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Citation Codes
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Case Number
Attorney(S)
  • Babus Jogesh Chandra Roy and Surenara Nath Ghosal for the Appellant.
  • Babus Baidya Nath Dull, Biraj Mohan Mozumdar and Probodh Chandra Mukherjee for the Respondent.
Judges
  • Mookerjee
  • Teunon, JJ.
Acts
  • provisions of secs. 2 and 331 of the Indian Succession Act,
  • provisions of the Indian Succession Act
  • sec. 331 of the Indian Succession Act
  • sec. 2 of the Indian Succession Act
  • Indian Succession Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babus Jogesh Chandra Roy and Surenara Nath Ghosal for the Appellant.
  • Babus Baidya Nath Dull, Biraj Mohan Mozumdar and Probodh Chandra Mukherjee for the Respondent.
Judges
  • Mookerjee
  • Teunon, JJ.
Acts
  • provisions of secs. 2 and 331 of the Indian Succession Act,
  • provisions of the Indian Succession Act
  • sec. 331 of the Indian Succession Act
  • sec. 2 of the Indian Succession Act
  • Indian Succession Act
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

This appeal arises from a suit for partition of joint family properties that has been litigated for nearly ten years. At first instance the Subordinate Court decreed that the Plaintiff (the widow of Haripada Banerjee) was entitled to one-half of the properties. On appeal the District Judge reduced the Plaintiff's share to one-quarter.

The parties agree that the disputed property originally belonged to two brothers: Haripada Banerjee and Sasipada (Sasi) Banerjee. The Plaintiff claims the one-half share that belonged to her husband Haripada. The Defendants are identified as follows: Defendant No. 1 is the purchaser of Sasi Bhusan's right, title and interest at a mortgage-sale executed on 6 June 1896; Defendant No. 2 is Sasi Bhusan himself; Defendant No. 3 is a transferee from the mortgage purchaser; Defendant No. 4 apparently has no present interest; Defendant No. 5 is the sister of Haripada and Sasi Bhusan (named Mondakini / Mandakini).

The Plaintiff's plaint stated that her husband had embraced Christianity and was a follower of the Christian faith at the time of his death. The principal controversy is whether, upon intestacy, the Plaintiff inherits the whole of Haripada's share under Hindu law or whether, under the Indian Succession Act, she takes only one-half of that share while the remaining half vests equally in Haripada's brother and sister.

The courts below both held that the Indian Succession Act applied and, relying on sections 27 and 36, concluded the Plaintiff was entitled only to one-half of the half-share (i.e., one-quarter) and the remaining half-share vested equally in the deceased's brother and sister. The lower courts differed, however, on adverse possession: the original Court found the Plaintiff had acquired title by adverse possession to the share that would have passed to the brother and sister; the District Judge held that adverse possession had not been specifically pleaded in the plaint and so could not be relied upon.

The Plaintiff appealed to this Court on two grounds: (1) that the Indian Succession Act did not apply to her husband's succession, and (2) if the Act did apply, that she had acquired a good title by adverse possession to the other half-share.

Legal Issues Presented

  1. Whether the Indian Succession Act applies to intestate succession where a person born Hindu embraced Christianity and remained a Christian at the time of death (i.e., whether such a person is a "Hindu" within section 331).
  2. Whether the Plaintiff can succeed on a title by adverse possession to the half-share not expressly pleaded in the plaint (i.e., whether adverse possession may be relied on despite not being expressly set out in pleadings).

Arguments of the Parties

Appellant's Arguments

  • The Indian Succession Act has no application to the intestate succession in this case (i.e., the Plaintiff contends her husband's estate should be governed by Hindu law despite his conversion).
  • In the alternative, if the Indian Succession Act does apply, the Plaintiff contends she has acquired a good title by adverse possession to the other half-share that would otherwise vest in the brother and sister of her husband.

