1. The suit giving rise to this appeal was filed by the respondent for possession of a house and past, pendente lite and future mesne profits at the rate of Rs. 10 per mensem. The trial Court decreed it in toto. The lower appellate Court confirmed the decree for possession upholding the plaintiff's title, but remanded the case to the trial Court for deciding the question of mesne profits afresh after framing a specific issue thereon. The defendant filed an appeal in this Court, registered as F.A.F.O. 237 of 1965, under Section 104 read with Order 43, Rule 1 of the Code of Civil Procedure. The appeal came up before Verma, J. (as he then was) for final hearing. He considered the points of law involved in the case to be of sufficient importance meriting decision by a Division Bench and ordered accordingly.
2. Thereafter the appeal was heard by Oak, C. J. and Mukerji, J. Before them a preliminary objection was raised by the respondent as to the maintainability of appeal under the provisions under which it had been filed. This objection was upheld by the Bench, but at the request of the appellant, permission and time was granted to convert the appeal into a regular second appeal under Section 100 of the Code. Necessary steps in that behalf having been taken by the appellant, the appeal was registered as Second Appeal No. 1623 of 1971, and has thereafter been heard by this Bench.
3. The plaintiffs title and claim are founded on a sale deed dated 14-10-1957 executed in her favour by Smt Dhanki, mother of the defendant. She pleaded inter alia that she had acquired absolute ownership under the sale deed. The execution of the sale deed is not denied. The question is as to the nature and extent of title and right which could be and had been conveyed to her by Smt. Dhanki, and whether she is entitled to recover possession by evicting the defendant from the house. The sale deed apparently is a convevance of absolute title.
4. The house admittedly was originally owned by one Tirhoo, who died some forty or fifty years before the suit leaving behind a widow, Smt. Binda and a daughter, Smt. Dhanki. The widow inherited the house and on her death it devolved on Smt. Dhanki. The latter had at first been married to a Hindu but subsequently she married a Muslim after renouncing Hindu religion and embracing Islam. She inherited the property after her conversion. The defendant, Fakir Bux is Smt. Dhanki's son by her Muslim husband. He was born in the house and had been living therein with his mother since then. These in brief are the material facts, either admitted or proved, which are no longer assailable. The pleas of the defendant that he has been in adverse possession of the house for more than twelve years before the institution of the suit and that it is therefore barred by limitation have been negatived. The appellant has not shown that those findings suffer from any error of law. Eventually, the appellant's possession was merely as a licencee of his mother. It is in the context of these facts and circumstances that the appeal has to be decided.
5. The courts below have held that by virtue of the provisions of the Caste Disabilities Removal Act (XXI of 1850) Smt. Dhanki in spite of her conversion to Mahomedan religion inherited the house as Tirhoo's daughter and that she became its absolute owner under Section 14 of the Hindu Succession Act (XXX of 1956) when that Act came into force. The plaintiff, therefore, acquired absolute title to the house under the sale deed executed by Smt. Dhanki in her favour. The points for consideration in the appeal are whether the legal questions arising in the case have been decided correctly by the courts below and whether the suit could be legally decreed.
6. Act XXI of 1850 contains one substantive Section, viz., Section 1. The preamble forms an integral prelude to the main section. Together they run thus:
'Whereas it is enacted by Section 9, Regulation VII, 1832, of the Bengal Code that whenever in any civil suit the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Muhammadan persuasion, or where one or more of the parties to the suit shall not be either of the Muhammadan or Hindu persuasions, the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws they would have been entitled; and whereas it will be beneficial to extend the principle of that enactment throughout India; it is enacted as follows:--
1. So much of any law or usage now in force within India as inflicts on any person forfeiture of rights of property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of any religion, or being deprived of caste, shall cease to be in force as law in any court.'
