IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA No. 605 of 2004(A)
1. M.D.VARADARAJAN, S/O. LATE DAMODARAN,
... Petitioner
Vs
1. G.SURESHKUMAR, S/O. B.RAJAMMA, KARTHIKA,
... Respondent
2. JAYAPALAN S/O. LATE NARAYANAN,
3. DEVAPALAN S/O. LAGE NARAYANAN,
4. T.RADHAKUMARY, D/O. LATE N.SAHADEVAN,
5. MAYA JAYASEELAN D/O. LATE N.SAHADEVAN,
6. S.ASHOK KUMAR S/O. LATE N.SANADEVAN,
7. RENUKUMARI T., D/O. LATE N.SAHADEVAN,
8. PYARI SAHADEV, S/O. SHADEVAN,
9. K.S.UDAYAKUMAR S/O. LATE B.SARASAMMA,
10. K.S.UDAYAKUMARI D/O. LATE B.SARASAMMA,
11. K.S.PRASANNAKUMARI
12. K.S.PRASANNAKUMAR, S/O. LATE B.SARASAMMA
13. K.S.BEENA D/O. LATE B.SARASAMMA,
14. SURITHI SANKAR, D/O. LATE B.SARASAMMA
15. REKHA SANKAR D/O. LATE B.SARASAMMA
16. R.SUSHARA DEVI D/O. LATE B.RAJAMMA,
17. R.ASHA D/O. LATE B.RAJAMMA,
18. R.NALI D/O. LATE B.RAJAMMA,
19. G.SUDHEESHKUMAR S/O. LATE B.RAJAMMA,
20. SUNIL GANGADHARAN S/O. LATE B.RAJAMMA,
21. T.K.MANU S/O. LATE CHANDRIKA DEVI,
22. LEELA SREENIVASAN D/O. LATE DAMODARAN,
23. MEENA UTHAMAN D/O. LATE DAMODARAN,
24. SAROMA PURUSHOTHAMAN,
25. MOHAN RAJ, S/O. LATE GANGADHARAN,
26. RADHAVIJAYA RAGHAVAN, D/O. GANGADHARAN,
27. SUDARSANAN, MAHALAKSHMI MARBLES,
28. THE DEPOT MANAGER, ALLEPPEY,
29. THE MANAGING DIRECTOR, ALAPPUZHA
For Petitioner :SRI.K.V.SADANANDA PRABHU
For Respondent :SRIR.AZAD BABU
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :07/01/2008
O R D E R
P.R.RAMAN & V.K.MOHANAN, JJ.
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R.F.A.NO.605 OF 2004
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Dated this the day of January, 2008
JUDGMENT
Raman, J.
This appeal arises out of the judgment and decree in
O.S.No.168/2000 of the Sub Court, Alappuzha. The suit is one for
partition. Defendant No.22 is the appellant herein. The suit property
jointly belonged to one Rajan and his wife Sulochana. They had no
issues. Rajan died in 1991. Subsequently, Sulochana died intestate in
1993. Hence succession is governed by the provisions of Hindu
Succession Act, 1956. But the point in controversy is as to whether the
estate of the deceased will devolve on the legal heirs as per Section 16
or Section 17 of the Hindu Succession Act. In this regard it is
contended by the learned Counsel, Sri Sadananda Prabhu, appearing
for the appellant that at the time Sulochana died in 1993 she is not
governed by the marumakkathayam law, since the marumakkathayam
law in the State of Kerala had been repealed by the provisions
contained in the Kerala Joint Hindu Family System (Abolition) Act,
1975. According to him, since the succession opens in 1993, on the
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death of Sulochana when she is not governed by the marumakkathayam
law, the estate of the deceased will be devolved on the legal heirs in terms
of Section 17 of the Hindu Succession Act. Per contra it is contended by
the contesting respondents that Section 17 itself gives sufficient indication
that whether the provisions of Section 15 will apply or Section 17 will
apply, will have to be decided as on the date of commencement of the
Hindu Succession Act, 1956. As per Section 17 of the Act, the provisions
of Sections 8, 10, 15 and 23 shall have effect in relation to persons who
would have been governed by the provisions of marumakkathayam law, if
this Act had not been passed. In other words, according to them, the
application of Section 15 or Section 17 as the case may be, will have to be
decided as on the date of commencement of the Hindu Succession Act.
