1. This is an application by the widow of the deceased for a grant to her out of this Court of fetters of Administration of her deceased husband's estate. There is no doubt that she is entitled to a grant but she asks for it under the Indian Succession Act (Act X of 1865) which (see Section 331) does not apply to intestate succession. to the property of any Hindu, Muhammadan or Budhist and the question that falls for decision is whether under the circumstances the applicant is entitled to a grant under that Act or whether the grant should issue under the provisions of the Probate and Administration Act (Act V of 1881). The deceased left an infant son, and if the grant issues under the former Act. the widow will be entitled to 1/3rd of the estate, if under the latter Act she will only be entitled to the ordinary rights of, a Hindu widow under Hindu Law. Under these circumstances, I directed that the infant son should be represented and a guardian ad litem was appointed and the matter was argued on his behalf.
2. The evidence is as follows. That the deceased was during his lifetime and at the time of his death a Brahmo by faith, that he was married under the Special Marriage Act (Act III of 1872), that the marriage was registered under that Act after he and his wife, had made declarations under the Act, that the namkfiran (naming) ceremony of the son of the deceased was performed under Brahmo rites, and that none of the ordinary rites and ceremonies usually observed in an ordinary Hindu family were observed by the deceased. The declaration made under Act III of 1872 is to the effect that the parties do not profess the Christian Jewish, Hindu, Muhammadan, Parsi, Budhist, Sikh or Jaina religion. The preamble to the Act recites that it is expedient to provide a form of marriage for persons who do not profess (inter alia) the Hindu religion. Clause 2(4) provides (inter alia) that the parties must not be related to each other in any degree of consanguinity or affinity which would, according to any law to which either of them is subject, render a marriage between them illegal. Clause 10 provides for the signature by the parties of the declaration already referred to. Clause 16 provides that either party who contracts many other arriage during the lifetime of the other shall be liable to be punished for bigamy. Clause 17 makes the Indian Divorce Act applicable to such marriages Clause 18 provides, that the issue of any marriage solemnized under the Act shall be deemed to be subject to the law to which their fathers were subject as to the prohibition of marriages by reason of consanguinity and affinity. The short question which arises for decision is whether the deceased by becoming a Brahmo and remaining such Until his death ceased to be a Hindu.
3. In Bhagwan Koer v. J.C. Bose 31 C. 11 : 30 I.A. 249 : 7 C.W.N. 895 : 5 Bom. L.R. 845 : 13 M.L.J. 381 : 84 P.R. 1903 : 135 P.L.R. 1903 : 8 Sar. P.C.J. 543 (P.C.) a similar question arose with regard to a Sikh. The finding of the Chief Court of the Punjab was that the deceased in that case never renounced Hinduism, that he never became a professed Brahmo, and that even if he did so, he did not cease to be a Hindu thereby and that he was a Hindu within the meaning of Section 2 of the Probate and Administration Act.
4. The Judicial Committee to whom the case went on appeal state at page 33 as follows:
The second form in which the objection to the grant of Probate was put was, that, assuming the testator as a Sikh to have been originally a Hindu within the meaning of, the Probate and Administration Act, he had ceased to be either a Sikh or a Hindu by becoming a member of another religious body, the Brahmo Samaj. The learned Judges of the Chief Court examined the literature bearing upon the Brahmo Society; they had before them much important evidence with reference to the Brahmos and the relation of their principles and, their, organisation to the Hindu, system; and they came to the conclusion that a Sikh or Hindu by becoming a Brahmo did not necessarily cease to belong to the community in which he was born. They also found on the evidence that the testator never became a professed Brahmo at all. In both these conclusions their lordships agree.
5. I am inclined to think that this probably disposes of the matter so far as I am concerned, as it seems tome to lay down that man by becoming a Brahmo does not necessarily cease to be a Hindu, that is to say; that something further than the mere becoming a Brahmo is necessary for a man to cut himself, off from-Hinduism. And I think that the passage is all the more forceful from the fact that it was not necessary for the purposes of the case for the Judicial Committee to express themselves oil the point as it would have been sufficient for them to have merely adopted the finding that the Sikh in question never became a professed Brahmo at all.
6. But it is suggested that this case differs from the present by reason of the declaration made in the present case under Act III of 1872. It becomes necessary, therefore, to consider this declaration, and as a result of so doing I have come to the conclusion that it cannot be taken as an abjuration for all purposes of Hinduism but merely as a statement for the purposes of the Act itself. I understand that the object of the Act was to assist those who, having adopted Brahmoism, felt scruples at being married under Hindu rites, some of which were repugnant to them and who therefore desired some means of going through a form of marraige which would be legal and binding other than that prescribed by orthodox Hinduism. Moreover, I think that the expression to which I have already referred in Clause (2) of the Act has some significance, namely, 'according to, any law to which either of them is subject.' Now, what is the personal law to which the contracting parties are subject? Surely, it is Hindu Law and no other, at least if this is not so, I find some difficulty in saying what was the personal, law of the parties. Moreover, this is what the Judicial Committee's decision in Bhagwan Koer v. J.C. Bose 31 C. 11 : 30 I.A. 249 : 7 C.W.N. 895 : 5 Bom. L.R. 845 : 13 M.L.J. 381 : 84 P.R. 1903 : 135 P.L.R. 1903 : 8 Sar. P.C.J. 543 (P.C.) amounts to when they say that a Hindu becoming a Brahmo did not necessarily cease to belong to the community in which he was born, And if this so, I cannot think that the declaration under Act III of 1872 was any more than the affirming of something which had actually taken place and that it could not by itself amount to an abjuration of the status and law under which the parties were born.
7. It will perhaps not be out of place to refer 10 the passage in Bhagwan Koer v. J.C. Bose 31 C. 11 : 30 I.A. 249 : 7 C.W.N. 895 : 5 Bom. L.R. 845 : 13 M.L.J. 381 : 84 P.R. 1903 : 135 P.L.R. 1903 : 8 Sar. P.C.J. 543 (P.C.) which deals with the position of a Brahmo. 'The next question is, whether Brahmos can be said to be included within the term Hindu. We do not think we need discuss this question in any great detail. The founder of the sect was a Hindu who never abjured his ancestral religion. In fact he was a mere reformer and professed to restore the ancient faith, to its original purity. There are now three sections, of which the the which professes to follow the principles of the founder, has the fewest points of difference from the old religion. They all widely differ in their tenets from those of other Hindus, but there are still many points in common between them and the highest form of Vedantism or Brahmaaism. Brahmoism is a faith of Indian origin and considering the extreme tolerance of Hinduism in matters of mere belief we are disposed, to think that a mere profession of Brahmbism does not necessarily make a man cease to be a Hindu unless he also abjures the social rules of Hindus and declares himself not to be a Hindu.'
8. So far as the last line is concerned, I have already dealt with the effect of the declaration under Act III of 1872,.
9. I may add that I am told that, except in a single instance, In the goods of Benoyendro Nath Sen, when a grant issued tinder the Seccesstion Act, the invariable practice of this Court has been to make such grants in the case of Brahmos under the Probate and Administration Act. Subject to the appointment of the applicant as guardian of her infant son for the purposes of applying for a grant, I direct a grant to issue to the applicant under the Probate and Administration Act. She must give security. The costs will come out bf the estate as between attorney and client. I certify for Counsel. I understand, However, that this is not necessary as neither party asks for costs.