1. This appeal raises questions of some importance as to the status of the members of a Hindu family, who having been converted to Christianity, are subsequently, reconverted to their old faith.
2. The appellant is the son of the first respondent and he sued for partition of his half share in the family properties, claiming that a mortgage executed by the first respondent in favour of the third respondent and a Court sale in favour of The fifth respondent in execution proceedings instituted against the first respondent are not binding on his share in the properties. The Court below has upheld both the transactions in their entirety and this appeal has been preferred challenging the correctness of that, decision.
3. The facts material for the decision of this appeal may be briefly stated. The appellant was born on the 1st July, 1914. In 1.917, the first respondent and his wife became converts to Christianity and the appellant was also baptised in the same year. In 1930 while the appellant was still a minor, the first respondent executed the mortgage Ex. X which is one of the transactions now impeached in favour of the third respondent for Rs. 7,000 for discharging antecedent debts due to third parties. The mortgage was assigned to the fourth respondent in March, 1932 and it is admitted that only a sum of about Rs. 340 remains payable under it. The first respondent also borrowed Rs. 800 in November, 1930, from the local Co-operative Society, the second respondent herein, for discharging a debt due to another creditor. As this sum was not duly repaid the society brought claim No. 1793 of 1932 before the Registrar of Co-operative Societies and obtained an award which under the rules framed under the Co-operative Societies Act, 1912, was executable in the civil Courts as if it were a decree of the Court. In such execution proceedings items 1 to 7 and 9 of the plaint A schedule were brought to sale and purchased by the fifth respondent on the 21st January, 1935, for Rs 2,000 subject to the mortgage already referred to which covered all the A schedule properties.
4. Now, the appellant's contention is that the conversion of his family resulted in a severance of the coparcenary status, that debts incurred by his father after such conversion, could not bind the appellant or his share in the properties which were all admittedly ancestral and that neither the mortgage nor the Court: sale referred to above could affect the appellant's interests in the properties. On the other hand, the alienees contended that the appellant's family had all along been behaving as if they were Hindus of the Kamma caste and were treated as such by other Hindus of the same community in the village, that in such circumstances even if the appellant and his father had at one time become Christians, they must be deemed to have been reconverted to Hinduism and that, in any case, the appellant having held himself out to be an undivided son of the first respondent and a member of a joint Hindu family, was estopped from pleading the contrary.
5. The trial Court held that notwithstanding their conversion to Christianity in 1917, the conduct of the parties showed that* they must have forsaken their new religion and gone back to their old faith, and that even if they continued to be Christians throughout, they must be taken to have elected to abide by the Hindu law notwithstanding their conversion to Christianity. In view of these findings, it upheld the validity of both the transactions applying the rules of Hindu law. In the lower appellate Court, it was urged for the appellant that it was not open to the trial Court to find that the appellant and his father had been reconverted to Hinduism as no specific issue was raised on the point, that on the footing that the parties remained Christians, no coparcenary as known to the Hindu law could exist between the appellant and his father as they were governed in matters of testamentary and intestate succession by the Indian Succession Act and that therefore the first respondent had no power to bind the interests of the appellant in the common properties by his borrowing or alienation. The learned Subordinate Judge was of opinion that the question of reconversion to Hinduism was immaterial as the trial Court had held that even if the parties continued to be Christians, they must be taken to have elected to be governed by the Hindu law and he agreed with that finding. He thought that there was nothing in the Indian Succession Act to preclude persons who have been converted to Christianity being still governed by the Hindu law. He accordingly dismissed the appeal subject to a small modification as to which no question now arises.