The parties are governed by the marumakkathayam law at the time of
commencement of the provisions of the Hindu Succession Act. There
were two provisions governing the succession. While enacting the law the
legislature has taken care to provide two separate provisions indicating
the manner in which the estate will devolve and the determination of the
heirs will therefore be governed by the provisions of Section 15 in the
case of marumakkathayi as per Section 17 of the Act. According to them,
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both Section 15 and Section 17 have come into force. In the absence of
any provision contained in the Joint Hindu Family System (Abolition) Act
expressly amending the provision of Section 17, the continued application
of Section 17 is not affected by the Joint Hindu Family System
(Abolition) Act, 1975.
2. Heard both sides.
3. The Hindu Succession Act, 1956 codified the law relating to
intestate succession among Hindus. The Act lays down a uniform and
comprehensive system of inherintance and applies, inter alia, to persons
governed by the Mitakshara and Dayabhaga schools and also to previous
Marumakkathayam, Aliyasanthana and Namboodiri laws. The Act applies
to every person who is a Hindu by religion. By the Hindu Succession
(Amendment) Act, 2005 certain amendments were brought out more
particularly to Section 6 with a view to remove gender discrimination and
recognises the right of female to inherit ancestral property as their
counterpart male do in coparcenary property besides omitting Section 23.
The Kerala Joint Hindu Family System (Abolition) Act, 1975 came into
force on 1/12/1976. As per the statement of objects and reasons itself it
can be seen that as regards matter for which provisions have been made in
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Hindu Marriage Act, Hindu Succession Act, Hindu Minority &
Guardianship Act and Hindu Adoption and Maintenance Act as per law
made by the Parliament, those provisions will prevail over the State
enactment. Among the Hindus of Kerala a sizable portion are
Marumakkathayees. In the Travancore area of the State different sections
of Marumakkathayees are governed by various enactments. As regards
marriage and its dissolution joint family property and its management,
succession etc. there are some sections of Marumakkathayees in the
Travancore Area to whom none of these enactments applies. They are
governed by the pure Marumakkathayam system of law as modified by
custom. In the Cochin area also, the Marumakkathayees are governed by
various enactments. In the Malabar area all Marumakkathayees except
those who follow the Aliyasanthana system are governed by the Madras
Marumakkathayam Act, 1932. Those who follow Aliyasanthana system
are governed by the Madras Aliyasanthana Act, 1949. In all the three
regions, there are Makkathayee Hindus who are governed by statutes or
the Mitakshara Law as modified by custom and statutes or by the Kerala
Namboodiri Act, 1958. Thus, from the statement of objects it is clear that
as regards matters for which provisions have been made in the above acts,
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the provisions contained in the Hindu Succession Act will prevail over
those in the State enactments and what has been dealt with under the
Hindu Joint Family System (Abolition) Act is only “Tharwad and its
management and partition.” The preamble of the Joint Hindu Family
System (Abolition) Act, 1975 shows that the statute was brought to
abolish the Joint Family System among Hindus in the State of Kerala.
The term “Joint Hindu Family” as defined under Section 2 would take in
(1) A tharwad or thavazhi governed by the Madras Marumakkathayam act,
1932, the Tavancore Nayar Act, 11 of 1100, the Travancore Ezhava Act,
111 of 1100, the Nanjinad Vellala Act of 1101, the Travancore Kshatriya
Act of 1108, the Travancore Krishnavaka Marumakkathayee Act, VII of
1115, the Cochin Nayar Act, XXIX of 1113 or the Cochin
Marumakkathayam Act XXXIII of 1113; (2) a Kutumba or Kavaru
governed by the Madras Aliyasanthana Act, 1949; (3) an illom governed
by the Kerala Namboodiri Act 1958; and (4) an undivided Hindu Family
governed by the Mitakshara Law. Section 3 of the Act abolishes the right
by birth in the property of the ancestor. It is an incidence both under the
Marumakkathayam Law as well as the Mitakshara Law, the only
difference between them being that the former is founded on matriarchal
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family and the latter on the patriarchal. By the passing of the Abolition
Act, the legal incidence of right by birth in the community property has
been abolished and no claim based on such right will be countenanced. In
Marry v. Bhasuradevi (1967 KLT 430 (FB)) a Full Bench of 5 Judges
held that the three degree rule of Mitakshara Law regarding right by birth
founded on religious obligation does not apply to Marumakkathayam
system of law. Under the Marumakkathayam Law every member of a
tharwad, however gets a right by birth. As per Section 4 of the Act, the
property held as thavazhi got converted into property held as tenancy-in-
common by all the existing members of the thavazhi as on 1/12/1976.
