Lawrence Jenkins, K.C.I.E., C.J.
1. The contesting litigants before us are Native Christians, members of a family, who ancestors were converted from the Hindu religion.
2. The question in controversy is whether the appellants are entitled to share in certain properties, acquired after the death of a common ancestor, Lalu Ghosal, whose name appears at the head of the genealogical table contained in the judgment of the Subordinate Judge. In advancing this claim the appellants contend that the family, notwithstanding the conversion of its members to Christianity, continued to be joint in the sense in which a Hindu family may be so described, and retained the legal status and incidents which belonged to it prior to the conversion.
3. It is on this contention and the legal consequences it involves that the appellants mainly rest their claim to the after acquired property.
4. The status of the family, therefore, is a matter of prime importance and essential to the right decision of the suit, but unfortunately the lower Court has omitted to frame a specific issue on the point.
5. It is, therefore, necessary for us to proceed under Section 566 of the Civil Procedure Code.
6. But before defining the terms of the issue, which we propose to send down to the lower Court, it will be convenient to indicate the principles that appear to us pertinent to the question under consideration.
7. They are for the most part to be found in the leading case of Abraham v. Abraham (1868) 9 M.I.A. 195, and though that case is cited by the Judge of the lower Court, he appers to us to have missed the distinction on which their Lordships there insist between parcenership and heirship. It may be, and we think probably is the case, that this was due to his adherence to what was laid down in Tellis v. Saldanha ILR (1886) Mad. 70, but for reasons which we will later set forth, we believe the decision in that case to be erroneous so far as it is thereby determined that the condition of co-parcenership is disturbed by the Succession Act.
8. But to return to the distinction between co-parcenership and inheritance; the difference is radical, though as applied to the change of legal rights that arise on death there is an apparent resemblance in consequence, which often tends to blur the true nature of the two legal doctrines.
9. In the case of inheritance property devolves on death, it survives in the case of co-parcenership; on inheritance new rights are acquired, on survivorship the enjoyment of existing rights is increased by the removal of one from the body of co-sharers.
10. That there is a distinction is indicated at page 237 of the report in 9 Moore's I.A., where it is said, 'The true question at issue in this case is, not who was the heir of the late Matthew Abraham, but whether he and the respondent formed an undivided family in the sense which those words bear in the Hindu Law with reference to the acquisition, improvement, enjoyment, disposition, and devolution of property. It is a question of parcenership, and not of heirship.'
11. And so it is in this case on the consequences that flow from the doctrine of parcenership-for, parcenership does not only influence the rights that arise on death-and not on inheritance or its results that the appellants rest.
12. First then we must see whether parcenership can be a part of the law governing the rights of the members of this family. That it can is, we think, established by the Privy Council. Thus in Abraham v. Abraham at p. 237 it is said.
Their Lordships, therefore, are of opinion, that upon the conversion of a Hindoo to Christianity the Hindu Law ceases to have any continuing obligatory force upon the convert. He may renounce the old law by which he was bound, as he has renounced his religion, or if he thinks fit. he may abide by the old law notwithstanding he has renounced the old religion.
13. And at p. 239 their Lordships say, 'The profession of Christianity releases the convert from the trammels of Hindu Law, but 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 interests in, and powers over, property. The convert, though not bound as to such matters, either by the Hindu Law or by any other positive law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters.'
14. And at p. 241 we find the following passage,
Reverting again to the evidence, their Lordships think that it is to be collected from it that the family from which both the late Matthew Abraham and the respondent descended was of that class of Native Christians which commonly retains Native usages and customs, and they consider it probable, therefore, that had the family possessed property they would so long as those usages and customs were retained have enjoyed it in common according to Hindoo custom.
15. In Sri Gajapathi Radhika v. Sri Gajapathi Nilamani (1870) 14 W.R. P.C. 33 it was said by their Lordships that the case of Abraham v. Abraham shows that a family ceasing tobe Hindus in religion may still enjoy their property under Hindu Law.
16. It is needless to multiply authorities, on this point, and we will, therefore, confineourselves to a reference to what was said by Wilson J. in Lopez v. Lopez ILR (1885) Cal. 706 .
17. These cases, in our opinion, warrant the view that parcenership can be a part of the law governing the rights of a Christian family converted from the Hindu religion. And we hold this view notwithstanding the decision in Tellis v. Saldariha ILR (1886) Mad. 69.
18. It was in that case determined that coparcenership and the right of survivorship are incidents peculiar to Hindu Law, which law so far as it affected Native Christians was repealed by the Succession Act. But by what part of the Succession Act was this repeal affected? No section is cited in the judgment, nor in the argument before us could any such section be pointed out.
19. The purpose of the Succession Act is to amend and define the rules of law applicable to intestate and testamentary succession in British India, and Intestacy is the subject of part IV of the Act. Section 25, the first Section in this part of the Act, provides that a man is considered to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. But this does not destroy the rule of survivorship any more than it extends rights on intestacy to property in which the intestate had but a life estate.
20. Indeed it is pointed out in Navroji Manockji Wadia v. Perozbai (1898) L.R. 23 Bom. 80 that Section 93 of the Succession Act actually recognizes a joint tenancy with the right of survivorship.
21. The reasoning in Tellis v. Saldanha leads to results that cannot have been intended. Thus Section 25 can only refer to property of the intestate, and reading Sections 25 and 46 together heritable and testable property are apparently identical. But if by virtue of Section 25 heritable property includes property in respect of which coparcenary rights would otherwise exist, then by parity of reasoning the same property would be included in Section 46. But inasmuch as Section 46 is incorporated in the Hindu Wills Act it might be argued from Tellis v. Saldanha that a Hindu coparcener has a power of testamentary disposition. This, however, no one would contend.
22. It is with the devolution of rights on intestacy that the Act deals; it does not, in our opinion, purport to enlarge the category of heritable property.
23. We, therefore, hold that the Succession Act does not affect rights of coparcenership as between those to whom it applies.
24. To return then to the facts of this case, it is necessary to determine whether parcenership is a part of the law governing this family. This is a question of evidence and it is because the attention of the parties was not directed to this precise point that we must send down the issues in these terms :-
1. From what religion was the family converted to Christianity ?
2. Notwithstanding the conversion to Christianity did the family continue or become an undivided joint family with reference to the acquisition, improvement and enjoyment of property in coparcenership ?
25. The form of these issues is not intended to preclude the respondents from advancing any legal argument they may deem relevant.
26. The parties will be at liberty to adduce evidence on this point, and if the 2nd issue be answered in the affirmative, then, we must ask for a fresh finding on the 3rd, 5th and 6th issues.
27. Return in three months.