1. I concur generally with the judgment which my learned brother is about to deliver, and I am not proposing to restate the facts which are clearly set out in the judgments of the learned Trial Judge and of my learned brother. I desire however to deal with the important question raised by issue 11 in this case which is:
Whether the late G.M. Appalaswami Naidu was a Roman Catholic, not governed by Hindu Law, at the time of his death.
2. After discussing the evidence his Lordship continued.
3. But the whole evidence points to the conclusion that so far as he was concerned - and I use that expression advisedly - he abandoned the Christian religion at the time of his marriage to Appalanarasamma in 1913 and lived and worshipped as a Hindu up to the time of his death and was cremated. None of the defendants have gone into the witness box to deny any of the facts proved by the plaintiff, and it must be emphasised that it has never been suggested from the Bar, although we asked the question, that this was a suit in which the plaintiff and defendants were colluding together to defeat alienees. We obtained that definite assurance because it naturally would be an important element in weighing the evidence in the case. The learned trial Judge too arrived at the conclusion in paragraph 19 of his judgment,
that Goona Appalaswami was what is known in some of the southern districts as a caste Christian, that is a Christian by religion but following Hindu customs, manners and habits.
4. On the evidence in this case, I am not prepared to agree with that Minding. The evidence, virtually uncontradicted, shows that Appalaswami from 1913 went far beyond clinging to Hindu customs and associations. He worshipped as a Hindu. There is no suggestion in the evidence that he ever entered a Church after 1913. There is however uncontradicted evidence that he attended temples. It would seem however that the ratio decidendi of the lower Court in this case amounts to this. On the decisions, says the learned Judge
there must be a renunciation or renouncement of the new religion and a readmission into the old. Without something definitely done in both these directions, it cannot be said that a Christian can become a Hindu or vice versa.
5. This is of course a case not of conversion to Hinduism but of a Hindu reverting to his original faith. The learned trial Judge takes the view apparently that there must be proof of some formal abandonment of one religion and the adoption of another. We have been referred to the decisions bearing on this topic. Administrator-General of Madras v. Anandachari I.L.R. (1886)9 Mad. 446, is a judgment of Parker, J. In dealing with the possible re-admission of one Kristammal to Brahminism, the learned Judge makes the following remarks:
His conversion to Christianity according to the Hindu Law, rendered him an outcaste and degraded. But according to that law, the degradation, might have been atoned for, and the convert readmitted to his status as a Brahmin, had he at any time during his life renounced Christianity and performed the rites of expiation enjoined by his caste.
6. It seems to me that that statement remains as it is, if the words 'if any' are added at the end of the sentence. In 1934, Mr. Justice Varadachariar, decided a case in Gurusami Nadar v. Indappa Konar (1934) 67 M.L.J. 389, and he states:
The language used in Administrator-General of Madras v. Anandachari I.L.R.(1886) 9 Mad. 446, 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 Smriti writers nor have they got to perform any Homas. One has therefore only to look at 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 the 5th defendant as man and wife and their issue as legitimate.
