8/10/2019 Christian Women Property Right http://slidepdf.com/reader/full/christian-women-property-right 1/71 192 CHAPTER 5 CHRISTIAN WOMEN’S PROPERTY RIGHTS: ROLE OF JUDICIARY In this chapter the role of the judiciary in relation to women’s property rights is discussed, to assess the contribution of judiciary through its judicial process towards the cause of gender injustice in the matter of women’s property rights because women had been deprived of property rights and independent status by the ancient scriptures. As far as Christian women are concerned the community and the Church with its strong patriarchal tradition is compelled women to remain subjugated. Socialization starts at the early life of a girl to become submissive and not to assert their rights. Hence, Christian women are in general reluctant to assert or demand their rights. Consequently the cases that come to court asking for share of the family property are also very few. It was Mary Roy 1 who showed the courage to challenge the discriminatory personal laws of the Christians, namely the ‘The Travancore Christian Succession Act 1916’, almost forty seven years after the commencement of the Constitution. In spite of the repeal of the Travancore Christian Succession Act 1916 very few women are coming forward to exercise their rights under Section 37 of Indian Succession Act 1925 which provides for equal distribution of the properties among the children if the father dies intestate. Besides this, they also silently sign release deeds at the time of marriage thereby relinquishing their rights in the family property for ever without showing any resistance. 1 AIR 1986 SC 1011
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Bombay Act5 prohibiting bigamy. Again in Maharishi Avdesh v. Union of India6, the
Supreme Court’s approach towards personal laws was reiterated. The court observed
that it cannot interfere with or direct the policy of the legislature; these are all matters
for legislature. The court cannot legislate on these matters7. The court repeated its
attitude again in Ahmedabad women groups and others v. Union of India8. The
petitioners in this case challenged the discriminatory aspects of personal laws.
Relying on earlier decisions the court here also maintained that these are matters
pertained to legislative action and the court could not interfere.
1. Approach of the Supreme Court on Gender Justice
However from 1986 onwards with the decision of the Shah Bano case9, the
Supreme Court started demonstrating its pro-active role in upholding gender justice.
When it comes to matters relating gender equality the Judiciary has adopted a
different approach leaving aside the non-interference policy with personal laws. In
Anilkumar Mahsi v. Union of India10 the court rejected the argument that the
additional grounds given to women under the Hindu Marriage Act are discriminatory
against men. The court held that women did require special protection. The court
further observed that taking into consideration the muscularly weaker physique of the
women, her general vulnerable physical and social condition and her defensive and
non-aggressive nature and the role particularly in this country, the legislature can
5 Bombay (Prohibition of Bigamous Marriage) Act 1946.
6 (1994) supp (1) SCC 713. 7 The petition was filed under Article 32 seeking (a) enactment of uniform civil code. (b) for
declaration that Muslim women (protection of Rights on Divorce) Act 1986 was void as beingviolative of Article 14 and 15 of the Constitution (c) for a direction against the respondents fromenforcing the Shariat Act in respect of those adversely affecting the dignity and rights of Muslimwomen and against their protection. The petition was dismissed.
pronouncing the judgment, Js.V.R. Krishna Iyer said that that our founding faith
enshrined in Articles 14 and 16 should have been tragically ignored vis-à-vis
reflection on the distance between the Constitution in the book and the law in
practice. Similarly in Air India V.Nargesh Mirza15 the Supreme Court declared the
service condition unconstitutional since the regulation required the hair hostess to
resign her job on becoming pregnant. In Visaka16 v. Rajasthan the Supreme Court
applied CEDAW to deliver a gender just decision. The court observed that sexual
harassment of a working woman at the work place was contrary to gender equality
guaranteed by Article 15.It also offended women’s right to employment guaranteed under
Article 19(1) (g).It is to be noted that the Supreme Court has incorporated its provisions of
CEDAW in Articles 14 and 19(1) (g) of the Constitution.
Again in Gita Hariharan,17 the gender justice issue was tackled by the
Supreme Court by adopting the interpretative tool of ‘reading down’ the law to
include the mother also as the natural guardian of a child. The petitioner in this case
challenged the Constitutional validity of Section 6(9) of the Hindu Minority and
Guardianship Act 1956 on the ground that the Section discriminates against women
by providing that father is the natural guardian and not mother during the life time of
the father. Here the Court did not reject the petition on the ground that it could not go
into the Constitutional validity of personal law18. The interpretative technique adopted
by the court is worth mentioning here. The Court said the word ‘after’ does not mean
after the life time of the father. If it is otherwise it would undoubtedly violate gender
equality guaranteed under the Constitution.
15 AIR 1981 SC 1829 16
(1997)6 SCC 241 17 Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228. 18 Mihir Desai , “The Flip Flop Judicial Responses to Personal laws’’, Combat law, Vol.3, Issue 4,
Similarly the path breaking decision of the Supreme Court in Daniel Latif v.
Union of India19
which upheld the Constitutional validity of the controversial Muslim
women (protection on Divorce) Act 1986 is another important milestone in the realm
of gender justice. Here the Supreme Court interpreted Section 320 to mean that a
divorced woman is entitled to reasonable and fair provisions for maintenance. So the
set back suffered by the Court in Shah Bano Case21 was undone in Daniel Latifi by
upholding the Constitutional validity of the Act. The Court said that the Legislature
does not intend to enact unconstitutional laws22
.
The landmark decision in Ammini.E.J. v. Union of India,23 the Kerala High
Court took a bold step and declared section 10 of the Indian Divorce Act 1869 as un
constitutional24
because it violates Article 15(1) which prohibits discrimination on the
basis of sex. Under section 10 of the Act a Christian women can get divorce on the
ground of cruelty coupled with adultery. It is worth quoting here the pronouncement
of the Court in the instant case. The Court observed that life of a Christian wife who is
compelled to live against her will though in name only as the wife of a man who hates
her. Such a life can never be treated as a life with dignity and liberty. It can only be
treated as a depressed and oppressed life with a man, who hates her, has cruelly
treated her and deserted her. Consequently it put an end to the marital relationship
irreversibly. It will be a sub human life without dignity and personal liberty, a
humiliating life without the freedom to remarry and enjoy life in the normal course. It
19 (2001) 7 SCC 740.
20 Section 3 provides that a divorced woman is entitled to obtain from her former husband
‘maintenance’, ‘provisions’ and mehr and to recover from his possession her wedding presents anddowry and authorizes the Magistrate to order payment or restoration of these sums or properties.
21 AIR 1985 SC 945. 22 See supra note 17. 23
AIR 1995 Ker 252. 24 As per section 10 of the Indian Divorce Act 1869 the husband is only to prove adultery simpliciter
where as the wife has to prove adultery with one or more aggravating circumstances. The wife hasto prove adultery coupled with cruelty.
dissenting judgments were also passed by the same Kerala High Court. The case,
Lourde Mary Amma v. Souriyar 37
is worth mentioning here. The plaintiff relied on
Mary Roy case for her claim and challenged it on three grounds.
