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P. Pathrakah Nadachi Vs. V. Subbiah Nadar - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1717 of 1976
Judge
Reported inAIR1981Mad287; (1981)1MLJ463
ActsHindu Law; Travancore Christian Succession Act, 1092 - Sections 3; Caste Disabilities Removal Act, 1850 - Sections 1; Constitution of India - Article 133; Hindu Succession Act
AppellantP. Pathrakah Nadachi
RespondentV. Subbiah Nadar
Appellant AdvocateV. Selvarai, Adv.
Respondent AdvocateO.K. Sridevi, ;Francis Julian and ;S.V. Thambi, Advs.
Cases Referred and Shanmughathayi Ammal v. Devasahayam. Nadar
Excerpt:
family - right on conversion - section 3 of travancore christian succession act, 1092 and hindu succession act - right of coparcener to inherit joint family property after conversion - after passage of act of 1092 converted coparcener cannot claim right of inheritance over joint family property. - - i admitted in cross-examination that in his family there are hindus as well as christians and it a suitable bridegroom was available in a christian nadar family, alliance would be sought fdr hindu nadar girls. who concurred with the view of the learned chief justices, gave expression to his view in the following manner the time-honoured custom pf christians being recognised as forming part of a hindu family was thus effectively put an end to, with the result, that the hindu law, purged of.....natarajan, j.1. this appeal has been referred to this bench because mohan j. before whom it came up for hearing, was of the view that there is a difference of opinion between ananchaperumal v. muthiah, 1944 trav lr 595; (34 trav lj 503) (fb) and shanmughathayee animal v. devasahayarn nadar, air 1954 trav co 497: ilr (1954) trav co 826 (fb), on the question whether custom prevalent among the hindu nadar christians in the matter of succession is obliterated by reason of the travancore christian succession act (travancore act 11 of 1092 m. e.) and hence an authoritative ruling by a bench' of this court would be highly desirable. 2. the 3rd defendant in 0. s. no. 18 of 1968 on the file of the court of the district munsif, padmanabhapuram, who succeeded before the trial court, but lost the.....
Judgment:

Natarajan, J.

1. This appeal has been referred to this Bench because Mohan J. before whom it came up for hearing, was of the view that there is a difference of opinion between Ananchaperumal v. Muthiah, 1944 Trav LR 595; (34 Trav LJ 503) (FB) and Shanmughathayee Animal v. Devasahayarn Nadar, AIR 1954 Trav Co 497: ILR (1954) Trav Co 826 (FB), on the question whether custom prevalent among the Hindu Nadar Christians in the matter of succession is obliterated by reason of the Travancore Christian Succession Act (Travancore Act 11 of 1092 M. E.) and hence an authoritative ruling by a Bench' of this court would be highly desirable.

2. The 3rd defendant in 0. S. No. 18 of 1968 on the file of the Court of the District Munsif, Padmanabhapuram, who succeeded before the trial Court, but lost the case before the Subordinate Judge, Padmanabhapuram, in A. S. No. 245 of 1972 on the file of this court is the appellant. For the sake of convenience, the parties will be referred to in the order of their array in the trial Court.

3. The brief narration of facts required for determination of the question. of law is as given under. One Ponnammal under the original of Ex. B-2 dated 29-51095 M, E., had purchased the suit property corresponding to 13-1-1920. This Ponnammal was originally married to a person of Poothapandi and through him she had a son and a daughter by name Gnanaprakasi who later embrased the Christian faith. After the death of her husband, Ponnammal married a second husband, by name, Elapyaperumal and through him she had two sons, viz. the first defendant (Kutti Nadar) and one Poliah Nader. Ponnammal died in or about the year 1099 M. E.

