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1963 Supreme(Ker) 142
Judges : M.S.MENON,S.VELU PILLAI,M.MADHAVAN NAIR
KESAVA PILLAI KUNJUPILLAI KURUP - Appellant
Versus
SEBASTIAN ELUPRASYA FERNANDEZ - Respondent
Case No : S. A. No. 526 of 1959
Decided On : 07/09/1963
Advocates Appeared :
Mathew Muricken; A. D. Krishnan Asan; For Appellants Joseph Vithayathil; George Vadakkel; For 1st Respondent
The main legal point established in the judgment is the requirement for parties to establish their belonging to a class among whom the specified usage of equal inheritance obtains, as provided in S.30 of the Travancore Christian Succession Act.
Headnote:
Travancore Christian Succession Act - Interpretation of S.30 - Ss. 24, 28, and 29 - The court discussed the interpretation of S.30 of the Travancore Christian Succession Act, which provides immunity from certain sections to Roman Catholic Christians of the Latin Rite and certain Protestant Christians, allowing male and female heirs to share equally in the property of the intestate. The court emphasized the need for parties to establish their belonging to a class among whom the specified usage obtains.
Fact of the Case:
The case involved the inheritance of properties by two daughters and a son of deceased parents, who were Latin Catholic Christians residing in Karunagapally Taluk. The plaintiff claimed one-third share under the custom referred to in S.30 of the Act, while the defendants denied the existence of such custom and asserted the son's exclusive inheritance.
Finding of the Court:
The courts below accepted the plaintiff's claim based on the assumption that the custom set up by the plaintiff had been given statutory recognition in S.30 of the Act. However, the appellate court held that the interpretation of S.30 was incorrect and discharged the decree under appeal, remitting the case to the court of first instance for disposal de moto.
Issues: The main issue was the interpretation and application of S.30 of the Travancore Christian Succession Act, specifically regarding the recognition of the custom allowing male and female heirs to share equally in the property of the intestate among certain classes of Roman Catholic Christians of the Latin Rite and certain Protestant Christians.
Ratio Decidendi: The court emphasized the need for parties to establish their belonging to a class among whom the specified usage obtains, and clarified that residence in one of the specified taluks was not essential to obtain the immunity provided by S.30. The court also highlighted that the Act abrogated all custom regarding intestate succession among Christians except what has been permitted under the Act.
Final Decision: The appellate court discharged the decree under appeal and remitted the case to the court of first instance for disposal de moto, providing the parties with an opportunity to prove the rule of succession applicable to them.
Key Points: - The judgment discusses interpretation of S.30 and require proof of belonging to a class among whom the equal-sharing usage obtains (!) (!) - It clarifies that residence in certain taluks is not essential; immunity extends to those belonging to any taluk where the custom exists (!) - It notes that the Act abrogates all custom except what is permitted under the Act, and S.30 provides immunity from Ss.24, 28, 29 for those classes (!) - It indicates that to obtain immunity, the claimant must prove both ethnicity/class and the customary usage among that class (!) (!) (!) - It remits case for proof of the rule of succession applicable to the parties, allowing them to prove the custom (!) (!)
What is the interpretation and applicability of S.30 of the Travancore Christian Succession Act to Roman Catholic Christians of the Latin Rite and certain Protestant Christians in specified taluks, and what class must a claimant prove to be immune from certain succession provisions?
What is the effect of S.30 on inheritance among the specified classes when a custom provides equal shares to male and female heirs, and how does S.28, S.33, and abrogation interact with such custom?
What conditions must be proven for a claimant to invoke immunity under S.30, including belonging to a class and the customary usage obtaining among that class?
1. This second appeal raises a question of considerable importance to the Latin Catholic Christian Community residing in Central Travancore and concerns the interpretation of S.30 of the Travancore Christian Succession Act, which will be referred to hereinafter as the Act. That section reads as follows:
"Ss. 24, 28 and 29 shall not be applicable to certain classes of the Roman Catholic Christians of the Latin Rite and also to certain Protestant Christians living in Karunagapally, Quilon, Chirayinkil, Trivandrum. Neyyattinkara, and other Taluks, according to the customary usage among whom the male and female heirs of an intestate share equally in the property of the intestate.
So far as those Christians are concerned, nothing in the aforesaid sections shall be deemed to affect the said custom obtaining among them."
[Ss. 24, 28 and 29 of the Act exclude daughters and other female heirs from succession to the properties of
an intestate.]
2. The plaint properties (A schedule landed properties, and B schedule movables) belonged to the late Sebastian Fernandez and his wife, Gregoria Fernandez, who were Latin Catholic Christians resident in Karunagapally Taluk. They died intestate leaving behind two daughters, the plaintiff and the 6th defendant, and a son, John Fernandez. The 1st defendant is the widow, and defendants 2 to 5 are the children of John Fernandez. The plaintiff claims one-third share in the plaint properties as her inheritance under the custom referred to in S.30 of the Act, ignoring the alienations made by John Fernandez in favour of defendants 8 and 9 as not binding on her interests.
Defendants 1 to 5, 8 and 9 denied the custom alleged by the plaintiff, and asserted John Fernandez to have inherited the entire plaint properties to the exclusion of his sisters who had been given dowries at the time of their marriage.
The courts below have accepted the plaintiff's case and decreed one-third share of the plaint A schedule properties to her. As regards the plaint B schedule movables, their appropriation by John Fernandez was accepted by the court as their value equalled the dowry paid to each of his sisters, which, under S.33 of the Act, has to be taken into account in the distribution of the estate among the heirs. Defendants 8 and 9 have come up in second appeal.
3. The courts below have assumed that the custom set up by the plaintiff has been given statutory recognition in S.30 of the Act and therefore requires no proof by parties in particular cases. The Munsiff held:
"I do not understand S.30 to mean that the custom, mentioned therein laid down as the custom prevailing among some only of the Latin Christians residing in the taluks mentioned therein. The correct interpretation according to me is that among the Latin Christians of Travancore certain classes residing in the taluks mentioned in S.30 of the Act are stated to be followers of the custom mentioned therein. The full bench ruling reported in 30 TLJ. 470 is to the effect that S.30 of the Act lays down the custom among Roman Catholic Christians of the Latin Rite in the taluks mentioned therein. The ruling reported in 1956 KLT. 289 is also to the same effect. The above two rulings do not seem to have suspected for a moment that it laid down the custom among only a sect of the Latin Christians of the taluks mentioned therein.... In the face of the statutory recognition of the custom and the rulings reiterating that custom there is no occasion even for discussing the evidence to the contrary adduced by defendants."
On appeal, the Subordinate Judge held:
"The contention that the custom as statutorily recognised 'in S.30 of the Act) is obtained only among certain classes of the Latin Catholics in Karunagapally is without any force. The words 'certain classes' take in all the Latin Catholics, living in the Karunagapally taluk and other taluks mentioned. The words used are intended to mean only that they form a class of the entire Roman Catholic Christians in the State
