JUDGMENT
Wallace, J.
1. The facts, as found by the lower appellate Court, which are necessary for the disposal of this second appeal, are that the plaintiff 1’s father, now dead, and the defendant 1 were undivided brothers in a Hindu joint family, the former being the elder and presumably manager, that on 2nd Febru-1915 the plaintiff 1’s father became a convert to christianity, but that the two brothers continued to live together, the plaintiff 1’s father continuing to manage the family property, that in 1916 under Ex, C, plaintiff 1’s father and one Darsi Seshayya jointly bought one half share in A schedule property, and that the plaintiff 1’s father died intestate on 15th December 1920, leaving an only son, the 1st plaintiff. His contention here is that the succession to his father, so far as the A schedule properties are concerned, opens according to the Indian Succession Act which applies to his father as he was a christian. Defendant 1 contends here that the coparcenery was never dissolved, that it was open to the plaintiff 1’s father to continue to hold the property under the same rights which he possessed at the time of his conversion, that he did so and that therefore he (the defendant 1) is entitled, as under the Hindu Law, by right of survivorship, to a half of the plaintiff 1’s father’s one fourth share in A schedule property. This view has found favour with the lower appellate Court, and the plaintiff 1 appeals, contending that that Court is fundamentally wrong in law in holding that the Indian Succession Act does not govern the case.
2. That the conversion of a Hindu coparcener to another religion operates to sever him from the coparcenery cannot, in my judgment, admit of any doubt. It has been emphatically stated in the often quoted case of Abraham v. Abraham [1861] 9 M. I. A. 195 see also Kulada Prasad Pandey v. Haripada Chatterjee [1913] 40 Cal. 407 The language used there lays down, a I read it, that conversion effects severance, but that, if the convert and his former coparceners so elect, the partition can be set aside and a reunion effected. The mere description of the property as “joint” after the conversion will not suffice to prove this. A partition in status under which the property still remains joint is not impossible or even uncommon. Now there is no contention in this case that any such mutual agreement was come to, nor is there any finding thereon. The contention between the parties throughout on this part of the case has been on the question,
Does or does not the conversion put an end to the coparcenery?
3. Curiously enough, since the defendant 1 chose to advance a will in his favour by the plaintiff 1’s father of which the plaintiff 1 denied the genuineness, the defendant’s original plea in the case was that conversion did disrupt the coparcenary and the plaintiff 1’s original plea was that it did not. Now since the will has been found a forgery, each party has taken up the other’s original position. The answer to the question, however, is purely a matter of law, and it can in my opinion be only this, namely, that conversion severs the converted coparcener from the coparcenary. The view that coparcenership and the right of survivorship are incidents peculiar to Hindu Law has been laid down as early as Tellis v. Saldanha [1887] 10 Mad. 69 That conversion to christianity severs the coparcenership by force of Hindu law itself is laid down in Abraham v. Abraham [1861] 9 M. I. A. 195 reiterated in Kulada Prasad Pandey v. Haripada Chatterjee [1913] 40 Cal. 407 and again by this Court in Kunhachekkan v. Lydia Arucanden [1912] M. W. N.386 where the corollary is drawn that the right of survivorship also ceases to exist. This would seem to me obvious. Where there has been a partition under Hindu law, none of the divided members can elect to retain a right of survivorship and, there is therefore no reason why a christian divided member should be allowed to elect to retain it. The lower appellate Court thinks that there is some doubt on this matter because of the remarks of the late Chief Justice Sir John Wallis in Pathumma v. Raman Nambiar A. I. R. 1921 Mad. 224 and because of the ruling in Francis Ghosal v. Gabrighosal [1907] 31 Bom. 25 In Pathumma v. Raman Nambiar A. I. R. 1921 Mad. 224 the late Chief Justice was influenced by his view that Act 21 of 1850 in effect forbade a forfeiture by the convert, because of his conversion, of that right of survivorship under the Hindu coparcenary which he had prior to his conversion, and it is sought here also to build an argument on the proposition that, if the convert does not lose his right of survivorship, then he does not lose his right as a coparcener, since the one involved the other. But with due respect I think that the nature of this right of survivorship has been overlooked. It is not a vested right but only a contingent right, contingent, that is, on there being no partition in the family; with partition it ceases to exist. Conversion creates partition by operation of Hindu law itself and therefore the right of survivorship does not survive, any more than it would survive if partition had been effected in the ordinary way. Act 21 of 1850 does not assist the convert since the right of survivorship is not a right which the convert forfeits or which has been impaired on account of his conversion. Any partition without conversion would have deprived him of that right. To hold that the convert retains the right of survivorship after partition is to lay down that conversion puts him in a better position than he was before conversion. He has chosen to separate and he cannot claim to continue rights which flow from nonseparation. I cannot see, therefore, how this right of survivorship is the sort of substantial right to which Act 21 of 1850 was intended to apply. The remarks of the late Chief Justice in Pathumma v. Raman Nambiar A. I. R. 1921 Mad. 224 are, as will be seen by a perusal of that case, largely obiter to the case before him. They cannot in any way override the plain language of Abraham v. Abraham [1861] 9 M. I. A. 195 No doubt Section 93, Act 8 of 1865, does recognise a sort of right of survivorship among joint legatees, but not at all the right of survivorship which is now being discussed. The view of the lower appellate Court that Pathumma v. Raman Nambiar A. I. R. 1921 Mad. 224 overrules Tellis v. Saldhanha [1887] 10 Mad. 69 and Kunhichekan v. Lydia Arucanden [1912] M. W. N. 386 appears to me quite wrong. The reasoning of the late Chief Justice rests entirely on considerations drawn from Act 21 of 1850. The other two learned Judges did not dissent from Tellis v. Saldhanha [1887] 10 Mad. 69 or Kunhickekan v. Lydia Arucanden [1912] M. W. N.386 and Spencer, J., definitely held that among converts to christianity the rules of co-parcenary and survivorship in Hindu law no longer applied.
