MADRAS HIGH COURT

P. PATHRAKAH NADACHI VS V. SUBBIAH NADAR ON 19 AUGUST, 1980

Summarised Judgement 

Introduction:

This appeal has been referred to this Bench because Mohan J. before whom it came up for hearing, was of the view that there is a difference of opinion between Ananchaperumal v. Muthiah, 1944 Trav LR 595; (34 Trav LJ 503) (FB) and Shanmughathayee Animal v. Devasahayarn Nadar, AIR 1954 Trav Co 497: ILR (1954) Trav Co 826 (FB), on the question whether custom prevalent among the Hindu Nadar Christians in the matter of succession is obliterated by reason of the Travancore Christian Succession Act (Travancore Act 11 of 1092 M. E.) and hence an authoritative ruling by a Bench' of this court would be highly desirable.

Facts of the Case:

The brief narration of facts required for determination of the question. of law is as given under. One Ponnammal under the original of Ex. B-2 dated 29-51095 M, E., had purchased the suit property corresponding to 13-1-1920. This Ponnammal was originally married to a person of Poothapandi and through him she had a son and a daughter by name Gnanaprakasi who later embrased the Christian faith. After the death of her husband, Ponnammal married a second husband, by name, Elapyaperumal and through him she had two sons, viz. the first defendant (Kutti Nadar) and one Poliah Nader. Ponnammal died in or about the year 1099 M. E.

The plaintiff's case was that Elayaperumal had purchased - the suit property benami in the name of Ponnammal. He claimed,that after Ponnammmal's death, her sons succeeded to.the property and were dealing with it as owners thereof and h6 had purchased the southern half portion of the property from Polishfiadar one of the sons of Pininammal, under a registered sale deed dated 9-7-1949,- Ex. A-1.

He claimed that subsequent to the purchase he was in possession and enjoyment of the southern portion and he had also redeemed a mortgage over the property, but, inasmuch as the first defendant, taking advantage of the, property not having been divided by metes and ,bounds, attempted to commit encroachment by extending his house to the southern portion of the property, it had become necessary for him to approach the court to effect a partition of the property into northern and southern portions and delineate the boundaries. Besides claiming title under the sale deed, the plaintiff also claimed title by adverse possession.

Observation of Court:

We are of opinion that the legal propositions extracted above are undoubtedly indisputable, but what has been overlooked by the counsel is that what we are now called upon to decide is, not about the wisdom and equitable nature of the customary law, but whether it continued to have operative force in spite of the inroads made into it by the Christian Succession Act. Examined from that angle, the passages do not have any relevance to the debate in the appeal. Another passage is also 'cited by the counsel and that is found at page 161 of Mullah's Hindu Law, 14th Edn. and the passage relates to the effect of the Caste Disabilities Removal Act.

We do not think to is a fit case for granting certificate because, firstly, the question of law involved is not of such general importance as needs determination by the Supreme Court, and, secondly, after the Hindu Succession Act, 1956 came into force, the question as to whether Christian Nadars can claim right of succession to the properties owned by their Hindu relations on the foot of customary law, which itself, in our opinion, became obliterated by reason of the passing of the Travancore-Cochin Succession Act, cannot at all arise.

Judgement:

Hence, we decline to grant leave, Appeal dismissed.

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MADRAS HIGH COURT

SOLOMON AND ORS. VS MUTHIAH AND ORS. ON 4 NOVEMBER, 1970

Summarised Judgement 

Facts of the Case:

Admittedly, the parties are Syrian Christians who lived in that part of the former Travancore State which now forms part of the State of Tamil Nadu, after the reorganisation of the States. The said Swaminathan died issueless on 29th May, 1960, survived by his widow Muthammal. Muthammal is said to have executed two settlement deeds in favour of the appellants herein, who figured as defendants 1 to 6 in the trial Court, marked as Exhibits B-1 and B-2. She died on 16th September, 1960.

The plaintiffs who are the children and grandchildren of Isaac, brother of Swaminathan, instituted O.S. No. 2 of 1961 on the file of the Court of the Subordinate Judge of Nagercoil for partition and possession of their half share in 'A' and 'B' Schedule properties and monies, contending that Swaminathan was governed by the Travancore Christian Succession Regulation II of 1092 and according to the provisions contained in that Regulation, on the death of Swaminathan, the widow Muthammal got only a life interest and on her death the properties belonged absolutely to the plaintiffs as children and grandchildren of Isaac, and Pakianathan the 9th defendant in the suit and the other brother of Swaminathan, in equal shares and the settlement deeds in favour of the appellants herein were invalid. The 7th defendant was impleaded on the ground that a certain hypothecation amount was due from him and the 8th defendant was impleaded on the ground that certain mortgage, purakkadam and hypothecation amount was due from him.

