KARNATAKA HIGH COURT

ANTHAPPA (DECEASED) BY HIS ... VS. DISTINAPPA ALIAS SUBBANNA

DATED : 23.11.2005

 

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

The following substantial questions of law were raised by this Court:

1. Whether the Notification dated 23-7-1868, No. 204 exempting 'all Native Christians in the State of Coorg from the operation of specified sections of the Indian Succession Act, 1865', issued in the Gazette of India by the Governor General of India in Council in exercise of authority provided to him under Section 332 of the Indian Succession Act, 1865. remains in force and full effect in view of the provisions of Section 3(1) and 3(2) of the Indian Succession Act, 1925?

2. Does the notification referred to immediately herein supra stand impliedly repealed by the provisions of Section 392 of the Indian Succession Act, 1925 upon its introduction?

3. Did the substantive provisions contained in the aforesaid notification constitute breach of Articles 14 and 15 of the Constitution of India and thus become unconstitutional by application of the doctrine of eclipse enshrined in Article 13(1) and 13(3) of the Constitution of India?

4. Whether the notification referred to herein supra was deemed to be adapted and continued in terms of the Adaptations of Law Order, 1950 by exercise of authority under Article 372 of the Constitution of India?

5. Whether the custom of applying the principles of Hindu Law in matters of partition, succession etc. by Christians Converts from Hinduism, allegedly prevalent in those areas of Hassan District in Karnataka is constitutional or unconstitutional?

6. Does the application of the substantive provisions of the Notification referred to herein supra extend to the territories over which the Trial Court viz., the Hon'ble Civil Judge (now Civil Judge, Senior Division), Holenarasipura and Principal District Judge, Hassan District exercise jurisdiction?

Facts of the Case :

It is apt to quote at this juncture, as is held in Abraham's case, by the Privy Council that 'upon the conversion of a Hindu to Christianity, the Hindu Law ceases to have any continuing obligatory force upon the convert. He may renounce the old law by which he was bound, as he has renounced his old religion or if he thinks fit, he may abide by old law notwithstanding he has renounced the old religion. It is further held that the profession of Christianity released the convert from the trammels of Hindu Law but, it does not of necessity involve any change of the rights or relations of the converts in matters with which Christianity has no concern, such as his right and interest in and his power over property'.

Evidently, in this background the July 1868 notification/exemption is issued insofar as native Christians of the then Province of Mysore from following the tenets of rules of succession under 1865 Act which is even being continued and recognised in the 1925 Act. I am of the view, in the above background, that the above notification will not be antithetic to the provisions of the Constitution of India and also not violative of the fundamental rights. Although in Kamawati's case the ratio laid down in Abraham's case was held to be no longer good law after the enactment of the 1865 Act and it is held that a Hindu converted to Christianity has no right to claim that he is governed by Hindu Law of Inheritance, but necessarily as noted above, the notification issued by the Governor General in Council during July 1868 has been recognised in 1925 Act by  a specific provision under Section 3(3) exempting the native Christians of the Province of Mysore as it stood then from the trammels of Rules of Succession of 1865 Act and 1925 Act.

Judgement :

In view of the above discussion, the appeal is dismissed. The judgment and decree passed by both the Courts below are confirmed. Parties to bear their own costs.

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KARNATAKA HIGH COURT

ANTHAPPA (DECEASED) BY HIS ... VS. DISTINAPPA ALIAS SUBBANNA

DATED : 23.11.2005

Equivalent citations: AIR 2006 Kant 60, ILR 2006 KAR 1576, 2006 (1) KarLJ 270

Author: H G Ramesh

Bench: H G Ramesh

JUDGMENT Huluvadi G. Ramesh, J.

1. This second appeal is by the plaintiff being aggrieved by the judgment and decree passed by the Principal District Judge, Hassan in R.A. No. 22 of 1995 confirming the judgment and decree passed by the Civil Judge (Senior Division), Holenarasipura in O.S. No. 56 of 1991.

2. The parties are referred according to their rank before the Trial Court. Plaintiff filed a suit before the Civil Judge (Senior Division), Holenarasipura seeking for declaration to declare him as the absolute owner in possession of the suit schedule properties stating that it is his self-acquired properties and also sought for a permanent injunction. 