4. As to Francis Ghosal v. Galirghosal [1907] 31 Bom. 25 on which the lower appellate Court strongly relies, Sir Lawrence Jenkins there relied on two lines of argument, first, that because the convert can by his course of conduct show under what law he intends to be governed, co-parcenership may still be a part of the law governing the rights of the christian convert, and, secondly, that the rights of co-parcenership and survivorship have not, so far as Indian Christians are concerned, been repealed by the Indian Succession Act. As to the first line of argument, no right of co-parcenership and survivorship remains to the convert unless he has shown as a matter of fact that he renounced the partition which his conversion ipso facto effected, and there is no finding in the present case of any such renouncement. Further, even that line of argument seems untenable in the face of the Privy Council ruling in Kamawati v. Digbijai Singh A. I. R. 1922 P. C. 14 which in effect lays down that the only course of conduct which will avail the christian convert to escape from the provisions of the Indian Succession Act is to make a will. As to the second line of argument, it has been dealt with in the Kunhichekan v. Lydia Arucanden [1912] M. W. N.386 case at p. 391 and with the remarks there I respectfully agree. One would not expect the Indian Succession Act to deal with rights prima facie lost unless a contract to the contrary is proved.
5. I think, therefore, it is perfectly clear that, since the first plaintiff’s father died intestate as an Indian Christian, the succession to his property is governed by the Indian Succession Act, and the only point which remains is whether the whole of the one fourth of A schedule property was then his property or not. The legal position after the partition which was the effect of the conversion was that the first plaintiff’s father and first defendant held the joint property as tenants in common: see Kulada Prasad Pandey v. Haripada Chattarjee [1913] 40 Cal. 407 and the Kunhichekan v. Lydia Arucanden [1912] M. W. N.386 case. I will take it that one moiety of the purchase money for the joint property originally came from the first defendant. Is it open to the first defendant in this suit to contend that one half of the property purchased is therefore his property and not the property of the deceased intestate? Now after the conversion first plaintiff’s father and defendant being tenants in common, if the first plaintiff was, as he was, in possession of the funds which went to the purchase of the suit property, there was no fiduciary relation between him and the first defendant in respect of any part of these funds, nor is there any plea that there was, nor could in fact such a plea be admitted: see Kennedy v. De Tralford [1897] A. C. 180 Everything that came from the property held in common into the possession of the plaintiff 1’s father became his own property. Defendant 1 must be presumed to have permitted the plaintiff 1’s father to be in possession of the whole of the purchase fund. I do not see how the defendant 1 can have a claim to share in the property into which this fund was converted. His claim if he has a claim for such of his money as went to purchase the property is probably now barred. In any case it cannot be gone into now here. One-fourth of the A schedule property was therefore wholly the pro- perty of the plaintiff 1’s father at the time of his death and devolved on his intestacy on the plaintiff 1 under the Indian Succession Act. It appears to me, therefore, that the defendant 1 cannot successfully resist the plaintiff 1’s claim and the plaintiff 1 is entitled to such share in the A schedule property as the Indian Succession Act will allow him. He will therefore share with his mother and his step-mother, the defendant 2, in the same proportions in which he has been directed to share the B schedule property. I modify the decree of the lower appellate Court and decree accordingly. The plaintiffs will get costs from both the defendants in lower Courts and from the defendant 1 here. The memo. of objections is dismissed with costs.
