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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 Roy1 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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It is to be noted that since Mary Roy case there has been a steady increase in

writing wills. The testator gives property to the sons only. With respect to daughters

they write that they are not entitled to any share in the family property since they are

given stridhanam at the time of marriage. Women are also excluded if the family

properties are partitioned, on the same ground that they are given stridhanam.

Due to these circumstances only very few Christian women approach the

court to get their share in the family property. However the researcher has collected

cases decided after Mary Roy case from the Munsif court Pala, Sub court Pala and

Kottayam District, Madras and Kerala, High Courts and the Supreme Court to

evaluate the efforts of the judiciary to give justice to the claims of women who assert

their rights against the father/brother/husband/in-laws. Analyses of the cases are also

being made to find out how the judiciary has interpreted the existing legal provisions

to render gender just decisions.

The judiciary has to play the role of an activist judge in resolving women’s

issues relating to property. As per the repealed Travancore Christian Succession Act

1916, women were given stridhanam and the practice is still being continued till

today. However women started claiming a share of the father’s property under section

37 of the Indian Succession Act 1925 even though they had been given stridhanam.

Judicial activism calls for an apt interpretation of the legal provisions to deliver

gender just judgments. So this examination of the judicial activism from a gender just

perspective would help us to arrive at a conclusion with regard to judicial response to

women’s issues and whether the judiciary has been delivering judgments in the light

of the Constitutional mandate of equal status and the principle of non-discrimination.



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I. Judicial Response to Personal Laws

The strong patriarchal mindset of men folk still deprives women the right to

get access to legislative measures ensuring them property rights. The women are kept

isolated within the four walls of the home. Even judiciary is reluctant to make inroads

into private sphere. The courts thereby followed the Government policy of

non-interference with the personal laws of different communities like Hindus,

Muslims and Christians. It is pertinent to quote the observation of Delhi High Court2

where the Court expressed its opinion that introduction of Constitutional law in the

home is most inappropriate. It is like introducing a bull in a china shop. It will prove

to be ruthless destroyer of the marriage institution and all that it stands for. In the

privacy of the home and the married life neither Article 21 nor Article 14 have any

place.

In the instant case the court is demanding from wife to make a compromise

sacrificing her equal rights and dignified life for the sake of the family. The case

exposes the patriarchal mindset of the judiciary towards women’s problems. Why the

judiciary is asking her to forgo her constitutional rights while women is trying to

shake off the subservient and subjugated status. Judiciary instead of giving a helping

hand is thrusting on her the traditional mantle of a slave and is upholding the rights of

men. When family disputes are dragged to court it is no longer a private matter.

The judiciary also registered its inability to test the validity of personal laws

on the touch stone of Article 13 of the Constitution3. Js. Gajendra Gadkar 4 asserted

that Article 13(1) applied only to statutory laws. The court was eager to uphold the

2 HarvinderKaur v. Harminder Singh, AIR 1984 Delhi 67.

3 Article 13(1). All laws in force before the commencement of the Constitution shall be declared

void if it is inconsistent with part III of the Constitution. 4 State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 85.



195

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.

8 (1997) 3 SCC 573.

9 AIR 1985 SC 945.10

1994 SC 392



196

hardly be faulted if the said two grounds are made available to the wife and not to the

husband for seeking dissolution of the marriage11.

If the issue is related to women’s property rights the court again assumes the

role of an activist to uphold gender equality. So in C.Masilamani Mudaliar v. Idol of

Sri Swaminathaswami Thirukoil12

the Supreme Court has taken the view that personal

laws are void to the extent to which it violates fundamental rights. Upholding

women’s property rights the court held that women have right to elimination of

gender based discrimination particularly in respect of property so as to attain

economic empowerment. The same approach was continued in Gumpha v. Jaibai13

and observed that the personal laws conferring inferior status on women is anathema

to equality. Personal laws are not derived from the Constitution but from the religious

scriptures. The laws thus derived must be consistent with the Constitution lest they

become void under Article 13 if they violate Fundamental Rights. Parliament enacted

Section 14 to remove pre-existing disabilities fastened on the Hindu female limiting

her right to property without full ownership thereof.

Again in C.B.Muthama,14 the Constitutional validity of Rules 8(2) of the

Indian Foreign Service 1961 and Rule 18(4) of the Indian Foreign Service

(Recruitment Cadre, Seniority and Promotion) Rules 1961 was challenged by the

petitioner. As per Rule 8(2) a woman member of the service is to obtain permission of

the Government in writing before her marriage and after marriage she has to resign

from service if the Government is satisfied that her family commitments stand in the

way of her service. The Supreme Court declared these rules as unconstitutional. While

11 (1994)5 SCC 704.

12 1996 SCALE (2)664. 13 (1994) 2 SCC 511. 14

AIR 1979 SC 1868.



197

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,

(Nov-Dec 2004).



198

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.



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will be a life without the freedom to uphold the dignity of the individual in all respects

as ensured by the Constitution, in the preamble and in Article 21. It will be a life

curtailed in various fields; a life imposed by a tyrannical or authoritarian law on

a helpless deserted or cruelly treated Christian wife quite against her will which

she is bound to lead till her death tormented always with the feeling that she is

remaining as the wife of a man who has treated her cruelly, hated her and

deserted for no fault of her.

The Supreme Court continued its gender just policy in Mary Roy v . State of

Kerala 25

. Mary Roy filed a writ petition due to the insult she suffered about 30 years

ago. She was ordered to vacate her father’s cottage at Ooty where she had been living

with her children after the failure of her marriage with a Bengali Hindu.26

. Since she

had no income to push forward she started a school. When she became financially

stable she filed this petition in 1984 before the Supreme Court. Advocate Indira

Jaisingh argued the case as a public interest litigation challenging sections 24, 28 and

29 of the Travancore Christian Succession Act 1916.

Though the argument was advanced against the violation of equality and non-

discrimination, the Supreme Court relied on a technical ground that after

independence the laws enacted by the Travancore State were not expressly saved and

they have been repealed. The Court pronounced its judgment on an issue not raised in

the petition and the Court held that the Part B States (Laws) Act excluded the

25 (1986)2 SCC 204 26 Thomas John, “Succession Law in India and obstacles in the Road to Gender Equality:the

experience of Mary Roy v. State of Kerala. ’’ 45 Student Bar Review vol.1820 (2006)



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operation of the Travancore Act27. It took the view by virtue of Section 628 of Part B

States (Laws) Act 1951 and the inclusion of the 1925 Act in the schedule to that Act,

the Travancore – Cochin Christian Succession Act stood repealed from the appointed

day under the Part B States (Laws) Act 1951. Hence the Court ruled that the law

applicable to intestate succession among Christians of Travancore area of the State of

Kerala is Indian Succession Act 1925. Following this in V.M.Mathew v. Elisa29 and

Joseph v. Mary30

the Kerala High Court held that the Cochin Christian Succession Act

1921 also stood repealed by Part B State (Laws) Act 1951.

