Alexander vs Isabella Fernandez

Joseph, J.—The main point arising for decision in this second appeal is whether a married daughter of a Roman Catholic Chirstian of the Latin Rite, in Quilon, who was paid streedhanom at the time of her marriage is entitled to a share in her deceased father''s property. The plaintiff and the fourth defendant are married daughters of one Sebstian who died in 1090 M. E., leaving three sons who are defendants 1 to 3 and a widow who died in 1120. The plaintiff was married in 1082 and a sum of 2000 Fanams was paid to her as streedhanom (dowry). The fourth defendant was married after her father''s death. Defendants 1 to 3 and their mother mortgaged the plaint property with possession under Ext. B in 1098. After the death of their mother, defendants 1 to 3 sold the equity of redemption of the property to the fifth defendant in 1121. The plaintiff sued for partition and recovery of her one fifth share, alleging that the mortgage and the sale were not supported by consideration and that the same were not binding on her. The fifth defendant contended that the plaintiff having received dowry at the time of her marriage was not entitled to a share in her father''s property and that even if she had any right, the same was barred by adverse possession. These contentions were over-ruled and the plaintiff was given a decree for partition. The decree of the trial court was confirmed in appeal, and the fifth defendant has preferred this second appeal. When the case came before Vaidialingom J. it was referred to a Division Bench by the following order: --

The decision of the three learned Judges of the Travancore High Court reported in Sebastian Fernandez v. Lassar Fernandez (30 TLJ 470) is required to be reconsidered in this Second Appeal by Mr. M. Madhavan Nair, Learned counsel for the appellant.

In view of this, this Second Appeal is referred to a Division Bench for hearing.

Though the Chritian Succession Act, II of 1092 (of Travancore) is not applicable to this case succession having opened earlier, it is useful to refer to some of the provisions of the Act as it was one mainly consolidating the customary law applicable to intestate succession among the Indian Christians in Travancore. Section 28 of the Act says:

Without prejudice to the provisions of Section 16, the male heirs mentioned in group (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 Streedhanom.

The Streedhanom due to a daughter shall be fixed at one-fourth the value of the share of a son, or Rs. 5,000, whichever is less:

Provided that any female heir of an intestate, to whom Streedhanom was paid or promised by the intestate, or in the intestate''s lifetime 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 brothers (whether of the full-blood or of the half-blood by the same father) or the lineal descendants of any such deceased brother shall survive the intestate.

Any Streedhanom promised, but not paid by the intestate, shall be a charge upon his property.

Section 30 provides:

Sections 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 Karunagapally, 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.

The latter part of the section shows that female heirs of an intestate share equally with the sons according to custom. This case must be governed by the custom or usage prevalent in the community. The Travancore Christian Succession Act is based mainly on the report of the Christian Committee and in paragraph 305 of the report it is stated that among Roman Catholics of the Latin Rite, the daughters share equally with the sons in their father''s property.

The question whether daughters who were paid Streedhanom at the time of their marriage lost all rights to their father''s property was considered by a Full Bench of the Travancore High Court in Sebastian Fernandez v. Lassar Fernandez (30 T. L. J. 470). It was held that they were still entitled to share equally with sons in their father''s properties. There were two earlier decisions of the Travancore High Court where a contrary view was taken, and the reference to the Full Bench was necessitated on account of those decisions. The earlier decisions are Sahayam Caspass Muravas v. Theresia Gomez (6 T. L. R. 26) and Kochuvava John v. Vasthian Elizabeth (13 T. L. R. 215). After pointing out that the parties in 6 T. L. R. 26 were not Christians of the Latin Rite and that in the later case reported in 13 T. L. R. 215 the evidence of the witnesses was not conclusive and that the court based its decision mainly on the earlier decision (6 T. L. R. 26), the Full Bench observed:

The Legislature therefore specifically expressed in section 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 over-rides the previous decisions in 6 T. L. R. 26 and 13 T. L. R. 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 community.

No attempt was made in this case to prove a custom that a daughter who was paid streedhanom at the time of her marriage forfeited all rights to her father''s properties. In our opinion the law was correctly laid down in the decision reported in 30 T. L. J. 470, and we follow the same.

The only point which remains to be considered is whether the plaintiff''s rights are lost by adverse possession. It is urged that possession was with the mortgagee ever since 1098 and that the suit was instituted more than twelve years after possession passed. The evidence in the case is not sufficient to hold that the right of the plaintiff was lost by such hostile acts as would constitute adverse possession among co-owners. The plaintiff was residing elsewhere and the courts below have accepted her evidence that she used to receive money occasionally from her mother till the latter''s death in 1120. In the circumstances we uphold the finding of the courts below on this point.

However, it cannot be held that the mortgage is totally invalid. A sum of Rs. 300/- out of the consideration received under the mortgage was for discharge of a mortgage debt incurred for payment of dowry to the fourth defendant. This is a debt binding on the estate and the plaintiff is liable to pay one-fifth of the same. The concurrent decrees therefore require modification to this extent, namely, that the plaintiff should pay Rs. 60/- to the fifth defendant before recovering possession of her share.

The trial court had directed that the dowry paid to the plaintiff should be deducted from her share. There was no appeal on this point by the plaintiff and the same has thus become final. In the result, the concurrent decrees of the courts below are confirmed subject to the modification that the plaintiff is directed to pay Rs. 60/- to the fifth defendant before recovering her one-fifth share in the properties covered by the mortgage, Ext. B. The appeal is allowed only to the above extent and is dismissed in other respects. In the circumstances of the case the parties will bear their costs throughout.