The said suit was resisted by the respondent/defendant on the ground that though they belong to Roman Catholic Christians, customarily they were bound by the principles of Hindu Law in the matters of succession. Further, it is alleged that all the suit schedule properties are ancestral and coparcenary in nature and defendant was one of the co-owner, as such, the suit is not maintainable for injunction.

Based on the pleadings, the Trial Court has framed as many as seven issues and after evidence was let in and after hearing the parties, the suit of the plaintiff was dismissed. Aggrieved by the same. R.A. No. 22 of 1995 was preferred before the Principal District Judge, Hassan which also came to be dismissed on 18-1-2000. Hence, this second appeal by raising several substantial questions of law.

3. At the time of admission on 22-5-2000, the following substantial questions of law were raised by this Court:

1. Whether the Notification dated 23-7-1868, No. 204 exempting "all Native Christians in the State of Coorg from the operation of specified sections of the Indian Succession Act, 1865", issued in the Gazette of India by the Governor General of India in Council in exercise of authority provided to him under Section 332 of the Indian Succession Act, 1865. remains in force and full effect in view of the provisions of Section 3(1) and 3(2) of the Indian Succession Act, 1925?

2. Does the notification referred to immediately herein supra stand impliedly repealed by the provisions of Section 392 of the Indian Succession Act, 1925 upon its introduction?

3. Did the substantive provisions contained in the aforesaid notification constitute breach of Articles 14 and 15 of the Constitution of India and thus become unconstitutional by application of the doctrine of eclipse enshrined in Article 13(1) and 13(3) of the Constitution of India?

4. Whether the notification referred to herein supra was deemed to be adapted and continued in terms of the Adaptations of Law Order, 1950 by exercise of authority under Article 372 of the Constitution of India?

5. Whether the custom of applying the principles of Hindu Law in matters of partition, succession etc. by Christians Converts from Hinduism, allegedly prevalent in those areas of Hassan District in Karnataka is constitutional or unconstitutional?

6. Does the application of the substantive provisions of the Notification referred to herein supra extend to the territories over which the Trial Court viz., the Hon'ble Civil Judge (now Civil Judge, Senior Division), Holenarasipura and Principal District Judge, Hassan District exercise jurisdiction?

Heard the Counsel for the respective parties.

4. Learned Counsel appearing for the appellants submitted that the 1868 Notification referred exempts all native Christians in the State of Coorg from the operation of Indian Succession Act, 1865 and cannot be extended to the Mysore Province as it was under the control of Maharaja of Mysore and it has formed part of the State and more particularly, it was argued that this area of Hassan, especially Channarayapatna from where the case arises for consideration was not part of Mysore Province at the relevant point of time. Further, by an Instrument of Transfer dated 1-3-1881 Mysore territory was handed over to the Maharaja of Mysore by the then British Government and such notification cannot be made applicable to the Hassan District.

It is further submitted that as per the Instrument of Transfer, laws which were in force should not be altered by the provincial territories without the previous consent of the Governor General in Council. As such, any such notification exempting the native Christians from the application of Indian Succession Act, 1865 cannot be extended to the area of Hassan District, which was subsequently annexed in the year 1886 and contended that prior to 1886 Hassan District formed part of British territory. No such promulgation is being made by the Governor General in Council extending such notification to Hassan District which was formed newly in the year 1886. Till 1833 East India Company had no power to make laws. Courts used to follow the Madras Regulations insofar as the Indian Christians are concerned and submitted that after the enactment of Indian Succession Act, 1925 which is applicable to Mysore State which was a Part 'B' State, the 1868 Notification was impliedly repealed since the same was inconsistent with the basics of the fundamental Act.

As per Sections 3 and 4-A of the General Clauses Act, British India refers to Part 'B' State as well. It is further submitted that the very notification negates the provisions of Articles 14 and 15 of the Constitution and such Notification is contrary to Article 13 of the Constitution of India. As such, such a notification is void and non est in the eye of law after the commencement of the Constitution. It was further submitted that as per the Indian Succession Act, the defendants is not entitled to any relief and the plaintiff is entitled for a declaration and injunction.

