IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 425 of 2002(A)
1. SUSAN JOHN, W/O.JOHN, ELAVUMKUZHI HOUSE,
... Petitioner
2. AMMINI JOHN, D/O.JOHN,
3. RAJU JOHN, S/O.JOHN,
4. ANILA JOHN, D/O.JOHN, ELAVUMKUZHI HOUSE,
5. SHYNI JOHN, D/O.JOHN,
6. SHEEBA JOHN, D/O.JOHN,
Vs
1. AMMINI, W/O.KURIAKOSE,
... Respondent
2. SUSAN PETERS, W/O.JOHN PETER,
3. ELMI OUSEPH, W/O.K.T. OUSEPH,
4. GRACY THOMAS, W/O.P.J.THOMAS,
5. ANITHA JOHN, D/O.JOHN,
6. V.P.POULOSE, S/O.PATHROSE,
For Petitioner :SRI.K.PRABHAKARAN
For Respondent :SRI.BABU KARUKAPADATH
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/10/2009
O R D E R
THOMAS P JOSEPH, J
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S.A.No. 425 of 2002
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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/