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TMI Blog2017 (6) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... rds inheritance and succession. 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. Neither was any specific plea made nor any issue 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 pleasur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in 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. 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non 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' is 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asciculus 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 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 contention, in our opinion, has no support of reason. The plaintiff is, no doubt, a Nun, but we find no statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 of a priest or nun to be enrolled as an Advocate is apposite to the context:- Prie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific plea made nor any issue 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 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 find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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