Respondents' Arguments

  • The Respondents maintained that the Indian Succession Act applies and that under sections 27 and 36 the Plaintiff is entitled only to one-half of her husband's half-share (i.e., one-quarter overall), the remainder vesting equally in the brother and sister.
  • They also contended that title by adverse possession was not properly pleaded in the plaint and that, therefore, the Plaintiff should not be allowed to succeed on that basis.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dagree v. Pacotti Used to support that the scope of the Indian Succession Act is wide and the Act operates as the law of British India unless an exception is proven. Cited to show that the Act is of universal application and that the burden is on a claimant to establish an exception to its operation.
DeSouza v. Secretary of State Interpreted the phrase “applicable to all cases” in the Act as effecting repeal of previous law and making the Act the sole measure of testamentary/intestate succession subject to statutory exceptions. Relied upon to explain the statutory effect of section 2 and to place the burden on the Plaintiff to prove any exception under section 331.
Jogendra Chandra Bose v. Bhagwan Coomar Established that proof of Hindu birth is insufficient; it must be shown the deceased was a Hindu at the time the question arises (e.g., at death). Applied to hold that a person must be a Hindu at death for the exception in section 331 to be available.
Bhagwan Koer v. J.C Bose Affirmed the principle that the deceased must be a Hindu at the time of death for Hindu law to govern succession. Used to reinforce the need to prove Hindu status at time of death; supported the conclusion that the convert to Christianity is not a Hindu for section 331.
Abraham v. Abraham Described pre-Act position: upon conversion a Hindu could either renounce the old law or opt to continue to be governed by it; conversion dissolved the continuing obligatory force of Hindu law on the convert. Referred to as explaining the law prior to the Indian Succession Act and to contrast the earlier flexibility with the statutory scheme under sections 2 and 331.
In re Vathiar Madras High Court decision supporting the view that the Indian Succession Act applies to converts who die as Christians. Listed among authorities supporting the Court's conclusion that the Act applies to Haripada who died a Christian.
Ponnusami v. Dorasami Madras High Court decision cited as supporting the application of the Indian Succession Act to converts dying as Christians. Relied upon as one of the supporting Madras precedents for applying the Act.
Administrator-General v. Anandachari Madras High Court decision cited in support of the Act's application to converts. Included among the Madras precedents the Court regarded as supporting its conclusion on applicability.
Tellis v. Saldanha Madras High Court decision cited as supporting the Act's application to converts. Included among supportive precedents from Madras relied on by the Court.
Dugree v. Pacotti Bombay High Court decision (spelled in the opinion) used to support application of the Indian Succession Act to converts. Listed among Bombay High Court authorities that the Court considered supportive of its view.
Bai Baiji v. Bai Santok Bombay High Court decision cited as supporting the Act's application to converts. Relied upon as a Bombay precedent consistent with the Court's conclusion.
Hastings v. Gonsalves Bombay High Court decision cited in support of applying the Indian Succession Act to converts. Included among the Bombay precedents the Court relied on for its conclusion.
Francis Ghosal v. Gabri Ghosal Decision noted as not really opposed to the Court's view but distinguishable because it addressed whether the Act enlarged the category of heritable property or affected co-partnership rights. Distinguished rather than followed; the Court explained it does not contradict the present holding because of difference in issues.
Edith Mukerji v. George Alfred Punjab Chief Court decision similarly distinguished on the ground of different legal question (property category/co-partnership rights). Distinguished and not treated as contrary authority to the Court's conclusion about applicability of the Act.
Toytara v. Mobaruck Authority establishing that if adverse possession is not pleaded or raised in issues, a plaintiff should not be allowed to succeed on that ground. Applied to explain the principle that adverse possession ordinarily cannot be allowed if not pleaded or raised.
Sundari v. Mudhoo Chandra Same principle as Toytara: a plaintiff should not succeed on adverse possession unless it was pleaded or raised. Relied upon to state the general rule about pleading adverse possession.
Ananda Hari v. Secretary of State Same line of authority reinforcing that adverse possession must be pleaded or raised. Used to support the proposition that unpleaded adverse possession is ordinarily not available to a plaintiff.
Lilabati v. Bishun Chobey Authority holding that when the question of adverse possession reduces to one of law on facts admitted or proved beyond controversy, the court may entertain the plea even if not explicitly raised, provided the defendant is not taken by surprise. Applied as the qualifying principle permitting the Court to allow an unpleaded adverse possession claim where facts admit the issue and no prejudice to the defendant would result.

Court's Reasoning and Analysis

The Court began with the statutory scheme. It observed that section 2 of the Indian Succession Act makes the Act the law of British India for all cases of intestate or testamentary succession unless the Act or any other law provides otherwise. The Court interpreted this to mean the Act is of universal application unless a claimant can show a specific statutory exception. DeSouza v. Secretary of State and Dagree v. Pacotti were cited for this statutory interpretation and for the allocation of the burden of proof to the claimant who asserts an exception.

The Plaintiff relied on section 331 (the provision excluding the Act's application to intestate succession "to the property of any Hindu, Mabomedan or Buddhist") and argued that because her husband was born a Hindu he should be treated as a Hindu for succession purposes despite conversion. The Court narrowed the legal question to whether a Hindu who embraced Christianity and remained a Christian until death is a "Hindu" within section 331.

The Court concluded—that question must be answered in the negative. It relied on authorities (including Jogendra Chandra Bose v. Bhagwan Coomar and Bhagwan Koer v. J.C Bose) for the proposition that birth alone does not suffice: the deceased must be a Hindu at the time the succession question arises (here, at death). The Court accepted the view (citing doctrinal commentary and cases) that the term "Hindu" in the statute is a theological term referring to professing adherents of the Brahminical/Puranic religion and cannot reasonably be stretched to include a convert to Christianity. The Court noted that while under the pre-Act law a convert might, by conduct, elect to be governed by Hindu law (Abraham v. Abraham), that position is displaced by the operation of sections 2 and 331 of the Indian Succession Act.

On this basis and having regard to supporting precedents from the Madras and Bombay High Courts, the Court held that the Indian Succession Act applies to Haripada, who died a Christian; therefore the courts below correctly applied the Act to distribution and the Appellant's first ground failed.

Turning to adverse possession, the Court reviewed the authorities establishing the usual rule: where adverse possession is not pleaded and not raised in the issues, a plaintiff should not be permitted to succeed on that ground (Toytara v. Mobaruck; Sundari v. Mudhoo Chandra; Ananda Hari v. Secretary of State). The Court then noted the limiting principle from Lilabati v. Bishun Chobey that where the question reduces to one of law on facts admitted or proved beyond controversy, the Court may entertain an unpleaded plea of adverse possession provided the defendant is not taken by surprise.

Applying these principles to the present record, the Court found the matter required further examination. It observed that the parties may themselves have been unaware of their rights under the Indian Succession Act until advised during the litigation, and that the factual posture suggested the Plaintiff may have been in possession of her husband's entire half-share as if Hindu law governed succession (to the possible exclusion of Mondakini and perhaps Sasi Bhusan). The Court noted the burden on the Plaintiff to prove that her possession was adverse rather than in the character of a co-sharer and acknowledged potential complications if possession were adverse to one of the two heirs but not to the other.

Because these questions of fact and the legal bearing of the asserted facts were not adequately considered below, and because permitting the point might not unfairly prejudice the Defendants in the particular circumstances, the Court concluded it was necessary in the interests of justice to remand the case for specific consideration of adverse possession.

Holding and Implications

Core Holding: The Court allowed the appeal in part and ordered a remand. It held that the Indian Succession Act applies to Haripada (who died a Christian), so the Appellant's challenge to the application of the Act fails. However, the Court found that the question whether the Plaintiff has acquired a good title by adverse possession to the additional half-share was not properly investigated below and must be determined afresh.

Specific Disposition: The Court discharged the District Judge's decree insofar as it modified the Subordinate Judge's decree and remanded the case to the District Judge to determine whether, in addition to the half-share already inherited by the Plaintiff from her husband, she has acquired title by adverse possession for the statutory period to the other half-share. The District Judge is to frame an issue on adverse possession, allow the parties to adduce evidence (either by himself or by the Subordinate Judge under his direction), and decide the question of title by adverse possession and any incidental questions.

Costs and Immediate Consequences: The opinion orders that Defendant No. 1 will receive half the costs previously allowed to him by the Court of Appeal below in respect of both lower Courts. The costs of the present appeal will abide the final result.

Implications: The decision resolves the statutory point that a person born Hindu who embraced Christianity and remained a Christian at death is not a "Hindu" within section 331, so succession is governed by the Indian Succession Act; it also leaves open factual determination of adverse possession which may affect the ultimate shares. The Court did not purport to lay down a new general precedent beyond applying established authorities and remanding for fact-finding on adverse possession.

Case remanded.
Show full summary ...