7. Mr. Justice Varadachariar also deals with the decisions on this matter so far as the law of bigamy is concerned. I do not consider the criminal aspect of this matter assists except to the extent that, as is obvious, conversions or re-conversions are recognised by the Courts. I respectfuly agree with Varadachariar J., that because in Morarji v. The Administrator-General of Madras : (1928)55MLJ478 , Venkatasubba Rao, J., referred to several facts as proved and relied upon as establishing a conversion, it is erroneous to bold that it has been laid down by the learned Judge that all those facts must be, proved to exist before the Court could give a finding in favour of a. conversion. I Indeed in Ramayya v. Josephine Elizabeth (1936) 44 L.W. 854, Venkatasubba Rao, J., himself has made this quite clear. No general law has been cited to us with regard to any particular ceremonial being necessary before a conversion or re-conversion is validated. That in many castes they insist upon such ceremonies is probable, but that is a question rather of custom than of law. It seems to me that no special test could be laid down as applicable to all cases. On the other hand, I consider that whether there has been a conversion or re-conversion must be a question of fact in each particular case and it may well be that in any particular case the consideration whether any essential ceremonial has been performed may be of importance. We have had no evidence before us of the necessity of any ceremonial in Vada Baliji fisherman community of Gopalpur and this decision deals with readmission to that community. On the other hand, it is clear that Appalaswami Naidu was admitted to caste and worship by his caste men. I entirely agree that no gesture or declaration can change a man's religion, but equally I cannot see why, when on the facts it appears that a man did change his religion and was accepted by his co-religionists as having changed his religion, and lived, died and was cremated in that religion, the absence of some formality should negative what is an actual fact. It seems to me somewhat analogous to the legal position with regard to change of domicile which must always be a question of fact in every particular case. I naturally differ from the experienced Judge who has tried this case with great hesitation on a topic of this sort, but it seems to me that his decision rests on the absence of a formal renunciation of religion and the absence of proof of performance of expiatory ceremonies and there is no warrant for holding that either of these two ingredients is essential in all cases. My conclusion in short is that on the evidence it is shown that in fact Appalaswami returned to Hinduism at the time of his marriage in 1913 and remained and died a Hindu and, was accepted as such by his co-religionists without demur and that the probabilities are that this-caste does not insist on any ritual in such matters. On the other matters which have been argued before us, I generally agree with my learned brother.
8. This appeal is allowed and the decree of the lower Court set aside as against respondents 1 to 5. As against the other respondents, the decree is confirmed. The suit is remanded to the lower Court for disposal according to law. The appellants will have their costs in the trial Court against respondents I to 4 and also against respondents 11-15, 17, 18, 21-26 and 28 but in this Court the appellants will bear their own costs so far as these respondents (1 to 4) are concerned. The appellants will pay the Court-fee due to Government both here and in the lower Court in the first instance, but the amount will come out of the estate and will be provided for in the final decree in proportion to the parties' respective shares.
9. The appellants must pay the costs of respondents 6, 10 and 29.
Krishnaswami Ayyangar, J.
10. A question of some importance and difficulty arises for decision in this appeal. It is whether a Hindu convert to Christianity can, without the performance of a formal expiatory ceremony, come back to Hinduism, under the Hindu law. It is extremely doubtful whether the ancient Hindu law and the texts and Smrithis permitted the return into the fold of an apostate who had wilfully and deliberately chosen to abandon the religion of his birth to become a convert to an alien faith, which holds the Hindu religion in contempt. Apostasy was a sin which was probably regarded, as not capable of condonation or expiation by mere Prayaschittic ceremonies. The Hindu Society of old, had it been governed purely by the Smrithis and Dharma Sastras, might in all probability have refused to readmit the convert to social or religious communion. Before us, however, no Hindu law texts were cited as governing the matter or tending to throw any light on the question. In fact, the examination of the few cases bearing on the subject has left the impression that the consideration of the topic has to be approached not from the point of view of strict religion or the views of ancient law givers but on a fair appreciation of the current sentiments and usages of the particular community into which the convert seeks re-admission.
11. It is not necessary except very briefly to refer to the facts established. The two appellants claim a share in the properties left by one Goona Appalaswami who died in 1921 at the age of 40. He was born in a community of Hindu fishermen, of the caste called Vada Balijis of Gopalpur. At a very young age when he was barely 12, he seems to have been converted to the Roman Catholic faith. This event took place in 1893 and is evidenced by a baptismal certificate Ex. X-B. In 1898, his first marriage took place with the fifth defendant in the suit out of which this appeal has arisen. The marriage was according to the Christian form, the bride embracing Christianity on the same day as the marriage, probably a little earlier. There were four sons of this marriage and they were defendants 1 to 4 in the Court below and have been joined as respondents 1 to 4 here, though they have been unrepresented before us. There. is no question raised about the validity of this marriage either here or in the trial Court. It is obvious and it is scarcely likely that Appalaswami took to Christianity out of religious conviction. His age at the time and his life and conduct afterwards suggest the contrary, though down to 1913, there is reason for thinking he kept contact with the padres and the church. It is however undeniable that his outward bearing and habits almost from the beginning were more those of a Hindu than a Christian and as he advanced in life, he drifted more and more to his faith which was the faith of most of his relations and friends. It is difficult to fix any point of time at which he could be said to have definitely abjured Christianity and re-entered the religion of his forefathers. It is certain, however, that no formal ceremonies of any kind were undergone by him such as are sometimes resorted to in the present day, when a non-Hindu desires to become a convert to the Hindu religion.
