IN THE HIGH COURT OF CALCUTTA
A.F.O.D. No. 173 of 1954
Decided On: 12.01.1956
Benoy Kumar Mondal
Hon’ble Judges/Coram: P.N. Mookerjee and Renupada Mukherjee, JJ.
Citation: AIR 1956 Calcutta 177
1. This appeal is directed against the grant of letters of administration to the respondent Panchanon Majumdar alias Panchanon Mondal in respect of the estate of one Sm. Sarojini Mazumdar, deceased.
2. It has been found by the Court below that the deceased Sarojini was a Christian by religion. That finding is not challenged before us by either party. Respondent Panchanon who was the applicant for the letters of administration was related to Sarojini in the manner as will appear from the following genealogy;
BHARAT | Gobindo | Bilashini (daughter) | _________________________________________________________ | | | Mokshada Santabala Trailokya (husband-Sahadeb) (husband-Rajkumar) | | Sarojini Jashoda (deceased) | Panchanon (Plaintiff-applicant) Respondent.
Taken along with the fact that Sahadeb and Rajkumar were two brothers; or, to put it more succinctly and in a direct form, the relevant genealogy under which the respondent Panchanon claims would stand as follows;
________________________________________ | | Sahadeb Rajkumar | | Mokshada Jashoda | | Sarojini Panchanon (deceased) (plaintiff-applicant) Respondent.
3. Appellant Benoy, who was the objector to Panchanon’s claim for letters of administration, also pleaded that he was related to Sarojini through his remote ancestor Raghu who was the brother of Bharat, the paternal grandfather of Sarojini’s grandmother (mother’s mother) Bilashini, and, upon that allegation, he claimed under the following genealogy:
________________________________ | | Bharat Raghu (vide the first | genealogy, set Halder out above) | Baikuntha | Ramanath | ______________________________________ | | | Aghore Naren Benoy (Defendant-opposite party) Appellant.
4. Both parties agree that Panchanon’s claim to the letters1 of administration would depend upon his eligibility under Section 219, Succession Act which admittedly applies to this case. Under the terms of that section, a person to be entitled to letters of administration, to the estate of a Christian deceased must be connected with him or her, as the case may he, either by marriage or by consanguinity and where, as in the present case, the deceased has left no spouse or lineal descendants or parents or brothers or sisters, letters of administration should be granted to the next of kin or relations who are in the nearest degree of kindred to the deceased wide Section 219(c) and (e) read with Sections 34, 35 36, 41 and 48, Succession Act).
On the admitted cases of the parties, Panchanon would, as a matter Of fact, be the nearest relation or next-of-kin of the deceased Sarojini, having a much closer connection with her by blood than the appellant Benoy, and prima facie, therefore, he would be entitled to letters of administration in the present case.
It is argued, however, on behalf of the appellant that he (Panchanon) being a Hindu and not a Christian would not be entitled to letters of administration to the estate of the deceased Christian Sarojini even though he might, in fact, be the nearer consanguine relation or, for the matter of that, her nearest surviving relation or next-of-kin.
5. Consanguinity connotes blood-relationship or descent from the same stock of ancestor. That is its dictionary meaning. That is also the meaning adopted by the statute (vide Section 24, Succession Act).
Panchanou therefore, satisfies the test of connection or relationship by consanguinity — and that alone is relevant here the contest being between two rival claimants by blood, and the only question is whether he (Panchanon) being a Hindu and not a Christian would be entitled to the letters of administration to the estate of the deceased Sarojini who was a Christian at the time of her death or whether this difference in religion would exclude him and pave the way for the appellant’s success in the present proceeding.
6. There is authority in this Court in favour of the view that a Hindu relation, if he is otherwise entitled to inherit the estate of a Christian deceased under the Indian Succession Act, which would admittedly govern cases of Christian succession, would not be disentitled to such inheritance merely because he is a Hindu (vide — ‘Neepen Bala Debi v. Siti Kanta Banerjee’ 15 Cal WN 158 (A)). That indeed is the only possible view in the light of the Relevant provisions of law.
7. Under Section 29 of the present Succession Act (Act 39 of 1925) (which, it may be incidentally stated in its two Sub-sections (1) and (2) corresponds to old Sections 331 and 2 of the earlier Act (Act 10 of 1865), referred to in MANU/WB/0587/1910 : 15 CW.N. 158 (A)), succession to the estate of the deceased Sarojini who was a Christian, that is, not a “Hindu, Mohammedan, Buddhist, Sikh or Jaina” would be governed by the Indian Succession Act (Act 39 of 1925), or, to be more precise, by Part 5 thereof where this particular section (Section 29) occurs (vide — ‘Kamawati v. Digbijai Singh’ AIR 1922 EC 14 (B); vide also 15 Cal WN 158 (A) and — ‘Administrator-General, Madras v. Anandachari’ 9 Mad 466 (C)),
Even apart from authorities, this position cannot be controverted as it is clear from a perusal of the section (Section 29) that, subject to the exceptions noted there, which do not apply to this case, the section is imperative and its mandate cannot be disregarded.
8. Now, leaving aside the special provisions, relating to Parsi intestates, and confining ourselves to the several sections, mentioned in Chap. 2 of this part (Part V), which govern cases of intestate Christian succession, we eventually come to Section 48 by process of elimination as the section, directly relevant to the present case, where the deceased Christian lady left no husband, no parents, no brothers or sisters and no lineal descendants and left, as found above by us — and that is also both parties’ case, so far as facts are concerned — the present respondent Panchanon as the nearest consanguine or blood relation, and that section (Section 48) undoubtedly aids the respondent.
The appellant no doubt contends that Panchanon, though otherwise entitled to succeed to the deceased Sarojini’s estate under the Indian Succession Act (Section 48) as her nearest consanguine relation, would not be so entitled because he happens to be a Hindu while Sarojini was a Christian but we do not think that this contention is well-founded.
The Succession Act does not concern itself with the religion of the claimant for succession although the religion of the deceased certainly plays an important role — and indeed, it is almost the determining factor, — in the matter of applicability or otherwise of the rules of succession, laid down in the Act, to a particular case. This distinction in the nature or character of the relevant estate, depending upon the religion of the deceased owner, runs throughout the Act but stress is nowhere laid in the matter of its devolution upon the religion of the heir or the inheritor.
This latter element is undoubtedly a vital factor in the personal laws of succession, like, for example, the Hindu and the Mohammedan law, which are intimately connected with the respective religions and persons professing other faiths, save in cases coming under special protective legislations, like for example, the Caste Disabilities Removal Act, 1950 (Act 21 of 1950), are excluded from inheritance, otherwise available to them, simply on the ground of difference of religion.
Claims for succession, however, under the Indian Succession Act stand on an entirely different footing and the religion of the claimant as distinguished from the religion of the deceased owner is entirely irrelevant for the purpose. We would, accordingly, overrule the appellant’s contention.
9. We are supported in our view by the decision of this Court, reported in 15 Cal WN 158 (A), to which reference has already been made. The same view was also taken in the Madras case of 9 Mad 466 (C), also cited above, and we do not find anything to the contrary in the Privy Council case of — ‘Mitar Sen Singh v. Maqbul Hasan Khan’ MANU/PR/0047/1930, which dealt with succession to the estate of a Hindu convert to Mohammedanism and laid down inter aha that his Hindu relations were not eligible for such succession notwithstanding the Caste Disabilities Removal Act (also known as The Freedom of Religion Act), 1850 (Act 21 of 1850).
The reason for the decision was very clearly stated by their Lordships, namely, that the law of succession in the case of a Hindu or a Mohammedan depends upon their own personal law, that it depends upon the law of their religion, that the Mohammedan law would in itself prevent a Hindu from succeeding as heir and that Act 21 of 1850 merely protects the Hindu convert alone from losing his rights of inheritance under the Hindu Law.
The reasoning is clear, specific, explicit and self-explanatory and it has no application where succession is claimed under the Indian Succession Act for reasons we have already discussed, and, although the case cited is undoubted authority for the view that a Hindu cannot claim to inherit to a Mohammedan, save in cases, falling under the Caste Disabilities Removal Act, 1850 (Act 21 of 1850) as explained in the said decision, it does not certainly support the argument that a Hindu cannot claim to inherit to a Christian.
10. In the above view we hold that respondent Panchanon was entitled to inherit Sarojini’s estate in preference to appellant Benoy and was as such entitled to the letters of administration in the present case under Section 219(c), Succession Act (Act 39 of 1925), the difference in religion notwithstanding between him (Panchanon) and the deceased Sarojini, and the appellant’s identity of religion with the said deceased (Sarojini) would not give him any advantage in the matter. The decision of the Court below, granting the letters of administration to the respondent, was therefore, right and it must be affirmed.
11. This appeal, accordingly, fails and it is dismissed with costs, hearing fee being assessed at two gold mohurs.
Renupada Mukherjee, J.
12. I agree.