Kodikunnil Suresh @ J.Monian Vs N.S.Saji Kumar Etc.Etc.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 6391-6393 OF 2010

Kodikunnil Suresh @ J. Monian … Appellant

Versus

N.S. Saji Kumar, Etc. Etc. … Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal under Section 116A of the

Representation of the People Act, 1951 (for short ‘the Act’)

against the common order dated 26.07.2010 of the Kerala

High Court in Election Petition Nos. 3 of 2009, 7 of 2009

and 8 of 2009 declaring the election of the appellant to the

House of People from the Mavelikkara Parliamentary

Constituency reserved for the Scheduled Castes void under

Section 100 (1)(a) and (d) (i) of the Act.

2. The facts very briefly are that No.16 Mavelikkara

Parliamentary Constituency is reserved for the Scheduled

Castes. Section 4(a) of the Act provides that a person shall

not be qualified to be chosen to fill a seat in the House of

the People unless in the case of a seat reserved for the

Scheduled Castes in any State, he is a member of any of the

Scheduled Castes, whether of that State or of any other

State and is an elector for any Parliamentary Constituency.

For elections to the Mavelikkara reserved constituency in

the year 2009, the appellant filed his nominations before the

Returning Officer on 23.03.2009 declaring in the

nomination papers that he belongs to the Hindu Cheramar

Caste and filed alongwith the nomination papers a caste

certificate dated 12.03.2009 issued by the Tehsildar,

Nedumangad that the Caste Cheramar has been declared as

a Scheduled Caste in relation to the State of Kerala in Entry

54 in Part VIII of the Schedule to the Constitution

(Scheduled Castes) Order, 1950. Objections were filed

before the Returning Officer contending that the appellant

was not a member of the Scheduled Caste and instead he

was a Christian. The Returning Officer after examining the

nomination papers of the appellant rejected the objections

and accepted the nomination papers of the appellant under

2

Section 36 of the Act. Polling in the constituency took place

on 16.04.2009 and after counting, the result of the election

was declared on 16.05.2009. The appellant secured

3,97,211 votes and the appellant was declared elected by a

margin of 48,048 votes over the defeated candidate who

secured 3,49,163 votes.

3. The election of the appellant was challenged by two

voters of the Mavelikkara Parliamentary Constituency in

Election Petition Nos. 3 of 2009 and 8 of 2009 and by the

defeated candidate in Election Petition No. 7 of 2009. The

ground of challenge in Election Petition Nos. 3 of 2009 and

8 of 2009 was that the appellant was a Christian and under

the Constitution (Scheduled Castes) Order, 1950 only a

Hindu can be a Scheduled Caste and not being a Scheduled

Caste, he was not qualified to be chosen to fill a seat in the

House of the People under Section 4(a) of the Act and

accordingly his election was void under Section 100 (1) (a) of

the Act. In Election Petition No. 7 of 2009 filed by the

defeated candidate, besides the aforesaid grounds, an

additional ground was taken that the nomination of the

appellant was improperly accepted and that the election of

3

the appellant was void under Section 100(1)(d)(i) of the Act,

inasmuch as the result of the election so far as it concerned

the returned candidate had been materially affected by the

improper acceptance of the nomination of the appellant.

The appellant pleaded in his written statements filed in the

three cases that his father and mother were both Hindus,

but due to their poverty they had availed various reliefs

from Christian Missionaries and that is why his father was

known as Joseph. His further case was that in 1978 he had

undergone an expiatory ceremony and had reconverted

himself to Hinduism and had also been accepted as a

member of the Cheramar caste and he was therefore

qualified to contest the election from the Mavelikkara

Parliamentary Constituency reserved for Scheduled Castes.

The High Court framed issues in the three cases, examined

witnesses and admitted documents and on consideration of

the oral testimony and documentary evidence declared the

election of the appellant void under Sections 100 (1)(a) and

100 (1)(d)(i) of the Act by the impugned order.

4. The findings recorded by the High Court in the

impugned order are that the appellant was born to

4

Christian parents and due to conversion to Christianity the

parents of the appellant had lost their caste because

Christianity did not admit any differentiation on the basis of

castes. The High Court further held that when the

appellant undertook the expiatory ceremony in 1978 to

convert himself to Hinduism, he had not attained the age of

discretion as he was under 18 years of age. The High Court,

however, held that though the appellant married a Hindu

and he professed Hindu religion from the time of his

admission in the law college at Thiruvananthapuram, there

was no acceptable evidence to prove that the appellant was

accepted as a member of the Cheramar Caste after his re-

conversion to Hinduism. Relying on the decisions of this

Court that without acceptance by the Scheduled Caste

community after re-conversion, the reconvert does not get

back to his original caste, held that the appellant after his

re-conversion did not become a member of the Cheramar

Caste and hence he was not qualified to contest from the

Mavelikkara reserved constituency and his nomination was

improperly accepted and his election was void.

