A Brief Introduction:

The question that arose before the Hon'ble Supreme Court for consideration in
this case was whether the provisions of the Travancore Christian Succession
Act were ultra vires to the Constitution.

The discriminatory provisions of both Travancore Christian Succession Act

(1916) and Cochin Christian Succession Act (1921) were challenged by Mary
Roy as a violation of Article 14 of the Indian Constitution which lays down
equality for everyone. Equality according to Article 14 is equality among
equals, till the decision of the Hon'ble Supreme Court was given in this regard,
the Travancore Christians were governed by the provisions of the Travancore
Christian Succession Act, 1916 and the Cochin Christians were governed by the
provisions of the Cochin Christian Succession Act, 1921. Christians in other
parts of India were governed by the provisions of the Indian Succession Act,
1925 with such exceptions as provided in the Act, which is clearly violating
Article 14 as there is not equality among equals. It was in this settled 'state of
affairs' that the Supreme Court rendered the decision in Mary Roy.

Objectives of Study:

To explore and analyse if the provisions of Travancore Christian Succession are

ultra vires to the Constitution and to also dwell if the introduction of Indian
Succession Act impliedly repealed Travancore Christian Succession and Cochin
Christian Succession Acts

RESEARCH PROBLEMS:

1. Whether the provisions of Travancore Christian Succession and Cochin

Christian Succession are ultravires to the Constitution or not? If so, what
provisions are they violating?

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2. Whether the introduction of Indian Succession Act impliedly repealed
Travancore Christian Succession and Cochin Christian Succession Acts and
what are its repercussions.

SCOPE OF STUDY: The scope of the study is only limited to analysing the
various nuances of the Act and determining whether it is ultravires to the
Constitution or not.

RESEARCH METHODOLGY: The research is doctrinal which is analytical,

comparative and descriptive and employs deductive logical reasoning to arrive
at the interpretations of the Acts.

TABLE OF CONTENTS

1. Chapter 1:
Introduction1

2. Chapter 2: The Case of Mary

Roy...3

3. Chapter 3: Legal Implications of Mary Roy v. State of

Kerala...5

4. Chapter 4: Comparative Repercussions on Travancore and Cochin

Christian Succession
Acts...7

5. Chapter 5: Conclusion &

Suggestions..9

BIBLIOGRAPHY

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FACTS OF THE CASE:

It was in the year 1984, Mary Roy, mother of famous Indian author Arundathi
Roy filed a writ petition before the honourable Supreme Court challenging the
Travancore Succession Act, which declared that when a man died intestate (i.e;
without leaving any will) his widow would receive a mere life - estate in one -
third of his estate, and the daughter shall receive a quarter of the share of a son
or Rs. 5,000 whichever is less, as violative of her Constitutional right to equality
under Article 14 and 15 of the Indian Constitution.

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The reason for filing the petition was an insult suffered by Mary Roy, about 25
years ago when her mother and brother arrived in Ooty with several goondas
and ordered her to vacate her fathers cottage in which she had been living with
her children, immediately. It was then she first came to hear about the
Travancore Succession Act, which denied daughter any share in intestate
property. She refused to vacate as there was nowhere to go. So the only option
left to her was to knock the doors of the Court for justice.

VIOLATIVE OF INDIAN CONSTITUTION:

The contention of the petitioners was that these rules discriminated against
women by providing inter alia that so far as succession to the immovable
property of the intestate is concerned, a widow or mother becoming entitled
under sections 16,17,21 and 22 shall have only life interest terminable at the
death or on remarriage and that a daughter shall not be entitled to succeed to the
property of the intestate in the same share as the son but she will be entitled to
1/4th the value of the son or Rs 5000 whichever is less and even to this amount
she will not be entitled on intestacy, if sthreedhanom is provided or promised to
her by the intestate , either by his wife or husband or after the death of such
wife or husband, by his or her heirs and on account of such discrimination these
rules were unconstitutional and void as being violative of Article 14 of the
Indian Constitution.

INDIAN SUCCESSION ACT REPEALS THE TRAVANCORE

CHRISTIAN SUCCESSION ACT:

The Part B State of Travancore Cochin was formed in 1949 by the merger of the
former State of Cochin with the former State of Travancore, with a view to
bring about uniformity in the application of legislation in the whole of India
including Part B States.

