# KODIKUNNIL SURESH @ J. MONIAN v. N.S. SAJI KUMAR, ETC. ETC

- **Citation:** [2011] 7 S.C.R. 640
- **Court:** Supreme Court of India
- **Decided:** 2011-05-12
- **Case number:** Civil Appeal Nos.6391-93 of 2010
- **Bench:** Altamas Kabir, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kodikunnil-suresh-j-monian-v-n-s-saji-kumar-etc-etc-27848
- **Pages:** 34

## Headnote

Representation of People Act, 1951: s.100(1)(a) -
Election of appellant to the House of People from the
C
Mavelikkara Parliamentary Constituency reserved for the
Scheduled Castes - Challenged on the ground that the
appellant was a Christian and not a Scheduled Caste and
therefore, not qualified to be chosen to fill a seat in the House
of People u/s.4(a) of the Act - High Court declared his
o election void u/s.100(1)(a) of the Act - On appeal, held: The
father of the appellant originally was a member of the
Cheramar caste which was admittedly a Scheduled Caste in
the State of Kera/a - His father due to poverty had availed
various reliefs from Christian Missionaries and was known as
E 'Joseph' - On conversion to Christianity, the father of the
appellant ceased to be a member of the Cheramar caste -
However in 1978, appellant underwent an expiatory ceremony
and reconverted himself to Hinduism and was thereafter
accepted as a member of Cheramar caste - Evidence clearly
F
showed tha( 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
G visiting Hindu temples for worship of different idols and had
in fact abjured the Christian religion - Appellant had
reconverted to Hinduism in 1978 after fully realizing the
religious significance and social consequences of his
decision to reconvert to Hinduism - Therefore conversion of
appellant at the age of 16 years was not invalid conversion
H
640
KODIKUNNIL SURESH@ J. MONIAN v. N.S. SAJI
641
KUMAR, ETC. ETC.
to Hinduism -Appellant was actively working for the upliftment A
of the Cheramar community and was accepted and admitted
into the fold of Hindu Cheramar Community by its members
who were Cheramar Hindus - In four earlier elections,
appellant got elected from the Adoor Parliamentary
Constituency reserved for Scheduled Caste - All these B
circumstances clearly established that the appellant after his
reconversion to Hinduism in 1978 was accepted by the
members of the Cheramar caste - Accordingly his election
was not void u/ss.100 (1)(a) and 100 (1)(d)(i) of the Act.
Evidence Act, 1872: ss.3, 35 - Applicability of provisions C
of the Act to the Representation of People Act, 1951 -
Discussed - Representation of People Act, 1951 - s.87.
The appellant was elected to the House of People
from the Mavelikkara Parliamentary Constituency D
reserved for the Scheduled Castes. The election of the
appellant was challenged by two voters and a defeated
candidate of the said Constituency on the ground that the
appellant was a Christian and under the Constitution
(Scheduled Castes) Order, 1950 only a Hindu can be a E
Scheduled Caste and not being a Scheduled Caste, he
was not qualified to be chosen to fill a seat in the House
of People under Section 4(a) of the Representation of
People Act, .1951 and, therefore, his election was void
under Section 100(1)(a) of the Act. The defence of the F
appellant was that his parents were Hindus and only due
G.
to poverty, they had availed various reliefs from Christian
Missionaries and that is why his father was known as
'Joseph' by the Christian Missionaries. His further cas~
was that in 1978, he had undergone an expiatory
ceremony and had reconverted himself to Hinduism and
was thereafter accepted as a member of Cheramar caste.
The High Court declared the election of the appellant void
under Sections 100 (1)(a) and 100 (1)(d)(i) of the Act. It held
that the appellant was born to Christian parents and that H
642
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
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. It
further held that though the appellant married a Hindu
and he professed Hindu religion, there was no
B acceptable evidence to prove·

## Text

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A
8
[2011] 7 S.C.R. 640
KODIKUNNIL SURESH @ J. MONIAN
v.