6. [After considering the evidence, His Lordship agreed with the lower Court on the question of fact that the appellant and his father were Hindus at all times material for the purpose of this case. Therefore it became unnecessary to consider the question as to what status the family would have if the family remained Christians but continued to be governed by rules and custom of Hindu law.] *****
7. The question next arises as to the legal effect of the reconversion as regards the status of the parties in relation to the properties held by them which were all admittedly ancestral. It was argued by Mr. Rangachari for the appellant that when the first defendant became a convert to Christianity, there was a dissolution of the family tie and a severance of the coparcenary according to the decision of the Privy Council in Abraham v. Abraham (1863) 9 M.I.A. 195, and that this position was in no way altered by his reconversion to Hinduism. The coparcenary having once been severed could not, it was said, be revived except by a reunion, and as reunion could result only from an agreement amongst the parties and as the appellant was still a minor when the first respondent executed the mortgage and incurred the debt which ultimately led to the Court sale the first respondent, notwithstanding the reconversion, had no power to bind by his borrowing the appellant's share in the properties. Mr. Rangachari further pointed out that no case of re-union between the appellant and his father was put forward by the respondents in their written statements and no issue was framed raising the question. In these circumstances, it was urged that it was not open to the respondents now to rely upon any re-union as the basis of coparcenary relationship between the appellant and his father. Mr. Kotayya for the respondents, however, contended that no agreement to reunite was necessary to bring about a coparcenary between the first defendant and his son after the reconversion and that just as a Hindu father could by his unilateral act bring about a severance of the coparcenary between himself and his minor son, so could he by an act of his own volition such as reconversion restore the coparcenary relationship; This argument, however, overlooks the position of the first defendant at the time of the reconversion. It is no doubt true as between a Hindu father and his minor son, the former could by his unilateral act effect a division in status. But could a Hindu father by his own volition bring about a re-union between himself and his minor son? No case actually deciding this point has been brought to my notice. Mr. Kotayya referred to the decision of Venkatasubba Rao, J., in Babu alias Govinddoss Krishnadoss v. Gokuldoss Goverdhandoss (1928) 55 M.L.J. 132, where that learned Judge has expressed the view that there is nothing inherently illogical in the father possessing the power of converting his son's status as a separated member into that of a reunited member. The case was one where there was no question of re-union between a father and his son, but the question was whether a father in reuniting with his brother could by his act carry his own undivided minor sons into the reunited family. In Venkata Reddi v. Kuppa Reddi (1918) M.W.N. 680, this Court held that there could be no question of re-union with minors. Assuming however, that a Hindu father has such a power, it can have no application here as the first defendant was not a Hindu when he reverted to his old religion. I am therefore unable to agree that the reconversion of the first respondent ipso facto brought about coparcenary relationship between himself and the appellant. No subsequent act or transaction pointing to a re-union with the appellant during the latter's minority was relied on.
8. Mr. Kotayya next contended that the appellant, should, at any rate, be deemed to have become reunited with his father after he attained majority in July, 1932, as shown by Exs. VI, III and I and that as the fifth respondent purchased the properties in January, 1935, after such re-union, the appellant's share in the properties must also be deemed to have passed under the sale. These documents already referred to in another connection no doubt refer to the appellant as the undivided son of the first respondent but they were executed so soon--Ex VI about three months and Ex. III and I about a year--after the appellant became a major, that it would, in my opinion, be unsafe to conclude from these documents alone that the appellant knowing that he was separate in status from his father, intended to agree to re-unite with him so as to form a joint family. On the other hand Ex V executed on the next day after Ex. VI and Ex. II executed five days after Exs. III and I refer to the appellant merely as the son of the first defendant which rather shows that the parties did not attach much significance to these descriptions. It must also be remembered in this connection that no re-union between the appellant and his father was specifically pleaded and no issue was framed on the point; nor have the Courts below considered the question and expressed any opinion thereon. In these circumstances, I am not prepared to agree with Mr. Kotayya's contention that the appellant has been shown to have become re-united with the first defendant after he attained majority and before the properties were brought to sale in Court auction in January, 1935. It follows that the appellant's share of the properties sold cannot be held to be bound by the Court sale to the fifth respondent.
9. Mr. Kotayya next argued on the strength of the three documents referred to above that the appellant having held himself out to be an undivided son of the first defendant must be held to be estopped from now contending that he was not joint in status with his father and that his share was not bound by the Court sale. The principle of Section 41 of the Transfer of Property Act was invoked in support of this argument and the decision of this Court in Naraprath Kummah v. Paramboli Kandi (1916) 34 I.C. 494, was cited to show that it applies to Court sales also. I find it difficult to appreciate this argument. Assuming that Section 41 or the principle underlying it applies to Court sales (as to which however see Vaman v. Tikaram (1927) 29 Bom.L.R. 471), there is no question here of the appellant having placed any property belonging to him in the ostensible ownership of the first respondent. Nor is there any evidence to show that the fifth respondent when he purchased the properties in Court sale was aware that the appellant was represented to be an undivided son in Exs. VI, III and I and acted on the faith of such representation. No estoppel can arise when no representation is shown to have been made and acted upon.
10. The appellant also raised an alternative contention. The Court sale to the fifth respondent having taken place in pursuance of an award made by the Registrar of Co-operative Societies, the appellant's share in the properties could not be deemed to have been affected by such sale, as the appellant was not a member of the society which advanced the loan to the first respondent. It is not, however, disputed that an award made by the Registrar can be executed as if it was a decree passed by a civil Court and that in fact the properties in question were sold by a civil Court in execution of the award obtained by the second respondent. Whether a son's interest in family property also passes at a sale held in execution proceeding taken against the father alone depends not on whether such proceedings arise out of a decree of a civil Court but on considerations of Hindu law. I see no substance in this contention and I have no hesitation in rejecting it.
11. The appeal however succeeds on the other grounds indicated above and the preliminary decree passed by the Courts below will be modified by deleting the words "subject to the mortgage Ex. X" and including items 1 to 7 and 9 also of the A schedule among the properties of which partition has been decreed. The appellant will be entitled to mesne profits in respect of these properties from the date of suit and the amount due to the appellant will be ascertained and provided for by the trial Court. The appellant will get his costs in all the Courts from the respondents 2 to 5 who contested the appeal.
12. Leave granted.