5

5. Mr. P. P. Rao, learned counsel for the appellant,

submitted that although the appellant pleaded in his

written statements and led evidence to show that his father

Kunjan and his mother Thankamma were Hindus, the High

Court unfortunately has observed in the impugned order

that the fact that his father was converted to Christian

religion was not seriously disputed at the time of recording

the evidence. He submitted that in his written statements

filed in the three cases the appellant has denied that his

parents were Christian and has explained that his father

came to be called as ‘Joseph’ by the Christian Missionaries

to whom his father went for help. He submitted that the

name of the mother of the appellant was Thankamma,

which is not a Christian name. The case of the appellant

was that his parents continued to profess and practice

Hinduism. He submitted that in Ajit Datt v Ethel Walters &

Ors. [AIR 2001 Allahabad 109] the Allahabad High Court

has taken the view that without baptism there can be no

conversion. He submitted that no documentary evidence

had been produced by the respondents to establish that the

father of the appellant was baptised and inducted into the

6

Christian religion. He argued that no clergyman or pastor

or Christian priest or any person from a Church has been

examined to establish that the father of the appellant was

converted to Christian religion by baptism. He referred to

the evidence of PW-1 N.S. Saji Kumar, the petitioner in

Election Petition No.3 of 2009, to show that he had no

knowledge about the family of the appellant at all and had

not made any inquiry to find out the religion of the father of

the appellant. He also referred to the evidence of PW-2 P.K.

Padmakaran, the petitioner in Election Petition No.8 of

2009, to show that he had not gone to Church to find out

whether the father of the appellant was Christian and all

that he has said in his evidence is that the appellant was

born as a Christian. He submitted that similarly PW-3 K.

Prakash Babu, the Chief Election Agent of the defeated

candidate, has merely stated in his evidence that when the

appellant was born, his father was a Christian. He

submitted that the entire case of the three Election

Petitioners appears to be based on the entries in the School

Admission Register (Exhibit P-9) in which the religion of the

appellant is mentioned as Christian, but the said entries

7

were made on the basis of the information furnished by

Thomas, who did not really know that the religion of the

father of the appellant was Hinduism and not Christianity.

He cited M. Chandra v. M. Thangamuthu [2010 (9) SCALE

145] in which this Court has held that the burden of

proving that the returned candidate was a Christian and did

not belong to a Scheduled Caste as per the Presidential

Order is on the election petitioner. He also cited an

unreported decision of this Court delivered on 30.04.2009

in Ranjana v. State of Maharashtra by which the case was

remanded to the High Court as there was no evidence to

establish that the parents of the returned candidate had

converted to Christianity before the returned candidate was

born.

6. Mr. K. K. Venugopal, learned counsel appearing for the

respondent in Civil Appeal No.6392 of 2010, on the other

hand, submitted that there was sufficient evidence before

the High Court to establish that the parents of the appellant

were Christian. In this connection, he referred to Exhibits

P4, P9 and P10 to show that the religion of the appellant

was Christianity and not Hinduism as per his school

8

records and School Leaving Certificate. He submitted that

the documents Exhibits P4, P9 and P10 once admitted and

marked as Exhibits, the contents of these Exhibits are also

admitted in evidence. He cited the decision of this Court in

P.C. Purushotham Reddiar v. S. Perumal [(1972) 1 SCC 9] for

the proposition that once a document is properly admitted,

the contents of that document are also admitted in evidence

though those contents may not be conclusive evidence. Mr.

Venugopal submitted that if the case of the appellant was

that the entry in the School Admission Register (Exhibit P-9)

relating to the religion of the appellant was made by Thomas

who did not actually know the religion of the father of the

appellant, the appellant should have examined Thomas in

support of his case, but the appellant has not examined

Thomas in course of trial. He submitted that finding of the

High Court that the appellant was born to Christian parents

was, therefore, correct. Mr. V. Giri, learned counsel for the

respondent in Civil Appeal No.6391 of 2010, and Mr. C.

Rajendran, learned counsel for the respondent in Civil

Appeal No.6393 of 2010, adopted the arguments of Mr.

Venugopal.

9

7. We may now look at the evidence on record. Exhibit P-

9 is part of the School Admission Register of the

Government Higher Secondary School and has been proved

through its Head Mistress. Exhibit P-9 indicates that the

name of the father of the appellant was ‘Joseph’ which was

a Christian name and the religion of the appellant was

Christian and he was admitted to the School on 07.06.1967.

The School had standards I to VII and the appellant left the

School on 05.05.1975. Exhibit P-10 is part of the

Admission Register of Laxmi Vilasom High School,

Pothencode, proved through its Head Master (PW-6).

Exhibit P-10 shows that the appellant was admitted to this

School on 05.05.1975 into Standard VIII and his name was

entered as Monian J. (Joseph) and mother’s name was

shown as Thakkamma T. and religion of the appellant was

shown as Christian. The appellant left the School on

28.02.1978. Exhibit P-4 is his School Leaving Certificate

issued by the Head Master, Laxmi Vilasom High School,

Pothencode, in which the name of the appellant has been

shown as Monian J. (Joseph) and his religion has been

shown as Christian and the mother of the appellant is

10

shown as Thakkamma T. This School Leaving Certificate

was issued after the appellant completed his Standard X in

the School in 1977-78. This School Leaving Certificate has

been produced by PW-1, N.S. Saji Kumar, and is the same

as Exhibit R-2 produced by the appellant. The appellant in

his evidence (affidavit filed before the High Court in Election

Petition No.7 of 2009) has stated in para 5 that in Exhibits

P-4, P-9 and P-10 and Exhibit R-2, his religion is shown as

Christian, but he did not profess Christian religion at any

point of time. In para 8 of the affidavit, he has stated that

in Exhibit P9 his father’s name is Joseph and his father was

called ‘Joseph’ by Christian Missionaries because his father

was visiting Christian Missionaries to avail help and his

father was actually Kunjan and continued to be a Hindu

and his alleged conversion was only nominal. The appellant

has explained in his cross-examination that when he was

admitted in the School for the first time his father had gone

for work and his friend Thomas had taken him to School

and as his father was called by the Missionaries as ‘Joseph’,

his name was shown by Thomas as Joseph. The appellant

has stated in his affidavit that he decided to get himself

11

converted to Hinduism in 1978 and got himself converted as

a Hindu on 25.05.1978 and the Kerala Hindu Mission has

issued a certificate (Exhibit R-10) in proof of such conversion

and his name has been shown therein as Suresh J.

