CHAPTER 5

CHRISTIAN WOMENS PROPERTY RIGHTS:

ROLE OF JUDICIARY
In this chapter the role of the judiciary in relation to womens property rights
is discussed, to assess the contribution of judiciary through its judicial process
towards the cause of gender injustice in the matter of womens 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.

AIR 1986 SC 1011

192

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 womens
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 fathers 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
womens 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.

193

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 Court 2
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 womens 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 Gadkar4 asserted
that Article 13(1) applied only to statutory laws. The court was eager to uphold the

2
3

HarvinderKaur v.Harminder Singh, AIR 1984 Delhi 67.

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.
State of Bombay v.Narasu Appa Mali, AIR 1952 Bom 85.

194

Bombay Act 5 prohibiting bigamy. Again in Maharishi Avdesh v. Union of India6, the
Supreme Courts 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 case 9, 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
6
7

8
9
10

Bombay (Prohibition of Bigamous Marriage) Act 1946.

(1994) supp (1) SCC 713.
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 being
violative of Article 14 and 15 of the Constitution (c) for a direction against the respondents from
enforcing the Shariat Act in respect of those adversely affecting the dignity and rights of Muslim
women and against their protection. The petition was dismissed.
(1997) 3 SCC 573.
AIR 1985 SC 945.
1994 SC 392

195

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 womens 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
womens 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
12
13
14

(1994)5 SCC 704.

1996 SCALE (2)664.
(1994) 2 SCC 511.
AIR 1979 SC 1868.

196

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--vis
reflection on the distance between the Constitution in the book and the law in
practice. Similarly in Air India V.Nargesh Mirza 15 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 womens 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 law 18. 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
16
17
18

AIR 1981 SC 1829

(1997)6 SCC 241
Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
Mihir Desai, The Flip Flop Judicial Responses to Personal laws, Combat law, Vol.3, Issue 4,
(Nov-Dec 2004).

197

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 3 20 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 laws 22.
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
20

21
22
23
24

(2001) 7 SCC 740.

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 and
dowry and authorizes the Magistrate to order payment or restoration of these sums or properties.
AIR 1985 SC 945.
See supra note 17.
AIR 1995 Ker 252.
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 has
to prove adultery coupled with cruelty.

198

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
Kerala25. Mary Roy filed a writ petition due to the insult she suffered about 30 years
ago. She was ordered to vacate her fathers 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 nondiscrimination, 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
26

(1986)2 SCC 204

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)

199

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 1951 32.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

28

29
30
31
32

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

Law,(Nov.-Dec..2004)
Section 6, Repeals and Savings provides for repealing the corresponding Acts and ordinances in
force in the Part B States (Laws) Act.
1988 (1) KLT 310.
1988(2)K.L.T. 27(DB)
Muvattu Puzha Taluk, Ernakulam Dt, Kerala State.
See supra note 26 at 46.

200

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
34

1988(1)KLT 310
Section 37 of the Indian Succession Act 1925.

201

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 it 35. 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
plaintiffs 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 defendants 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 parents property on
the ground that she was paid streedhanam.
It is evident from the cases discussed above that the Courts approach
drastically changed after the Supreme Courts verdict in Mary Roy case. However

35
36

Ibid
1988 (1) KLT 310.

202

dissenting judgments were also passed by the same Kerala High Court. The case,
Lourde Mary Amma v. Souriyar37is 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 110th 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
38

39

1987 (1) KLT 288.

Section 29(2) provides save as provided in sub-section 91) 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.
The parties were Vanniya Christians. The Court held that Christianity would not affect the partys
right to property of their father.

203

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 share43. 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
41

42
43
44

Sebastian Champappilly, Christian Law of Succession and Mary Roy Case SCC 9 (1994 )
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)
Joseph v. Mary, 1988(2) KLT 27
Ibid.
Venu Menon, The Matriarch, The real MacRoy Outlook India, Nov 03. 1997.

204

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 Abhraham45a 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 Courts 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 plaintiffs 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 plaintiffs 46. 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
46
47

Suit for partition filed before the sub court of Kottayam 1996. O.S. 184/91.
Ibid.
Section 37 of Indian Succession Act 1925 provides that the children are entitled equally to the
properties of the intestate.