4. The plaintiff's case was that Elayaperumal had purchased - the suit property benami in the name of Ponnammal. He claimed,that after Ponnammmal's death, her sons succeeded to.the property and were dealing with it as owners thereof and h6 had purchased the southern half portion of the property from Polishfiadar one of the sons of Pininammal, under a registered sale deed dated 9-7-1949,- Ex. A-1. He claimed that subsequent to the purchase he was in possession and enjoyment of the southern portion and he had also redeemed a mortgage over the property, but, inasmuch as the first defendant, taking advantage of the, property not having been divided by metes and ,bounds, attempted to commit encroachment by extending his house to the southern portion of the property, it had become necessary for him to approach the court to effect a partition of the property into northern and southern portions and delineate the boundaries. Besides claiming title under the sale deed, the plaintiff also claimed title by adverse possession. The plaintiff, besides impleading the 2nddefendant who is the son of the first defendant, also impleaded the first defendant's wife as the 3rd defendant on the ground that the 3rd defendant claimed to have acquired title , to the property by means of a sale deed executed by Gnanprakasi. The plaintiff's case was that Gnanprakasi who had become an apostate had no title to the property and hence any sale deed executed by her was invalid and ineffective.

5. The case of the defendants, as set out in the written statements filed by them, was that Ponnammal was not a benamidar, but was the absolute owner of the suit property and she purchased the property from out of the funds derived by her by sale of a property left to her by her first husband. They claimed that notwithstanding Gnanaprakasi embracing Christianity, she succeeded to the property on the death of her mother Ponnammal in accordance with the custom or usage prevalent among the Nadars in Travancore State. In other words, they claimed that - the principles of Hindu law governed the rights of parties -and therefore, the daughter succeeded to the properties of her mother in preference to the sons notwithstanding her -conversion to Christianity. They disputed the plaintiff's claim of acquisition of title by hostile possession.

6. The trial Court found that Ponnammal was the absolute owner of. The property and that she was riot a benamidar. It further found that notwithstanding the apostasy of Gnanaprakasi, ship, succeeded to the properties -of Ponnammal in accordance with the' customary law governing the Nadars of.;Hindu and Christian faiths in Travancore State and the customarv law had not been affected in any manner by the State enacting the Travancore Christian Succession Act and, as such, sale deed executed by Gnanaprakasi in favour of the 3rd defendant was a valid and enforceable one. The trial court further found that the plaintiff. had not derived title to the southern portion of the property either under the sale deed executed by Poliah Nadar or by adverse possession. Consequently, the trial Court sustained the case of the defendants and dismissed the suit.

7. In the appeal preferred by the plaintiff, the lower appellate court confirmed the trial Court's finding on the question of adverse possession and,about Ponnammal being the absolute owner of the property. But, in so far as the rights of Gnanaprakasi are concerned, the appellate court followed the ratio laid down in Ananchaperumal v. Muthiah, 34 TLJ 503: 1944 TLR 595 and held that after the passing of the Travancore Christian Succession Act, Gnanaprakasi had no right to inherit the estate of her mother and the estate devolved only on the two sons of Ponnammal. In accordance with that conclusion, the appellate Court upheld the sale deed in favour of the plaintiff and passed a preliminary decree in his favour for partition and separate possession of the southern half share in the suit property. It is against the reversing judgment of the lower appellate Court, the 3rd defendant has filed the second appeal.

8. In view of the concurrent findings of the courts below that Ponnammal was the full owner of the suit property and not merely a benamidar and that the plaintiff had not acquired title to the half share by adverse possession, it is not open to the respondents' counsel to canvass the correctness of those findings and Miss 0, K. Sridevi, Aearned counsel, frankly conceded this position. Therefore the only question requiring consideration by us is whether the custom prevalent among the Nadars of the erstwhile Travancore State that conversion to Christianity was not a bar for inheriting the properties of the original family had become obliterated by reason of the enactment of the Travancore Christian Succession Act.

