ABRAHAM THOMSON Vs. KUNJAMMA JEEVAMONY

JUDGEMENT

(1.) In these Second Appeals the common substantial questions of law which I have framed for a decision are whether the mere fact that a Protestant Christian is living in Neyyattinkara Taluk (among other Taluks mentioned in S.30 of the Travancore Christian Succession Act - for short, 'the Act') is sufficient to hold that he is following the customary usage as per which male and female heirs of the intestate would inherit his property in equal proportion and whether the courts below are legally correct in holding that plaintiffs have not proved the customary usage. The contestants in these cases claim title by inheritance to the property of Chadayan Pethiru, a Protestant Christian who lived in Neyyattinkara Taluk. According to the learned counsel for appellants / plaintiffs fact of such domicile is sufficient to infer, as provided in S.30 of the Act that Chadayan Pethiru was following that customary usage which S.30 itself recognised while counsel for respondents / defendants would contend that apart from the fact of such domicile it is also necessary to prove that Chadayan Pethiru belonged to that group of Protestants who were following such a customary usage.

(2.) Short facts necessary for a decision of the questions of law framed are: The late Chadayan Pethiru, it is not disputed lived in Neyyattinkara Taluk. His children are Paulose, Rayamma and Thankamma. Plaintiff No. 1 is the daughter of Thankamma. Plaintiff No. 2 is the husband of plaintiff No. 1. Defendant Nos. 1 to 5 are the legal heirs of Paulose. Defendant Nos. 6 to 12 are assignees from defendant Nos. 1 to 5. Rayamma died as a spinster. Plaint B Schedule, 1.28 acres belonged to Chadayan Pethiru. Plaintiffs claimed that Sthreedanam was not paid to Thankamma and hence after the death of Chadayan Pethiru, Paulose executed Ext. A1, Sthreedana document of 1109 M.E. in favour of Thankamma on the previous day of her marriage with Samuel as per which 64 cents out of the property which belonged to Chadayan Pethiru was assigned to Thankamma in lieu of Sthreedanam. Thankamma and her sister, Rayamma executed Ext. A2, assignment deed dated 15/07/1964 in respect of 1.07 acres of land in favour of the plaintiffs. The said 1.07 acres takes in the 64 cents acquired by Thankamma as per Ext. A1 and 43 cents which Rayamma claimed for herself by inheritance as a legal heir of Chadayan Pethiru. Paulose had created a mortgage in respect of 7.5 cents. Plaintiffs purchased right of the mortgagees. Plaintiffs thus claimed title over 1.14 1/2 acres (1.07 acres acquired by them as per Ext. A2 and the 7.5 cents which they said they had redeemed from the mortgagees). On that premise plaintiffs prayed for partition and separate possession of their share. Defendant Nos. 2 to 5 resisted the suit. They claimed that Chadayan Pethiru belonged to the Salvation Army and inheritance is through his only son, Paulose. Daughters of Chadayan Pethiru acquired no right over the property by inheritance. They admitted that in lieu of Sthreedanam Paulose had assigned 64 cents in favour of Thankamma as per Ext. A1. They denied that there was any customary usage in the community as per which the female children inherited properties of the intestate father along with the male children. It is also contended that though Ext. A1, Sthreedana document stated extent of the property assigned to Thankamma as 64 cents, actual extent is only 1/3rd of plaint B Schedule which is 42 and 2/3 cents. Rayamma had no right over any portion of the suit property to be conveyed as per Ext. A2. Allegation that plaintiffs redeemed the mortgage over 7.5 cents was denied.

(3.) OS No. 268 of 1975 is a suit filed by the same plaintiffs for partition of 3.50 acres which also originally belonged to Chadayan Pethiru. There also similar contentions are raised regarding right of inheritance of the daughters of Chadayan Pethiru. Learned Munsiff found that customary usage pleaded by the plaintiffs is not proved and dismissed the suit. That was confirmed by the first Appellate Court against which plaintiffs preferred Second Appeal Nos. 527 and 580 of 1980. This Court as per common judgment dated 26/11/1985 (reported as Thankamma and Another v. Kunjamma and Others, 1986 KHC 393 : AIR 1986 Ker. 134 : 1986 KLT SN 19) set aside the judgment and decree and remitted the cases to the Trial Court to give the plaintiffs opportunity to prove the customary usage relied on by them. After remand no further evidence was adduced by the parties. Learned Munsiff held that there is no evidence to prove customary usage pleaded by the plaintiffs and dismissed the suit. That has been confirmed by the first Appellate Court against which these Second Appeals are preferred. It is contended by learned counsel for plaintiffs that S.30 of the Act itself recognised the customary usage in the community to which Chadayan Pethiru belonged and what is required to be proved is only that Chadayan Pethiru lived in the Taluk of Neyyattinkara which fact is not disputed. Hence according to the learned counsel S.30 of the Act should apply, consequence of which is that S.24 and 28 of the Act has no application. The female children of Chadayan Pethiru were entitled to a share in his property along with his son, Paulose. Learned counsel for defendants in response contended that the mere fact of residence of the late Chadayan Pethiru in Neyyattinkara Taluk will not render S.30 of the Act applicable to the parties. Apart from the fact of residence plaintiffs were also to prove that Chadayan Pethiru belonged to that group of Protestant Christians of that Taluk who followed the customary usage. Learned counsel points out that common judgment of this Court remitting the case to the Trial Court specifically adverted to the absence of documentary evidence to prove the customary usage and an opportunity was given to the plaintiffs to produce such evidence which they did not. Hence Courts below are justified in holding that plaintiffs cannot get the protection of S.30 of the Act.