205

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 suit 52 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
intestates property. The trial court came to the conclusion that parties are governed

48

49

50
51
52

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.
The Indian Succession Act 1925 is deemed to be extended to the territories of the Part B States
under the Indian Union including the territories of Travancore-Cochin with effect from
01.04.1951.
In 1951 The Part B State (Laws) was extended to Travancore and Cochin.
AIR 1983 Mad 315.
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.

206

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 suit 55. 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 intestates 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
54
55

1977 (1) MLJ 454.

Ibid.
Ibid.

207

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 1951 58 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
57
58
59

1998 (ii) CTC 455.

AIR 1986 SC 1011.
Ibid
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 first
appeal. Hence the second appeal was filed.

208

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 another60 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
61
62
63

64

1977 (1) MLJ 454.

See supra note 21
See supra note 53
Section 33 provides that where the intestate has left widow and lineal descendants, or widow and
kindred 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 to
the rules hereinafter contained;(b) save as provided by Section 33-A, if the intestate has left no
lineal 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 order
and according to the rules herein after contained;(c)if he has left none who are of kindred to him
the whole of his property shall belong to his widow.
Section 24 of 1916 Act provides: A mother or widow will have only a life interest terminable at
death or remarrying.

209

another65, the parties hailing from Kannyakumari and both the lower courts were
under the impression that they were governed by the Travancore Christian Succession
Act 191666. 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 Courts 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
66

67
68

(1998) 3 MLJ 617.

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 he
exercised undue influence and coercion for executing these two documents. Reversing the decree
of 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 three
months.
See supra note 21
2009 KLT.

210

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
Courts 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

70
71
72

73

The appellant and the respondent plaintiff are brother and sister. The property in question devolved
on them after the death of their mother.
See supra note 21
Ibid
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.
1977 KLT SN 17, case No.45.

211

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 plaintiffs case
was that being Christians they are governed by the Indian Succession Act 1925. So
she claimed 1/6th share of her intestates fathers property76. The plaintiffs 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
intestates 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
75
76

Ibid.
AIR 1956 HP 17.
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 the
suit for her 1/6th share.

212

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 judiciarys 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 50s and 60s.
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

213

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 nonexistent 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

78
79

80

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 in
group (1) of Section 25, shall be entitled to have the whole of the intestates property divided
equally among themselves, subject to the claims of the daughter for Streedhanam. Section 29:
Female heirs will be entitled to sharein the absence of male heirs.
AIR 1963 Ker 365.
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 plaintiff
and 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.
Ibid.

214

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 Courts
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
82
83
84
85
86
87

AIR 1986 Ker 134.

AIR 1986 SC1011
AIR 1985 SC 945.
(1999) 2 SCC 228.
AIR 1981 SC 1829.
Ibid.
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 not
applicable 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 are
entitled to equal share.

215

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 unsettled89.
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
89
90
91

Ibid.
Ibid.
See supra note 1
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 the
granddaughter of the deceased plaintiffs mother died in 1947.

216

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 plaintiffs 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

93
94

Section 5: Law regulating succession to deceased persons immovable and movable property.
Succession to the immovable property in India of a deceased person shall be regulated by the law
of India wherever such person may have had his domicile at the time of his death.
Anthony Samy v. Chinnasamy Gounder AIR 1970 SC 223.
2010 (1) KLT 99.

217

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
96
97

Ibid.
(1963) KLT 737.
Ibid.

218

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. Daughters Claim for Share in the Intestates Property
The Supreme Courts 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 intestates 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 intestates 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
99

100

Ibid.
Certain classes of Christians of Latin Catholics of Neyattinkara Taluk are still governed by
custom. For details see Dr. Sebastian Champappilly, Christian Law of Succession in India 76
(Southern Law Publishers,Cochin,1st edn., 1997)
1988 (2) KLT 27 (DB).