9. Mr. Selvaraj, learned counsel for the appellant, in support of his contention that among the 14adars of the erstwhile Travancore State, conversion to Christianity was not a bar for a male coparcener to inherit, properties belonging to tke caparcenary in accordance with the principles of Hindu Law, and likewise, for a daughter to inherit property belonging to her mother as per the custom prevailing in that State, relied upon the admissions made by the plaintiffs' witnesses in their evidence and also upon the ruling of the erstwhile Travancore High Court in some cams. P.W. I admitted in cross-examination that in his family there are Hindus as well as Christians and it a suitable bridegroom was available in a Christian Nadar family, alliance would be sought fdr Hindu Nadar girls. P.W. 3, a close relation of Ponnammal, admitted that by reason of conversion into Christianity a Hindu Nadar male member will not be treated as an apostate and likewise, a Hindu Nadar girl marrying a Christian will not be sent out of the family. By reason of their evidence, the courts below have held that a custom was prevalent in that part of the country among the members of the Nadar community that conversion to Christianity would not operate as a bar for inheriting the properties in the original Hindu family, The prevalence of this custom received judicial recognition in the following case. In Sivanaduma Nadar v. Gopalakrishna Pillai~ 22 TLR 246, it was held that by custom among the Shanars, conversion does act deprive the convert of his rights to inherit a share in his -family properties nor deprive him of his right to management. It was pointed out in that case that the principle that degradation from caste which accompanies conversion entailed forfeiture of a man's civil status and loss of caste and likewise, that conversion operated as civil death under Hindu law, would not apply to lower orders of Hindu society, since they had no recognised status and they lost nothing by change of faith. The court noticed that social intercourse between converts and non-converts continued as free as ever and claims of inheritance by the converts were recognised. The decision in the abovesaid case was, followed in Muthiah Nadar v. Bhagavaibi Pillai Nadachi (1932) 22 TLJ 60 and the court held that there existed among Shanars a practice by which a convert was ,given a- share in the ancestral property notwithstanding, his change of religion and among Shanars change of religion worked no forfeiture of the civil rights of the convert in the original family.

10.The correctness of the view taken in Muthiah Nadar, v. Magavathi Fillet Wadachi, (1932) 22 TLJ,60 came to be considered by a Full Bench of the Travancore High Court in Ananchaperumal Nader v. Muthiah Nadar, 34 TLJ 503: 1944 TLR 595. In separate but concurring judgments, Krishnaswanki Iyer C. J. and Krishna Pill4 J. laid down that the usage permitting an apostate to succeed having prevailed only under conditions where Hindu Law governed both the deceased and thq heir, there is no scope left after the Christian Succession Act for the usage to operate; the result of the Act was to abrogate the usage in its entirety as regards the Christian converts for whom it established a fresh Code of Rules of succession in substitution of Hindu Law..Abraharn J. took a different view and gave dissenting judgment. Giving his reason for disapproving the ratio adopted in Muthiah Nadar v. Bhagavathi Pillai Nadachi, (1932) 22 Trav 11 60, Krishnaswami Iyer C. J. held as follows.-

'In arriving at a decision, the learned Judges, in 1932 22 TLJ 60 had reference only to the usage amongst Shsnars and never adverted to another important factor that had arisen for consideration even then in the case, viz. the effect upon the usage obtaining amongst the Shanars of the passing of the Christian Succession Act of 10ft M. R There could be no doubt that, as an authority on the points decided them, we should undoubtedly, have followed the decision in (1932) 22 Trav 11 60, had we not to consider in the present the further point riot raised and considered in (11932) 22 Trav Li 60 vm, that effect, of the passing of the Christian Succession Act. 1092 M. X involving a more careful definition and understanding the usage than was then called for.'

Later down, dealing with the usage prevalent amongst the Nadar community, the learned Chief Justice spoke as follows--'

