IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 SA.NO. 65 OF 2000(D) -------------------- AS.515/1994 OF SUB COURT,NEYYATTINKARA OS.380/1972 OF PRL.MUNSIFF COURT, NEYYATTINKARA .................... APPELLANT(S) – APPELLANTS - PLAINTIFFS: ---------------------------------- 1. ABRAHAM THOMSON, VALIYA KOTTATHANAM PURAYIDOM, KULATHOOR DESOM, KULATHOOR VILLAGE, NEYYATTINKARA. 2. THANKAMMA ESTHER, DO. DO. BY ADV. SRI.ROY CHACKO RESPONDENT(S) – RESPONDENTS – DEFENDANTS 2 TO 16: ------------------------------------------- 1. KUNJAMMA JEEVAMONY, THEKKUMKARAKANDAM, MELETHATTU PUTHEN VEEDU, HAVING ALSO KOTTATHANATHU VEEDU, KULATHOOR DESOM, KULATHOOR VILLAGE. 2. KUNJAMMA KAMALAMMA, AYAMVILAKEEZHE PUTHEN VEEDU, ATHIUYANNOOR DESOM, ATHIYANOOR VILLAGE. 3. KUNJAMMA SELVI, THUMPAKKAL PUTHUVAL PUTHEN VEEDU, KULATHOOR DESOM, KULATHOOR VILLAGE. 4. KUNJAMMA SUJATHA, KOTTATHANTHU VEEDU, KULATHOOR DESOM, KULATHOOR VILLAGE. 5. ABDUL WAHAB SYED MOHAMMED, NULAKKUDIVILAKATHU PUTHEN VEEDU, POOVAR DESOM, THIRUPURAM VILLAGE (DIED) (DELETED) 6. ABDUL WAHAB MEERAN PILLAI, DO. 7. ABDUL WAHAB MOHAMMED ABDUL KHADER, DO. 8. ABDUL WAHAB MOHAMMED IBRAHIM, DO. 9. ABDUL WAHAB MOHAMMED HASSAN, DO. 10. MANAS CHELLAYYAN, THUMPAKAL PUTHUVAL PUTHEN VEEDU, KULATHOOR DESOM, KULATHOOR VILLAGE (DIED) (DELETED) 11. ASMA BEEVI SALMA BEEVI, RESIDING IN HOUSE NO.46, WARD NO.XI OF KULATHOOR PANCHAYAT, KULATHOOR DESOM, KULATHOOR VILLAGE (DIED) (DELETED). RESPONDENT NOS.5, 11 AND 12 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANTS AS PER ORDER DATED 17.3.2003 IN C.M.P. NO.634 OF 2003 ADV. SRI.S.JAMES VINCENT FOR R1 TO 3 SRI.R.GOPAN FOR R1 TO R3 SRI.L.MOHANAN SRI.D.SAJEEV THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2009 ALONG WITH SA NO. 514 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NOS.65 & 514 OF 2000 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of November, 2009 J U D G M E N T ---------------------- In these Second Appeals the common substantial questions of law which I have framed for a decision are whether the mere fact that a Protestant Christian is living in Neyyattinkara Taluk (among other Taluks mentioned in Section 30 of the Travancore Christian Succession Act – for short, “the Act”) is sufficient to hold that he is following the customary usage as per which male and female heirs of the intestate would inherit his property in equal proportion and whether the courts below are legally correct in holding that plaintiffs have not proved the customary usage. The contestants in these cases claim title by inheritance to the property of Chadayan Pethiru, a Protestant Christian who lived in Neyyattinkara Taluk. According to the learned counsel for appellants/plaintiffs fact of such domicile is sufficient to infer, as provided in Sec.30 of the Act that Chadayan Pethiru was following that customary usage which Sec.30 itself recognised while counsel for respondents/defendants would contend that apart from the fact of such domicile it is also necessary to prove that Chadayan Pethiru belonged to that group of Protestants who were following S.A. NOS.65 & 514 of 2000 -: 2 :- such a customary usage. 2. Short facts necessary for a decision of the questions of law framed are: The late Chadayan Pethiru, it is not disputed lived in Neyyattinkara Taluk. His children are Paulose, Rayamma and Thankamma. Plaintiff No.1 is the daughter of Thankamma. Plaintiff No.2 is the husband of plaintiff No.1. Defendant Nos.1 to 5 are the legal heirs of Paulose. Defendant Nos.6 to 12 are assignees from defendant Nos.1 to 5. Rayamma died as a spinster. Plaint B schedule, 1.28 acres belonged to Chadayan Pethiru. Plaintiffs claimed that Sthreedanam was not paid to Thankamma and hence after the death of Chadayan Pethiru, Paulose executed Ext.A1, Sthreedana document of 1109 M.E. in favour of Thankamma on the previous day of her marriage with Samuel as per which 64 cents out of the property which belonged to Chadayan Pethiru was assigned to Thankamma in lieu of Sthreedanam. Thankamma and her sister, Rayamma executed Ext.A2, assignment deed dated 15.7.1964 in respect