While Mary Roy case was pending before the Court two other women from

Muvattupuzha31 joined the suit. The first appellant joining the suit was Alekutty

Chacko. She along with her five daughters was thrown out of her ancestral property

by her brother after the death of their father. The second lady who joined the suit was

Mariakutty Thommen who was also having a similar story. The Supreme Court

comprising of Js.P.N.Bhagawati and Js.R.S.Pathak held in favour of the appellants not

on contention of Constitutionality but on the other argument that the TCSA had

ceased to be in force after the enactment of the Part B (States) Laws Act 195132

.In

Mary Roy case relying on technical ground, the Supreme Court hesitated to interfere

with the personal law. However the extension of Indian Succession Act 1925 to the

Travancore Cochin State providing for the equal rights of daughters to property along

with their male counterparts the Supreme Court could wipe out the discriminatory

27 Flavia Agnes, “Constitutional Challenges and Communal Hues.”,vol.3,Issue 4,Combat

Law,(Nov.-Dec..2004) 28 Section 6, Repeals and Savings – provides for repealing the corresponding Acts and ordinances in

force in the Part B States (Laws) Act. 29

1988 (1) KLT 310. 30 1988(2)K.L.T. 27(DB) 31 Muvattu Puzha Taluk, Ernakulam Dt, Kerala State. 32

See supra note 26 at 46.



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provisions which were violative of the principle of equality enshrined in the

Constitution.

However awareness about this historic judgment has not reached or awakened

the Christian women of Kerala. The main reason is that the women have not been

persuaded to fight for their rights either by men or by the Church or by themselves.

Unless they come out of the grip of the Church and patriarchal community this

decision would become part of history. Abraham Mathew v. Chacko Mary33

is an apt

example for the fact that women were not sufficiently aware of their rights declared

by the Supreme Court. In this case the decree holder was the sister of the revision

petitioners before the High Court. The writ was filed for Rs.5000/- which the father

had undertaken to pay to the daughter. At the time of his death he instructed his sons

to pay it but they did not keep the word and they filed this suit. The contention of the

revision petitioners was that their sister had filed this writ under Section 28 of the

Travancore Succession Act 1916. Since it stood repealed with effect from 01.04.1951,

the decree passed is a nullity. The Court held that after the coming into force of Part B

States (Laws) Act 1951, the Travancore Christian Succession Act stood repealed and

the Kerala Christians are thereafter governed by Chapter II, Part V of the Indian

Succession Act 1925.

Under the Indian Succession Act 1925, the children inherit equally. That

means female child is entitled to a share equal to that of her brother if the father dies

intestate34. So the decree holder gets only a less right than what is actually due to her.

The decree was passed at a time when she was having a pre-existing right over the

33 1988(1)KLT 310 34

Section 37 of the Indian Succession Act 1925.



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property the decree would not therefore a nullity. The daughter could have amended

her plea for an equal share to that of the brother. The Court could grant only if she had

claimed it35. This throws light on the fact that women are not aware of their rights

even after Supreme Court verdict in Mary Roy case.

Again in V.M.Mathew v. Eliswa36 and others the Cochin Christian Succession

Act of 1921 was held to be repealed by the Part B States (Laws) Act 1951. The Court

held that the parties were governed by the Indian Succession Act 1925. Here the

plaintiffs and defendant were the children of Mariam and E.C. Verghese. The

plaintiff’s daughters argued that the property devolved on them and the defendant in

equal shares (1/3rd each). The defendant on the other hand contended that the

plaintiffs were not entitled as they were given streedhanam as sovereign and cash. The

lower Court held that the plaintiffs were entitled to 1/3 rd share each and there was no

evidence to show that any amount being paid by the defendant to the plaintiffs at the

time of marriage. The defendant’s contention would have force only as long as the

Act is in force. Under Section 37 of Indian Succession Act 1925, the parties are

entitled to equal share, since the Cochin Christian Act 1921 had been repealed.

Mariam died after the commencement of the Part B States Act 1951, and hence the

law that is in force is the Indian Succession Act 1925. The High Court further held

that there was no law which disqualified a daughter to inherit her parent’s property on

the ground that she was paid streedhanam.

It is evident from the cases discussed above that the Court’s approach

drastically changed after the Supreme Court’s verdict in Mary Roy case. However

35 Ibid 36

1988 (1) KLT 310.



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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.



204

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.



205

filed the suit. The High Court dismissed the suit on the ground that it is a case of

collusion between brother and sister to defraud the Bank.

In Molly Abhraham v. Mathew Abhraham45

a similar collusion case was

reported. The father of the plaintiff died intestate in 1980 and his properties devolved

on his children. The suit has been filed by two of his daughters claiming 2/5 share in

the properties. As per Supreme Court’s verdict in Mary Roy case the Christians in

Kerala are governed by the Indian Succession Act 1925 and the Travancore

Succession Act 1916 was repealed. The properties hence devolved on the children and

they became co-owners of the property. The plaintiff’s suit was resisted by Bank of

Madura. They submitted that all the three daughters had relinquished their rights over

the properties of the intestate. The Bank had advanced amount to the first defendant

on the security of the properties. The Bank had obtained a decree and the properties

were put up for sale. The Bank contended that the plaintiffs filed the suit to defeat the

claims of the bank. They alleged collusion between Plaintiffs and the

defendant/brother. The Court rightly held that it is clear that this is a collusive suit

filed only to defeat the claims of the Bank. The 8th

defendant (the Bank) is entitled to

realize its costs from the plaintiffs46

. These cases provide ample instances of the

misuse of the provisions under Section 37 of Indian Succession Act 192547.

2. Part B States (Laws) Act 1951 and Conflicting Verdicts

When Part B States (Laws) Act 1951 was extended to Travancore and

Cochin, the Travancore and Cochin Christian Succession Laws of 1916 and 1921

45 Suit for partition filed before the sub court of Kottayam 1996. O.S. 184/91.

46 Ibid. 47 Section 37 of Indian Succession Act 1925 provides that the children are entitled equally to the

properties of the intestate.



206

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.



207

by the Indian Succession Act 1925 and passed a preliminary decree for partition. The

appellate court came to the conclusion that the parties are not governed by the Indian

Succession Act 1925. The 1925 Act is not applicable to the Christians of

Kannyakumari District and that only the Travancore Christian Succession Act 1916

would apply to them as per the decision of the Madras High Court in Chelliah Nadar

v. G.Lalitha Bai53

.

The question before the High Court was whether the Indian Succession Act

or the Travancore Christian Succession Act would apply to the Christians of

Kannyakumari District? The Court admitted that the courts have been giving

conflicting decisions in this matter. The court said that the parties cannot be penalized

in claiming their rights under one Act or the other. The court took a liberal and gender

just approach. The Court observed that when the court comes to the conclusion that

the Act relied upon by the plaintiff is not applicable. Its duty is to give relief in the

matter of partition as per the provisions of law found applicable54

.

