Salome had rights of ownership at the time of their conversion, such right would be affected by their accepting

Christianity. Mr. Kundu Panicker''s contention is that as junior members of a Malabar tarwad, they had no ownership at all, the karnavan being the

only owner of property belonging to a Marumakkattayam tarwad, and that their rights were only to maintenance. It is unnecessary to consider the

question whether, according to this contention, the children of Lydia and Salome born after their conversion would not also be entitled to

maintenance and whether in consequence they would not be necessary parties to this suit for redemption, for it is impossible to doubt that the

ownership of tarwad property is vested in all the members of the tarwad just as much as the ownership of property belonging to a family governed

by the Mitakshara law is vested in all its members. The karnavan or manager of a Marumakattayam tarwad holds a position similar to that of the

manager of a Mitalishara family, although in practice the position of the former is more valuable as his authority is permanent owing to the absence

of any right in any of the members to enforce partition of the family property. His bene-ficial ownership, however, is no larger than that of the

manager in a Mitakshara family: See Narayani v. Govinda 7 M.k 352; also Moidin Kutti v. Krishnan 10 M.k 322. It has been pointed out in

Maravadi v. Pamakkar (1912) 1 M.W.N. 109 that all the members of a tarwad are joint proprietors of the family estate. In Kallianiamma v.

Govinda Menon 22 M.L.J. 23 it was regarded as well established that all the members have rights of ownership in tarwad property. At the time,

therefore, of the conversion of Lydia and Salome to Christianity, they and Chanthan were all owners of the parambas in question. What then was

the result of their conversion?

The learned Counsel for the appellant contends that it left their position as Marumakkattayam co-parceners with rights of survivorship

unaffected, that all the subsequently born children of Lydia and Salome became members of the co parcenary and that the present surviving

children of the two ladies are now the sole persons entitled to the property and have alone the right to redeem the kanom and that the plaintiff by

her marriage could acquire no rights according to the rules governing Marumakkattayarn co parcenary property. This position it is impossible to

accept. When Lydia and Salome became Christians, the joint Hindu family composed of Chanthan, Lydia and Salome ceased to exist as such, as

Lydia and Salome were no longer Hindus. The incident of survivorship was one which attached to the property on account of its being owned by

the members of a joint Hindu family. When the Hindu family ceased to exist, the incident of survivorship also ceased to exist. Its former members

would, no doubt, remain joint owners of the property, but the incident of survivorship would no longer subsist. It would, no doubt, be open to the

three members of the former Hindu family to contract that they would hold their joint property with rights of mutual survivorship, but in the absence

of such contract, the incident of survivorship would not continue. In Abraham v. Abraham 9 M.I.A. 195 their Lordships of the Privy Council

dealing with the question of the result of the conversion of Hindu co-parceners to Christianity, observed: ""it is a question of parcenership, and not

of heirship...but parcenership, understood in the sense in which their Lordships here use the term, as expressing the rights and obligations growing

out of the status of an undivided family, is the creature of, and must be governed by, the Hindu Law. Considering the case, then, with reference to

parcenership, what is the position of a member of a Hindu family who has become a convert to Christianity? He becomes as their Lordships

apprehend, severed at once from the family, and regarded by them as an outcast. The tie which bound the family together is, so far as he is

concerned, not only loosened, but dissolved. The obligations consequent upon and connected with the tie must, as it seems to their Lordships, be

dissolved with it. Parcenership may be put an end to by a severance effected by partition; it must, as their Lordships think, equally be put an end to

by severance which the Hindu Law recognises and creates. Their Lordships, therefore, are of opinion, that upon the conversion of a Hindu to

Christianity, the Hindu Law ceases to have any continuing obligatory force upon the convert."" It must, therefore, be held that the conversion of

Lydia and Salome operating on the joint family dissolved the co-parcenary which existed under the Marumakkattayarn Law; but as the rights of

the converts were preserved by statutory enactment, the result was that they became co-owners without having the rights and obligations of co-

parceners under the Marumakkattayarn law. In other words, they remained as co-owners and became tenants-in-common of their joint properly.

