Manoharan, J.
1. A question connected with the succession of Christian daughters hailing from the Cochin area comes up for consideration in this appeal. Similar questions have arisen in the Travancore area of the State earlier. The matter has received the attention of the highest court of the land. The question relating to the Cochin area itself has been answered in an earlier decision. There is however, a subsisting importance for the subsidiary contention raised in the appeal. That relates to an argument regarding the necessity to bring to hotchpotch for the purpose of the determination of shares of the daughters, the amount paid by way of Streedhanam at the time of the marriage of daughters. We have discussed this question in detail in the succeeding paragraph. We are of the view that the Christian daughter, had sufferings all along. They had been, to some extent, obviated by the decision in Mary Roy's case, and the consequential application of Indian Succession Act dependent on the interpretation of the Part B States (Laws) Act. The subsidiary contention, according to us, indirectly and obliquely seeks to resurrect the dead issues of the Cochin Succession Act. The court conscious of the progressive realisation of the society, shall not set to retard the movement of time, still else, to set back the hands of the clock. The further details are discussed below.
2. Defendant is the appellant. Suit was for partition.
3. Plaintiffs and defendants are the children of Mariyam and F..C. Varghese. Plaint schedule property was acquired by Mariyam in the year 1111 M.E., out of the 24 cents, 3 cents was sold under Ext. A2. Mariyam died on 25-8-1981. According to the plaintiffs, the property devolved on them and the defendant in equal shares, and thus they are entitled to 1/3rd each in the property. Since the defendant is not giving profits from the property plaintiffs claimed mesne profits also.
4. Defendant contended, though purchase was in the name of Mariyam, the consideration therefor proceeded from the father and that since plaintiffs were given in marriage after giving streedhanom they are not entitled to any share in the property. According to him the first plaintiff was given 22/2 sovereigns of gold ornaments, household articles and Rs. 8,000/- at the time of marriage and the second plaintiff was given 271/2 sovereigns of gold ornaments and Rs. 8,000/-. Defendant incurred an expense of Rs. 10,000/- towards the treatment of father and mother and for their funeral expenses.
5. Lower court held that the plaintiffs are entitled to one-third each in the plaint schedule property; there is no evidence to show that any amount as alleged by defendant was paid to the plaintiffs at the time of marriage. The lower court pointed out that, PW 1 has only admitted that she was given ornaments worth 7/2 sovereigns; and P.W 2, the second plaintiff though said she was given 25 sovereigns of ornaments admitted in the cross-examination that in O.S. 485 of 1978 filed by her against her husband she contended that she was given 271/2 soveriegns of gold ornaments at the time of her marriage. But the lower court found that there is nothing to show that the said ornaments were given in lieu of the plaintiffs' share in the property. As indicated, the case of the appellant is that the plaintiffs were given streedhanom apart from the aforesaid ornaments, but there is no acceptable evidence in support of the same. The lower court passed preliminary decree subject to certain liabilities. There is no cross objection as to the liabilities on the estate found by the lower court.
6. Learned counsel for the appellant maintained that at any rate since PWs 1 and 2 were given ornaments worth 71/2 sovereigns and 271/2 sovereigns respectively at the time of marriage, that should be taken as in settlement of their claim of share. Alternatively it is contended that even if such payment of streedhanom may not extinguish the right to share, the same must be taken into consideration as an item available for division.
7. Parties were governed by Cochin Christian Succession Act (Act 17/1097). As per Section 22 of the said Act where streedhanom has been given or contracted to be given by the father, mother, paternal grandfather or the paternal grandmother of a woman, to or in trust for her, she would not be entitled to share in their property if a brother of the said woman being a lineal descendant of the intestate or the lineal descendants of such a brother, survive the intestate. But on the coming into force of Part B States (Laws) Act, 1951 the Travancore Christian Succession Act 1092 stood repealed. (See the decision in Mrs. Mary Roy v. State of Kerala, AIR 1986 SC 1011. On the said principle the Cochin Act also stood repealed at the commencement of the Part B States (Laws) Act 1951 (Mathew v. Eliswa (1988(1) KLT 310) (DB): AIR 1989 Kerala (NOC) 27. Therefore a contention on the basis of Section 22 of the Cochin Christian Succession Act to the effect that plaintiffs who are sisters of the first defendant are not entitled to a share in the estate of the mother cannot be sustained.
8. Next contention is that the payment made at the time of marriage should be treated as in lieu of their claim of share in the property. There is no law now which disqualifies a daughter to inherit her parents on the ground that she was paid stredhanam. Plaintiffs were given in marriage long ago. Mariyam died 25-8-1981. On payment of streedhanom or any amount neither the first plaintiff nor the 2nd plaintiff was competent to alienate their chance to inherit their mother, as the same is neither a contingent interest nor a vested interest but is only a mere spes successionis. Under law no person has any estate or interest contingent or otherwise in the property of a living person to which he hopes to succeed as heir. Therefore the plaintiffs were not competent to surrender any interest in the expected share. The case of the defendant in this regard is a vain attempt to resurrect Section 22 of the Cochin Christian Succession Act.
9. As per Section 21 of Cochin Christian Succession Act for the purpose of determining the share of a woman in the estate of the father, mother etc. when streedhanom had been given or contracted to be given, to or in trust for her the amount of streedhanom or its value at the date of intestacy, has to be brought into the common hotchpot. Similar is the contention now raised by the defendant that, the value of ornaments and the amounts paid at the marriage should be brought into the common hotchpot to determine the share of the plaintiffs. As has already been noted neither Section 21 nor the principles underlying the same cannot govern the succession as the whole Cochin Christian Succession act stands repealed. Now the contention appears to be that, since the daughter is benefited by the streedhanam and since streedhanam is her property, she is accountable for the same. In other words the attempt is to establish that if at all the plaintiffs are entitled to any share, the value of the ornaments given at the time of marriage should be taken into account in deciding quantum of share. The contention can have force only so long as the Cochin Christian Succession Act was in force. Under Section 37 of the Indian Succession Act, the parties arc entitled to share the property equally. The same docs not make any condition. In as much as the Cochin Christian Succession Act has already been repealed by Part B States (Laws) Act and since the death of the mother of the plaintiffs and defendant was after the commencement of the Part B States (Laws) Act, the law that governed the Succession to her estate is the Indian Succession Act. Consequently the limitation envisaged as per the provisions of the Cochin Christian Succession Act with respect to the right of the daughter to claim share no longer will have relevance. Therefore the said contention of the appellant cannot be sustained.
10. As regards the liabilities of the estate. DW 2 was examined to show that building No. 251 was outstanding in a mortgage which the defendant has redeemed, no document was produced in support of the same. Therefore, the lower court did not accept the said contention. Another claim made by the defendant was that he had spent Rs. 10,000/-for the treatment and funeral expenses of the parents. Lower Court found that, on the basis of the evidence of plaintiffs that Rs. 2,000/-cach was the amount that was spent by the defendant towards the treatment and funeral expenses of the parents. Therefore, the lower court held that the 2/3rd of the said expenditure should be borne by the plaintiffs, Thus, we do not see anything wrong in the conclusion reached by the lower court, consequently the appeal is liable to be dismissed.
In the result the appeal fails and the same is dismissed, but in the circumstance, without any order as to costs.