219

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 widows share of 1/3rd 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
womans status has been elevated to that of the son, uprooting the deep rooted

101

102
103

104

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 his
surviving child, if there is only one, or shall be equally divided among all his surviving children.
(1997) 11 MLJ 449.
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 1/3rd share, the
remaining 2/3 are inherited by his children. Daughter signed a release deed relinquishing her rights
in 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.
(2002) 8 SCC 29.

220

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 valid106. 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 plaintiffs 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 Law108 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

106
107
108

109

The land was left behind by the intestate father who had three sons and four daughters. The
declaration made by Cyriac Thomas that he had no excess land was reopened in 1980. The
appellant contended that the first respondent had excess land of 9.87 acres. The High Court
accepted the sale deeds executed by the sisters of the declarant as valid and rightly held that
respondent had no excess land to surrender.
Ibid.
2004 (1) KLT 863
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 Christians
in Kerala and Tamilnadu. It is to be noted that even after this verdict there are Christian
communities in Kerala who still follow the Hindu Mithakshara Law . The Tamil Vaniya Christians
are still governed by the Mithakshara Law.
Section 5: Law regulating succession to deceased persons immovable and movable property.
Succession to the immovable property in India of a deceased person shall be regulated by the law
of India wherever such person may have had his domicile at the time of his death.

221

The High Court however relying on the Supreme Courts 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
111
112

AIR 1970 SC 223.

See supra note 93
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 share
over 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. The
defendants denied the plaintiffs claim for half share over the plaint schedule property.

222

are partible and what are the shares of each claimant. The trial court correctly came to
the conclusion that the legal heir of the deceased is entitled to get 7/56 share of the
plaint schedule properties. The court in the instant case applied Section 37 of the
Indian Succession Act 1925 which provides for equal distribution of intestates
property among the child/children after deducting the widows 1/3 share. The case
also highlights the fact that Christian women are coming forward to claim their share
in the intestates property and even ready to file case against their family members. It
is heartening to note that Christian women are slowly coming out of their shell and
started asserting their rights.
Mary Roy verdict came in 1986. Since it is given retrospective effect the
petitioner in C.J.Joseph v. Mary Kutty availed of the consequent change in the
Succession Law113. The plaintiff Mary Kutty Joseph filed the suit for partition to
claim her share in the intestates property after the death of her father in 1981 114. The
court rejected the contention of the defendants that the plaintiff was given stridhanam
after selling a portion of the family property. The court has rightly applied the
provisions of Section 37 of the Indian Succession Act 1925 under which a daughter is
entitled to get equal share on par with male members if the father dies intestate. In the
instant case the plaintiff was educated and had job. The court truly understood the
spirit of the legislation and the mandate of the Constitution both advocate gender
equality. The court need not take into account the factors that they were given
stridhanam. The law laid down is that if the father dies intestate the children get equal

113
114

O.S.295/2009 Sub court Pala, Kottayam District, Kerala.

The plaintiffs case is that after the death of the father the plaint schedule property is in the joint
possession and enjoyment of the plaintiff and defendants. She filed the suit for partition and for
allotment of 2/24th share to her. The defendants contended that the suit property is not partible. She
was in Government job and was working as a nurse. At the time of her marriage 64 cents of paddy
field was sold and the said amount was given to the plaintiff as her due share from the family. So
she has no right to demand partition.

223

share irrespective of whether the daughter/daughters get stridhanam. This type of

applying the true spirit of the legislation is needed to deliver gender just rulings115.
The Kerala High Court applied the same principle again in
K.T.Easy,Koimaprambil v. MaryThomas ,Alias Kunjamma116. The plaintiffs are the
daughters of the intestate Thanchu Vaidyan who died in 1973. He had seven
daughters and three sons. The first two sons resisted the partition suit filed by the two
daughters on the ground that they were given stridhanam and share at the time of
marriage. The lower court passed a preliminary Decree applying the Mary Roy
verdict. The Defendants filed the appeal. The Appellate Court had no difficulty in
confirming the lower courts findings because it correctly applied the law laid down
by the apex court in Mary Roy that the children are entitled to equal share in the
intestates property. Daughters are also entitled to a share equal to that of the sons.
A true application of Section 37 of the Indian Succession Act 1925 is again
made in Ludina Pavanakumari v. Thankamma John117. The Supreme Court held that
the lower appellate court failed to see that the respondents/plaintiffs have no tangible
right to claim the property of the defendants/appellants. The plaintiffs claim for share
would sustain only if the properties are in the name of the intestate. If the properties
are obtained through Kuthakappattam and later it was assigned to the son after his
death and if the assignment of the property is not challenged, the plaintiff could not
subsequently exercise her right under section 37 of the Indian Succession Act 1925118.