5. Per contra, learned Counsel appearing for the respondent submitted that as per Section 29(2) of the Indian Succession Act, 1925 and Section 24 of the General Clauses Act, 1897 there is a deemed extension of all regulations unless, by express terms, the same has been repealed and Section 3 of the 1925 Act has not expressly repealed the application of the notification, as such, there is a deemed extension and unless there is an express repeal, the old Hindu custom applies to the native Christians. In support of his argument, learned Counsel relied on several decisions which I shall refer to in the course of the order, if need be.

6. It is further argued by the learned Counsel for the respondent that Channarayapatna from where the parties hail was part of Hassan District which was part of Mysore Province and referring to the Gazetteer submitted that the 1868 Notification is still applicable to the State of Mysore.

7. According to the plaintiff, defendant is his only son and the plaintiff being the absolute owner of the suit lands as they are his self-acquisitions, he had given a share in the lands to an extent of 6 acres long back. It is his further case that the defendant got changed the khatha of the suit lands in his name, which was challenged by the plaintiff before the Assistant Commissioner, Hassan in R. Misc. No. 17 of 1986-87. The Assistant Commissioner has set aside the order passed by the Tahsildar, Channarayapatna in M.R. No. 8 of 1986-87 on 24-9-1986.

8. The suit schedule properties are, the lands bearing Survey No. 18/15A measuring 8 guntas, Survey No. 18/16A measuring 9.25 acres. Survey No. 18/4B measuring 9.02 acres; Survey No. 21/3P measuring 28 guntas; Survey No. 34 measuring 21 guntas; Survey No. 26/6 measuring 34 guntas; Survey No. 21/2A measuring 12 guntas; Survey No. 27/4 measuring 24 guntas; Survey No. 8/3 measuring 1.39 acres situate at M. Dasapura Village of Channarayapatna Taluk.

9. The Trial Court has raised seven issues and the issues as to whether the plaintiff has proved that the suit properties are his self-acquisitions and does he prove the partition between him and the defendant, were answered in the negative. Insofar as the issue whether the defendant proves that giving 6 acres of land to him was only a family arrangement for cultivating the lands, the same was also held in the negative. Another issue as to whether the plaintiff proves that he is in exclusive lawful possession of the suit properties as on the date of the suit, the same was also held in the negative. As such, the 5th issue whether there is alleged interference, was not considered as it did not survive.

Accordingly, it answered issues 6 and 7 holding that plaintiff is not entitled for declaration and injunction. All the substantial questions of law were raised as to the application of the Indian Succession Act, 1925 to the parties. According to the plaintiff, since they are native Christians they are governed by the Indian Succession Act, 1925. Whereas, according to the defendant, there was a Notification during the year 1868 insofar as Mysore Province exempting the native Christians who converted from Hinduism on the applicability of Indian Succession Act, 1865 and it prevailed even after the enactment of the Indian Succession Act, 1925. As such, the law applicable to the Christians of this part i.e., State of Mysore is as per local customs and Hindu Law and not the Indian Succession Act. It was also contended that the suit properties are not the self-acquisitions of the plaintiff, but they are the ancestral properties.

10. Admittedly, the parties are from Hassan District. Accordingly to the plaintiff, the exemption given in the Notification insofar as Coorg is concerned exempting the native Christians from following the Indian Succession Act is not applicable to the Mysore Province and it is further submitted that Hassan was not part of Mysore at the relevant point of time i.e., when the Notification was issued in the year 1868 in respect of Mysore Province exempting from the application of the Indian Succession Act, 1865 and no such material is produced to show that after Notification is issued, the prior consent of the Governor General is obtained to extend the same to the Hassan District which was later formed in the year 1886.

11. While dealing with the issue, as to the application of the Indian Succession Act, 1865, the Trial Court appears to have formed an opinion that the parties and their ancestors belong to old Mysore area. The Indian Succession Act came into force in the year 1865 which was enacted to amend and define the rules of law applicable to intestate and testamentary succession in British India and many of the provisions of that Act were inconsistent with the usage which are peculiar to Hindu Law. Section 832 of the 1865 Act gave power to the Governor General in Council to issue orders exempting from the operation of the whole or any part of that Act and such Notification was issued on 23-7-1868 and the Indian Succession Act of 1865 was exempted to the Province of Mysore by the State Notification as regards native Christians.

