ELIZABETH Vs. SUSANNA

JUDGEMENT

(1.) This appeal is by the plaintiffs in a suit for partition. The suit properties belonged to Thresia who died on February 14, 1960. The 1st plaintiff is her daughter. She had another daughter, Madam - the mother of plaintiffs 2 to 5 - who died on February 12, 1947. Thresia had a son, Andrew, who predeceased he on August 9, 1951, leaving behind his widow, the 1st defendant and children defendants 2 to 6. Thresia had executed and registered a will, Ext. D4, dated March 1, 1948, devising all her properties to Andrew; but it is conceded that no probate of the will or letters of administration with the will annexed have been taken. Plaintiffs claim that as Andrew predeceased Thresia, the legacy in his favour lapsed and therefore they succeed Thresia as on her intestacy. The defendants relied on the will and contended further that Mariam and the 1st plaintiff have been paid Streedhanam and therefore the plaintiffs are excluded from succession to Thresias estate. The Court below dismissed the suit. Hence this appeal.

(2.) The will, Ext. D4, cannot be acted upon to find title to any property because of the injunction in S.213 of the Indian Succession Act. S.213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have been obtained. (Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbhashini Bose ( AIR 1962 SC 1471 )). The question therefore is of succession under the personal law of the parties, which is conceded to be the Cochin Christian Succession Act, VI of 1097. S.22 of the Act reads:

(3.) That the 1st plaintiff had been paid Streedhanam by Thresia herself is proved by Ext. D7 and is not now disputed. Counsel contended that there is no proof in this case that Mariam had been paid Streedhanam by one of the relations specified in the Section. That she had been paid Streedhanam is conceded in Para.7 of the plaint. Even in his reply, Ext. D8, to the suit notice, the 1st defendant has stated that since Mariam had been married with Streedhanam her children, plaintiffs 2 to 6 are not entitled to share in Thresias estate and that defence has been reiterated in the written statement of defendants 1 to 6 in the case. The only occasion in which a marriage with Streedhanam would disinherit a woman or her children is what is provided for in S.22 of the Act, quoted above. Therefore the averment in the reply notice and the written statement necessarily implies that such Streedhanam was paid by one of the relations specified in the Section. There is no answer to that averment in the evidence in the case. The mention in Ext. D4 of payment of Streedhanam to Mariam indicates that such payment was by Thresia. The dismissal of the plaintiffs claim by the Court below is therefore justified. In the result, the decree of the Court below is accepted and this appeal dismissed, with costs.