Judgment :- 1. The plaintiffs are the appellants. The suit is for partition of one item of property 421/2 cents in extent with a building thereon situated in the city of Trivandrum. The two plaintiffs claim two out of five shares in the suit property. The parties to the suit are Protestant Christians in Trivandrum. The suit property belonged to deceased Leon, a brother of the plaintiffs and the defendants. Leon died in 1968. He had no wife or children According to the plaintiffs his legal heirs are his sisters and brothers. The two plaintiffs and the 1st defendant are the sisters and defendants 2 and 3 are the brothers of deceased Leon. The plaintiffs claim 1/5 share to each of the brothers and sisters in the property left behind by deceased Leon. In the plaint they have set up a custom among the community to which the parties belong under which the brothers and sisters inherit the estate of a deceased brother. 2. The defence to the suit is that the plaintiffs and the 1st defendant being sisters of deceased Leon are not his legal heirs under the Travancore Christian Succession Act 1092, (hereinafter referred to as the Act), and that defendants 2 and 3 alone are the only legal heirs who inherit the estate of the deceased. 3. Both the courts below have held that the custom of inheritance set up by the plaintiffs is not proved in this case and sisters not being legal heirs of the deceased under the Act are not entitled to any share in the suit-property. The suit was accordingly dismissed and the decision of the trial court confirmed in appeal by the lower appellate court. 4. The only question for decision in this Second Appeal is as to whether it is necessary that a custom of inheritance by the sisters of a Protestant Christian of Trivandrum city should be proved before they can claim inheritance along with their brothers. Proof of custom requires evidence of immemorial, continuous and undisputed usage of the custom pleaded. Whether such proof of custom is required in a case relating to inheritance to the estate of a Protestant Christian of Trivandrum city governed by the Travancore Christian Succession Act, will have to be decided with reference to the provisions of S.30 of the Succession Act. Whether such proof of custom is required in a case relating to inheritance to the estate of a Protestant Christian of Trivandrum city governed by the Travancore Christian Succession Act, will have to be decided with reference to the provisions of S.30 of the Succession Act. S.24, 28 and 29 of the Act excludes female heirs from succession to the properties of an intestate Christian. S.30 of the Act reads as follows: "30. S.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 Karunagappally, 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." There is no dispute that the parties are Protestant Christians living in Trivandrum Taluk. 5. On a reading of S.30 it would appear that a custom of inheritance by male and female heirs among the class of Christians mentioned in the Section appears to have been recognised by the Statute itself. 6. In the decision of a Full Bench of the Travancore High Court in Antony Sebastian Fernandez v. Vareethu Lassar Fernandez & 8 others (XXX (1940) TLJ. 470) the question was whether among the Latin Catholic Christians of certain taluks of Central Travancore, married daughters, who had been given Streedhanam on marriage, are entitled to share in the properties of their deceased parents. The case was decided with reference to the provisions of S.30 read with the proviso to S 33 of the Act. The decision refers to the legislative history of the Act and the Christian Committee Report which in turn referred to an old custom, among certain sections of the Christian Community, as per which the female heirs shared equally with the male heirs the properties of an intestate Christian Varghese, C. J. in his judgment stated at pages 474 and 475, thus: 11. S.30 of the Act II of 1092 lays down that the law applying to other Christians as set forth in S.24, 28 and 29 thereof, does not apply to the Roman Catholic Christians of the Latin Rite in certain Taluks in Central Travancore according to the customary usage among whom the male and female heirs of an intestate share equally in the property of the intestate. xx x 12. The Legislature therefore specially expressed in S.30 that what was stated therein was the real customary law in vogue among the Central Travancore Latin Christians. Therefore, apart from the fact that the Christian Succession Act overrides the previous decisions in 6 TLR. 26 and 13 TLR. 215, which were at best only a doubtful exposition of the customary law on this point amongst the Latin Christians of Central Travancore, there is the additional circumstance that the enactment incorporates the actual "long established" customary law that prevailed among the Central Travancore Latin Christians, as ascertained