8. Hence, this Court has to decide which of the two

versions is proved: whether the appellant was born to

Christian parents and was Christian during his childhood

or whether he was born to Hindu parents and was Hindu

during his childhood. Sub-section (2) of Section 87 of the

Act states that the provisions of the Indian Evidence Act,

1872 shall, subject to the provisions of this Act, be deemed

to apply in all respects to the trial of an election petition.

Thus, we have to be guided by the relevant provisions of the

Indian Evidence Act to decide an issue of fact arising in an

election trial under the Act. Section 3 of the Indian

Evidence Act states that a fact is said to be proved when,

after considering the matters before it, the Court either

believes it to exist, or considers its existence so probable

that a prudent man ought, under the circumstances of the

particular case, to act upon the supposition that it exists.

Section 35 of the Indian Evidence Act states that an entry in

12

any public or other official book, register or record, stating a

fact in issue or relevant fact, and made by a public servant

in the discharge of his official duty, or by any other person

in performance of a duty specially enjoined by the law of the

country in which such book, register or record is kept, is

itself a relevant fact. Relying on Section 35 of the Indian

Evidence Act, this Court has held in Birad Mall Singhvi v.

Anand Purohit [1988 (supp.) SCC 604] that the entry

contained in the Admission Form or in the Scholar’s

Register must be shown to be made on the basis of

information given by the parents or a person having special

knowledge about the date of birth of the person concerned

and if the entry is made on the basis of the information

given by a stranger or by someone else who had no special

means of knowledge of the entry, such an entry will have no

evidentiary value. In the present case, on the other hand,

we are called upon to decide not the date of birth but the

religion of a candidate in an election. In Desh Raj v. Bodh

Raj [(2008) 2 SCC 186] where the caste of the candidate in

an election was in issue, this Court held that the residents

of a village have more familiarity with the ‘caste’ of a co-

13

villager than the date of birth of the co-villager and relied

upon the evidence of the co-villagers to record a finding on

the caste of the candidate. It can similarly be said that the

residents of a village have familiarity with the religion of the

co-villagers and the information furnished by them have

probative value and can be considered by the Court.

9. Thomas, who was a friend of the father of the

appellant, obviously must be familiar with the religion of the

father of the appellant as well as of the appellant during his

childhood. The entry in Ext. P-9 which is part of the School

Admission Register of the Government Higher Secondary

School with regard to the Christian name of the father of the

appellant and the Christian religion of the appellant had

been admittedly made on the basis of the information of

Thomas. If the appellant’s case is that Thomas had no

knowledge of the religion of the appellant and his father, he

should have examined Thomas as a witness or should have

explained why he was not examined. The entry in Ext. P-9

regarding the religion of the appellant having been made on

the information of Thomas in 1967 during the childhood of

the appellant several decades before the appellant contested

14

the election must be taken to be a very relevant

circumstance of great probative value for coming to the

conclusion that the appellant was a Christian during his

childhood. The entries in Ext. P-10 which is part of the

Laxmi Vilasom High School, Pothencode, have been made in

1975 on the basis of the transfer certificate obtained from

his previous school and these also indicate the religion of

the appellant as Christian. The entry relating to the religion

of the appellant could have been corrected by the mother of

the appellant who has been shown in Ext.P-10 as his parent

if the entry was not correct. The entries in the School

Leaving Certificate (Exhibit P-4) issued in 1978 are on the

basis of information in Exhibit P-10 and these also indicate

that the appellant was a Christian. This entry relating to

the religion of the appellant could also have been corrected

by his mother in 1978 if his religion was not Christian. In

Exhibit R-10, a certificate issued by the Kerala Hindu

Mission on 25.05.1978 with regard to the conversion of the

appellant to Hinduism, moreover, the appellant has been

described as a Cheramar Christian upto the age of 16 years.

If he was not a Christian till the age of 16 years, where was

15

the need of his converting to Hindu religion in 1978? On

consideration of all these facts and circumstances which

have come into evidence, the High Court, in our considered

opinion, was right in coming to the conclusion that the fact

that the appellant was born to Christian parents has not

been seriously disputed by the appellant. The decisions of

this Court in M. Chandra v. M. Thangamuthu (supra) and in

Ranjana v. State of Maharashtra (supra) cited by Mr. Rao

have no application to the facts of the present case where

the evidence clearly proves that the appellant was born to

Christian parents and that the appellant was a Christian

during his childhood upto the age of 16 years.