1.
That The Indian Succession Act governs the parties.
2. That the Customary law was replaced by the statutory law.
3. That the finding on adverse possession was wrong.
While referring to Mary Roy case the Court observed that the contention of the
appellant that by the reason of the law declared in Mary Roy, the Indian Succession
Act would govern the parties no longer holds good because the expression any other
law in force under Section 29(2)38
of the Indian Succession Act included Hindu
Mitakshara Law39.
It is pertinent to note here the 110
th
report of the Law Commission of India (1985)
on Indian Succession Act. The commission observed that it is a matter of social policy
and that the Indian Succession Act should apply to the persons governed by
Travancore Regulation, the latter Act should be repealed by an express provision. If
on the other hand the provisions of the Travancore Christian Succession Act governs
succession to the persons concerned, then there should be a provision in Section 29 of
the 1925 Act to the effect that the Travancore Regulation would apply to Christians
governed by that Act in respect of intestate succession in the State of Kerala and in
the Kannyakumari District of Tamilnadu. However the Kerala Government did not
37 1987 (1) KLT 288. 38
Section 29(2) provides save as provided in sub-section 91) or by any other law for the time beingin force, the provisions of this part shall constitute the law of India in all cases of intestacy.
39 The parties were Vanniya Christians. The Court held that Christianity would not affect the party’sright to property of their father.
take up the matter and hence no amendments have been made based on the
recommendations made by the Indian Law Commission.
When the Supreme Court observed that the Travancore and Cochin Acts stood
repealed since 1951, the court did not give retrospective effect to the judgments in
express terms. However the judgment created lot of apprehension and fear among the
Church and the community because of the retrospective effect of the repeals of these
two laws40
. They expected that it would open up a flood gate of litigation41
. The case
filed by the petitioner Mary42 immediately after the judgment bears testimony to the
apprehension of the community. The petitioner in this case was married in 1950. Her
father died intestate in 1944. She filed the petition in 1988 claiming her share 43. So
this case proves that the fear of the community that it would unsettle already settled
property transactions. So it is apt to quote the words of Venu Menon who opined that
the silent section of Christian women trapped in a patriarchal disorder Mary Roy is
their voice and conscience keeper 44
.
Misuse of Mary Roy Verdict
There are rare cases where brothers and sisters collude with each other to
defraud creditors using Mary Roy verdict. There is an unreported case on the file of
Kerala High Court in which a sister files a suit against the brother asking for her
share. The brother has mortgaged the properties to the Bank. Later the properties were
sold through Court. At the time when the Bank is to take over possession, the sister
40 Sebastian Champappilly, “Christian Law of Succession and Mary Roy Case” SCC 9 (1994 ) 41 Sindhu Thulasidharan “ Christian women and property rights in Kerala-Gender Equality in
Practice” 155-116, available at http:// www.krpcds.org/report sindhu.pdf(Accessed on 20.5.2008) 42 Joseph v. Mary, 1988(2) KLT 27 43 Ibid. 44
Venu Menon, “The Matriarch, The real MacRoy” Outlook India, Nov 03. 1997.
were repealed due to the fact that section 29(2)48 has not saved these two
legislations49
. It was in Mary Roy case the Supreme Court made it clear that the Indian
Succession Act 1925 was in force since 195150. Till then the Courts in Kerala and
Kannyakumari were deciding cases applying either Travancore Cochin Succession
Laws or the Indian Succession Act 1865.
The Courts are uncertain about the law to be applied to the Christians of
Kannyakumari District. In Sobana Bai v. S.Eppsi (Minor) 51 the daughter, the first
plaintiff filed a suit52
against her brother and other sisters. Her case was that her father
has given her 50 cents of land as stridhanam after her marriage. She prayed for a
declaration of title and possession in respect of that portion of the land. The suit was
contested by the defendants on the ground that the plaintiff was given stridhanam by
way of jewels and that oral gift and oral surrender by father is not true and valid. The
trial court dismissed the suit on the ground that the oral gift was not valid. The
appellate court upheld the finding of the lower court that the oral gift is invalid in law.
But the court observed that she can file suit for partition of the share in her possession
in favour of her in equity. Based on this the daughters filed the present suit for
partition of intestates property.
The contention of the defendant was that the parties are governed by the
Travancore Christian Succession Act 1916 and hence the sisters are not entitled to
intestate’s property. The trial court came to the conclusion that parties are governed
48 Section 29(2) save as provided in sub-section (1) or by any other law for the time being in force,
the provisions of this part shall constitute the law of India in all cases of intestacy. 49
The Indian Succession Act 1925 is deemed to be extended to the territories of the Part B Statesunder the Indian Union including the territories of Travancore-Cochin with effect from01.04.1951.
50 In 1951 The Part B State (Laws) was extended to Travancore and Cochin.
51 AIR 1983 Mad 315. 52 The suit was filed before the Principal District Munsif, Padmanabhapuram for a declaration of title
and possession in respect of the land which was orally gifted to her.
defendants approved the out of Court settlement and hence filed suit under Section 33
and Section 33A of the Indian Succession Act 1925. A Division Bench of the Madras
High Court in D.Chelliah Nadar and another v. Lalitha Bai and another 60 held that
the Christians in Kannyakumari District were governed by the Travancore Christian
Succession Act and not by the provisions of Indian Succession Act 1925.
However this confusion was made clear by the Supreme Court in Mary Roy
Case61
. The court said that after coming into force of the Indian Succession Act 1925,
the provisions of Travancore Christian Succession Act 1916 were superseded and that
only the provisions of the Indian Succession Act will apply to the parties. So the
Supreme Court reversed the judgment of the Madras High Court in D.Chellia62 case.
The High Court correctly held in the present case that the parties are not governed by
the Travancore Christian Succession Act 1916. Accordingly the right of the mother is
to be decided as per sections 33 and 33A
63
of the Indian Succession Act 1925 and not
as per the Travancore Act of 1916 where a widow is entitled only to life interest64
.
The extension of Part B States (Laws) Act 1951 and the coming into force of
the Indian Succession Act 1925 in Travancore created uncertainty among the
Christians in Kannyakumari District also. In Mary John and another v. Ratna Bai and
60 1977 (1) MLJ 454. 61 See supra note 21 62
See supra note 53 63
Section 33 provides that where the intestate has left widow and lineal descendants, or widow andkindred only, or widow and no kindred.-where the intestate has left a widow-(a)if he has also left
any lineal descendants, one-third of his property shall belong to the lineal descendants according tothe rules hereinafter contained;(b) save as provided by Section 33-A, if the intestate has left nolineal descendant, but has left persons who are of kindred to him, one half of his property shall belong to his widow and the other half shall go to those who are of kindred to him, in the orderand according to the rules herein after contained;(c)if he has left none who are of kindred to himthe whole of his property shall belong to his widow.
