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K. Sreedharan Nair Vs. V. Sreekumaran Nair - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberSecond Appeal (MD) No. 561 of 2005
Judge
AppellantK. Sreedharan Nair
RespondentV. Sreekumaran Nair
Excerpt:
.....by the community are perverse it is of view that appellant has proved that he belongs to hindu nair community and that he professes hinduism suit filed by respondent against appellant was not maintainable judgment and decree of lower appellate court confirming judgment and decree set aside appeal allowed. (paras 20, 21, 22) cases referred: m.kesava goundar v. d.c.rajanreported in air 1976 k.ranganathan and another v. govt. of madras and othersreported in air 1955 sc 604 (v.42 c.94 sept.) gian chand and brothers and another v. rattan lal alias rattan singhreported in (2013) 2 scc 606, banwari lal (dead) by legal representatives and another v. balbir singhreported in (2016) 1 scc 607 perumal v. ponnuswamireported in air 1971 sc 2352 s.anbalagan v. b.devarajanreported in air 1984..........who is now called by christian name i.e., amal ralphin , cannot claim that he belongs to hindu nair community and cannot exist in his hindu name sridharan nair . 5. the respondent / plaintiff claimed that he is the president of kanyakumari district nair service society and the chairman of velu thambi memorial educational trust. according to him, the society itself was formed by the nair community people to promote the education of nair community and the objects of the society and trust do not permit a non-hindu to participate in the affairs of the society. the plaint also presupposes that a christian is not entitled to continue as a member of the nair community and hence, cannot be allowed to interfere with the affairs of the association and the trust which exclusively belong to the.....
Judgment:

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 25.04.2005 of the learned First Additional Subordinate Judge, Nagercoil made in A.S.No.13 of 2005 on his file, confirming the judgements and decree dated 17.11.2004 of the learned I Additional District Munsif of Nagercoil made in O.S.No.450 of 2003 on his file.)

1. The defendant in the suit in O.S.No.450 of 2003 on the file of the First Additional District Munsif Court, Nagercoil, is the appellant in the above Second Appeal.

2. This Second Appeal is against the judgment and decree dated 25.04.2005 in A.S.No.13 of 2005 on the file of First Additional Sub Court, Nagercoil, confirming the judgment and decree dated 17.11.2004 in O.S.No.450 of 2003 on the file of First Additional District Munsif Court, Nagercoil.

3. The respondent herein filed a suit in O.S.No.450 of 2003 on the file of the District Munsif Court, Nagercoil against the appellant herein for declaration that the appellant / defendant belongs to R.C. Christian sect and for a permanent injunction restraining the appellant / defendant from interfering with the affairs and functioning of the District Nair Service Society and Velu Thambi Memorial Educational Trust. The declaration was subsequently given up and the suit for permanent injunction alone was prosecuted.

4. The case of the respondent / plaintiff is that the appellant / defendant married one Mary Rose on 26.12.1953 at St. Xavier Cathetral, Kotar, after converting himself into Christianity. According to the respondent / plaintiff, the appellant / defendant was living as a Christian after conversion and the society accepted him and recognised him only as a Christian. It is the specific case of the respondent / plaintiff that a person who had voluntarily converted to Christianity as per the ecclesiastical law has to be remained as a Christian till his life time, if there was no reconversion by due process of law. The respondent / plaintiff contended that the appellant / defendant, who is now called by Christian name i.e., Amal Ralphin , cannot claim that he belongs to Hindu Nair community and cannot exist in his Hindu name Sridharan Nair .

5. The respondent / plaintiff claimed that he is the President of Kanyakumari District Nair Service Society and the Chairman of Velu Thambi Memorial Educational Trust. According to him, the society itself was formed by the Nair community people to promote the education of Nair community and the objects of the society and trust do not permit a non-Hindu to participate in the affairs of the society. The plaint also presupposes that a Christian is not entitled to continue as a member of the Nair community and hence, cannot be allowed to interfere with the affairs of the association and the trust which exclusively belong to the Nair community.

6. The suit was resisted by the appellant / defendant on the following grounds:

(a) The suit prayer for declaration and injunction is not maintainable.

(b) Though the defendant was born as a Hindu, he fell in love with the girl by name Mary Rose, a Roman Catholic Christian and agreed to marry her by adopting Christian ceremonies and forms at the request of the parents of her wife Mary Rose. Though the marriage was celebrated in a church after giving baptism to the defendant, the defendant had orally informed by parents of his wife and his wife that he would come to the church only for the celebration of the marriage and that he would continue as a Hindu confirming to his belief and faith. As a matter of fact, he never adopted and embraced Christianity at any time and the society has recognised him only as a Hindu as the defendant never gave up his belief and doctrine of Hinduism at any time. According to the defendant, even his wife Mary Rose changed her name as Kusumakumari and converted herself to Hinduism and followed Hinduism by visiting Hindu temples and accepting the doctrines of Hinduism. Since the children born to the defendant and the family of defendant living as Hindus and the society accepted and recognised his family as belonging to Hindu Nair community, the defendant contented that he continued to be the member of Hindu Nair community and that the plaintiff's suit is unsustainable in law.

