PRAKASI GOMEZ Vs. FRANCIS VITALIS PERIERA

JUDGEMENT

(1.) This Second Appeal arises out of a suit (O.S. No. 737 of 1122) for partition before the Attingal Munsiffs 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 latters husband. According to them the brothers were the sole heirs of Cecily and they had also obtained a surrender of whatever rights Cecilys 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. Defendant 3 was one of the brothers, the husband of defendant 5 and the father of defendants 4, 6 and 7 another and the father of defendants 8 to 10 the third. Defendant, 12 died during the pendency of the suit and defendants 15 to 19 were brought on record as legal heirs. Plaintiff 2 was dissatisfied with the Munsiffs decree awarding him only a one-tenth share and preferred A. S. No. 536 of 1954 before the Attingal Sub-Court seeking to enhance his share into one-half as claimed in the plaint. Defendant 14 or the legal heirs of defendant 12 did not either prefer any appeal of their own or any cross objection in the appeal preferred by plaintiff 2. The learned Subordinate Judge allowed the appeal & modified the preliminary decree of the Munsiff by enhancing the share of plaintiff 2 to one-half. Defendants 14 to 19 have brought this Second Appeal against the decree passed in the appeal.

(2.) The learned Single Judge before 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 S.30 of the Travancore Christian Succession Act (Act II of 1092) & 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. No doubt Mr. G. Viswanatha Iyer who appeared on behalf of the appellant placed all the relevant aspects of the case before us and we also got some assistance from Mr. T.K: Kurian who at our instance appeared in the case as amicus curiae All the same we consider it advisable to be content with giving a decision to the parties in the case and not to attempt to lay down the law as envisaged by the referring orders. That can more appropriately be done on an occasion when the matter is fully thrashed out at the Bar.

(3.) The lower courts as also the parties proceeded on the basis that Cicely Pereira died childless leaving behind her husband, three brothers and two sisters. The extreme contentions that the sisters excluded the brothers from inheritance and vice versa were found against by the Trial Court and both sides submitted to those findings before the appellate court The learned Munsiff found that the husband who had survived Cecily was entitled absolutely to a one-half share in her properties, but the learned Subordinate Judge negatived that view and held that he had only a life interest over a one-half share.