64 Section 24 of 1916 Act provides: A mother or widow will have only a life interest terminable atdeath or remarrying.
another 65, the parties hailing from Kannyakumari and both the lower courts were
under the impression that they were governed by the Travancore Christian Succession
Act 1916 66. As per the 1916 Act, the property of the intestate devolves on the son and
the daughters are not entitled to any share. However the High Court seized of the
matter and held that once a law is declared by the Supreme Court it becomes
applicable immediately.
The present case disposed of only after the pronouncement of the Supreme
Court in Mary Roy. So the Court must take note of the same and adjudicate the right
of the parties based upon the declaration made by the court in Mary Roy. The cases
expose the problem created by the Supreme Court’s pronouncement in Mary Roy67
that the Indian Succession Act 1925 was in force as early as in 1951 with the
extension of the Part B States (Laws) Act 1951. Neither the Christians in
Kannyakumari nor in Travancore know the exact law that governed them in the
matter of succession and inheritance. This uncertainty is mainly due to the repeal of
the Travancore Christian Succession Act 1916 as observed in Mary Roy. However the
Parliament has not so far made any express repeal of this 1916 Act.
Yohannan v. Veronica68 is another case where the court was called upon to
decide the law applicable to the parties who migrated to Wyanad from Travancore.
The plaint schedule property is in Wyanadu district. Here again the issue is with
65 (1998) 3 MLJ 617.
66 During the lifetime of Devasahayam, the father of the defendant executed one sale deed and
mortgage deed with respect to A and B schedule properties. The plaintiffs alleged that the father
was sick and old and the said two documents were executed as per the dictates of his son and heexercised undue influence and coercion for executing these two documents. Reversing the decreeof the trial court the lower appellate court held the documents as valid and has granted a preliminary decree for partition and redemption with respect to the half share in the B Schedule property with a liability to pay a sum of Rs.719.60 being the mortgage amount within threemonths.
of Section 24, 28 and 29 of the Act77. So in Kesava Kurup Kunju Pillai Kurup v.
Sebastian Eluprasaya Fernandez78
the Kerala High Court interpreted Section 30 of
the Travancore Christian Succession Act 1916. The plaintiff in the instant case
claimed 1/3 share in the properties of the intestate father as per custom under Section
30 of the Act79.
The contention of the defendant was that the plaintiffs were given
stridhanam and hence they are not entitled to 1/3rd of the share of the intestate
property. The suit was decreed in favour of the plaintiff. However the sub-court
reversed this decision on the ground that the custom claimed by the plaintiff has no
force at all. The High Court also interpreted the Section 30 in a narrow way and held
that in order to obtain the immunity it is not enough for the plaintiff to prove that she
is a Roman Catholic Christian of the Latin Rite; she must also establish that she
belongs to a class of Roman Catholic Christian of Latin Rite among whom the usage
specified exists80.
Here also the Court decided the case in favour of the male members thereby
denying the daughter equal right to intestate property in spite of the custom that is
recognized under Section 30 of the 1916 Act. The decision is also based on a non-
existent law, because the Indian Succession Act 1925 was in force as early as in 1951.
Instead of adopting a pro-gender approach, the court here exhibited its patriarchal
77 Section 27 provides widow or mother has only a life interest terminable at death or remarriage
over any immovable property to which she may become entitled under Section 16, 17, 21 and 22.Section 28 provides without prejudice to the provisions of section 16 the male heirs mentioned ingroup (1) of Section 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 Streedhanam. Section 29:Female heirs will be entitled to share…in the absence of male heirs.
78 AIR 1963 Ker 365. 79 The property in issue belonged to the intestate and his wife who were Latin Catholic Christians
residing in Karunagapally Taluk. They died intestate leaving behind two daughters, the plaintiffand a son. In the lower court the suit was decreed in favour of the plaintiff on the ground that the
custom set up by the plaintiff had been statutorily recognized under Section 30 of the 1916 Act. 80
mindset and decided the case in favour of the male members. When the Legislature
itself has recognised the custom under section 30 of the Travancore Succession Act
1916 why the Court is insisting for proof of that the particular custom?
However the Kerala High Court deviated from its earlier decisions in
Thankamma and another v. N.Kunjamma and others81
. One can see a remarkable
change in the Patriarchal mindset of the judiciary, a judiciary taking a different path
during the 1986 period. The judiciary has also been inspired by the Supreme Court’s
gender just decisions in Mary Roy,82 Shah Bano Begum,83 Gita Hariharan,84 Nargesh
Mirza85
etc. In the instant case the court interpreted the validity of custom in the light
of ‘the brooding omnipresence’ of the paramount law, the spirit of social justice and
no gender discrimination86. So the question before the court was whether the rights of
the intestate father were inherited by the son alone or by the daughters also?87
Both
the trial court and the appellate court held that the plaintiffs are not entitled to any
share in the properties of their parents. The trial court held that the plaintiffs could not
establish that as per the custom they are entitled to an equal share on par with the
sons. This was upheld by the appellate court.
However the High Court assumed an activist role here and observed that
when the law was codified by enacting a Uniform Code for all Christians in
81 AIR 1986 Ker 134.
82 AIR 1986 SC1011
83 AIR 1985 SC 945. 84
(1999) 2 SCC 228. 85
AIR 1981 SC 1829. 86 Ibid. 87 In this case, the properties of the intestate devolved on his three children, one son and two
daughters. The plaintiff contented that the Travancore Christian Succession Act 1916 is notapplicable to them since they are Protestant Christians from Neyyattinkara Taluk, and they are
exempted by Section 30 of the 1916 Act from Sections 24, 28 and 29 of the 1916 Act and they areentitled to equal share.
them is Section 592 of the Indian Succession Act for the purpose of inheritance and
succession and not by the provisions of Hindu Mitakshara Law. The plaintiff’s case is
that she is entitled to 1/4th share of the plaint schedule property under the Indian
Succession Act 1925. The defendants resisted the suit on the ground that they are
Vania Christians of Chittur Taluk and are hence governed by the Hindu Mitakshara
Law as far as inheritance and succession are concerned.
Relying on the decision of the Supreme Court in Anthonysamy 93 the lower
Court took the view that the plaint schedule property is outside Chittur Taluk.
Moreover a release deed shows that the parties have renounced their personal law
.Hence the law applicable to parties is section 5 of the Indian Succession Act 1925 for
the purpose of inheritance and succession and not under the provisions of Hindu
Mithakshara law. However the division Bench held that the legislature when it passed
a legislation applicable to all the Christians of the State excluded this community
(Vaniyar Community) and left them free to follow the tenets of Hindu law More over
Supreme Court itself has held in Anthonysamy case that the Hindu Mithakshara law
governed matters of in the case of Tamil Vaniya Christians of Chittur Taluk. Based on
this finding the court set aside the judgment of the trial court and was directed to
consider the matter afresh under the Hindu Mithakshara law of Succession.