The court further held that it is therefore clear that the lower appellate court

erred in not delivering the judgment as per the Travancore Christian Succession Act

1916 which according to the defendants applies to the parties to the suit55

. The court

also cited Section 28 of Travancore Christian Succession Act 1916. The shares of son

in group (1) of Section 25 without prejudice to the provisions of Section 16, the male

heirs mentioned in group (1) of the 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 Stridhanam. Section 28 provides that Stridhanam due to a daughter shall

be fixed at one fourth the value of the share of a son, or Rs.5000/- whichever is less.

53 1977 (1) MLJ 454. 54 Ibid . 55

Ibid.



208

It is submitted that the correct decision was given by the trial court that the

parties are governed by the Indian Succession Act 1925. The Supreme Court in Mary

Roy case made it clear that the 1925 Act was in force in Travancore since 1951 due to

the extension of the Part B States Laws Act 1951. Till 1986, the courts are also

delivering judgments without knowing what laws are to be applied to the Christians.

J.Ramayyan v. J.Palayan56

exposes the difficulty of the Madras High Court

due to the extension of the Indian Succession Act 1925 to the Travancore Christians

by the Part B States (Laws) Act 1951. Till the extension of the 1951 Act the

Travancore Christians were governed by the Travancore Christian Succession Act

1916. It was in Mary Roy57 case only the courts and the community learnt that the

Travancore Christian Succession Act 1916 was repealed as early as in 195158

and the

Indian Succession Act 1925 was introduced to these princely states. This confusion

occurred because there was no express repeal of the 1916 Act before extending the

1925 Act. Since Kannyakumari was part of Travancore till 1956, the courts in

Kannyakumari Districts also applied The Travancore Christian Succession Act 1916

to the property disputes of Christians. So the issue in the instant case is the

applicability of the Indian Succession Act 1925 to the Christians in Kannyakumari

District.

The suit was filed for partition upon the death of one Mr.Joseph Nadar the

share of the intestate devolved upon the plaintiff and the defendants 1 to 359

. The

56 1998 (ii) CTC 455.

57 AIR 1986 SC 1011.

58 Ibid 59 The plaintiffs, first and second defendant were brothers. The fourth defendant was their mother.

The suit was contested by the defendant and the 4th defendant was allotted share in the partition

deed. The trial judge came to the conclusion that the plaintiffs were entitled to a portion for 2/6th

share of the plaintiffs in the suit property. The decree of the trial court was confirmed in the firstappeal. Hence the second appeal was filed.



209

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.



210

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.

67 See supra note 21 68

2009 KLT.



211

respect to the application of law, whether it is Travancore Succession Act 1916 or the

Indian Succession Act 1925?69

The High Court here also relied on the Supreme

Court’s ruling in Mary Roy case70. It was held that the Travancore Christian

Succession Act 1916 is not saved by Section 29(2) of the Indian Succession Act

1925.71 Therefore the court rightly ruled that in matters of intestate succession Part V

of Indian Succession Act would apply72

.

The Court in the instant case also had to find out whether the second suit

filed by the plaintiff for partition of the plaint schedule property would be barred by

resjudicata. In the first suit the question was with regard to the applicability of

Travancore Christian Succession Act or Indian Succession Act 1925 since the

property was in Malabar.

Both the lower and appellate court dismissed the suit on the ground that the

parties were governed by the Travancore Christian Succession Act 1916. Here the

court came to this conclusion without referring to an earlier decision of the Kerala

High Court in case No.4573

where the property was in Malabar. The Court held that

the Travancore Christian Succession Act passed by the Legislature of the State of

Travancore cannot be applied to properties outside the State. The application of the

Act is restricted to Travancore alone. So the Court came to the conclusion that the

earlier decision in the first suit filed by the plaintiff is based on a non-existent law.

The court also ruled that court cannot reenact a repealed law. Hence when a case is

decided erroneously a second suit would not be barred by resjudicata. The court also

69 The appellant and the respondent plaintiff are brother and sister. The property in question devolved

on them after the death of their mother. 70 See supra note 21 71

Ibid 72 Section 32: The property of an intestate devolves upon the wife or husband or upon those who are

if kindred of the deceased in the order according to the rules contained in this chapter. 73

1977 KLT SN 17, case No.45.



212

observed that the appellant and their pre-deceased father were persons who migrated

from Travancore area to the Malabar area. They cannot carry their laws along with

them from their territory of origin to the area of choice. Even if such a law was carried

by them to the area of migration, it would be of no use for effecting the properties

situated in the Malabar area74.

3. The Patriarchal Attitude of the Judiciary

The verdict of the following case by the Himachal Pradesh High Court that

custom prevails over the Statute is untenable because the Constitution prohibits

discrimination on the ground of sex, race, religion, caste or place of birth. The custom

that excludes female members is against the spirit of the equality principle envisaged

in the preamble. Besides that as per Article 13(3) law includes custom, and usage

having force of law. So any custom that goes against the constitutional mandate is

invalid.

In Premchand and another v. Lilavati Shanti and others75the plaintiff’s case

was that being Christians they are governed by the Indian Succession Act 1925. So

she claimed 1/6th share of her intestate’s father’s property76. The plaintiff’s claim was

resisted by the defendants on the ground that the provisions of Indian Succession Act

was not applicable to them because they were governed by the custom in Kotgarh.

They were agriculturists and as per the custom only the sons were the sole heirs to the

intestate’s property. However the lower court rejected the claims of the defendants

and held that the parties are governed by the Indian Succession Act 1925 and parties

74 Ibid. 75

AIR 1956 HP 17. 76 The suit was filed by the granddaughter of the intestate. The intestate died in 1948. After his death

his sons took possession of the property. The defendants refused to give her share. She filed thesuit for her 1/6

th share.



213

cannot rely on the custom under Section 5 of Punjab Laws Act 1872. The court hence

decreed in favour of the plaintiff.

The question before the High Court was whether the defendants were

entitled to claim the property as per custom? If so, they could validly establish the

custom that excludes daughters from inheritance? The third issue was whether the

Punjab Laws Act 1872 was saved under Section 29(2) of the Indian Succession Act

1925.

The decision of the Court was in favour of the defendants and held that the

Punjab Laws was saved by section 29(2) of the Succession Act 1925. Here the Court

did not take into account the principle of gender equality. Further the court ignored

the mandate of the Constitution and also the principles embodied in the Universal

Declaration of Human Rights 1948. The preamble of the UDHR proclaims that all

human beings are born free and equal in dignity and rights. The decision also reflects

the judiciary’s reluctance during this period to interfere with the personal laws of a

community. This is because the principle of gender equality has not been prioritized

by the court in the early 50’s and 60’s.

Another anomaly created by Section 30 of the Travancore Succession Act

1916 was the exclusion of certain classes of the Roman Catholic Christians of the

Latin Rite and also certain Protestant Christians from Karunagappally, Quilon,

Chirayinkil, Trivandrum, Neyyattinkara and other Taluks. They are in turn are

governed by their customary law in matters of Succession. As per this custom male

and female heirs share equally in the property of the intestate. Since Section 30 of the

1916 Act excludes these classes they are exempted from the discriminatory provisions



214

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

Ibid.



215

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.



