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1987 DIGILAW 24 (KER)

LURTHU MARY AMMA v. SOURIYAR

1987-01-16

SANKARAN NAIR, U.L.BHAT

body1987
Judgment :- 1. This is an appeal by the plaintiff, in a suit for partition. Plaintiff and defendants 2 to 9 are the children of one Arogya Maniyakaran (shortly called 'Arogya' hereinafter). They belong to the Vaniya Christian Community in the Chittur Taluk, which was part of the erstwhile princely State of Cochin. Though Christians by faith, this community was governed by the Hindu Mitakshara Law of inheritance. 2. According to the plaintiff, the suit property belonged to Arogya. On his death on 15-6-70, it is averred that the properties devolved on plaintiff and defendants 1 to 9. Plaintiff contended that the Mitakshara Law was no longer applicable to the Community. The plaintiff would also say that defendants 2 to 7 in collusion with the 15th defendant filed O. S.209/59 in the Court of the Munsiff, Chittur, against Arogya, obtained a decree, and in execution sold A schedule properties. As legal heir of Arogya, the plaintiff claims partition and separate possession. 3. Defendants 10 to 20 contested the suit. According to them, the properties of Arogya were surrendered to the jenmi and the defendants and their mother were in possession of those properties, for over 20 years. If at all Arogya bad any rights, these were lost by adverse possession. Certain properties of Arogya were sold in execution of decrees. Separate written statements were filed, but substantially on these lines. The 10th defendant filed an additional written statement, contending that neither the Indian Succession Act, 1925 nor the Cochin Christian Succession Act, Act 6 of 1079 M.E. govern the community and that they are governed by the Hindu Mitakshara Law. Under the said law, the plaintiff had no right of inheritance. 4. The court below found that the parties were governed by the Hindu Mitakshara Law, that the rights of Arogya if any, were lost by adverse possession and that the properties having been sold in execution of the decree in O. S.209/59 of the Munsiff's Court, Chittur and O.S. 79/1120 of the District Court, Trichur there was nothing left to be partitioned. 5. Counsel for appellant challenged the judgment and decree on three grounds. He would say that the Indian Succession Act, 1925 (called the 'Indian Act' hereinafter) governs the parties and not Mitakshara law, that the customary law was replaced by statutory law, and that the finding of adverse possession is wrong. 6. 5. Counsel for appellant challenged the judgment and decree on three grounds. He would say that the Indian Succession Act, 1925 (called the 'Indian Act' hereinafter) governs the parties and not Mitakshara law, that the customary law was replaced by statutory law, and that the finding of adverse possession is wrong. 6. Reliance was placed on the decision of the Supreme Court in Mary Roy & others v. State of Kerala & others (1986) 2 SCC 209) 1986 KLT 508 to say that the Indian Act governed the parties who are Christians in the matter of inheritance. We may notice, in this context that the case of the appellant in the memorandum of appeal was that the Hindu Succession Act, replaced Mitakshara Law. This was not pursued. An altercate contention was taken that the Indian Act applied, presumably drawing inspiration from Mary Roy's case. In the case of Mary Roy the question considered was whether after the coming into force of Part B States (Laws) Act 1951 the Travancore Christian Succession Act, 1092 continued to govern intestate succession to property of members of the Indian Christian community in territories originally part of the princely State of Travancore. In the former princely State of Travancore intestate succession to the property of members of the Indian Christian community was governed by the Travancore Christian Succession Act, 1092. S.3 of Part B States (Laws) Act 1951 extends the territorial operation of the Acts, named in the schedule thereto, to Part B States. The Indian Succession Act 1925, is one of these Acts. S.6 provides for repeal of corresponding Acts in force in those States prior to the appointed day, namely 1-4-1951. Thereafter, the Central Acts extended under S.3, took the place of the State Acts. The Supreme Court held that on the coming into