    Nepen Bala Debi v. Siti Kanta Banerjee

    This is an appeal on behalf of the Plaintiff in a suit for partition of joint family properties which has now lasted for nearly ten (10) years. The Court of first instance made a decree in favour of the Plaintiff for a half share of the properties. Upon appeal the District Judge has given her a decree for ¼th share only. It is the common case of both parties that the property in dispute belonged to two brothers, Haripada Banerjee and Sasipada Banerjee. The Plaintiff is the widow of Haripada Banerjee and claims to be jointly interested in one-half share which belonged to her husband. The first Defendant is the purchaser of the right, title and interest of Sasi Bbusan at a sale held in execution of a mortgage decree on the 6th June 1896. The second Defendant is Sasi Bhusan himself. The third Defendant is a transferee from the purchaser at the mortgage-sale. The fourth Defendant has apparently no interest at present in the disputed property. The fifth Defendant is the sister of Haripada and Sasi Bhusan. The Plaintiff stated in her plaint that her husband had embraced Christianity and that at the time of his death he was a follower of the Christian faith. The substantial question in controversy between the parties therefore is whether the Plaintiff has taken by inheritance under the Hindu Law the whole of the share of her husband or whether under the Indian Succession Act she has taken only one-half of that share and the other has been taken equally by the brother and sister of Haripada, that is, Sasi Bhusan and Mondakini. The Courts below have concurrently held that the Indian Succession Act is applicable to the case and that under secs. 27 and 36 the Plaintiff is entitled to one-half of the half share of her husband and that the remaining half share has vested in equal halves in the brother and sister of the deceased. But the Courts below have differed in the view they have taken upon the question of possession. The original Court has held that the Plaintiff has acquired a good title by adverse possession for the statutory period in the half share which had passed by succession to the brother and the sister. The District Judge on appeal has held on the other hand that as title by adverse possession was not specifically set up in the plaint, the Plaintiff is not entitled to succeed on any such basis. The Plaintiff has now appealed to this Court and on her behalf the decision of the District Judge has been assailed on two grounds, namely, first, that the Indian Succession Act has no application to the case, and, secondly, that if it does govern the matter, she has acquired a good title by adverse possession in the one-half share which vested in the brother and sister of her husband.

    In so far as the first of these contentions is concerned it is necessary to observe that sec. 2 of the Indian Succession Act provides that except as provided by this Act or by any other law for the time being in force, the rule therein contained shall be the Law of British India applicable to all cases of intestate or testamentary succession. The provisions of this section show that the Act is of universal application in this country unless a person claiming to be excepted can show that he is specifically excepted from the operation of its provisions. Dagree v. Pacotti. In other words, as observed in DeSouza v. Secretary of State, the words “applicable to all cases” operate as a repeal of the previously existing law and that subject to the exception in the section the Courts must look to this Act and this alone for the Law of British India applicable to all cases of testamentary and intestate succession. The burden therefore is upon the Plaintiff to prove the exception within which her case falls, and she relies upon sec. 331 of the Indian Succession Act for this purpose. That section—we quote only so much of it as applies to the case before us—lays down the following rule:—“The provisions of this Act shall not apply to intestate or testamentary succession to the property of any Hindu, Mabomedan or Buddhist.” The question therefore narrows down to this: Is a Hindu who has embraced the Christian faith and continues to be a Christian up to the time of his death, a Hindu within the meaning of sec. 331? The Appellant has invited us to answer this question in the affirmative while the Respondents have strenuously maintained the contrary view. After a careful consideration of the arguments which have been addressed to us we have arrived at the conclusion that the question ought to be answered in the negative. Dr. Whitley Stokes has pointed out that the collocation of the words Hindu, Mabomedan or Buddhist makes it reasonably plain that the term Hindu is used as a theological terms and denotes only persons who profess any faith of the Brahminical religion or the religion of the Puranas. (Anglo-Indian Codes, Vol. 7, 483), Dagree v. Pacotti. In our opinion by no stretch of language can we reasonably hold that the term Hindu includes a convert to Christianity. It is further obvious that as ruled in the case of Jogendra Chandra Bose v. Bhagwan Coomar subsequently affirmed by the Judicial Committee in Bhagwan Koer v. J.C Bose, it is not sufficient to bring a man within the definition of Hindu to prove his Hindu birth and origin. It is also essential that be should be a Hindu at the time when the question in issue arises, for example, if there is a dispute as to the succession to the estate of the deceased person, it must be proved that he was a Hindu at the time of his death. No doubt, under the law as it stood before the Indian Succession Act, a Hindu after his conversion to Christianity might by his conduct show by what law he in tended to be governed in matters of succession and inheritance, Abraham v. Abraham, because, as observed by their Lordships of the Judicial Committee “Upon the conversion of a Hindu to Christianity the Hindu Law ceases to have any continuing obligatory force upon the convert; he might renounce the old law by which he was bound as he had renounced his old religion or if he thought fit, he might abide by the old law notwithstanding he had renounced the old religion.” In view, however, of the provisions of secs. 2 and 331 of the Indian Succession Act, this position can no longer be maintained. We must consequently hold that when a Hindu has embraced Christianity and continues to be a Christian up to the time of his death, all questions of succession to his estate upon intestacy must be determined by the Indian Succession Act. The view we take is supported by decisions of the Madras High Court in In re Vathiar, Ponnusami v. Dorasami, Administrator-General v. Anandachari, Tellis v. Saldanha and of the Bombay High Court in Dugree v. Pacotti, Bai Baiji v. Bai Santok and Hastings v. Gonsalves. The decision of the Bombay High Court in Francis Ghosal v. Gabri Ghosal and of the Punjab Chief Court in Edith Mukerji v. George Alfred are not really opposed to this view. They are distinguishable on the ground that the question raised there was whether the Indian Succession Act purported to enlarge the category of heritable property or affected the right of co-partnership as between those to whom it applied. We must consequently hold that the Courts below have correctly applied the provisions of the Indian Succession Act to determine the distribution of the estate left by Haripada Banerjee who at the time of his death was a Christian. The first ground urged on behalf of the Appellant must consequently fail.

