SEBASTIAN GEORGE Vs. NARAYANA PILLAI

JUDGEMENT

(1.) This is an appeal from the judgment of a single Judge of this Court in S.A. No. 17 of 1959 and the only question for consideration in this appeal is what is the nature of the estate which a Christian widow takes under Act II of 1092. The facts of the case lie in a narrow compass. The property involved in this case belonged to one Sebastian, the husband of the 1st defendant and father of defendants 2 to 5. The 1st defendant executed a promissory note in favour of one Eliswa after the death of Sebastian. Eliswa endorsed the note in favour of the plaintiff who instituted O.S. No. 245 of 1114 in the District Munsiffs Court of Parur against defendants 1 to 5 for recovery of the amount. The suit was decreed only as against the 1st defendant. In execution of that decree the share of the 1st defendant in the suit properties was sold in court auction and was purchased by the plaintiff. By the present action he seeks a partition of the 1 5th share belonging to the 1st defendant in the suit properties and of which he became the owner by virtue of the purchase in execution of O.S. 245/1114 of the Munsiffs Court.

(2.) The learned Munsiff dismissed the suit holding that the 1st defendant had no saleable interest in the property. That decision was reversed by the Subordinate Judge in A.S. 312 of 1956 preferred by the plaintiff. Against this decision the 3rd defendant filed S.A. 17 of 1959 and the learned single Judge, by his judgment under appeal, confirmed the decree of the Subordinate Judge.

(3.) In this appeal the main contention urged by counsel for the appellant is that the 1st defendant in O.S. No. 245 of 1114 had no transferable interest in the property as she had only an estate terminable with death or remarriage. It was contended on the strength of S.6 Clause (d) of the Transfer of Property Act that an interest in the property restricted in its enjoyment to the owner personally cannot be transferred or taken in execution against the owner. On an analysis of the relevant sections of the Christian Succession Act the learned single Judge came to the conclusion that the intention of the legislature was to provide the widow with an estate in the property of the deceased which is terminable with her death or remarriage and that interest is transferable by her. As we are in full agreement with the learned single Judge in his conclusion we need not travel the grounds which he has covered in his judgment, but state only the reasons which induced us to come to the same conclusion. The relevant sections are S.15, 16 and 24. S.15 says that the property of an intestate devolves upon the wife or the husband or upon those who are kindred of the deceased in the order and according to the rules prescribed. S.16 states that if the widow exists along with lineal descendants a share equal to that of a son shall be allotted to her. S.24 quantifies the interest which the widow is to take in respect of the share to which she becomes entitled under