SOLOMON AND ORS. Vs. MUTHIAH AND ORS.

JUDGEMENT

(1.) The genealogical tree given above shows the relationship of the parties to Swaminathan. Admittedly, the parties are Syrian Christians who lived in that part of the former Travancore State which now forms part of the State of Tamil Nadu, after the reorganisation of the States. The said Swaminathan died issueless on 29th May, 1960, survived by his widow Muthammal. Muthammal is said to have executed two settlement deeds in favour of the appellants herein, who figured as defendants 1 to 6 in the trial Court, marked as Exhibits B-1 and B-2. She died on 16th September, 1960. The plaintiffs who are the children and grandchildren of Isaac, brother of Swaminathan, instituted O.S. No. 2 of 1961 on the file of the Court of the Subordinate Judge of Nagercoil for partition and possession of their half share in 'A' and 'B' Schedule properties and monies, contending that Swaminathan was governed by the Travancore Christian Succession Regulation II of 1092 and according to the provisions contained in that Regulation, on the death of Swaminathan, the widow Muthammal got only a life interest and on her death the properties belonged absolutely to the plaintiffs as children and grandchildren of Isaac, and Pakianathan the 9th defendant in the suit and the other brother of Swaminathan, in equal shares and the settlement deeds in favour of the appellants herein were invalid. The 7th defendant was impleaded on the ground that a certain hypothecation amount was due from him and the 8th defendant was impleaded on the ground that certain mortgage, purakkadam and hypothecation amount was due from him. The case of the appellants herein was that 'A' Schedule properties are the properties of Swaminathan, while 'B' Schedule properties did not belong to Swaminathan, but belonged to Muthammal. They also denied that Isaac and 9th defendant were brothers of Swaminathan. Their further case was that the settlement deeds were valid and Swaminathan was not governed by the Travancore Christian Succession Regulation II of 1092, but was governed by the Indian Succession Act and therefore there being no lineal descendant of Swaminathan, Muthammal was entitled to the entirety of the properties and consequently the settlement deeds were valid. The 7th defendant contended that he paid Rs. 1,000 to Swaminathan on 17th May, 1960, in respect of the 'B' Schedule item 1, that Swaminathan passed a receipt and the said receipt was missing, that before executing a release deed, as promised, Swaminathan died on 29th May, 1960, and that therefore nothing was due from him under the hypothecation bond. The case of the 8th defendant was that the mortgage and purakkadam deeds were in the name of Muthammal and only the hypothecation deed was in the name of Swaminathan, that the hypothecation amount was paid to Swaminathan on 25th May, 1960, that before executing a registered release deed, as promised, Swaminathan died all on a sudden on 29th May, 1960, and that therefore nothing was due on the hypothecation bond. As regards the mortgage and purakkadam deeds in favour of Muthammal, his case was that he had no objection to pay the amount to the rightful claimant. The 9th defendant supported the case of the plaintiffs.

(2.) On these pleadings of the parties, the learned Subordinate Judge framed the necessary issues and by his judgment and decree dated 29th July, 1961, he came to the conclusion that Isaac and 9th defendant were brothers of Swaminathan, that it was the Travancore Christian Regulation II of 1092 that applied to the parties that the hypothecation amounts were due by defendants 7 and 8 and those amounts under Exhibits B-3 and B-5 are the properties of Swaminathan and that the amounts due under Exhibits B-4 and B-6 did not belong to Swaminathan, but belonged to Muthammal, and that since under the Travancore Succession Regulation II of 1092, Muthammal had only a life interest, the settlement deeds were not valid, so far as immovable properties and one half of the hypothecation amounts under Exhibits B-3 and B-5 in favour of Swaminathan were concerned. In the result, he passed a decree declaring the plaintiffs' one half right in respect of 'A' schedule properties and one half of the amounts due under Exhibits B-3 and B-(SIC) and holding that the other half belonged to the 9th defendant. As against this judgment and decree, the appellants herein preferred an appeal to the learned District Judge of Kanyakumari at Nagercoil. The learned District Judge by his judgment and decree dated 25th June, 1962 agreed with the learned Subordinate Judge on the principal question as to whether it was the Travancore Christian Succession Regulation II of 1092 that applied or the Indian Succession Act that applied to the parties and held that on the application of the provisions of the Travancore Christian Succession Regulation II of 1092, Muthammal did not have an absolute interest in the immovable properties inherited from her husband Swaminathan, but under Section 17 of the said Regulation, she was entitled to an absolute right in respect of the movables and the debts due under Exhibits B-3 and B-5 being movables, she was absolutely entitled to one half of them. Therefore, in modification of the decree of the learned Subordinate Judge, the learned District Judge granted a decree to the plaintiffs declaring their one half right in respect of 'A' schedule properties and one-fourth in the hypothecation deeds Exhibits B-3 and B-5, and holding that the other half right in 'A' schedule properties and one-fourth right in the amount due under Exhibits B-3 and B-5 belonged to the 9th defendant in the suit. The learned District Judge also provided that the mesne profits should be determined under Order 20, Rule 12, Code of Civil Procedure. Hence the present second appeal by defendants 1 to 6 in the suit.

(3.) The principal question that arises in this case is, whether the parties were governed by the Travancore Christian Succession Regulation II of 1092 or the Indian Succession Act of 1925.