Since the ancestors of the parties belong to the old Mysore State to which the Indian Succession Act of 1865 did not apply, they were at liberty to follow the custom or usage with reference to the Law of Succession and Inheritance. Referring to the Division Bench decision of the Mysore High Court in Kiritappa v. Aralappa and Ors. Mysore High Court Reports Vol. XL, Pages 267 to 276, which dealt with the law governing Christian converts and also in relation to adoption and the right of an adopted son to a share in the estate of his adoptive father wherein this Court has held that 'the Institution of adoption is not in any way inconsistent with the tenets of Christian faith or with the principles of justice, equity and good conscience, as such, the presumption is that the Hindu Law is applicable to Hindu converts to Christianity'.

Further, in the said decision referring to Indian Succession Act, 1865 it is held that Indian Succession Act, 1925 which binds all the Christians residing in the British India does not apply to the Indian Christians residing in Mysore. It is held further that the very object of the enactment was to amend and define the rules of law applicable to intestates and testamentary succession in British India and several provisions of the Act are inconsistent with many of the usage which are peculiar to Hindu Law and certain observations made by the Privy Council in Abraham v. Abraham(1861-63)9 MIA 195 (PC): 1 WR 11 (PC) would no longer be applicable in British India as was pointed out in the case of Kamawati v. Digbijai. Singh. AIR 1922 PC 14 The position of Mysore is however different under Section 332 of the Act of 1865, the Governor General in India in Council has the power to issue orders exempting from the operation of the whole or any part of that Act, the members of any race or sect. 

Notification dated 23-7-1868 has been issued exempting from the operation of the Act all native Christians residing in the Mysore State. The position here is therefore very much like what it was before the Indian Succession Act was introduced in British India.

12. Further referring to the case of Abraham, in which it has been held that a Christian may renounce old law by which he was bound, as he renounced his old religion or if he thinks fit he may abide by the old law notwithstanding that he has renounced old religion.... The profession of Christianity releases the converts from the trammels of Hindu Law, yet it does not of necessity involve any change of rights or relations of the convert in matters with which Christianity has no concern, such as, his rights and interest in and his powers over property. The convert, though not bound as to such matters either by the Hindu Law, or by any other positive law, may be his course of conduct after his conversion have shown/done by what law he intended his right to be governed as to these matters.

13. The Trial Court has referred to the decision of the Madras High Court in Vythindasami Iyer v. Ponnuswami Nadan sic, wherein the Division Bench of the said Court has held that 'if the family for many years have professed the Roman Catholic faith, but, there is no evidence that in forsaking the Hindu religion, they also repudiated the Hindu Law of property, by which in the absence of evidence to the contrary they must be presumed to have been governed'.

14. It appears even in the case of Abraham, the Privy Council also was of the view that 'no doubt where a change of religion carries with it an obligation to submit to a peculiar form of law, such law is binding on the covert. In those parts of British India, for instance, where the provisions of Indian Succession Act, 1865 are applicable to native Christians, the members of that community were bound by such provisions and are not at liberty to adhere to Hindu Law of Succession. But, whereas, in the Mysore State, the new status carries with it no such obligation and the families are at liberty either to retain so much of its old law as is consistent with its change of status or to adopt the usages of any other class with which the new status allows to it to associate itself.

15. Referring to the above principles and holding that the plaintiff has not made out a case that he or his ancestors have given up Hindu Law relating to inheritance, or succession at any point of time and conversion to Christianity does not necessarily mean renunciation of Hindu Law in matters relating to rights and interest over the property and stating that there is no iota of evidence on record regarding the giving up of Hindu Law, it has opined that as per the evidence, the plaintiff's father had six sons and they divided the ancestral property equally when the plaintiff was alive and gave some portion to their mother for maintenance and the father was also given a property for his subsistence and, noting further that when their father was alive the plaintiff and his brothers lived together as joint family and all the properties were the joint family properties and the share given to the father was to be divided among all the members equally after his death. The plaintiff and his ancestors were following the Hindu Law relating to succession and matters of inheritance. Stating that the plaintiffs evidence indicates the existence of joint family, it has held that the parties though are converted Christians, they are governed by Hindu Law relating to properties.