of 1.07 acres of land in favour of the plaintiffs. The said 1.07 acres takes in the 64 cents acquired by Thankamma as per Ext.A1 and 43 cents which Rayamma claimed for herself by inheritance as a legal heir of Chadayan Pethiru. Paulose had created a mortgage in respect of 7.5 cents. Plaintiffs purchased right of the mortgagees. Plaintiffs thus S.A. NOS.65 & 514 of 2000 -: 3 :- claimed title over 1.14½ acres (1.07 acres acquired by them as per Ext.A2 and the 7.5 cents which they said they had redeemed from the mortgagees). On that premise plaintiffs prayed for partition and separate possession of their share. Defendant Nos.2 to 5 resisted the suit. They claimed that Chadayan Pethiru belonged to the Salvation Army and inheritance is through his only son, Paulose. Daughters of Chadayan Pethiru acquired no right over the property by inheritance. They admitted that in lieu of Sthreedanam Paulose had assigned 64 cents in favour of Thankamma as per Ext.A1. They denied that there was any customary usage in the community as per which the female children inherited properties of the intestate father along with the male children. It is also contended that though Ext.A1, Sthreedana document stated extent of the property assigned to Thankamma as 64 cents, actual extent is only 1/3rd of plaint B schedule which is 42 and 2/3 cents. Rayamma had no right over any portion of the suit property to be conveyed as per Ext.A2. Allegation that plaintiffs redeemed the mortgage over 7.5 cents was denied. 3. O.S. No.268 of 1975 is a suit filed by the same plaintiffs for partition of 3.50 acres which also originally belonged to Chadayan Pethiru. There also similar contentions are raised regarding right of inheritance of the daughters of Chadayan Pethiru. Learned Munsiff S.A. NOS.65 & 514 of 2000 -: 4 :- found that customary usage pleaded by the plaintiffs is not proved and dismissed the suit. That was confirmed by the first appellate court against which plaintiffs preferred Second Appeal Nos.527 and 580 of 1980. This Court as per common judgment dated 26.11.1985 (reported as Thankamma and Another v. Kunjamma and Others – AIR 1986 Kerala 134) set aside the judgment and decree and remitted the cases to the trial court to give the plaintiffs opportunity to prove the customary usage relied on by them. After remand no further evidence was adduced by the parties. Learned Munsiff held that there is no evidence to prove customary usage pleaded by the plaintiffs and dismissed the suit. That has been confirmed by the first appellate court against which these Second Appeals are preferred. It is contended by learned counsel for plaintiffs that Sec.30 of the Act itself recognised the customary usage in the community to which Chadayan Pethiru belonged and what is required to be proved is only that Chadayan Pethiru lived in the Taluk of Neyyattinkara which fact is not disputed. Hence according to the learned counsel Sec.30 of the Act should apply, consequence of which is that Secs.24 and 28 of the Act has no application. The female children of Chadayan Pethiru were entitled to a share in his property along with his son, Paulose. Learned counsel for S.A. NOS.65 & 514 of 2000 -: 5 :- defendants in response contended that the mere fact of residence of the late Chadayan Pethiru in Neyyattinkara Taluk will not render Sec.30 of the Act applicable to the parties. Apart from the fact of residence plaintiffs were also to prove that Chadayan Pethiru belonged to that group of Protestant Christians of that Taluk who followed the customary usage. Learned counsel points out that common judgment of this Court remitting the case to the trial court specifically adverted to the absence of documentary evidence to prove the customary usage and an opportunity was given to the plaintiffs to produce such evidence which they did not. Hence courts below are justified in holding that plaintiffs cannot get the protection of Sec.30 of the Act. 4. It is admitted by both sides that Chadayan Pethiru died much before 1.4.1951, succession to his properties opened before that date and hence the decision in Mary Roy v. State of Kerala (1986 KLT 508) has no application. Then the question is whether Sec.30 of the Act applied. The Section says, “30. Sections 24, 28 & 29 not applicable to certain classes of Roman Catholic & Protestant Christians.