Venkatasubba Rao, J.
1. This case raises questions of great importance:
(1) Is it open to a lady of European origin to become a Hindu by conversion?
(2) Is her marriage, after such conversion, with a Hindu gentleman, Bhatia by caste, valid?
2. The facts of the case are interesting. Mena Renda was of Austrian origin and domiciled in Great Britain. She was a Theosophist and a Hindu by conviction. She was further a vegetarian and has been described as having been practically a Hindu in all her habits of life. She was living in India for several years, about 12 or 13, and then expressed a desire to be formally converted to the Hindu faith. There was a Society founded in Bombay in 1917 known as the Hindu Missionary Society. Its object was to perform 'Sudhi,' that is to say, convert people of other faiths and admit them into the Hindu fold. On the 21st of May, 1922, at her request, this Society performed the ceremony of conversion. She changed her name and adopted a Hindu name, viz., Sulochana. Immediately after the conversion, on the same day, she married according to Vedic rites Mr. Ratansi Morarji, a mill-owner of Bombay and a Member of the Council of State. Mr. Vaidya and Mr. Raje, who belonged to the Hindu Missionary Society, officiated at the conversion as well as the marriage. They depose that in regard to both the events, Vedic religious rites were performed. Mr. Vaidya says - and his statement has not been challenged - that the rites performed were such as would be sufficient under the Hindu religion to effect a conversion. Mr. Vaidya and Mr. Raje are Brahmins as also Mr. Chunilal Bhat who was present and has been examined. It was Mr. Bhat who performed the Kanyadana, that is, who gave away the bride. The marriage was not performed secretly, but according to the evidence of Mr. Raje, it was not for certain reasons (not stated) made very public. The conversion as well as the marriage were published in the newspapers. Soon after the wedding, the lady and her husband left for Europe. They lived in Venice, in Paris and in London and returned to India in August. While they were in Europe, Mr. Morarji's brother was living with them as a member of their family. After their return, the husband went to Bombay, but the lady resided either at the Headquarters at Adyar of the Theosophical Society or was touring in South India. This state of things continued from August to December, 1922, when she also went over to Bombay, where she resided till her death on the 14th of August, 1923. In October, 1922, she made a will bequeathing her entire property to the petitioner, Mr. Morarji. The present proceeding relates to that will. Mr. Morarji claims letters of administration with a copy of that will annexed. The will has not been attested and one of the questions I have to decide is, is the will valid notwithstanding the fact that it has not been attested? This raises the question : Was she a Hindu at the time of the execution of the will? To proceed with my narrative, after she returned to Bombay, her husband lived at his own house, while she was living either on a flat or in Hotels. Mr. Morarji frequently visited her at those places and had his meals with her. In his evidence he deposes that she was regarded as a Hindu and treated by others as such. She died, as I have just said, on the 14th of August, 1923, and it is in evidence that she was cremated according to the Hindu rites in a Hindu crematorium at Bombay.
3. These are in brief the facts of the case. Under Section 63 of the Indian Succession Act, for a will to be valid, it must be attested by two or more witnesses. This Section applies in the case of Hindus only to wills made inter alia within the local limits of the Ordinary Original Civil Jurisdiction of the High Courts at Madras and Bombay. (See Sections 57 and 58.) In other words, if the testatrix was not a Hindu, the unattested will would in no case be valid; if she was a Hindu, it would be valid if it was made outside the Presidency Towns of Madras and Bombay.
4. This raises the point - Where was the will made? It is clear beyond doubt that the lady was not living at Bombay between August and December. It follows from that, that the will could not have been made at Bombay. Then, the alternative is, was it made in the City of Madras? According to the evidence, during that period she was residing at the quarters of the Theosophical Society at Adyar. This is beyond the local limits of the Ordinary Original Civil Jurisdiction of the High Court of Madras. If she was not actually residing at Adyar, she was touring in the mofussil. There is no positive evidence as to where the will was made. The Adyar Bridge separates her Adyar home from the City of Madras strictly so called. In fact, the distinction between this part of Adyar and Madras proper becomes important, so far as we are concerned, only for, the purposes of the Act. If the will was executed while die lady was touring in the mofussil, it would, in that case, be undoubtedly valid. But then if she desired to make a will while at Madras (as understood generally and not as understood in the Act), it would be most natural that she should make it at her own home. Why should it be assumed that she left her home, crossed the bridge, came to a strange place and then executed the will? The paper that is produced as the will shows that no kind of formality attended its execution. It was the note. paper of the lady with her monogram that was used. It is a brief will, consisting as it does, of a few lines. It leaves the impression that it was written in the privacy of her own room, unlike a will prepared with the aid of a legal adviser and with attendant formalities. I am prepared to infer that it was not executed at Madras, i.e., as distinguished from Adyar beyond the bridge. I am satisfied on the evidence that the will was not executed either at Bombay or at Madras and that it is therefore valid.