12. In 1913 Appalaswami married his deceased younger brother Aiyappa's widow, Appalanarasamma as his second wife while the first was still living with him and the marriage with her yet in force. The appellants are the sons of Appalaswami by this second wife Appalanarasamma. The deceased brother, Aiyappa had himself been converted to Christianity in 1899, and it was as a Christian that he had married according to Christian rites Appalanarasamma who had also been by that time converted to the same faith. It is plain that if Appalaswami had continued to be a Christian, the objection to what would have amounted to a bigamous alliance would have been insuperable. If however he had turned Hindu, the way would have been smoothed for a valid second marriage, with the aid of the custom of his caste which would have come to his rescue in overcoming the objection to marrying a brother's widow abhorrent to ordinary Hindu law and sentiment. The appellants' case which is supported by the uncontradicted evidence of their mother Appalanarasamma is that she was married not in the Christian form but according to the form prevalent in the Baliji community and this, in our opinion, is satisfactorily established. There is evidence sufficient to justify us in holding that the relationship between Appalaswami and Appalanarasamma was similar to that subsisting between married spouses living in lawful wedlock and it was so regarded by the members of his family no less by his caste. If it was the intention of Appalaswami to take Appalanarasamma as his wedded wife, we think it was, it is clear that by the date of the marriage, if not before, he must have definitely made up his mind to abjure Christianity for good and become a Hindu in every respect. Otherwise, it would have been impossible for him to confer on Appalanarasamma the status of a married wife. In fact the entire evidence fits in with this view of the facts. There is no proof of any contact with the Church or the padres after the marriage. On the contrary as the learned Judge has pointed out, Appalaswami was in habits and worship a Hindu, observing the Hindu usages and forms of worship at home and on special occasions. He used to wear a big namam on his forehead, attended the local temples and the jatras, observed Hindu vratams and festivals, worshipped idols and the sacred Tulasi, and listened with interest to the Puranas and took vows for Hindu Gods. The birth certificates of the appellants describe them as Hindus. The sons of the first wife married in Hindu families and according to Hindu rites and customs. The whole Baliji community seems to have accepted the entire family as still in the caste and finally when the brothers Aiyappa and Appalaswami died, they were both without doubt cremated and Brindavans erected over their ashes. It is, in fact difficult to conceive of a more complete reversion to Hinduism or a clearer abandonment of Christianity. The plaintiffs and their mother, not to mention the other members of the family, were throughout over a fairly long period received and treated by the entire Hindu community as Hindus without the slightest trace of any objection or dissent. These facts make it apparent that the case before us is not in any way similar to the kind of life lived by certain Catholic Christians in Tinneveily or South Kanara. With them, the old customs and associations may persist to some extent in the matter of dress, manners and even as regards social barriers of caste unknown to Christian society; but in essential matters they hold fast to Christianity in faith and will not be allowed to swerve from it. They attend service in the Church, and do not, and will not be allowed to attend Hindu temples or worship Hindu deities. There can be no question of course of inter-marriages with Hindus. What is remarkable in this case is that there is not the slighest evidence after 1912 or 1913 of Appalaswami or any of the members of his family having ever evinced any interest in Christianity or done anything to indicate that they paid even formal allegiance to its tenets or observances. The learned Judge is inclined to accept the case of the appellants in this regard but is of opinion that he could not uphold the validity of the marriage of their mother with Appalaswami, as Appalaswami could not become a Hindu without formally renouncing Christianity and securing re-admission into Hindu society by the performance of expiatory ceremonies. The only point for consideration is whether the learned Judge is right in this view. We are not inclined to attach weight in themselves to reasons of policy or convenience which appear to have influenced the mind of the learned Judge. That society might get into a state