N.S. SAJI KUMAR, ETC. ETC.
(Civil Appeal Nos.6391-93 of 2010)
MAY 12, 2011
[ALTAMAS KABIR AND A.K. PATNAIK, JJ.]
Representation of People Act, 1951: s.100(1)(a) -
Election of appellant to the House of People from the
C
Mavelikkara Parliamentary Constituency reserved for the
Scheduled Castes - Challenged on the ground that the
appellant was a Christian and not a Scheduled Caste and
therefore, not qualified to be chosen to fill a seat in the House
of People u/s.4(a) of the Act - High Court declared his
o election void u/s.100(1)(a) of the Act - On appeal, held: The
father of the appellant originally was a member of the
Cheramar caste which was admittedly a Scheduled Caste in
the State of Kera/a - His father due to poverty had availed
various reliefs from Christian Missionaries and was known as
E 'Joseph' - On conversion to Christianity, the father of the
appellant ceased to be a member of the Cheramar caste -
However in 1978, appellant underwent an expiatory ceremony
and reconverted himself to Hinduism and was thereafter
accepted as a member of Cheramar caste - Evidence clearly
F
showed tha( 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
G visiting Hindu temples for worship of different idols and had
in fact abjured the Christian religion - Appellant had
reconverted to Hinduism in 1978 after fully realizing the
religious significance and social consequences of his
decision to reconvert to Hinduism - Therefore conversion of
appellant at the age of 16 years was not invalid conversion
H
640
KODIKUNNIL SURESH@ J. MONIAN v. N.S. SAJI
641
KUMAR, ETC. ETC.
to Hinduism -Appellant was actively working for the upliftment A
of the Cheramar community and was accepted and admitted
into the fold of Hindu Cheramar Community by its members
who were Cheramar Hindus - In four earlier elections,
appellant got elected from the Adoor Parliamentary
Constituency reserved for Scheduled Caste - All these B
circumstances clearly established that the appellant after his
reconversion to Hinduism in 1978 was accepted by the
members of the Cheramar caste - Accordingly his election
was not void u/ss.100 (1)(a) and 100 (1)(d)(i) of the Act.
Evidence Act, 1872: ss.3, 35 - Applicability of provisions C
of the Act to the Representation of People Act, 1951 -
Discussed - Representation of People Act, 1951 - s.87.
The appellant was elected to the House of People
from the Mavelikkara Parliamentary Constituency D
reserved for the Scheduled Castes. The election of the
appellant was challenged by two voters and a defeated
candidate of the said Constituency on the ground that the
appellant was a Christian and under the Constitution
(Scheduled Castes) Order, 1950 only a Hindu can be a E
Scheduled Caste and not being a Scheduled Caste, he
was not qualified to be chosen to fill a seat in the House
of People under Section 4(a) of the Representation of
People Act, .1951 and, therefore, his election was void
under Section 100(1)(a) of the Act. The defence of the F
appellant was that his parents were Hindus and only due
G.
to poverty, they had availed various reliefs from Christian
Missionaries and that is why his father was known as
'Joseph' by the Christian Missionaries. His further cas~
was that in 1978, he had undergone an expiatory
ceremony and had reconverted himself to Hinduism and
was thereafter accepted as a member of Cheramar caste.
The High Court declared the election of the appellant void
under Sections 100 (1)(a) and 100 (1)(d)(i) of the Act. It held
that the appellant was born to Christian parents and that H
642
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
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. It
further held that though the appellant married a Hindu
and he professed Hindu religion, there was no
B 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
the Suprem~ Court that without acceptance by the
Scheduled Caste community after re-conversion, the
c reconvert does not get back to his original caste, the High
Court held that the appellant after his re-conversion did
not become a member of the Cheramar Caste and,
therefore, he was not qualified to contest from the
Mavelikkara reserved constituency and his nomination
0
was improperly accepted and, therefore, his election was
void. The instant appeals were filed challenging the order
of the High Court.