216

Travancore, some sections and localities were left out to be governed only by the rule

of custom88

. The court also pointed out that the intestate succession among the various

sections of Indian Christians in Travancore is vague and unsettled 89.

The repealed Travancore Christian Succession Act 1916 contained

discriminatory provisions under Sections 24, 28 and 2990

which were in fact

applicable only to the Southern Travancore Christians because of Section 30 of 1916

Act under which the custom of females share equally with the males still exists. Even

among the Roman Catholic Latin Christians of Travancore, there existed a custom

under which a daughter was entitled to equal share with the son in addition to

streedhanam. There were also classes of Christians who followed Hindu Mitakshara

Law. So when the 1916 Act was repealed the Indian Succession Act 1925 under sub

clause (1) and (2) of Section 29 saved the existing laws under the expression ‘any

other law for the time being in force.’ The Tamil Vania Christians left Hindu Religion

and accepted Christianity several years ago. In the matter of property rights they are

still governed by the Hindu Mithakshara law.

According to the custom the son acquires birth right in the ancestral property

and he can even demand partition during the life time of the father. Consequently the

Hindu Mitakshara Law governed matters of succession in the case of Tamil vania

Christians of Chittur Taluk. Such an issue was dealt by the Kerala High Court in

Thomayar v. Mary91

. The lower court relied on the Kerala High Court decisions and

held that the parties renounced their personal laws and hence the law applicable to

88 Ibid. 89 Ibid. 90

See supra note 1 91 2004(1) KLT 863. Suit was instituted for partition of properties and allotment of 1/4th share to the

plaintiff. The property originally belonged to Ponnan@Muthappan. The plaintiff is thegranddaughter of the deceased plaintiff’s mother died in 1947.



217

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

2010 (1) KLT 99.



218

from the operation of Sections 24, 28 and 29 of the 1916 Act. The Christians of

Neyyattinkara are also mentioned in that class under Section 30. According to the

customary usage male and female heirs of an intestate share equally the property of

the intestate. The contestants in the instant case claim title by inheritance to the

property of Chadayan Pathiru, a protestant Christian who lived in Neyyattinkara

Taluk. After the death of the father the plaintiffs prayed for partition and separate

possession of their share. The defendants resisted the claim on the ground that their

father belonged to Salvation Army and inheritance is through his only son. Daughters

acquire no right over the property by inheritance.

Upholding the finding of the lower court, the High Court observed that as per

Section 30 of the Act mere domicile of class of persons is not enough to claim the

protection under customary usage. Besides this they should also belong to that class or

group among the Roman Catholic Christians of Latin Rite or Protestant Christians

living in the said taluks. Moreover they must follow the customary usage by which

female heirs inherit equally with male heirs in the property of the intestate95

.

In the instant case the court strictly adhered to the legal provision and relied

on the full bench decision in Kunjupillai Kurup v. Fernandez96

. Where it was stated

that what Section 30 does is to grant immunity from the operation of Sections 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 the

property of the intestate97. Based on this ruling the High Court concluded that in order

to get the immunity it is not enough if the plaintiff proves that she is a Roman

95 Ibid. 96 (1963) KLT 737. 97

Ibid.



219

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

1988 (2) KLT 27 (DB).



220

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

(2002) 8 SCC 29.



221

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.



222

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.



225

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.



226

of the death of the intestate he must be the absolute owner of the property. Even

though the court referred Mary Roy case, the court could not apply it because of the

legal lacunae in this case.

There are also instances where daughters fight each other in the Court with

respect to their share. In Elizabeth v. Kannimariyal,119

there was mudslinging

between the daughters for share in the intestate’s property. Packianathan died

intestate. A suit filed for partition of the intestate’s property by the plaintiffs. The

Additional Sub Court of Nagercoil passed a preliminary Decree for partition of the

property. It was confirmed by the appellate court the second appeal is filed against the

decree by the defendant. Appellant’s contention was that the second plaintiff was not

the daughter of the deceased Packianathan and that she was born out of adultery by

the mother. However the court rejected this contention and came to the conclusion

that each one of the legal heirs of the intestate are entitled to 1/3rd share in the suit

properties. The District Court confirmed the judgment of the lower Court. Against the

concurrent findings of lower Courts an appeal was preferred by the appellant. The

High Court also upheld the decision of the Court below and held that the second

plaintiff was the daughter of the intestate and is also entitled to 1/3rd

of the share. The

Court has strictly applied the provisions of Section 37 of the Indian Succession Act

1925 and confirmed the decree and equal share judgments of Court below granting to

all the children of the intestate after deduction of his widow’s 1/3rd share.

The verdict of the Supreme Court in Mary Roy case availed to the Christian

daughters the benefits of the Indian Succession Act 1925. In the case of Satheesh

119 Before the Madurai Bench of Madras High Court2011; Appeal filed against the decree and

judgment passed by District Judge Kannyakumari, 2009 confirming the decree and judgment of 1st additional sub court, Nagercoil 2005.



227

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

Mary Roy v. Susie Issac 2002(2)KLT SN 1O3



228

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

AIR 1979 Ker 34.



229

foundation for subsequent decisions favouring women’s causes. The High Court

settled the issue much earlier than the decision of the Mary Roy case. In the instant

case the plaintiff filed a suit for partition of the immovable properties of their brother

who died intestate and issueless in 1961. So the case was filed by the son of

Mrs.Mariam who was the sister of Rappai. The trial court passed a decree upholding

the right of the plaintiff for 15/120 share in the plaint schedule property.

However the Sub Court adopted a narrow approach and reversed the decision

of the lower Court and held that the plaintiff’s mother was given stridhanam at the

time of marriage during the lifetime of their father. The High Court set aside the sub

court ruling and restored the decision of the trial Court. The Courts in such cases must

adopt a progressive approach. Even the Dowry Prohibition Act 1961 prohibits the

giving and taking of dowry. The daughters who receive an amount or jewelry at the

time of marriage must not be precluded from claiming a share in the family property.

These types of rulings would really prevent the practice of giving dowry and

encourages the practice of giving a share in the family property instead of amount. So

the parents will elect to give property instead of amount rather than bearing the double

burden of amount and property.

The progressive approach taken by the Kerala High Court in George v.

Annie Thomas125

bears testimony to the fact that the Judiciary has been aware of the

sufferings of Christian daughter who has been undergoing discrimination for centuries

due to outdated enactments. It was observed by the Court that the misery and

deprivation of Christian women have been considerably mitigated by the Mary Roy

125 1991 (1) KLT 662.



230

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

Ibid.



231

non-discrimination. So in Issac v. Elamma128 also the court adopted a liberal and

lenient approach. In the instant case the plaintiffs filed suit for partition against their

brother after the death of their parents in 1975 and 1978. The lower court found no

difficulty in deciding the issue in favour of the plaintiffs based on Mary Roy verdict.