Similar situation arose in Abhraham Thomson and another v. Kunjamma
Jeevamony94
and others. The question of law is whether a protestant Christian living
in Neyyattinkara Taluk is exempted under Section 30 of the Travancore Christian
Succession Act 1916. The section excludes certain classes of Christian Community
92 Section 5: Law regulating succession to deceased person’s immovable and movable property.Succession to the immovable property in India of a deceased person shall be regulated by the lawof India wherever such person may have had his domicile at the time of his death.
93 Anthony Samy v. Chinnasamy Gounder AIR 1970 SC 223. 94
Catholic Christian of the Latin Rite, she must also establish that she belongs to a class
of Roman Catholic Christians of Latin Rite among whom the usage specified does
obtain98. Relying on this finding the court in the instant case held that the customary
usage referred to in Section 30 of the Act must be proved. It must be proved that the
intestate belonged to the group of protestant Christians who followed the customary
usage. The court here has adopted a strict interpretation of Section 30 requiring the
plaintiff to prove that their father belonged to that class which followed such a
custom99
.
4. Daughter’s Claim for Share in the Intestate’s Property
The Supreme Court’s verdict in Mary Roy case settled the uncertainty with
regard to the application of succession Law to the Travancore Christians. Following
the repeal of the discriminatory Travancore Succession Act 1916, the Indian
Succession Act became the law governing the intestate succession of Christians all
over India. The most significant achievement of the uniform application of the 1925 is
that the daughters are also entitled to inherit intestate property along with their
brothers. Now the women are entitled to claim their rights on the intestate’s property.
This right was denied to them under the Travancore Christian Succession Act 1916.
Joseph v. Mary100
can be cited to show that how women are utilizing the
opportunity to claim their share in the intestate’s property relying on Mary Roy
verdict. In the instant case the petitioner was married in the year 1950. Her father died
intestate in 1944. The case reached the court in 1988 almost immediately after Mary
98 Ibid. 99
Certain classes of Christians of Latin Catholics of Neyattinkara Taluk are still governed bycustom. For details see Dr. Sebastian Champappilly, Christian Law of Succession in India 76
(Southern Law Publishers,Cochin,1st edn., 1997)100
Roy case. The aftermath of the repeal of the Travancore Succession Act 1916 is that
the females become heirs in the intestate property as per the section 37 of the Indian
Succession Act 1925101.
Again in Asirvadam Samuel Nadar v. Raja Jothi102
the issue before the court
was to partition the properties of the intestate103
. The High Court held that the parties
are Christians and hence Indian Succession Act is applicable to them. As per Section
37 of the 1925 Act, after deducting the widow’s share of 1/3 rd the remaining 2/3 share
is to be inherited by the children of the intestate. It is pertinent to note in this case the
daughter signed a release deed in 1949 relinquishing her rights to her two brothers.
Even in 1949 itself in order to deny property rights the practice of executing release
deeds existed. It is being continued even now. It is submitted that the judiciary has
recognized the plight of women, especially after Mary Roy and started giving
recognition to equal property rights to daughters. However it s heart rending to note
that people are using dubious methods to circumvent section 37 of Indian Succession
Act 1925 so as to deprive equal right to women by way of executing Wills or through
family settlement of properties.
In Taluk Land Board v. Cyriac Thomas104 the Supreme Court did not find
any difficulty in ruling that the land sold by the daughters was their own. A Christian
woman’s status has been elevated to that of the son, uprooting the deep rooted
101 Section 37 of the Act provides: where the intestate has left surviving him a child or children, but
no more remote lineal descendant through a deceased child, the property shall belong to hissurviving child, if there is only one, or shall be equally divided among all his surviving children.
102 (1997) 11 MLJ 449.
103 The property belonged to one Issaku Nadar, father of plaintiff and the defendant. After the death of
Issaku, the properties devolved on his children and wife. Wife is entitled to 1/3 rd share, theremaining 2/3 are inherited by his children. Daughter signed a release deed relinquishing her rightsin 1949. The trial court passed a preliminary order for partition. Appeal was filed against this order before subordinate Judge Tuticorin which in turn confirmed the lower court order. Both the court
concurrently found that the plaintiffs are the legal heirs of Kovil Pillai Nadar. 104
patriarchal tradition under which only men can own and dispose of property. The
question here was whether the sisters of the declarant had title to the land left behind
by the intestate father 105. The Supreme Court held that on extension of the Indian
Succession Act 1925 to the Part B States of Travancore and Cochin, the Indian
Succession Act applied to succession thereafter. It follows that all sisters had share in
the land. Therefore the land in question could not be added to the holding of the
declarant since the sale deed is valid 106
. The court once again upheld the dignity of
women by declaring that the sale deed executed by them is absolutely valid.
In Thomayar v. Mary107
the plaintiff’s case is that she is entitled to 1/4th
share of the plaint schedule property under the Indian Succession Act 1925. The
defendants resisted the suit on the ground that they are Vania Christians of Chittur
Taluk and are hence governed by the Hindu Mitakshara Law 108 as far as inheritance
and succession are concerned. Relying on the decisions of the Supreme Court the
lower court took the view that the plaint schedule property is outside Chittur Taluk.
Moreover the execution of Ext.B-53 release deed shows that the parties have
renounced their personal law and hence the law applicable to them in Section 5109
of
the Indian Succession Act for the purpose of inheritance and succession and not by
the provisions of Hindu Mitakshara Law.
105 The land was left behind by the intestate father who had three sons and four daughters. Thedeclaration made by Cyriac Thomas that he had no excess land was reopened in 1980. Theappellant contended that the first respondent had excess land of 9.87 acres. The High Courtaccepted the sale deeds executed by the sisters of the declarant as valid and rightly held that
respondent had no excess land to surrender. 106
Ibid . 107 2004 (1) KLT 863 108
Section .29 (2) of the Indian succession Act 1925 saves any other law for the time being in force.In Mary Roy the Supreme Court held that the Indian Succession Act is applicable to the Christiansin Kerala and Tamilnadu. It is to be noted that even after this verdict there are Christiancommunities in Kerala who still follow the Hindu Mithakshara Law . The Tamil Vaniya Christiansare still governed by the Mithakshara Law.
109 Section 5: Law regulating succession to deceased person’s immovable and movable property.
Succession to the immovable property in India of a deceased person shall be regulated by the lawof India wherever such person may have had his domicile at the time of his death.
The High Court however relying on the Supreme Court’s decision in
Anthony Swamy 110
held that the legislature when it passed legislation applicable to all
the Christians of the State excluded this community (Vaniyar Community) and left
them free to follow the tenets of Hindu Law and thereby set aside the judgments of
the lower court. The High Court blindly followed the law laid down by the Supreme
Court in Anthony Swamy 111
which was decided in 1970 a time when the courts were
confused with regard to the application of law to the Travancore Christians who were
governed by the repealed Travancore Christian Succession Act 1916.