(c) The defendant has every right to participate in the activities of the Nair Service Society of Kanyakumari District both in the village level (Karayogam) and at the District level. Since the plaintiff indulged in some activities against the interest of Kanyakumari District Nair Service Society and Velu Thampi Memorial Educational Trust (which do not belong to a particular community), the defendant was constrained to file a suit in O.S.No.90 of 2001 and O.S.No.284 of 2002 before the District Munsif Court, Nagercoil, questioning the proceedings initiated against the defendant and others in utter disregard to the bye-laws of the society. Since the present suit is only a counter-blast to the previous suits with an intention to render the suits unsustainable, the present suit against the defendant who is a member of the Hindu Nair community, is not maintainable in law.

(d) The plaintiff has no locus standi to file the suit.

7. The trial Court decreed the suit for injunction mainly on the ground that the defendant converted himself as a Christian at the time of marriage but failed to prove that he was again re-converted to Hinduism. Though the trial Court found that the plaintiff has not produced any evidence to show that the defendant was living as a Christian after marriage and noted the proposition of law that no particular ceremony is prescribed for reconversion to Hinduism, strangely, held that reconversion cannot be accepted unless the custom and practice in the Nair Community approves of such reconversion and the ceremony etc., is proved by the defendant so that there was reconversion by the defendant in the manner prescribed.

8. Sum and substance, the trial Court accepted the case of the respondent / plaintiff that Nair Community does not accept the reconversion of a person to Hinduism without a formal ceremony and that the appellant / defendant has not proved that their community have accepted him as a Hindu Nair. It is surprising to note that the case of the appellant / defendant that he has been the office bearer of Kanyakumari District Nair Service Society, was not considered. The trial Court after finding that the person who does not profess Hinduism cannot become a member of the society as per the bye-laws has no right either to become a member or to participate or interfere with the affairs of the society and hence, decreed the suit. The lower appellate Court also confirmed the judgment of the trial Court by giving the same reasoning as that of the trial Court. Though the case of the appellant / defendant that the appellant's / defendant's wife Mary Rose converted herself to Hinduism and was living as a Hindu, the lower appellate Court has held that the appellant / defendant has not proved reconversion to Hinduism despite production of several documents filed by the appellant / defendant that the appellant's / defendant's children were recognized as Hindus and that the appellant / defendant is professing only Hinduism. Aggrieved by the judgment and decree of the lower appellate Court, the above second appeal has been filed by the appellant / defendant.

9. The learned counsel for the appellant / defendant relied upon a judgment of this Court in the case of M.Kesava Goundar v. D.C.Rajan reported in AIR 1976 Madras 102 for the proposition that a pure question of law not dependent on the determination of any question of fact should be allowed to be raised for the first time in the grounds of appeal and such pure questions of law can be allowed at a later stage. He also relied upon the judgment of the Hon'ble Supreme Court in the case of M.K.Ranganathan and another v. Govt. of Madras and others reported in AIR 1955 SC 604 (V.42 C.94 Sept.) for the same proposition.

10. At the time of admission, the following substantial questions of law were framed by this Court:

(A) Whether the judgments and decrees of the courts below are correct and sustainable, in view of the appellant's overwhelming evidence to show that he continued to be a Hindu, namely, Exs.B-1 to B10 and third party documents Exs.X1 to X4?

(B) Whether the judgments and decrees of the courts below are correct and sustainable in view of the respondent's admission that the appellant married his second wife, Omanakutti Amma, in the Kumarankovil Temple, a Hindu Temple and the evidence of D.W.2 and Ex.B-3 showing that the appellant married Omanakutti Amma in the said Hindu Temple and hence, it is amply clear that at least from the date of his second marriage the appellant is a Hindu?

(C) Whether the suit filed by the respondent in his individual capacity for the reliefs claimed therein is maintainable?

(D) Whether the suit is maintainable on account of acquiescence, mala fide and laches by the respondent in view of his evidence that in 1980 he had come to know of the appellant's marriage to a Christian girl, but filed the suit to disqualify the appellant on that ground only in 2003, that too, after the appellant had filed two suits, namely, O.S.Nos.90 of 2001 and 284 of 2002 in the matter?

