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2004 DIGILAW 598 (KER)

Issac v. Elamma

2004-12-01

THOTTATHIL B.RADHAKRISHNAN

body2004
Judgment :- Thottathil B. Radhakrishnan, J. This Second Appeal under S.100 of the Code of Civil Procedure is filed against the concurrent decisions of the Courts below passing a preliminary decree for partition of the separate estates of a husband and wife to whom ”The Christian Succession Regulation”, Regulation II of 1092 Malayalam Era, enacted by His Highness the Maha Raja of Travancore, on, the 21st December 1916 corresponding to 7th Dhanu 1092 M.E. had applied so long as the said law was in force. The said Regulation is often called the Travancore Succession Act, 1092 and, is hereinafter referred to as the “Travancore Act” for short. 2. The first appellant is the son and respondents 1 and 2 are the daughters of the said couple. Appellants 2 and 3 are the sons of the first appellant. The third respondent is stated to be an assignee under the appellants. 3. Respondents 1 and 2 filed the suit seeking partition, their father having died in the year 1975 and the mother in the year 1978. A preliminary decree for partition was passed, following the law laid down by the Hon’ble Supreme Court of India in Mary Roy v. State of Kerala, 1986 KLT 508 (SC) = AIR 1986 SC 1011, holding the suit property to be partible at the instance of respondents 1 and 2. That preliminary decree has been confirmed in first appeal. This Second Appeal is against such decree. Respondents 1 and 2 have appeared through counsel. 4. Attacking the judgments of the Courts below, Dr. Sebastian Champappilly, learned counsel for the appellants submits that they are vitiated on counts of law. 5. Firstly, it is contended that the plaintiffs-were given “Streedhanom” as defines in S.5 of the Travancore Act and that therefore by the operation of Ss.28 and 29 of the said Act, their rights to intestate succession of the, estate of their parents stand extinguished. 6. The question that arises for consideration is whether by operation of Ss.28 and 29 of the Travancore Act, the rights of a daughter stand extinguished if all amounts due as “Streedhanom” has been paid to her and if so what is the point of time at which such extinguishments takes place. 7. 6. The question that arises for consideration is whether by operation of Ss.28 and 29 of the Travancore Act, the rights of a daughter stand extinguished if all amounts due as “Streedhanom” has been paid to her and if so what is the point of time at which such extinguishments takes place. 7. S.5 of the Travancore Act defines "streedhanom" as follows: “streedhanom” means and includes any money or ornaments, or; in lieu of money or ornaments, any property, movable or immovable, given or proposed to be given to a female or, on her behalf, to her husband or to his parent or guardian by her father or mother; or after the death of either or both of them, by anyone who claims under such father or mother; in satisfaction of her claim-against the estate of the father or mother”. 8. S.16 of the Travancore Act provided that where the intestate has left a widow, if he has also left lineal descendants, a share equal to that of a son shall be allotted to her, provided, however, when the lineal descendants of the deceased consists only of his daughters or the descendants of any deceased daughter or daughters, the widow’s share shall be equal to that of a daughter. Without prejudice to the aforesaid provision in S,16, S.28 provided that the male heirs mentioned in, group (1) of S.25, shall be entitled to have the whole of the intestate’s property divided equally among themselves, subject to the claims of the daughter for streedhanom. S.28 further provides as to how streedhanom has to be fixed and also that any female heir of an intestate to whom streedhanom was paid or promised by the intestate, or in the intestate’s life time either by such intestate’s wife or husband or after the death of such wife or husband, by her or his heirs shall not be entitled to have any further claim in the property of the intestate when any of her brother (whether of the full-blood or of the half-blood b the same father or the lineal descendants of an such deceased brother shall survive the intestate. Streedhanom is also made a charge upon the property, 9. Streedhanom is also made a charge upon the property, 9. S.29 provides that the female heirs or the descendants Of the deceased female heirs mentioned in Groups (3), (5), (6) and (8) in S.25 will be entitled to share in the intestate’s property only in the absence of the male heirs mentioned in the respective groups or of the lineal descendants, if any, of such male heirs who may have predeceased the intestate. 