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Mary and ors. Vs. Eliyamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 155 of 1969
Judge
Reported inAIR1974Ker107
ActsSuccession Act, 1925 - Sections 29(2); Travancore Christian Succession Act, 1092 - Sections 5 and 7
AppellantMary and ors.
RespondentEliyamma and ors.
Appellant Advocate M.M. Thomas and; K.M. Emmanuel, Advs.
Respondent Advocate O. Balanarayanan, Adv.
DispositionAppeal dismissed
Excerpt:
- .....of intestate succession. in support of that contention reliance was placed on section 29(2) of the indian succession act, the provisions of which indicate that the travancore christian succession act is deemed to have been taken away from the purview of section 29(2) of the indian succession act as it is included in 'any other law for the time being in force' which occurs in the sub-section. section 29 reads:'29. (1) this part shall not apply to any intestacy occurring before the first day of january. 1866, or to the property of any hindu, muhammadan, buddhist, sikh or jaina.(2) save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this part shall constitute the law of india in all cases of intestacy,'if the travancore christian succession.....
Judgment:

E.K. Moidu, J.

1. This second appeal by defendants 3 to 6 in O. S. No. 72 of 1967 of the Court of the Munsif-Magistrate, Manantoddy, arises out of a preliminary decree for partition. The suit was Instituted by the 1st respondent, the plaintiff. 1st respondent and the to defendant are the daughters and deceased husband of the 3rd defendant was the son of one Isaac who died in February, 1964 in the erstwhile Malabar area of the Kerala State. Defendants 4 to 6 are the children of the 3rd defendant. The to defendant is an unmarried daughter and the plaintiff is a married daughter of Isaac. The 1st defendant is the widow of Isaac and mother of the plaintiff, 2nd defendant and the deceased husband of the 3rd defendant. The property in dispute is in Malabar area. The parties are Travancore Christians. They migrated from Travancore to Malabar long ago and have been living there. While so Isaac died. After his death disputes arose as to the succession to his property. Accordingly the plaintiff instituted the suit for partition. The trial court decreed the suit awarding 2/9 share to the plaintiff and the 2nd defendant each, 3/9 share to the 1st defendant and the remaining 2/9 share to defendants 3 to 6. Against that decree and judgment defendants 3 to 6 filed appeal before the District Court. Tellicherry. The appeal was dismissed on 11-10-1968. It is against that appellate decree and judgment that the present second appeal is filed.

2. It is contended on behalf of the appellants that the parties being Travancore Christians they are governed by the Travancore Christian Succession Act in the matter of intestate succession. In support of that contention reliance was placed on Section 29(2) of the Indian Succession Act, the provisions of which indicate that the Travancore Christian Succession Act is deemed to have been taken away from the purview of Section 29(2) of the Indian Succession Act as it is included in 'any other law for the time being in force' which occurs in the sub-section. Section 29 reads:

'29. (1) This part shall not apply to any intestacy occurring before the first day of January. 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.

(2) Save as provided in Sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India in all cases of intestacy,'

If the Travancore Christian Succession Act can be regarded as 'the law in force' as in Section 29(2) of the Indian Succession Act relating to the intestate succession of Christians in Travancore, then that law is saved under Section 29(2) of the Act. It is clear from the section that the provisions of the Act do not apply to partition of the properties of the communities referred to in Part V which have their own laws relating to intestate succession. There cannot therefore be any dispute that the Travancore Christian Succession Act is saved by Section 29(2) of the Indian Succession Act But that will not in any way help the appellants. Section 7 of the Travancore Christian Succession Act is clear to show that succession to immovable property situated in Travancore and belonging to a member of the Indian Christian community wherever he may have had his domicile at the time of his death is to be regulated by that Act. The relevant provisions of Section 7 reads:

'Succession to the immovable property situated in Travancore and belonging to a member of the Indian Christian community is regulated by this Regulation wherever he may have had his domicile at the time of his death.'

In this case the property is not situate in Travancore area, but in the Malabar area, in which case Section 5 of the Indian Succession Act will come into operation. Section 5 states that succession to immovable property in India of a person deceased shall be regulated by the law of India wherever such person may have had his domicile at the time of his death. So in the present case succession to the plaint schedule property shall be determined by the law of India irrespective of the fact that the parties belonged to the Travancore Christian community who is governed by the Travancore Christian Succession Act, So succession shall be regulated by the law of India wherever such person may have had his domicile at the time of his death. Section 7 of the Travancore Christian Succession Act, as already pointed out related only to property which is situate in the Travancore area and not to property which is outside Travancore. The parties are therefore governed by Section 5 of the Indian Succession Act.

3. It is contended that apart from the provisions of the Travancore Christian Succession Act the parties are governed by some custom. There had been no allegation, much less evidence, to establish that there had been a separate custom by which the parties were governed apart from the Travancore Regulation regarding the intestate succession. The contention of the appellants, in the circumstances of the case, cannot be accepted. The Courts below considered the question in correct perspective and has come to the conclusion that Section 5 of the Indian Succession Act will apply to the case. There is no ground therefore to interfere with the conclusion arrived at by the Courts below.

4. There is no merit in this appeal. The second appeal is therefore dismissed with costs of the plaintiff-1st respondent.


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