11. It is to be noted that the respondent / plaintiff has filed the suit praying for a decree for permanent injunction restraining the appellant / defendant from interfering with the affairs and functioning of the District Nair Service Society and Veluthambi Memorial Educational Trust, since he belongs to R.C. Christian sect. In the cause of action paragraph, except referring to the conversion of appellant / defendant to Christianity on 14.12.1953, no other fact or instance is referred to. Further, the respondent / plaintiff has not alleged any grievance or personal injury to the plaintiff himself in the plaint. In such circumstances, the appellant / defendant has raised two other legal issues as to the maintainability of the suit against the respondent / plaintiff. First, on the ground that the respondent / plaintiff has no locus standi to file the suit and secondly on the ground that the suit filed by the respondent / plaintiff in his individual capacity without impleading the society as a party to the present suit is not maintainable. After referring to the findings of Courts below, the learned counsel for the appellant / defendant submitted that no form of ceremony is required to prove reconversion into Hinduism and that the Courts below have failed to appreciate the legal position as to the requirement for establishing the fact of reconversion. The learned counsel for the appellant / defendant further submitted that the appellant / defendant involved himself in the affairs of the society as well the trust as a Hindu and he has been the office bearer of the society all along. When the other members of the community have recognised him as a Hindu by allowing him to be the office bearer of the society, the suit filed by the respondent / plaintiff as a counter-blast to the two suits filed by the appellant / defendant challenging the proceedings / resolution of the society is a vexatious litigation just to render the suits filed by him invalid by referring to the decree for the injunction in the present suit.

12. The learned counsel for the respondent / plaintiff submitted that the appellant / defendant cannot be permitted to raise new grounds which were not raised by him in the suit and it is not open to the appellant / defendant to raise an issue regarding the maintainability of the suit either on the ground of locus standi or on the ground that the suit is bad for non-joinder of necessary party namely, the society.

13. The learned counsel for the respondent / plaintiff has argued further that the appellant / defendant had been removed from the society and the resolution of the society removing the appellant / defendant from membership role though challenged in the suit filed by the appellant / defendant, till such time his status as a member of the society is revived in the other suits the defendant / appellant has no defence in the present suit which is filed for an injunction restraining him from interfering with the affairs of the society and the trust. The learned counsel for the respondent / plaintiff also submitted that the appellant / defendant has admitted the factum of conversion into Christianity by celebrating his marriage in the Christian form. However, the appellant / defendant has not proved that he had reconverted from Christianity to Hinduism by adopting a form or procedure prescribed. It was his final submission that the Courts below have rendered the finding against the appellant / defendant concurrently as to the status and hence, the same cannot be interfered with in this Second Appeal by exercising the power under Section 100 C.P.C.

14. Having regard to the pleadings, evidence and the findings of the Courts below, I am of the view that the Courts below have not considered the issue in a proper perspective. First of all, the suit has been filed by the respondent / plaintiff in his individual capacity restraining the appellant / defendant from interfering with the affairs of the society and the trust. Absolutely, there is no averments in the plaint regarding any personal injury or grievance of the respondent / plaintiff to give him a cause of action to file the suit in his individual capacity for injunction against the appellant / defendant. This Court finds that there is no cause of action for the respondent / plaintiff to file the suit and the respondent / plaintiff has no locus standi to maintain the present suit as it is framed. Under Section 37 of Specific Relief Act, when a person alleges infringement of his right or personal injury, he cannot maintain a suit for permanent injunction. When the plaintiff has no personal interest in the matter, it is well settled that the suit for permanent injunction cannot be granted.

15. The relief which is claimed in the plaint, is purely relating to the affairs of the society and the trust. Though the respondent / plaintiff is an office bearer of the society, he is entitled to represent the society in all the suits filed by the society or against the society, but, cannot file a suit in his individual capacity for the cause of society or its members. Since the society itself is not made a party in the suit, the suit is not maintainable as it was framed.

16. The learned counsel for the respondent / plaintiff in this context relied upon a judgment of the Hon'ble Supreme Court in the case of Gian Chand and Brothers and another v. Rattan Lal alias Rattan Singh reported in (2013) 2 SCC 606, wherein at paragraphs 23 it has been held as under:

23.The said aspect can be looked from another angle. Rules 3, 4 and 5 of Order 8 form an integral code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. It is obligatory on the part of the defendant to specifically deal with each allegation in the plaint and when the defendant denies any such fact, he must not do so evasively but answer the point of substance. It is clearly postulated therein that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact.