The case of the appellants herein was that 'A' Schedule properties are the properties of Swaminathan, while 'B' Schedule properties did not belong to Swaminathan, but belonged to Muthammal. They also denied that Isaac and 9th defendant were brothers of Swaminathan.

Observation & Judgement of Court:

I am making it quite clear that except for reversing the conclusion of the Courts below on the question whether it is the Indian Succession Act, 1935 or the Travancore Christian Succession Regulation II of 1092 that applies to the case in question I am not interfering with the other findings of fact recorded by the Courts below and those findings will stand.

It is unfortunate that I did not have the benefit of any arguments on behalf of the respondent, since none of the counsel appeared on behalf of the respondents in spite of my giving more than one opportunity in this behalf.

Each party will bear his costs in these proceedings in all the three Courts so far. The appellants will be entitled to a refund of Court-fee paid on the memoranda of appeal in this Court as well as the first appellate Court.

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KERALA HIGH COURT

FRANCIS KALATHRON D'CRUS VS SEBASTIAN D'CRUS @ SUNNY D'CRUS ON 29 MARCH, 2007

Summarised Judgement 

Introduction:

First respondent plaintiff and second respondent is the first defendant and third respondent 4th defendant in the suit. Second defendant died before filing the second appeal. 4th respondent died during the pendency of the second appeal and as the presence of the legal heirs were not necessary, they were not impleaded. Admittedly 27 cents in survey No.2891 of Muttathara Village originally belonged to Dr.A. Grihary D'cruz. Plaint schedule property in O.S.52/1982 is the room of the godown bearing door No.T.C.41/1728. 4th defendant is his widow and first defendant and Josebel Albert are their daughters. Plaintiff is the husband of first defendant.

Facts of the Case:

At the time of marriage of the daughters, Grihary D'cruz, the father executed two dowry deeds whereunder the property was given in the name of the daughters and their respective husbands as streedhanam. Under Ext.A2 dowry deed dated 5.10.1128 the eastern half of the property with the godown therein was given to first defendant and the plaintiff. Similarly as per another dowry deed executed by the father in favour of the other daughter and her husband in 1124 M.E., the western half of the property with godown situate therein was given to Jospel Albert and her husband Paul Albert Rozario. Subsequently first defendant assigned her right over the property in favour of third defendant/appellant under Ext.A3 sale deed. But Ext.A3 was executed as if first defendant had right over the entire property including the western portion of the property transferred by the father in favour of Jospel and her husband.

Observation & Judgement of Court:

We very much doubt whether such an argument would have been tenable but in any event, in the present case, there is no scope for such an argument, since the Travancore Christian Succession Act, 1092 stood expressly repealed by virtue of S.6 of Part B States (Laws) Act, 1951."

"We are therefore of the view that on the coming into force of Part B States (Laws) Act, 1951 Travancore Cochin Succession Act, 1092 stood repealed and Chapter II of Part V of Indian Succession Act, 1925 became applicable and intestate succession to the property of members of the Indian Christian community in the territories of the erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925".

The result of the declaration of law by the Apex Court is that Travancore Christian Succession Act stood repealed by Part B States (Laws) Act in its entirety. Hence relying on Section 5 of said repealed Act or the decisions rendered relying on the provisions of the said Act, appellant is not entitled to contend that under Ext.A2 the property exclusively belonged to first defendant or that plaintiff was only a trustee.

First appellate court rightly found that under Ext.A2 both plaintiff and first defendant derived equal rights. Appellant under Ext.A3 obtained only the right of first defendant which is only half right over the plaint schedule property. Plaintiff is therefore entitled to get his share separated.

Appeal fails and is dismissed.

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KERALA HIGH COURT

ROSAMMA VS ANNAMMA ON 20 January, 2000

Summarised Judgement 

Facts of the Case:

The appellants are the defendants in a suit for partition. The suit for partition was filed by the daughter of a deceased Christian from the Cochin area which was part of the erstwhile State of Cochin. The parties were then governed by the Cochin Christian Succession Act. Before the merger of the States of Cochin and Travancore under a covenant - the erstwhile princely States of Cochin and Travancore merged into the United States of Travancore-Cochin, the persons belonging to the Christian Community of the Travancore region, were governed by the Travancore Christian-Succession Act.