115

116
117
118

The court decreed the suit in favour of the plaintiff granting partition and allotted 2/24 th share from
the plaint schedule property. The court also allowed her to file a petition for final decree and also
to appoint a commissioner and a surveyor to effect a metes and bounds partition of her share from
the plaint schedule.
2011,Kerala High Court
2011 (1) SCJ 197.
The plaintiffs filed the suit for partition in the principal Munsif Quilon claiming 1/3rd share of the
property. the plaint schedule property consisting of 5.12 cents of land belonged to their father

224

The intestate property had not devolved on the children as it was a Kuthakappattam
land.
The plaintiffs 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 had
two 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 Rules
1964.

225

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 intestates property. Packianathan died
intestate. A suit filed for partition of the intestates 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. Appellants 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 1/3 rd 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 widows 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.

226

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 Courts 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 Plaintiffs 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

121

(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 part
of B schedule property. T he District Judge upheld the lower courts order on the round that she is
entitled to 1/3 rd share of the properties of the father.
Mary Roy v. Susie Issac 2002(2)KLT SN 1O3

227

The trial Court held that the suit was premature because the first defendant
the plaintiffs 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 widows 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 intestates 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 intestates 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 womens right laid the

122
123
124

See Section 3 of the Cochin Succession Act 1921.

Both these Acts were repealed following the verdict of the Supreme Court in Mary Roy case.
AIR 1979 Ker 34.

228

foundation for subsequent decisions favouring womens 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 plaintiffs 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 Thomas125bears 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.

229

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 plaintiffs share in the property. Hence it was held that the plaintiffs
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 womens petitions in the light of the Constitutional mandate of
gender equality. The courts in general also move forward incorporating the
international

126

127

principles

of

equal

rights,

right

to

inheritance

and

Suit was filed by plaintiff for partition of plaint schedule property of their mother who died
intestate in 1981 as per section 37 of the Indian Succession Act 1925. The defendants resisted the
suit 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.
Ibid.

230

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 womens inheritance rights if the father dies intestate. In Augustine C.J.
v. Thankamma Thomas131the 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
129
130

131

2004 (1) KLT 269.

See supra note 1
The defendants are the children of the plaintiffs brother. They resisted the suit for partition on the
ground that the plaintiffs were given stridhanam at the time of marriage.
(2005) 4 KLT 653.

231

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 daughter133. 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
133

134

Ibid.
The defendant also claimed absolute title to the property and he has also possession of it since the
properties belonged to his father.
Ibid.

232

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

136

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. The
defendants 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 full
knowledge 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.
Ibid.

233

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 Kumar138. The widow of the intestate filed a suit for partition of the intestates
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 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

138
139

Both the trial court and the appellate court upheld the plaintiffs right to 1/5th share of the intestate
property after deducting 1/3 share of the mother.
2005 (2) KLT 960.
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. The
widows contention was that she executed the mortgage with the consent and full knowledge of
their daughter Vasanthakumari. She contended that the daughter and herself are the legal heirs of
the intestates property. Plaintiff is their son. The widow also made it clear that she is entitled to
1/3 share and a share is to be given to their daughter.

234

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 case 141 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 Courts 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

141
142
143

Section 24 of the Travancore Christian Succession Act 1916 provides: Widow or mother has only
a 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.
AIR 1986 SC 1011.
See supra note 138
2001 (1) KLT 443.

235

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
intestates 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
145
146

AIR 1957 TCI.

