VASTHIYAN ALEXANDER Vs. MARIA ISABELLA FERNANDEZ

JUDGEMENT

(1.) The main point arising for decision in this second appeal is whether a married daughter of a Roman Catholic Christian of the Latin Rite in Quilon, who was paid streedhanam at the time of her marriage, is entitled to a share in her deceased fathers property. The plaintiff and the fourth defendant are married daughters of one Sebastian who died in 1090 M.E., leaving three sons who are defendants 1 to 3 and a widow who died in 1120. The plaintiff was married in 1082 and a sum of 2,000 Fanams was paid to her as sthreedhanom [dowry]. The fourth defendant was married after her fathers death. Defendants 1 to 3 and their mother mortgaged the plaint property with possession under Ext. B in 1098. After the death of their mother, defendants 1 to 3 sold the equity of redemption of the property to the fifth defendant in 1121. The plaintiff sued for partition and recovery of her one-fifth share, alleging that the mortgage and the sale were not supported by consideration and that the same were not binding on her. The fifth defendant contended that the plaintiff having received dowry at the time of her marriage was not entitled to a share in her fathers property and that even if she had any right the same was barred by adverse possession. These contentions were overruled and the plaintiff was given a decree for partition. The decree of the Trial Court was confirmed in appeal, and the fifth defendant has preferred this second appeal.

(2.) When the case came up before Vaidialingam, J., it was referred to a Division Bench by the following order:

(3.) Though the Christian Succession Act, II of 1092 [of Travancore], is not applicable to this case, succession having opened earlier, it is useful to refer to some of the provisions of the Act as it was one mainly consolidating the customary law applicable to intestate succession among the Indian Christians in Travancore. S.28 of the Act says: