Tapuriah Jain & Associates

MADRAS HIGH COURT

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

Summarised Judgement (Scroll for Complete 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.

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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Complete Judgement

MADRAS HIGH COURT

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

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 04.09.2018

Reserved on : 16.08.2018

Pronounced on : 04.09.2018

Coram

The Hon'ble Mr. Justice C.V.KARTHIKEYAN

Second Appeal(MD) No.591 of 2010

1.Wills Padma (died)

2.Premsingh Charles

3.Moses Viju Charles

4.David Mano Charles

5.Ruban Charles ... Appellants

1.Charles Jeya Thilak

2.R.J.P.Manoharan

3.Mallika

4.Nesabai (died)

5.Jayasingh Jose Mohan Roy

6.Basanth Honey Roy ... Respondents

Prayer: The Second Appeal is filed under Section 100 of CPC against the Judgment and Decree in O.S.No.38 of 2004 dated 21.06.2005 on the file of Additional District Munsif Court, Padmanabhapuram as confirmed by Judgment and Decree in A.S.No.89 of 2005 dated 12.11.2009 on the file of Subordinate Court, Padmanabhapuram.

!For Appellant : Mr.AR.L.Sundaresan, Senior Counsel

(for M/s.AL.Gandhimathi)

^For R1 to R3,R5 and R6: Mr.P.Thiagarajan

Additional Government Pleader

For R4 : Died

JUDGMENT

2.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.

3.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.

4.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.

5.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. Annie Rosammal was dealing with 'A' schedule properties subject to Gnanadeepam's right to enjoyment. She died intestate on 11.11.1949. She left behind three daughters and one son namely, Nesa bai (1st defendant), Sworna bai (plaintiff), Sumathy (died) and Bennet Sam (2nd defendant) as her legal heirs. It was stated that at the time of partition, the parties who were Nadar Christians were covered by the Travancore Christian Succession Act (Act 11 of 1092 M.E.). The Act was repealed on 01.04.1951 when the Indian Succession Act 1925 became applicable to Kanyakumari District.

6.The plaintiff was married to Robert Jonas on 08.05.1952, according to the rites and customs prevailing among Nadar Christians in Kanyakumari district. Since, she was a legal heir to one-fourth undivided share in the plaint schedule properties, she was not given any sridhana at the time of marriage. The plaintiff's father J.N Charles, the husband of Annie Rosammal, died intestate on 14.06.1953. Gnanadeepam, the surviving wife of Samuel Benjamin died on 28.03.1963. The plaintiff's sister Sumathy died issueless on 17.02.1978. Her interest devolved upon the plaintiff and the defendants. The plaintiff claimed 1/3 undivided share in the suit schedule properties and sought partition and separate possession.

7.The first defendant, Nesa Bai, did not file any written statement, but, she supported the case of the plaintiff. She participated in the judicial proceedings through her advocate.

8.The second defendant Bennet Sam filed his written statement contesting the claim of the plaintiff. According to the second defendant, at the time of death of Annie Rosammal, on 11.11.1949, he became the absolute owner of the entire plaint schedule properties. He claimed that the plaintiff and the first defendant only had a right for sridhanam. He claimed that as on 11.11.1949, the plaintiff and the first defendant did not get any title over the properties under the Travancore Christian Succession Act, (Regulation II of 1092 M.E).

9.The second defendant further claimed that the plaintiff was given jewels and sridhanam like any other daughter. He denied the allegation that she was not given any sridhanam. He further stated that the plaintiff was not entitled to 1/3 undivided share in the suit schedule property. He claimed absolute ownership of all the properties. He further stated that item nos. 2,8,9,10,11,12,23,27,28 were already sold by him. He further claimed that plaint schedule property item no.7 was given as sridhanam to the first defendant and she sold the same. He filed O.S.No.42 of 1983 for declaration of title and recovery of the house in item no. 30 and also obtained a decree with respect to plaint schedule property item nos.3,16,17,19,26 and 30.

