1. This is an appeal on behalf of the Plaintiff in a suitfor partition of joint family properties which has now lasted for nearly ten(10) years. The Court of first instance made a decree in favour of thePlaintiff for a half share of the properties. Upon appeal the District Judgehas given her a decree for 1/4th share only. It is the common case of bothparties that the property in dispute belonged to two brothers, HaripadaBanerjee and Sasipada Banerjee. The Plaintiff is the widow of Haripada Banerjeeand claims to be jointly interested in one-half share which belonged to herhusband. The first Defendant is the purchaser of the right, title and interestof Sasi Bhusan at a sale held in execution of a mortgage decree on the 6th June1896. The second Defendant is Sasi Bhusan himself. The third Defendant is a transfereefrom the purchaser at the mortgage-sale. The fourth Defendant has apparently nointerest at present in the disputed property. The fifth Defendant is the sisterof Haripada and Sasi Bhusan. The Plaintiff sated in her plaint that her husbandhad embraced Christianity and that at the time of his death he was a followerof the Christian faith. The substantial question in controversy between theparties therefore is whether the Plaintiff has taken by inheritance under theHindu Law the whole of the share of her husband or whether under the IndianSuccession Act she has taken only one-half of that share and the other has beentaken equally by the brother and sister of Haripada, that is Sasi Bhusan andMondakini. The Courts below have concurrently held that the Indian SuccessionAct is applicable to the case and that under secs. 27 and 36 the Plaintiff isentitled to one-half of the half share of her husband and that the remaininghalf share has vested in equal halves in the brother and sister of the deceased.But the Courts below have differed in the view they have taken upon thequestion of possession. The original Court has held that the Plaintiff hasacquired a good title by adverse possession for the statutory period in thehalf share which had passed by succession to the brother and the sister. TheDistrict Judge on appeal has held on the other hand that as title by adversepossession was not specifically set up in the plaint, the Plaintiff is notentitled to succeed on any such basis. The Plaintiff has now appealed to thisCourt and on her behalf the decision of the District Judge has been assailed ontwo grounds, namely, first, that the Indian Succession Act has no applicationto the case, and, secondly, that if it does govern the matter, she has acquireda good title by adverse possession in the one-half share which vested in thebrother and sister of her husband. In so far as the first of these contentionsis concerned it is necessary to observe that sec. 2 of the Indian SuccessionAct provides that except as provided by this Act or by any other law for thetime being in force, the rule therein contained shall be the Law of BritishIndia applicable to all cases of intestate or testamentary succession. Theprovisions of this section show that the Act is of universal application inthis country unless a person claiming to be excepted can show that he isspecifically excepted from the operation of its provisions. Dagree v. PacottiI. L.R. 19 Bom. 783 (1895). In other words as observed in De Souza v. Secretaryof State 2 B. L. R. 423 (1874). the words " applicable to all cases "operate as a repeal of the previously existing law and that subject to theexception in the section the Courts must look to this Act and this alone forthe Law of British India applicable to all cases of testamentary and intestatesuccession. The burden therefore is upon the Plaintiff to prove the exceptionwithin which her case falls, and she relies upon sec. 331 of the IndianSuccession Act for this purpose. That section-we quote only so much of it asapplies to the case before us-lays down the following rule :-" Theprovisions of this Act shall not apply to intestate or testamentary successionto the property of any Hindu, Mahomedan or Buddhist." The questiontherefore narrows down to this : Is a Hindu who has embraced the Christianfaith and continues to be a Christian up to the time of his death, a Hinduwithin the meaning of sec. 331 The Appellant has invited us to answer thisquestion in the affirmative while the Respondents have strenuously maintainedthe contrary view. After a careful consideration of the arguments which havebeen addressed to us we have arrived at the conclusion that the question oughtto be answered in the negative. Dr. Whitley Stokes has pointed out that thecollocation of the words Hindu, Mahomedan or Buddhist makes it reasonably plainthat the term Hindu is used as a theological term and denotes only persons whoprofess any faith of the Brahminical religion or the religion of the Puranas.(Anglo-Indian Codes, Vol. 7, 483), Dagree v. Pacotti I. L. R. 19 Bom. 783(1895) In our opinion by no stretch of language can we reasonably hold that theterm Hindu includes a convert to Christianity. It is further obvious that asruled in the case of Jogendra Chandra Bose v. Bhagwan Coomar (1900) 1 PunjabLaw Report 251 at p. 268. subsequently affirmed by the Judicial Committee inBhagwan Keor v. J. C. Bose I.L.R. 31 Cal. 11 (1903), it is not sufficient tobring a man within the definition of Hindu to prove his Hindu birth and origin.It is also essential that he should be a Hindu at the time when the question inissue arises, for example, if there is a dispute as to the succession to theestate of the deceased person, it must be proved that he was a Hindu at thetime of his death. No doubt under the law as it stood before the IndianSuccession Act, a Hindu after his conversion to Christianity might by hisconduct show by what law he intended to be governed in matters of successionand inheritance, Abraham v. Abraham 9 M. I. A. 