'It must be noticed that the usage, as !1as been established and as recognised in the~ cases of this court, was limited to circumstances of a three-fold character -7(l) the converts were converts to Christianity; (2), Both the converts and the non-converts as between whom the question of succession or survivorship may arise, were governed by the Writ Law in general; (3) Both of them were governed by one system of inheritance under the Hindu law, In this sense that all of them were regarded as belonging to one fold of persons governed by the tie of the common Hindu Law with possible mutual rights of succession, or. survivorship. These appear to me to be the true conditions of the usage, and the question now arises, as to the effect of the Christian Succession Act upon that usage. It has been contended that the usage as a usage meant no more than this, that amongst Hindu Nadars apostasy as a ground of exclusion from inheritance stood completely abolished and the rules. of succession and survivorship under the Hindu Law, were not limited by any other considerations. I feel myself entirely unable to overlook the precise facts and circumstances governing the usage. Where a usage in variance with the law has been established to prevail amongst persons governed by the Hindu law, the advantages and disadvantages resulting from that usage must be preserved in all their integrity in Livery individual case to which the usage is sought to be applied. Where a Hindu Madar can be an heir to a Christian Madar and vice versa and as between such Nadars following the Hindu Law, the usage excluded the disqualification of exclusion from inheritance on the ground of apostasy, is it permissible to infer that the usage can subsist where, under changed conditions, the Hindu , Nadar could not succeed to the Christian Nadar under the Hindu Law as theretofore and this disparity has arisen by a statutory interference? It appears to me that it is of the essence of the usage that the person'succeeding anct the person succeeded to must both be governed by Hindu law for the usage to qpply But where the apostate becomes not only an apostate to the Hindu faith but also become an apostate to the Hindu law, if I may use that expression. I find it impossible to predicate that the known usage could at all apply to those conditions. Usage must be based upon what has been observed and what has been done. The applicability of usage to these changed conditions would only be an attempt, I believe, in effectual, to extend the usage and not to apply the usage in its original integrity In the conditions and the atmosphere under which it prevailed '

Krishna Pillai J. who concurred with the view of the learned Chief Justices, gave expression to his view in the following manner

'The time-honoured custom pf Christians being recognised as forming part of a Hindu family was thus effectively put an end to, with the result, that the Hindu law, purged of the custom, - became - thereafter the law governing the Hindu sect and the Christian Succession Act untainted by the custom which had, become obnoxious to the Christian Nadars was made the basic law for all matters of success*on and inheritance amongst them. In this view, it is not possible to see how any part of the custom which was so abrogated can be said to have survived the Act. To concede that survivorship was destroyed, but reversion continued, is to say the least illogical'.

11. We shall refer to the dissenting judgment of Abraham J. at a later stage, since Mr. Selvaraj placed reliance on that judgment and canvassed for its acceptance. In the later Full Bench case, which, according to the learned single Judge, appeared to conflict with the view taken in Ananchaperumal Nadar v. Muthiah Nadar. 34 Trav Li 503; 1944 TLR 595 , the controversy was limited in scope and did not deal with the general question as to the impact made by the Christian Succession Act on the customary law of succession followed by the Nadars. What arose for consideration in Shanmughathavi Ammal v. Devasahavarn Nader. ILR (19M) TC 826 : AIR 1954 TC 497 was whether a Nadar Christian woman who succeeded to the properties left by her husband as a limited owner in accordance with the principles of Hindu Witakshara law followed by them can be deemed to have acquired absolute title to the properties by reason of the Christian Succession Act being enacted. Inter alia a question was raised whether the second plaintiff in that suit, who was born a Christian, could lay claim to the property as a rev46rsioner on the footing that succession amongst Christians Nadar was governed by the principles of Hindu law as per custom. The Full Bench held that since the last full owner died in 1068 M. E. L e before the Christian Succession Act was enacted, the second plaintiff, though a Christian, was entitled to claim reversionary rights on the basis of the customary law. On the other question regV# the enlargement of rights of the I Red female owner, the Full Bench pointed out that under Sec. 3 of the Christian Succession Act, the provisions of the Regulation would not apply to any Intestacy occurring before the date on which the Regulation came into force.' The Full Bench followed the ratio ig WO earlier cases, viz.--Gumamony v. Chempakakutty, (1212) 2 TLT 574 v, and Narayans. Muthu v. Abrahan, (1935) 25 TLJ 766,and deelined to follow the view taken in Akkanchaperumal Nadar v. Muthiah Nadar, 34 TLJ 503:.1944 TLR 595, and held that the Christian Succession Act contained no provision which would justify the court holding that a widow's estate would get converted into an absolute estate by -the passing of the Christian Succession Act.We may mention here that in Ananchaperumal Nadar v. Muthiah Nhdar, 34 TLJ 503: 1944 TLR 595 it was held that the limited estate held by Nadar woman under the Hindu law became converted into absolute estate with full powers under the Christian Succession Act .It is only with this statement of law that. the latter Full Bench differed and held that it cannot approve of that statement. In such circumstances, we have to point -but that as far as the debate contained in the second appeal is concerned, there is no conflict of views between Ananchaperumal Nadar v. Muthiah Nadar, 34 TL 503: 1944 TLR 595 and Shanmughathayi Animal v. Devasahayam Nadar, ILR (1954) TC 826: AIR 1954 TC 497 .

