K. Sivanandam and Sivakami vs Maragathammal

T. Raja

The appellants before this court were defendants before the trial Court against whom the plaintiff/respondent filed a suit for permanent injunction

restraining the defendants, their men, agents, servants from in any manner interfering with the possession and enjoyment of the suit property by the

plaintiff and also for payment of costs of the suit. The plaintiff-Maragathammal''s husband-Kanniappan, D1-Sivanandam and one Poosammal-

sister of Kanniappan and Sivanandam, were born to one Sundarammal and Kuppusamy. One Pakkirisamy Pillai who was the brother of

Sundarammal and the maternal uncle of plaintiff''s husband (Kanniappan), D1-Sivanandam and their sister-Poosammal, married Poosammal. But,

unfortunately, within three months of marriage the said Pakkirisamy Pillai died intestate on 12.10.1946 leaving his wife Poosammal. It is also to be

noted that Poosammal married her own maternal uncle-Pakkirisamy. During the life time of Pakkirisamy Pillai, he had purchased the suit property

in the year 1945 which is having East to West on 54 feet, North to South 25 and = feet, totalling 1,215 sq.ft. on 17.5.1945. After the death of

Pakkirisamy Pillai, Poosammal-D1''s sister, studied nursing course and joined as a midwife in Poondi hospital. Subsequently, in the year 1956, she

remarried one Issac as per the Christian customs and ceremonies. Following the marriage, she also gave birth to two sons-Selvaraj and Victor

Devaraj. The plaintiff''s daughter was given in marriage to the second son-Victor Devaraj and the said marriage took place on 10.5.1996.

Thereafter, on 17.3.1995, Poosammal-sister of plaintiff''s husband-Kanniappan and D1-Sivanandam, has sold Pakkirisamy''s land property by

sale deed 17.3.1995 to the plaintiff. After purchasing the said property under sale deed dated 17.3.1995 bearing document No. 843/1995 in the

office of the Sub-Registrar, Purasawalkam, Chennai, it has been averred in the plaint that the plaintiff has been in possession and enjoyment of the

suit property by obtaining patta and assessment order issued by the Corporation of Chennai by paying the tax thereon. Therefore, it was further

averred that when the plaintiff has purchased the suit property from Poosammal, as per the settled law, the plaintiff''s possession should be

protected and safeguarded. While so ,the first defendant who is also the brother of plaintiff''s husband, and the second defendant-Sivagami-wife of

the first defendant, out of jealous irritated over the sale in favour of the plaintiff and to blackmail the plaintiff and to extract money were trying to

disturb the lawful possession of the plaintiff. Therefore, the plaintiff was obliged to file a suit for injunction against the defendants and their men from

in any manner interfering with the possession and enjoyment of the schedule mentioned suit property.

(i) A detailed written statement was filed by D1-K.Sivanandam who is the brother of the plaintiff''s husband-Kanniappan and the husband of D2-

Sivagami stating that the vacant land measuring an extent of 1,215 sq.ft. comprised in Collector''s Certificate No. 2590, Old S. No. 69, Re-Survey

No. 540/2 in Vyasarpadi village was purchased on 17.5.1945 by Pakkirisamy Pillai, husband of Poosammal as well as maternal uncle of D1 and

plaintiff''s husband. Pakkirisamy Pillai is the brother of Sundarammal who is the mother of plaintiff''s husband, D1 and Possammal. It was also

stated that D1''s father, mother and Poosammal, Kanniappan and Pakkirisamy Pillai were living together. While so ,the D1''s sister-Poosammal

was married to Pakkirisamy and after few months of marriage, Pakkirisamy died on 12.10.1946. Since Poosammal, sister of D1 and also

