Applicability of the provisions of Travancore Christian Succession Regulation Act.

1. This second appeal is directed against the judgment of the learned Subordinate Judge in AS No.9 of 1982 dated 18. 84 confirming that of the learned Additional District Munsif, Padmanabhapuram, in OS No.60 of 1981 dated 81.

2. The first defendant in the suit is the appellant in the present second appeal.

3. The suit was filed for partition. The plaintiffs contended that the plaintiffs and defendants 1 to 3 are brothers and the fourth defendant is their mother. One Joseph Nadar being the father of defendants 1 to 3. The share of Joseph Nadar on his death devolved upon the plaintiffs and defendants 1 to 3. As per the subsequent partition deed dated 11. 1954, the plaintiffs and defendants 1 to 3 got the suit properties. It was also contended that they were in enjoyment and each was entitled to 1/5th share. The defendants are not amenable to effect partition out of court and hence the suit.

4. The suit was resisted by the defendants contending that the allotment of share was made in the partition deed in favour of the fourth defendant and it was as done as the ancestors of plaintiffs and defendants were Hindus and they continued to have a joint family relationships. The allotment was challenged by the sons even after they attained majority. On the other hand they had accepted the allotment by their own conduct and dealings and that on 19. 1975 the fourth defendant had executed a gift of 20 cents to her daughter, Thankumma, who in turn sold the properties to the first defendant under sale deed dated 112. 1979 attested by the second defendant. The said Thankamma sold the balance extent of 4 cents also to the second defendant. These transactions were not objected by the plaintiffs and that the first defendant was entitled to 16 cents in item 2 over and above his 1/6th share in the suit properties. The first defendant only contended that he had put up the house bearing door No.2/85 and the plaintiffs were entitled only to 1/6th share each.

5. On the basis of the pleadings, the learned trial Judge after considering the oral and documentary evidence came to the conclusion that the plaintiffs were entitled to the preliminary decree which was passed for portion of 2/6th share of the plaintiffs in the suit property by metes and bounds and that the partition will be done as far as possible in accordance with the possession of the parties. On appeal also, the said judgment of the trial court was confirmed and it is as against the same the present second appeal has been filed.

6. The main issue which is sought before me in this second appeal is as regards the legal issue. As decided by the courts below, namely, both the courts have proceeded on the footing that it is only the Travancore Christian Succession Act which will apply to the parties. There was a specific issue as to whether Joseph Nadar, the father of the plaintiffs was a christian or not. Inasmuch as the first defendant had contended that the parties were governed only by the Travancore Christian Succession Act. On the question of applicability of the Travancore Christian Succession Act after coming into force of the Indian Succession Act, 1925, the lower Appellate Court had relied on the judgment of the Division Bench of this court reported in D. Chelliah Nadar and another v. Lalitha Bai and another, 1977 (I) MLJ 454. As per the said judgment, the Division Bench of this court held that in respect of christians of Kanniyakumari District they are governed by the Travancore Christian Succession Regulation Act. The parties to whom the said regulation would apply would be governed only by the said Regulation and not by the provisions of the Indian Succession Act. Further after the rendering of the judgment of the Lower Appellate court, the view of the Division Bench had been reversed by the Supreme Court in its judgment reported in, Mrs. Mary Roy v. State of Kerala, AIR 1986 SC 1011, and the view of the Supreme Court is to the effect that after the coming into for