10. Mr. Rao next contended that the finding of the High

Court that when the appellant undertook the expiatory

ceremony in 1978 to reconvert himself to Hinduism, he had

not attained the age of discretion as he was under 18 years

of age is not correct. He relied on Section 2(o) of the

Children Act, 1960 to submit that a boy who is 16 years is

no longer a child. He relied on the decision of the Madras

High Court in Aravamudha Iyenger v. Ramaswami Bhattar

& Anr. [AIR 1952 Madras 245] wherein it has been held that

16

under the Hindu Law minority comes to an end on the

completion of the 16th year. He submitted that this Court

has held in Kailash Sonkar v. Smt. Maya Devi [(1984) 2 SCC

91] that a member of the Scheduled Caste, who is converted

into Christianity and after she attains the age of discretion,

can decide of her own volition to re-embrace Hinduism. He

cited the decision of this Court in S. Anbalagan v. B.

Devarajan & Ors. [(1984) 2 SCC 112] in which this Court

observed that the precedents, particularly those from South

India, clearly establish that no particular ceremony is

prescribed for re-conversion to Hinduism of a person who

had earlier embraced another religion and unless the

practice of the caste makes it necessary, no expiatory rites

need be performed. He submitted that the appellant was

more than 16 years of age when he undertook Shudhi

Ceremony in 1978 for reconversion and it will be clear from

Ext. R-10, the certificate issued by the Kerala Hindu

Mission on 25.05.1978, and Ext. R-9, the notification issued

in the Kerala Gazette on 21.11.1978 that he reconverted to

Hinduism in 1978. He argued that the evidence of

appellant before the High Court and the evidence of RW-4

17

would show that the appellant had in fact abjured the

Christian religion and was professing the Hindu religion and

his marriage was performed following the ceremonies of

Hindu religion with a Hindu named Bindu. He submitted

that in the Admission Register of the Law College,

Thiruvananthapuram (Ext. R-6) the religion of the appellant

has been shown to be Hindu religion and the date of

admission of the appellant is shown as 09.10.1984. He

submitted that after considering such evidence, the High

Court has in fact held that the appellant has been

professing Hinduism at least from the date of his admission

to the Law College, Thiruvananthapuram.

11. In reply, Mr. Venugopal relying on this Court’s

decision in S. Nazeer Ahmed v. State Bank of Mysore & Ors.

[(2007) 11 SCC 75] submitted that the respondents before

this Court are entitled to support the impugned judgment of

the High Court by challenging any finding that might have

been rendered by the High Court against the respondents in

the impugned judgment. He submitted that the

respondents are therefore entitled to challenge the finding of

the High Court in the impugned judgment that the

18

appellant had been professing Hinduism at least from the

date of admission in the law college in 1978. He vehemently

argued that the appellant has not pleaded in his written

statements filed before the High Court that he was a

Christian during his childhood and he converted himself to

Hinduism on attaining majority and his plea in the written

statements was that his parents were Hindu and that he

was a Hindu even during his childhood and therefore he

cannot be allowed to contend that his parents were

Christian and during his childhood he was a Christian and

on attaining majority he re-converted himself into Hinduism

by abjuring a Christian religion. He submitted that in

Perumal Nadar (dead) by LRs. v. Ponnuswami [1970 (1) SCC

605] this Court has held that a mere theoretical allegiance

to the Hindu faith by a person born in another faith does

not convert him into a Hindu, nor is a bare declaration that

he is a Hindu sufficient to convert him to Hinduism but a

bona fide intention to be converted to the Hindu faith,

accompanied by conduct unequivocally expressing that

intention may be sufficient evidence of conversion and no

formal ceremony of purification or expiation is necessary to

19

effectuate conversion. He submitted that in Kailash Sonkar

v. Smt. Maya Devi (supra) this Court has held that the main

test to determine whether there has been reconversion is

that there should be a genuine intention of the reconvert to

abjure his new religion and completely dissociate himself

from it and reconversion should not be only a ruse or a

pretext or a cover to gain mundane worldly benefits. He

argued that in the facts of the present case, no evidence has

been adduced to show that the appellant abjured Christian

religion and reconverted himself into Hindu and the

evidence only shows that the appellant went through a

formal reconversion to Hindu religion only with a view to

avail the benefits of reservation. Mr. Giri and Mr. Rajendran

adopted these contentions of Mr. Venugopal.

12. We have considered the submissions of the learned

counsel for the parties and we have found that in Kailash

Sonkar v. Smt. Maya Devi (supra) this Court has held that

even where a person has been a Christian during his

childhood, after he attains the age of discretion, he may

decide of his own volition to re-embrace Hinduism and the

test in such a case would be that such person had a

20

genuine intention of reconverting to Hinduism and to abjure

Christianity and completely dissociate himself from it. In

the aforesaid judgment this Court has not specifically held

as to what would be the age of discretion of a person willing

to reconvert himself to Hinduism. In Aravamudha Iyenger

v. Ramaswami Bhattar & Anr. (supra) the Madras High

Court has taken a view that minority as per Hindu law

comes to an end on completion of 16 years of age and this

rule applies to males and females. This view, however, was

expressed by the Madras High Court in the context of the

Hindu Law relating to adoption and not in the context of

reconversion and therefore does not apply to the facts of

this case. In our considered opinion, it is on the facts of

each case that the Court has to decide whether the child

had attained sufficient maturity to understand the religious

significance and the social consequences of this decision to

reconvert to the Hindu religion. To quote Vivian Bose, J.

from his judgment delivered for the Court in Chatturbhuj

Vithaldas Jasani v. Moreshwar Parashram & Ors. (1954 SCR

817) at page 837 cited by Mr. Giri:

“What we have to determine are the social and political consequences of such conversions and that,

21

we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.”