Kanniappan who worked as a mid-wife in Poondi hospital by converting into Christianity, married one Issac, through wed-lock, she had 5

children, out of which one died. The first defendant''s sister-Poosammal never visited the parents or living with them after 1956. Therefore,

whatever right Poosammal had, after converting into Christianity and marrying Issac in the year 1956 and permanently settling at Poonamallee with

her family, in the property of her husband Pakkirisamy Pillai admeasuring East to West-54 feet, North to South-25 and = feet, totalling, 1,215

sq.ft., had been lost for the reason that the front portion of the suit property was allotted to D1 and the back portion was allotted to his brother

Kanniappan. Further, they were living with the families in the respective allotted portions. Therefore, the plaintiff-Maragathammal, who is the wife

of the first defendant''s brother-Kanniappan, cannot claim the relief of permanent injunction against the defendants for the reason that the first

defendant had settled an extent of 607 and 1/2 sq.ft. which was in his occupation and enjoyment to the second defendant under a registered

settlement deed Document No. 327 of 1996. Due to ill-health suffered by the first defendant during the month of January 1995, the defendants 1

and 2 who were living jointly in the suit property moved to the second defendant''s parents house. Taking advantage of their absence from the suit

property, the plaintiff in collusion with her husband created a sale deed dated 17.3.1995. Such a sale deed does not convey any right or interest to

the plaintiff for the reason that the Vendor-Poosammal has no right in the suit property because whatever right Poosammal had in the property

purchased by her husband, the same were lost, s as the said Poosammal had not claimed any right in the said property from 1956 when she had

married Issac by converting into Christianity and also settled in her life with the said Issac by giving birth to 5 children in Poonamallee where she

worked as a mid-wife. It was also the case of the defendants that during the life time of Pakkirisamy Pillai, his mother, Amma Kannammal was

alive and she was staying in the suit property and on the death of Pakkirisamy Pillai, the suit property devolved on the mother and as a result,

Poosammal, his wife, by marrying a Christian-Isaac, does not become the absolute owner of the property and that Pakkirisamy''s mother has half

share in the suit property and subsequently, she died leaving behind his daughter-Sundarammal-mother of plaintiff''s husband-Kanniappan to

succeed her estate. The said Poosammal cannot become the owner of the suit property. Therefore, she cannot sell the entire suit property in favour

of the plaintiff because such a sale is not legally binding on the first defendant.

Under these circumstances, the trial Court took this matter by framing the following three issues:

(i) Whether the sale deed dated 6.12.1995 is valid or not?

(ii) Whether the plaintiff is entitled to have permanent injunction?

(iii) what other reliefs can be considered ?

The trial court, by considering the evidence of P.W.1 and the documents marked as Exs.A1 to A12 in support of plaintiff''s case and also

considering the evidence of D.W.1 and the documents marked as Exs.D1 to D22 in support of defendants'' case, decreed the suit by holding that

the sale deed dated 17.3.1995 is valid basing its support on the patta Ex.A5 issued by the revenue authorities in favour of the plaintiff coupled with

building plan approved by the Corporation of Chennai-Ex.A.7 granting permission to put up construction and the other tax receipts marked as

Ex.A.8 series as they indicated the possession of the plaintiff in the suit property.

Aggrieved by the judgment and decree passed by the trial court, the defendants/appellants herein filed first appeal contending that the sale deed

executed by Poosammal dated 17.3.1995 in favour of the plaintiff cannot legally convey any saleable right since the said Poosammal had foregone

her share in her husband late Pakkirisamy''s property after she converted into Christianity and married one Issac in the year 1956 and also got 5

children from the second husband-Isaac. Therefore, her conversion from Hindu to Christianity, disentitles from inheriting her deceased husband''s

property and also her parents'' property who are Hindus. As this settled legal position was lost sight of by the trial Court, D1 prayed for setting

aside the same. But the learned first appellate Court concurred with the judgment and decree of the trial Court and dismissed the first appeal.