16. According to the plaintiff all the suit properties were his self-acquisition and defendant cannot lay claim over the properties and it is also his case that an extent of 6 acres of land was given to the defendant who is his son. It is contended that Christians take the property as tenants in common and not as joint tenants and the acquisition by the plaintiff if any, us not for the benefit of others or for the joint family. However, this contention has been negated by the Trial Court; on the ground that the plaintiff and his brothers have divided when their father was alive, as such, the plaintiff got the properties in a partition and not by way of succession. Accordingly, the Trial Court has opined that the ruling relied upon by the learned Counsel for the plaintiff was not applicable to the case on hand.

17. The first substantial question of law raised refers to the extension of the notification dated 23-7-1868 exempting all native Christians in the State of Coorg from the operation of specified sections of Indian Succession Act, 1865 in exercise of the authority provided to the Governor General of India in Council as per Section 332 of the Indian Succession act, 1865 remains in force in full effect in view of Sections 3(1) and 3(2) of the Indian Succession Act, 1925.

18. Alter ascertaining, it is made clear as to the existence of similar notification being issued by the Governor General of India in Council so far as native Christians of Mysore are concerned. In view of the existence of a similar notification exempting the native Christians of Mysore Province as specified in Indian Succession Act, 1865, it has to be seen whether it would be applicable to Hassan and whether Hassan was part of Mysore Province when such a notification was enacted by the Governor General of India in Council. Admittedly, in the absence of any such provision by way of notification is made, no person following Christian religion could have followed the principles of Hindu Law in matter of succession in the year 1865 on the commencement of the Indian Succession Act, 1865.

 It is seen that there was a notification issued acting under Section 332 of the above said Act by the Governor General of India in Council by notification dated 23-7-1868 which was extended to the territory of Mysore thereby giving exemption to all native Christians in Mysore Territory from the operation of the Indian Succession Act, 1865 in the matters of testamentary and intestate succession. As such, it is the contention of the respondents herein that they are at liberty to follow the Hindu Law of inheritance and not the Indian Succession Act, 1865.

19. Both the Courts below holding that in view of the said notification, exemption is applicable to the territory of Hassan and that it is a part of Mysore Province have accepted the contention of the respondents and dismissed the suit.

20. Learned Counsel for the appellants tried to make out a case that during the relevant point of time i.e., when such a notification was issued exempting the application of the Indian Succession Act, 1865 acting under Section 332 by the Governor General of India in Council, Hassan District was not part of the Mysore Province and Hassan was included in the Mysore Province subsequently in the year 1886 and further, no such notification was issued extending the exemption to the newly annexed Province of Mysore as such, the parties are bound by the Indian Succession Act, 1865 and much less, after the enactment of Indian Succession Act, 1925 the earlier notification has became non est and the amended Act is uniformly applicable to all the notifications.

21. It is the contention of the respondents that the Indian Succession Act, 1925 is a purely consolidating Act. As per Section 24 of the General Clauses Act, when the earlier Act is repealed and the Act is re-enacted, any notification issued under the repealed Act shall continue in force and be deemed to have been made or issued under the provisions of the new Act unless there is an express provision in the new enactment repealing the same or else the notification is inconsistent with the new enactment or superseded by any notification issued under the provisions of the new Act. It is the case of the respondents that there is no inconsistency between the provisions of the earlier enactment and the 1925 Act and the same are in consonance with each other as the new Act is only a consolidating Act.

According to the respondents, Section 332 of the 1865 Act is reproduced in Section 3 of the 1925 Act. Section 3(3) provides for persons exempted under this section or exempted from the provisions of any of the provisions of Indian Succession Act, 1865 under Section 332 of that Act are referred to as 'exempted persons'. It is their case that as per Sub-section (1) of Section 3, the State Government has got the power to give exemption retrospectively from 16th March, 1865.

From a reading of Section 332 of 1865 Act and Section 3(3) of the 1925 Act it is manifest that the exemption as provided is retained even under the new enactment and as such, there is no inconsistency Further, no notification has been issued under the new Act repealing the earlier notifications issued under Section 332. As such, as per Section 24 of the General Clauses Act, the case in hand falls under the exempted category and notification of the year 1868 is still in force and applicable to the case on hand It is also the case of the respondents that Section 29(2) of the 1925 Act has to be read along with Section 3 and as such, the applicability of the Act to the whole of India is subject to the exemptions given under Section 3 although the earlier one was only applicable to British India.