However after Mary Roy verdict the uncertainty was removed and it was
made clear that the law applicable to the Christians all over India is the Indian
Succession Act 1925. The purpose of the Legislature is the unification of laws of
Christians who were hither to following different laws and customs. The High Court
simply applied the dictum of the apex court without realizing and applying the
intention of the legislature. The High Court should have upheld the decision of the
lower court which had correctly interpreted the law.
When the higher courts lay down the rule relating to succession and
inheritance as per the decision of the Supreme Court in Mary Roy case it is easy for
lower Courts to settle disputes as per the Indian Succession Act 1925.
In Kurien v. P.M.Joseph Rosamma and others the sub court of Pala Kottayam district
did not find any difficulty when the plaintiff filed the suit for partition of the intestate
property112. The question before the Court was whether the plaint schedule properties
110 AIR 1970 SC 223.
111 See supra note 93 112 2006. Sub Court of Pala, Kottayam district, Kerala. The plaintiff and Alikutty (Defendant No.9)
are the legal heirs of the deceased Mariamma. Subsequent to the death of defendant no.9 her shareover the property devolved upon her legal heirs by intestate succession. Defendants 1 to 7 are the
children born to Elizabeth , the mother of Issac in her second marriage with Kurien Mathen. Thedefendants denied the plaintiff’s claim for half share over the plaint schedule property.
The intestate property had not devolved on the children as it was a Kuthakappattam
land.
The plaintiff’s suit was decreed in her favour by the lower court without
going into the merit of the case. The court simply relied on Mary Roy case that if the
father dies intestate the property of the intestate shall be divided equally among the
children as per Section 37 of the Indian Succession Act 1925. However the appellate
Court rightly seized of the legal issue in the instant case and held that the lower
appellate court failed to make note of the fact that the Kuthakapattam right of the
father obtained in 1949 ended in 1961 and thereafter his son obtained possession and
constructed buildings. It was later assigned to him under the Kerala Government Land
Assignment Rules 1964. Hence the son became the absolute owner of the plaint
schedule property. This was transferred to appellant in 1983. The single Judge of the
High Court however without going into the merit of the case retained the order of the
lower court and held that the respondents are entitled for partition and reversed the
decree of lower appellate court.
The Supreme Court reinstated the lower appellate court finding and held that
the High Court failed to note that the tenure of Kuthakappatam of the father ended in
1961 itself. Later it was assigned to him as per Kerala Government Land Assignment
Rules 1964, which was not challenged by the respondents. The plaintiff could have
succeeded in her suit had they objected and prevented the assignment of their fathers
Kuthakapattam land in favour of the son. The Supreme Court through the instant case
shed light on the application of Section 37 of Indian Succession Act 1925. At the time
George Pudukkery. He had Kuthakappattam rights in respect of plaint schedule property. He hadtwo daughters and one son, Stephen George Pudukkery. The father died on 1958/59. After 14
years the same land was assigned to him as per the Kerala Government Land Assignment Rules1964.
Kumar Raja v. Sherly, d/o. Chirivathur Sunni @ Mani,120 the Kerala High Court
found any difficulty in allowing the claims of the daughter for a share in the intestate
property. She filed the suit for a declaration entitling her to plaint A schedule property
left behind by the intestate. The lower and appellate courts also did not deny her the
right to claim a share in the A schedule property. In fact the two brothers and the
sister was given the plaint A schedule property. The case clearly serves as an example
that once the law is settled by the Apex court, it is easy for the court to settle property
disputes between brothers and sisters over intestate property. In the instant case it is
pertinent to note that even without going to Court the brothers and sisters executed a
partition deed. This shows that the patriarchal Christian community has started
realizing the inheritance rights of daughters.
After the Supreme Court’s verdict Mary Roy had to file the suit for recovery
of her share in the ancestral property of her deceased father. So a suit is filed against
her mother Susie Issac in the Sub Court of Kottayam121. The suit was for partition of
immovable and movable properties. The Plaintiff’s case is that the plaint schedule
properties belonged to her late father P.V. Issac who died intestate. She claimed 1/6th
share over the property of the deceased Issac who died intestate as per section 33 of
the Indian Succession Act Plaintiff clamed properties of her father at Ootty. She also
claimed share in the A and B Schedule Properties. B schedule properties consisted of
movable properties. The defendants contented that the plaintiff was given the
properties in Ootty in lieu of her share in the plaint schedule properties.
120 (2009) KLT. Under the partition deed entered into between first respondent and her brothers the properties devolved on them from their father were divided. Plaint A schedule property forms partof B schedule property. T he District Judge upheld the lower court’s order on the round that she is
entitled to 1/3 rd share of the properties of the father. 121
The trial Court held that the suit was premature because the first defendant
the plaintiff’s mother had a life interest in the plaint schedule properties and the
property at Ootty did not belong to Issac her father. Hence the suit was dismissed. The
first defendant died after the filing of the Appeal. Reversing the lower Court decision
the High Court held that the children of the deceased Issac are entitled to 2/3 share
after deducting widow’s share. The property in Ootty was gifted to her. With regard to
movables the Court came to the conclusion that there is no evidence to prove that the
movables belonged to Issac. The court literally applied Section 37 of the Indian
succession Act 1925 which provides for equal distribution of intestate’s properties
among the children.
5. Stridhanam and Claims for Share
Under the Cochin Succession Act 1921 stridhanam means any property
given to a woman or in trust for her to her husband his parent or guardian in
connection with marriage122
. As per The Travancore Christian Succession Act 1916
the maximum amount a daughter can claim as stridhanam had been limited to
Rs.5000/-. So under the 1916 Act the daughters were not sharers. They have only a
right to stridhanam. Under the Cochin Act streedhanam can be understood as the
handing over of the share of the daughter at the time of marriage in the estate of the
father. It is also a charge on the intestate’s estate123
.
So the issue in Acharu v. Rappai124 the Kerala High Court adopted a liberal
gender just approach by ruling that the sisters are entitled to a share in the intestate
property in lieu of stridhanam. This broad approach towards women’s right laid the
122 See Section 3 of the Cochin Succession Act 1921. 123 Both these Acts were repealed following the verdict of the Supreme Court in Mary Roy case. 124
verdict. In the instant case126 the defendant contended that as per Section 22 of the
Cochin Christian Succession Act 1921 if stridhanam has been given or agreed to be
given by parents, paternal grandparents, she would not be entitled to share in their
property of the surviving brother/brothers. The lower Court rejected the contention on
the ground that there was no evidence to prove that the gold sovereigns given to them
were in lieu of plaintiff’s share in the property. Hence it was held that the plaintiff’s
were entitled to 1/3rd
share in the plaint schedule property.