(1974) (1) MLJ 5.
See supra note 1

236

The plea that daughters were given stridhanam at the time of marriage was
again raised in Ouseph v. Alice147. The claim of the defendants was that the sons and
the widow of the intestate are entitled to the properties of the intestate because
daughters were given stridhanam at the time of marriage. The Court below rejected
these contentions. The appellant on appeal relied on declaration made in the partition
deed by the mother that Thressia, the plaintiff was also given in marriage after giving
stridhanam.
The question before the court in the instant case was whether the plaintiffs
are educated from the distributive share of the property under Section 22 of the 1921
Act which provides for exclusion of woman who has received stridhanam. The court
adopted a liberal approach despite the provision under Section 22. The Court held that
even if stridhanam is actually given by the mother or any of the sons to the plaintiffs
mother at the time of marriage that will not disentitle the plaintiffs mother from
claiming any distributive share in the property. The court relied on Ouseph v.
Saramma148 where it was found that there was no evidence to show that stridhanam
had been received by the plaintiff from any of the four persons mentioned under
Section 22. Again in Joseph v. Mary149 also the court found that no stridhanam was
given before the death of the father in 1944. Even if stridhanam is paid subsequently it
will not disentitle her to distributive share in the intestates property.
Invariably in all cases, the Court gave relief and order in favour of women
who came forward to claim their share. The court does not accept the plea that they

147
148
149

(2005) 4 KLT 309

(1980) KLT SN 51 case No.110.
(1988) (2) KLT 27.

237

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 intestates 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

238

Community. However there are very few instances where Christian wife files suits for
return of these amount from the husband.
So in Mary v. Cherchi

151

a wife filed a suit for the return of her stridhanam

amount. The court was also initially unsteady in dealing the issue of return of
stridhanam. This is evident from the decision of the court in Thomas v. Sarahkutty152
where the court dismissed the suit on the ground that the suit is not maintainable.
However in Mary v. Cherchi it was held that such a suit is maintainable and it is not
barred by the Dowry Prohibition Act 1961. Again it was reiterated in Mathai
Kunjamma v. Gee Vargeese Kochukurian153it was held that the stridhanam is
substitute for her share of the patrimony and hence such a suit is maintainable.
Whether a wife can file a suit in the family court for recovering the amount from the
husband and father-in-law while the marriage is subsisting? This issue arose in Shyni
v. George and others154.In the instant case the amount given at the time of marriage
was with husband and father-in-law 155. While allowing the suit to be filed in the
family court itself the court observed that it is notorious in our country what is called
stridhanam or what is understood as the share of the bride in the properties of her
father is normally handed over at the time of the marriage not to the husband but to
the father-in-law who receives it on behalf of the husband. It is really a case of fatherin-law acting for and on behalf of the husband while he receives the property of the

151
152
153
154
155

1980 KLT 353.

(1975) KLT 386.
1984 KLT 128.
1997 (1) KLT 573.
The defendant raised an objection that the father-in-law is not a party to the marriage. Hence the
family court does not have jurisdiction to take up the case on the ground that the court can take up
the case only against the husband and the father-in-law is to be removed so that the court can
proceed with the suit. So she has to file another suit in a civil court for recovery of the amount
from the father-in-law. The High Court held that the suit can be taken up by the family court; for
that father-in-law is to be impleaded in this case.

239

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-inlaw 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 Womens
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
157

Ibid.
AIR 1994 Ker.107

240

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 husbands family
arose in P.V. Aleyamma v.E.K.Thomas158. The plaintiffs case is that at the time of her
marriage her father has entrusted with the defendants father a sum of Rs.2501 and
gold ornaments by way of stridhanam. The defendants father had utilized that money
and jewelry for the benefits of his family. It was acknowledged in the partnership

158

1(2007) DMC 717

241

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 husbands 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. Wifes 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
160

2011 (1) KLT 588.

Among the children of the defendant the plaintiffs 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 injunction
ordering the plaintiff to vacate the house.

242

ground that Christians have no tharavadu161. So she cannot lay any claim on the
defendants 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 husbands 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

162

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 the
Marumakkathayam 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 the
members claim their descent from a common ancestor. In Marumakkathayam Tarawad descent is
from a common ancestress. Marumakkathayam law prevails among a considerable Section of the
people in Travancore , Malabar and Cochin.
(1947) 63 JLR 645 at 646.

