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Vaithilinga Odayar and anr. Vs. Ayyathorai Odayar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.753
AppellantVaithilinga Odayar and anr.
RespondentAyyathorai Odayar and ors.
Cases ReferredBhagwant Singh v. Kallu (l
Excerpt:
.....to estate of deceased hindu, maintainability of-'renouncing,' 'excluded,' - - for the word exclude' is applied in ordinary parlance to refusal of rights newly claimed and also deprivation of rights already enjoyed, the meaning as given in webster's dictionary being 11 a. 288 their object was to settle all cases of conflict of laws, one omitted portion restricting the operation of section 8 to bona fide professors' of the religion in the question at the time of the trial and the whole having no special reference to the particular case of conversion, 2) the settlement consisted, not only in exempting either party from disabilities entailed by the hindu or muhammadan law, but also, as provided in the other omitted portion, in applying the principles of justice, equity and good..........his descendants form part of a community separated from his other relations by the observance of a different religion and other usages and governed by a different system of law.5. in my opinion the words 'having been excluded and being deprived of castes' connote an act directed against a particular person, and do not apply to an individual who is not a member of a particular community because by reason of his birth he is included within another community.6. the plaintiffs and defendants belong to different communities governed by different laws of inheritance and the former desire to bring themselves within both systems, in so far as they can deprive benefit from so doing and argue that the provisions of the mitakshara which exclude them have been repealed.7. i do not think that the.....
Judgment:

Oldfield, J.

1. The plaintiffs, Christians, sued to recover the estate of a deceased Hindu, as his reversioners. That is, they claimed in virtue of their own relationship to him, not through any earlier reversioner, such as Saminada Odayar, the member of their branch of the family, who first embraced Christianity. The lower Appellate Court following Bhagwant Singh v. Kallu 11 A. 100 : 6 Ind. Dec. 492 held that they were relieved from all religious disability by Act XXI of 1850 and remanded the suit for decision on its merits. The question is whether this decision is right.

2. The persons relieved by the Act are those, who 11 A.p 100 renounce (2), have been excluded from the communion of a religion, (3) are deprived of caste. Renunciation and deprivation are applicable only to rights, which have accrued, and, therefore, are irrelevant in the case of plaintiffs, who were born Christians, before the succession opened. They, therefore, are not covered by descriptions 11 A.p 100 : 6 Ind. Dec. 492 and (3). As regards (2) there is more difficulty. For the word exclude' is applied in ordinary parlance to refusal of rights newly claimed and also deprivation of rights already enjoyed, the meaning as given in Webster's Dictionary being 11 A. 100 : 6 Ind. Dec. 492 'to shut out; to hinder from entrance or admission; to debar from participation or enjoyment; the opposite to admit and (2) to thrust out; to expel.' It is an argument against the interpretation of 'exclude' in the Act in the first of these senses that it is used in the context between two terms, which, as I have pointed out, express a different idea. It is further material that, if the Legislature had intended the result entailed by plaintiffs' contention, the perpetual right of the descendants of a convert to rely on the law of his birth for purposes of inheritance from unconverted relatives, it could and would have effected it by shorter and more explicit language. These arguments are supported by the fact that plaintiff's contention entails consequences repugnant to reasonableness and consistency. In the case of the original convert, his status will be fixed at the date of his conversion and his original law will be invoked only in order to determine whether his relationship entitles him to inherit, not whether that relationship exists. No anomalies, therefore, beyond the initial one, involved in the application of his original law, will be entailed. With his descendant that case is different. He, having to establish both the points referred to above, will find the concession involved in plaintiffs' interpretation of the Act illusory, since his descent will have to be traced through some Christian marriage, which will not be valid according to the law under application and can be established, only if the claimant is allowed to apply both his abandoned and his present law as may suit each portion of his case. And if it be said that this is contemplated, the suggestion is so startling that a clearer expression of it than the Act contains may fairly be required.

3. The only decision of a High Court on the point [Bhagwant Singh v. Kallu (l)] is no doubt in plaintiffs' favour. It is based on considerations first of the preamble and then of the body of the Act In respectfully dissenting from it. I observe first that the preamble set out a part only of Section 9 of the Bengal Regulation VII of 1832, to which it refers. Reference to the whole and to Section 8 of which it is a continuation, shows that (1888) A. W. N. 288 their object was to settle all cases of conflict of laws, one omitted portion restricting the operation of Section 8 to bona fide professors' of the religion in the question at the time of the trial and the whole having no special reference to the particular case of conversion, 2) the settlement consisted, not only in exempting either party from disabilities entailed by the Hindu or Muhammadan Law, but also, as provided in the other omitted portion, in applying the principles of justice, equity and good conscience. This recognised, the attempt to identify the purpose of the Act with that stated in the preamble or to explain the one with reference to the other must be abandoned. As regards the argument from the body of the Act the learned Judges, I think, overlooked the fact that protection is in terms given only to one person, the one who has renounced or been excluded; and, with all due deference, they were not justified in extending it by construction to others.

3. As the Act will not bear the construction proposed by plaintiff, the appeal must be allowed, the District Munsif's decision dismissing their suit being restored with costs throughout.

Bakewell, J.

4. I agree with regard to the construction of Act XXI of 1850, the plaintiffs are not excluded from the communion of any religion or deprived of castes' by reason of their own conduct or by anything except what was done or suffered by their remote ancestor. The consequence of this Act is that his descendants form part of a community separated from his other relations by the observance of a different religion and other usages and governed by a different system of law.

5. In my opinion the words 'having been excluded and being deprived of castes' connote an act directed against a particular person, and do not apply to an individual who is not a member of a particular community because by reason of his birth he is included within another community.

6. The plaintiffs and defendants belong to different communities governed by different laws of inheritance and the former desire to bring themselves within both systems, in so far as they can deprive benefit from so doing and argue that the provisions of the Mitakshara which exclude them have been repealed.

7. I do not think that the wording of the Act supports this contention.


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