10. The right of an heir, male or female, has to 'be determined at the time the succession opens as regards the deceased. 11. The aforesaid provisions contained in Ss.5, 28 and 29 of the Travancore Act, when harmoniously construed, would show that if at the time of the death, the deceased left behind only female heirs, they will be entitled to inherit. Obviously, therefore the question as the entitlement to succeed would arise only at the moment succession opens. Any promise made as to 'streedhanom' during the currency of the lifetime of the appellant is also an amount for which there will be a charge on the estate of the deceased. Therefore, lam unable to accept the contention advanced on behalf of the appellants that by virtue of Ss.28 and 29 of the Travancore Act, the right to intestate succession of a female heir of a Christian to whom the Travancore Act applied stands extinguished upon the payment of streedhanom. This is more so because extinguishment by operation of law and abandonment by voluntary conduct are situations that ought to result in leaving nothing more in favour of the person, whose rights are either extinguished, or, who abandons any right Any provision as to extinguishments and any plea as to abandonment have to be strictly construed 12. Obviously, succession opens only in 1975 as regards the estate of the father of the first appellant and respondents 1 and 2 and only in 1978 as regards their mother. 13. In this situation, the pronouncement of the Apex Court in Mary Roy's case (supra) becomes relevant. The Part B States (Laws) Act, 1951 came into force with effect from 1.4.1951. Their Lordships of the Supreme Court have held that by the operation of the Part B States (Laws) Act, 1951, the Indian Succession Act governs the Christian domiciled in Kerala, on and after 1.4.1951. The Part B States (Laws) Act, 1951 came into force with effect from 1.4.1951. Their Lordships of the Supreme Court have held that by the operation of the Part B States (Laws) Act, 1951, the Indian Succession Act governs the Christian domiciled in Kerala, on and after 1.4.1951. So much so, the Indian Succession Act applied to the deceased parents of the first appellant and respondents 1 and 2 in 1975 and in 1978, the respective years in which each of them passed away. 14. Having held that payment of “streedhanom” if at all proved in this case, does not result in the extinguishment of right to intestate succession, I have no hesitation to hold that respondents 1 and 2 had a legal right to succeed to the estate of their parents to the extent of the share due to them in terms of the provisions contained in the Indian Succession Act, upon the death of each among the parents. 15. The learned counsel for the appellants, secondly, canvassed, as a proposition, that the decision of the Apex Court in Mary Roy's case cannot be considered, as reviving a right that is lost. Having hold that no right was lost, no such question arise. That apart, in Mary Roy's case, their Lordships declared the legal effect of the coming into force of the Part B States (Laws) Act, 1951. The declaration of law in Mary Roy's case does not amount to revival of any right that was lost, but the declaration of law as to the rights, as on the date of coming into force of the said Part B States (Laws) Act, 1951. So much so, this ground also is only to be rejected. 16. Thirdly, the learned counsel for the appellants attempted to argue that the decision of their Lordships in Mary' Roy's case is per incuriam and whether the principle of "stare decisis" ought to have deterred their Lordships from rendering the decision as was done in Mary Roy's case. Firstly, there is nothing to indicate that Mary Roy's case rests per incuriam. The only argument in this context is that the interpretation given to the Part B States (Laws) Act while their Lordships decided. Mary Roy case is not correct. Firstly, there is nothing to indicate that Mary Roy's case rests per incuriam. The only argument in this context is that the interpretation given to the Part B States (Laws) Act while their Lordships decided. Mary Roy case is not correct. The well settled principle of law relatable to the doctrine of per incuriam do not take in, such an or a binding precedent as to any law declared in that regard. The submission as to whether the doctrine of 'stare decisis applies also does not arise for consideration before this Court. In this view of the matter, I do not find any infirmity in the impugned decrees and judgments of the Courts below. This Second Appeal is accordingly dismissed. No costs.