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V.CHITAMBARESH & K.RAMAKRISHNAN, JJ. ------------------------A.S.No.460 of 2000 & Memorandum of Cross Objections ------------------------Dated this the 7th day of June, 2017 JUDGMENT Chitambaresh, J. “A nun, at best, is only half a woman, just as a priest is only half a man.” said Henry Louis Mencken, the American journalist, satirist and social critic. But law recognises a nun as a full woman and a priest as a full man particularly in regard to inheritance and succession of their personal property. 2.
Raphael and his wife Mary Raphael
had three
children by name George, Xavier and Eleeswa and it is not in
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dispute that George pre-deceased his parents while Xavier entered the religious Order as a priest.
The parents had
executed Ext.B1 joint Will bequeathing the plaint schedule property to Xavier (the first defendant) followed by Ext.B2 Codicil by Mary Raphael alone. Ext.B2 Codicil does not relate to the plaint schedule property and only the validity of Ext.B1 Will and the legality of the bequest made thereunder fell for consideration in the suit.
Three children of George (the
plaintiffs) contended that no rights flowed under Ext.B1 Will to the first defendant since he had even earlier become a priest after taking a vow of poverty. The plaintiffs asserted that the first defendant was at best a manager only who had suffered a civil death on becoming a priest and that the plaint schedule property is to be divided eschewing his share.
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3. The first defendant as well as defendants 2 to 4 (who are the other children of George) contended that Ext.B1 Will is valid
and that the bequest in relation to the plaint
schedule property is legal. The fact that the first defendant had become a priest in the year 1943 much before Ext.B1 Will came into effect was conceded even though the taking of a vow of poverty by him was disputed.
The first defendant had on the
strength of Ext.B1 Will executed two sale deeds in respect of a portion of the plaint schedule property in favour of the second defendant. It was the case of the defendants that the sale deeds (Document Nos.1020/1995 and 737/1995) are legal and valid and the balance extent of the plaint schedule property is not liable to be divided. 4. The plaintiffs sought partition of the plaint
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schedule property excluding the first defendant and also for a declaration that the two sale deeds executed by him are not binding on the plaint schedule property. The court below has passed a preliminary decree for partition directing the plaint schedule property to be divided into six shares and allotment of one share to each of the plaintiffs. The defendants have come up in appeal pointing out that the court below has applied the principles of Canon Law ignoring the provisions of the Indian Succession Act, 1925. The plaintiffs have filed a memorandum of cross objections contending inter alia that even the due execution of Ext.B1 Will and Ext.B2 Codicil have not been proved in accordance with law. 5. It will be profitable at this juncture to advert to Section 29 of the Indian Succession Act, 1925 which is
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applicable to an 'Indian Christian' as defined in Section 2(d) thereof and the same is extracted below: “29. Application of part:- (1) This part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina. (2)
Save as provided in sub-section (1) or
by any other law for the time being in force, the provisions of this Part shall constitute the law of India in all cases of intestacy.” (emphasis supplied)
We heard Mr.Sabu George, Advocate on behalf of the appellants and
Mr.S.Ramesh Babu, Senior Advocate on behalf of the
supporting respondent who painstakingly took us to the history of the legislation. We also heard Mr.M.S.Narayanan, Advocate and Mr.P.Babu Kumar, Advocate on behalf of the contesting respondents as well as Mr.Liji.J.Vadakkedom, Advocate as
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amicus curiae in the case. 6.
The Canon Law
is after all a body
of principles,
standards, rules or norms internal to the church distinguished from the civil law [See: Rev.P.M.A.Metropolitan v. Moran Mar
Marthoma (AIR 1995 SC 2001)]. The Canon Law can no longer be treated as customary law after its codification by the Vatican Council in the year 1918 as observed by E.D.Devadason. The following extract from his book - 'Christian Law in India' illuminating: “They are like 'Club Rules'.
When a person
becomes a member of a club, he not only subscribes to the existing rules and regulations but also agrees to accept the rules as they may be changed
from
time
to
time
provided
the
procedure prescribed for changing them has been followed. As long as a person continues to
is
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be a member of a club, he is bound by the rules of the club as they are amended from time to time. The rules are binding among the members inter se and also between the members of the club.”
