Madras High Court
Muthayyan (Died) .. 1St vs Thankammal on 20 April, 2022
S.A.(MD)No.364 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) No.364 of 2010
and
M.P.(MD) No.1 of 2010
1.Muthayyan (Died) .. 1st Appellant/Appellant/
2nd Defendant
2.Sundar .. 2nd Appellant
-vs-
1.Thankammal
2.Syamala .. Respondents/Respondents/
Plaintiffs 1 & 2
3.Lysammal
4.Rani .. Respondents/Respondents
3 & 4/Defendants 1 & 3
Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code
to set aside the judgment and decree passed in A.S.No.31 of 2007 dated
27.01.2009 by the Subordinate Judge, Padmanabhapuram confirming the
judgment and decree passed in O.S.No.324 of 2004 dated 21.04.2006 by
the Addl.District Munsif Court, Padmanabhapuram.
For Appellant : Mr.C.Herold Singh
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S.A.(MD)No.364 of 2010
For R2 : Mr.F.Deepak
For R1, 3 & 4 : No appearance
******
JUDGMENT
Heard the learned counsel on either side.
2. This second appeal arises out of a suit for partition. One
Chellayyan got married to Kochammal and through the wedlock, six
children (two sons and four daughters) were born. Chellayyan passed
away on 27.11.1980. His wife died on 25.12.1997. One of the sons, viz.,
Chellappan died in the year 1999. Chellappan died a bachelor and
intestate. Two of the daughters filed O.S.No.324 of 2004 on the file of
Additional District Munsif Court, Padmanabhapuram claiming their
separate share in the suit items. The trial court passed preliminary decree
holding that the four daughters and the remaining son will each be
entitled to 1/5th share in the suit items. Aggrieved by the same, the son
viz., Muthayyan filed A.S.No.31 of 2007 before the Sub court,
Padmanabhapuram. By the impugned judgment and decree dated
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S.A.(MD)No.364 of 2010
27.01.2009, the decision of the trial court was confirmed and the appeal
was dismissed. Challenging the same, Muthayyan filed this second
appeal. During the pendency of this second appeal, he passed away and
his son was brought on record.
3. The learned counsel appearing for the appellant submitted that
one of the daughters viz., the 1st plaintiff, Thankammal had converted to
Christianity even before the demise of her father and that therefore, she
was disqualified to inherit any share in his property. He relied on Section
26 of the Hindu Succession Act, 1956 (hereinafter referred to as “the
Act” for brevity). Section 26 of the Act reads as follows:-
“Convert's descendants disqualified.– Where,
before or after the commencement of this Act, a
Hindu has ceased or ceases to be a Hindu by
conversion to another religion, children born to him
or her after such conversion any their descendants
shall be disqualified from inheriting the property of
any of their Hindu relatives, unless such children or
descendants are Hindus at the time when the
succession opens.”
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S.A.(MD)No.364 of 2010
4. Section 2 of the Act states that the Act applies only to Hindus.
The succession of Chellayyan will obviously be governed by the Hindu
Succession Act, 1956. Now the question is whether by virtue of Section
26 of the Act, the 1st plaintiff can be disinherited.
5. Any provision that disqualifies a person will have to be given a
strict interpretation. The provision on hand only reads that the children
born to the convert cannot inherit the property of their Hindu relatives.
No disqualification attaches to the convert himself or herself. The
Hon'ble Division Bench in E.Ramesh vs. P.Rajni reported in (2002) 4
LW 192 had held that the bar against inheritance is only in respect of
legal heirs of the convert. The individual who converted to some other
religion from Hinduism will not forgo the right of an inheritance.
Respectfully following the said decision, I hold that the 1st plaintiff is not
disqualified from inheriting because she got converted to Christianity.
The courts below rightly held that each of the parties will be entitled to
1/5th share in the suit properties. The computation is perfectly right no
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S.A.(MD)No.364 of 2010
substantial question of law is involved and the second appeal is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
20.04.2022
Internet : Yes/No
Index : Yes/No
Note:-
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the
order may be utilized for official purposes,
but, ensuring that the copy of the order that
is presented is the correct copy, shall be the
responsibility of the Advocate / litigant
concerned.
abr
To
1.The Subordinate Judge,
Padmanabhapuram.
2.Additional District Munsif,
Padmanabhapuram.
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S.A.(MD)No.364 of 2010
G.R.SWAMINATHAN, J.
abr
S.A.(MD) No.364 of 2010
20.04.2022
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