Allowing the appeals, the Court
E
HELD: 1.1. Sub-section (2) of Section 87 of the
Representation of People Act, 1951 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. Section 3 of
F
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
G supposition that it exists. Section 35 of the Indian
Evidence Act states that an entry in 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
H
KODIKUNNIL SURESH @ J. MONIAN v. N.S. SAJI
643
KUMAR, ETC. ETC.
country in which such book, register or record is kept, is A
itself a relevant fact. [Para 8) (657-C-G)
P.C. Purushotham Reddiar v. S. Perumal (1972) 1 SCC
1 9: 1972 (2) SCR 646; Birad Mall Singhvi v. Anand Purohit
1988 (supp.) SCC 604 - referred to.
B
1.2. Exhibit P-9 was part of the School Admission
Register of the Government Higher Secondary School
and was proved through its Head Mistress. This
document indicated that the name of the father of the
appellant was 'Joseph' which was a Christian name and C
the religion of the appellant was Christian. Exhibit P-10
was part of the Admission Register of Laxmi Vilasom High
School proved through its Head Master (PW-6). This
document showed that the appellant was admitted to this
School on 05.05.1975 into Standard VIII and his name was D
entered as Monian J. (Joseph) and mother's name was
shown as Thakkamma T. and religion of the appellant was
shown as Christian. Exhibit P-4 was his School Leaving
Certificate issued by the Head Master in which the name
of the appellant was shown as Monian J. (Joseph) and E
his religion was shown as Christian, In the affidavit filed
before the High Court, the appellant had stated that in
Exhibit P9, his father's name was Joseph as his father
was called 'Jos.eph' by Christian Missionaries because
his father was visiting Christian.Missionaries to avail help F
and actually name of his father was Kunjan and he
continued to be, a Hindμ a_nd his alleged conversion was
only nominal. The appellant explained in his crossexamination that when he was admitted in the .School for
the first time, his father had gone for work and his friend G
Thomas had taken him to School and his name was
shown by Thomas as Joseph as his father was called by
the Missionaries as 'Joseph',. The residents of a village
have familiarity with the religion of the co-villagers and the
information furnished by them has probative value and H
644
SUPREME COURT REPORTS
[2011] 7 S.C.R.
~ can be considered by the Court. 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 with regard to the Christian name of the father
1s of the appellant and the Christian religion of the appellant
was admittedly made on the basis of the information of
Thomas. 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
c several decades before the appellant contested 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 also indicated the religion of the
0
appellant as Christian. The entry relating to the religion
of the appellant could have been corrected by the
mother of the appellant 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 were on
E the basis of information in Exhibit P-10 and these also
indicated 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
F
conversion of the appellant to Hinduism, the appellant
was described as a Cheramar Ctiristian upto the age of
16 years. If he was not a Christian till the age of 16 years,
question -of his conversion to Hindu religion in 1978
would not have arisen. On consideration of all these facts
G and circumstances, the High Court was right in coming
to the conclusion that the fact that the appellant was born
to Christian parents was not seriously disputed by the
appellant. [Paras 7-9] [656-A-H; 657-A; 658-C·H; 659·A·D]
H
Oesh Raj v. Bodh Raj (2008) 2 SCC 186: 2007 (12)
KODIKUNNIL SURESH @ J. MONIAN v. N.S. SAJI
645
KUMAR, ETC. ETC.
SCR 757 - relied on.
M. Chandra v. M. Thangamuthu 2010 (9) SCALE 145 -
held inapplicable.
2. ·It is on the facts of each case that the Court has
A
to decide whether the child had attained sufficient B
maturity to understand the religious significance and the
social consequences of his decision to 'reconvert to the
Hindu religion .. 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 C
25.05.1978 (Ext. R-10) clearly established that the
appellant had on his own volition decided to reconvert
to Hinduism. Ext. R-10 was followed by the Gazette
Notification (Ext. R-9). These two documents were clear
proof of the declaration of the intention of the appellant 0
to reconvert himself to Hinduism from Christianity. This
declaration of intention of the appellant was also
accompanied by conduct unequivocally expressing that
the appellant has in fact reconverted himself to Hinduism.
