MARY Vs. ELIYAMMA

JUDGEMENT

(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:

(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.