5. The next question is, was she a Hindu? If she was not, even on my finding that it was executed outside the limits of the Cities of Madras and Bombay, it would still be invalid. The answer depends upon the meaning of the word 'Hindu' as used in the Indian Succession Act. It has been consistently held that the word 'Hindu' is used in the Act in a theological as distinguished from a national or racial sense. In Dagree v. Pacotti Sanjao I.L.R. (1895) B. 783 the question arose, whether Indian Christians were Hindus under the Act. If the term was used to denote a race, the parties being Hindu converts would clearly be Hindus; but the Court held that they were not. Starling, J., citing Stokes' Anglo-Indian Codes, states his conclusion that the term as used in the Act is 'a theological term as denoting any person professing any form of the Brahmanical religion or religion of the Puranas'.
6. In Re Joseph Vathiar of Nazareth (1872) 7 M.H.C.R. 121 the High Court upheld the decision of the Civil Judge, who held that native Christians are not Hindus within the meaning of the Act on the ground that the word connotes a religious and not a national distinction.
7. If the term 'Hindu' is a theological expression, the question arises : Is it legally permissible to a non-Hindu to become a Hindu? In 3 M.H.C.R., Appendix, page vii, the point for decision was whether a Christian convert relapsing to Hinduism could be convicted of bigamy on marrying a second wife. Holloway, J., observes:
It seems impossible to assume that a man is not equally free to go from Hinduism to Christianity and if he pleases back from Christianity to Hinduism.
8. The Court (Holloway and Innes, JJ.) held that the prisoner became a Hindu and was not guilty of bigamy and it quashed the conviction by the Lower Court. In Muthuswami v. Masilamani I.L.R. (1909) M. 342 : 1909 20 M.L.J. 49 a marriage was contracted according to Hindu rites by a Hindu with a Christian woman, who before marriage was converted to Hinduism. Sankaran Nair and Abdur Rahim, JJ., held that the marriage was valid under the Hindu law. The ground of decision was, that the Christian lady became a Hindu on conversion although not a Hindu belonging to any of the three regenerate castes. This decision is not confined to Christians by profession only, but equally applies to those who are Christian by descent as well. Fanindra Deb v. Rajeswar Dass (1885) 12 I.A. 72 : I.L.R. 11 C. 463 related to a family which was of 'non-Hindu origin'; if its members had become 'Hindus out and out' it was assumed that they would be governed by the Hindu Law unless a special custom was proved. In Sahdeo Narain v. Kusum Kumari (1922) 50 I.A. 58 : 1922 44 M.L.J. 476 the Court had to deal with a clan who became converted to Hinduism about 100 years previously. The Judicial Committee held that the clan 'had become sufficiently Hindu' to be prima facie governed by the Hindu Law. The expressions (1) 'Hindus out and out' and (2) 'become sufficiently Hindu' are the expressions used by the Privy Council. In the last mentioned case, their Lordships referring to Palaniappa Chetty v. Alagan Chetty (1921) 48 I.A. 539 : I.L.R. 44 M. 740 allude to a mass of tribes in Southern India who became 'Hinduised and subject to the law of the Smritis in most respects'.
9. If then according to judicial decisions, a person who both by descent and profession is a Christian can become a Hindu, if the re-conversion of an apostate is permissible, if tribes of non-Hindus can be admitted into the Hindu fold, what light do facts of Indian history throw on this question? Sir Charles Eliot in his valuable work 'Hinduism and Buddhism' says:
It is not quite correct to say that one must be born a Hindu, since Hinduism has grown by gradually Hinduising the wilder tribes of India and the process still continues. (Introduction, page 37.).
10. The chief feature of Hinduism is its tendency to absorb beliefs and to combine and amalgamate deities. There was a great fusion of ideas and even Persian and Greek religions made their contribution. The amplification of Hinduism and the absorption of non-Hindu tribes into the Hindu fold were not necessarily two distinct and separate processes.
Whenever a popular cult grew important or whenever Brahmanic influence spread to a new district possessing such a cult, the popular cult was recognised and Brahmanised. This policy can be abundantly illustrated for the last four or five centuries (for instance in Assam), and it was in operation 21/2 millenniums ago or earlier. (Vol. I, page 104.)
11. If non-Hindu Gods were thus accorded recognition, non-Hindu tribes were similarly absorbed. The learned writer points out that the treatment by Hinduism of men and Gods is curiously parallel.