force of Part B States (Laws) Act 1951 the Travancore Christian Succession Act, 1092 corresponding to Chapter II of Part 5 of the Indian Act was repealed and that intestate succession in the case of the members of the Indian Christian community in the territories of the erstwhile State of Travancore was governed by the Indian Act. The limited question that was decided in Mary Roy's case, was whether the Travancore Act or any part thereof survived after the Part B States (Laws) Act. The limited question that was decided in Mary Roy's case, was whether the Travancore Act or any part thereof survived after the Part B States (Laws) Act. The contention of the appellant that by reason of the law declared by the Supreme Court in the case of Mary Roy, the Indian Act would govern the parties must therefore fail. An ancillary argument was that statutory law replaced the customary law of succession viz., Hindu Mitakshara Law. There is no warrant to think so. The expression, 'any other law for the time being in force', in S.29(1) of the Indian Succession Act includes the Hindu Mitakshara Law. The profession of Christianity releases the converts from trammels of Hindu Law, but does not necessarily affect matters of rights in property with which Christianity has no concern (see Charlette v. Francis (1863) 9 Moore's Indian Appeals 195). 7. The court below relied on a Division Bench decision of this court (Ext. B22) to hold that the Vaniya Christians (Tamil Christians) in the Chittur Taluk were governed by the Hindu Mitakshara Law. In the said decision (CRP 728/61), M. S. Menon, C. J. & Govindan Nair, J. held that the Cochin State when it passed a comprehensive legislation for all the Christians of the State, chose to exclude this community, and left them free to follow the tenets of Hindu Law. Later, the Supreme Court had occasion to consider a similar question relating to succession among Vaniya Tamil Christians of Chittur Taluk. In Antonyswamy v. M. R. Chinnaswamy Koundan & others (A. I. R.1970 S. C. 223), the court held that the Hindu Mitakshara Law, governed matters of succession in the case of Tamil Vaniya Christians of Chittur Taluk. The contention of the appellant, that the Hindu Mitakshara Law does not apply, must fail. 8. The only other contention urged is that the finding on adverse possession is not correct. From the evidence, it is clear that A schedule properties were not in the possession of Arogya, since the date of Ext. B3 suit (8-4-1953). By Ext. B21 (11-9-1961), the jenmi assigned these properties to the 11th defendant. Defendants 10 to 14 and their mother were in possession. Certain other properties in A schedule (R. S.1467/1) were assigned by Arogya to one Seeriyappan and Mari Seesa, under Ext. B6, who in turn assigned these rights to 10th defendant, as early as 1957, under Ext. By Ext. B21 (11-9-1961), the jenmi assigned these properties to the 11th defendant. Defendants 10 to 14 and their mother were in possession. Certain other properties in A schedule (R. S.1467/1) were assigned by Arogya to one Seeriyappan and Mari Seesa, under Ext. B6, who in turn assigned these rights to 10th defendant, as early as 1957, under Ext. B7. The rest of A schedule properties were sold in execution in E. P. 676/60 in O. S.209/59 of Munsiff's Court, Chittur (see Ext. B9). B schedule properties belonged to Arogya and his brother Silvamuthu (father of defendants 10 to 14). After the death of Silvamuthu, the 10th defendant filed O. S.79/1120 of the District Court, Trichur for partition. Ext. B11 is the final decree therein. A decree for mesne profits was passed against Arogya, and Ext. B12 execution petition was filed to realise the amounts. The properties allotted to Arogya were sold in execution, Ext. B14 being the sale warrant. Remaining properties in B schedule were with the 16th defendant. Arogya had surrendered these to the jenmi, from whom the 16th defendant got them under Ext. B23 in 1958. 9. It would thus be seen that Arogya had no rights over the plaint schedule properties, and that whatever rights he had were lost by adverse possession. It follows that the plaintiff or defendants 2 to 9 had no right, to claim partition. In the light of the foregoing, the appeal is without merit. We confirm the judgment and decree of the court below and dismiss the appeal with costs.