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Calcutta High Court
Kulada Prasad Pandey vs Haripada Chatterjee on 12 August, 1912
Equivalent citations: (1913) ILR 40 Cal 407
Author: M A Beachcroft
Bench: Mookerjee, Beachcroft


JUDGMENT

Mookerjee and Beachcroft, JJ.

1. The subject matter of this litigation is ancestral immovable property, owned at one time by a Hindu family, of which one Amrita Lal Pandey was the head. The father of Amrita Lal Pandey, originally resident in Oudh, in 1857 migrated to Bengal, where he continued to live with his family in the district of Bankura, and acquired the properties now in dispute, which passed after his death to his sons. Amrita Lal had eight sons, of whom two, the husbands of the eighth and ninth defendants, respectively, died in his life-time, in 1880 and 1883. Three other sons, the first and the second plaintiffs and the fifth defendant, embraced the Christian faith; the first plaintiff became a convert in 1890, the second plaintiff in 1896, and the fifth defendant in 1904. On the 19th March, 1900, Amrita Lal transferred the disputed property for a sum of Rs. 2,000 to the first four defendants, and he was joined in the execution of the conveyance by three of his sons, the fifth, sixth and seventh defendants. Amrita Lal died on the 26th December, 1900. The third plaintiff, one of the sons of Amrita Lal, attained majority in 1902. On the 19th March, 1907, the plaintiffs, the three sons of Amrita Lal who had not joined him in the conveyance, and of whom two were Christians at the time of the transfer, while the other was, and is still, a Hindu, commenced the present action for declaration that the transfer was not operative against them in respect of a three-seventh share of the property, and for recovery of khas possesion and mesne profits. The plaintiffs founded their claim on the assumption that the transfer had been effected for the satisfaction of illegal and immoral debts of their father, which they would otherwise be presumably liable to satisfy out of their share of the ancestral property. The purchasers-defendants contested the claim, and alleged that the plaintiff’s who had. embraced Christianity had lost all interest in the ancestral property, that the other plaintiff, who was still a Hindu, was liable to satisfy the debt, and that in any event his claim was barred by limitation, as he had attained majority in 1902 and had failed to obtain cancellation of the conveyance within three years thereof. The Courts below have concurrently dismissed the suit. They have found that the debts satisfied by the consideration for the conveyance were neither illegal nor immoral, and that, consequently, the father could make a valid alienation of the ancestral property for the discharge of those debts. The plaintiffs have appealed to this Court, and on their behalf the decision of the District Judge has been assailed on two grounds, namely, first, that the two plaintiffs who had embraced Christianity during the life-time of their father, had, by reason of their conversion to the Christian faith, ceased to be members of a. joint Hindu family, and were consequently not liable to satisfy any debts incurred by their father; and, secondly, that the effect of the conversion of the first two plaintiffs to Christianity was a complete dissolution of the family, and, that, from this point of view, it was not competent to Amrita Lal to alienate the share of the third plaintiff who did not join him in the conveyance, and could not do so, as he was an infant at the time. These positions have been controverted on behalf of the respondents as unsound in law, and it has further been suggested that the plaintiffs have sought to put forward a case inconsistent with that set out in the plaint, though it has not been disputed that it is in some measure conformable to the position taken up by the defendants in their written statement.

2. Before we deal with the questions argued at the Bar, it is necessary to premise that the family must be taken, before the conversion of the first plaintiff to Christianity, to have been governed by the Mitakshara law. When the grandfather of the plaintiffs migrated from Oudh to Bengal, the presumption is that he carried with him the laws and customs as to succession and family relation prevailing in the province from which lie came: Parbati Kumari Debi v. Jagadis Chunder Dhabal (1902) I.L.R. 29 Calc. 433; L. R. 29 I. A. 82. This presumption might have been, but has not been, rebutted by proof that the family has adopted the law and usages of the place to which it has migrated: Soorendronath Roy v. Mussamut Heerarnonee Burmoneah (1868) 12 Moo. I. A. 81 Govind Chandra Das v. Badha Kristo Das (1909) I.L.R. 31 All. 477 Jagannath Baghunath v. Narayan Lal Shethe (1910) I.L.R. 34 Bom. 553. We start, therefore, with the position that, in 1890, there was a Hindu family, consisting of Amrita Lal Pandey and his six sons, and owning immovable’ property which had descended from the father of Amrita Lal. In 1890, one of the sons of Amrita Lal, the first plaintiff, Kulada Prasad, became a convert to Christianity. What was the legal effect of this incident upon the family, and upon the rights of Kulada Prasad himself? In so far as the latter question is concerned, it is clear that, under the Caste Disabilities Removal Act (Act XXI of 1850), the conversion did not inflict on him forfeiture of rights or property, or impair or affect in any way any right of inheritance. The inference is, therefore, irresistible that, notwithstanding his conversion, the first plaintiff retained his interest in the ancestral property-In so far as the question of the status of the family is concerned, it is equally indisputable that it ceased to be a joint Hindu Mitakshara family. This position has not been seriously controverted; but it has been ingeniously argued that, notwithstanding the conversion of one of the members to Christianity, they continued to hold the ancestral property subject to the operation of the rule of survivorship, and of the principle which imposes a pious obligation on a Hindu son to pay his father’s debts. This view, in our opinion, is opposed to the decision of the Judicial Committee in Abraham v. Abraham (1863) 9 Moo. I. A. 195 where Lord Kingsdown referring to the position of a member of a Hindu family who has become a convert to Christianity, observed as follows: “He becomes at once severed from the family, and is regarded by them as an outcaste. The tie which bound the family together is, so far as he is concerned, not only loosened, but dissolved. The obligations consequent upon, and connected with, the tie must be dissolved with it. Parcenership may be put an end to by a severance effected by partition; it must equally be put an end to by severance which the Hindu law recognises and creates. Upon the conversion of a Hindu to Christianity the Hindu law ceases to have any continuing obligatory force upon the convert. He may renounce the old law by which he was bound, as he has renounced his old religion; or if he thinks fit, he may abide by the old law, notwithstanding he has renounced the old religion.” Stress, however, has been laid by the respondents upon the concluding sentence of this passage, and it has been argued that a Hindu family, converted to Christianity, may continue to be joint, even after conversion, and if the fact be established, effect will be given to it. In support of this position, reference has been made to Francis Ghoshal v. Gabri Ghoshal (1906) I.L.R. 31 Bom. 25. This doctrine, even if it be assumed to be well founded, is of no assistance to the respondents; but it is worthy of note that there is divergence of judicial opinion on the subject: Tellis v. Saldanha (1886) I.L.R. 10 Mad. 69. Here the whole family was not converted to Christianity, and this circumstance differentiates the present case from Jalbhai Ardeshir Shet v. Louis Manoel (1894) I.L.R. 19 Bom. 680 and Lastings v. Gonsalves (1899) I.L.R. 23 Bom. 539. If all the members of the family had become Christians, the position might possibly have been supported that, notwithstanding conversion, they adhered to the old law, and that consequently the rights of coparcenership were not affected by their renunciation of the old religion. In the present case such a theory cannot possibly he maintained; one of the members renounced the old religion, the others continued their adherence to the ancestral faith. If the family is deemed to have continued as a joint family, with right of survivorship among the coparceners, it could only have been by common consent of all the members; but there is no indication that the members of the family had, or indeed could have, any such intention. We must hold, then, that the first plaintiff, upon his conversion to Christianity, became at once severed from the family, and this view is supported by the cases of Gobind Krishna Narain v. Abdul Qayyam (1903) I.L.R. 25 All. 546 and Khunni Lal v. Gobind Krishna Narain (1911) I.L.R. 33 All. 356; L. R. 38 I. A. 87 where their Lordships of the Judicial Committee reversed the decision in Gobind Krishna Narain v. Khunni Lal (1907) I.L.R. 29 All. 487. In so far, therefore, as the first plaintiff is concerned, he is not bound by the conveyance of the 19th March, 1900, and it is inoperative in respect of what was his share in’ ancestral property in 1890. His claim to recover possession thereof is also plainly not barred by limitation. By reason of his conversion he ceased to be a member of the joint Hindu family, but thenceforward he continued to hold the property as joint owner. There is no evidence of his exclusion or assertion of hostile title against him, such as is essential to constitute adverse possession between co-owners Jogendra Nath Rai v. Baldeo Das (1907) I.L.R. 35 Calc. 961. before the conveyance of the 19th March, 1900, when his father professed to deal with the property, though he was not competent to do so under the law. No question of limitation, therefore, arises, as the suit has been commenced within twelve years from the date of the conveyance. The first plaintiff is thus entitled to recover possession of an one-seventh share of the property, on the basis that, in 1890, upon the dissolution of the family, which consisted at the lime of Amrita Lal and his six sons, the plaintiff became entitled to such share.

3. We next proceed to consider the case of the second plaintiff, who became a convert to Christianity in 1896. It has been contended on behalf of the appellant that when the first plaintiff became a convert in 1890, the legal effect was not merely his severance from the rest of the family, but a complete dissolution of the entire family, and that, from that time onwards, all the members must be taken in law to have been no longer members of the joint family. In support of this proposition, reference has been made to the decision of their Lordships of the Judicial Committee in the cases of Ram Pershad Singh v. Lakhpati Koer (1902) I.L.R. 30 Calc. 231 Balabux v. Rukhmabai (1903) I.L.R. 30 Calc. 725 and Balkishen Das v. Ram Narain Sahu (1903) I.L.R. 30 Calc. 738. These cases are, in our opinion, distinguishable, and are of no assistance to the appellants. No doubt there may be no presumption that, when one coparcener separates from the others, the latter remain united; the separation of one may be a virtual separation of all, and in this sense, where it is asserted that the remaining members remained united, or agreed to reunite, the fact has to be established from all the circumstances of the case. In the case before us the inference is irresistible that, after the conversion of the first plaintiff to Christianity in 1890, the remaining members continued to form a joint Hindu family. In 1896, therefore, when the second plaintiff, Gopeshwar, embraced Christianity, he ceased to be a member of the joint family, and it became thereafter incompetent to his father to alienate his one-seventh share by the conveyance of the 19th March, 1900. The second plaintiff is thus not bound by that conveyance, and so far as he is concerned no question of limitation arises, because his severance from the family took place within twelve years of the commencement of the suit. Bat a question of considerable nicety arises as to the terms, if any, subject to which he should be allowed to recover his share of the property. The debts, for the satisfaction whereof the conveyance was executed, were in part incurred on the 18th March, 1892, and 3rd August, 1895, under mortgage bonds executed by his father, Amrita Lal. When, in 1896, he became a convert to Christianity, he was liable to satisfy these debts, some of which, in fact, were charged upon the ancestral property. Consequently he may, in our opinion, be justly called upon to bear a share of these debts. Reliance, however, has been placed by the appellants upon the cases of Krishnasami Konan v. Ramasami Ayyar (1899) I.L.R. 22 Mad. 519 and Rathna Naidu v. Aryanachariar (1908) 18 Mad. L. J. 599 to show that it is not open to a Hindu father to deal with the property of his divided son, so as to bind the latter, even though it be in respect of an antecedent debt. This doctrine, if it be assumed to be well founded, is, as is explained in the first of the cases mentioned, subject to the important qualification that the severance had not been made with” a view to defraud or delay creditors. It is further worthy of note that the case of Krishnasami Konan v. Ramasami Ayyar (1899) I. L. R 22 Mad. 519 was distinguished in Ramachandra Padayachi v. Kondayya Chetti (1901)1. L. R. 24 Mad. 555. In the case before us, we are clearly of opinion that the plaintiff ought not to be allowed to recover his one-seventh share of the property, except upon payment of a proportionate share of the debts due under the bonds of the 18th March, 1892, and 3rd August, 1895, and of other debts which could be recovered by sale of his share of the ‘ ancestral property at the time of his conversion, in 1896. This amount we have approximately determined to be Rs. 210. The second plaintiff is entitled to a decree on these terms.

4. We have finally to consider the case of the third plaintiff. He is plainly not entitled to any assistance from the Court. The theory that, in 1890 or 1896, there was a complete disruption of the family, and each member continued thereafter to live as a separate unit, has already been found unsustainable. Amrita Lal, therefore, was competent in 1900 to alienate the ancestral property in his hands, not merely in respect of his own interest, but also that of his sons, other than the first two plaintiffs. The third plaintiff must consequently be bound by the conveyance of 1900.

5. It is worthy of note that an objection as to misjoinder of causes of action might possibly have been taken in the Court of first instance, if the case had been presented in that Court from the point of view developed here. No such objection, however, was taken, and it is obvious that the parties have not been prejudiced by the frame of the suit; consequently, as explained in the case of Sarala Sundari Dassi v. Sarada Prosad Sur (1904) 2 C. L. J. 602 effect could not be given to the objection of misjoinder, even if it had been urged before us.

6. The result is that this appeal is allowed, and the decrees of the Courts below discharged. The first plaintiff will have a decree for possession of one-seventh share of the disputed property, with mesne profits only from the date of the suit, the amount to be determined by a supplementary proceeding in the Court of first instance. The second plaintiff will similarly have a decree for one-seventh share of the property, with mesne profits from the date o£ the suit, but in his case the amount of mesne profits will be reduced by Rs. 210 which, we have held, is payable by him to the contesting defendants. The claim of the third plaintiff will stand dismissed. Under the circumstances, we direct all the parties to bear their own costs of this litigation in all the Courts.


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