Princes like the Manipuris of Assam came under Hindu influence and were finally recognised as Kshatriyas with an imaginary pedigree, and on the same principle their deities are recognised as forms of Siva or Durga. (Introduction, page 37.)
12. In a foot-note, he points out that according to Census of India, 1911, Assam, p. 47, about 80,000 animists were converted to Hinduism in Goalpara between 1901 and 1911 by a Brahmin called Sib Narain Swami. This admission into the Hindu society was not confined to the aboriginal tribes. Even the foreigners that invaded India were gradually assimilated. Speaking of several Royal families of the country, Sir Charles Eliot observes:
Many of these belong to districts which were formerly without the pale of Hinduism; many more are the descendants of the northern hordes, who, century after century, invaded India. (Book I, page 35.)
13. The Kushana dynasty which produced great Hindu rulers was in its origin non-Hindus. The names of the kings, Kadphises, Kanishka and Huvishka are not Indian; but Vasudeva, a later ruler, belonging to the same dynasty, bears a Hindu name. There are several instances of Greeks (Yavanas) who bore Hindu names and became absorbed in Hindu society. The history of Hinduism is thus one of gradual expansion and several races and tribes originally of non-Hindu origin were incorporated into it.
14. Then comes the question, is membership of a caste a necessary pre-requisite for being a Hindu? In other words, is it incumbent upon every Hindu to belong to some caste? The statement that a man cannot be a Hindu, unless he belongs to a caste, is true in the sense that it is descriptive of a process. The convert, to start with, belongs to some community which adopts Hindu usages and it is then recognised as a caste at first of very low standing, but in a few generations it may rise in the general esteem. ('Hinduism and Buddhism,' Introduction, page 38.) Sikhs have been held to be Hindus. Rani Bhagwan Kuar v. Jogendra Chandra Bose (1903) 30 I.A. 249 : 1903 13 M.L.J. 381. Similarly, Lingayats have been treated as being within the pale of Hinduism. And yet, Nanak, the founder of the Sikhs and Basava, the founder of Lingayats, taught, that there was no distinction of caste. The sect which comes into existence declaring that there is no caste ends by observing caste. As Sir Charles Eliot puts it
The sect which renounced caste becomes itself a caste. (See Vol, II, page 177.)
Hindu life is permeated by the instinct that society must be divided into communities having some common interest and refusing to intermarry or eat with other communities. (Vol. II, page 178.)
15. It will thus be seen that a group of individuals professing Hinduism and adopting the Hindu mode of life may in course of time become a separate caste. But this does not show that till such a caste is formed, a member of this group is not a Hindu. While the caste is in the process of formation, can it be said that the individual is beyond the bounds of the Hindu religion? Then again, if a man secedes from his caste or is expelled from it, he does not, on ceasing to belong to some caste, cease to be a Hindu. The instinct of the average Hindu may assign a new caste to those who declare that they belong to no caste. But, in such a case, is the man who belongs to no caste, to be regarded as being outside the pale of Hinduism on the ground that a new caste, which claims him, has not come into being? As Bhattacharya points out, each Hindu sect which is formed, is practically a new caste. ('Hindu Castes and Sects,' Preface.)
16. I am therefore clearly of the opinion that it is not a valid objection to a man being treated as a Hindu that he does not belong to some caste.
17. Was the lady in question a Hindu at her death?
18. It is a question of fact in each case whether a given person is a Hindu or not. A European does not become a Hindu merely because he professes a theoretical allegiance to the Hindu faith, or is an ardent admirer and advocate of Hinduism and its practices; but if he resides long in India, abdicates his religion by a clear act of renunciation and adopts Hinduism by undergoing formal conversion, gives up along with Christianity his Christian name and deliberately assumes a Hindu name, marries in accordance with Hindu religious rites a person who is a Hindu by race and religion, and cuts himself off from his old environment and takes to the Hindu mode of life, in such a case the Court may justly come to the conclusion that he has become a Hindu within the meaning of the Indian Succession Act. These tests are satisfied in the present case and I therefore hold that Mena Renda otherwise called Sulochana was a Hindu at her death.
19. It then follows that the will executed by her is valid and the petitioner is therefore entitled to letters of administration with a copy of that will annexed.
20. I have now dealt with the case on the footing that the will was executed outside the Presidency Towns of Madras and Bombay. If I am wrong in this finding, the case must be disposed of, as if Mena Renda died intestate. Section 218 of the Succession Act says:
If the deceased has died intestate and was a Hindu, the administration of his estate may be granted to any person who, according to the rules of the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.
21. If the petitioner was her husband, he would be entitled to a grant of the administration. This raises the question, is the marriage valid? This point again must be decided with reference to the Hindu Law on the subject.