by the Christian Committee". Madhavan Pillay J. after referring to a passage in Halsbury's Laws of England, Vol. X. 2nd Edition at pages 32 to 34, stated thus: "In the light of the above principle, all that I have to consider is whether the aforesaid view adopted by the Christian Committee as regards the modified nature of the custom of the community in question has been accepted by the legislature and incorporated in the Christian Succession Act. I am clear that the Legislature has done so. It is evident from S.30 of the Christian Succession Act (Act II of 1092) that the custom applicable to certain classes of the Roman Chatholic Christians of the Latin Rite and also to certain Protestant Christians has been preserved only to the extent of retaining the usage among them for the male and female heirs to share equally in the property of the intestate and not to the extent of excluding female heirs from inheritance merely because. Streedhanam has been received. It is just this latter exclusion that is contemplated by S.28 of the Act and S.30 has expressly made S.28 not applicable to the classes mentioned in that section. Streedhanam has been received. It is just this latter exclusion that is contemplated by S.28 of the Act and S.30 has expressly made S.28 not applicable to the classes mentioned in that section. The same idea is almost expressly suggested by the proviso to S.33, which explains the consequences of the payment of Streedhanam on the right to claim shares by females." Lukose J. at page 480 stated: "I agree with my learned brothers in their answer to the reference, viz., that since the parties belong to the classes of Indian Christians contemplated by S.30 of the Christian Succession Act (Act II of 1092), plaintiff is entitled to a share, in spite of the circumstance that Streedhanam had been paid to his mother on her marriage. The reason is that the parties are governed by S.30 of the Christian Succession Act, according to which the customary usage in vogue at the time when the Act came into force has been expressly preserved; the customary usage itself is incorporated in the section, which is that the male and female heirs of an intestate share equally in the property of the intestate." In Anthony Vasthyan Decruz v. Palppu Krishnan (1956 KLT. 289), Kumara Pillai J. stated at page 290, thus: "2. S.30 of the Travancore Christian Succession Act II of 1092 expressly recognises the customary usage among certain classes of the Roman Catholic Christians of the Latin Rite in the taluks of Karunagappally. Quilon, Chirayinkil, Trivandrum and Neyyattinkara of male and female heirs sharing equally the properties of the intestate and directs that nothing in the provisions of the Christian Succession Act relating to intestate succession should be deemed to affect the said custom". A Full Bench of this Court in Kesava Pillai Kunjupillay Kurup v. Sebastian Eluprasya Fernandez (1963 K L.T. 737), after considering the decision in XXX TLJ 470, stated at page 740: "6 It is evident from the above that two customs arose for consideration in that case. The plaintiff set up a custom of sons and daughters taking equal shares in their parents' properties. That was admitted by the defendants. So. no question of its proof or validity came up for decision in the case. The defendants set up a custom of exclusion from inheritance of females who had received Streedhanam at marriage. The plaintiff set up a custom of sons and daughters taking equal shares in their parents' properties. That was admitted by the defendants. So. no question of its proof or validity came up for decision in the case. The defendants set up a custom of exclusion from inheritance of females who had received Streedhanam at marriage. That was held to have been abrogated by the Act and therefore of no legal force. It has not been decided therein that all the Latin Catholic Christians or Protestant Christians even of the taluks mentioned in S.30 of the Act do follow the custom referred to in the section as their rule of succession. Nor do we find anything to that effect in Anthony Vasthyan Decruz v. Palppu Krishnan (1956 KLT. 289). We make it clear that even if any decision has held so we do not approve it as a correct interpretation of the Section. 