The defendants in ignorance of the repeal of the Travancore Christian

Succession Act 1916 contended that as per sections 28 and 29129

of the Act they are

not entitled to claim share in the parental property130. They also put forward the

argument that the daughters had relinquished their rights to intestate succession of the

estate of their parents. The question before the Court was whether the right to a

daughter is lost since she was given stridhanam. Rejecting all the contentions the High

Court rightly held that the respondents/daughters had a legal right to succeed to the

estate of their parents as per the provisions in the Indian Succession Act 1925. These

types of decisions would certainly eradicate the evil practice of giving stridhanam.

The Christian daughters will inherit property on par with their brothers if courts refuse

to accept stridhanam as equivalent to share of the property. Under the guise of

stridhanam as share of the property, the daughters are belittled before the community

and in the matrimonial home.

Even after the repeal of the Travancore Christian Succession Act 1916, in

1986 the Christian community has not yet come in terms with the new legal position

with regard to women’s inheritance rights if the father dies intestate. In Augustine C.J.

v. Thankamma Thomas131

the Kerala High Court raised the Christian woman to the

status of a co-owner. The plaintiff filed a suit for partition. The suit was resisted on

128 2004 (1) KLT 269. 129

See supra note 1 130 The defendants are the children of the plaintiff’s brother. They resisted the suit for partition on the

ground that the plaintiffs were given stridhanam at the time of marriage. 131

(2005) 4 KLT 653.



232

the ground that as per the long established custom, practice and accepted personal law

of the parties, the plaintiff was given stridhanam132

. They contended that the amount

and sovereigns constituted the share of the daughter 133. The trial court in fact

dismissed the suit without understanding the legal issues involved in the case. The

trial court held that the first defendant had title to the property and he has adverse

possession of it. The trial court could not settle the suit based on Mary Roy verdict.

The suit must have been decided as per Section 37 of the Indian Succession Act1925

because the 1925 Act is in force and the Court took into account the repealed 1916

Act.

However the High Court correctly applied the law under Section 37 of the

Act and held that the suit must be decreed. The first defendant/brother was under the

impression that he had become the absolute owner of the property after the death of

his father. The patriarchal mind set of the Christian community finds it difficult to

come to terms with the new legal position. The High Court also decided the case

rightly applying the Indian Succession Act 1925. As per Section 37 if the father dies

intestate, the children of the intestate become co-owners and the son/sons cannot

exclude the daughters. The court laid down a gender just decision in this case

rejecting the arguments of the brothers. The Court held that after the pronouncement

of the law by the Supreme Court in Mary Roy case the daughter is in the position of a

co-owner along with the son with respect to the properties left behind by the parents.

In such cases mere exclusive possession by one of the co-owners for any length of

time will not enable the co-owner to claim adverse possession134

.

132 Ibid.

133 The defendant also claimed absolute title to the property and he has also possession of it since the

properties belonged to his father. 134

Ibid .



233

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

Ibid.



234

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.



235

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.

141 AIR 1986 SC 1011. 142 See supra note 138 143

2001 (1) KLT 443.



236

courts were uncertain about the law applicable to Christians in these States. In Kurien

Augusthy v. Devassy,144

it was held by the Travancore Court that Christians are

governed by their respective State laws. The same issue came before the Madras High

Court in Solomon v. Muthayya145 and the court held that with the extension of Part B

States (Laws) Act 1951, the Indian Succession Act 1925 would be applicable to the

Christians in Kannyakumari and Kerala. This conflict continued till the Supreme

Court laid down the law in Mary Roy case.

In the instant case the defendant raised the argument that they are governed

by the Cochin Christian Succession Act 1921 and that the plaintiff had been given

stridhanam at the time of marriage and hence she is not entitled to a share in the

intestate’s property. The trial Court rightly applied Mary Roy verdict which was the

law of the land. On appeal before the High Court, the appellant contended that taking

into account relevant provisions of Part B States (Laws) Act 1951 and the principles

of statutory interpretation it is possible to hold that the Christians in Cochin State are

governed by the Cochin Christian Succession Act 1921 in spite of the extension of the

Indian Succession Act 1925 to Cochin also. They argued that the decision in Mary

Roy verdict needed reconsideration. The Court categorically stated that the Court is

not competent to reconsider the decision in Mary Roy or even to see whether an

alternate view is possible146. The case throws ample evidence on the fact that the

patriarchal Christian community fights teeth and nail against the right of women

against inheritance. So they adopt any argument to avoid Mary Roy verdict. But the

High Court is deciding the cases keeping in mind the Constitutional mandate of

equality.

144 AIR 1957 TCI. 145 (1974) (1) MLJ 5. 146

See supra note 1



238

were given stridhanam at the time of marriage. This could certainly discourage the

parents to give stridhanam and force them to give property instead of stridhanam.

Claim for Return of Stridhanam

The custom of giving stridhanam to the daughter is of ancient origin. Among

Hindus at the time of marriage a bride gets gifts in the form of cash and ornaments.

She was not entitled to property as per the teachings of Manu and other commentators

of Smriti150. When Hindus were converted to Christianity, this custom of giving gifts

continued. At any stage of her life either a Hindu woman or Christian woman get

ownership of property. In the case of Hindus, their status totally changed because of

the enactment of The Hindu Succession Act 1956. However Christian women were

governed by the Travancore Christian Succession Act 1916 which expressly provided

under section 28 of the Act that the male members shall be entitled to have the whole

of the intestate’s property divided equally among themselves, subject to the claims of

the daughter for stridhanam. Section 28 in its explanation says the Stridhanam due to

a daughter shall be fixed at 1/4th the value of the share of a son or Rs.5000/-

whichever is less. By the time the Act was repealed in 1986, following Mary Roy

verdict, the practice of giving stridhanam took deep roots in the community. Even the

Dowry Prohibition Act 1961 also miserably failed to curb this social evil.

Moreover the stridhanam due to the daughter is handed over to the husband

or father-in-law who is expected to be the custodian of these assets. This is also a

continuation of the practice of denying property rights to women. After marriage also

she cannot own properties. All the assets of the wife become the assets of the

husband. This common law rule of coverture is still being followed in the Christian

150 Manu,V111-416



240

wife. In case of stridhanam paid at the time of the marriage of a Christian woman, this

court has held that the father-in-law would be holding the property as a trustee for the

bride156.

This type of practice of handing over the stridhanam to husband or father-in-

law has become obsolete. What is the need for handing over the stridhanam to

husband or in-laws? In olden days, the scriptures prohibited economic independence

to women. In order to make her dependent and under the control of her husband and

family, the stridhanam is kept under the custody of husband or in-laws where the wife

has no access at all. This is a continuation of the common law rule that a wife has no

separate entity. Her identity merges with that of the husband. In England the wives

were relieved of this common law doctrine by the enactment of the Married Women’s

Property Act. We in India also need such legislation so that the wives can live a life

with dignity in the matrimonial home.

Again in T.C.Chacko v. Annamma & Others157

a suit was filed by the wife

against her husband for the recovery of stridhanam which was given to him at the

time of marriage. She also claimed maintenance since she was living separately due to

his misconduct. The Trial Court allowed recovery of stridhanam amount of

Rs. 3000 and ornaments consisting of 10 sovereigns. Both parties filed appeal

challenging the order. The appellate Court gave order for maintenance; but rejected

the claim for stridhanam and ornaments since the claim is barred by limitation.