On appeal High Court ruled that the matter had already been settled by the
highest court in the country. The contention of the defendant that the amount paid to
the plaintiffs at the time of marriage must bring it to hotchpots for deciding the shares
of the daughters, was out rightly rejected by the Court. The Court said that the
Christian daughter had sufferings all along. They had been to some extent obviated by
the decision in Mary Roy case and the consequential application of the Indian
Succession Act 1925127. Hence the court refused to bring back dead issues of the
Cochin Christian Succession Act 1921 which had been repealed by the Part B States
Laws Act 1951. The Cochin Christian Succession Act 1921 is replaced by the Indian
Succession Act 1925. The court is trying to keep pace with the Constitutional
principle of gender equality and seize every opportunity to take the nation forward
giving priority to gender issue. The Court refused to go vice versa. The judiciary
invariably deals women’s petitions in the light of the Constitutional mandate of
gender equality. The courts in general also move forward incorporating the
international principles of equal rights, right to inheritance and
126 Suit was filed by plaintiff for partition of plaint schedule property of their mother who diedintestate in 1981 as per section 37 of the Indian Succession Act 1925. The defendants resisted thesuit on the ground that the parties are governed by the Cochin Christian Succession Act 1921 and
that the plaintiffs were given stridhanam and gold sovereigns at the time of marriage. 127
When the Part B States (Laws) Act 1951 was extended to the princely states
of Travancore and Cochin, it extended along with it the Indian Succession Act 1925
to these States. However the Travancore and Cochin Succession Act of 1916 and
1921 were in force and the succession of the Christians of these States was governed
by these two Acts. As per these two Acts women were entitled only to stridhanam.
There has been a practice among the Christians to partition the family property during
the lifetime of the parents. In the case of family settlement of properties also, women
are excluded because they were given stridhanam. Such a situation arose in
Reji.P.Mathew v. Remi Joseph Kumapalthu and others. The Court relied on the
judgment of the Supreme Court in Kala and other v. Deputy Director of
Consolidation and others135
for analyzing the efficacy of family settlement and the
claims of daughter for share. The Supreme Court stated that the family settlement
must be a bonafide one so as to solve family disputes by an equitable division or
allotment of properties between the various members of the family. Moreover
such a settlement must be voluntary. That means it should not be induced by fraud,
coercion or undue influence. Finally the family arrangement can be oral. In such cases
no registration is necessary136.
The High Court rightly concluded that family settlement cannot be allowed
to be used as an engine of oppression against the rightful claimants in the family. The
Court reiterated the law laid down by the Supreme Court in Mary Roy case that the
Christians in Travancore are governed by the Indian Succession Act 1925 and not by
135 2008 (4) KLT 773. The suit was filed by the plaintiff for partition of the plaint schedule property.
She claimed 1/5th share of the property of her father after deducting 1/3 share of the mother. Thedefendants raised the contention that she is not entitled to a share since she was given cash,ornaments and land at the time of marriage and that family settlement was made with the fullknowledge of the plaintiffs. The father died in 1995. The court below held that the defendants
failed to prove that the plaintiff was given stridhanam at the time of marriage.136
the 1916 Act. The Court pronounced a gender just decision by holding that the effect
of Mary Roy case cannot be allowed to be circumvented by putting forward a plea of
estoppel or a plea of the existence of family arrangement or settlement so as to deny
the legitimate shares of the married daughters. The Court added further that when the
settlement is not bonafide, distribution of the assets among the members of the family
the Courts are not bound to and approve such a family settlement.
The High Court pronounced the judgment fully knowing the intention of
legislature under Section 37 of the 1925 Act. It is the duty of the judiciary as
custodian of the fundamental rights of citizens to prevent the defeat of the provisions
of the legislation and Constitution. The practice of family settlement of property
among the Christians is to circumvent the provisions under Section 37 and to
disinherit the daughters under the pretext that they were given Stridhanam137.
The consequences of the continuance of the discriminatory Travancore
Christian Succession Act 1916 for several decades are reflected in Biju Ramesh v.
Vijay Kumar 138
. The widow of the intestate filed a suit for partition of the intestate’s
property claiming half share139. The plaintiff the son of the intestate raised the
contention that the mother/widow has no right to execute mortgage. She has only a
right of enjoyment of the ½ of the immovable properties of the deceased husband.
Only the son is entitled to succeed to the estate of his deceased father. The lower
137 Both the trial court and the appellate court upheld the plaintiff’s right to 1/5th share of the intestate
property after deducting 1/3 share of the mother.138
2005 (2) KLT 960. 139 The properties belonged to late Johnstone who died on 02.07.1981. The suit was filed in the
Subordinate Court of Trivandrum. The widow started giving the properties for mortgage. Thewidow’s contention was that she executed the mortgage with the consent and full knowledge oftheir daughter Vasanthakumari. She contended that the daughter and herself are the legal heirs of
the intestate’s property. Plaintiff is their son. The widow also made it clear that she is entitled to1/3 share and a share is to be given to their daughter.
subordinate Court passed a preliminary decree for partition and separate possession of
the 1/3rd share of the widow with mesne profits.
The High Court did not find any difficulty because of the verdict in Mary
Roy case. The Court rejected the contention of the plaintiff that a widow is entitled
only to life interest. He had been erroneously relying on the Travancore Christian
Succession Act 1916140
which provided that a widow has only a life interest in the
immovable property of her late husband. Mary Roy in fact challenged this section
along with sections 28 and 29 of the 1916 Act. The court followed the path laid down
by the apex court in Mary Roy case and held that there is no dispute after the decision
in Mary Roy case141 that the plaint schedule properties left behind by Johnstone have
devolved equally to the widow, plaintiff and the daughter 142
. The Court wiped off the
confusion created by the continuance of the Travancore Christian Succession Act
1916. The provisions of this repealed succession law took deep roots in the patriarchal
community and they are not still aware of the legal provisions under the Indian
Succession Act 1925. If the legislature had expressly repealed the 1916 Act, this type
of notions could not arise.
The Cochin and Travancore Christian Succession Acts of 1921 and 1916
stood repealed following the Supreme Court’s verdict in Mary Roy case. A suit for
partition was filed by a Christian woman from Cochin in Rosamma v. Annamma143
.
With the enactment of Part B States (Laws) Act 1951, the Indian Succession Act
became the succession law for Travancore-Cochin Christian Succession Laws. The
140 Section 24 of the Travancore Christian Succession Act 1916 provides: Widow or mother has onlya life interest terminable at the death or remarriage over any immovable property to which she may become entitled under Sections 16, 17, 21 and 22.
deed also. Because of that one additional share was allotted to the defendant. So the
plaintiff now claimed half share in the suit properties. The property gifted to her son
was also included in the suit property. The defendant contended that he got only his
due share and no additional is mentioned in the deed. Both the lower and appellate
courts came to the conclusion that the plaintiff is not a sharer or co-owner of the plaint
schedule properties and that her claim for half share in the suit property cannot be
allowed.
The instant case sheds light on the need for a law to protect the assets of a
married woman. The wife is not entitled to a share in the husband’s property. What
about the hundred and one works she does for the family? Is she not entitled for
payment? If she does it outside she will be paid. The Court should have taken an
equitable decision allowing her a share equal to her stridhanam
6. Wife’s Right to Maintenance
The Kerala High Court through its judicial activism utilized the common law
principle of Justice, equity and good conscience to fill the vacuum left by the inaction
of the legislature. The Court without any hesitation straight away gave relief to the
miserable Christian wife who was asked to vacate the matrimonial home by applying
the above stated English principle. So in Agnes @ Kunjumol v. Regeena Thomas159
a Christian wife with her daughter was asked to vacate the house of her mother-in-law
because the husband became mentally ill160. The trial court dismissed the suit on
159 2011 (1) KLT 588. 160 Among the children of the defendant the plaintiff’s husband was the youngest. Later her husband
fell sick mentally and killed one of these children. After acquittal he was sent to mental hospital.The plaintiff was asked to vacate the house by the mother-in-law. Apprehending dispossession she
filed the suit. The defendant on the other hand filed a counter seeking mandatory injunctionordering the plaintiff to vacate the house.
ground that Christians have no ‘tharavadu161’. So she cannot lay any claim on the
defendant’s house where she was staying. The appellate court upheld this finding.
The activist court seized of the issue. As per the lower court only Hindu
women can lay a claim on the tharavadu. So the Christian women have no remedy
under existing law. The High Court also found that there is no law regarding the
liability of a Christian husband to pay maintenance. Legally the lower court finding is
correct because being a Christian she has no statutory right on the ‘tharavadu’, which
was in the name of the mother-in-law. The court however relied on the obligation on
the part of the husband’s family to provide for maintenance.
So the court applied the equitable principle and ordered the plaintiff to
continue to stay in the house till another house is provided for her and her daughter.
Here the court deviated from the true letter of the law. If true letter of the law is
applied the party would not get justice. The court relied on the judgments delivered by
Lord Denning in H.v.H162
. He laid the principle that husband and wife have joint
ownership over the matrimonial home. The court added that in common law the
husband has no right to turn his wife out of the house. The gender just court continued
that it will be too cruel to say that because the husband of a woman incapacitated the
lady should vacate the matrimonial house and should be left homeless. The Court
found it difficult to accept it. The Court rightly concluded that the husband has a duty
to provide his wife and children with a roof over her head.
161 Taravadu is the name given to the joint family consisting of males and females all descended in the
female line from a common ancestor. It is an undivided family governed by theMarumakkathayam law, the customary law of Malabar. Its outstanding feature is that for the purpose of inheritance descent is traced through the female line. In Mithakshara joint family themembers claim their descent from a common ancestor. In Marumakkathayam Tarawad descent isfrom a common ancestress. Marumakkathayam law prevails among a considerable Section of the
had been given to her husband and the sons were to inherit the house. In the second
Will it was written that after the life estate of her husband the entire property is given
to the second son totally excluding the first son.
The petition for probation of the Will was objected by the defendants who
challenged the genuineness of the wills. The plaintiff alleges that the Will is written
under suspicious circumstance and hence probate should not be granted. The trial
court without applying its mind ruled that the plaintiff was excluded since they were
given stridhanam and accordingly granted probate. However the High Court doubted
the genuineness of the Will. The Court rightly came to the conclusion that the Will is
not proved. The court observed that merely because the signatures of the testatrix
appear on the Will it cannot be assumed for a moment that the testatrix had duly
signed the Will after knowing the contents thereof. The lack of specific evidence
relating to the due execution of the Will prompted the court to reverse the findings of
the Trial court. The instant case is clear examples for execution of fraudulent Wills
intending to exclude the sisters from inheritance. The court has rightly ruled in favour
of the sister who challenged the genuineness of the Will.
Again in Gita@Gita Ravi v. Mary Jenet James @ M.J.James173 the dispute
was with regard to the Will executed by the testatrix174. The respondent’s case was
that the Will was a fabricated one and the legal heirs of the testatrix were her sister
173 (1995) 1 MLJ 467.
174 The will executed by Pauline Manonmani James was challenged on the ground that it is a forged
will and the petitioner Gita Ravi and his wife forced her to execute the will. Gita Ravi and her
husband were tenants of the testatrix. Applications were filed by M.J. James praying to the courtnot to grant probate of the will to Gita Ravi. In the application for revocation of probate it wasalleged the deceased testatrix owned immovable property to the extent of 8,819 sq.mtr. Her onlylegal heirs were the applicant and her brother. Mr. and Mrs. Ravi one of the testatrix tenants lockedand kept the key with her during her last days. The will was fabricated by them. The petitionerGita in turn alleged that the testatrix and her brothers and sisters were fighting with each other.
Mrs. Gita was looking after her during her last days. The will was prepared while she was inhospital. The doctor witnessed it.
sole heir of the intestate property. The court doubted the genuineness of the Will in
which the entire property was bequeathed to son born to a woman who cohabited with
a husband during the subsistence of the first marriage of the husband.
Again in J.Mathew v. Leela Joseph178 the defendants resisted the
probate proceedings relating to will dated 06.05.1992. It was registered in 12.05.1992.
The defendants contended that the testator was old and agile and was not in a state of
mind to execute such a Will179. It was not all executed by their father. However the
trial Court came to the conclusion that the will was executed duly. There is no room
for any doubt about its genuineness. Dismissing the appeal, the court held that the
property is given to the second wife for her lifetime and thereafter it would revert to
the sons and daughters. This is an instance of frivolous cases filed by sons
apprehending their exclusion from inheritance.
Similar situation arose in Johny, J.Anu, Baby John v. Betty, Joy, Noby,
Boby180 when the plaintiff filed the suit for partition. His case is that plaint schedule
property is to be partitioned into three shares and the plaintiff is entitled to 1/3rd
share
in the intestate’s properties. The defendant claimed that Mr. George had executed a
Will on 30.07.07 bequeathing the properties to his sister Betty. She has got title and
possession of the property after his death. The issue before the Court was whether the
late George had executed a Will bequeathing the plaint schedule properties to the first
defendant. The second issue was whether the plaint schedule property is partible and
if so whether the plaintiff is entitled to 1/3rd
share. The trial court held that the will
178 2007 (5) CTC 378. 179
The testator had two sons and two daughters through his first wife and two daughters through hissecond wife. The four daughters submitted affidavits favouring grant of probate. The probate
proceedings were resisted by two sons, defendants 1 and 2. 180
Again in Elsy v. V.K.Raju184 the respondent’s contention was that their father
Mr.E.A.Thomas who died in 1980 and he had not executed any Will during his
lifetime and the will was a fabricated one185. Respondents 2 to 5 and 7 filed separate
affidavits to the effect that late Thomas had not executed any Will. The District Judge
rejected all the contentions and granted probate of the Will. This judgment was
challenged in the appeal. The Court looked into the fact that only four children have
opposed the petition. All the others have not disputed the Will. They have not raised
any doubt regarding the genuineness of the signature.