of flux and confusion if a formal abandonment followed by the performance of expiatory ceremonies is not insisted on, is scarcely a sound reason for the Court lending its support to maintain a social order if the society concerned has itself lost faith in it. In matters affecting the well-being or composition of a caste, the caste itself is the Supreme Judge. If a caste as found to have given up certain old notions and practices and adopted new ones not in any way repugnant to morality, such usages should be respected. The function of the Court is merely to ascertain the law, or the effect of usages having the force of law, and to apply it without being involved in the tangles of policies and expediencies. Any other course would lead to disastrous results, and introduce uncertainty and confusion into the administration of justice. The Hindu law of today is after all but a bundle of customs and usages approximating more or less to certain ancient standards fixed by wise men of an ancient age. At no time did those standards and the rules in which they found expression attain to univeral acceptance in the country, even among communities professing the Hindu faith. Among the lower castes in particular there have been usages of an alien origin which have persisted through the ages, and for that reason consistently upheld by the Courts. We cannot shut our eyes to changes almost revolutionary in character and extent which have peen for a considerable time past taking place in the structure of the Hindu social order, and in the ideas and sentiments which govern it. The old sanctions seem to have all but disappeared sweeping away before them the old faith and the old institutions which did constitute in the past an integral condition of the indigenous social fabric. The attitude of neutrality on the part of the Government in matters appertaining to religion and religious belief which is now of course a thing of the past, while it did not start, did not restrain the forces of disintegration which began early to assert themselves. Members even of the higher castes accustomed to strict discipline chafed under the old restrictions which to them had ceased to have a meaning and threw them off with impunity. Liberties were taken by individuals, and almost silently acquiesced in by society, tending naturally to destroy faith in the time-old articles. In view of the forces at work it is no surprise that as early as 1903, the Privy Council refused to permit a departure from the orthodox standards in matters of diet or ceremonial observances to affect the status and civil rights of the erring individual - Bhagwan Koer v. Bose (1903) 13 M.L.J. 381 : 30 I.A. 249 : 31 Cal. At 33 . Expiations for many transgressions which in the past would have been insisted, were and are now scarcely considered necessary or perhaps considered unnecessary. A true and genuine change of heart, rather than the adoption of mere formalism is the consideration that would in #modern conditions appeal most to the modern mind. These observations are made not for the purpose of comment or criticism on current social trends, but only for furnishing the necessary background against which the learned Judge's opinion has to be viewed. Considerations such as these seem to my mind to have been in fact, at the back of the mind of the learned Judges who were responsible for the weighty pronouncements in the cases, to be presently noticed.
13. The subject received the most careful and elaborate consideration at the hands of Sankaran Nair, J. in Muthusami Mudaliar v. Masilamani (1909) 20 M.L.J. 49 : 33 Mad. 342. He expressed the opinion which has never since been departed from in this Court that a marriage contracted according to Hindu rites by a Hindu with a. Christian woman who before marriage had been converted to Hinduism is valid if such marriages are common among and recognised as valid by the custom of the caste to which the man belongs, - though not in strict conformity with orthodox Hindu religion. He declared in effect that where a caste accepts a marriage as valid and treats the parties thereto as members of the caste, the Court will not condemn it as invalid unless it is repugnant to the ordinary notions of morality. The correct test to be applied is contained in the following observation namely, that,
if according to the usage of the community a marriage is valid or the community recognise a marriage as valid, then, in the absence of any statutory prohibition, I fail to see why it should not be recognised as valid, even without the requisites of a valid custom in derogation of what may be styled the ordinary Hindu Law unless it offends against rules which would render any other marriage invalid.