The case was finally heard by division Bench. With regard to ornaments the

Court held that the plaintiff is not entitled to recover it due to lack of evidence to

prove that the same was in the custody and possession of the husband. Regarding the

156 Ibid. 157

AIR 1994 Ker.107



241

claim for maintenance the court is of the view that there is no statutory provision

governing maintenance of a Christian wife. In the absence of a statutory provision the

Court ventured to deliver a gender friendly decision by applying the English principle

of Justice, Equity and Good Conscience.

However the Judges in this case were reluctant to blindly adopt the common

law principle. They searched for an Indian version of the common law principle and

successfully found it under section 125 of Criminal Procedure Code. Pursuant to this

provision the activist Court held that the Criminal law of the Country and the personal

law of the Community make it clear that the husband is liable to maintain the wife.

This obligation under section 125 is certainly applicable to Christian women also. It is

worth to note that the Court refused to apply the common law principle of justice

equity and good conscience because in England the women lose their identity after

marriage. After marriage their identity merges with that of the husband during the

period of coverture. The verdict is highly commendable because the Court refused to

apply the common law principle of covertures in Indian cases. The Court adopted a

gender just approach and held that the clam for stridhanam amount is not barred by

limitation.

The question whether the wife can clam any share in the family properties of

the husband if stridhanam amount is utilized for the benefit of her husband’s family

arose in P.V. Aleyamma v.E.K.Thomas158

. The plaintiff’s case is that at the time of her

marriage her father has entrusted with the defendant’s father a sum of Rs.2501 and

gold ornaments by way of stridhanam. The defendant’s father had utilized that money

and jewelry for the benefits of his family. It was acknowledged in the partnership

158 1(2007) DMC 717



242

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.



243

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

people in Travancore , Malabar and Cochin. 162

(1947) 63 JLR 645 at 646.



244

The case also sheds light on the pitiable status of a Christian woman. If a

woman is given properties the need of maintenance does not arise. They are denied

property rights with the sole purpose of keeping them under subjugation. Besides this

as home maker, she has to take care of children, family members and husband for

which she is not getting any reward. Even if they earn they have to surrender it before

the husband. Under these circumstances if a woman is sent out of the matrimonial

home, where would she go, to the street? To put it in the words of Lord Denning who

said that the husband could bundle his wife into the streets163

. So it is high time for

legislature to make a law in this regard so that wife can exercise her right to residence

against the family members and husband. Till the vacuum is filled, the courts have to

continue to apply the great English principles of justice, equity and good conscience.

A woman after marriage spends the whole of her life for the family; she

brings up children, takes care of husband and family members. In fact they are doing

trillion jobs at home. Her work at home has not been recognized and remunerated. In

order to provide financial security to wives who work hard for the family, in England

they enacted the Matrimonial Proceedings and Property Act 1970. The Act entitles the

wife to have a share in the house. Before the enactment of this Act, if the matrimonial

home is in husband’s name it belongs to him alone, both in law and in equity. There is

nothing left for the wife who works for the family. It is apt to quote in this context the

famous quotation that the cock can feather the nest because he does not have to spend

most of his time sitting on it164

.

Again in 1965 Sir Jocelyn Simon, President of the Royal Commission on

Marriage and Divorce 1956 expressed the need to provide financial security to the

163 Lord Denning, Due Process of Law, 211(Oxford University Press, 2006) 164

Ibid at 243.



245

wife at home. He said that in the generality of marriages, the wife bears and rears

children and minds the home. She thereby frees her husband for his economic

activities. Since it is her performance of her function which enables the husband to

perform his, she is in justice entitled to share in its fruits.

The English Matrimonial Proceedings and Property Act 1970 section (1) (f)

provides that the wife who looks after the home and family contributes as much to the

family assets as the wife who goes out of work. The one contributes in kind, the other

in money or money’s worth165

. The assets of the husband become joint assets of both.

So if the marriage breaks down, the wife who looked after the home, without going

for work outside is entitled to half assets in the matrimonial home. The case also

sheds light on the fact that if women are given property as her share at the time of

marriage she could have lived with it and she need not be at the mercy of –in laws.

A wife gets a share of the matrimonial property only after the death of the

husband as per section 37 of Indian Succession Act 1925. If she does not have no

other means she has to wait for the husband’s death .This is most pathetic inhuman

and contradictory to the rich Indian culture where husband is worshipped as god.

A similar issue arose in Jacob Kuruvilla v. Merely Jacob166

. The case

originated with a petition under Section 125167

of the Code of Criminal Procedure.

The contention of the respondent here was that the parties are Christians from

Travancore and that the principles of common law are not applicable to them. The

Kerala High Court in the instant case lamented the absence of a legislation which

provides for maintenance to the wife. In England they solved the problem through

165 Ibid . at 245. 166 2010 (1) KHC 573. 167

Section .125 of Criminal Procedure Code provides for maintenance of wives children and parents.



246

legislation. They did it as early as in 1970. However the Indian Parliament has not

addressed this problem so far. So the courts have no legal provision to protect the

rights of a wife in the matrimonial home. The Parliament in India leaves the Christian

wife to the mercy and moral obligation of husband and his family members. The

Court in the absence of specific law had to apply the English principles of Justice,

Equity and Good conscience.

The Court also here took note of the pitiable and subordinate financial status

of the woman. The Court said that women are socialized into accepting being wives

and mother as their primary role. Women’s labour in the house hold has not been

remunerated. Even if they earn they have no control on their earnings. So when

marriage fails women become destitute since they have no right over the matrimonial

home168. In addition to that she bears, rears children and the whole responsibility of

home making falls on her. To add to her misery, to deprive her of money and

property, whatever she is getting at the time of marriage, it is to be given to the

husband or father-in-law because they are her protector after marriage. She is finally

left with no funds of her own.

The Court aptly observed and ruled that the law may be harsh, but that does

not mean that the plaintiff should be thrown to the streets. The first plaintiff is

residing in her matrimonial house and she is entitled to remain there169

. The court

further added that it would do no harm even if the law of the property is altered to do

justice in order to protect and safeguard the interest of the wife and children born out

of marriage170. It is to be noted that the Court has taken a gender just approach and

168 See supra note 163 169 See supra note 163 at 243 170

Ibid.



247

provided remedy in the absence of a law. The Court here following the path of courts

in England took note if the plight of the wife who toiled for the family members of

her husband. They enjoyed the benefit of their love, care, service and labour. Now she

is thrown out of the house like chattel or a piece of furniture.

7. Execution of Wills

The Indian Succession Act under Section 59 provides that every person of

sound mind not being a minor may dispose of his property by Will. Section 59 confers

absolute testamentary power to the testator to dispose of his property through Will.

Disposal of one’s property through Wills is a western concept which has been

introduced into India by means of Indian Succession Act 1925. The Indian tradition

knew only joint ownership. Individual ownership was alien to Indians. The provisions

of Section 59 are applicable to Hindus also. A Hindu can dispose of his separate

property through a testament. As far as Christians are concerned Section 13 of the

Travancore Christian Succession Act 1916 provided that there is no distinction

between self acquisition and ancestral property or between man’s property and

women’s property. It is further explained that for the purpose of succession, there is

no distinction between self acquired property and ancestral property or between the

property of a male and that of female. Section 14 of the 1916 Act further provides that

a man is considered to die intestate in respect of all property of which he has not made

a testamentary disposition which is capable of taking effect.

The Travancore Christian Succession Act 1916 though it is repealed it has

taken deep roots in the Christian community. Under the Act women are not entitled to

share in the intestate property women inherit only in the absence of male members in



248

the family. Females are entitled to stridhanam only171 which is fixed as 1/4th the value

of the share of a son or Rs.5000/- whichever is less. It was further explained that

female heirs who were paid stridhanam are left out of consideration. It is now clear

that the 1916 Act is highly patriarchal.

The Patriarchal tradition embedded in the Travancore Succession Act 1916 is

perpetuated through Section 59 of the Indian Succession Act 1925. The Christian

community in general adopts the practice of family settlement of property under

which the father partitions the property among the sons. Women are excluded from

this family settlement since they are given stridhanam at the time of marriage. The

second method adopted is to will away the property. He has absolute power to dispose

of his property. There is no restriction in his testamentary capacity. Hence by writing

a will giving his properties to his sons he can exclude daughters from inheriting his

property.

It is to be noted that after the Supreme Court’s verdict in Mary Roy case,

there has been a steady increase in execution of Wills. This is especially done to

circumvent Section 37 of the Indian Succession Act 1925 which provides that if the

father dies intestate, property shall be distributed equally among the children. It has

also been found in some instances fraudulent Wills are executed even after the death

of the testator with the sole purpose of disinheriting daughters/sisters. Under these

circumstances courts are called upon to determine the genuineness of the Wills. So in

Josephine Jerome v. S.Santiago172 the mother is alleged to have executed a Will

excluding daughters on the ground that they are married and well off. Mary Santiago

wrote two Wills of which first one was registered. As per the first Will a life estate

171 Section 25 of the Travancore Christian Succession Act 1916. 172

2007 (4) CTC 672.



249

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.



250

and brother. The probate was obtained by suppressing facts. The probate court came

to the conclusion that there is ample justification for reasons set forth above175

revoking the grant of probate. The court relied on the maxim that Flat justice let

heaven falls, justice just be done.

The High Court was not satisfied with the genuineness of the Will and found

no merit in the appeal. The Court also stated that there is just cause to revoke the grant

of probate. The instant case also sheds light on the fact that execution of Wills among

the Christians are on the rise since Mary Roy verdict. After the death of the testatrix

the property devolves on his/her legal heirs. Hence dubious methods are adopted to

disinherit women.

The practice of writing Wills has increased considerably since Section 37 of

Indian Succession Act 1925 provides that if the father dies intestate the children

inherit equally after deducting the 1/3rd share of the widow. This provision can be

defeated by the writing of Wills. In Palaniammal and others v. Sundarambal and

others176

the petitioner’s case is that her brother and she are the legal heirs of the

intestate properties. However the father bequeathed by will all his properties to the

son in his second marriage. The trial court came to the conclusion that since the

second marriage is invalid the son born to them is not a legitimate son. Hence he

cannot become legal heir of the father’s property177. The High Court also held that the

plaintiff is entitled to 1/4th share. In the instant case the court has correctly ruled that

the children born out of invalid marriages are illegitimate and they cannot become

175 Ibid.

176 LNIND 2007 Mad 1391. 177 The trial court allowed partition of the property of the intestate. The plaintiff, defendants 1, 2 and 4

are entitled to 1/4th

share each and the plaintiff was granted 1/4th share.



251

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

Munsif Court Erattupetta, Kottayam District 2009.



252

was not registered and the genuiness of the Will was also not proved. So the court

passed a decree allowing the partition of the plaint schedule property into three equal

shares; the plaintiff is entitled to 1/3rd share. The court has rightly applied section 37

of the Indian Succession Act 1925 not taking into account the Will that was not

registered. As per the order the plaintiff got her 1/3rd share.

When it comes to proof of Will the court strictly insists for adherence to the

requirements under Sections 67 and 68 of the Evidence Act. So in Thommi @Thomas

v. Rosa181

the court observed that in dealing with Will Courts will follow the same

enquiry as in the case of proof of documents. The propounder has to prove with the

support of evidence that the Will was signed by the testator and that the testator was

in sound mind and disposing state of mind, that he understood the nature and effect of

the disposition and put his signature to the document on his own free Will 182.

Similarly in Kunjipennu v. Chandrika,183 the court held that as per section 63

of the Evidence Act the Will is to be signed by the testator in the presence of

witnesses. It is further needed that the testator intended it to give effect to the writing

as a Will. So the testator should sign in the presence of the witnesses and the

witnesses must see it also. In the instant case, the witnesses (DW2) had not sworn that

he had seen the testator putting his signature in the document and that the testator

himself had put his signature. The court came to the conclusion that the ingredients in

Section 68 of Indian Evidence Act also have not been proved. The court also stated

that there was no material before court to prove the admitted signature and

handwriting of the testator.

181 2003 (2) KLT, 56 case No.74 SN 182 Ibid. 183

2003 (3) KLT 75 case No.102, SN.



253

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.

186 Ibid. 187

Ibid.



254

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.



255

On appeal the High Court upheld the trial court decision and correctly stated

the legal position in such cases. The Court said that once it is held that the Will is duly

executed, the uneven distribution of assets is not a factor to ascertain the genuineness

of the Will. It is the discretion of the executants of the Will to decide on the

distribution of the benefits under the Will. Just because there is uneven distribution of

assets, that could not be a reason to reject the Will. The court also cited the case of

S.Sundaresa Pai and others v. Mrs.Sumangala T.Pai 190

where the bulk of the property

was given to only one son excluding another son. The executants also did not give

anything to her husband. Again the Court quoted the decision in M.S.P Rajesh v.

M.S.P.Raja191

. Where it was held that it is not for the Court to embark upon an

enquiry to whether the dispositions made in the Will are fair and just192.

These decisions shed light on the ill-effects of giving absolute testamentary

power to the testator without imposing any restriction on his testamentary capacity. In

majority of such cases this type of disinheritance of family members are without any

genuine grounds. In view of this matter in England they enacted the Inheritance

(Provisions for Family and Dependants) Act 1975 (UK). It gives a list of claimants

having a right to claim a share in the estate. In this type of cases courts cannot go

against the Will of the testator.

When there is unequal distribution of assets in the Will, it has become a

practice for the affected parties to challenge the genuineness of the Will. In the case of

Maria Stella Karunai Nesam v. T.Joseph Catherine193 a Will in favour of respondents

who in turn made settlements deeds giving immediate effect to the legacy provided to

190 2002 (3) L.W. 9. Case is decided by the Supreme Court.