12. In view of this position, we can dispose -of the appeal by holding that the first appellate Judge has applied the correct principles of law and decreed the suit and as such the appeal must fail. However_ Mr. Selvaraj contended before us that we should independently examine the correctness of the ratio laid down in Ananchaperumal Nadar v. Muthiah Nadar, 34 TL503: 1944 TLR 595 and render judgment in the case. Learned counsel stated that the Christian Succession Act had been enacted only to consolidate and amend the rules of law applicable to intestate succession among the Indian Christians in. Travancore and the legislation had not interfered with or abrogated the customary law followed by the Hindu Nadars of Travancore State, which permitted members of Nadar families belonging to the Christian faith also being admitted to inheritance and succession. Learned counsel argued or impliedly impinge upon the, usage adopted by the Hindu Nadars in refraining from treating the converts to Christianity as apostates and instead, treating them as members of the family and admitted them to succession in accordance with the principles of Hindu Law. As such, - any change brought about by the Christian Succession Act to regulate the law of succession relating to Christian converts cannot have the effect of ' extinguishing the customary law followed by the Nadars of the Hindu faith and consequently, the customary law will continue to govern the Hindu and Christian Nadars so far as the rights of succession to properties left behind by Hindu Nadars are concerned. To put it differently, the submission of learned counsel was that though the converts would, subsequent to the passing of the Act, be governed by the Christian Law of succession. the non converts i.e., Hindus would continue to be governed by the old and subsisting law governing them. In this context, learned counsel. placed very great reliance on the dissenting judgment of Abraham J. in Ananchaperumal Nadar V. Muthiah Nadar, 34 TLJ 503; 1944 TLR 595 . The relevant portions in the judgment read as follows:-

'Indeed, the gist of the argument was that with the passing of the Christian Succession Act which applied to the Nadar converts, the usage primarily existing stood abrogated, for want of mutuality. It seems to me impossible to accept this argument for the simple reason that in spite of the Christian Succession Act ' the law of the Hindu Nadar remained the same and should govern the devolution of his property. Part of that law was an established usage whereby apostasy did not work any forfeiture of rights to property or succession There was absolutely no disqualification from the religious, social or proprietary point of view. The disqualification was removed not by Hindu Law, but in spite of it and by custom. If, in those circumstances, before the Christian Succession Act came into force, family properties had be actually divided between the convert and his Hindu relations, such division would not still have re-introduced any peculiar disqualification or abrogated the custom in use. The Christian Succession Act practically brought about this division by transforming the joint tenancy into a tenancy in common. Parcenership and its concomitent survivorship ceased to exist. That was all. The convert would, therefore, thereafter, be governed by the Christian Law of succession and ' the Hindu, by the old and subsisting law governing him.'

13. Eventually, Abraham J. held as follows:-

'If any change is deemed necessary, it should be, brought about by legislation, and not by judicial interference. It is not for the court to make up for any mutuality previously enjoyed, , by .changing the law for the Hindu Nadars -what it now obtains?'