14. The importance of this clear statement of the law in relation to the present case is not to be ignored. Indeed it furnishes the clue. Emphasis is therefore to be laid on the prevailing sentiment and usages of the community and it is its approval or disapproval which should be the governing factor. There is, it may at once be mentioned, not a vestige of disapproval of the marriage by the community in the present case, but on the contrary it seems to have set its stamp of complete approval on it. What is of supreme importance is that not even suggestion is to be found in the evidence about the necessity for expiatory ceremonies in the Baliji caste, before a convert is received back into its fold. It is hardly right for the Court to erect a barrier which the autonomy of the caste does not see fit to do simply because in some other caste or some other community, it might be considered proper that an expiatory ceremony should be performed. That a Hindu having renounced Hinduism once, can revert back to it scarcely admits of doubt 3 M.H.C.R. Ap. VII. Kusum Kumari Roy v. Satya Ranjan Das (1903) 30 Cal. 999, Morarji v. Administrator-General of Madras : (1928)55MLJ478 . It cannot be denied that many tribes of old, of non-Aryan origin and descent merged into the Hindu population accepting the Hindu religion. It is certain that large hordes of Scythians, Yavanas, Kirathas, Kambhojas and Persians entered India in ancient times, but their identity has now been completely lost. They have been in fact assimilated into one or other of the component parts of Hindu society, even as the descendants of the old Buddhists who at one time formed the dominant element in the land, have been absorbed by it. The process of absorption is still active with Arya Samajists taking the lead with their Sudpi movement, the only new factor being the entry of political considerations into the field. Modern instances of even European or American Christians being converted into Hinduism, shows the degree of tolerance and accommodation that Hindu society has shown itself to be capable of. Morarji v. Administrator General of Madras : (1928)55MLJ478 , furnishes a recent illustration, where the admission into the Hindu fold of a lady Austrian by birth, and British bydomicile was upheld and the succession to her estate was allowed to be regulated on the footing that she had become a Hindu. Venkatasubba Rao, J. held that it is a question of fact in each case whether a given person is a Hindu or not. In coming to a conclusion on that question he took note among other things of the formal ceremony of conversion which the lady had undergone. But he never meant to lay it down as a proposition of law that a ceremony of conversion or any form of expiatory ceremony was an essential preliminary to a valid conversion. The error of this view has been pointed out by Varadachariar, J. in Gnrusami Nadar v. Irulappa Konar (1934) 67 M.L.J. 369, and by Venkatasubba Rao, J. himself in Rainayya v. Joshephine Elizabeth (1936) 44 L.W. 854. In the former case, the learned Judge after pointing out that no particular expiatory ceremonies were prescribed in the community in question in that case emphasised the necessity for looking to the sense of the community and considering' whether it was prepared to receive back the convert into its fold. According to him a formal ceremony would not be insisted on except possibly in the twice born castes. In the latter case, Venkatasubba Rao, J. had his own prior decision quoted to him in support of the contention that expiatory ceremony was necessary, but he definitely ruled that a formal conversion is not a pre-requisite to a person becoming a Hindu. The learned Judge in the Court below did not have the advantage of this explanation, and was inclined in its absence to treat the views of Varadachariar, J. as obiter. It is now patent that he fell into an error in so doing. We must accordingly hold that there is no authority in support of the learned District Judge's view that on account of the absence of a ceremony of reconversion or any other expiatory ceremony, the Court is bound to treat Appalaswami as having continued to remain a Christian, jand his marriage with Appalanarasamma as invalid.
15. The result is that the appeal has to be allowed and the decree of the lower Court set aside as regards respondents 1 to 5. Respondents 6, 10, 12 and 29 are the alienees of portions of the properties left by the deceased Appalaswami. The alienations in their favour have been rightly upheld by the Court below, and not seriously challenged before us. The suit is remanded for a preliminary decree to be passed by the lower, Court and further steps to be taken according to law for giving effect to the rights of the appellants as the legitimate sons of Appalaswami to shares in the estate left by him.