-Sections 24,28 and 29 shall not be applicable to certain classes of the Roman Catholic S.A. NOS.65 & 514 of 2000 -: 6 :- Christians of the Latin Rite and also to certain Protestant Christians living in Karunagappally, 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”. (emphasis supplied) 5. The mere fact of domicile of a particular person at a particular place may not by itself attract application of customary law in the matter of intestate succession. Dealing with the provisions of the Travancore Ezhava Act (Rugulation III of 1100) the Supreme Court held in Narayanan Rajendran v. Lekshmy Sarojini ([2009] 5 SCC 264) that the mere fact of domicile is not by itself decisive in such matters. That decision was based on Sec.1(2) of the Travancore Ezhava Act which said that the said Act shall apply to all Ezhavas domiciled in Travancore other than those who followed Makkathayam and shall also apply to such Ezhavas whether domiciled or not, as have or shall have marital relationship with Ezhavas domiciled in Travancore. The said provision indicated that all Ezhavas S.A. NOS.65 & 514 of 2000 -: 7 :- domiciled in Travancore need not necessarily be following Makkathayam law of succession. In that backdrop the Supreme Court stated in Narayanan Rajendran's case (supra) that the mere fact of domicile is not by itself decisive. Section 30 the Act referred to above recognised the customary usage among 'certain' Protestant Christians and 'certain' Roman Catholic Christians of Latin Rite living in the Taluks mentioned therein but not among all such persons living in those Taluks. 6. Reading Sec.30 of the Act it would appear that it is not merely domicile of class of persons referred to therein in the Taluks mentioned which would attract customary usage; instead, they should belong to that class or group among the Roman Catholic Christians of Latin Rite or Protestant Christians living in the said Taluks who follow the customary usage as per which female heirs inherited equally with male heirs in the property of the intestate. The adjective “certain” used before the words 'class of Roman Catholic Christians of the Latin Rite' and 'Protestant Christians' in Sec.30 is eloquent indication that it is not as if all the Roman Catholic Christians of Latin Rite or Protestant Christians living in the Taluks referred to in Sec.30 of the Act are following the customary usage. The Act only recognised that of the Roman Catholic Christians of Latin Rite and Protestant S.A. NOS.65 & 514 of 2000 -: 8 :- Christians living in the said Taluks, 'certain' persons followed that customary usage. The word “certain” when used as an adjective refers to one particular thing, person or group although one may not be saying exactly which, it is. When reference is to certain of a group of people, reference is to some particular members of that group. The adjective 'certain' used before the proper nouns in Sec.30 of the Act indicated that plaintiffs had to show that Chadayan Pethiru belonged to that group of Protestant Christians living in Neyyattinkara Taluk who followed customary usage. The principle laid down by the Supreme Court in Narayanan Rajendran's case applies to the facts of these cases. Section 30 of the Act does not lay down an invariable rule that all Protestant Christians and Roman Catholic Christians of Latin Rite domiciled in the Taluks referred to therein follow customary usage as per which female heirs also inherited property of the intestate along with male heirs. 