Jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors.

on 1 May, 2007

Andhra High Court Andhra High Court Jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. on 1 May, 2007 Equivalent citations: 2007 (5) ALD 140, 2007 (6) ALT 249 Author: V Rao Bench: V Rao JUDGMENT V.V.S. Rao, J. 1. Immovable property bearing House No. 578 with appurtenant land of 521 square yards in Ward No. 7 (Ward No. 30 new) situated at Malakapatnam of Machilipatnam in Krishna District was the ancestral property of one Subbamma, W/o. Nathaniel. She executed registered gift deed, dated 20-4-1965 in favour of her son, Nadakuduru Raja Rao, S/o. Nathaniel. He had three sons, namely Prabhakara Rao, Vijaya Kumar and Kamala Kumar. Along with his two sons except Kamala Kumar, Raja Rao executed registered sale deed, dated 12-2-1979 in favour of one Brahmaiah. After his death, his wife, Victoria sold the property to Jujjavarapu Yesu Rao (plaintiff) under registered sale deed, dated 16-8-1982 duly delivering possession to him. On 30-12-1982, Kamala Kumar, third son of Raja Rao, S/o. Nathaniel, filed O.S. No. 552 of 1982 for partition and separate possession of suit schedule property. He arrayed his father, brothers and Jujjavarapu Yesu Rao as defendants to the suit. The trial Court dismissed the suit inter alia on the ground that suit schedule property is not joint family property. Against the judgment of the I Additional District Munsif, Machilipatnam, in O.S. No. 552 of 1982, dated 31-8-1988, plaintiff filed Appeal Suit No. 109 of 1988 on the file of the Court of I Additional District Judge, Machilipatnam, who reversed judgment and decree of the trial Court directing partition of suit schedule property into four equal shares and allotting one-fourth share to the plaintiff. The present second appeal is against the reversing judgment of first appellate Court. 2. The second appeal was admitted on 9-7-1997. This Court framed following question of law. On the basis of admitted fact on the side of the plaintiffs that they are Christians, are the Courts below right in applying Hindu Law for considering the suit filed by plaintiff, move so, when the defendants denied in written statement that Hindu Law applies to the facts of this case? 3. The question of law as framed above was due to the pleadings of the plaintiff in the suit. He described defendants i.e., his father and two brothers as Christians. He also admitted in the plaint that, "plaintiff and defendants 1 to 3 are Christians by religious faith...". Learned Counsel for the appellant/fourth defendant and learned Counsel for first respondent/plaintiff The second appeal insofar as third respondent is concerned was dismissed for default on 14-3-2001. Though notices were served on respondents 2 and 4 (defendants 1 and 3 respectively), none appears for them. addressed that arguments on the question of law framed by this Court. Appellant vehemently contends that when admittedly the plaintiff and defendants 1 to 3 are Christians, Hindu Law concept of joint family and right to partition are not applicable to them. Secondly, he submits that as per Section 2(1)(c) read with Section 2(3) of Hindu Succession Act, 1956 (hereafter called, Succession Act), Christians, Jews, Muslims and Parsis by religion are excluded from the applicability of Succession Act, and therefore, the lower Court grossly erred in decreeing partition. He also relied on the registered documents, wherein the parties described themselves as belonging to Christian faith. 4. Learned Counsel for first respondent/plaintiff submits that in the absence of any acceptable evidence to show that the plaintiff and defendants 1 to 3 baptized Christianity and are being followed Christian customs, they cannot be treated as Christians. A stray pleading in the plaint would not bar the plaintiff to seek remedy of partition. He submits that forefathers of first defendant were all Hindus leading a Hindu way of life, and therefore, even if they claim themselves as Harizans converted to Christians, they cannot go out of Hindu Law fold or Succession Act. He placed reliance on Vincent Abraham v. Francis Abraham (1863) 9 More's Indian Appeals 199, and other reported decisions referred to hereinafter. According to learned Counsel, the
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Jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. on 1 May, 2007