The appellant also produced before the High Court a E
certificate of marriage which was marked as Ext. R-14. In
Ext. R-14, the date of marriage of the appellant was
shown as 30.06.1994 and the name of the appellant was
shown as Kodikunnil Suresh and the wife of the appellant
was shown as Bindu Sekhar. The appellant had stated
F
in his affidavit before the High Court that Bindu was a
member of Scheduled Caste and was 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 also stated that there was G
exchange of rings and he gave pudava to her and .the
form of the marriage was that of the Cheramar
community. He further stated in the affidavit that he
worshipped. Dharma Sastha in Sabarimala and that h'e
also goes for worship to Pazhavangadi Ganapathi H
646
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A Temple. RW-4, who was 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, was examined before the
High Court and he stated that he was invited for the
B marriage of the appellant and the marriage was performed
following the ceremonies of Hindu religion. Nothing was
brought out in the cross-examination of the appellant for
the Court not to rely on his evidence that he has been
visiting the temples for worship. Consideration of the
c evidence led before the High Court clearly showed 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
D 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 d.ecision to reconvert to Hinduism.
E 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. [Paras 12, 13) [662-C-D; 663-E-H; 664-A-H; 665A-C]
F
3. 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
G particular constituency is re~erved for a member of the
scheduled caste or tribe and the electorate gives a
majority verdict in his favour, then this would be
c;loubtless proof positive of the fact that his community
has accepted him back to his old fold and this would
H result in a revival of the original caste to which the
KODIKUNNIL SURESH@ J. MONIAN v. N.S. SAJI
647
KUMAR, ETC. ETC.
candidate belonged. The father of the appellant originally A
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 was
because on conversion to Christianity, a person ceases B
.to belong to his original caste. In 1978 the appellant
reconverted into Hinduism and continued to be a Hindu
thereafter. The appellant has stated in his affidavit
(examination-in-chief) before the High Court that in 1979
he was actively working for the upliftment of the C
Cheramar community and the Kerala Cheramar Sangham
issued a certificate which stated that being a descendant
of Scheduled Caste convert and by the conversion, the
appellant was accepted and admitted into the fold of
Hindu Cheramar Community by its members who were 0
Cheramar Hindus and by this fact he has become a
member of Cheramar Community which is recognized as
a Scheduled Caste. Thts certificate dated 25.10.1979 was
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 E
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 F
stated that the marriage was performed in accordance
with the form of Cheramar community. All these
circumstances clearly established that the appellant after
his reconversion to Hinduism in 1978 was accepted by
the members of the Cheramar caste. [Paras 19, 20] [669G
G-H; 670-A-G]
4. The Cheramar community and the Pulayan
community appear to be two distinct castes as per Entry
54 in Part VIII of the Schedule to the Constitution H
648
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
(Scheduled Castes) Order, 1950. From the written
statements of the appellant and from his evidence,
however, it appears that the appellant entertained a belief
that the Cheramar caste and the Pulayan caste are one
and the same caste. Perhaps, because of this belief he
B married Bindu who belonged to the Pulayan caste. The
fact, however, remained that the appellant had declared
himself to be belonging to the Cheramar caste in his
nomination form and there was no declaration by him
that he belonged to the Pulayan caste. The Returning
c Officer relying on the certificate Ext. P-2 issued by the
Tehsildar, Nedumangad came to the conclusion that the
appellant belonged to Cheramar caste and had
accordingly accepted his nomination. The said findings
of the Returning Officer would show that he was of the
0
view that the distinction between Hindu Cheramar and
Hindu Pulaya was very thin and the local usage had
confused even the experts and that both were Scheduled
Castes and the areas which required a thorough enquiry
by experts and examination of witnesses on both sides
were also required which he was not supposed to do so
E 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 belonged to the Hindu Cheramar caste and
decided that the appellant was competent to contest the
F
election from the reserved constituency and accordingly
accepted his nomination. 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
G 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
H Returning Officer, did not know the thin distinction
KODIKUNNIL SURESH @ J. MONIAN v. N.S. SAJI
649
KUMAR, ETC. ETC.
between the Cheramat and Pulayan castes. The findings
A
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. [Para
21] [670-G-H; 671-A-H; 672-A-E].
B
C. M. Arumugam v. S. Rajgopal and others (1976) 1 SCC
863: 1976 (3) SCR 82; Satrucharla Vijaya Rama Raju v.
Nimmaka Jaya Raju and others (2006) 1 SCC 212: 2005 (4)
Suppl. SCR 821 - held inapplicable.
c
5. The case of the appellant was 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
D
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
E
the members of his caste after his reconversion to
Hinduism. 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
F
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.
[Paras 22, 23) [673-A-F]
Ajit Datt v Ethel Walters & Ors. AIR 2001 Allahabad 109;
G
Aravamudha Iyengar v. Ramaswami Bhattar & Anr. AIR 1952
Madras 245; Kai/ash Sonkar v. Smt. Maya Devi (1984) 2
SCC 91: 1984 (2) SCR 176; S. Anbalagan v. B. Devarajan
& Ors. (1984) 2 SCC 112: 1984 (1) SCR 973; S. Nazeer
H
650
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A Ahmed v. State Bank of Mysore & Ors. (2007) 11 SCC 75:
2007 (1) SCR 843; Perumal Nadar (dead) by LRs. v.
Ponnuswami 1970 (1) SCC 605: 1971 (1) SCR 49;
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram & Ors.
(1954) SCR 817; S. Rajagopal v. C.M. Armugam & Ors. 1969
B (1) SCR 254 - referred to.
Case Law Reference:
2010 (9) SCALE 145
held inapplicable Para 5
c
1972 (2) SCR 646
referred to
Para 6
1988 (supp.) sec 604
referred to
Para 8
2007 (12) SCR 757
relied on
Para 8
AIR 1952 Madras 245
referred to
Para 9,
D
11, 12
1984 (2) SCR 176
referred to
Para 9,
11,12,14,19
1984 (1) SCR 973
referred to
Para 9,
E
14, 19
2007 (1) SCR 843
referred to
Para 11
1971 (1) SCR 49
referred to
Para 11
F
(1954) SCR 817
referred to
Para 12
1976 (3) SCR 82
held inapplicable Para 15,
17,18,22
2005 (4) SUPPL. SCR 821 held inapplicable Para 15,
G
22
1969 (1) SCR 254
referred to
Para 16,
17,18,20
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
H 6391-6393 of 2010.
KODIKUNNIL SURESH @ J. MONIAN v. N.S. SAJI
651
KUMAR, ETC. ETC.
From the Judgment & Order dated 26.7.2010 of the High
A
Court of Kerala in E.P. Nos. 3 of 2009 and 8 of 2009.
P.P. Rao, Abhimanyu Bhandari, Anubhav Singhvi, $.
Udaya Kumar Sagar Bina Madhavan, Vinita Sasidharan,
Pankaj Singh, Vincent De Paul Apeksha S., Purushottam
B
Sharma Tripathi, Filza Moonis, Utsav Sidhu (for Lawyer's Knit
& Co) for the Appellant.
V. Giri, K. Rajeev, Mohammed Sadique, B.V. Deepak, C.
Rajendran, A. Raghunath for the Respondents.
c
The Judgment of the Court was delivered by
A. K. PATNAIK, J. 1. 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
D
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
E
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
F
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
G
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
H
652
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A 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
B nomination papers of the appellant rejected the objections and
accepted the nomination papers of the appellant under 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
c 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
D 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
E 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
F that the nomination of the appellant was improperly accepted
and that the election of 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
G 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
H he had undergone an expiatory ceremony and had reconverted
KODIKUNNIL SURESH @ J. MONIAN v. N.S. SAJI
653
KUMAR, ETC. ETC. [A.K. PATNAIK, J.]
himself to Hinduism and had also been accepted as a member
A
of the Cheramar caste and he was therefore qualified. to
contest the eleGtion 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
B
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
C
impugned order are that the appellant was born to 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
D
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
E
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 reconversion, the reconvert does not get back to his original
caste, held that the appellant after his re-conversion did not
F
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. 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
G
his mother Thankamma were Hindus, the High Court
unfortunately has observed in the impugned order that the fact
H
654
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A 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
B 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.
c [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 Christian religion. He
0 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
E 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
F 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
G 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
were made on the basis of the information furnished by
Thomas, who did not really know that the religion of the father
H of the appellant was Hinduism and not Christianity. He cited M.
KODIKUNNIL SURESH @ J. MONIAN v. N.S. SAJI
655
KUMAR, ETC. ETC. [A.K. PATNAIK, J.]
Chandra v. M. Thangamuthu [2010 (9) SCALE 145] in which
A
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
B
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
C
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, pg and
P10 to show that the religion of the appellant was Christianity
D
and not Hinduism as per his school records and School
Leaving Certificate. He submitted that the documents Exhibits
P4, pg 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
E
v. S. Perumal [(1972) 1 SCC g] 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-g) relating to the religion of the appellant
was made by Thomas who did not actually know the religiol)
of the father of the appellant, the appellant should have
examined Thomas in support of his case, but the appellant has
F
not examined Thomas in course of trial. He submitted that
G
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.
H
656
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
7.We may now look at the evidence on record. Exhibit Pg is part of the School Admission Register of the Government
Higher Secondary School and has been proved through its
Head Mistress. Exhibit p_g indicates that the name of the father
of the appellant was 'Joseph' which was a Christian name and
B the religion of the appellant was Christian and he was admitted
to the School on 07.06.1 g67. The School had standards I to
VII and the appellant left the School on 05.05.1 g75, Exhibit P10 is part of the Admission Register of Laxmi Vilasom High
School, Pothencode, proved through its Head Master (PW-6).
c Exhibit P-10 shows that the appellant was admitted to this
School on 05.05.1g75 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 28.02.1 g10. Exhibit
0 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 shown as Thakkamma T. This School
Leaving Certificate was issued after the appellant completed
E his Standard X in the School in 1g17-78. 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 2oog) has stated in para 5 that in
F Exhibits P-4, p_g 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 pg his father's name is Joseph and his father was
called 'Joseph' by Christian Missionaries because his father
G 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
H his friend Thomas had taken him to School and as his father
KODIKUNNIL SURESH @ J. MONIAN v. N.S. SAJI
657
KUMAR, ETC. ETC. [A.K. PATNAIK, J.]
was called by the Missionaries as 'Joseph', his name was
A
shown by Thomas as Joseph. The appellant has stated in his
affidavit that he decided to get himself 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
B
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.
C
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
D
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 circui:nstances of the
E
particular case, to act upon the supposition that it exists.
Section 35 of the Indian Evidence Act states that an entry in
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
F
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
G
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
H
658
SUPREME COURT REPORTS
(2011] 7 S.C.R.
A 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 sec 186] where the caste of the candidate in an
B election was in issue, this Court held that the residents of a
village have more familiarity with the 'caste' of a co-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
c 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
D appe11ant 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
E 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
F made on the information of Thomas in 1967 during the
childhood of the appellant several decades before the appellant
contested . 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
G 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
H appellant could have been corrected by the mother of the
· KODIKUNNIL SU RESH @ J. MONIAN v. N.S. SAJI
659
KUMAR, ETC. ETC. [A.K. PATNAIK, J.]
appellant who has been shown in Ext.P-10 as his parent if the
A
· 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
B
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 c
the age of 16 years, where was 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
0
not been seriously.disputed by the appellant..The_decisions of
this Court iri · 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
E
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
F
the age of discretion as he .was under 18 years of age is not
correct.