14. Mr. Selvaraj submitted -that, the view taken by the dissenting judge, Abraham J. had eventually found favour with Government and this is reflected by the extension of the Caste Disabilities Removal Act (21 of 1850) to Kanyakumari District in 1951 (1126 M. E.). Section 1 of that Act reads as follows:-

'l. Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced:-

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 afflict 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 enforced as law in any court.' Since this Act has been extended to Kanyakumari district to which the parties belong, long after the death of Ponnammal, its provisions cannot have application to. the f acts of the case, and hence it, is not necessary for us to dwell at length on the change brought about by the legislation on the personal law or usage which affected the rights of inheritance of any person by reason of exclusion from the communion of any religion or deprival of caste. it will however be apposite to point out that we are not now dealing with any usage which affected the rights of inheritance of persons on the ground of religious or caste considerations, but on the other hand, we are concerned with the continuance of a custom which accorded with the underlying object of the Caste Disabilities Removal Act. While pure Hindu Law as such treated converts to Christianity as apostates and forfeited the rights to property or succession of the converts, the customary law practised by the Nadars, in so far as the Christian converts should not be treated as outcastes and they would not be deprived of their right to property or succession. In our opinion, the modification of the, personal law by.custom by long and continuous usage which resulted in the customary law be ing recognised as i valid and enforceable by courts, cannot be viewed from one angle alone, but on the other hand, must be viewed in its entire perspective. Seen from the side of the converts alone. it is no doubt 'true that the Christian Act did not affect the, rights of Hindu Nadars to overlook, the conversion to Christianity of, their family members and recognise their rights also to claim the properties of the family under the rule of survivorship, reversion etc. But, what is of significance is whether, on this ground alone, the appellant's contention that the Act in question did not interfere with the practice of the customary law can be accepted. For a proper appreciation of the matter, we must bear in mind the underlying reason for the members of the Nadar community deviating from the principles of Hindu Law and admitting to succession and inheritance the members of the family who had gone over to the Christian faith. Obviously, the members of the community. must have felt that notwithstanding the conversion to Christianity of some of the family members, the ties of relationship as well as social communion, marital rites, funeral rites, etc. need not stand affected and, likewise, so long as the converts were prepared to be governed by the system of inheritance under the Hindu law, there need not be any exclusion of the Christian converts from property rights. Stated differently, it means that the members of the Hindu faith agreed to give shares in the properties to the Christian converts, provided, in return, their right to succeed to the properties of the Christian converts also remained unaffected and was recognised by the converts by agreeing to have a common system of inheritance under the Hindu Law. It is this mutuality which should 'have impelled the -Nadar community to deviate from the ancient texts and evolve a customary law that created rights and liabilities in favour of the converts as well as the non-converts. To forget this feature and contend that the usage was a completely one-sided affair and the Hindu Nadars were bound by it for ever and anon irrespective of the curtailment of their mutual rights by enactments like the Christian Succession Act, is too sweeping an argument to merit acceutance. As pointed out bV Krishnaswami Iyer C. J. where a usage at variance with the personal law had been established to prevail amongst persons, the advantages and disadvantages resulting from that usage must be preserved in their full integrity in every individual case to which the usage is sought to be applied. Otherwise, the blind application of the ,usage to one section of the people alone will make the taw of, inheritance a lopsided one in favour of the converts. By way of illustration, it may be stated that a convert can lay claim to the properties of a Hindu as a survivor or as a reversioner, but correspondingly, a Hindu will not be entitled to claim such rights against the properties left by a convert, since the latter's properties will be governed by the Christian Succession Act in the matter of succession. Therefore, the continuance of the usage is irretrievably linked with both parties, viz. Hindu as well as Christian converts being governed by the Hindu Law of inheritance. Once legislation intervened and placed the Christian converts outside the fold of Hindu Law, in the matter of inheritance in respect of their properties, the usage must be held to have been disrupted in its form. content and applicability resulting in As discontinuance. We are unable to share the opinion of Abraham J. that notwithstanding the converts being governed by the Christian law of succession, the Hindu Nadars will continue to be governed by the customary law practised by them hitherto and that a change in the state of affairs can be brought about only by legislation and not judicial interference. The learned Judge has Wed to note that no legislation was called for since the customary law died a natural death by reason of the Christian Succession Act robbing the customary law of its content of mutuality, and as such, all that the court had done in Ananchaperumal Nadar v. Muthiah Nadar, 34 TLJ 503: 1944 TLR 595 was only to have noticed this feature and determined the rights of parties accordingly.