Christians or converted Christians are only governed by the Indian Succession Act, 1925. 5. The substantial question of law formulated by this Court requires consideration of the following: (i) Law of Succession applicable to Christians prior to enactment of Indian Succession Act, 1925; (ii) Law of Succession applicable to Christians and Christian converts after enactment of Indian Succession Act, 1925; and (iii) Law of Succession applicable to Hindu converts to Christianity after enactment of Succession Act. 6. Learned Counsel for appellant has prepared a note on these aspects after taking good amount of pains, for which he needs appreciation by this Court. This Court places on record its appreciation to learned Counsel. This Court has perused various references mentioned in the written arguments and the following position would emerge. (i) Law of Succession applicable to Christians prior to enactment of Indian Succession Act, 1925: 7. The Indian Succession Act for the first time was enacted in 1865 to govern mainly the principles of succession for the British Christians including Indian Hindu converts. The view taken by the Courts prior to 1865 was that a Hindu converted to Christianity ceases to be governed by Hindu Law, as it is deemed that he renounced the old law by which he was bound to and will be governed by the new law, which is special to the embraced religion. In Vincent Abraham's case (supra), the Judicial Committee of Privy Council considered the question as to law, which governed the succession to property of a protestant native of Indian origin in Madras Presidency and died intestate in 1842. The civil Court at Bellary came to the conclusion that Hindu Law has no application as to protestant Christians. The Sudder Court/Sudder Dewanny Adawlut, however, reversed the judgment and decree of the civil Court. The appeal was taken to Privy Council. While reversing the judgment of the Sudder Court, the Judicial Committee held as under: ...in a case of succession to the estate of a deceased of pure Hindoo bloodd, who had married an European wife, professing, with his family, the Christian religion, and whose ancestors for generations had embraced Christianity, that such case was within the provisions of Mad. Reg. II of 1802, Section XVII, and was to be decided by reference to the usages of the class to which the deceased attached himself and the family to which he belonged. Upon the conversion of a Hindoo to Christianity, the Hindoo Law ceases to have any continuing obligatory force upon the convert. The convert may renounce the old law by which he was bound, as he renounced his old religion, or if he thinks fit, he may abide by the old law notwithstanding he has renounced the old religion. For though the profession of Christianity releases the convert from the trammels of the Hindoo Law, yet it does not of necessity involve any change of the rights or relations of the convert in matters with which Christianity has no concern, such as his rights and interest in, and his power over property. The convert, though not bound as to such matters, either by the Hindoo Law, or by any other positive law, may by his course of conduct after his conversion have shown by what law he intended his rights to be governed. He may do so either by attaching himself to a class which in this respect has adopted and acted upon some particular law, or by having himself observed some particular law, family usage or custom. 8. The above principle was also found favour with another decision of the Privy Council in Gajapathi Radhika v. Sri Gajapathi Nilamani (1870) 14 WR (33) PC, wherein reiterating Abraham principle (supra), it was held that 'on own volition a converted Christian can either renounce Hindu Law or impliedly continue to be governed by Hindu Law".
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Jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. on 1 May, 2007