7. Support for this view can be had from the decision in Kunjupillai Kurup v. Fernandez (1963 KLT 737 ([F.B.]). That was a case where parties who belonged to the Roman Catholic Christians of Latin Rite belonging to Neyyattinkara Taluk were agitating over right of inheritance of female children. Reference was made to the decision in an unreported case, A.S. No.361 of 1959 S.A. NOS.65 & 514 of 2000 -: 9 :- rendered by Justice Raghavan, J, (as His Lordship then was) where it was held, “This shows that the Roman Catholic of the Latin Rite or the Protestant Christians, who claims that S.30 applies to him, must establish that he belongs to a class of the Roman Catholic Christians of the Latin Rite or to the Protestant Christians living in the taluks mentioned in the section and must also prove that the customary usage among the class to which he belongs is that the male and female heirs of an intestate share equally in the property of the intestate. It is therefore in the nature of an exception and the one who pleads the benefit of that section must prove the facts necessary to bring the case within the section”. The Full Bench, referring to Sec.30 of the Act held, What S.30 does is to grant an immunity from the operation of Ss.24, 28 and 29 to all Roman Catholic Christians of the Latin Rite 'according to the customary usage among whom the male and female heirs of an intestate share equally in the property of the intestate.” It follows that in order to obtain the S.A. NOS.65 & 514 of 2000 -: 10 :- immunity it is not enough if the plaintiff proves that she is a Roman Catholic Christian of the Latin Rite; she must also establish that she belongs to a class of Roman Catholic Christians of the Latin Rite among whom the usage specified does obtain.” The decision in Kunjupillai Kurup's case (supra) was followed in Daisy v. Annamma George (1982 KLT 196). Hence the plaintiffs were obliged to prove that Chadayan Pethiru belonged to that group of Protestant Christians domiciled in Neyyattinkara Taluk who followed the customary usage referred to in Sec.30 of the Act to get rid of application of Secs.24 and 28 of the Act. The Substantial question of law framed above is answered accordingly. 8. Then the question is whether that obligation has been discharged by the plaintiffs. Learned counsel for plaintiffs referred me to the oral evidence let in by the parties as also Exts.A1, A2 and A6. Learned counsel also brought to my notice decision of the Privy Council in Ahmad Khan v. MT. Channi Bibi (AIR 1925 PC 267) where in page 271 it is stated as to the nature and amount of evidence required to prove a custom, S.A. NOS.65 & 514 of 2000 -: 11 :- “As regards the custom in respect of which the two Courts in India have differed, their Lordships think the Subordinate Judge was in error in putting aside the large body of evidence on the plaintiff's side merely on the ground that specific instances had not been proved. They are of opinion that the learned Judges of the High Court are right in holding that a custom of the kind alleged in this case may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy. There is a large body of oral evidence establishing the custom, wholly unrebutted by the defendants who have relied exclusively on the Riwaj-i-Aam. The Judges of the High Court have commented on these documents, and their Lordships see no reason to differ from them.” According to the learned counsel it is not the requirement of law that there should be documentary evidence to prove customary usage. Such evidence can be oral also and in these cases persons who were competent to speak about customary usage have given evidence S.A. NOS.65 & 514 of 2000 -: 12 :- which gets support from Exts.A1, A2 and A6 as well. Per contra it is argued by learned counsel for defendants that this Court is bound by the common judgment dated 26.11.1985 where, in paragraphs 24 and 28 it was specifically found that evidence on record is insufficient to prove customary usage referred to in Sec.30 of the Act. Learned counsel took my attention to paragraph 24 of the judgment where this Court observed that “to prove this customary usage, no document which would certainly indicate such a usage, has been produced and proved.” Learned counsel also contended that in paragraphs 24 and 26 of the judgment this Court after referring to Exts.A1 and A6 observed that the evidence is insufficient to prove that Chadayan Pethiru belonged to the group of Protestant Christians who followed the customary usage. 