199 (1863)., because, asobserved by their Lordships of the Judicial Committee " Upon theconversion of a Hindu to Christianity, the Hindu Law ceases to have anycontinuing obligatory force upon the convert; he might renounce the old law bywhich he was bound as he had renounced his old religion or if he thought fit,he might abide by the old law notwithstanding he had renounced the oldreligion." In view, however, of the provisions of secs. 2 and 331 of theIndian Succession Act, this position can no longer be maintained. We mustconsequently hold that when a Hindu as embraced Christianity and continues tobe a Christian up to the time of his death, all questions of succession to hisestate upon intestacy must be determined by the Indian Succession Act. The viewwe take is supported by decisions of the Madras High Court in In re Vathiar 7Mad. H. C. Rep. 121 (1872). Ponnusami v. Dorasami I. L. R. 2 Mad. 209 (1880),Administrator-General v. Anandachari I. L. R. 9 Mad. 466 (1886), Tellis v.Saldanha I. L R. 10 Mad. 69 (1886). and of the Bombay High Court in Dagree v.Pacotti I. L. R. 19 Bom. 783 (1895), Bai Baiji v. Bai Santok I. L. R. 20 Bom.53(1894) and Hastings v. Gonsalves I. L. R. 23 Bom. 539 (1899). The decision ofthe Bombay High Court in Francis Ghosal v. Gabri Ghosal I. L. R. 31 Bom. 25 (1906). and of the Punjab Chief Court in Edith Mukerji v. George Alfred 52 P.W. R. 1907. are not really opposed to this view. They are distinguishable onthe ground that the question raised there was whether the Indian Succession Actpurported to enlarge the category of heritable property or affected the rightof co-partnership as between those to whom it applied. We must consequentlyhold that the Courts below have correctly applied the provisions of the IndianSuccession Act to determine the distribution of the estate left by HaripadaBanerjee who at the time of his death was a Christian. The first ground urgedon behalf of the Appellant must consequently fail.

2. In support of the second ground urged on behalf of theAppellant, it has been contended that the plaint though it did not expresslyset out a title by adverse possession, yet contained a sufficient recital ofthe facts that the Plaintiff was in possession of the entire half share of herhusband and that consequently the Plaintiff ought to have been allowed tosucceed on the ground of title by adverse possession. Now it is perfectly truethat, as laid down by this Court in the cases of Joytara v. Mobaruck I. L. R. 8Cal. 975 (1882). Sundari v. Mudhoo Chandra I.L. R. 14 Cal. 592 (1887) andAnanda Hari v. Secretary of State 3 C. L. J. 316 (1906), where no case ofacquisition of title by adverse possession is made in the plaint nor is thequestion raised directly or indirectly in any of the issues the Plaintiff oughtnot to be allowed to succeed upon such a case. On the other hand as pointed outby this Court in the case of Lilabati v. Bishun Chobey 6 C. L. J. 621 (1907).when the question reduces itself to one of law upon facts admitted or provedbeyond controversy, it is not only competent to the Court but expedient in theinterest of justice to entertain the plea of adverse possession, if such a casearises on the facts stated in the plaint and the Defendant is not taken bysurprise. The true test, therefore, to be applied to determine whether the pleaof title by adverse possession should be allowed to be urged though notexplicitly raised in the plaint is, how far is the Defendant likely to beprejudiced if the point is permitted to be taken. Now the case before us isobviously of a somewhat peculiar description. The parties themselves werepossibly ignorant of their true rights under the Indian Succession Act tilltheir legal advisers made the discovery in the course of this litigation. Inthis view it does seem probable that upon the death of the husband thePlaintiff did enjoy possession of his entire half share as if the rights of theproperties were governed by the Hindu Law and she may have done so to theexclusion of her sister-in-law Mandakini if not also of her brother-in-law SasiBhusan. It has been asserted on the other hand that the Plaintiff was inpossession as a co-sharer and the burden is upon her to prove that herpossession was adverse. A question of some nicety may also arise as to the trueposition if it should be found that the possession was adverse to one of thetwo persons and not to the other. We are satisfied that the true bearing ofthese questions was not considered, possibly not appreciated at all in theCourt below and in the interest of justice it is obviously necessary that thequestion should be examined. The second ground urged on behalf of the Appellantmust consequently prevail. The result therefore is that this appeal must beallowed and the decree of the District Judge discharged in so far as modifiesthe decree of the Subordinate Judge. The case will be remanded to the DistrictJudge in order that he may determine whether in addition to the half shareinherited by the Plaintiff from her husband she has acquired a good title byadverse possession for the statutory period to the other half share which wouldotherwise belong to the brother and sister of Haripada. The District Judge willframe an issue on this point and allow an opportunity to the parties to adduceevidence in support of their respective allegations. Such evidence may be takenby the District Judge himself or by the Subordinate Judge under his directions.The District Judge will decide the question of title by adverse possession asalso any other question that may incidentally arise. The Defendant No. 1 willget half the costs allowed to him only by the Court of Appeal below in respectof both the lower Courts. The costs of this appeal will abide the result.

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Nepen Bala Debi vs.Siti Kanta Banerjee (05.09.1910 - CALHC)