243

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 husbands 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
164

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

Ibid at 243.

244

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 moneys 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 husbands 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 125 167 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
166
167

Ibid. at 245.
2010 (1) KHC 573.
Section .125 of Criminal Procedure Code provides for maintenance of wives children and parents.

245

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. Womens 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
169
170

See supra note 163

See supra note 163 at 243
Ibid.

246

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 ones 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 mans property and
womens 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

247

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 Courts 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
172

Section 25 of the Travancore Christian Succession Act 1916.

2007 (4) CTC 672.

248

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 respondents case was
that the Will was a fabricated one and the legal heirs of the testatrix were her sister

173
174

(1995) 1 MLJ 467.

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 court
not to grant probate of the will to Gita Ravi. In the application for revocation of probate it was
alleged the deceased testatrix owned immovable property to the extent of 8,819 sq.mtr. Her only
legal heirs were the applicant and her brother. Mr. and Mrs. Ravi one of the testatrix tenants locked
and kept the key with her during her last days. The will was fabricated by them. The petitioner
Gita 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 in
hospital. The doctor witnessed it.

249

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 above 175
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 petitioners 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 fathers 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
176
177

Ibid.
LNIND 2007 Mad 1391.
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.

250

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 1/3 rd share
in the intestates 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
179

180

2007 (5) CTC 378.

The testator had two sons and two daughters through his first wife and two daughters through his
second wife. The four daughters submitted affidavits favouring grant of probate. The probate
proceedings were resisted by two sons, defendants 1 and 2.
Munsif Court Erattupetta, Kottayam District 2009.

251

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
182
183

2003 (2) KLT, 56 case No.74 SN

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

252

Again in Elsy v. V.K.Raju184 the respondents 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
185

186
187

2006 (4) KLT 282.

Probate O.P. 61/1981 was filed in the Additional District Court Ernakulam under Sections 226 and
268 of Indian Succession Act 1925. V.K.Raju was the petitioner in the probate O.P. The petitioner
is the executor named in the will. Respondents 1 to 10 are the widow and children of the deceased
Thomas and they are the legal heirs as per the Cochin Christian Succession Act 1921.
Ibid.
Ibid.

253

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 1/3rd 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
189

Before the Madurai Bench of Madras High Court, 02.03.2011.

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 petitioners
filed pro. O.P. before the subordinate court Padmanabhapuram for getting probate of the will dated
1998. The respondent is the eldest son of Mr.Kumaradass. He had been in inimical terms with his
father. He was not given any benefits under the Will. He was totally disinherited. So he alleges that
the will and codicil were prepared and registered fraudulently when he was not in sound mind. A
complaint 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 injuries
on him.

254

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 190where 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 just 192.
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
191
192
193

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

1994 (1) MLJ 216.
Ibid.
(2002) 3 MLJ 111.

255

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 sons 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 sons 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

195
196

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.P
are 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 daughter
for lifetime and after her death to mahs of land should go to 3 rd appellant Babuji, the grandson of
Joseph Nadar.
2008 (4) KLT 1002.
The deceased Jane Antony died in a motor accident on 03.05.1999 while he was doing his MS
course 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 as
additional respondents. It was held by the Tribunal that the respondents 4 and 5 are illegitimate.

256

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 Bihar197 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 deceased200.
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

197
198
199
200

The deceased is alleged to have married Mrs. Mary during the subsistence of the first marriage.
The Tribunals order that illegitimate children are also entitled to compensation had been
challenged by way of appeal to High Court.
(2000)2 SCC 431
(1978) 3 SCC 527.
2008 (2) SCC 238.
See supra note 197.

257

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
202
203
204

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

AIR 1990 Mad. 183
Christian law of Inheritance, available at http://www.lawisgreek.com (Accessed on 06.04.2012).
(1972) KLT 303.

258

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
206
207

(1994) (1) KLT 868.

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

259

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 womens 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 womens issues the courts
assume an activist role and deliver judgments upholding the Constitutional mandate
of gender equality.
The Supreme Courts 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
260

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 womens
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
261

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 intestates 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.

262