The above passage has been quoted with approval in Major Archbishop, Angamaly and others v. P.A.Lalan Tharakan and others [2016 (2) KLT 791] and we have no different opinion on the issue. It will be preposterous therefore to decide the civil rights of the parties based on the Canon Law which is only a norm internal to the church and has ceased to be a customary law after its codification as aforesaid. 7. It may be true that a Hindu ascetic or a Christian priest would sever his connection with the members of his natural family on entering into a religious order as per the prestine
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Hindu Law or the Canon Law. The ascetic or the priest in that sense may be said to have suffered a civil death making him ineligible to inherit a property either by intestate succession or testamentary succession. But the scenario has changed after the enactment of the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 which only governs the parties as regards inheritance and succession. To borrow the words of Mr.Justice
K.T.Thomas from George Sebastian v. Molly Joseph [1994 (2) KLT 387 (FB)]: “Where there is a statute governing the area, the statute has primacy over any personal law in that regard............ Personal law has relevance only to the above extent vis-a-vis the statutory law. In other words, personal law stands clipped to the extent statutory law has stepped.” (emphasis
supplied)
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The above decision was affirmed in Molly Joseph v. George Sebastian [1997 (1) KLT 1 (SC)] to hold that Ecclesiastical Tribunal has no jurisdiction to anull a marriage as per Canon Law in the light of the Divorce Act, 1869. The Supreme Court in so doing observed as follows:“It is well settled that when Legislature enacts a law even in respect of the personal law of a group of persons following a particular religion, then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before coming into force of such Act.”
(emphasis supplied)
It necessarily follows that the rights of inheritance and succession to a Hindu ascetic or a Christian priest are governed by the Hindu Succession Act, 1956 or the Indian Succession Act, 1925 as the case may be.
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8. The applicability of the Indian Succession Act, 1925 to all Indian Christians as defined in Section 2(d) thereof is settled by the decision in Mary Roy v. State of Kerala [AIR 1986 SC 1011]. To quote from the above: “5.
The Indian Succession Act, 1925 was
enacted
by
Parliament
with
a
view
to
consolidating the law applicable to intestate and testamentory succession.
This Act being a
consolidating act replaced many enactments which were in force at that time dealing with intestate and testate succession including the Indian Succession Act, 1856. Part V of the Act relates to intestate succession and it consists of a fasciculus of sections beginning with S.29 and going up to S.56. The rules relating to testate succession are to be found in Part VI of the Act which comprises 23 Chapters commencing from S.57 and ending with S.191.”
This principle has been followed in Taluk Land Board v. Cyriac
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Thomas [(2002) 8 SCC 29] and Mathai Samuel v. Eapen Eapen [AIR 2013 SC 532] and sets at rest the controversy as regards the applicability of the Indian Succession Act, 1925. 9. The Indian Succession Act, 1925 does not make any departure in the matter of inheritance or succession to a Christian priest or nun whether or not he/she has taken a vow of poverty, chastity and obedience. The Division Bench of the Karnataka High Court noticed this three decades ago in Kempa Gowda v. Lucinda and others [AIR 1985 Karnataka 231] wherein it was held as follows:“9........... The plaintiff is a Nun. She is devoted to religious life under certain vows and she lives in Convent.
The case of the appellants is that
because the plaintiff is a Nun, she is not entitled to any share in the suit properties.
This
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contention, in our opinion, has no support of reason. The plaintiff is, no doubt, a Nun, but we find no statutory prohibition for her to claim legitimate share out of the estate of her father. The Indian Succession Act does not contain any such restraint.
