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Gurusami Nadar Vs. Irulappa Konar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1934Mad630; 155Ind.Cas.708
AppellantGurusami Nadar
Respondentirulappa Konar and ors.
Cases ReferredEmperor v. Maharam
Excerpt:
- - the materials are very scanty and it is not perhaps too strong an observation to make if i say that in view of what would appear from the evidence in the case as to the prevalence of unions amongst members of this community without much regard to their religious beliefs and opinions, and in view of the facts referred to in the judgment of this court in muthuswami mudaliar v. it is at best safe to rely upon these registers only with reference to the fact of death and the date of death. swaminatha ayyar referred to certain authorities in the course of his arguments and it is perhaps just as well that i make a brief reference to them......mad. 171 and in criminal revision case no. 608 of 1930 and is in accord with a recent decision of the allahabad high court in emperor v. maharam 1918 all. 168.5. in the view taken by the lower appellate court that both vedanayaga and defendant 5 should be taken to have embraced hinduism, the further point raised by mr. swaminatha iyer, that even if vedanayaga had become a hindu, a marriage between him as a hindu and defendant 5 as a christian will be void by reason of section 4 of act 15 of 1872 does not arise for consideration.6. accepting the finding of the learned subordinate judge on the question of the religion of the parties, i hold that his legal conclusion was right and dismiss the second appeal. the point is not free from doubt or difficulty and i would therefore make no order.....
Judgment:

Varadachariar, J.

1. This second appeal arises out of a litigation between rival transferees from defendants 1 and 2 and from defendants 5 and 6 respectively of properties belonging to one Vedanayaga, deceased. It is common ground that by birth he was a Hindu and that later in life he became a Christian and married defendant 1 who was admittedly a Christian. Defendant 2 is the issue of that marriage sometime after the marriage, defendant 1 would appear to have gone over to Colombo and whatever the reason for the estrangement may be, both the Courts below seem to think that thereafter Vedanayaga and defendant 1 did not live as husband and wife. The next stage in the story is that Vedanayaga married defendant 5.

2. The evidence is conflicting, as to the religion of Vedanayaga at the time of the marriage with defendant 5 and at the time of his death. The materials are very scanty and it is not perhaps too strong an observation to make if I say that in view of what would appear from the evidence in the case as to the prevalence of unions amongst members of this community without much regard to their religious beliefs and opinions, and in view of the facts referred to in the judgment of this Court in Muthuswami Mudaliar v. Masilamani (1910) 33 Mad. 312, their re-conversion to Hinduism is probably quite as simple a matter as their original conversion from Hinduism. The learned Judge also points out that the evidence shows that many of the acts of the members of this group are dubious partaking to some extent of Christian habits and to some extent of Hindu habits. In these circumstances the learned Subordinate Judge has drawn the inference that Vedanayaga must have become a Hindu at the time of his marriage with defendant 5 because it would appear in the evidence that the marriage was celebrated in the Hindu form though the rituals seem to have been quite simple. There is no doubt that the community treated Vedanayaga and defendant 5 as husband and wife and their issue as legitimate. It is stated by some of the plaintiff's witnesses that several acts of Vedanayaga subsequent to the marriage with defendant 5 would show that he oontinued a Christian. But the learned Subordinate Judge has refused to attach importance to this statement. There is a statement in the death register (Ex. D) describing him as a Christian. But it was certainly not his statement and we are not in a position to say who made that statement. I very much doubt if that statement is admissible at all. It is at best safe to rely upon these registers only with reference to the fact of death and the date of death. In a case where there is so much of conflicting evidence as to the religion of this man, a statement made by some unknown person that he was a Christian can carry very little weight. Under these circumstances I see no reason to differ from the view of the learned Subordinate Judge that Vedanayaga and defendant 5 must be regarded as having become Hindus at the time they were married.