He stated that the remaining items namely 1,4,5,6,13,14,15,18,20,21,22,24,25 and 29 are in his possession and enjoyment, as absolute owner. He reiterated that the plaintiff has no title and asserted that the suit should be dismissed.

10.The Additional District Munsif Court Padmanabhapuram, on consideration of the pleadings and documents, framed the following issues for trial:

(i) Whether the plaintiff is entitled for partition and separate possession, as claimed by her in the plaint?

(ii) Whether the second defendant had prescribed title through adverse possession and ouster?

(iii) To what other reliefs, the plaintiff is entitled to?

11.During trial, the plaintiff examined two witnesses, namely, Manoharan as PW-1 and Amose as PW-2. On the side of the defendants, the second defendant Bennet Sam was examined as DW1. The plaintiffs marked Exs. A1 to A23. These included, a partition deed executed by Annie Rosammal and others on 16.12.1945 as Ex.A1 and its translation Ex.A2, Exs.A3 to A18 were property tax receipts, Exs.A19 and A20 were house tax receipts, Exs.A21 to A23 were Patta documents. On the side of the defendants, Exs.B1 to B44 were marked. These included documents dated 15.01.1122(M.E) being the document executed by Annie Rosammal in favour of Nesa bai as Exs.B1 and B2. The documents executed with respect to the various schedule properties in Malayalam and its Tamil translation were marked as Exs.B3 to B22 and Exs.B35 to B38. The Judgment and Decree in earlier proceedings were marked as Ex.B24 and B29. The electricity receipts, panchayat receipt, property tax and patta book were marked as Ex. B30, B31, B41 & B42.

12.On consideration of the oral and documentary evidence, the Additional District Munsif Court held that on the death of Annie Rosammal, her husband J.M.Charles and her son Bennat Sam, the second defendant became entitled to an equal undivided 1/2 share in the suit schedule properties. This was in accordance with the provisions of Travancore Christian Succession Act. Thereafter, on the death of J.M.Charles and consequent to the repealing of Travancore Christian Succession Act, his 1/2 share devolved in equal parts to the plaintiff, the first defendant and second defendant. Consequently, it was held that the plaintiff was entitled to undivided 1/6 share, the first defendant was entitled to undivided 1/6 share and the second defendant was entitled to an undivided 4/6 share in the suit properties.

13.The Additional District Munsif negatived the claim of the second defendant that on the death of his mother Annie Rosammal, the entire properties devolved on to him and that, he was the absolute owner of the entire properties. During the pendency of the suit, the plaintiff died and her legal representatives had been brought on record as second, third and fourth plaintiffs.

14.As against the judgment and decree, first appeal was filed. During the pendency of the first appeal, the Appellant Bennet Sam also died and his legal representatives were brought on record as second and sixth appellants. The first defendant who was shown as the fourth respondent in the appeal also died and her legal representatives were brought on record as fifth and sixth respondents. The second and third plaintiffs also filed a cross appeal. The third plaintiff filed an independent cross appeal. A.S.No.89 of 2005, Cross Appeal No.89 of 2005 and Cross Appeal No.89 of 2005 were heard together by the learned Subordinate Judge, Padmanabhapuram. By Judgment dated 12.11.2009, the Judgment and Decree in O.S.No.38 of 2004 dated 21.06.2005 passed by the Additional District Munsif Court Padmanabhapuram was confirmed and the appeal and cross appeals were all dismissed.

15.Challenging this Judgment and Decree, the appellants in A.S.No.89 of 2005 who were the legal representatives of the deceased second defendant in the suit filed the present second appeal. At the time of admission of the second appeal, the following substantial questions of law were framed:

''(i) Whether the Courts below erred in holding that the husband of Annie Rosammal, who died on 11.11.1949, was entitled to + share in the assets left behind by Annie Rosammal by an erroneous interpretation of the provisions of the Travancore Christian Succession Act?

(ii) Whether the suit filed by the plaintiffs for partition without impleading the alienees in respect of the property prior to the filing of the suit is bad for non-joinder of necessary parties?

(iii) As to what relief, the parties are entitled to?''