22. To apply the Hindu Law to a European may seem strange. But according to the law of British India, in the case of Hindus (as in the case of Muhammadans), questions of personal law are determined not by the test of domicile but by reference to the religious community to which that person belongs. In other words, the law of Hindus and Muhammadans is the law of their religion. Part II of the Indian Succession Act dealing with domicile does not apply inter alia to Hindus. (See Section 4.) According to the English law, a person's domicile determines his civil status. This means that the law which governs him is the law of the country of his domicile and it is attached to his person and remains so attached wherever he goes, until he changes his domicile, upon which the law of the new domicile becomes attached to him in the same manner. (6 Halsbury 'Conflict of Laws,' p. 183.)
23. The Indian Succession Act contains provisions to the same effect. The result is that while ordinarily a British Indian subject can change his domicile and acquire a new law along with a new domicile, this right is denied to a Hindu. It must be borne in mind that I am now dealing with the law to be administered by a British Indian Court. Under that system of law, a Hindu carries along with him his personal law wherever he goes and he cannot, however fixed his determination may be, get rid of that law. Is the person a Hindu? Then, wherever the law of British India admits the operation of a personal law, his rights and obligations are determined by the Hindu Law, that is the law of his religion, subject to the exception that by statute any part of that law may be abrogated. This intimate connection between law and religion in the case of Hindus and Muhammadans is fully dealt with in the judgment of the Judicial Committee in Abraham v. Abraham (1863) 9 M.I.A. 195. (See also the arguments of Counsel in the case.) In accordance with this principle, if a Hindu becomes a convert to Muhammadanism, he is, by virtue of his conversion, governed by the law of his new religion; this is the general presumption, though a special usage may override it.
The reason for it is * * * * * the written law of India has prescribed broadly that in questions of inheritance and succession, the Hindu law is to be applied to Hindus and the Muhammadan law to Muhammadans. Jowala Buksh v. Dharum Singh (1866) 10 M.I.A. 511.
24. See also Charter of the Supreme Court, 1800; Clause 19 of the amended Letters Patent, 1865, and Trevelyan on 'Civil Courts in India,' page 59, citing In the matter of the petition of Kahandas Narrandas I.L.R. (1881) B. 154.
25. Where the law of the domicile applies, it has been held that it is unnecessary that a person should realise the legal result of his conduct. If he acquires a new domicile, he acquires a new law along with it. (See Halsbury, Vol. VI, page 186.)
26. By analogy, a European who becomes a Hindu, becomes also subject to the Hindu law, although in this case, the test is not one of domicile, but one of religion.
27. I shall now deal with the point whether the marriage is valid.
28. In Bai Gulab v. Jiwanlal Harilal I.L.R. (1912) 46 B. 871 it was held by the Bombay High Court that according to the Hindu law as administered in that Presidency, a marriage between a Vaisya male and a female was valid. In the judgment in that case are discussed the original authorities bearing on anuloma marriages. Chandavarkar, J., in Bai Kashi v. Jamnadas : (1912)14BOMLR547 after an examination of the Smritis and the Commentaries, also arrives at the conclusion that anuloma marriages are valid. In that case, the question related to a pratiloma marriage and it was held that it was invalid under the Hindu law. I am prepared to follow these cases and hold that the marriage in question is valid. I am not to be understood as saying that pratiloma marriages are invalid; that is not a question on which it is necessary to express any opinion at present. An anuloma marriage means a marriage between a man of a higher and a woman of a lower caste. In this case, the husband, a Bhatia, claims to be a Vaisya. Was the lady then a sudra? In Muthuswami v. Masilamani I.L.R. (1909) M. 342 : 20 M.L.J. 49 already referred to, the wife who became a Hindu was treated as a suclra. But the judgment shows that the word 'sudra' was not used in its ordinary sense. It was used in a somewhat special sense; in that term
it was intended to include all Hindus who are not dwijas or twice-born classes.
29. Whether, in such circumstances, a higher caste may not be assigned to one in the position of Sulochana, is a question which I leave open, observing for the present, that it deserves to be carefully considered, from the standpoints, both of ancient authority and of historical evidence.
30. I have come to the conclusion that the marriage under consideration is, for the reasons I have stated, valid.
31. I may add that I do not entertain the slightest doubt as regards the genuineness of the will. The facts, that it was signed by the lady in her maiden Christian name and that the petitioner is not described as her husband, these facts may be easily explained. The disposition was not to rest on the validity either of the marriage or of the conversion. To bring, about this result, the testatrix had to adopt this course of conduct.
32. In the result, I direct grant to the petitioner of letters of administration with a copy of the will annexed.
33. Costs of both parties shall come out of the estate.