The Parliament enacted the Part B States (Laws) Act, 1951 extending the Indian Succession Act, 1925 to the State of Travancore-Cochin. An argument was raised that in view of the Part B States (Law) Ad, 1951 and the extension of the Indian Succession Act, 1925 to the State in question, the Christians of the State are governed in the matter of inheritance by the Indian Succession Act, and not either by the Cochin Christian Succession Act or by the Travancore Christian Succession Act. The Travancore-Cochin High Court in Kurian Augusthy v. Devassy (AIR 1957 TC 1) held that the Christians of the respective areas would be governed by the respective State enactments, and not by the Indian Succession Act, In States reorganisation, under the State Reorganisation Act, a part of the former State of Travancore had gone to the State of Madras and the same question, arose before the High Court of Madras and Ismail, J. (as he then was) in Solomon v. Muthayya (1974 (1) MLJ 5) took the view that in view of the Part B States (Laws) Act and the effect of its provisions, it would be the Indian Succession Act that would apply to the Christians of the erstwhile princely State of Travancore.

Observation & Judgement of Court:

In the present suit, the claim for partition by the daughter of a Christian from the area of Cochin who died after 1.4.1951 (he died on 17.8.1970) was sought to be met by contending that it was the Cochin Christian Succession Act that would govern the parties and she having been paid 'Streedhanam' at the time of marriage, would not be entitled to claim a share in the properties of the father. The trial court rightly did not accept this argument in view of the decision in Mary Roy's case which was the law of the land in view of Art.

141 of the Constitution of India. In this appeal, what is contended by the appellants is that going by the relevant provisions of Part B States (Laws) Act and the principles of statutory interpretation, it is possible to hold that the Christians of erstwhile area of the State of Cochin are governed by the Cochin Christian Succession Act, notwithstanding the fact that the Indian Succession Act was extended to the United State of Travancore-Cochin by the Part B States (Laws) Act.

 We therefore decline to admit this appeal. We dismiss the same.

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MADRAS HIGH COURT

M.P. CHRISTOBER AND ORS. VS M. FABIAN AND ORS. ON 6 APRIL, 1999

Summarised Judgement  

Introduction:

Defendants in O.S.No. 49 of 1984 on the file of Subordinate Judge, Padmanabapuram are the appellants herein.

Parties will be referred to in accordance with their rank in the suit in the lower court.

Facts of the Case:

Plaintiffs, who are respondents herein filed the suit for declaration of title and recovery of possession of two items of properties more specifically described in the schedule to the plaint. Item No. l originally belonged to one Padmanabha Pillai and Manoharan Nair. They sold the property in favour of Maria Michaelal mother of plaintiffs by two separate sale deeds dated 27.9.1960. and 12.1.1961. They are Exs.A-1 and A-2 respectively. Item No. 2 belonged to Sabarimuthu Nadar and Dominic, who are brothers of Maria Michaelal. They gifted the plaint items to their sister Maria Michaelal as per two gift deeds dated 9.6.1975 and 11.6.1975 They are Exs.A-4 and A-4 respectively. Maria Michaelal died in the year 1976. At the time of her death, she had left behind the plaintiffs and also her husband as legal heirs.

Father of plaintiffs Varuvel, sold both the properties as if they belong to him exclusively, to the defendants in the suit. They obtained possession as per sale deed dated 5.4.1979,. The said sale deed covered other properties also. After obtaining sale deed plaintiffs who were in possession of plaint schedule items were dispossessed, which necessitated plaintiffs for filing suit for recovery of possession. They claimed mesne profits at the rate of Rs. 2,500 per annum from the date of suit and as past profits they claimed Rs. 7,500.

In the written statement filed by the appellants, they contended Exs.A-1 and A-2 were obtained in the name of the Maria Michaelal as binami for her husband and she did not have any right.

Observation & Judgement of Court:

 From the above finding, it follows that plaintiffs as well as defendants are not co-owners, and recovery of possession cannot be allowed. But that does not prohibit the court from granting a smaller relief. It is therefore declared that plaintiffs are entitled to 2/3rd share in the plaint items 1 and 2 and they are allowed to recover the same from defendants.

A preliminary decree is therefore passed declaring that plaintiffs are entitled to 2/3rd share in plaint items 1 and 2 and they are permitted to take out a commission for partitioning both the items, and get a final decree passed. Quantum of mesne profits payable to the plaintiffs also will be decided during final decree proceedings. Finding of lower court that defendants are not entitled to value the constructions either for building or compound wall is confirmed.

In the result, the appeal is allowed as indicated above, There will be no order as to cost.

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MADRAS HIGH COURT

WILLS PADMA (DIED) VS CHARLES JEYA THILAK ON 4 SEPTEMBER, 2018

Summarised Judgement 

Facts of the Case:

The legal heirs of the second defendant in O.S.No.38 of 2004 are the appellants. The legal heirs of the plaintiff are the first, second and third respondents. The first defendant, who was the fourth respondent, died pending the second appeal and her legal heirs had been impleaded as fifth and sixth respondents. During the pendency of the appeal, the first appellant also died, but since her legal heirs were already on record, a memo in this regard was recorded.

The second appeal arises out of a Judgment and Decree dated 21.06.2005 in O.S.No.38 of 2004 passed by the Additional District Munsif Court, Padmanabhapuram and confirmed by the Judgment and Decree dated 12.11.2009 in A.S.No.89 of 2005 passed by the Subordinate Court, Padmanabhapuram. O.S.No.38 of 2004 had been filed by Sworna Bai against her sister Nesa Bai and brother Bennet Sam. All three of them were daughters and son of Annie Rosammal.

The suit had been filed seeking a Judgment and Decree to partition the suit schedule property by metes and bounds and allot 1/3 share to the plaintiff. In the schedule, as many as 29 properties situated at Kothanalloor Village and the 30th property situated in Lakshmipuram Village were given. These properties were within the jurisdiction of the District Munsif Court, Padmanabhapuram.

In the plaint, it was stated that one Samuel Benjamin had four wives. The first wife was Yesunesam. Her daughter was Annie Rosammal, the mother of plaintiff and the defendants. After Yesunesam's death, Samuel Banjamin married Gnanathangam as his second wife. A daughter Jessie was born from that marriage. Gnanathangam also died. Thereafter, Samuel Banjamin married another lady, as his third wife and a son Samraj was born. However, both the third wife and Samraj died. Samuel Banjamin again married Gnanadeepam, as his fourth wife. There were no issues from that marriage. However, she survived her husband Samuel Benjamin.

On the death of Samuel Benjamin, it was claimed in the plaint that all his properties, devolved upon his two daughters Annie Rosammal and Jessie and his fourth wife Gnanadeepam. These three legal heirs entered into a registered partition by a registered deed bearing No.1969 dated 05.05.1121 M.E(16.12.1945) in the Eranial Sub-Registrar Office. The 'A' schedule properties in the partition deed were allotted to Annie Rosammal. The 'B' schedule properties were allotted to Jessie. Gnanadeepam was granted right of enjoyment over certain properties in lieu of maintenance. She was in exclusive enjoyment of those properties till her death on 28.03.1963. The legal heirs of the second defendant in O.S.No.38 of 2004 are the appellants. The legal heirs of the plaintiff are the first, second and third respondents. The first defendant, who was the fourth respondent, died pending the second appeal and her legal heirs had been impleaded as fifth and sixth respondents. During the pendency of the appeal, the first appellant also died, but since her legal heirs were already on record, a memo in this regard was recorded.

The suit had been filed seeking a Judgment and Decree to partition the suit schedule property by metes and bounds and allot 1/3 share to the plaintiff. In the schedule, as many as 29 properties situated at Kothanalloor Village and the 30th property situated in Lakshmipuram Village were given. These properties were within the jurisdiction of the District Munsif Court, Padmanabhapuram.

In the plaint, it was stated that one Samuel Benjamin had four wives. The first wife was Yesunesam. Her daughter was Annie Rosammal, the mother of plaintiff and the defendants. After Yesunesam's death, Samuel Banjamin married Gnanathangam as his second wife. A daughter Jessie was born from that marriage. Gnanathangam also died. Thereafter, Samuel Banjamin married another lady, as his third wife and a son Samraj was born. However, both the third wife and Samraj died. Samuel Banjamin again married Gnanadeepam, as his fourth wife. There were no issues from that marriage. However, she survived her husband Samuel Benjamin.