3. Mr. Swaminatha Ayyar referred to certain authorities in the course of his arguments and it is perhaps just as well that I make a brief reference to them. The observation that he relied on at p. 324 in Skinner v. Orde (1872) 14 M.I.A 309 does not carry one very far. Their Lordships of the Privy Council merely refer with a kind of approval to the doubt entertained by the High Court. But the observations of the High Court extracted at p. 314 show that the High Court put the matter only from what they speak of as the 'Christian' point of view. They were there dealing with the question of guardianship of the child which had been born and bred up a Christian and the claim before the Court was by their mother who had since married or claimed to have married another Christian after both of them had embraced Muhammadanism. No doubt in the case in Administrator-General of Madras v. Anandachari (1886) 9 Mad. 466 and in the judgment of Anantakrishna Ayyar, J., in T.O.S. No. 9 of 1932 reference is made to the necessity of expiatory ceremonies for reconversion to Hinduism, but in both those cases the alleged reconversion was into the Brahmin community of Hindus and it may be possible to suggest that certain vedic rites would have been adopted in such a case. The language used in Administrator-General of Madras v. Anandachari (1886) 9 Mad. 466 merely refers to the expiatory ceremonies enjoined by the practice of the community in question; and with reference to the class of people we are now concerned with no suggestion has anywhere been made in the course of the evidence that any particular expiatory ceremonies are observed amongst them. No particular ceremonies are prescribed for them by the Smrithiwriters nor have they got to perform any Homas. One has therefore only to look to the sense of the community and from that point of view it is of particular significance that the community was prepared to receive Vedanayaga and defendant 5 as man and wife and their issue as legitimate. In the case in Morarji v. Administrator-General of Madras 1928 Mad. 1279, Venkatasubba Rao, J., no doubt refers to the several facts proved in that case and relies upon them as establishing the conversion of an Englishwoman to Hinduism; but it is not right to treat this observation as laying down that all those facts must be proved to exist before the Court can give a finding in favour of the conversion to Hinduism. In Kamavati v. Digbijai Singh 1922 P.C. 14, their Lordships held that if a Hindu who becomes a convert to Christianity lives and dies a Christian, it is not open to him to retain the Hindu law of succession. This settles a conflict of decisions in India as to the effect of the provisions of the Succession Act on the principles which were recognised by the earlier decision in Abraham v. Abraham (1861-63) 9 M.I.A. 195. It has nothing to do with the question of reconversion.

4. Mr. Swaminatha Ayyar finally relied on the observations in Emperor v. Lazar (1907) 30 Mad. 550 , where, after holding that a Christian who has a Christian wife will be guilty of bigamy if he marries a Hindu wife even according to Hindu rites, the learned Judges add obiter : 'it would make no difference if he had' renounced the Christian religion. The question of the effect of reconversion did not arise for decision in that casa and as pointed out by the learned Judges there is a decision of Hollo way and Inns, JJ., to the contrary in proceedings dated 8th November 1866, Reference by S.J. of Juntur 3 M.H.C.R. App. 7. The view taken in the decision in Reference by S.J. of Juntur 3 M.H.C.R. App. 7 has been followed in Emperor v. Antony (1910) 33 Mad. 171 and in Criminal Revision Case No. 608 of 1930 and is in accord with a recent decision of the Allahabad High Court in Emperor v. Maharam 1918 All. 168.

5. In the view taken by the lower appellate Court that both Vedanayaga and defendant 5 should be taken to have embraced Hinduism, the further point raised by Mr. Swaminatha Iyer, that even if Vedanayaga had become a Hindu, a marriage between him as a Hindu and defendant 5 as a Christian will be void by reason of Section 4 of Act 15 of 1872 does not arise for consideration.

6. Accepting the finding of the learned Subordinate Judge on the question of the religion of the parties, I hold that his legal conclusion was right and dismiss the second appeal. The point is not free from doubt or difficulty and I would therefore make no order as to costs of this second appeal.


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