Decided on July 26,1955



- (1.) This second appeal arises out of a suit for redemption of a mortgage. Defendants 4 and 5 are brother and sister, defendant 4 being the brother and defendant 5 the sister. The plaint property belonged to their mother, Inyasa. Defendant 4 is the son of Inyasa by her first husband who is dead and defendant 5 is a daughter of Inyasa by her second husband, Lopez. In 1105 Inyasa and Lopez and defendant 4 mortgaged the plaint property to defendant 1 by Ext. G. After the death of Inyasa and Lopez defendant 4 executed a sale deed in favour of the plaintiff for the equity of redemption of the plaint property. According to her and the plaintiff under the custom obtaining in their community defendant 5 was the only person entitled to succeed to the assets left by her mother, and so she had obtained the equity of redemption on her mothers death and was competent to execute the sale deed in favour of the plaintiff. Claiming that he was the only person entitled to succession to his mothers assets defendant 4 sold the equity of redemption to defendants 2 and 3 and on the strength of the sale deed taken by them they also obtained a release of the mortgage right from defendant 1. Plaintiff then brought the suit which has given rise to this second appeal for redemption of the mortgage, Ext. G. The parties are Latin Christians belonging to the Quilon Taluk. Defendants 2 to 5 contended in the suit that there was no custom as alleged by the plaintiff and defendant 5 and that on the mothers death defendant 4 was the only person entitled to succeed to the assets left by her. This contention was upheld by the Trial Court which dismissed the suit. In the lower appellate court plaintiff applied for leave to amend the plaint in order to convert the suit into one for partition and redemption of one-half of the plaint property. The case which was put forward on his behalf in the lower appellate court was that under the custom obtaining in the community, daughters and sons have equal rights to the properties left by their deceased parents, and so defendant 5 was entitled to one-half of the equity of redemption of the plaint property and the sale deed executed by her in favour of the plaintiff should be deemed to be valid as regards the one-half share she had. The lower appellate court refused leave for amendment mainly on the ground that the plaintiff had no such case in the plaint and that it was contrary to the averments in the plaint. It also dismissed the appeal. Plaintiff has therefore come up in the second appeal.
(2.) S.30 of the Travancore Christian Succession Act II of 1092 expressly recognises the customary usage among certain classes of the Roman Catholic Christians of the Latin rite in the taluks of Karunagapally, Quilon, Chirayinkil, Trivandrum and Neyyattinkara of male and female heirs sharing equally the properties of the intestate and directs that nothing in the provisions of the Christian Succession Act relating to intestate succession should be deemed to affect the said custom. A Full Bench of the Travancore High Court has also held in Sebastian Fernandez v. Lassar Fernandez, XXX TLJ 470 that among the Latin Christians of the Central Travancore married daughters who have been given Streedhanom on marriage are entitled to share in the properties of their deceased parents and that the matter is governed by the Travancore Christian Succession Act II of 1092. Having regard to the above provision of law and decision and also the fact that the parties to this suit are Latin Catholic Christians living in Quilon Taluk it appears to me that in the interests of justice the lower appellate court should have allowed the plaintiffs prayer for amendment of the plaint. It was precisely because he had not set up in the plaint the custom recognised by S.30 of the Christian Succession Act that the plaintiff asked for leave to amend the plaint. The grounds given by the lower appellate court for refusing leave are not at all sustainable. I, therefore, allow this second appeal, set aside the decree of the courts below and remand the suit to the Trial Court for a fresh trial and disposal after giving the plaintiff an opportunity to amend the plaint so as to include therein the prayer for partition of one-half of the plaint property and recovery of possession of the same after paying the proportionate mortgage money chargeable thereon. In the amended plaint plaintiff will be allowed to rest his case upon the custom recognised in S.30 of the Christian Succession Act and to plead that defendants 4 and 5 and their parents belong to the class of Roman Catholic Christians mentioned in that section. The costs of this second appeal will abide the result of the remand, except the court fee paid on the memorandum of appeal which will be refunded to the appellants counsel.;

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