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Section 3 of the Part B States Act states that, the Acts and Ordinances specified
in the Schedule shall be amended in the manner and extended to such limits as
stated in the extent clause thereof. As per Section 6 of that Act, if immediately
before the appointed day (ie. 1-4- 1951), there was in force any law,
corresponding to any such Acts or ordinances so extended, in force in the Part B
States to which it is extended, that law shall, save as expressly provided in that
Act, stood repealed.

The petitioners contention was that the Travancore Christian Succession Act
was a law corresponding to Chapter II, Part V of the Indian Succession
Act1925, which was admittedly in force in the Part B State of Travancore-
Cochin immediately before the appointed day, i.e., on 1-4-1951. Both these
laws related to intestate succession.

The Court, in D.Cheliah v. G. Lalithabai1 held that on the coming in to force

of Part B States (Laws) Act, 1951, the TCSA stood repealed and Chapter II of
Part V of the ISA, 1925 became applicable and intestate succession to the
property of members of the Indian Christian community in the territories of the
erstwhile State of Travancore was thereafter governed by Chapter II of Part V
of the ISA, 1925. It is unnecessary to consider whether the Sections 24, 28 and
29 of the TCSA, 1092 are unconstitutional and void. And therefore declared that
the intestate succession to the property of Indian Christians in the territories of
the former state of Travancore is governed by the provisions contained in
Chapter II Part V of the ISA, 1925.

When Section 6 of the Part B States (Laws) Act, 1951153 provided in clear and
unequivocal terms that TCSA, 1092 which was the law in force in Part B State
of Travancore-Cochin corresponding to Chapter II Part V of the ISA, 1925 shall
stand repealed, it would be subversive of the legislative intent to hold that

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AIR 1978 Mad 66

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TCSA, did not stand repealed but was saved by Section 29 (2) of the ISA,
1925.2

The impact of the decision is that the Travancore Christian Succession Act
stands repealed with effect from the date of inception of the Part B States (laws)
Act, 1951. This Act was abrogated and repealed, being a law in force in Part B
states (Laws) Act corresponding to Chapter II Part V of the ISA, 1925 which
was extended to that State and not being expressly saved by the Part B States
(Laws) Act, 1951 stands repealed retrospectively with effect from 1-4-1951.

The legal impact of the decision is that the ISA, 1925 became uniformly applied
to the Indian Christians irrespective of the separate laws in force in the various
Part B States including Travancore-Cochin.

JUDGMENT:

The judgment was delivered by honourable Chief Justice Bhagwati. The

honourable Supreme Court is of the opinion that on the coming into force of
Part-B States (Laws) Act, 1951 the Travancore Cochin Succession Act, 1092
stood repealed and Chapter II of Part V of the Indian Succession Act, 1925
became applicable and intestate succession to the property of members of the
Indian Christian community in the territories of the erstwhile State of
Travancore was thereafter governed by Chapter II of Part V of the Indian
Succession Act, 1925. On this view, it becomes unnecessary to consider
whether sections 24, 28 and 29 of the Travancore Christian Succession Act,
1092 are unconstitutional and void. We, therefore, allow the writ petitions
and declare that intestate succession to the property of Indian Christians in the
territories of the former State of Travancore is governed by the provisions

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Section 29 of ISA, 1925 - application of Part). This part shall not apply to any intestacy
occurring before the first day of January, 1866, or to the property of any Hindu,
Muhammedan, Buddist, Sikh or Jaina.(2)Save as expressly provided in subsection (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.

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contained in Chapter II of Part V of the Indian Succession Act, 1925. There will
be no order as to costs.

Impact on Society: There are both positive as well as negative impacts of this
decision.

Positive impacts are as follows:

(a) A sense of awareness was spread among the community to treat both sons
and daughters alike.

(b) Daughters were given legal sanctity to claim rights on the property of their
intestate parents which were denied for the past 35 years.

(c) The verdict in this landmark case brought in gender equality in the
community.

Just like every coin has two sides, there are certain ill-effects of this judgment
too. They are:

(a) Most of the property was disposed of through wills

(b) Daughters were forced to sign documents declaring that their claims had
already been settled.

(c ) collusive suits were filed by brothers and sisters taking undue advantage of
this decision, for evading from repayments of huge loan amounts taken by
pledging properties as security, from banks and other Financial Institutions.

Since the Supreme Court struck down the Act, Travancore Christian Succession
Regulation, 1916 in 1986, the church the legislature and the press created a hue
and cry then and even afterwards the judgment caused calamities that would
hurl Kerala into hellish turmoil; a flood of litigation would swap the law courts;
that the affluent Syrian Christian community would face economic distress. All
the transactions involving Syrain Christians, like sale of property and bank
security, would become invalid. It was also feared that an estimated 30,000
nuns who were not given dowry and therefore wedded to the Church would

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demand their shares in their fathers property.
It must be noted that the Supreme Court laid down general law to be followed in
the case of intestate succession. The Supreme Court has declared that it is
Indian Succession Act It was also feared that an estimated 30,000 nuns who
were not given dowry and therefore wedded to the Church would demand their
shares in their fathers property. The awareness of this judgment has not been
made among the Christian women in Kerala.

On similar lines with the decision in Mary Roy v. State of Kerala; the Division
Bench of the Kerala High Court comprising of Balakrishna Menon &
Shamsudhin, JJ, declared that the Cochin Christian Succession Act, 1097 too
stands repealed with effect from 1/4/ 1951.3

In Abraham Mathew v Chacko Mary4 it was clearly evident that the women
were not sufficiently aware about the extent of their rights declared by the
Supreme Court. Wherein the decree holder was the sister of the revision-
petitioners before the High Court. The writ was filed for Rs. 5,000 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 didnt keep word and hence the suit. The
contention of the revision petitioner was that their sister had filed the writ under
Section 28 of the Travancore Succession Act, 1916. Since it stood repealed with
effect from 1/4/11951, the decree passed is a nullity.

3
In Joseph v Mary, 1988 (2) KLT 27), the question which arose minis case was whether
payment of Streedhanam in 1950 disentitled the daughter from claiming any share in
properties left by her father who died in 1944. Under Section 22 of the Cochin Christian
Succession Act, 1097, if Streedhanam was paid to a women by any of the four relations
(father, mother, paternal grandfather or paternal grandmother) during their life-time, and a
brother or lineal descendants of that brother is alive, the women will be excluded from inheritance of the said
four persons by such brothers or lineal descendants of brothers. In the instant case, admittedly no
Streedhanam was paid to the woman before the death of the father in 1944. The marriage was in 1950. The
Court held that the right to share accrued to her even before Streedhanam was given. In such a circumstance,
the payment of Streedhanam subsequently will not disentitle her to claim her share in the property left
behind by her father since the succession already opened on the death of her father in 1944 (i.e. six years
before her marriage).
4
1988 (2) KTL 869

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Its germane to note that under the Indian Succession Act, 1925 the children
inherit property equally.5 A sister is entitled to a share equal to that of her
brother.

In the instant case, the female could amend her plea for an equal share to that of
the brother. But since she had not claimed for it, the Court couldnt suo moto
grant it to her.

THE APPROACH OF THE COMMUNITY AND THE STATE

TOWARDS THE REPEAL OF TRAVANCORE CHRISTIAN
SUCCESSION:

The introduction of the Indian Succession Act retrospectively has been

accompanied by a certain degree of destabilization in society through
maintaining the status - quo of women. The Church, the government and the
Courts are equally guilty of keeping silence in this matter before 1986.

After the 1986 decision, the Kerala High Court had declared through a number
of decisions that Travancore and Cochin Christian Succession Acts are not
saved by Section 29(2) of the Indian Succession and that it stood repealed with
the introduction of Part B States (Laws) Act, 1951 as per Section 3 of that Act.

The members of the community seemed to be less concerned about the

prosperity which the judgment has conferred on women. Only women like Mary
Roy, capable of challenging their and who could come out of the hierarchy of
the Church resorted to action.