The right of each as co-owner would, of course, descend by inheritance to her children and Nathaniel''s right as one of Lydia''s children would also

descend according to the Indian Succession Act and the plaintiff as an heir of Nathaniel would be entitled to redeem the kanom n question. In fact,

it was not denied that, Chanthan, Lydia and Salome became tenants-in-common, the succession to the ownership of the two latter must be

governed by the Indian Succession Act. See part IV of the Act; Ponnusami Nadan v. Dorasami Ayyan 2 M.k 209; Administrator-General of

Madras v. Anandachari 9 M.k 466; Vythinathasami Aiyar v. Ponnusami Nadan 8 Ind. Jurist 30; Francis Ghosal v. Gabri Ghosal 8 Bom. L. 770.

For the appellant, it is strenuously argued that the Indian Succession Act only provides that the property which a Christian dies possessed of,

would descend on his death to the heirs mentioned in the Act but that the Act does not affect the mode in which the convert holds his property

during his lifetime and if, in consequence of that mode, other persons have a right of survivorship to his -property on his death, that right cannot be

affected by the Act, as in that case he leaves no properly which can go to any one by succession. The answer to this argument is that though it is

true that the Succession Act does not affect the convert''s mode of holding his property, his conversion to Christianity does, and, as pointed out by

the Privy Council, the conversion breaks up the Hindu co-parcenary of which he was a member and puts an end to the incident of survivorship

attaching to Hindu coparcenary property. The appellant strongly relies in support of his contention on the decision of the Bombay High Court in

Francis Ghosal v. Gabri Ghosil 8 Bom. L. 770. The observations of Jenkins, C.J,, in that case do indeed seem to support the appellant''s

contention. That learned Judge dissented from the observations of this Court in Tellis v. Saldanha 10 M.k 69 which held that the incident of

survivorship would not affect the rights of inheritance to the property of a person governed by the Succession Act. Jenkins, C.J., asks '' by what

part of the Succession Act was this repeal enacted? No section is cited in the judgment nor in the argument before us could any such section be

pointed out."" We are in entire agreement with the learned Judge that no provision in the Succession Act in terms puts an end to the survivorship;

but, as already observed, the conversion of a member of a Hindu family to a different religion destroys the co-parcenary just as much as partition

does. We do not think that this Court, in Tellis v. Saldanha 10 M.k 69 intended to lay down that it was the Succession Act that destroyed the right

of survivorship. Before the enactment of that Act, there was no specific law governing the succession to property owned by a convert to

Christianity and the Hindu Law might be applied as a rule of equity, justice and good conscience if it appeared that the convert intended to adhere

to the Hindu Law by which he was governed before his conversion. And the result might be that the rule of survivorship might apply to property

owned by him. But, after the passing of the Succession Act, no intention on the part of a convert to be governed by the Hindu Law would be of

use in determining the succession to his property and the rule of survivorship cannot be applied in consequence of any such intention imputable to

him. No doubt, notwithstanding the conversion, he may enter into a contract with his joint owners that the property shall be held subject to the right

of survivorship and such contract might probably be proved without evidence of an express agreement by showing that the conduct of the convert

and his co-owners necessarily leads to the inference of such a contract. In Abraham v. Abraham 9 M.I.A. 195 their Lordships of the Privy Council

observed that the onus of proving that the property was so held by the joint owners a3 to subject it to the incident of survivorship is on the party

who asserts that the rule of survivorship is applicable. See Abraham v. Abraham 1 W.R. 1. Jenkins, C.J., seems to us, with all deference, to have

assumed that the co-parcenary relationship existing before the conversion would continue to subsist after a coparcener has renounced the Hindu

religion and his attention does not seem to have been directed to the passages in the judgment of the Privy Council cited above. The view taken in

Appavu Udayan v. Susai Udayan 15 M.L.J. 235 that the right of the manager of a Hindu family to manage the joint estate on behalf of all the

owners would, cease to exist when one of them became a convert to another religion, is in accordance with the view we take in this case. Reliance

was also placed by the appellant on Vythinathasami Aiyar v. Ponnusami Nadan 8 Ind. Jurist 30 but that case apparently proceeded, as explained

in Tellis v. Saldanha 10 M.k 69 on the inference of an agreement between the members of the particular family in question to hold the joint

property as co-parceners with rights of survivorship. The proper conclusion to ''be arrived at, therefore, is that after the on version of Lydia and

Salome, they and Chanthan hell the parambas as tenants-in-common and all the children of Salome and of Lydia are interested in the equity of

redemption. The decrees of the lower Courts must, therefore, be reversed and the suit remanded to the Court of first instance for fresh disposal

according to law after making the children of Lydia and of Salome, other than the 8th defendant, parties to the suit. In the circumstances of the

case, the parties will bear their respective costs up to date.