P J LEONES Vs. LILLY

JUDGEMENT

(1.) This appeal by the 3rd defendant arises out of a suit for partition. The plaintiff and defendants 5 and 6 are the daughters, defendants 2 to 4 are the sons, and the first defendant is the widow of one deceased Joseph. By the amended plaint, the plaintiff relied on the custom recognised in S.30 of the Travancore Christian Succession Act, and claimed an 1/4 share in Joseph's properties, alleging inter alia, that the 5th defendant had become a nun and is therefore not entitled to any interest in them and that the 6th defendant had been married and given her share. Partition was also claimed on the basis of the other provisions of the Christian Succession Act. The Subordinate Judge treated the question arising under S.30 as one of law, and held "that the parties in this case being Roman Catholic Christians of the Latin rite and residing in Central Travancore at Thumboli which is in Ambalapuzha Taluk are governed by S.30 of the Travancore Christian Succession Act and as such plaintiff is entitled to share equally with the sons over the properties left intestate by the deceased father even if plaintiff is given stridhanam at the time of marriage. Plaintiff is therefore entitled to get 1/4th share over the plaint schedule properties subject to the maintenance right of the first defendant." It has been held in Kunjupillai Kurup v. Sebastian Elaprasya Fernande, 1963 KLT 737 , that in order to attract S.30, it is not enough if the plaintiff proves that she is a Roman Catholic Christian of the Latin Rite, but it must further be proved that she belongs to a class of Roman Catholic Christians of the Latin Rite, among whom the usage obtains. The parties and the Court misdirected themselves as to the nature of the enquiry under S.30 perhaps in view of earlier decided cases on the subject. We feel that the question as to the custom under S.30 has to be tried and decided by the lower court, on evidence to be adduced by the parties.

(2.) Incidentally, the Subordinate Judge also found, that the plaintiff had not been given stridhanam on her marriage. This has relevance only in determining the plaintiff's claim under S.28 of the Travancore Christian Succession Act. But Para.2 of that Section has enacted, that "the stridhanam due to a daughter shall be fixed at one fourth the value of the share of a son, or Rs. 5,000/- whichever is less", and construing this Section, it has been held in Eleesa v. Aeliya 1947 TLR 285 that stridhanam is a claim for money and not a claim for a share of the property of the intestate. Learned counsel for the 3rd defendant contended, that the suit being for partition of properties, the suit is not maintainable at the instance of the plaintiff, apart from S.30 of the Act. We however think, that the frame of the suit admits of a money claim under S.28 of the Act, if the larger relief with regard to partition of properties is not sustainable. In this view, we think, that the subject matter of issue 1 regarding the payment of stridhanam to the plaintiff upon her marriage may also be reopened and the question left open for a fresh decision, if it becomes necessary.

(3.) In the result, we set aside the judgment and decree of the Subordinate Judge and remand the case to him for trial and decision in the light of the observations made above. The costs of this appeal will be costs in the cause and will be provided for in the decree which will be passed hereinafter. The appellant is allowed refund of the court fee paid on the appeal memorandum. Apart from S.30, if the plaintiff wants to claim stridhanam in terms of S.28 of the Act in money, the deficiency in court fee has to be made good in the lower court.