IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 SA.No. 425 of 2002(A) --------------------- AS.33/1998 of PRINCIPAL SUB COURT,ERNAKULAM OS.485/1996 of I ADDL.M.C.,ERNAKULAM .................... APPELLANTS/ DEFENDANTS 1 TO 6: ------------------------------- 1. SUSAN JOHN, W/O.JOHN, ELAVUMKUZHI HOUSE, THALAKODY P.O., MULANTHURUTHY. 2. AMMINI JOHN, D/O.JOHN, ELAVUMKUZHY HOUSE, THALAKODY P.O., MULAMTHURUTHY. 3. RAJU JOHN, S/O.JOHN, ELAVUMKUZHI HOUSE, THALAKODY P.O., MULAMTHURTHY. 4. ANILA JOHN, D/O.JOHN, ELAVUMKUZHI HOUSE, THALAKODY P.O., MULAMTHURTHY. 5. SHYNI JOHN, D/O.JOHN, ELAVUMKUZHI HOUSE, THALAKODY P.O., MULAMTHURUTHY. 6. SHEEBA JOHN, D/O.JOHN, ELAVUMKUZHI HOUSE, THALAKODY P.O., MULAMTHURTHY. BY ADV. SRI.K.PRABHAKARAN SMT.K.P.SREELATHA RESPONDENTS( RESPONDENTS/PLAINTIFF 1 TO 4 AND DEFENDANTS 4 & 8): ---------------------------------------------------------------- 1. AMMINI, W/O.KURIAKOSE, KURINSINGAL HOUSE, KODASSERY P.O., CHALAKUDY. (Died) 2. SUSAN PETERS, W/O.JOHN PETER, KALARIKOTTIL HOUSE, MANNUTHI P.O., TRICHUR. 3. ELMI OUSEPH, W/O.K.T. OUSEPH, KARIPPAI HOUSE, PRIYARAM P.O., CHALAKUDY. 4. GRACY THOMAS, W/O.P.J.THOMAS, PARAKKAL HOUSE, ELINJIPARA P.O., CHALAKUDY. 5. ANITHA JOHN, D/O.JOHN, ELAVUNKUZHI HOUSE, THALAKODY P.O., MULAMTHURUTHY. 6. V.P.POULOSE, S/O.PATHROSE, VELLIYAMATTATHIL HOUSE, KODASSERY P.O., CHALAKUDY. (Died) (RESPONDENTS 2 TO 4 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 6th RESPONDENT AS PER ORDER DATED 25-05-2006 IN i a 17-06-2005.) *7. KURIAKOSE, AGED 65 YEARS, KURISINGAL HOUSE, KODASSERY P O CHALAKUDY *8. JOY KURIAN S/o. KURIAKOSE AGED 44 YEARS KURISINGAL HOUSE, KODASSERY P O CHALAKUDY *9. MOLLY D/o. KURIAKOSE AGED 39 YEARS KURISINGAL HOUSE, KODASSERY P O CHALAKUDY *10.RAJU, S/o. KURIAKOSE AGED 37 YEARS KURISINGAL HOUSE, KODASSERY P O CHALAKUDY *11.VALSA, D/o. KURIAKOSE, AGED 36 YEARS KURISINGAL HOUSE, KODASSERY P O CHALAKUDY *12. SAJI S/o. KURIAKOSE AGED 34 YEARS KURISINGAL HOUSE, KODASSERY P O CHALAKUDY *13.GIGI, S/o. KURIAKOSE,AGED 32 YEARS KURISINGAL HOUSE, KODASSERY P O CHALAKUDY (*ADDITIONAL RESPONDENTS 7 TO 13 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT AS PER ORDER DATED 30-09-2004 IN IA 466/04) ADV. SRI.BABU KARUKAPADATH FOR R2 SMT.M.A.VAHEEDA BABU FOR R2 SRI.C.S.ULLAS FOR R5 SRI.BABU KARUKAPADATH FOR ADDL.R7 TO 13 SMT.M.A.VAHEEDA BABU FOR ADDL.R7 TO 13 THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- S.A.No. 425 of 2002 --------------------------------------- Dated this 20th day of October 2009 JUDGMENT Urging the question whether payment of Streedhanam prior to 01-04-1951 to the daughter under the provisions of Travancore Christian Succession Act (for short, “the Act”) would disentitle her to claim a share in the property of the father even when succession opened after 01-04-1951 as a substantial question of law, appellants have brought this appeal challenging judgment and preliminary decree for partition passed by learned Munsiff and confirmed by first appellate court. Parties are referred as plaintiffs and defendants as in the trial court for convenience. 2. The suit properties belonged to poulose Mathai as per sale deed No.322 of 1959. It is not disputed that he died intestate in the year 1964. According to the plaintiff on the death of poulose Mathai the properties were inherited by his son, E.M.John and daughter, Kunjeli who also died intestate. Defendant No.8 is the husband and plaintiffs are the children of Kunjeli. Defendant No.1 is the wife of E.M.John. Defendant Nos.2 to 7 are the children of the said John and defendant No.1, Kunjeli and defendant No.8 has a son by name, Peter and according to the plaintiffs he has relinquished his right in the suit properties and accepted citizenship of the U.S.A. Plaintiffs claimed that they are entitled to get 8/24 shares in the suit property and S.A.No.425 of 2002 2 demanded partition and separate possession. Defendant No.7 contended that long before the death of poulose Mathai, Kunjeli was given away in marriage to defendant No.8 on 19-02-1933 and at that time she was paid Rs.5000/- by way of Streedhanam. Her claim over the property of her father, Rs.5000/- was given at the time of marriage by way of Sthreedhanam and hence she had no claim over the properties of her father. Her legal heirs could not claim any share in the suit properties. It is also contended that E M John was exercising exclusive possession and enjoyment of the suit property from 1964 onwards and hence right if any of Kunjeli and her legal heir is lost by adverse possession and the law of limitation. Trial court found that succession opened only when poulose Mathai died intestate in the year 1964, the provisions of the Indian Succession Act alone applied in the matter of succession and hence legal heirs of Kunjeli