ROSAMMAL ISSETHEENAMMAL FERNANDEZ Vs. JOOSA MARIYAN FERNANDEZ

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The short question raised is, whether the High Court was right to entertain Exhibit B-1 in evidence, in view of proviso to S. 68 of the Indian Evidence Act.

(3.) The short facts are, the appellants filed the suit for partition of the plaint Schedule property claiming 2/5th share as parties are Roman Catholic Christians of Latin rite and as per custom in the community, both daughters and sons get equal share. The appellant also challenged the execution of the gift deed Exhibit B-1 and the Settlement Deed Exhibit B-2. The trial Court dismissed the suit with the finding that the plaintiffs have not proved the existence of any custom, by which the male and female heirs share equally to the property of a deceased dying intestate. The claim of the property is from Jossa Mariyan Fernandez (deceased). The Court held that Jaius Fernandez was not in a position to execute the documents on the alleged date i.e. the 12th of November, 1973. Aggrieved by the same, the appellants filed an appeal. The appellate Court, after permitting to bring on record, two additional documents, remanded the case back for fresh determination. After remand the trial Court decreed the suit and held that the custom alleged has been proved and disbelieved the execution of the said two documents. The respondents' appeal by the appellate Court was allowed and the trial Court judgment was set aside. The appellant's second appeal was dismissed. The High Court held the issue of custom has become irrelevant in view of the decision of this Court that succession among Christians in Travancore is governed by Indian Succession Act under which daughter also gets right to succeed. However, considering the execution of the said two documents with reference to the gift deed which we are concerned, in the absence of any of the attesting witness being examined, the High Court held as there was no specific denial of this document by the plaintiff hence, proviso to S. 68 of the Evidence Act will apply.