16.As stated above, pending the second appeal, the first appellant who was the wife of Bennet Sam died, but, since her legal heirs were already on record, a memo in this regard was recorded. The first defendant in the suit, who was shown as the fourth respondent also died and her legal representatives were respondents 5 and 6.

17.Heard arguments advanced by Mr.AR.L.Sundaresan, learned senior counsel for the appellants and Mr.P.Thiagarajan learned counsel for Respondents 1 to 3, 5 and 6.

18.The learned Senior counsel appearing for the appellants took the Court through the pleadings in the case and stated that the parties were governed by the Travancore Christian Succession Act (Regulation II of 1092 M.E). He further stated that Samuel Benjamin who was the original owner of the suit properties, had four wives. The mother of plaintiff and defendants was the daughter of the first wife Yesunesam. Her name was Annie Rosammal. The name of her husband was Charles. They had four children. The second daughter Sworna Bai was the plaintiff. The first daughter was the first defendant. Another daughter Sumathy died issueless. The son Bennet Sam was the second defendant. After the death of Yesunesam, Samuel Benjamin married Gnanathangam. They had a daughter, Jessie. On the death of Gnanathangam, he married for a third time. However, both the mother and son died. He then married Gnanadeepam as his fourth wife. There were no issue, from that marriage. She died on 28.03.1963 after the death of Samuel Benjamin.

19.On the death of Samuel Benjamin, his properties devolved on to Annie Rosammal (daughter through Yasunesam), Jessie (daughter Thanga Gnanathangam) and Gnanadeepam (fourth wife). There was a partition among them. Annie Rosammal was given the suit schedule properties. She died on 11.11.1949. On her death, according to the learned Senior counsel, the properties devolved on to her widower J.N.Charles and to their lineal descendants.

20.However, the learned Senior counsel stated that though the widower got a right under Section 19 of the Travancore Christian Succession Act, his rights were the same rights as a widow gets, if her husband dies intestate. According to the learned Senior counsel, under Section 24 of the Travancore Christian Succession Act, a widow gets only a life-interest. Reading the provision into Section 19, the learned Senior counsel stated that the widower J.N.Charles also got only a life-interest. Further among the lineal descendants, the son would get a share in the property and a daughter would get only sridhanam rights.

21. In the present case, the plaintiff and the first defendant were each entitled only to sridhanam rights. The life-estate of the father devolved on to his son, the second defendant who, on repeal of the Tranvancore Christians Succession Act, became the absolute owner of the properties. In this regard, the learned Senior counsel stated that both the Courts below had erred in holding that the widower Charles and the son, second defendant Bennat Sam had an equal share in the properties on the death of Annie Rosammal and that subsequently after the repeal of the Travancore Christian Succession Act in 1951, the 1/2 share of Charles, further devolved into three equal parts among his two daughters and son. The learned Senior counsel stated that consequently the appeal filed by the legal heirs of Bennet Sam, the second defendant should be allowed and they must be declared to have absolute right over the suit schedule properties.

22.Mr.P.Thiagarajan, learned counsel for the respondents disputed the said assertion. He admitted the relationship among the parties, but, stated that under Section 24 of the Travancore Christian Succession Act, it had been specifically provided that a widow will get only a life-interest to which she gets entitled to under Sections 16, 17, 21 and 22 of the Act. It was pointed out that Section 19 was not included under Section 24 of the Act. The learned counsel therefore stated that on the death of a female intestate, her widower and lineal descendants will get equal share in the property under Section 19 of the Act. The sons will get precedence under Section 28 of the Act. Consequently the learned counsel stated that both the Courts below have given a well considered Judgment, which does not warrant any interference.

23.I have carefully considered the pleadings, oral and documentary evidence and the arguments advanced.

24. Even though the legal heirs of the second defendant are the appellants, for sake of convenience, the parties would be referred as plaintiffs and defendants. The legal heirs of the plaintiff have been shown as respondents 1 and 3. The first defendant has been shown as fourth respondent and on her death, her legal heirs have been shown as 5th and 6th respondents. In short, the plaintiff Sworna Bai and the first defendant Nesa Bai are daughters and second defendant Bennat Sam is the son of Annie Rosammal and J.N.Charles.