On the death of Samuel Benjamin, it was claimed in the plaint that all his properties, devolved upon his two daughters Annie Rosammal and Jessie and his fourth wife Gnanadeepam. These three legal heirs entered into a registered partition by a registered deed bearing No.1969 dated 05.05.1121 M.E(16.12.1945) in the Eranial Sub-Registrar Office. The 'A' schedule properties in the partition deed were allotted to Annie Rosammal.

Observation & Judgement of Court:

I, therefore, hold that on the death of Annie Rosammal on 11.11.1949, her property devolved into two equal parts on to her widower J.N.Charles and on to her son Bennet Sam. J.N.Charles died intestate on 14.06.1953. His one half share again divided under the provisions of Indian Succession Act into three equal parts among his two daughters, namely, the plaintiff and the first defendant and his son, namely, the second defendant. This would unturn mean that the plaintiff would get an undivided 1/6 share and the first defendant would get an undivided 1/6 share and the second defendant would get an undivided 4/6 share.

In view of the above discussion, I hold that the Judgment and decree of the Courts below do not call for interference. The second substantial question of law is answered that under the Travancore Christian Succession Act, the husband of Annie Rosammal was actually entitled to an undivided 1/2 share in the properties left behind her on 11.11.1949 and this 1/2 share would further devolve in accordance with Indian Succession Act 1925 on the death of J.N.Charles on to the plaintiff, first and second defendants in equal shares.

For the above reasons, I hold that the Courts below had not erred in their conclusion. Consequently, the second appeal is dismissed but in the circumstances of the case without costs.

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MADRAS HIGH COURT

T.JAYASINGH ... 11TH ... VS Y.RAJAMANY (DIED) ON 13 SEPTEMBER, 2017

Summarised Judgement 

Introduction:

Appeal is filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 12.10.2000 and made in A.S.No.64 of 2000 on the file of the sub-Court,Padmanabhapuram, reversing the judgment and decree dated 16.06.2000 and made in O.S.No.46 of 1985 on the file of Addl. District Munsif, Padmanabhapuram.

Facts of the Case:

The brief facts leading to filing of the above Second Appeal are as follows:-

The suit property Item No.I to IV are originally belonged to one Yesuvadiyan who was married to Bakiyamuthu Natachi and they have no issues on the death of the Yesuvadiyan as per Section 17 &18 Travancore Christian Succession Act, the property devolves upon the brother of the deceased Yesuvadiyan namely Aasirvadham and Yesudasan. On the death of the Aasirvadham, it devolved upon the four of his sons namely, first defendant A.Sellaiyah, second defendant A.Balayan, third defendant A.Thomas and Yovan.

Since, Yovan as deceased his three sons are added as party defendants viz., the fourth defendant Nelson and 5th defendant Thangappan and 6th defendant Thangam are jointly entitled for half share on the death of the Yesudasan. The plaintiff Rajamani being the only son of Yesudasan is entitled to half share of his father and accordingly, filed the suit in O.S.No.46 of 1985 for partition before the District Munsiff Court, Padmanabhapuram.

The plaint proceeds on the basis that the plaintiff and the defendants 1 to 5 who are the legal heirs of the above said Aasirvadham and Yesudasan who are brothers of the original owner Yesuvadiyan are in joint and possession of the property and defendants 7 to 10 has no right or title in the suit property.

The plaint further proceeds that after the death of Yesuvadiyan, his widow Bakiyamuthu Natachi was residing in Tiruvendram and from whom one Manas claimed to have obtained to sale deed during on 6.4.1115 M.E (Malayalam era+825=English calender) in other words around the year 1940.

Observation  & Judgement of Court:

Based upon the report of the advocate commissioner,the lower appellate court have came to the categorical finding that the defendant have not proved the plea of possession adverse to that of the owners namely, the plaintiff and the defendant 1 to 5 and accordingly, negatived the plea of adverse possession and decreed the suit is well merited and well considered and the same cannot be interfered with and accordingly, the substantial question II&III are held against the appellant herein.

The upshot of the above discussion demonstrates that the Judgment and decree of the lower Appellate Court is well merited and well considered and all the substantial question of law are held in favour of the R17 (and L.R of the plaintiff) and this Second Appeal is devoid of merits liable to be dismissed.

In the result, the Appeal is dismissed with costs.

