ABRAHAM MATHEW Vs. CHACKO MARY

JUDGEMENT

(1.) Judgment debtors are the revision petitioners. The respondent decree holder filed E.P. No. 115 of 1986 for realisation of the decree amount. The decree holder is the sister of the revision petitioners. She filed the suit for Rs. 5,000/- alleging that her late father had undertaken to pay this amount at the time of her marriage. However the father could not pay this amount during his life time. At the time of his death he directed his sons, the judgment debtors herein, to pay off this amount. They agreed to pay the amount. They also failed to keep their words and the suit was filed. The present contention of the revision petitioners is that the suit was filed under S.28 of the Travancore Christian Succession Act and since this Act stood repealed with effect from 1st April 1951 a decree passed thereunder is a nullity and hence not executable. Reference was made to the decision of the Supreme Court in Mary Roy's case. (Mary Roy v. State of Kerala, 1986 KLT 508 (SC).

(2.) The learned counsel for the respondent contended that the decree under execution was not passed under S.28 of the Travancore Christian Succession Act, and even if it is assumed so, the decree is not nullity. The Travancore Christian Succession Act was passed by His Highness Maharaja of Travancore on 21st December, 1961 to regulate and consolidate the rules applicable to intestate succession among Indian Christians in Travancore. As per S.28 of the Act the male heirs mentioned in Group (1) of S.25 shall be entitled to have the whole of the intestate property equally among themselves, subject to the claim of the daughter for Sthreedhanam. As per S.28 the female heirs mentioned in Group (1) of S.25 are entitled only to Sthreedhanam as it has been fixed at one fourth of the value of the share of the son or Rs. 5,000/- which ever is less. Group (1) of S.25 consists of sons and daughters and the lineal descendants of such sons or daughters as shall have predeceased. The claim of the decree holder was that her father undertook to pay her Rs. 5,000/- at the time of her marriage. Then it could as well be said that the suit was to enforce her right under S.28 of the Travancore Christian Succession Act. The question is whether the decree passed in such a line is enforcible against the revision petitioners herein in view of Mary Roy v. State of Kerala (1986 KLT 508 (SC).

(3.) In the above case the validity of the Travancore Christian Succession Act was challenged and the Supreme Court held that on coming into force of Part B State (Laws) Act, 1951 the Travancore Christian Succession Act 1092 stood repealed and Chapter II of Part V of Indian Succession Act, 1925 became applicable and intestate succession to the property of members of the Indian Christian Community in the territories of the erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925. It is pertinent to note that under S.37 of (Chapter II Part V) Indian Succession Act, the children of the deceased shall inherit the property of deceased equally. Under this Act a female child also is entitled to get a share equal to that of a male child, where as under the provision of Travancore Christian Succession Act. the rights of female child are limited and she would get only a lesser right. So whatever the present decree holder got under the decree is lesser than what is due to her. The decree was passed at the time when she had a pre-existing right over the family property and it cannot be said that the decree is a nullity. The decision in Mary Roy's case only lays down that the respondent was in fact entitled to a larger right. The argument to the contrary is not sustainable.