Thus, according to the respondents, notification dated 23-7-1868 which was issued exempting the native Christians of Mysore is applicable to the case on hand and the said notification is still in force in view of the exemption provided under Section 3(3) of the 1925 Act and the earlier notification is not expressly repealed, rather, it is being continued under the exemption clause.

22. The parties hail from Channarayapatna Taluk which is part of Hassan District. By an instrument of transfer, the British Government had transferred the Province of Mysore i.e., Mysore territory to the Maharaja of Mysore on 1-3-1881 and Hassan is carved out in the year 1886 whereas, the notification issued exempting the native Christians of Province of Mysore from the 1865 Succession Act and to follow the native customs as per the notification is dated. 23-7-1868 issued by the Governor General of India in Council. According to the appellants, Hassan District which was carved out in the year 1886 became part of Mysore Province and earlier to that it was not a part of Mysore Province.

As such, the notification dated 23-7-1868 cannot be extended to the newly carved out and included territory in the year 1886 to the Province of Mysore, Since no further notification by the Governor General of India in Council has been issued, Hassan was never a part of Mysore Province as on the date of the issuance of the notification dated 23-7-1868. It is seen that, in the Karnataka State Gazette, Part I, at page 5, it is stated that the erstwhile State of Mysore came into being in 1799 AD after the fall of Tippu. In 1881, it consisted of seven districts only viz., Bangalore, Mysore, Kolar, Kadur, Tumkur, Chitradurga and Shimoga In 1886, Hassan was carved out as the eighth district.

23. As argued by the learned Counsel for the respondent and also as noted in the Mysore Gazette, that several administrative changes took place in the year 1882 and the four taluks of southern Hassan District namely, Arkalgud., Channarayapatna, Nagamangala and Attikuppe were added to Mysore District after the abolition of Hassan District and Hassan District was re-created in 1886 and Arkalgud and Channarayapatna Taluk were transferred to Hassan District while Nagamangala and Attikuppe remained in Mysore District. Learned Counsel tried to submit, while tracing the history of the then Mysore that, even earlier to 1799 this Hassan District was part of Mysore Province.

Learned Counsel having traced history of Mysore territory referring to the Mysore State Gazetteer tried to point out that in 1633 itself Mysore Rajas gained possession of Channarayapatna from the Palegar of Holenarasipur. But shortly afterwards, Shivappa Nayaka of Ikkeri occupied a part of Balum Province for some years. Later there was said to be a treaty concluded in 1694 between Mysore and Ikkeri, six nads or revenue circles of Manjarabad were ceded to the old Chiefs and the remainder of the Balam Province was divided between the two contending parties. From this time, the whole of Hassan District except Manjarabad, formed part of the Mysore territory.

This shows that as early as in 1694 itself, except Manjarabad whole of Hassan District formed part of Mysore Province which was later handed over to the Maharaja of Mysore by the then British Government under the Instrument of Transfer after the fall of Tippu in 1799. As such, Channarayapatna a part of Hassan District, was part of Mysore even before issuance of notification in the year 1868 regarding the native Christians of the Province of Mysore from following the principles and rules of succession as provided under the Indian Succession Act, 1865 and to follow old custom of following Hindu Law of Succession of those converted from Hinduism to Christianity.

24. Section 3(1) of the 1925 Act provides for issuance of any such notification in the Official Gazette either retrospectively from 16-3-1865 or prospectively, exempting from the operation of any .... provisions of the Act .... to whom the State Government may consider it impossible or inexpedient to apply such provisions or any of them mentioned in the order. Section 3(3) of the 1925 Act which is parallel to Section 332 of the 1865 Act refers to exempted persons. In view of Section 3(3), exemption provided under July 1868 notification in respect of rules of succession insofar as native Christians who were converted from Hinduism to Christianity, the rules of succession provided either under 1865 Act or 1925 Act cannot be made applicable to the category of persons i.e., persons covered under the notification as on the date of said notification who were all residing in the are of Province of Mysore as it then was.