13. We find that the appellant has pleaded in his

written statements that in May 1978 he underwent

ceremonies and he was given a Shudhi Certificate by the

Kerala Hindu Mission and he got rid of Christianity by

reconverting to Hinduism. Mr. Venugopal is thus not right

in his submission that the appellant has not taken a plea of

reconversion from Christianity to Hinduism in his written

statements. The appellant has stated in his evidence

(affidavit before the High Court) that he decided to get

himself converted to Hinduism in the year 1978 and

accordingly on 25.05.1978, he approached the Kerala Hindu

Mission and reconverted to Hinduism and changed his

name as Suresh J. and published the fact of his conversion

into Hinduism in the notification dated 21.11.1978 of the

Kerala Gazette. The notification dated 21.11.1978 has been

produced by him as Ext. R-9 and Certificate No.107365

dated 25.05.1978 relating to the conversion of the appellant

issued by the Kerala Hindu Mission has been produced

before the High Court and marked as Ext. R-10. The

22

President of the Kerala Hindu Mission (RW-3) has been

examined before the High Court and he has said that Ext.

R-10 was issued by the Kerala Hindu Mission and its

counterfoil receipt is in the receipt book produced by him.

RW-3 has identified the signature of the Secretary of the

Kerala Hindu Mission, Mr. Sudhakaran, in Ext. R-10. RW-3

has also stated before the Court that a person to be

converted must first go to Hindu temple and perform the

ceremonies and thereafter has to appear before the Kerala

Hindu Mission alongwith receipt and the Kerala Hindu

Mission confirms the performance of ceremonies from the

temple over phone and then issues a conversion certificate.

RW-3 has also stated that before issuing a certificate, the

Kerala Hindu Mission ascertains whether the person to be

converted is willing to be converted and is having belief in

Hinduism and only thereafter permits the conversion. The

evidence of the appellant (RW-1), President of the Kerala

Hindu Mission (RW-3) and the Certificate issued by the

Kerala Hindu Mission on 25.05.1978 (Ext. R-10) clearly

establish that the appellant had on his own volition decided

to reconvert to Hinduism. We also find that Ext. R-10 was

23

followed by the Gazette Notification (Ext. R-9). These two

documents are clear proof of the declaration of the intention

of the appellant to reconvert himself to Hinduism from

Christianity. This declaration of intention of the appellant

has also been accompanied by conduct unequivocally

expressing that the appellant has in fact reconverted

himself to Hinduism. The appellant has produced before

the High Court a certificate of marriage issued under the

Kerala Registration of Marriages (Common) Rules, 2008,

which is marked as Ext. R-14 and in Ext. R-14, the date of

marriage of the appellant is shown as 30.06.1994 and the

name of the appellant is shown as Kodikunnil Suresh and

the wife of the appellant is shown as Bindu Sekhar. The

appellant has stated in his affidavit before the High Court

that Bindu is a member of Scheduled Caste and is a Hindu

and that during the marriage there was tying of Tahali and

that he garlanded the bride in the marriage ceremony and

his wife also garlanded him. He has also stated that there

was exchange of rings and he gave pudava to her and the

form of the marriage was that of the Cheramar community.

He has further stated in the affidavit that he worshipped

24

Dharma Sastha in Sabarimala and that he also goes for

worship to Pazhavangadi Ganapathi Temple and he has two

children, elder one is named Aravind Suresh and younger

one is named Gayathri Suresh and that Ezhuthiniruthu of

the elder and the younger one took place at Mookambika

Temple. RW-4, who is a voter of Adoor Parliamentary

Constituency and who had been the Head Master of the

Kulthupuzha Government High School and the Deputy

Director of Education, Kollam, has been examined before

the High Court and he has stated that he was invited for the

marriage of the appellant at the Subramaniam Hall of

Trivandrum Club and the marriage was performed following

the ceremonies of Hindu religion and after lighting the lamp

in front of Nirapara, the bride and the bridegroom were

made to sit there and the marriage was performed under the

guidance of Sri. Krishnan Nair of Kottarakkara and that the

appellant had tied the Thali and the bride and bridegroom

exchanged garlands. Nothing also has been brought out in

the cross-examination of either the appellant or RW-4 to

disbelieve their evidence. Nothing has been brought out in

the cross-examination of the appellant for the Court not to

25

rely on his evidence that he has been visiting the temples

for worship. On a consideration of the evidence led before

the High Court, we are thus of the opinion that the

appellant had not only unequivocally expressed the

intention of reconverting to Hinduism in 1978, but also

conducted himself since 1978 in a manner true to the faith

of Hindu religion by marrying a Hindu in accordance with

the ceremonies of the Hindu religion and had been visiting

Hindu temples for worship of different idols and had in fact

abjured the Christian religion. In other words, the appellant

had reconverted to Hinduism in 1978 after fully realizing

the religious significance and social consequences of his

decision to reconvert to Hinduism. The High Court,

therefore, was not right in holding that the conversion of the

appellant under Ext. R-9 and R-10 at the age of 16 years

was not a valid conversion to Hinduism. In fact, the High

Court has realized the difficulty in the aforesaid finding and

has at the same time rendered a contradictory finding that

the respondent has been professing Hindu religion at least

from the time of his admission to the law college,

Thiruvananthpuram.