191 1994 (1) MLJ 216. 192 Ibid. 193

(2002) 3 MLJ 111.



256

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.



257

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.

197 (2000)2 SCC 431

198 (1978) 3 SCC 527.199 2008 (2) SCC 238.200

See supra note 197.



258

far as Christians are concerned, a marriage becomes valid only if it is performed in the

presence of a priest in the Church. No Church would allow a Christian husband to

marry another woman when the first valid marriage subsists. Can living together by a

husband with another woman be legitimized? Whether an unlawful act would become

lawful in course of time? Whether the society would welcome such a decision? It is

nothing but polygamy. These are the questions the court is bound to answer.

Moreover if this trend continues where is the safety of the genuine wife? And there is

no sanctity for the first marriage.

9. Inheritance Rights of Nuns

With regard to the inheritance rights of nuns courts have adopted divergent

views. As far as Christian priests are concerned, the courts are of the opinion that the

right to inherit a distributive share is not lost either by usage or existing personal laws.

In a much older decision201

the Travancore High Court held that the rights of a

Roman Catholic Priest would not be extinguished by reason of becoming a priest. So

a priest is entitled to a share in the family property. Same view was adopted by the

Madras High Court 202 and held that Part V of the Indian Succession Act 1925 which

deals with intestate Succession was applicable to Catholic Priests as well .However in

the case of Catholic nuns courts are taking a different view203. So in Mother Superior

v. DEO Kottayam,204

a nun died and the question of succession arose as to whether

her service benefits accrued to her natural family. The Kerala High Court stated that

where a nun ceases to have any connection with her natural family after entering the

201 Pothen Mathew v.Subrahmony Aiyan. 17 T.L.R. 134(1O76 M. E.

202 AIR 1990 Mad. 183203 Christian law of Inheritance, available at http://www.lawisgreek.com (Accessed on 06.04.2012).204

(1972) KLT 303.



259

Church, the parents and other family members are no longer considered as family. So

legally she is not considered as having a father and mother.

So in Oriental Insurance Co. v. Mother Superior ,205 the mother superior

claimed the compensation on the death of a nun in a motor accident and the claim was

upheld. In this case the court observed that if they had not taken the perpetual vow

before the death of the parents in 1961 they too would have become entitled to a share

in the property. The Court further added that a Christian nun takes a perpetual vow

only sometime after joining the convent206

. So the Court upheld the right of nuns to

inheritance upon the death of parents if they had not taken the perpetual oath.

However the Karnataka High Court207

took an entirely opposite view and held

that a nun is entitled to a share in the property of the intestate The Indian Succession

Act 1925 does not contain any provision with regard to the inheritance rights of

Roman Catholic Priests and nuns. Further the Act does not mention about civil death

also. It is a term coined by the Court. It is interesting to note that the Court is

discriminating between nuns and priests on the ground of sex alone which is violative

of Article 15 of the Constitution. Further when a nun comes out of the convent there

is no other place to comeback except her natal family.

II.Summary

The gender unjust and patriarchal personal laws are a serious challenge to the

Judiciary. During the initial stages the courts are also reluctant to interfere with the

religious personal laws of various communities. They continued to follow the British

policy even after the commencement of the Constitution. Women are discriminated in

205 (1994) (1) KLT 868.206 Ibid.207

G.K. Kempegowda v.Smt.Lucinda A.I.R.1985 Kan.231



260

matters of ownership of property. The highly discriminated personal laws are kept out

of the purview of Article 13 of the Constitution. Article 14 and 21 has no place in the

privacy of home. So in Narasu Appa Mali case the Court expressed its inability to

interfere with the personal laws.

However towards the end of 1980s we could see courts assuming an activist

role and delivering landmark judgments upholding women’s rights. Mary Roy verdict

was just a fore runner. Mary Roy and Shahbanu Begum Verdicts were path breaking

decisions, making inroads into the citadel of religious personal laws. Similarly in Gita

Hariharan the Supreme Court tackled the gender issue by adopting the interpretative

tool of reading down the law to include the mother as natural guardian. The decision

in these cases brings for the fact that when it comes to women’s issues the courts

assume an activist role and deliver judgments upholding the Constitutional mandate

of gender equality.

The Supreme Court’s verdict in Mary Roy case led to the repeal of the highly

discriminatory Travancore Christian Succession Act 1916. Consequently suits were

filed by Christian women claiming their share in the family property if the father dies

intestate. This opened up an opportunity for Christian women to claim a share in their

family property. Hither to they were entitled only to stridhanam. When women file

suits for a share in the intestate property, the Patriarchal family members raise the

contention that they were paid stridhanam at the time of marriage and hence they are

not entitled to share. In the initial stages the courts were uncertain about the legal

position. There was utter confusion even among the courts with regard to the law

applicable to the Travancore Christians. With the extension of Part B States (Laws)

Act 1951, the Indian Succession Act 1925 was extended to Travancore and Cochin

area. However property disputes were settled in ignorance of the law applicable to the



261

Christians. Madras and Travancore courts gave conflicting decisions. This uncertainty

was set at rest only with the Mary Roy verdict.

In the case of suits filed by Christian women claiming for share the judiciary

adopted a liberal gender just approach and delivered judgments upholding women’s

precious right to property. Even the contentions that women were paid stridhanam

were rejected outright by the court and applied strictly the law under Section 37 of the

Indian Succession Act 1925 which provides that the properties of the intestate shall be

distributed equally among the children after deducting 1/3rd

share of the widow. Such

strict application of law would certainly curb the practice of dowry in the long run. If

the parents realize that even if the daughters are given stridhanam, they are entitled to

share in the property of the intestate. They may in future try to avoid the double

burden of stridhanam and property.

The court also took appropriate steps in the case of women who file suits for

return of stridhanam. In its earlier decision the court was unsteady in its approach and

held that such suits are not maintainable because it will be hit by Dowry Prohibition

Act 1961. However in subsequent cases the court found that such suits are

maintainable and not hit by Dowry Prohibition Act. Similarly a very lenient approach

was adopted in cases where Christian women file petitions for maintenance and or

right to residence. The Court lamented the lack of legislation in this matter. Yet the

court applied the Constitutional and international principles regarding gender equality

to fill the vacuum. The courts in such cases applied the great English Principles of

justice, equity and good conscience.

Since Mary Roy verdict there is a steady increase in writing of wills.

The Patriarchal community found ways and means to circumvent Section 37 of Indian



Succession Act 1925. One of the methods is to write wills. The testator writes wills

allotting the shares to sons and excluding daughters on the ground that they were paid

stridhanam at the time of marriage. The Courts are also burdened with the proof of

wills because the brothers used to execute fraudulent wills even after the death of their

father/mother to exclude their sisters. The Courts also strictly applied the

requirements under the Evidence Act for proving wills. If the Wills are not proved,

the court would order for partition of intestate’s property.

Hence it can be rightly concluded that the judiciary delivered gender just

decisions based on the law laid down by the apex court in Mary Roy v. State of

Kerala.

Christian Women Property Right

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