25. In the case of Shrishailappa v. Commercial Tax Officer, Jamkhandi 1975(2) Kar. L.J. 190 this Court has held that 'the notification issued earlier by the State Government which was inconsistent with the legislative declaration cannot be held to prevail over the amending Act. Section 24 of the General Clauses Act would be of no avail to the petitioner because the said section can be pressed into service only when there is no inconsistency between the notification issued earlier and the subsequent legislative declaration'. In this regard, it is to be noted that earlier exemption was issued as per the notification which is shown to be not contrary to the provisions of the re-enacted Act of 1925, in view of Section 3(3) of the 1925 Act which reads:

Section 3. Power of State Government to exempt any race, sect or tribe in the State from the operation of Act.--

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(3) Persons exempted under this section or exempted under the operation of any of the provisions of the Indian Succession Act, 1865 under Section 332 of that Act are in this Act referred to as "exempted persons"

26. In view of the above, the ruling relied upon by the appellants' Counsel is of no assistance. Rather Section 24 of the General Clauses Act will come into the aid of the respondents in view of Section 3 of the 1925 Act.

27. While answering the substantial question of law raised, it has to be held that the notification dated 23-7-1868 exempted the native Christians of the then Province of Mysore from the applicability of the Indian Succession Act, 1865 and also in view of the provisions of Section 3(1), 3(2) and 3(3) of the Indian Succession Act, 1925 insofar as matter of succession are concerned. The Trial Court as well as the lower Appellate Court referring to the decisions which were rendered earlier under the 1865 Act and also based on such notification were of the view that the parties were exempted from the application of the provisions of the Indian Succession Act, 1925 in this regard.

28. The 3rd substantial question of law raised is - 'did the substantive provisions contained in the aforesaid notification constitute breach of Articles 14 and 15 of the Constitution of India and thus become unconstitutional by application of the doctrine of eclipse enshrined in Article 13(1) and 13(3) of the Constitution'. As per Article 13(1) of the Constitution, all laws in force in the territory of India immediately after the commencement of this Constitution insofar as they are inconsistent with the provision of Part III of the Constitution i.e., the fundamental rights, shall, to the extent of such inconsistency, be void. Having regard to the customs which prevailed in the then Province of Mysore, the Notification issued by the then Governor General in Council to allow and recognise the custom to be practiced and prevailed in the matter of succession which is even recognised under the 1925 Act by enacting a saving clause in Section 3(3) of the Act.

The continuation of such exemption as it was notified either cannot be said to be hit by the doctrine of eclipse under Article 13(1) of the Constitution or can it be treated as arbitrary and violative of Articles 14 and 15 of the Constitution and the same will withstand the test of reasonableness and much less such exemption is shown to be based on place of residence and customs which the parties intended to follow insofar as matter of succession.

29. It is apt to quote at this juncture, as is held in Abraham's case, by the Privy Council that 'upon the conversion of a Hindu to Christianity, the Hindu Law ceases to have any continuing obligatory force upon the convert. He may renounce the old law by which he was bound, as he has renounced his old religion or if he thinks fit, he may abide by old law notwithstanding he has renounced the old religion. It is further held that the profession of Christianity released the convert from the trammels of Hindu Law but, it does not of necessity involve any change of the rights or relations of the converts in matters with which Christianity has no concern, such as his right and interest in and his power over property'.

Evidently, in this background the July 1868 notification/exemption is issued insofar as native Christians of the then Province of Mysore from following the tenets of rules of succession under 1865 Act which is even being continued and recognised in the 1925 Act. I am of the view, in the above background, that the above notification will not be antithetic to the provisions of the Constitution of India and also not violative of the fundamental rights.

Although in Kamawati's case the ratio laid down in Abraham's case was held to be no longer good law after the enactment of the 1865 Act and it is held that a Hindu converted to Christianity has no right to claim that he is governed by Hindu Law of Inheritance, but necessarily as noted above, the notification issued by the Governor General in Council during July 1868 has been recognised in 1925 Act by a specific provision under Section 3(3) exempting the native Christians of the Province of Mysore as it stood then from the trammels of Rules of Succession of 1865 Act and 1925 Act.

30. In view of the above discussion, the appeal is dismissed. The judgment and decree passed by both the Courts below are confirmed. Parties to bear their own costs.

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