26

14. Mr. Rao finally challenged the findings of the High

Court that there was no acceptable evidence to prove that

the appellant was accepted as a member of the Cheramar

caste or the Pulayan caste after his reconversion to

Hinduism. He submitted that the appellant had himself

stated on oath before the High Court that he belongs to

Cheramar caste and that the form of his marriage with

Bindu was the one to which the Cheramar community

adheres. He submitted that the Kerala Cheramar Sangham

had issued a certificate dated 25.10.1979 produced before

the High Court as Exhibit R-17 which would show that the

appellant was accepted and taken into the fold of Hindu

Cheramar community by its members. He referred to the

evidence of RW-7, the Ex-Secretary of Kerala Cheramar

Sangham, who has identified the signature of Sri

Rajaretnam the President of the Kerala Cheramar Sangham

in Exhibit R-17. He submitted that in Kerala the Cheramar

caste and the Pulayan caste are actually one and the same

caste. He referred to the evidence of RW-5, the General

Secretary of Kerala Pulayan Mahasabha, that the appellant

participated in a rally of Kerala Pulayan Mahasabha at

27

Eranakulam in February, 2008. He submitted that the

Returning Officer in his proceedings dated 31.03.2009 has

considered the caste certificate dated 12.03.2009 issued by

the Tehsildar, Nedumangad, certifying that the appellant

belongs to the Hindu Cheramar caste and has accepted the

declaration of the appellant in the nomination papers that

he belongs to the Cheramar caste. The certificate issued by

the Tehsildar, Nedumangad, has also been exhibited as

Exhibit P-2. He also relied on the findings of PW-8,

Tehsildar, Kotarakkara that persons, who are known as

Cheramar in Kollam, are known as Pulayan in Kotrakkara.

He argued that the appellant has been elected from the

Adoor reserved constituency in the years 1989, 1991, 1996

and 1999 and this shows that he has been accepted as a

member of the Scheduled Caste by the voters of the

reserved constituency. He cited the decision of this Court in

S. Anbalagan v. B. Devarajan & Ors. (supra) and Kailash

Sonkar v. Smt. Maya Devi (supra) wherein the circumstance

that the voters of the Rasipuram Parliamentary

Constituency reserved for the Scheduled Castes elected a

candidate to the Lok Sabha has been treated as an

28

outstanding circumstance to prove acceptance of that

candidate by the Scheduled Caste community. He

submitted that the High Court was, therefore, not at all

right in recording the finding that the appellant who was

professing Hindu religion had not been accepted by the

members of the Cheramar caste or the Pulayan caste.

15. In reply, Mr. Venugopal submitted that the fact that

the appellant was elected from a reserved constituency in

the earlier elections cannot prevent the disqualification from

being established in a subsequent election as each election

results in a fresh cause of action. He cited the decisions of

this Court in C.M. Arumugam v. S. Rajgopal and others

[(1976) 1 SCC 863] and Satrucharla Vijaya Rama Raju v.

Nimmaka Jaya Raju and others [(2006) 1 SCC 212] in which

it has been held that every election furnishes a fresh cause

of action for a challenge to that election and adjudication on

a prior election petition cannot be conclusive in a

subsequent proceeding. According to him, therefore, the

fact that the appellant on five earlier elections had been

elected from a constituency reserved for Scheduled Caste is

not a bar to the challenge to his election in 2009 from a

29

constituency reserved for Scheduled Caste on the ground

that he was not a member of the Scheduled Castes. He

submitted that in C.M. Arumugam v. S. Rajgopal and others

(supra) this Court considered whether in fact S. Rajgopal

was accepted as a member of Adi Dravida caste after his

reconversion to Hinduism and after considering the various

circumstances detailed in para 18 of the judgment as

reported in the SCC came to the conclusion that after his

reconversion to Hinduism, S. Rajgopal was recognized and

accepted as a member of Adi Dravida caste by the other

members of that community. He vehemently argued that in

the facts of the present case there is no circumstance to

show that the appellant, if at all has been reconverted to

Hinduism, was accepted by the Cheramar caste.

16. Mr. Giri, learned counsel for respondent in Civil

Appeal No.6391 of 2010, adopted the arguments of Mr.

Venugopal and further submitted that in the Constitution

(Scheduled Castes Order, 1950, Part VIII) relating to State of

Kerala, in Entry 54, Pulayan and Cheramar castes have

been shown as two separate castes. He submitted that

Pulayan and Cheramar castes are thus two separate and

30

distinct castes and onus is on the appellant to show that

after his reconversion he was accepted by either the

Pulayan caste or the Cheramar caste. He argued that the

pleadings of the appellant and the evidence produced by

him would show that the appellant was not clear as to

which of the two castes he was accepted. He cited the

decision in S. Rajagopal v. C.M. Armugam & Ors. [1969 (1)

SCR 254] in which the law relating to acceptance of a

person by members of caste to which the appellant

originally belonged after his reconversion to Hinduism has

been laid down.

17. Mr. C. Rajendran, learned counsel for the

respondent in Civil Appeal No.6393 of 2010, relied on the

decisions of this Court in S. Rajagopal v. C.M. Armugam &

Ors. (supra) cited by Mr. Giri and C.M. Arumugam v. S.