(ii) Law of Succession subsequent to Indian Succession Act, 1865: 9. In Ponnusami Nadan v. Dorasami Ayyan ILR (2) Mad. 209 (1880), it was held after 1865, the members of native Christian families, cannot adhere to Hindu Law of succession, though such converts who were governed by Hindu Law of succession cannot be deprived of their rights acquired by them under Hindu Law prior to their conversion to Christianity. To the same effect is another decision of Madras High Court in Tellis v. Saldanha ILR (10) Mad. 69 (1886). Bombay High Court in Francis Ghosal v. Gabri Ghosal ILR (31) Bom. 25 (1906), did not agree with the view of Madras High Court in Tellis's case (supra). It was held that Indian Succession Act, 1865 does not affect the right of coparcenary rights as between those to whom it applies and that co-parcenarship can be part of law governing the rights of the Christian family converted into Christian religion. Calcutta High Court in Kulada Prasad Pandey v. Haripada Chatterjee ILR (40) Cal. 407 (1912), while holding that if one member of joint family converts to Christianity, it would result in complete dissolution of entire family and from that time, the members of Hindu family cannot be treated as members of Joint Hindu Family. It was also held that if all the members of family become Christians, it would not affect the right of coparcenarship as they can still adhere to old law notwithstanding conversion. (iii) Law of Succession relating to Christians after enactment of Indian Succession Act, 1925: 10. Indian Succession Act, 1865, was repealed by Indian Succession Act, 1925. Between 1925 and 1956 (when Law of Hindu Succession was codified), Madras High Court's view in Ponnusami Nadan's case (supra), appears to have prevailed and the position after 1956 Act is little different. Position under Succession Act 11. Mulla in his treatise, 'Principles of Hindu Law' (15th edn., 1982), after referring to various reported cases in paragraphs 6 and 7 enumerated the categories of persons to whom Hindu Law applies and categories of persons to whom Hindu Law does not apply as under: 6. The Hindu Law applies-(i) not only to Hindus by birth, but also to Hindus by religion, i.e. converts to Hinduism; (ii) to illegitimate children where both parents are Hindus; (iii) to illegitimate children where the father is a Christian and the mother a Hindu, and the children are brought up as Hindus. (iv) to Jains, Buddhists in India, Sikhs, and Nambudri Brahmins except so far as such law is varied by custom and to Lingayats who are considered Sudras; (v) to a Hindu by birth who, having renounced Hinduism, has reverted to it after performing the religious rites of expiration and repentance. Or even without a formal ritual of reconversion when he was recognized as a Hindu by his community: (vi) to sons of Hindu dancing gir1s of the Naik Caste converted to Mohomedanish, where the sons are taken into the family of the Hindu grandparents and are brought up as Hindus; (vii) to Brahmos; to Arya Samajists; and to Santhals of Chota Nagpur; and also to Santhals of Manbhum except so far as it is not varied by custom; and (viii) to Hindus who made a declaration that they were not Hindus for the purpose of the Special Marriage Act, 1872.
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Jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. on 1 May, 2007

7. Persons to whom Hindu Law does not apply--The Hindu Law does not apply-(1) to the illegitimate children of a Hindu father by a Christian mother who are brought up as Christians, or to illegitimate children of a Hindu father by a Mahomedan mother; (2) to the Hindu converts to Christianity. (3) to converts from the Hindu to the Mahomedan faith; (4) The Hindu Law of succession does not apply to the property of any person professing the Hindu, Sikh or Jain, religion who married under the Special Marriage Act III of 1872 or the property of the issue of such marriage. 12. Hindu Law relating to succession, neeD1ess to mention, was essentially governed by custom, which again depended on Smruthi's - the former overriding the latter. Many views of many authors gave rights to diversify schools of Hindu Law of succession. Unified Hindu Law of succession for all Hindus was much desired. Ultimately, Succession Act was enacted so as to amend and codify the law relating to intestate succession among Hindus, leaving testamentary succession outside the purview of Succession Act. Section 2 of Succession Act with all its Sub-sections, clauses and Sub-clauses, as a whole deals with application of Succession Act and enumerates the persons to whom Succession Act applies and persons to whom Succession Act has no application. 2. Application of Act--(1) This Act applies-(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; (b) to any person who is a Buddhist, Jaina or Sikh by religion; and (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation:-The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be-(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; (c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion. (2) Notwithstanding anything contained in Sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (3) The expression "Hindu " in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
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Jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. on 1 May, 2007