7. Both the parties agree, and the provisions of Act XXI of 1850 in that behalf are also clear, that Smt. Dhanki being Tirhoo's daughter inherited the house in the same legal capacity and manner as she would otherwise have done had she not renounced Hindu religion. Ex hypothesi, she took only a limited estate when succeeding as Tirhoo's daughter, even though she then was a Muslim. But for the statute in question, she undoubtedly would have been wholly excluded from inheritance. The Act does not make any inroad into nor has the effect of amending or altering the personal law of inheritance to which the convert was amenable prior to his or her conversion. It does not contain any provision, express or implied, enlarging or converting a limited estate inherited or inheritable under the Hindu law into full or absolute ownership as a result or in consequence of the conversion of the person concerned to anotherreligion. It does no more than prevent divestment or deprivation of previously acquired or vested rights of property on account of apostasy, and secure to the convert such legal right to inheritance as he or she was possessed of prior to conversion, by a legislative mandate that no provision for confiscation or forfeiture of such rights consequent upon renunciation of religion shall be enforced in any court. Such protection and benefit extend also to outcastes and persons ex-communicated from religion. The Act, however, per se affords protection and benefit personally to the convert, outcast or the ex-communicated person only and not to his or her issues. An issue of such person, conceived and born subsequently, is not a convert, outcast or ex-communicated person within the meaning of the Act. Congenitally, he or she belongs to the faith of the parent concerned and is governed by the same personal law by which such parent is then governed.
8. Act XXI of 1850 has since its enforcement fallen for construction in many cases in different High Courts. It came to be construed by the Privy Council in Mitar Sen Singh v. Maqbul Hasan Khan . Their Lordships of the Judicial Committee approved and accepted as correct the narrower view expressed in Vaithilinga Odayar v. Ayyathorai Oda-yar, ILR 40 Mad 1118 : (AIR 1918 Mad 430) and overruled the broad construction expounded by Sri John Edge in Bhagwant Singh v. Kallu, (1888) ILR 11 All 100. In the words of their Lordships 'the section (Section 1) in terms only 'applies to protect the actual person who either renounces his religion or has been excluded from the community of any religion or has been deprived of his caste. It is intended to protect such a person from losing any right of property or succeeding as heir'.' Further on, they proceeded to observe: 'In other words, when once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children.'
9. From the above discussion it follows that Smt. Dhanki, even though she at the relevant time was a Muslim by conversion, inherited the house of her Hindu father taking a limited estate which on her death would devolve not on her personal heirs but would revert to the next heir of her father Tirhoo. The appellant not being entitled to succeed under the Hindu law, even though factually he is Tirhoo's daughter's son, has no legal right to question the sale in plaintiffs favour by his mother or to resist delivery of possession to the vendee. Had Smt. Dhanki's limited estate become absolute, the house would have acquired the character of being a personal and heritable property in her hands to which her personal heirs under the Muslim law would be entitled to succeed. This brings us to the question whether Smt. Dhanki by virtue of Section 14 of Act XXX of 1956 becomes absolute owner.
10. Act XXI of 1850 did not itself create or confer any new or statutory right of property or of inheritance. It merely protected and preserved those rights which existed when the Act came into, force. Act XXX of 1956 has nothing to do with renunciation of any religion or with ex-communication from any religion or caste. Section 14 of this Act creates a new right overriding that provision of the Hindu law under which a Hindu female could take only a limited estate. The plaintiff's vendor Smt. Dhanki admittedly was a Muslim and not a Hindu female when Act XXX of 1956 came into force-This Act, as provided by Section 2(1), thereof, applies-
(a) to any person who is a Hindu by religion-
(b) to any person who is a Budhist, Jain or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion.....'
By virtue of the Explanation to Section 2(1) the following persons are also Hindus, Buddhists, Jains or Sikhs by religion, as the case may be:--
(a) any child, legitimate or illegitimate, both of whose parents are Hindus .... by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu..... 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.....religion.
Neither Smt. Dhanki nor her son, the appellant can be held to be Hindu to whom the Act applies. Smt. Dhanki did not become absolute owner of the house under Section 14 of this Act as has been wrongly held by the courts below. This does not, however, adversely affect the respondent's right to recover possession from the appellant or to receive mesne profits.
11. The sale deed executed by Smt. Dhanki in favour of the respondent is not void or a nullity under the law. It vested the plaintiff at least with same right of possession and enjoyment as his vendor possessed. On Smt. Dhanki's death the sale may be liable to be repudiated or ignored by Tirhoo's reversioner, if any, then entitled to succeed. But the appellant neither possessed any legal right nor any locus standi to resist delivery of possession to the respondent nor to deprive her of the benefit and enjoyment of the house. Her suit for possession was rightly decreed by the courts below and her legal right to mesne profits has been rightly upheld.
12. In the result the appeal fails and is dismissed with costs.