7. S 2 of the Act provides: "Except as provided in this Act, or by any other law for the time being in force, the rules herein contained shall constitute the law of Travancore applicable to all cases of intestate succession among the members of the Indian Christian Community." The Act has thus abrogated all custom regarding intestate succession among the Christians except what has been permitted under the Act. S.30 in recognising as valid a custom among certain classes of Latin Catholic Christians and Protestant Christians, under which the male and female heirs share equally the properties of the intestate has recognised a custom in derogation of the imperative rules of succession provided in the Act. 8. What S.30 does is to grant an immunity from the operation of S.24, 28 and 29 to all Roman Catholic Christians of the Latin Rite "according to the customary usage among whom the male and female heirs of an intestate share equally in the property of the intestate." It follows that in order to obtain the immunity it is not enough if the plaintiff proves that she is a Roman Catholic Christian of the Latin Rite: she must also establish that she belongs to a class of Roman Catholic Christians of the Latin Rite, among whom the usage specified does obtain." A Division Bench of this Court in P. J. Leones v. Lilly (1966 KLT. 636) stated at page 637 thus: "It has been held in Kunjupillai Kurup v. Sebastian Elaprasya Fernandez (1963 KLT. 737) that in order to attract S.30, it is not enough if the plaintiff proves that she is a Roman Catholic Christian of the Latin Rite, but it must further be proved that she belongs to a class of Roman Catholic Christians of the Latin Rite, among whom the usage obtains. The parties and the court misdirected themselves as to the nature of the enquiry under S.30, perhaps in view of earlier decided cases on the subject. We feel that the question as to the custom under S.30 has to be tried and decided by the lower court, on evidence to be adduced by the parties." 7. The Travancore Christian Succession Act II of 1092 has abrogated the customary law of intestate succession among the members of the Indian Christian Community except as regards the custom recognised and preserved in S.30 of the Act. S.30 of the Act recognises and preserves the customary mode of inheritance among the male and female heirs of an intestate Christian belonging to the classes enumerated in the Section. As was held by the Full Bench of this Court it is not enough if the plaintiffs prove that they belong to the Protestant Christian Community living in the Trivandrum Taluk but should also prove that the Community to which they belong follows the customary law of inheritance recognised and preserved by the Section. This is different from saying that the plaintiffs have to prove the custom itself. The rigour of proving the custom is dispensed with on account of its recognition and preservation by S 30 of the Act. The Courts below are wrong in dismissing the suit, on the ground that the plaintiffs have failed to prove the custom of inheritance by female heirs of an Indian Christian. The question as to whether the plaintiffs belong to a community that follows the customary mode of inheritance recognised by S.30 of the Act, is not considered by the courts below. 8. The learned Counsel for the appellants submits that the appellants had no fair opportunity to prove their case. The suit came up for trial on 14-11-1973. Witnesses were examined that day and also the next day and the trial was closed on 15-11-1973. 8. The learned Counsel for the appellants submits that the appellants had no fair opportunity to prove their case. The suit came up for trial on 14-11-1973. Witnesses were examined that day and also the next day and the trial was closed on 15-11-1973. The plaintiffs filed two documents on 22-11-1973 and 23-11-1973 with petitions to receive the documents in evidence. No orders are seen passed on these petitions, and the documents are not seen marked in evidence. The documents produced purport to prove instances of inheritance by female heirs of intestate Christians among the plaintiffs' community. These documents are adverted to by the trial court in its judgment but are rejected as not proved. An application was filed before the lower appellate court to receive the documents as additional evidence in the appeal. The lower appellate court has declined to admit these documents as additional evidence in the appeal for the reason that the documents can be proved only by examining the executants as witnesses in the case and in the absence of such proof, the documents cannot be admitted as additional evidence. These documents are not therefore considered by the lower appellate court. 9. Since I find that the courts below have not considered the case in the proper perspective of the law applicable as discussed above, the judgment and decree of the courts below are set aside and the case remanded to the trial court for fresh disposal in accordance with law and in the light of the observations and directions contained in this judgment. Both the parties will be given an opportunity to adduce fresh evidence. It is open to the plaintiffs to prove the additional documents which were not marked in the case. The parties will appear before the trial court on 15-3-1982 10. The Second Appeal is allowed as indicated above. There will be no order as to costs. Court fee paid on the memorandum of Second Appeal will be refunded to the Counsel for the appellants. S.M Allowed.