As a result, the present Second Appeal was brought in by the defendants. This Court at the time of entertaining the Second Appeal, framed the

following substantial questions of law:

(i) In the absence of Hindu Widows Remarriage Act 1856 having not been repealed by Hindu Succession Act (Act 30 of 1956) whether the

vendor of the respondent/plaintiff had right and title in the suit property to convey the same in favour of respondent/plaintiff ?

(ii) Whether right acquired by Hindu Widow under Hindu Women''s right to property Act, 1937, gets enlarged once she renounces Hinduism and

gets converted into Christianity before coming into force of Hindu Succession Act, 1956 (Act 30 of 1956)?

6.(i) While addressing on the substantial questions of law, the learned counsel appearing for the defendants/appellants submitted that the suit

property was originally purchased by one Pakkirisamy Pillai, deceased husband of Poosammal. After marrying Poosammal, he died intestate on

12.10.1946, leaving his wife-Poosammal as his legal heir. After the said Poosammal converted into Christianity by marrying one Christian, namely,

Issac in 1956, under the Hindu Succession Act, due to her conversion into Christianity by marrying a Christian, she has to forego her share from

her mother-Sundarammal who is a Hindu. Accordingly, she is disentitled to inherit not only her mother''s share, but also her first husband''s share in

his property, both movable and immovable for the reason that she got herself converted into Christianity and married one Issac in the year 1956.

Thereafter, only in the year 1995 by executing the sale deed dated 17.3.1995, the said Poosammal had sold her first husband''s suit property in

favour of the plaintiff. Therefore, the learned counsel contended that the said Poosammal having married a Christian and converted into Christianity

is not entitled to any share in the suit property of her husband-Pakkirisamy as she has to forego the share in view of her conversion into other

religion.

(ii) The learned counsel further contended that the conversion from Hindu to Christianity disqualifies the descendant of conversion from inheriting

the property of any of their Hindu religion u/s 26 of the Hindu Succession Act which deals with disqualification. On this legal principle, the learned

counsel prayed for interference into the concurrent findings of both the Courts below.

Strongly opposing the said submissions, the learned counsel appearing for the plaintiff/respondent submitted that the conversion from one

religion to another religion does not prohibit and disentitle the convert from claiming inheritance in the suit property. According to the learned

counsel, section 4(1)(b) of the Hindu Succession Act 1956 envisages any other law in force immediately before the commencement of this Act

shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

8.(i) The above issue where a Hindu by conversion foregoes the right of inheritance is no longer considered as res-integra as the same is answered

against the appellant by a Division Bench of this Court in E.RAMESH V. P.RAJINI (2002 (1) CTC 223). Para 7 of the said judgment is

extracted hereunder:

So far as the first question is concerned, the learned single Judge referred to Section 26 of the Hindu Succession Act (hereinafter referred to as

the Act) and held that the bar for inheritance is only in respect of legal heirs of the convert. The individual, who convert himself to other religion

from Hinduism, will not forego the right of any inheritance. He also relied upon the judgment in the case of Asoke Naidu Vs. Raymond S. Mulu,

If we look at section 4(1)(b) of the Hindu Succession Act, the said section envisages that any other law in force immediately before the

commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. Section 4(1)

(b) of the Hindu Succession Act is extracted as under:

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of

the provisions contained in this Act.

While considering the abovementioned Section 4(1)(b) of the Hindu Succession Act, the aforesaid the Division Bench also has held as follows:

Section 4(1)(b) of the Act envisages that any other law in force immediately before the commencement of this Act shall cease to apply to

Hindus in so far as it is inconsistent with any of the provisions contained in the Act. Following the said provision, a number of Central Acts had

been repealed, which are inconsistent to the provisions of the Act. However, the Caste Disabilities Removal Act, 1850 (Act 21 of 1850) had not

been repealed so far. This Act contains only one Section, which is as follows:

Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced: So much of any law or

usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair to affect any right of

inheritance, by reason of his or her renouncing, or having excluded from the communion of, any religion, or being deprived of caste, shall cease to

be enforced as law in any Court.