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KERALA HIGH COURT

JOSEPH VS JOSEPH ANNAMMA ON 10 JANUARY, 1979

Summarised Judgement

Introduction:

The plaintiff is the appellant in the Second Appeal. He had filed the suit for an injunction to restrain the defendant-respondent herein from committing waste in the suit properties by cutting and removing valuable trees including yielding rubber trees and/or carry on slaughter tapping and lor other appropriate reliefs.

Facts of the Case:

The plaintiff is the son of the defendant and one Joseph. The defendant, the widow of Joseph has only a life interest in the suit properties, her rights being governed by Section 24 of the Travancore Christian Succession Act, The plaintiff being the only son of Joseph is entitled to the properties as his heir after the death of the defendant The defendant is not entitled to commit waste in the property or cut and remove the rubber trees which are yielding. The allegation is that the defendant is recklessly cutting and removing yielding rubber trees and other valuable trees and slaughter tapping rubber trees and that she, according to the plaintiff, is liable to be restrained from doing so.

The suit was resisted by the defendant contending inter alia that though she has only a 'Jeevanamsa Avakasam' she has the right to carry on slaughter tapping and replant the property. She contended that she has neither committed any waste nor has any intention to commit waste. In the circumstances, the plaintiff is not entitled to restrain her from enjoying the property as she likes.

The nature of the widow's estate under the Travancore Christian Succession Act is entirely different from a widow's estate under the Hindu Law The nature of widow's estate has come up for consideration in some cases.

The right of a reversioner like the appellant plaintiff in respect of the property to which the defendant is now entitled under life-estate is already a vested right and his right to see that the property is preserved would be stronger than the case of the reversioner to a widow's estate under the Hindu Law. Even in the case of a reversionary heir, succeeding to a widow's estate under the Hindu Law, it has been recognised by Courts of law that he has got a right to demand that the estate be kept free from danger during its enjoyment by the widow or other limited heir.

In the absence of any such restriction, the only logical conclusion is that the Christian widow is the absolute owner ot her share and of the income accruing from her share, during her lifetime and till re-marriage and she can deal with it as she pleases till any cf those contingencies happens. It is open to her to make transfers, assignments or alienations, but all the rights in the alienee or transferee, based on those assignments made by the Christian widow will come to an end with her death or remarriage.

Observation of Court:

In the light of law explained above and in the light of the facts revealed in the case which will indicate that the plaintiffs apprehension is not without any basis in the interest of justice, it is necessary to restrain the defendant by means of an injunction from committing waste in the properties, No doubt, she cannot be restrained from effecting improvements but in regard to cutting down the trees etc, there should be an injunction. If she would like to cut down the old rubber trees standing on the plaint schedule properties and replant the same in the vacant space, she could do so by making an application to the trial court to appoint a commission for doing this slaughter tapping and replanting with the amount obtained by the sale of the cut down trees. If she does not want to re-plant the trees, the amount that could be obtained by cutting down the trees can be invested in Government security or in a nationalised Bank, she being entitled to get the interest on such investments during her lifetime. The suit is decreed in the above terms.

Judgement:

The judgment and decree of the courts below are consequently set aside. In the circumstances of the case, I think it is only proper to direct the parties to bear their costs throughout.

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SUPREME COURT OF INDIA

MATHEW OOMMEN VS SUSEELA MATHEW ON 3 JANUARY, 2006

Summarised Judgement

Introduction:

The appellant filed a petition for grant of letters of administration in respect of a Will said to have been executed by his father Late K.O. Mathew. K.O. Mathew was a practicing advocate of the local Bar.

Facts of the Case:

The will in question is said to have been executed on 15.10.1984. The testator died on 24.10.1984. The appellant is the sole beneficiary under the will. The testator was survived by three children i.e. son, the appellant herein and two daughters named Suseela, the contesting respondent, and Leela. Both the daughters were married during the lifetime of the testator and admittedly had been well provided for at the time of their marriage by the father. Respondent is the only contestant, who herself is an officer in the local Electricity Board while her husband was an officer in the Army.

The other daughter Leela is a practicing doctor with MD qualification. The second daughter is not a party to the proceedings. She never contestd the Will of her father. The parties are Christians and were governed by the Travancore Christian Succession Act, 1917. Under this Act when a daughter is married and she is given Rs.5000/- or more at the time of marriage, she has no right of inheritance in her father's estate. Respondent Suseela had admitted in her statement as DW 1 that her father had given her Rs.30,000/- and 45 gold sovereigns at the time of her marriage. However, a question of validity of the Travancore Christian Succession Act, 1917 had been raised and a writ petition in this behalf was pending in this court at the relevant time.

The testator who was himself a lawyer knew about the pendency of the writ petition challenging the said Act and was therefore, aware of the fact that in the event of the said Act being declared illegal, his daughters would become entitled to share in his estate. This could be the reason that he executed the Will in question.

The appellant applied for grant of Letters of Administration with respect to the Will. On publication of the notice of the petition for grant of letters of administration with respect to the Will, respondent Suseela filed her objection opposing the grant of letters of administration. The propounder of the Will is the son of the testator while the contestant is the daughter of the testator. Thus both the parties are real brother and sister.

They have fully supported the Will by stating necessary facts. In fact, PW 1 who is scribe of the Will stated that he read the Will to the testator after he had written it in his own hand. After reading and signing the Will, the testator returned the Will to PW 1 who signed it thereafter in the presence of the testator. Thereafter the PW 1 handed over the Will to PW 2 who also signed it in the presence of testator. PW 2 stated that he was present throughout the execution of the Will. The trial Court held the Will to be genuine and granted the letters of administration with respect to the Will Exhibit A1. By a strange and wholly untenable reasoning the High Court set aside the well considered judgment of the trial Court and rejected the Will.

Observation of court:

1 and has clearly stated that he is a scribe of the Will as well as he is an attesting witness of the Will. For attestation what is required is an intention to attest which is clear from the statement of PW 1. He categorically stated that he has signed as an attestor and scribe. In our view, the requirement of attestation of the Will by two witnesses is fully met in the present case. After the execution was complete, the testator kept the Will in the drawer of his table. PW 1 has also mentioned the fact that the Will was executed because the case was pending in this Court challenging Travancore Christian Succession Act, 1917. The testator who was himself a lawyer knew this fact.

A perusal of the statements of PW1, PW2 and PW3 further shows that they have not been cross examined on the points now sought to be urged before this Court. It was never suggested to the witnesses that the Will was scribed on a blank letter head containing signatures of the testator. It was never suggested that the Will had been fabricated.

Judgement:

It is not necessary to go into the judgments cited by the learned counsel for respondent which lay down requirements for attestation of Wills. We find no merit in any of the contentions raised on behalf of objector, the respondent herein. The impugned judgment of the High Court cannot be sustained. The same is accordingly set aside and that of the trial Court is restored. The appeal is allowed and stands disposed of accordingly. No order as to cost.

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KERALA HIGH COURT

THANKAMMA AND ANR. VS N. KUNJAMMA AND ORS. ON 26 NOVEMBER, 1985

Summarised Judgement

Facts of the Case:

This is an appeal by the plaintiffs. They filed the suit for partition. Plaint B schedule property originally belonged to one Chadayan Pathiru. Pathiru died leaving a son, Paulose, and two daughters Rajamma and Thankamma. Plaintiffs contended that no streedhanam was given by Pathiru to his daughters.

The case is that the properties of Pathiru devolved on all his three children. Plaintiffs submitted that the Travancore Christian Succession Act (Regulation II of 1092), for short the Act, is not applicable to Pathiru and his children being Protestant Christians of Neyyattinkara Taluk and that by virtue of a customary usage prevalent among the community, all the children both male and female are entitled to equal shares in the properties of their parents. The plaintiffs are assignees of the rights of Rajamma and Thankamma.

Observation of Court:

I shall briefly refer to the scheme of the Act. I may quote here the objects and reasons for the Travancore Christian Succession Act (Regulation II of 1092).

The law of intestate succession among the various sections of Indian Christians in Travancore is vague and unsettled. The High Courts have been complaining about the unsatisfactory state of the law among Christians. Repeated representations were made by Christian representatives about the desirability of enacting a law of succession. The necessity for legislation has therefore long been felt.

On this report, provisions are made excluding the daughters from inheriting a share of the properties of their parents when they died intestate. I do not think that it can be doubted that if the relevant provisions of the Act regarding succession are applicable to the plaintiffs they cannot claim a share in the properties and so the suit for partition has to be dismissed.

