D CHELLIAH NADAR Vs. G LALITA BAI

JUDGEMENT

(1.) THE plaintiffs are the appellants in this Letters Patent Appeal. The plaintiffs sued for a declaration of their title to and possession of the suit properties and for an injunction. Plaintiffs 1 and 2, Chelliah Nadar and Mercy Bai, are husband and wife. The first defendant, Lalitha Bai, is the sister of the first plaintiff. The second defendant Muthayyan is the husband of the first defendant. The suit properties belonged to one Daniel Nadar, the deceased father of the first plaintiff. Daniel Nadar died as a Travancore Christian leaving behind him his son, the first plaintiff, and four daughters, including the first defendant. The contest is between the son and the daughter of Daniel Nadar. If the Christian succession Act of Travancore is applicable, the first plaintiff will be the sole heir. But, if the Indian Succession Act is applicable, the first plaintiff and the first defendant would each be entitled to a half share in the properties.

(2.) THE trial court found that the Indian Succession Act governed the parties to the suit and dismissed the suit. On appeal, the learned District Judge of kanyakumari held that the first plaintiff was not entitled to claim exclusive title to the properties. In the second appeal preferred by the plaintiffs, Raghavan, J. came to the conclusion that the Indian Succession Act was applicable. But considering the importance of the question, gave leave to prefer a Letters patent Appeal. Thus the matter has come up before a Bench.

(3.) THE only question that arises in Letters Patent Appeal is whether the parties are governed by the Travancore Christian Succession Act, Regulation II of 1092, or the Indian Succession Act, 1925. The Indian Succession Act X of 1865 was enacted by the Governor General of India in Council and received the assent of the Governor General on 16-3-1865. The Act was to amend and define the law of intestate and testamentary succession in British India. The preamble states: "whereas it is expedient to amend and define the rules of law applicable to Intestate and Testamentary succession in British India, it is enacted. . . . . . . . . " the rules contained therein constituted the law of British India applicable to all cases of intestate or testamentary succession. But Section 331 of the Act provided that the provisions of this Act shall not apply to intestate or testamentary succession to the property of any Hindu, muhammadan or Buddhist; nor shall they apply to any will made, or any intestacy occurring before 1-1-1866. Section 332 enabled the Governor General of India in Council to exempt the members of any race, sect, or tribe in British india from the operation of the Act. Though Section 2 provided that the Indian succession Act shall constitute the law of British India applicable to all cases of intestate or testamentary succession, the provisions of the Act were expressly excluded from application to testamentary succession to the property of any hindu, Muhammadan or Buddhist and to any intestacy occurring before 1-11866, the Governor General of India in Council was also empowered from time to time to exempt from the operation of the whole or any part of the Act any race, sect or tribe in British India. It may also be noted that at that time there was no intention to make the Act applicable to the native States as they were then constituted.