This enactment removed the stigma to inherit the property, in case of conversion to other religion. By virtue of this provision, definitely, the

conversion of a Hindu to other religion will not disentitle the convert from...(sic) his right of inheritance to the property. Hence, on these principles,

definitely, the second respondent herein will not be disentitled from inheriting the property of her parents. Hence, we confirm the finding of the

learned single Judge on this aspect and we answer the issue against the appellants.

A close reading of the abovesaid judgment answers the question raised by the appellants herein that the conversion of a Hindu to Christian religion

will not disentitle the convert, namely, Poosammal from her right of inheritance of the property.

(ii) One of the significant aspects to be borne in mind while answering the arguments of the learned counsel for the appellants herein is that

Pakkirisamy Pillai and Sundarammal are brother and sister born to Amma Kanammal. Pakkirisamy Pillai had married his sister-Sundarammal''s

daughter Poosammal. D1-Sivanandam, plaintiff''s husband-Kanniappan and Poosammal are sons and daughter of Sundarammal, who is the sister

of Pakkirisamy Pillai. When Pakkirisamy Pillai died after marrying Poosammal on 12.10.1946, naturally, the property falls on his wife-Poosammal,

widow and also on Pakkirisamy''s mother-Amma Kannammal who died on 18.4.1957. On the death of Pakkirisamy Pillai, by virtue of Section

4(1)(b) of the Hindu Succession Act read with the Caste Disabilities Removal Act, 1850 (Act 21 of 1850) the conversion of Hindu to other

religion will not disentitle the convert from his right of inheritance of the property. The Caste Disabilities Removal Act contains only one section

which is as follows:

Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced: So much of any law or

usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair to affect any right of

inheritance, by reason of his or her renouncing, or having excluded from the communion of, any religion, or being deprived of caste, shall cease to

be enforced as law in any Court.

The above enactment has removed the stigma to inherit the property in case of conversion to other religion. Therefore, by virtue of this provision,

conversion of Hindu to other religion will not disentitle the convert from his right of inheritance to other property, hence, I do not find any error or

infirmity in the concurrent findings of both the courts below. In view of the above, the plaintiff''s vendor had right and title to the suit property to

convey the same in favour of the plaintiff. Accordingly, the first substantial question of law is answered in favour of the plaintiff.

(iii) To find an answer to the second substantial question of law Section 14(1) of the Hindu Succession Act 1956 is extracted hereunder,

S. 14 property of a female Hindu to be her absolute property. (1) Any property possessed by a female Hindu, whether acquired before or after

the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

A mere reading of the aforesaid Section 14(1) of the Hindu Succession Act 1956 would show that if a female Hindu has possessed her property

which she has acquired either before or after commencement of the Hindu Succession Act 1956, she should be held to be the full owner thereof

and not a limited owner. Therefore, Poosammal the vendor of the plaintiff after the death of her husband-Pakkirisamy Pillai has become the full

owner of the property left behind by Pakkirisamy Pillai. Since Pakkirisamy also died, after the death of Pakkirisamy, conveying the suit property

under sale deed dated 17.3.1995 by Poosammal, in favour of the plaintiff, is perfectly in order. In view of the aforesaid reasons, I am of the

considered opinion that a conjoint reading of Section 4(1)(b) of the Hindu Succession Act read with the Caste Disabilities Removal Act 1850 and

Section 14(1) of the Hindu Succession Act 1956 clearly tells us that a Hindu widow after the death of her husband does not lose her right of

inheritance of her deceased husband''s property when she converts to another religion by marrying a christian. Accordingly, the second substantial

question of law is also answered against the appellants.

Resultantly, the Second Appeal fails and therefore, the same is dismissed. Consequently, the judgments of both the courts below are hereby

confirmed. Connected, pending M.P. No. 1/2010 is dismissed. No costs.