25.The second substantial question of law is with respect to non- joinder of necessary parties. This question of law had been framed, since in the written statement the second defendant had claimed that he had sold suit Item Nos. 2,8,9,10,11,12,23,27 and 28 and that the first defendant had sold item no.7. However, it must be also mentioned that he had not given the details regarding the date of sale, the details and the names of purchasers and the recitals in the said sale deeds. In the absence of such requisite details, a reasonable doubt also arises whether as a matter of fact he had actually sold the said suit schedule properties. The entire trial had been conducted on the basis that the suit schedule properties are available for partition. At any rate, if he did not have any title over the properties, then, the purchasers would not get any better title. If, on the other hand, he has title, then, at the time of final Decree, the equities can be worked out and consequently, the suit cannot be said to be bad for non-joinder of the alienees. The second substantial question of law is answered accordingly.

26.The first substantial question of law requires more detailed discussion. This requires the interpretation of provisions of the Travancore Christian Succession Act (Regulation II of 1092 M.E). The year would be equivalent to 1916. This Act stood repealed after the coming into force of Part-B States(Laws) Act, 1951. After such repeal, chapter 2 of part-V of the Indian Succession Act became applicable and the parties became governed by the provisions of Indian Succession Act. The Travancore Christian Succession Act was also not saved by Section 29, Sub-Section-2 of the Indian Succession Act 1951. The plaintiff and the defendants were originally governed under the provisions of Travancore Christian Succession Act.

27.The properties mentioned in the plaint originally belonged to Samuel Benjamin. He had four wives. The first wife was Yesunesam. She had a daughter by name Annie Rosammal. The second wife Gnanathangam had a daughter, Jessie. The third wife had a son, Samraj but both she and her son died. The fourth wife Gnanadeepam did not have any issues. She survived Samuel Benjamin. On the death of Samuel Benjamin, his shares devolved under Section 16 of the Act.

28.Section 16 of Travancore Christian Succession Act reads as follows: ?Widow co-existing with the deceased's Children:- Where the intestate has left a widow, if he has also left lineal descendants, a share equal to that of a son shall be allotted to her;

Provided, however, when the lineal descendants of the deceased consist only of his daughters or the descendants of any deceased daughter or daughters, the widow's share shall be equal to that of a daughter?.

29.Section 24 of the Act also becomes applicable, when the wife survives a husband. Section 24 of Travancore Christian Succession Act reads as follows:

?Widow or mother has only a life-interest terminable at death or remarriage over any immovable property to which she may become entitled under Sections 16,17,21 and 22:--

Over any immovable property to which a widow or mother becomes entitled to under Sections 16,17,21 and 22, she will have only a life- interest terminable at death or remarriage. On the determination of the limited estate of the widow or the mother, the property over which she had such limited interest shall be distributed among the heirs of the original intestate, as if the holder of the life-estate had not survived the intestate?.

30.The Order of succession had been given under Section 25. Section 28 relates to entitlement, as between a son and daughter. Section 28 of Travancore Christian Succession Act reads as follows:

The shares of sons in Group (1) of section 25:- ?Without prejudice to the provisions of section 16 the male heirs mentioned in group (1) of section 25, shall be entitled to have the whole of the intestate's property divided equally among themselves, subject to the claims of the daughter for sridhanam.

Daughter's sridhanam and its value:The sridhanam due to a daughter shall be fixed at one-fourth the value of the share of a son, or Rs.5000/- whichever is less.

Female heirs who were paid sridhanam to be ordinarily left out of consideration:

Provided that any female heir of an intestate to whom sridhanam was paid or promised by the intestate, or in the intestate's life time either by such intestate's wife or husband or after the death of such wife or husband, by her or his heirs shall not be entitled to have any further claim in the property of the intestate when any of her brother (whether of the full-blood or of the half-blood by the same father) or th lineal descendants of any such deceased brother shall survive the intestate.

