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1962 Supreme(Ker) 120
Judges : S.VELU PILLAI
Anthony Barbara And Others - Appellant
Versus
Agasthian - Respondent
Case No : S. A. No. 1062,1063 of 1958
Decided On : 06/04/1962
Advocates Appeared :
Mathew Muricken; A. D. Krishnan Asan; For Appellants T. S. Krishnamoorthy Iyer; For Respondents
S.30 of the Christian Succession Act does not entitle married daughters to share in the mother's property without the allegation and proof of a custom.
Headnote:
Customary Law - Roman Catholic Christians of the Latin Rite - The court held that S.30 of the Christian Succession Act does not entitle married daughters to share in the mother's property unless a custom is alleged and proved.
Fact of the Case:
The suits related to the rights of sons and daughters to succeed their Roman Catholic parents' property. It was found that the property belonged to the mother and not the father.
Finding of the Court:
The court dismissed the appeals, holding that the property belonged to the mother and that S.30 of the Christian Succession Act does not apply without the allegation and proof of a custom.
Issues: Rights of sons and daughters to succeed their parents' property, applicability of S.30 of the Christian Succession Act, existence of a customary law among Roman Catholic Christians of the Latin Rite.
Ratio Decidendi: S.30 of the Christian Succession Act does not apply to entitle married daughters to share in the mother's property unless a custom is alleged and proved.
Final Decision: The second appeals were dismissed with costs, and leave to appeal was granted.
1. These are two second appeals which arise out of two suits which were tried and disposed of jointly. They relate to the rights inter se of the sons and daughters to succeed their parents who were Roman Catholics of the Latin rite. According to the appellants the property belonged to their father absolutely and was assigned to them by two assignment deeds, Exts. V and XIV, but according to the contesting plaintiff-respondent, the property belonged on Stridhanam to the mother and devolved on her death on the son and the unmarried daughter. It has been concurrently found by the two courts that the property belonged to the mother and not to the father. These findings are not open to challenge in these second appeals and must stand.
2. But it was contended relying on S.30 of the Christian Succession Act, that among Roman Catholic Christians of the Latin Rite, married daughters are also entitled to share in the mother's property. This contention was negatived by the two courts on the ground that no such custom was pleaded. The plea in the written statements does not constitute an averment of a custom. But relying on Anthony Sebastian Fernandez v. Vareethu Lassar Fernandez (30 TLJ. 470) it was argued that S.30 itself embodies the customary law. I cannot accept the contention, for what it provides is that S.24, 28 and 29 of the aforesaid
Act by which female heirs are excluded would have no application to Roman Catholics of the Latin rite amongst whom there is a custom by which the male and female heirs share equally. So a custom has to be alleged and proved in order to attract S.30. In the case cited, such a custom was definitely set up and found and the reference to the Full Bench which decided the case arose on account of the opinion expressed by two early cases on the subject.
3. In the case before me the appellants not having set up the custom, cannot succeed. These second appeals are therefore dismissed with costs. Leave to appeal asked for is granted.
Dismissed.