9. This Court while remanding the case directed the trial court to consider the matter afresh. Parties were given opportunity to adduce further evidence. But no further evidence was adduced. P.W.2 who gave evidence regarding the customary usage was not able to point out any specific instance of female heirs (among Protestant Christians) inheriting property of an intestate. P.W3 had to admit that he had not seen any document in which male and female heirs (among Protestant Christians) were given equal shares. Courts below S.A. NOS.65 & 514 of 2000 -: 13 :- found the evidence of P.Ws.2 and 3 as insufficient. Exhibit A1 shows that one third of the property of Chadayan Pethiru was assigned by Paulose to Thankamma and her husband. This document was not accepted by the courts below as indicating that Thankamma, daughter of Chadayan Pethiru was having equal right over property of her father along with her brother, Paulose and Sister, Rayamma. Exhibit A1 is an assignment by Paulose and accepted by Thankamma and her husband acknowledging title of Paulose over the entire property. Exhibit A1 says that Paulose was in possession of the entire property. Exhibit A6 executed by the legal heirs of Paulose referred to Rayamma having right over the property but in that case Thankamma also should have had right in the property and should have joined Ext.A6. Exhibit A6 could only be taken as indicating that Rayamma had a charge over the property for dowry. With the above evidence on record, this Court in the remand judgment observed in paragraph 24 that to prove customary usage no document which would certainly indicate such a usage has been produced and proved and in that backdrop gave plaintiffs an opportunity to adduce further evidence. This Court was not satisfied with the evidence let in by the plaintiffs. Plaintiffs cannot rely on the same evidence to contend that Chadayan Pethiru belonged to the group of Protestant Christians who S.A. NOS.65 & 514 of 2000 -: 14 :- followed customary usage. Courts below were not satisfied with the evidence adduced by the plaintiffs. That is a finding on fact based on evidence which does not involve any substantial question of law. 10. Learned counsel for plaintiffs contended that in the first appellate court an application (I.A. No.74 of 1996) was preferred for receiving additional evidence under Order XLI Rule 27 of the Code of Civil Procedure and documents produced, according to the plaintiffs proved their case. That application was dismissed by the first appellate court stating that there is no satisfactory explanation for not producing those documents in the trial court. That order, according to the learned counsel is illegal. Learned counsel contends that first appellate court has not given sufficient opportunity to the plaintiffs to adduce further documentary evidence. 11. Reason for refusing permission to receive additional evidence is given by the first appellate court in paragraph 16 of the judgment under challenge. On going through the judgment it is seen that the documents produced along with I.A. No.74 of 1996 were not sufficient to throw light into the controversy involved in these cases. The documents produced are copy of judgments involving some persons in the same family. Learned counsel for defendants submitted that in those cases issue regarding customary usage did S.A. NOS.65 & 514 of 2000 -: 15 :- not arise for a decision. First appellate court observed that there is no satisfactory explanation for not producing the documents in the trial court. I do not find any illegality or irregularity in the first appellate court not allowing I.A. No.74 of 1996. It follows that plaintiffs cannot succeed in these appeals. Resultantly, these Second Appeals fail and are dismissed directing the parties to suffer their respective costs. THOMAS P.JOSEPH, JUDGE. vsv S.A. NOS.65 & 514 of 2000 -: 16 :- “C.R.” THOMAS P.JOSEPH, J. =================== S.A. NOS.65 & 514 OF 2000 =================== J U D G M E N T 19TH NOVEMBER, 2009