1. Both the appeals arise out of judgment and decree in O.S. No. 591/1987. The plaintiffs have filed RFA No. 546/2004. The D - 3 and L.Rs. of D - 4 have filed RFA No. 940/2004.

2. One John D. Abraham is the propositus 1st defendant is the wife. The defendants 2, 3 one Triza Kalyani John (wife of 1st plaintiff) and one late Maccabeaus are the children of the propositus. The suit schedule house is the estate of the propositus. The first defendant died intestate during pendency of the suit.

3. After demise of the propositus, his daughter Triza Kalyani John fell in love with the 1st plaintiff, a Hindu, she got converted to Hinduism and her name is changed to A. S. Meenakshi and married 1st plaintiff. The plaintiffs 2 and 3 are the children born out of the wedlock. A. S. Meenakshi alias Tirza Kalyani John died in the year 1986. The husband and children have filed the suit seeking share of A. S. Meenakshi alias Tirza Kalyani John.

4. The defendants 1 and 2 filed joint written statement contending that apart from Meenakshi alias Tirza Kalyani John there is one more daughter (3rd defendant) and one son late Maccabeaus. The defendants 4 and 5 are the wife and children of late Maccabeaus. The defendants 3, 4 and 5 also claim share in the property.

5. The 2nd defendant contends that just before the marriage of Tirza Kalyani John, in a family settlement, she has been given her share like gold jewellery, cash and a motor car in consideration Tirza Kalyani John relinquished her rights in the suit property. The defendants Nos. 1 and 2 say that they have invested lot of money for construction of a suit house.

6. The trial Court dismissed the suit of the plaintiffs on the ground that the propositus John D. Abraham died in the year 1964 and suit for partition is belatedly filed in the year 1987. The trial Court holds that in the family settlement Tirza Kalyani John has relinquished her share. The trial Court rejected the claim of the defendants 3 and 4.

7. The plaintiffs are Hindus. The plaintiffs seek share of Tirza Kalyani John. The plaintiffs 2 and 3 also seek share in the estate of the 1st defendant who died intestate during the pendency of the suit. After the demise of John D. Abraham the property would devolve upon his widow to an extent of 1/3rd share and balance of 2/3rd share shall have to be divided amongst his children under S.33 of the Indian Succession Act. Therefore, argued that A. S. Tirza Kalyani John is entitled to equal share along with her brothers and sisters.

8. The crux of the issue is whether the plaintiffs 2 and 3 being Hindu are entitled to seek share in the property of the 1st defendant who is a Christian.

9. The decision of the Calcutta High Court in AIR 1956 Calcutta 177 in the case of Benoy Kumar Mondal v. Panchanon Majumdar where the following observations are made :
"The appellant no doubt contends that Panchanon, though otherwise entitled to succeed to the deceased Sarojini's estate under the Indian Succession Act (S. 48) as her nearest consanguine relation, would not be so entitled because he happens to be a Hindu while Sarojini was a Christian but we do not think that this contention is well - founded.
The Succession Act does not concern itself with the religion of the claimant for succession although the religion of the deceased certainly plays an important role - and indeed, it is almost the determining factor, - in the matter of applicability or otherwise of the rules of succession, laid down in the Act, to a particular case. This distinction in the nature or character of the relevant estate, depending upon the religion of the deceased owner, runs throughout the Act but stress is nowhere laid in the matter of its devolution upon the religion of the heir or the inheritor.
This latter element is undoubtedly a vital factor in the personal laws of succession, like, for example, the Hindu and the Mohammedan law, which are intimately connected with the respective religions and persons professing other faiths, save in