Rajgopal & Ors. (supra) cited by Mr. Venugopal and

submitted that the appellant has not been able to prove the

kind of circumstances mentioned in the aforesaid decisions

to show that he had been accepted into the fold of Cheramar

caste after his reconversion to Hinduism.

31

18. We have perused the decisions of this Court cited by

the learned counsel for the parties on the acceptance of the

reconvert by the members of the original caste of the

reconvert. In S. Rajagopal v. C.M. Armugam & Ors. (supra)

this Court agreed with the High Court that Rajagopal, on

conversion to Christianity, ceased to belong to Adi Dravida

caste but held that if the members of the caste accept the

reconversion of a person as a member of their caste, it

should be held that he does become the member of that

case, even though he may have lost membership of that

caste on conversion to another religion. In the aforesaid

decision, this Court, however, held that Rajgopal though

married to a member of the Adi Dravida caste, his marriage

was not performed according to the rites observed by

members of that caste and the marriage not being according

to the system prevalent in the caste itself, that marriage

cannot therefore be proof of admission of Rajgopal in the

caste by members of the caste in general. This Court

further found in the aforesaid case that no other evidence

was given to show that at any subsequent stage any step

was taken by the members of the caste indicating that

32

Rajgopal was being accepted as a member of that caste. In

C.M. Arumugam v. S. Rajgopal & Ors. (supra), this Court

noted that in its earlier decision in S. Rajagopal v. C.M.

Armugam and others (supra) Rajgopal had not produced

evidence to show that after his reconversion to Hinduism,

any step had been taken by the members of Adi Dravida

caste indicating that he was being accepted as a member of

that caste. This Court, however, found in this later case of

C.M. Arumugam v. S. Rajgopal & Ors. (supra) that there were

several circumstances to show that Rajgopal was accepted

as Adi Dravida Hindu and these circumstances were: he

had been invited to lay the foundation stone for the

construction of a new wall of the temple at Jambakullam,

which was essentially a temple of Adi Dravida Hindus; he

was requested to participate in Margazhi Thiruppavai

celebration at the Kannabhiran temple, which was also a

temple essentially managed by the Adi Dravida Hindus; he

was invited to preside at the Adi Krittikai festival at

Mariamman temple where the devotees are Adi Dravidas or

to start the procession of the deity at such festival; the

children of Rajgopal were registered in the school as Adi

33

Dravida Hindus and even he himself issued a certificate

stating that his son was a Scheduled Caste Adi Dravida

Hindu; he participated in the All India Scheduled Castes

Conference attended largely by Adi Dravida Hindus.

Considering all these circumstances, this Court held that

Rajgopal after his reconversion to Hinduism was recognized

and accepted as a member of Adi Dravida caste by the other

members of that caste.

19. We further find that in Kailash Sonkar v. Smt. Maya

Devi (supra), this Court observed that a dominant factor to

determine the revival of the caste of a convert from

Christianity to his old religion would be that in cases of

election to the State Assemblies or the Parliament where

under the Presidential Order a particular constituency is

reserved for a member of the scheduled caste or tribe and

the electorate gives a majority verdict in his favour, then

this would be doubtless proof positive of the fact that his

community has accepted him back to his old fold and this

would result in a revival of the original caste to which the

candidate belonged. Similarly, in S. Anbalagan v. B.

Devarajan & Ors. (supra) this Court observed that the fact

34

that the voters of the Rasipuram Parliamentary

Constituency reserved for the Scheduled Castes accepted

his candidature for the reserved seat and elected him to the

Lok Sabha twice was an outstanding circumstance to show

that he belongs to Adi Dravida caste.

20. In the light of the aforesaid decisions of this Court,

we may now examine the facts of the present case. The

father of the appellant, it is not disputed, originally was a

member of the Cheramar caste which was admittedly a

Scheduled Caste in the State of Kerala. On conversion to

Christianity, the father of the appellant had ceased to be a

member of the Cheramar caste. This is because on

conversion to Christianity, a person ceases to belong to his

original caste as has been held by this Court in S. Rajagopal

v. C.M. Armugam and others (supra). We have already held

that in 1978 the appellant reconverted into Hinduism and

continued to be a Hindu thereafter. The appellant has

stated in para 13 of his affidavit (examination-in-chief)

before the High Court that in 1979 he was actively working

for the upliftment of the Cheramar community and the

Kerala Cheramar Sangham issued a certificate dated

35

25.10.1979 produced and marked before the High Court as

Exhibit R-17. This certificate has been signed by S.

Rajaretnam, the then President of the Kerala Cheramar

Sangham, and it states that being a descendant of

Scheduled Caste convert and by the conversion the

appellant is accepted and admitted into the fold of Hindu

Cheramar Community by its members who are Cheramar

Hindus and by this fact has become a member of Cheramar

Community which is recognized as a Scheduled Caste. This

certificate dated 25.10.1979 has been issued ten years prior

to 1989 when the appellant for the first time contested from

the Adoor Parliamentary Constituency reserved for the

Scheduled Caste. In the years 1989, 1991, 1996 and 1999,

the appellant contested and got elected from the Adoor

Parliamentary Constituency reserved for Scheduled Caste.

In between, in the year 1994, the appellant got married to

Bindu and his affidavit (examination-in-chief) before the

High Court states that the marriage was performed in

accordance with the form of Cheramar community. All

these circumstances clearly establish that the appellant

after his reconversion to Hinduism in 1978 had been

36

accepted by the members of the Cheramar caste.