15. In the course of his arguments, Mr. Selvaraj submitted that once materials were placed before court to prove the practice of a customary law by a certain section of the public then the bounden duty of the courts was to respect the usage and administer the law accordingly and it is not open to courts to fashion the law according to its own views of justice and fair play or refuse to administer the customary law on the ground that it suffered from shortcomings such as lack of mutuality etc. TO buttress his contention, the counsel referred to a passage from Salmond on Jurisprudence, 12th Edn. at page 32 and the observation of the Privy Council in the Collector of Madurai v. Moottoo Ramalinga Sethupathi, (1867-69) 12 Moo Ind App 397. The passage from Salmond on Jurisprudence reads as follows:-

'Speaking generally, it is well that courts of justice, in seeking for those rules of- right, which it is their duty 'to administer, should be content to accept those which have already in their favour the prestige and authority of long acceptance, rather than attempt the more dangerous task of fashioning a set of rules for themselves by the light of nature. The national -conscience may well be accepted by the courts as an authoritative guide; and of this conscience national custom is the external and visible sign.'

16. In the Collector of Madura v. Moottoo Ramalinea. Sethupati (1867-69) 12 Moo Ind App 397, the Privy Council has observed as follows-

'The duty of a Judge to administer Hindu Law is not so much to inquire whether the doctrine disputed is fairly deducible from the earliest authorities, as to ascertain whether it is one that has been received by the particular school of Hindoo Law, which prevails in the district in which the case arises with which he has to deal, and whether such doctrine has been sanctioned by usage; as by the Hindoo system of law clear proof of usage will outweigh the written opinion of text writers.'

We are of opinion that the legal propositions extracted above are undoubtedly indisputable, but what has been overlooked by the counsel is that what we are now called upon to decide is, not about the wisdom and equitable nature of the customary law, but whether it continued to have operative force in spite of the inroads made into it by the Christian Succession Act. Examined from that angle, the passages do not have any relevance to the debate in the appeal. Another passage is also 'cited by the counsel and that is found at page 161 of Mullah's Hindu Law, 14th Edn. and the passage relates to the effect of the Caste Disabilities Removal Act. It runs as follows:-

'Change of religion and loss of caste which at one time were grounds of forfeiture of property and of exclusion from inheritance ceased to be so after the passing of the Castes Disabilities Removal Act 1850.'

The reference to this passage is not called for in this appeal, because the Caste Disabilities Removal Act was extended to Kanyakumari District long after the death of the owner of the suit property Ponnammal. Even if the Act had been extended before her death, it cannot have any application, because what the law sought to achieve had already been achieved by the members of the Nadar community by evolving a customary law which ran counter to the prescription given by the orthodox Hindu Law. The benevolent usage, however, was materially affected by the Christian Succession Act taking away the Christian converts outside the fold of Hindu Law in so far as succession to their properties was concerned and this caused a fundamental disruption of the usage which deprived it of its uniform applicability to Hindu Nadars as well as Christian Nadars and conferring in the process mutual rights of succession in favour of both. We are therefore clearly of the view that the ratio decidendi in Ananchaperumal Nadar v. Muthiah Nadar, 34 TLJ 503: 1944 TLR 595 is fully worthy of acceptance and, secondly, there is no conflict of opinion between that case and Shanmughathayi Ammal v. Devasahayam. Nadar, ILR (1954) TC 826: AIR 1954 TC 497

17. As the lower appellate Court has applied the correct principles of law and decreed the suit, it follows that the second appeal has to fail and will accordingly stand dismissed. We, however. ma1w no order as to costs.

18. The learned counsel for the appellant makes an oral application for certificate of leave being granted under Article 133 of the Constitution of India, for an appeal being preferred to the Supreme Court against our Judgment. We do not think to is a fit case for granting certificate because, firstly, the question of law involved is not of such general importance as needs determination by the Supreme Court, and, secondly, after the Hindu Succession Act, 1956 came into force, the question as to whether Christian Nadars can claim right of suc_ cession to the properties owned by their Hindu relations on the foot of customary law, which itself, in our opinion, became obliterated by reason of the passing of the Travancore-Cochin Succession Act, cannot at all arise.

19. Hence, we decline to grant leave

20. Appeal dismissed.


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