Nor there is any prohibition
prescribed under esslesiastical law. At any rate, no such law has been brought to our notice. We are,
therefore,
not
inclined
to
accept
the
contention that the plaintiff is not entitled to any share in the suit properties merely because she is a Nun.” (emphasis supplied)
A learned single Judge of the Madras High Court echoed in similar lines in In the matter of the Indian Succession Act v. Rt. Rev. Casmir Gnanadesikan, Archbishop of Madras, Mylapore [1990 (1) KLT 334] as follows: “The Inheritance Law applicable to a person who dies as a Christian, is contained in Part V of the Indian Succession Act. ........ So, unless there is
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some other statute, enacting a different law of inheritance, applicable to Christian priest like the deceased in this case, only part V of the Indian Succession Act has to be applied to find out who is the heir to the above deceased Fr.Jacob. No such different enactment was placed before me. Then, as per Part V of the Indian Succession Act, the petitioner is admittedly not a heir of the deceased priest. “ (emphasis supplied)
We are in perfect agreement with the decisions of the Karnataka High Court and Madras High Court that Indian Succession Act, 1925 does not make a departure in the case of a Christian priest or nun.
There is absolutely no statutory prohibition for
a
Christian priest or nun in the matter of intestate or testamentary succession of property ofcourse in his/her personal capacity. 10.
It should incidentally be stated that the universal
application of Section 29(2) of the Indian Succession Act, 1925
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was first emphasised by Mr.Justice M.M.Ismail of the Madras High Court. It was held in Solomon and others v. Muthaiya and others [(1974)1 MLJ 53] as follows:“On the other hand, from the language of Section 29(2) and the context and setting in which it occurs, it is capable of leading only to one conclusion, namely, that the provisions of Part V are of universal application except in so far as that application has been excluded by sub-section (1) or any other law for the time being in force. The mere fact that there is a custom relating to intestate succession or there is some other law dealing with intestate succession will not lead to the exclusion of the applicability of the provisions of Part V of the Indian Succession Act, 1925. From the very nature of the case, a custom cannot exclude the applicability of the provisions of a particular statute. But a statute can do it. So long as an existing statute has not excluded the
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applicability of Part V of the Indian Succession Act, 1925, the provisions of the said Part V will apply.
Therefore, in my opinion, there is no
warrant for holding that Section 29(2) of the Indian Succession Act, 1925 saves an existing custom or existing law relating to intestacy.
(emphasis supplied)
D.Chelliah Nadar and another v. G.Lalitha Bai and another [AIR 1978 Madras 66 (DB)] which overruled the above decision was in turn overruled and the dictum in Solomon approved by the Supreme Court in Mary Roy.
The same principle applies not
only to intestate succession under Section 29(2) but also to testamentary succession under Section 58(2) of the Indian Succession Act, 1925. 11. The following observations from Bar Council of India v. Mary Tresa [2006 (2) KLT 210 (DB)] as regards the eligibility
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of a priest or nun to be enrolled as an Advocate is apposite to the context:“Priests and nuns are likely to take up the causes of persons seeking justice on nominal fee and some time even gratuitously as they have been trained to live a particular set of life. They would have taken up the causes of downtrodden and poor people with a humane touch and not necessarily on high and exorbitant fee.
The
religious
the
background
teaching
them
philosophy of service before self, they could have rendered an equal if not better service than that of their counter-parts already engaged in the profession.
The two Bar Councils also did not
notice that being a priest disqualification
for
or nun is not a
appointment
government or private job.
to
any
If, therefore, the
priests and nuns were competent, qualified and suited
for
government
jobs
or
highest
responsibility, surely, they would be equally
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competent and qualified to wear the robes of a lawyer.” (emphasis supplied).
We wonder how a priest or nun would suffer a civil death for the purpose of succession alone when he/she is very much alive and competent to accept a job on salary or practice as a lawyer receiving fees. 12. However property obtained by a Hindu ascetic or a Christian priest on behalf of a Mutt or a Monastery stand on a different footing and the same would devolve on the successor administrator. Sital Das v. Sant Ram and others [AIR 1954 SC 606] and Shri Krishna Singh v. Mathura Ahir and others [(1981) 3 SCC 689] are cases dealing with the right over Mutt property only. Sital Das was rendered before the coming into force of the Hindu Succession Act, 1956 and Shri Krishna Singh essentially
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dealt with the Mahantship and Mutt property which are of little application here.
Unfortunately Sital Das has been relied on
heavily in Mother Superior v. D.E.O., Kottayam and others [1977 KLT 303(DB)]
to hold that Canon Law is the rule of thumb.
Oriental Insurance Company v. Mother Superior [1994 (1) KLT 868 (DB)] and Varghese v. Krishnan Nair [2004 (2) KLT 783 (DB)] follows Mother Superior (supra) and nothing more. We have no hesitation to hold that the above decisions of the Division Bench on the right of a Christian priest or nun over his/her personal property are no longer good law and binding. This is so in view of the unequivocal pronouncement
in Mary Roy v. State of
Kerala [AIR 1986 SC 1011] and Molly Joseph v. George Sebastian [1997 (1) KLT 1 (SC)] on the point. 13.
Neither was any specific plea made nor any issue
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framed or evidence let in as regards the alleged custom amongst the diocesan priests to desist from holding property on entering into the Holy Order. To hold that one would suffer a 'civil death' and be deprived of his property on entering into the Holy Order would be a naked infringement of Article 300-A of the Constitution of India.
Ofcourse it is the volition of a Hindu
ascetic or a Christian priest to relinquish his right over
his
personal property in favour of a Mutt or Monastery in a manner known to law. But there cannot be any automatic deprivation of property acquired by way of
intestate or
testamentary
succession by the mere fact that one has entered into the religious order and renounced his worldly pleasures.
The
finding of the court below that the first defendant did not derive any right over the plaint schedule property under Ext.B1 Will for
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the only reason that he had become a priest even before is unsustainable in law. The execution of Ext.B1 Will has been duly proved in terms of Section 69 of the Indian Evidence Act, 1872 by the first plaintiff and the third defendant since no attesting witnesses are alive. We uphold the finding of the court below about the due execution of Ext.B1 Will and Ext.B2 Codicil in the absence of any vitiating factors brought out in evidence. The irresistible conclusion therefore is that the first defendant was competent to execute sale deeds (Document Nos.1020/1995 and 1737/1995) in favour of the second defendant. 14. There is a faint plea by the appellants that the first defendant was only a secular priest and not a regular priest who had taken a vow of poverty and hence not ineligible to obtain bequest under Ext.B1 Will. Also a distinction is sought to be
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made on the basis of Canon 285(4) and Canon 668(5) of the Code of Canon Law applicable to Clerics and Institutional Priests respectively.
There is an application for amendment of the
written statement filed in the Appeal Suit along with a few applications for reception of documents as additional evidence in this regard. The Appeal Suit has been pending for over 17 years and we do not find any ground to entertain these applications at this stage particularly in view of our conclusion reached above. It however transpires that the first defendant died intestate as a bachelor pending Appeal Suit and his share over the property remaining should devolve on his natural heirs only. The natural heirs are the children of George (who are the plaintiffs and defendants 2 to 4) and the children of Eleeswa (who reportedly had died on 4.4.1961 leaving behind six
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children). The children of Eleeswa were not impleaded in the suit and there was no plea of non joinder of necessary parties either in the written statement and a remand of the case is hence unwarranted. Suffice it to say
that there was a substantial
representation for the estate and the children of Eleeswa shall be brought on record in the proceedings for the passing of a final decree. A preliminary decree for partition is accordingly passed declaring that half right would devolve on the children of George and the other half right on the children of Eleeswa. The extent of property
covered by the two sale deeds
(Document Nos.1020/1995 and 1737/1995) are however unavailable for partition since the first defendant had alienated the same. Any one of the parties
are free to apply for the
passing of the final decree in regard to the property remaining
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and allotted under Ext.B1 Will and the impugned decree is modified accordingly. 15. Mr.Liji.J.Vadakkedom, Advocate who dispassionately put forth his views as amicus curiae in the case notwithstanding his personal faith and allegiance certainly deserves a rich encomium. The Appeal Suit is allowed and the memorandum of Cross Objections is dismissed. No costs. Sd/-
V.CHITAMBARESH, JUDGE
Sd/-
K.RAMAKRISHNAN, JUDGE nj///True copy//
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P.S. to Judge.
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