The main legal point established is that the Travancore Christian Succession Act applies to property situated in Travancore, while the Indian Succession Act applies to property situated outside Travancore, and the absence of evidence to establish a separate custom governing the parties.

1. This second appeal by defendants 3 to 6 in O. S. No. 72 of 1967 of the Court of the Munsif-Magistrate, Manantoddy, arises out of a preliminary decree for partition. The suit was instituted by the Ist respondent, the plaintiff. Ist respondent and the 2nd defendant are the daughters and deceased husband of the 3rd defendant was the son of one Isaac who died in February 1964 in the erstwhile Malabar area of the Kerala State. Defendants 4 to 6 are the children of the 3rd defendant. The 2nd defendant is an unmarried daughter and the plaintiff is a married daughter of Isaac. The 1st defendant is the widow of Isaac and mother of the plaintiff, 2nd defendant and the deceased husband of the 3rd defendant. The property in dispute is in Malabar area. The parties are Travancore Christians. They migrated from Travancore to Malabar long ago and have been living there. While so Isaac died. After his death disputes arose as to the succession to his property. Accordingly the plaintiff instituted the suit for partition. The trial court decreed the suit awarding 2/9 share to the plaintiff and the 2nd defendant each, 3/9 share to the Ist defendant and the remaining 2/9 share to defendants 3 to 6. Against that decree and judgment defendants 3 to 6 filed appeal before the District Court, Tellicherry. The appeal was dismissed on 11-10-1968. It is against that appellate decree and judgment that the present second appeal is filed.

2. It is contended on behalf of the appellants that the parties being Travancore Christians they are governed by the Travancore Christian Succession Act in the matter of intestate succession. In support of that contention reliance was placed on S.29 (2) of the Indian Succession Act, the provisions of which indicate that the Travancore Christian Succession Act is deemed to have been taken away from the purview of S.29 (2) of the Indian Succession Act as it is included in "any other law for the time being in force" which occurs in the subsection. S.29 reads:

"29. (1) This part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina-

(2) Save as provided in sub-s. (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India in all cases of intestacy." If the Travancore Christian Succession Act can be regarded as "the law in force" as in S.29(2) of the Indian Succession Act relating to the intestate succession of Christians in Travancore, then that law is saved under S.29(2) of the Act. II is clear from the section that the provisions of the Act do not apply to partition of the properties of the communities referred to in Part V which have their own laws relating to intestate succession. There cannot therefore be any dispute that the Travancore Christian Succession Act is saved by S.29(2) of the Indian Succession Act. But that will not in any way help the appellants, S.7 of the Travancore Christian Succession Act is clear to show that succession to immovable property situated in Travancore and belonging to a member of the Indian Christian community wherever he may have had his domicile at the time of his death is to be regulated by that Act. The relevant provision of S.7 reads:

"Succession to the immovable properly situated in Travancore and belonging to a member of the Indian Christian Community is regulated by this Regulation wherever he may have had his domicile at the time of his death."

In this case the property is not situate in Travancore area, but in the Malabar area, in which case S.5 of the Indian Succession Act will come into operation. S.5 states that succession to immovable property in India of a person deceased shall be regulated by the law of India wherever such person may have had his domicile at the time of his death. So in the present case succession to the plaint schedule property shall be determined by the law of India irrespective of the fact that the