The Christian Forum for Womens Rights and the Joint Womens Programme
(JWP), are the women organisations who stand for Christian women holding
that they would not allow any more amendment diluting the justice ushered by
the Supreme Court.

5
Section 37 of the Indian Succession Act 1925

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Now-a-days, the size of family been reduced leaving only one or two children
for a parent as his lineal descendants. So the chance of litigation claiming ones
share too will be very rare in the coming days. And within the next 15 or 20
years, such a problem would practically disappear from the scenario of
Christian families as well as among other communities.

Any special provision in a legislation which curtails the rights of women shall
have to be amended. For instance, prior to the 2001amendment of the ISA, an
explanation was given to Section 32 taking away the widows rights in her
deceased husbands property, if there was a contract to the contrary made before
their marriage. The Indian Succession (amendment) Act, 2001 has deleted the
explanation there by making the widows right absolute in her husbands
property.

The existing state of legislation is that the daughter is entitled to equal share as
that of a son. The widow is entitled to 1/3 property of her husband absolutely
and remaining 2/3 is equally divided among their children.

The most glaring discriminatory provision is that the father is preferred over the
mother. If a person is unmarried and childless, and both parents are alive, the
father inherits all. If a person has a spouse but no children and both parents are
alive, the spouse gets half and the father gets half. But if the father is dead the
mother has to share with the brothers and sisters. The sisters and brothers under
this provision inherit equally. Similarly, the law makes no provision for a
widow of a son or grandson to inherit the father-in-laws property. The State
shall have to suitably amend the legislation so as to rectify those anomalies in
the Indian Succession Act.

The priestly authorities and the heads of churches are against the retrospective
effect of the Supreme Court decision in Mary Roy for they fear that the
community would be in peril due to the litigation which would arise had they

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been aware of the scope of the decision in assuming and ascertaining their
rights. The main reason for such feeble response from Christian women would
have been the influence of Church and the patriarchal supremacy afforded by
the legislations. Even in the property of a deceased childless son, the father
takes half of it. Exercising his testamentary power, the male heir can dispose off
his property at his free - will even disinheriting his wife and daughters.

The following changes had been recommended in the Indian Succession

Amendment Bill, 1994:

1. There should be one law of succession for all Christians giving equal rights to
men and women;

2. The succession Act should be changed so as to give the wife full right in the
property of her deceased husband, if he died intestate without leaving any lineal
descendants and parents, without sharing it with the remote kindred;

3. The explanation to Section 32, depriving a widow of her right in her

husbands estate, if there is a pre-marriage contract, should be deleted;

4. Sections 24, 33, 41 and 48 should be modified so that the widow gets full
property;

5. The father and mother should share equally (under Sections 42-46);

6. Sections 213 (that wills should be probated) should not apply to Indian
Christians.

Among these recommendations, the Government accepted No. 3 & 6 and

incorporated it in the Indian Succession (Amendment) Act, 2001.

The Kerala Womens Commission had suggested certain amendments in the

Indian Succession Act, 1925 regarding the rights of widows and mother. It has
proposed to amend Section 32 by deleting the explanation limiting the rights of

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widows. Section 42 relating to the rights of parents of intestate surviving was
also proposed to be amended so that the mother and father should inherit
equally. (The first recommendation had been incorporated under the Indian
Succession (Amendment) Act, 2001).

The desire for every reform must come from within communities. The
Government on its part has never seen to make any attempt for preparing the
grounds for any such reforms. It has always preferred to avoid any controversial
legislation which could prove politically inconvenient. In these circumstances,
any attempt from the part of the Government to eliminate gender injustice from
personal laws even in a piece meal fashion is welcome as its need is indeed
recognised by the community itself.

Conclusion & Suggestions

Though changes have been made brought about in the property rights of
Christian daughters and wives through changes in legislation in effect, the
community opt for the traditional customs and ancient legislations. In effect, the
law of succession has not changed much even after the introduction of a
uniform law. But it has indeed produced serious thoughts and repercussions
among the institutionalised hierarchy within the Community to a small extent.
For, men are now very cautious while making transactions relating to their
ancestral property.

We can say that though the Court was reluctant to deal with the issues of
succession rights of Christian women in Kerala specifically in the beginning, we
can see that in the post - Mary Roy decision the Court has started to deal with
the issues more specifically.

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Even the 110 report of the Indian Law Commission (1985) on Indian
Succession Act had put forward two recommendations regarding the
applicability of that Act. The commission held that it is a matter of social policy
that the ISA should apply to the persons governed by Travancore Regulation,
the latter Act should be repealed by an express provision. If on the other hand, it
was considered as a matter of social policy that the provisions of TCSA should
govern succession to the persons concerned, then there should be a provision in
Section 29 of ISA to the effect that the Travancore Regulation would apply to
Christians governed by that Act in respect of intestate succession. 1) in the State
of Kerala and 2) the adjoining areas in the State of Tamil Nadu (in the District
of Kanyakumari and Shenkottai Taluk).

But this has not been taken into consideration by the State of Kerala and no
amendments have been made on lines with the recommendations made by the
Indian Law commission.

The new changes which had recently been made in the Succession Laws
affecting Christian women in Kerala is the Indian Succession (Amendment)
Act, 2001 passed on 3-5-2002 by the Lok Sabha. The Christian widows who
were suffering from loss of inheritance rights through a pre-marriage contract
got a major relief with the enactment of this new legislative reform. It enabled a
Christian widow to get a share in her husbands property even when there was a
contract to the contrary. By this amendment, the explanation to Section 32 of
the Indian Succession Act, 1925, was deleted which was discriminatory in
nature for the Christian widow as they lost the right of inheritance following a
contract at the time of marriage (The explanation to section 32 of the ISA, 1925
itself says that there may be a situation where a widow of a Christian, on
account of any contract made at the time of marriage, may be excluded from
inheritance).

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A lot needed to be done by way of legislative changes in personal laws so as to
ensure human dignity and equality for women in particular. For this, the
institutionalized patriarchal hierarchy of the religious institutions as well as the
society as a whole should change. Women themselves need to revolt against the
practices diminishing their status, which have been handed over from
generation to generation. The true spirit of equality must prevail and for this,
there must be a fundamental change in the way in which the society views these
reforms. Gender equality and gender justice must become part of the ethos of
the society. Law and justice should transcend gender-bias. A legislation by itself
cannot bring any reformation or change unless accompanied by corresponding
or complementary political or social movements.

From various surveys conducted we can see that he interests of the mighty were
represented than that of the weaker sections, who were the ultimate losers. Since
dowry became the basis of share -concept in the case of daughters in the
erstwhile States of Travancore and Cochin, even now the share of daughter is
given either in gold or as cash in those areas (Kottayam, Thrissur etc). But in
the Malabar areas, since dowry has not been the basis, but only equal share
concept, they were always willing to give shares in land to daughters.

The women who went to the law for securing their rights either had the courage
to come out of the influence of the Church or to break the patriarchal hierarchy
of the Community. They were often called rebels and were considered as out-
casted by the Church and the community. So they were few in numbers and
hence lesser number of disputes arose before the Law Courts.

Even the media is community -biased. The New-papers like Deepika and
Malayala Manorama (under the management of Christians) reported the news-
items regarding the Mary Roy verdict holding titles The Mary Roy Judgment-
the Court went wrong, The Indian Succession Act - A Law to be amended,

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Buying Affection through share in the property, Christian Succession - a
solution far ahead, etc. These indicated the patriarchal attitudes of the
community towards succession legislations.

The power of testamentary disposition has to be restricted. The law should

ensure gender justice. But on one-side whatever reforms be brought about in
legislations, it should be accepted by the Community as part of their lives and
should be ready to give up the age-old traditions and norms solidified among
them through generations. But on the other side, if the women are well
organised and are aware of their rights, the true intention of these legislations
can be put into practice to a certain extent.

BIBLIOGRAPHY:

WEBSITES REFERRED:

advocatemmmohan.wordpress.com
http://www.livelaw.in/
www.ebc-india.com
www.cds.ac.in
en.wikipedia.org
shodhganga.inflibnet.ac.in

ACTS REFERRED:

TRAVANCORE CHRISTIAN SUCCESSION ACT, 1916

INDIAN SUCCESSION ACT, 1925

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