Dismissing the appeal the court said that the probate court is not a court of
probity. The court is not expected to find whether the testator bequeathed his property
in accordance to the rule. If the profounder is to prove the confides of the transaction
mentioned in the testamentary instrument. If there are no suspicious circumstances
there is no difficulty legally in granting probate186. The Court further added that the
probate court is to see whether the testator signed the Will fully understanding the
implications. He should also be aware that the will was the last Will duly executed by
a testator with testamentary capacity187
. The High Court was also pointing out to the
absolute testamentary capacity of the testator and the power of the court is restricted
to see that all the requirements have been followed.
The Indian Succession Act 1925 under Section 59 confers absolute
testamentary power to the testator to dispose of his property as he likes. Consequently
the testator can disinherit sons/daughters whom he dislikes. Sometime the testator
184 2006 (4) KLT 282.
185 Probate O.P. 61/1981 was filed in the Additional District Court Ernakulam under Sections 226 and268 of Indian Succession Act 1925. V.K.Raju was the petitioner in the probate O.P. The petitioneris the executor named in the will. Respondents 1 to 10 are the widow and children of the deceasedThomas and they are the legal heirs as per the Cochin Christian Succession Act 1921.
disinherits a son because they are not in good terms. Under English law of
Administration of Estates Act 1925, they have incorporated a well established
common law rule known as forfeiture rule. Under this rule a person cannot inherit the
property from whom he or she has killed. Similarly there is enmity between father and
son; the father may exclude such son from inheritance. Such a situation arose in
K.Christo Jayakumar v. K.Sujaya Kumari188
. The issue is with regard to probate of a
Will executed by one Mr.Kumaradass189
. In the Will he gave his properties to his
three daughters and one son. He excluded his eldest son stating that he had assaulted
and inflicted injuries to his father. This reason was stated in the Will for excluding
this eldest son.
Exclusion of the eldest son or other children from inheritance rarely occurs
in Christian families. Hindu Sastras speak about the enmity of the father towards the
eldest son. This can be stated as one of the defects in giving absolute testamentary
power to the testator. In order to avoid such situations, the Muslim Law restricts the
testamentary capacity of the testator to 1/3 rd of its property. The balance property can
be distributed among those who rightly deserve it. In the instant case the trial court
granted probate in favour of the petitioners on the ground that the will and codicil
were executed by the testator with sound mind.
188 Before the Madurai Bench of Madras High Court, 02.03.2011.
189 He has executed a registered Will in 1997 bequeathing schedule A to D properties in favour of the
petitioners who are his daughters. Later he executed a codicil dated 27.03.1998. The petitionersfiled pro. O.P. before the subordinate court Padmanabhapuram for getting probate of the will dated1998. The respondent is the eldest son of Mr.Kumaradass. He had been in inimical terms with hisfather. He was not given any benefits under the Will. He was totally disinherited. So he alleges thatthe will and codicil were prepared and registered fraudulently when he was not in sound mind. Acomplaint dated 23.07.1993 was given by Mr.Kumaradass against his son before the Inspector of
Police Thucklay. He mentioned in the complaint that they attempted to assault and inflict injurieson him.
her under the Will. After the death of testatrix petition was filed before Tanjore Court.
It was then transferred to the sub court Mailaduthurai. Contentions were raised against
probate of the Will alleging that the Will is not genuine194. They contended that more
properties were given to deceased son’s son. The daughter was disinherited. However
the trial court held the Will as genuine and it was confirmed by the appellate court.
The genuineness of the Will was challenged here on the ground that
disinheriting the daughter the son’s son was given properties. Moreover the properties
allotted to the daughter are only for her lifetime and after her death the property is to
revert to the grandson of her son. What is to be concluded here is the continuance of
the custom of giving properties to the sons and his sons. The daughter is either
disinherited or gets a nominal share. The case throws light on the patriarchal mind set
of the community. Even now the community is reluctant to give property to
daughters.
8. Inheritance Rights of Illegitimate Children
The right of succession of illegitimate children born to Christian parents was
the issue in Jane Antony v. M.Siyath and others195
. The question was whether the
children born to a woman who lived with deceased Antony as man and wife are
legitimate or not196
. The High Court was called upon to consider the entitlement of the
194 The main contention was that the distribution of assets was unequal and the testatrix was not in
good health at the time of executing the will. The testatrix had two sons and two daughters,Thankammaniammal and Joseph Catherine, the first respondent herein. The petitioners in the O.Pare the children of her deceased son Xavier. Under the will A Schedule property was given to son,
Joseph Nadar. Out of B Schedule property a portion was given to Joseph Catherine, her daughterfor lifetime and after her death to mahs of land should go to 3
rd appellant Babuji, the grandson of
Joseph Nadar. 195 2008 (4) KLT 1002.196
The deceased Jane Antony died in a motor accident on 03.05.1999 while he was doing his MScourse in the medical College Kottayam. His wife is also a doctor. He had two children in that
wedlock. In the claim petition respondents 4 and 5 and one Mrs. Mary Antony got impleaded asadditional respondents. It was held by the Tribunal that the respondents 4 and 5 are illegitimate.
two children born to the deceased out of wedlock to compensation amount awarded
by the Tribunal. The High Court relied on a Supreme Court decision in Rameswari
Devi v. State of Bihar 197 to pronounce the law.
The Apex court considered a situation where two persons are living together
for long years as husband and wife, even in the absence of proof, a presumption of
valid marriage between them would arise. The Supreme Court also approved this in
Badri Prasad v. Dy.Director of Consolidation198
where the parties lived together for a
long spell as husband and wife. Again in Vidhyadhari and others v. Sukhrana Bai199
the Supreme Court held that the four children born to the deceased in Vidhyadhari can
be conferred legitimacy because the deceased treated Vidhyadhari as his wife.
Relying on these apex court decisions High Court held that we are of the strong view
that all illegitimate children born out of wedlock are children born to man and woman
who cohabited for some time and are in substance husband and wife for all purposes.
Therefore we have no hesitation in holding that the two children born to deceased
Antony are legitimate children entitled to succeed to the estate of the deceased 200
.
The High Court failed to see that in the instant case the parties are Christians
where Church and the community attach strict morality in these matters. In the cases
cited above, the parties are Christians. Moreover how can the Court confer legitimacy
to children on the basis of cohabitation when the first marriage subsists? The court
can permit the illegitimate children to compensation but how can the court say that
these children are legitimate. These children are born not out of a valid marriage. As
The deceased is alleged to have married Mrs. Mary during the subsistence of the first marriage.The Tribunal’s order that illegitimate children are also entitled to compensation had beenchallenged by way of appeal to High Court.