Vaithilinga Odayar and Another vs Atyathorai Odayar and Others

Oldfield, J.—The plaintiffs, Christians, sued to recover the estate of a deceased Hindu, as his reversioners, that is, they claimed in virtue of

their own relationship to him, not through any earlier reversioner such as Swaminatha Odayar, the member of their branch of the family, who first

embraced Christianity. The lower Appellate Court following the ruling in Bhagwant Singh v. Kallu ILR (1889) All. 100 held that they were relieved

from all religious disability by Act XXI of 1850 and remanded the suit for decision on its merits. The question is whether this decision is right.

The persons relieved by the Act are those, who (1) renounce, (2) have been excluded from the communion of, a religion and (3) deprived of

caste. Renunciation and deprivation are applicable only to rights which have accrued, and therefore are irrelevant in the case of plaintiffs, who were

born Christians, before the succession opened. They therefore are not covered by descriptions (1) and (3). As regards (2) there is more difficulty.

For the word ""exclude"" is applied in ordinary parlance to refusal of rights newly claimed and also deprivation of rights already enjoyed, the meaning

as given in Webster''s Dictionary being: ""(1) to shut out; to hinder from entrance or admission; to debar from participation or enjoyment; the

opposite of to admit and (2) to thrust out; to expel."" It is an argument against the interpretation of ""exclude"" in the Act in the first of these senses

that it is used in the context between two terms, which as I have pointed out, express a different idea. It is further material that, if the Legislature

had intended the result entailed by plaintiff''s contention, the perpetual right of the descendants of a convert to rely on the law of his birth for

purposes of inheritance from unconverted relatives, it could and would have effected it by shorter and more explicit language.

These arguments are supported by the fact that plaintiffs'' contention entails consequences repugnant to reasonableness and consistency. In the

case of the original convert his status will be fixed at the date of his conversion and his original law will be invoked only in order to determine

whether his relationship entitles him to inherit, not whether that relationship exists. No anomalies therefore, beyond the initial one involved in the

application of his original law, will be entailed; with his descendant the case is different. He, having to establish both the points referred to above,

will find the concession involved in plaintiffs'' interpretation of the Act illusory, since his descent will have to be traced through some Christian

marriage which will not be valid according to the law under application and can be established, only if the claimant is allowed to apply both his

abandoned and his present law, as may suit each portion of his case. And, if it be said that this is contemplated, the suggestion is so startling that a

clearer expression of it than the Act contains may fairly be required.

The only decision of a High Court on the point, Bhagwant Singh v. Kallu ILR (1889) All. 100, is no doubt in plaintiffs'' favour. It is based on

considerations first, of the preamble and then of the body of the Act. In respectfully dissenting from it, I observe first, that the preamble sets out a

part only of Section 9 of the Bengal Regulation VII of 1832 to which it refers. Reference to the whole and to Section 8, of which it is a

continuation, snows that (1) their object was to settle all cases of conflict of laws, one omitted portion restricting the operation of Section 8 to

bona fide profession"" of the religion in question at the time of the trial and the whole having no special reference to the particular case of

conversion and (2) the settlement consisted, not only in exempting either party from disabilities entailed by the Hindu or Muhammadan Law but

also, as provided in the other omitted portion, in applying the principles of justice, equity and good conscience. This recognized, the attempt to

identify the purpose of the Act with that stated in the preamble or to explain the one with reference to the other must be abandoned. As regards

argument from the body of the Act, the Court, I think, overlooked the fact that protection is in terms given only to one person, the one who has

renounced or been excluded; and with all due deference, it was not justified in extending it by construction to others.

As the Act will not bear the construction proposed by plaintiff the appeal must be allowed, the District Munsif''s decision dismissing their suit

being restored with costs throughout.

Bakewell, J.

I agree. With regard to the construction of Act XXI of 1850, the plaintiffs are not ""excluded from the communion of any religion or deprived of

caste"" by reason of their own conduct or by anything except what was done or suffered by their remote ancestor. The consequence of his act is

that his descendants form part of a community separated from his other relations by the observance of a different religion and other usages and

governed by a different system of law.

In my opinion the words ""having been excluded"" and ""being deprived of caste"" connote an act directed against a particular person and do not

apply to an individual who is not a member of a particular community because by reason of his birth he is included within another community.

The plaintiffs and defendants belong to different communities governed by different laws of inheritance and the former desire to bring themselves

within both systems in so far as they can derive benefit from so doing and argue that the provisions of the Mitakshara which exclude them have

been repealed.

I do not think that the wording of the Act supports this contention.