ANTHONY BARBARA Vs. AGASTHIAN

JUDGEMENT

(1.) These are two second appeals which arise out of two suits which were tried and disposed of jointly. They relate to the rights inter se of the sons and daughters to succeed their parents who were Roman Catholics of the Latin rite. According to the appellants the property belonged to their father absolutely and was assigned to them by two assignment deeds, Exts. V and XIV, but according to the contesting plaintiff respondent, the property belonged on Stridhanam to the mother and devolved on her death on the son and the unmarried daughter. It has been concurrently found by the two courts that the property belonged to the mother and not to the father. These findings are not open to challenge in these second appeals and must stand.

(2.) But it was contended relying on S.30 of the Christian Succession Act, that among Roman Catholic Christians of the Latin Rite, married daughters are also entitled to share in the mothers property. This contention was negatived by the two courts on the ground that no such custom was pleaded. The plea in the written statements does not constitute an averment of a custom. But relying on Anthony Sebastian Fernandez v. Vareethu Lassar Fernandez (30 TLJ. 470) it was argued that S.30 itself embodies the customary law. I cannot accept the contention, for what it provides is that S.24, 28 and 29 of the aforesaid Act by which female heirs are excluded would have no application to Roman Catholics of the Latin rite amongst whom there is a custom by which the male and female heirs share equally. So a custom has to be alleged and proved in order to attract S.30. In the case cited, such a custom was definitely set up and found and the reference to the Full Bench which decided the case arose on account of the opinion expressed by two early cases on the subject.

(3.) In the case before me the appellants not having set up the custom, cannot succeed. These second appeals are therefore dismissed with costs. Leave to appeal asked for is granted.