17. By referring to the said judgment, it was argued by the learned counsel for the respondent / plaintiff that the appellant / defendant who has not raised specifically an issue regarding the maintainability of the suit cannot raise an issue regarding maintainability of the suit. In paragraph 2 of the written statement, the appellant / defendant has raised an issue regarding the maintainability of the suit and again in paragraph 12 of the written statement, the appellant / defendant has specifically stated that the respondent / plaintiff has no locus standi to file the suit. The learned counsel for the respondent / plaintiff further relied upon another judgment of the Hon'ble Supreme Court in the case of Banwari Lal (Dead) by legal representatives and another v. Balbir Singh reported in (2016) 1 SCC 607 for the proposition that procedure is meant only to facilitate the administration of a society and not to divide the same. The expression of the Hon'ble Supreme Court in the case cited by the learned counsel for the respondent / plaintiff is in the context of condoning the delay in bringing the legal representatives of the deceased party on record. However, in the present case, the respondent / plaintiff is not entitled to any relief without an averment as to his personal interest or legal injury to himself. It is not permissible in law to any one to seek a declaration as to the status of another person and a consequential relief of injunction without alleging personal interest or grievance or injury to the plaintiff himself. Hence, this Court has no other option except to hold that the respondent / plaintiff who has no locus standi cannot maintain the suit for the relief of injunction as prayed for in the suit. Though the respondent / plaintiff is an office bearer entitled to represent the society, unless the society is also made as party, it is not proper to entertain the suit for granting a relief which is relating to the affairs of the society without impleading the society or the trust. Since the respondent / plaintiff has failed to implead the society, namely, the District Nair Service Society and the trust namely Veluthambi Memorial Educational Trust, the suit as framed is not maintainable. The third question of law is thus answered in favour of appellant.

18. The Hon'ble Supreme Court in the case of Perumal v. Ponnuswami reported in AIR 1971 SC 2352 has held as follows:

A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.

19. Similarly, the Hon'ble Supreme Court also in the case of S.Anbalagan v. B.Devarajan reported in AIR 1984 SC 411 has held as follows:

These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for re-conversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste marks it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste 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. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deeprooted in the Indian people that its mark does not seek to disappear on conversion to a different religion.

20. Curiously, in the present case, the respondent / plaintiff has not pleaded any custom or ceremony or a form of ritual that is in vogue for a person to convert or re-convert into Hinduism in Nair community. The case of the respondent / plaintiff in the plaint that a person who converts himself from Hinduism to Christianity, loses his community status as Nair is without basis and opposed to our constitution. Such a plea cannot be entertained. Though the community status for a person may vary depends upon the religious faith of the individual, the person's caste status cannot change with the change of religion of a person. Hence, the contention of the respondent / plaintiff that unless a person continues to profess Hinduism, he cannot claim to be a person belonging to Nair community cannot be accepted. However, a person's membership in a society can be limited to religion by providing an eligibility criteria or qualification for membership in the bye-laws of the society. Strangely, the respondent / plaintiff is not able to show before this Court from the bye-laws that a person who is not professing Hinduism is not eligible to become a member of the District Nair Service Society. Hence, the argument of the learned counsel for the respondent / plaintiff does not hold water. Further, it can be seen that the appellant / defendant has produced voluminous documents to prove that he has contracted second marriage by adopting the Hindu form and that his own family members are known as Hindus as per the statutory records. It is also the specific case of the appellant / defendant that he was an office bearer of the very same society till 1995. The suits filed by the appellant / defendant also indicate that there were dispute between the parties regarding the affairs of the society and the trust. In such circumstances, it can be held that the community as such has recognized the appellant / defendant as a Hindu Nair and hence, the findings of the Courts below that the conversion of the appellant / defendant from Christianity to Hinduism has not been recognized as such by the community are perverse.

21. Having regard to the documents filed by the appellant / defendant and the discussions made above in the light of the law laid down by the the Hon'ble Supreme Court in the case of Perumal v. Ponnuswami reported in AIR 1971 SC 2352, this Court is of the view that the appellant / defendant has proved that he belongs to Hindu Nair community and that he professes Hinduism. The questions of law 1 and 2 are thus answered in favour of appellant.

22. For all the above reasons, the questions of law framed by this Court are answered in favour of the appellant / defendant and the suit filed by the respondent / plaintiff against the appellant / defendant is not maintainable. Since the findings of the Courts below are held to be perverse in the light of the judgment of the Hon'ble Supreme Court and the discussions above made, the contention of the respondent / plaintiff that this Court cannot entertain the second appeal under Section 100 CPC is liable to be rejected. Hence, the Second Appeal is allowed and the judgment and decree of the lower appellate Court in A.S.No.13 of 2005 dated 25.04.2005 on the file of the First Additional Subordinate Court, Nagercoil, confirming the judgment and decree in O.S.No.450 of 2003, dated 17.11.2004 on the file of the First Additional District Munsif Court, Nagercoil is set aside and the suit in O.S.No.450 of 2003 is dismissed. However, there is no order as to costs.


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