Any Sridhanam promised, but not paid by the intestate shall be a charge upon his property?.

31.Reading of the above provisions, leads to the following conclusion:

(i) On the death of Samuel Benjamin, his surviving widow Gnanadeepam would have a life-interest over his properties.

(ii) His two daughters Annie Rosammal and Jessie inherited 1/2 share in the properties.

(iii) Thereafter, Annie Rosammal and Jessie entered into a partition deed on 16.12.1945 registered as Document No.1969 in the Eranial Sub- Registrar Office. By this partition, Annie Rosammal became entitled to the suit schedule properties.

32.Gnanadeepam died on 28.03.1963. Annie Rosammal died on 11.11.1949. She left behind her husband J.N.Charles, her daughters Nesa Bai, Sworna Bai, Sumathy and a son Bennet Sam. Sumathy died issueless. Consequently, the only claimants to the properties were her husband J.N.Charles, her daughters Nesa Bai, Sworna Bai and her son Bennet Sam.

33.Under Section 28 of the Travancore Christian Succession Act, the daughters were entitled only for sridhana rights. This left two claimants, namely, the husband J.N.Charles and the son Bennet Sam.

34.Section 19 of Travancore Christian Succession Act reads as follows: ''Rights of widower and widow:- The husband surviving his wife has the same rights in respect of her property if she dies intestate, as the widow has in respect of her husband's property if he dies intestate''.

35.Mr.AR.L.Sundaresan, learned Senior counsel for the appellants has pointed out the two crucial words ?same rights? and stated that the husband would have the same rights as a widow. The rights which widow has, have been given under Section 24 of the Act and under Section 24 Act, she will have only a life-interest. Consequently, the learned Senior counsel stated that J.N.Charles would also have only a life-interest and the entire property devolved on to the son Bennet Sam. With the repeal of Travancore Christian Succession Act, in 1951 by the introduction of chapter 2 of part-V of the Succession Act 1925, the life-interest of J.N.Charles evaporated and the only heir to the entire properties was the son Bennat Sam. The two daughters would have the rights for sridhana alone as provided under Section 28 of the Act. The learned Senior counsel therefore stated that both the Courts below had erred in granting a share to the plaintiff and the first defendant. But, however, Section 24 clarifies that a widow has a life-interest only to any property she became entitled to under Sections 16, 17, 21 and 22 of the Act. The question to be examined is whether the word ?widow? under Section 24 would also include ?widower?.

36.It had been urged by Mr.AR.L.Sundaresan, learned Senior counsel that the said extension must be given in view of the words ?same rights? given in Section 19 of the Act. Mr.P.Thiagarajan learned counsel on the other hand stated that under Section 24 of the Act, section 19 of the Act is not mentioned and hence, it cannot be held that a widower has only a life- interest.

37.A careful reading of the provisions would indicate that Section 24 of the Act is an explanation to the nature of rights, which a widow gets and its termination on her death or remarriage. This provision took into account the fact that if a widow remarries or dies, then her limited interest would be distributed among the heirs of the original intestate, as if the holder of the life-estate had not survived the intestate. These provisions would effectively prevent any right, which a widow gets under Section 19 from flowing out of the family on remarriage or on her death. Very specifically, under Section 16 of the Act, it had been provided that a widow will have a share equal to that of a son or to that of a daughter. This share had been further limited to life-interest.

38.The word ?same rights? in Section 19 will have to be related to Section 16 of the Act, which is the primary section which gives the manner in which a property devolves on to a widow. When the intestate dies, Section 16 of the Act, says a widow will get a share equal to that of a son. This has been extended to a widower under Section 19 of the Act and a widower will also get a share equal to that of a son. However, under Section 24 of the Act, the share of the widow alone has been qualified, as life-interest. No such qualification has been given to the share, which the widower gets on the death of his wife, consequently, a widower and a son will get equal shares.

39.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.

40.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.

41.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.

1.The Additional District Munsif, Padmanabhapuram.

2.The Subordinate Judge, Padmanabhapuram.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

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