The facts, as found by the lower appellate Court, which are necessary for the disposal of this second appeal, are that the 1st plaintiff's father, now dead, and the 1st defendant were undivided brothers in a Hindu joint family, the former being the elder and presumably manager, that on 2nd February, 1915 the 1st plaintiff's father became a convert to Christianity but that the two brothers continued to live together the 1st plaintiff's father continuing to manage the family property that in 1916 under Ex. C 1st plaintiff's father and one Darsi Seshayya jointly bought one half share in A schedule property, and that the 1st plaintiff'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, 1st defendant contends here that the coparcenary was never dissolved, that it was open to the 1st plaintiff'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 1st defendant) is entitled, as under the Hindu Law, by right of survivorship to a half of the 1st plaintiff's father's one fourth share in A schedule property. This view has found favour with the lower appellate Court and the 1st plaintiff appeals, contending that that Court is fundamentally wrong in law in holding that the Indian Succession Act does not govern the case.

That the conversion of a Hindu co-parcener to another religion operates to sever him from the co-parcenary cannot, in my judgment, admit of any doubt. It has been emphatically stated in the often quoted case of Abraham v. Abraham(1). See also Kulada Prasad Pandey v. Haripada Chatterjee(2). The language used there lays down, as I read it, that conversion effects severence, 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 co-parcenary?”

Curiously enough, since the 1st defendant chose to advance a will in his favour by the 1st plaintiff's father, of which the 1st plaintiff denied the genuineness, the 1st defendant's original plea in the case was that conversion did disrupt the co-parcenary and the 1st plaintiff'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 co-parcener from the co-parcenary. The view that co-parcenership and the right of survivorship are incidents peculiar to Hindu Law has been laid down as early as Tellis v. Saldanha. That conversion to Christianity severs the co-parcenership by force of Hindu Law itself is laid down in Abraham v. Abraham reiterated in Kulada Prasad Pandey v. Haripada Chatterjee(3) and again by this Court in Kunlichekkan v. Lydia Arucanden(4) where the corollary is drawn that the right of survivorship also ceased 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(5), and because of the ruling in Francis Ghosal v. Gabri Ghosal(6). In Pathumma v. Raman Nambiar the late Chief Justice was influenced by his view that Act XXI of 1850 in effect forbade a forfeiture by the convert, because of his conversion, of that right of survivorship under the Hindu co-parcanary 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 co-parcener, since the one involves 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 objection of Hindu Law itself and therefore the right of survivorship does not survive any more then than it would survive if partition had been effected in the ordinary way. Act XXI 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 non-separation. I cannot see therefore how this right of survivorship is the sort of substantial right to which Act XXI of 1850 was intended to apply. The remarks of the late Chief Justice in Pathumma v. Raman Namhar, 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. No doubt Sect. 93 of Act VIII 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, overrules Tellis v. Saldanha and Kunhichekhan v. Lydia Arucanden appears to me quite wrong. The reasoning of the late Chief Justice rests entirely on considerations drawn from Act XXI of 1850. The other two learned Judges did not dissent from Tellis v. Saldanha or Kunhichekhan v. Lydia Arucanden and Spencer, J., definitely held that among converts to Christianity the rules of co-parcenary and survivorship in Hindu Law no longer applied.

As to Francis Ghosal v. Gabri Ghosal, 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 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 Kunhichekkan v. Lydia Arucanden at page 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.

I think, therefore, it is perfectly clear that, since the 1st 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 1st plaintiff's father and the 1st defendant held the joint property as tenants in common. See Kulada Prasad Pandey v. Haripada Chetterjee and Kunhichekkan v. Lydia Arucanden. I will take it that one moiety of the purchase money for this joint property originally came from the 1st defendant. Is it open to the 1st 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, 1st plaintiff's father and defendant bang tenants in common if the 1st 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 1st 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 Trafford. Everything that came from the property held in common into the possession of the 1st plaintiff's father became his own property. 1st defendant must be presumed to have known the legal situation created by the severance and yet to have permitted the 1st plaintiff's father to be in possession of the whole of the purchase fund. I do not see how the 1st defendant 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 property of the 1st plaintiff's father at the time of his death and devolved on his intestacy on the 1st plaintiff under the Indian Succession Act. It appears to me therefore that the 1st defendant cannot successfully resist the 1st plaintiff's claim and the 1st plaintiff 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 stepmother the 2nd defendant 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 the lower Courts and from the 1st defendant here. The memorandum of objections is dismissed with costs.

K. S. D.Decree modified.