KURIAN AUGUSTY Vs. DEVASSY ALEY

JUDGEMENT

(1.) Plaintiffs are the appellants. The suit is for partition of properties left by one Joseph Kathanar who died intestate on 24.12.1952. Plaintiffs are the sons of a deceased sister of Joseph Kathanar. He had three brothers and two sisters of whom only one brother (the first defendant) and one sister (the second defendant) are now alive. Defendants 3 and 4 are the children and defendants 5 to 9 the grandchildren of a deceased brother, Pylee, and defendants 10 to 12 the children of the other deceased brother, Ithappiri. Defendants 13 to 19 were impleaded as persons in occupation of some of the properties. The first defendant died during the pendency of the suit and his legal representatives were impleaded as additional defendants 20 to 23. According to the plaintiffs they are entitled to one-fifth share in the properties, and the suit is for partition of that share.

(2.) The second defendant supported the plaintiffs and contended that she also was entitled to one-fifth share in the properties. Defendants 3 and 11 contended, inter alia, that under the Travancore Christian Succession Act the plaintiffs were not entitled to any share in the properties of deceased Joseph Kathanar. The fifth defendant also contended that the plaintiffs were not the heirs of deceased Joseph Kathanar and that the two sisters of Joseph Kathanar have been married away and given their streedhanam long before the death of Joseph Kathanar. The 21st defendant also contended that the plaintiffs were not entitled to any share in the properties of deceased Joseph Kathanar.

(3.) The first issue raised in the case was: Are the plaintiffs heirs of deceased Joseph Kathanar What is the law that governs the distribution of the assets of Joseph Kathanar This issue was tried as a preliminary issue. According to the plaintiffs, the law that governs succession to the properties of deceased Joseph Kathanar is the Indian Succession Act XXXIX of 1925, while according to defendants 3, 5, 11 and 21, the law that applies to the case is the Travancore Christian Succession Act, II of 1092. The Court below held that it was the Travancore Christian Succession Act that applied to the case. The Indian Succession Act is one of the Central Acts extended to the Travancore-Cochin State by the Part B States (Laws) Act, III of 1951, which came into force on 1.4.1951. S.6 of that Act (III of 1951) provides: