FRANCIS VITALIS PERIERA Vs. PRAKASI GOMEZ

JUDGEMENT

(1.) THIS Second Appeal arises out of a suit (O. S. No. 737 of 1122) for partition before the Attingal Munsiff's Court. Plaintiff 2 as the assignee from plaintiff 1 of her share in. the three plaint schedule items was given a preliminary decree for a partition and delivery to her of a one tenth share in them. According to the plaintiffs as one of the two surviving sisters of one Cecily Pereira plaintiff 1 was entitled to a one -half share. The contesting defendants, defendants 12 and 14 claimed to have obtained the entire rights in the properties from the brothers of the deceased Cecily and from the latter's husband. According to them the brothers were the sole heirs of Cecily and they had also obtained a surrender of whatever rights Cecily's husband had in the properties. The learned Munsiff found the claims advanced by either side to be unsustainable and held that under the law governing the parties the husband of the deceased woman was entitled absolutely to a one -half share of her properties and that her two surviving sisters (Plaintiff 1 and defendant 2) and her three brothers were entitled to share the remaining half share equally.

(2.) THE learned Single Judge Wore whom this Second Appeal came up for hearing referred it for decision to a Division Bench and the Division Bench in its turn referred it for decision to a Full Bench. The two reference orders state that the decision of the Second Appeal involved the true construction of Section 30 of the Travancore Christian Succession Act (Act II of 1092) and as there was no decision bearing on the question it was considered desirable to have an authoritative pronouncement of a Full Bench about it. We however feel handicapped in giving such a decision as there is no appearance before us on behalf of the respondent.

(3.) WE are afraid that the learned Subordinate Judge's view is wrong. Sections 17 and 19 of the Christian Succession Act read together show that the husband is a legal heir of his deceased wife and that he would be entitled to a one -half share of the wife's properties. Section 25 prescribes that the residue will be divided among the heirs of the different groups mentioned there according to the preference laid down in the section.