Now reverting back to the effect of section 30, I should say that Section 30 is the declaration and recognition of the customary usage among certain class of Roman Catholic Christians of Latin rite and certain Protestant Christians of the named Taluks sharing the properties of the intestate by the male and female heirs of the intestate equally. Such a custom will have force of law; it need not be proved on a custom having the force of law as such in view of the declaration in Section 30. Section 30 makes it easy for those who claimed that they belonged to Protestant Christians residing in one of the named Taluks to claim the benefit of the custom.

I shall now refer to certain other decisions on this aspect. One of the earliest decisions, where a consideration of this question is seen attempted is (1940) 30 Travancore LJ 470 (Anthony Sebastian Fernandez v. Vareethu Lassar Fernandez). Madhavan Pillai, J. agreeing with the learned Chief Justice observed : --

"It is evident from Section 30 of the Christian Succession Act (Act II of 1092) that the custom applicable to certain classes of the Roman Catholic Christians of the Latin Rite and also to certain- Protestant Christians has been preserved only to the extent of retaining the usage among them for the male and female heirs to share equally in the property of the intestate and not to the extent of excluding female heirs from inheritance merely because streedhanam has been received.

Judgement of Court:

The provisions of the Christian Succession Act referred to above, are, therefore repugnant to the continued existence of the custom that women of these particular communities to whom streedhanam has been paid have no further claim upon their father's estate. The custom accordingly has to be treated as abrogated by the Act."

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KERALA HIGH COURT

THANKAMMA AND ANR. VS N. KUNJAMMA AND ORS. ON 26 NOVEMBER, 1985

Summarised Judgement

Facts of the Case:

The appellant is the defendant in the said suit. Both the appellant and the respondent plaintiff are brother and sister. They are Travancore Christians, migrated from Meenachil Taluk in Wayanad District. The subject matter of the partition is the property situated in Wayanad District. The short question that arose for consideration was as to whether in the case of partition of properties, it is the Travancore Christian Succession Act or the Indian Succession Act that would apply.

The Honourable Supreme Court of India in Mary Roy v. State of Kerala (1986 KLT 508) considered the effect of Part B States (Laws) Act, 1951 and held that in view of Sections 6, 3, 2(cc) and the Schedule thereto, the Travancore Christian Succession Act, 1092 stood wholly repealed on extension of the Succession Act, 1925 to Part B State of Travancore-Cochin by the 1951 Act and not saved by S.29(2) of the Succession Act. Hence, in the matters of intestate succession to property of Indian Christians of former State of Travancore, Chapter II of Part V of Succession Act would apply.

Observation of Court:

Therefore, there is no doubt that in matters of intestate succession regarding plaint schedule property, it is the Indian Succession Act 1925 that would apply and it is the admitted case of the parties that the property in question devolved on the plaintiff and the defendant in equal share on the death of the mother. But the issue which arose for consideration before the court below was as to whether the earlier decision in the suit between the parties to this suit would operate as res judicata. Earlier, the plaintiff had instituted a suit as OS No.3/77 for partition and separate allotment of share in the plaint schedule property. The suit was dismissed and the appeal filed by her as AS No.58/78 was also dismissed.

So, the matter has become final. It was the contention of the plaintiff in that suit that since the property was situated in Malabar, the Travancore Christian Succession Act will not apply and the parties will be governed by the provisions of the Indian Succession Act. However, it was a negative holding that since the parties are Travancore Christians, irrespective of the land where the property is situated, they will be governed by the provisions of the Travancore Christian Succession Act. The effect of the Part B States (Laws) Act, 1951 did not arise for consideration.

We have heard the parties. As per the principle contained in S.11 CPC, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.

The issues that are raised in the present suit are (1) whether the plaint schedule property is partible and (2) whether the suit is barred by the principle of res judicata. Admittedly, in the earlier suit, the effect of the provisions contained in the Part B States (Laws) Act, 1951 over the Travancore Christian Succession Act was not raised or considered.

In effect, what was done was to re-enact the repealed law. Therefore, the said decision is fully without jurisdiction. It has been held by the Apex Court in Allahabad Development Authority v. Nasiruzzaman (1996)6 SCC 424) that when a previous decision is found to be prima facie erroneous, it will not operate as res judicata.

Judgement:

In the aforesaid view, the decision rendered by the trial court and as confirmed by this court, holding that the present suit is not barred by the rule of res judicata is perfectly correct, though for our own reasons as stated above. In the result, the appeal fails and it is accordingly dismissed.

                                   

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AS - 29122019