are entitled to share in the suit properties. The plea of adverse possession and limitation was found against defendant No.7. Accordingly, preliminary decree was passed. First appellate court has concurred with the findings of the trial court and confirmed the decree. It is contended by learned counsel that since Kunjeli was given away in marriage on 19- 02-1933 giving her share in the property of her father, she had no further claim and hence her legal heirs are not entitled to share in the suit properties. Learned counsel invited my attention to section 28 of S.A.No.425 of 2002 3 the Act. Counsel for plaintiffs would contend that no substantial question of law is involved since the matter is settled by judicial pronouncements that succession opened only on the death of poulose Mathai in the year 1964 and hence, only the provisions of the Indian Succession Act would apply in the matter of succession. 3. Assuming that Kunjeli was paid Streedhanam at the time of her marriage on 19-02-1933, question is whether that would disentitle her and on her death, her legal heirs to claim partition of the suit properties which belonged to her father who died intestate in the year 1964. The Part B states (Laws) Act ,1951 came into force on 01-04- 1951 making provisions of the Indian Succession Act applicable to persons who were till then governed by the Act (See Mary Roy Vs. State of Kerala (AIR 1986 SC 1011). 'Streedhanam' is defined in the Act under section 5 : “Streedhanam means and includes money or ornaments, or, in lieu of money or ornaments, any property, movable or immovable, given or promised 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 any one who claims under such father or mother, in satisfaction of her claim against the estate of the father or mother” Section 28 of the Act states, “Without prejudice to the provisions of section 16, the male heirs mentioned in group (1) of Section 25, shall be S.A.No.425 of 2002 4 entitled to have the whole of the intestate's property divided equally among themselves, subject to the claims of the daughter for Streedhanam. The Streedhanam due to a daughter shall be fixed at one-fourth the value of the share of a son, or Rs.5000/- whichever is less. Provided that any female heir of an intestate to whom Streedhanam 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 Streedhanam promised, but not paid by the intestate shall be a charge upon his property.” According to learned counsel for defendant No.7, the expression “shall not be entitled to have any further claim in the property of the intestate” would indicate that if Streedhanam has been paid the daughter will not have any further claim in the property ie, any share in the property which meant that her claim for share will remain if streedhanam is not paid. This interpretation according to learned counsel for plaintiffs is not sustainable. 4. A division bench of this court in Joseph Vs. Mary (1988 (2) KLT 27) stated in para 12, “it is not seriously disputed that in view of section 28 of the Travancore Christian Succession Act, daughter was S.A.No.425 of 2002 5 not entitled to claim any share in the properties of the father and was only entitled to claim Streedhanam.” A learned Single Judge of this court in Issac Vs. Elamma (2005 (1) KLT269) considered sections 5,26 and 29 of the Act and held that payment of Streedhanam would not extinguish claim of the daughter for inheritance on the death of her father intestate (after 01-04-1951). On a reading sections 5, 28 and 29 of the Act what could be understood is that the daughter has a money claim, if the Streedhanam is not paid, with a charge over the property of the father. That does not amount to a share in the property of the father. Succession could open only on the death of the father intestate. In this case it happened in the year 1964 when the Indian Succession Act governed the field in the matter of intestate succession. Therefore the courts below are justified in holding that Kunjeli was entitled to a share in the property of her father and on her death, that right devolved on plaintiffs and defendant No.8. The question raised by learned counsel is settled by the authoritative pronouncements which I have stated above and hence is not more a debatable issue so as to make it a substantial question of law. 5. So far as plea of adverse possession is concerned Exts.A1 and A2 show that even in the year 1995, E M John sought consent of plaintiffs and defendant No.8 for sale of the properties, thereby S.A.No.425 of 2002 6 accepting and acknowledging their title also over the properties. Hence the question of adverse possession also did not arise as rightly found by the courts below. The second appeal fails. It is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/