    In support of the second ground urged on behalf of the Appellant, it has been contended that the plaint though it did not expressly set out a title by adverse possession, yet contained a sufficient recital of the facts that the Plaintiff was in possession of the entire half share of her husband and that consequently the Plaintiff ought to have been allowed to succeed on the ground of title by adverse possession. Now, it is perfectly true that, as laid down by this Court in the cases of Toytara v. Mobaruck, Sundari v. Mudhoo Chandra and Ananda Hari v. Secretary of State, where no case of acquisition of title by adverse possession is made in the plaint nor is the question raised directly or indirectly in any of the issues, the Plaintiff ought not to be allowed to succeed upon such a case. On the other hand as pointed out by this Court in the case of Lilabati v. Bishun Chobey when the question reduces itself to one of law upon facts ad-milted or proved beyond controversy, it is not only competent to the Court but expedient in the interest of justice to entertain the plea of adverse possession, if such a case arises on the facts stated in the plaint and the Defendant is not taken by surprise. The true test, therefore, to be applied to determine whether the plea of title by adverse possession should be allowed to be urged though not explicitly raised in the plaint is, how far is the Defendant likely to be prejudiced if the point is permitted to be taken. Now, the case before us is obviously of a somewhat peculiar description. The parties themselves were possibly ignorant of their true rights under the Indian Succession Act till their legal advisers made the discovery in the course of this litigation. In this view it does seem probable that upon the death of the husband the Plaintiff did enjoy possession of his entire half share as if the rights of the properties were governed by the Hindu law and she may have done so to the exclusion of her sister-in-law Mandakini if not also of her brother-in law Sasi Bhusan. It has been asserted on the other hand that the Plaintiff was in possession as a co-sharer and the burden is upon her to prove that her possession was adverse. A question of some nicety may also arise as to the true position if it should be found that the possession was adverse to one of the two persons and not to the other. We are satisfied that the true bearing of these questions was not considered, possibly not appreciated at all in the Court below and in the interest of justice it is obviously necessary that the question should be examined. The second ground urged on behalf of the Appellant must consequently prevail.

    The result therefore is that this appeal must be allowed and the decree of the District Judge discharged in so far as it modifies the decree of the Subordinate Judge. The case will be remanded to the District Judge in order that he may determine whether in addition to the half share inherited by the Plaintiff from her husband she has acquired a good title by adverse possession for the statutory period to the other half share which would otherwise belong to the brother and sister of Haripada. The District Judge will frame an issue on this point and allow an opportunity to the parties to adduce evidence in support of their respective allegations. Such evidence may be taken by the District Judge himself or by the Subordinate Judge under his directions. The District Judge will decide the question of title by adverse possession as also any other question that may incidentally arise. The Defendant No. 1 will get half the costs allowed to him only by the Court of Appeal below in respect of both the lower Courts. The costs of this appeal will abide the result.

    Case remanded.

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    Comments

    Nepen Bala Debi v. Siti Kanta Banerjee
    (Sep 5, 1910)