(emphasis supplied) 13. Section 2 of Succession Act indeed contains a broad comprehensive and holistic definition of "Hindus" at least for the purpose of law of intestate succession. Section 2(3) defines the expression 'Hindu' stating that the term shall be construed as if it included a person to whom an Act applies even though such person is not a Hindu by religion. If this is applied in stricto sensu, the view canvassed by learned Counsel for plaintiff must commend to Court. But Section 2(3) of Succession Act is couched in such a language that it cannot be read in straightjacket giving plain meaning to that and applying Succession Act to all persons even though they are not Hindus by religion. That was not the purpose of said provision. It only says that the expression 'Hindu' also includes a person to whom Succession Act applies. 14. Who are the persons to whom Succession Act applies? Explanation to Section 2(1) read with Clauses (a), (b) and (k) of Section 2(1) of Succession Act contains categories of persons to whom Succession Act applies by reason of such persons being Hindus. Section 2(1)(c) of the Succession Act contains categories of persons to whom Succession Act does not apply by reason of such persons not being Hindus, to whom Hindu Law of Custom and Usage had never been applied before the enactment of Succession Act. To clarify further, Section 2(1)(c) of Succession Act lays down that the Act applies to any other person (who is not Hindu) to whom Hindu Law of custom and usage was applied prior to Succession Act. It also lays down that Succession Act does not apply to a person who is a Muslim, Christian, Parsi or Jew. In other words, Succession Act applies to any other person, who is not a Hindu but was governed by Hindu Law before the enactment of Succession Act but such person should not be a Muslim, Christian, Parsi or Jew. 15. In Indian Medical Association v. V.P. Shantha , Supreme Court considered whether the service rendered by a Medical Practitioner falls within the definition 'service', as defined in Section 2(1)(o) of Consumer Protection Act, 1986. Interpreting definition of 'service', apex Court observed as under: The definition of 'service' in Section 2(1)(o) of the Act can be split up into three parts -the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description, which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information. The exclusionary part excludes rendering of any service free of charge of under a contract of personal service. 16. Regarding applicability of such a definition, which has main part, inclusionary part and exclusionary part, their Lordships laiddown as under: The exclusionary part will require consideration only if it is found that in the matter of consultation, diagnosis and treatment a Medical Practitioner or a hospital/nursing home renders a service falling within the main part of the definition contained in Section 2(1)(o) of the Act We have, therefore, to determine whether Medical Practitioners and hospitals/nursing homes can be regarded as rendering a "service" as contemplated in the main part of Section 2(1)(o). 17. Applying the above principle and having regard to the main part of the section regarding applicability, inclusionary part and exclusionary part, there cannot be any doubt that whether or not Hindu Law governed or applied prior to 1956, a Muslim, Christian, Parsi or Jew, after coming into force of Hindu Succession Act, 1956, cannot be governed by Succession Act nor persons who admit that they are Christian by religion can plead before a common law Court that they are governed by Hindu Law in matters of partition of joint family property. There cannot be two opinions that the peculiar concept of Joint Hindu Family, coparcenary and doctrine of blending etc., are very unique to Hindu Law. These cannot be made applicable to Christians, Muslims or Parsis or Jews to whom Succession Act has no application nor Hindu Law has any application as observed by Mulla, whose elucidation is noticed supra.
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Jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. on 1 May, 2007

18. It is axiomatic that the evidence let in before the trial Court - both oral and documentary - and considered by the Courts below cannot be reconsidered by the Court of second appeal. Nonetheless, a cursory look at the plaint, evidence of P.W.1, Ex.B.3, gift deed executed by his mother in favour of first defendant, Ex.B.2, sale deed by defendants 1 to 3 in favour of Brahmaiah, husband of Victoria would show that they themselves described as Christians. The submission of the learned Counsel for the plaintiff is that they are Harizans claiming themselves as Christians without baptism and therefore, Hindu Law of succession should be applied to them. The argument is liable to be rejected. There cannot be any better evidence than an unexplained admission of a party to the proceedings in a suit. plaintiff admitted that they are Christians and indeed described the defendants as Christians. Therefore, the plaintiff is not entitled for decree of partition, as per Hindu Law. 19. In the result, for the above reasons, second appeal is allowed. The judgment of the Court of I Additional District Judge, Machilipatnam, Krishna District in A.S. No. 109 of l988, dated 30-7-1996 is set aside and the judgment and decree of the Court of the I Additional District Munsif, Machilipatnam, in O.S. No. 552 of 1982, though for different reasons, is confirmed. In the facts and circumstances of the case, however, this Court is not inclined to make any order as to costs insofar as the second appeal is concerned.

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