21. The Cheramar community and the Pulayan

community, however, appear to be two distinct castes as per

Entry 54 in Part VIII of the Schedule to the Constitution

(Scheduled Castes) Order, 1950 as has been contended by

Mr. Giri. From the written statements of the appellant and

from his evidence, however, it appears that the appellant

entertains a belief that the Cheramar caste and the Pulayan

caste are one and the same caste. Perhaps, because of this

belief he has married Bindu who belongs to the Pulayan

caste. The fact, however, remains that the appellant has

declared himself to be belonging to the Cheramar caste in

his nomination form and there was no declaration by him

that he belongs to the Pulayan caste. The Returning Officer

relying on the certificate Ext. P-2 issued by the Tehsildar,

Nedumangad dated 12.03.2009 had come to the conclusion

that the appellant belongs to Cheramar caste and had

accordingly accepted his nomination. The relevant findings

of the Returning Officer in the proceedings dated

31.03.2009 (Ex.P-3) are quoted here:

“The distinction between Hindu Cheramar and Hindu Pulaya is very thin and the local usage

37

confuses even experts. Both are scheduled castes and these areas which require a thorough enquiry by experts and examination of witnesses on both sides are also required which I was not supposed to do so as the Returning Officer. These questions can be enquired into and decided only by a court of competent jurisdiction perhaps in an election petition. If the nomination of a candidate is refused on grounds not established ignoring an authoritative evidence he will be prejudiced in exercising his constitutional right to contest an election and to establish his claim before a court of law. If he is not eligible the other candidates have a remedy by way of election petition which will settle the issue finally. Therefore, I rely on the certificate of the Tahsildar, Nedumangadu and decide that the candidate is competent to contest in the election from the reserved constituency. The nomination satisfies all the legal requirements and it is valid in law. In the circumstance the nomination is accepted.”

The aforesaid findings of the Returning Officer would show

that he was of the view that the distinction between Hindu

Cheramar and Hindu Pulaya was very thin and the local

usage confuses even the experts and that both were

Scheduled Castes and the areas which require a thorough

enquiry by experts and examination of witnesses on both

sides are also required which he was not supposed to do so

as the Returning Officer. The evidence would further show

that ultimately the Returning Officer relied on the certificate

of Tehsildar, Nedumangad, according to which the appellant

38

belongs to the Hindu Cheramar caste and decided that the

appellant was competent to contest the election from the

reserved constituency and accordingly accepted his

nomination. According to us, the appellant was required to

plead and lead evidence that he was a member of the

Cheramar caste and after his reconversion he was accepted

by the members of the Cheramar caste. So long as he has

pleaded and adduced reliable evidence to show that he was

originally a member of the Cheramar caste and after his

conversion has been accepted back as a member of the

Cheramar caste, the court cannot throw out his case only

on the ground that he, like the Returning Officer, did not

know the thin distinction between the Cheramar and

Pulayan castes. The findings of the High Court, therefore,

that there was no acceptable evidence to prove that the

appellant was accepted as a member of the Cheramar caste

after his reconversion to Hinduism was contrary to the

evidence on record.

22. In the decisions of this Court in C.M. Arumugam v. S.

Rajgopal and others (supra) and Satrucharla Vijaya Rama

Raju v. Nimmaka Jaya Raju and others (supra) cited by Mr.

39

Venugopal, this Court has held that every election petition

furnishes a fresh cause of action for a challenge to that

election and adjudication on a prior election petition cannot

be conclusive in a subsequent proceeding. These decisions

have no application to the facts of the present case. It is not

the case of the appellant that any decision in an election

petition has been rendered by the court that the appellant

was a member of the Scheduled Caste and was therefore

qualified to contest the election for a constituency reserved

for Scheduled Caste and that such earlier decision of the

Court constitutes res judicata on this issue. The case of the

appellant is that in four earlier elections the voters of a

constituency reserved for Scheduled Castes have elected

him from the constituency and this conduct of the voters

show that the members of the Scheduled Castes have

accepted him back to the fold of his original cast, namely,

the Cheramar community. The fact that the appellant has

been elected four times from the Adoor Parliamentary

Constituency reserved for the Scheduled Caste is a very

strong circumstance to establish that he has been accepted

by the members of his caste after his reconversion to

40

Hinduism.

23. In the result, we set aside the impugned order of the

High Court and hold that the appellant was qualified under

Section 4(a) of the Act to be chosen to fill the seat in the

House of People from Mavelikkara Parliamentary

Constituency reserved for the Scheduled Castes and that

his nomination was not improperly accepted by the

Returning Officer and accordingly his election was not void

under Section 100 (1)(a) and 100 (1)(d)(i) of the Act. The

appeals are allowed and the three Election Petitions of the

respondents are dismissed. The appellant will be entitled to

the amount deposited by the respondents under Section

117 of the Act as security deposit towards the costs. The

substance of this decision will be intimated to the Election

Commission and the Speaker of the House of the People in

accordance with Section 116-C (2) of the Act.

……………………..J. (Altamas Kabir)

……………………..J. (A. K. Patnaik) New Delhi, May 12, 2011.

41

KODIKUNNIL SURESH @ J.MONIAN Vs N.S.SAJI KUMAR ETC.ETC.

KODIKUNNIL SURESH @ J.MONIAN Vs N.S.SAJI KUMAR ETC.ETC.