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
2
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
3
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
4
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
5
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.
6
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
7
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
8
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
9
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.
10
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
11
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
12
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
13
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-
14
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
15
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
16
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
17
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
18
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
19
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
20
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
21
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,
22
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
23
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
24
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
25
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
26
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.
27
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
28
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
29
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
30
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
31
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.
32
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
33
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
34
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
35
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
36
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
37
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
38
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
39
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.
40
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
41
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.
