Judgement

Appeal (No. 2 of 1920) from a judgment and decree of the High Court (January 30, 1917) reversing a decree of the Additional Subordinate Judge of Moradabad (August 12, 1915).

The suit was instituted by the appellant as the sisters daughter of one Kunwar Randhir Singh, deceased, to recover from the respondent a one-twelfth share of the estate of the deceased. She claimed as one of the next of kin of the deceased under the Indian Succession Act (X. of 1865) on the ground that the deceased had died a Christian, and intestate, and that that Act regulated the succession to his estate. The respondent was in possession of the estate as surviving brother of the deceased. The appellant, who was pardanishin, also claimed to set aside a deed dated April 29, 1912, by which she had agreed to relinquish all her rights of succession to the deceased in consideration of a monthly payment of Rs.50. The respondent by his written statement denied that the Indian Succession Act, 1865, governed the succession, and contended that the deed was binding.

The Additional Subordinate Judge made a decree in favour of the appellant. He held that the deed of April 29, 1912, was not binding upon her ; he found that the deceased died a Christian and that the succession to his estate was governed by the Indian Succession Act, 1865.

On appeal the High Court set aside the decree of the trial judge. The learned judges (Richards C.J. and Banerji J.) held that the deed was binding upon the plaintiff ; in their view it was merely a ratification of a family arrangement made in 1908 as a compromise, and had been thoroughly understood and willingly executed by the plaintiff. The finding of the trial judge that the deceased died a Christian was not differed from ; but the view that the deed was binding made it unnecessary to consider whether the Act applied.

The judgment of the Judicial Committee and the arguments of counsel upon the present appeal dealt to a great extent with the question whether upon the facts the respondent had established the validity of the deed by discharging the onus upon him having regard to the appellant being parda-nishin. That question depending upon well-established principles, a detailed report of the judgment and arguments upon it does not appear to be necessary.

1921. May 6, 9, 10. Dube for the appellant contended that on the facts the deed of April 29, 1912, was invalid, the respondent not having satisfied the onus upon him to show that it was not obtained by undue influence. Reference was made to Sajjad Husain v. Wazir Ali Khan. (( 1912) L. R. 39 I. A. 156.)

E. B. Raikes for the respondent. The Indian Succession Act did not apply to this case. It was laid down in Abraham v. Abraham (9 Moo. I. A. 195, 241.) that a Hindu converted to Christianity may, if he think fit, continue to be bound by Hindu law, although he has renounced the Hindu religion see also Gajapathi Radhika v. Gajapathi Nilamani. (( 1870) 14 Suth. W. R. (P. C.) 33.) The evidence in the present case showed that the deceased wished to live as a Hindu although he had renounced the Hindu religion, and indicates a wish that he should be treated as a Hindu for purposes of succession. It is conceded that there is a series of decisions of the Madras High Court, commencing with In re Joseph Vathiar (( 1872) 7 Mad. H. C. 121.), and including Tellis v. Saldanha (( 1886) I. L. R. 10 Mad. 69.), which are contrary to the respondents contention that the deceased could so elect. Those cases were followed by the Bombay High Court in Dagree v. Pacotti San Jao. (( 1895) I. L. R. 19 B. 783.) But a contrary, and it is submitted a correct view, was taken by that Court in Francis Ghosal v. Gabri Ghosal. (( 1906) I. L. R. 31 B. 25.) The whole question is, what is the meaning of " Hindu " in s. 331 of the Indian Succession Act, 1865 ? In Rani Bhagwan Kuar v. Jogendra Chandra Bose (( 1903) L. R. 30 I. A. 249.), the Board held that Sikhs were included in the term. The policy of the administr