Section 3 preserves the right of the creditor to proceed against a son
under the rule of pious obligation in respect of a debt contracted before
the commencement of the Act. Section 6 provides that the liability of the
members of a Hindu Joint Family for debts contracted before the
commencement of the Act shall remain unaffected by any provisions of
the Act. Section 7 is repealing provision. It provides that save as
otherwise expressly provided in this Act, any text, rule or interpretation of
Hindu Law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to have
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effect with respect to any matter for which provision is made in this Act.
As per sub section 2, the acts mentioned in the Schedule, in so far as they
apply to the whole or any part of the State of Kerala, are repealed. There
are 12 enactments included in the Schedule including Travancore Nayar
Act, 11 of 1100 and Travancore Ezhava Act, 111 of 1100. Section 8
provides that notwithstanding anything contained in this Act or in any
other law for the time being in force, proclamation (IX of 1124) dated
29th June, 1949 will continue to be in force. Therefore, the only section
which provides for deemed partition is Section 4 as per which all the
members of an undivided Hindu Family governed by the Mitakshara Law
holding any coparcenary property on the day this Act comes into force
shall with effect from that day, be deemed to hold it as tenants-in-
common, as if a partition had taken place among all the members of that
undivided Hindu Family as respects such property and as if each one of
them holding his or her share separately as full owner thereof. As per the
proviso to sub section 1 of Section 4, nothing in this sub section shall
affect the right to maintenance or the right to marriage or funeral expenses
out of the coparcenary property or the right to residence, if any, of the
members of an undivided Hindu Family, other than persons who have
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become entitled to hold their shares separately and any such right can be
enforced as if this Act had not been passed. As per sub section 2 of
Section 4, all the members of a Joint Hindu Family, other than an
undivided Hindu Family referred to sub section (1), holding any Joint
Family property on the day this Act comes into force, shall, with effect
from that day be deemed to hold it as tenants-in-common, as if a partition
of such property per capita had taken place among all the members of the
family living on the day aforesaid, whether such members were entitled to
claim such partition or not under the law applicable to them, and as if each
one of the members is holding his or her share separately as full owner
thereof.
4. The question as to whether Section 17 of the Hindu Succession
Act was impliedly repealed by the provisions contained in the Joint Hindu
Family System (Abolition) Act or there is any repugnancy came up for
consideration before this Court in Chellamma Kamalamma v. Narayana
Pillai (1993 (1) KLT 174 (FB)). A Full Bench of 5 Judges after referring
to various provisions under the related enactments and after a brief survey
of the changes made in the Marumakkathayam system of inheritance with
particular reference to the facts of those case held that Section 17 of the
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Hindu Succession Act, 1956 made separate provision in relation to
succession on the death of males or females who would have been
governed by the Marumakkathayam law, if the Hindu Succession Act has
not been passed. So far as succession to females are concerned, Section 17
states that provisions of Section 15 relating to succession to female will
have to be applied in the manner in Section 17(ii). Thus, Section 17 of the
Hindu Succession Act and other sections brought about changes in the
law of succession mentioned in the Travancore Nair Act and other matters
relating to succession to males or females, who died after the
commencement of the Hindu Succession Act governed by the
Marumakkathayam Law of succession as specified in the Travancore Nair
Act. The question is as to whether the general changes made in the
Marumakkathayam system of inheritance by Hindu Succession Act more
particularly Section 17 of the Hindu Succession Act was intended to be
trenched upon by the Joint Hindu Family System (Abolition) Act.
5. The Kerala State Legislature passed the Joint Family Abolition
Act, 1975 under Entry 5 of List III of the Constitution of India, whereas
the Hindu Succession Act 1956 was passed by the Parliament under the
same entry in relation to the matters, which was specifically provided for.
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After referring to the provisions contained in the Hindu Succession Act
including its preamble, the Court held as follows:
“We are of the view that the Kerala Legislature,
when it passed the Joint Family Abolition Act, 1975 did
not intend to occupy the field relating to “Wills, intestacy
and succession” in Entry 5 of List III of the Constitution
of India. Unless the State Legislature enters upon the said
field relating to “Wills, Intestacy and Succession”, it
cannot be said that the State Legislature intended to create
any repugnancy between the provisions of Section 17 of
the Indian Succession Act and the Joint Family Abolition
Act, 1975.”
7. It is therefore clear that the Kerala State Legislature, when it
passed the Joint Family Abolition Act, 1975 under Entry 5 of List III of
the Constitution of India did not intend to trench upon Section 17 of the
Hindu Succession Act, 1956. Therefore, there is neither any repugnancy
nor implied repeal of Section 17 of the Hindu Succession Act by reason of
the passing of the Joint Family Abolition Act, 1975. An argument was
raised that Section 17 of the Hindu Succession Act, 1956 was in the
nature of an amendment to the Travancore Nair Act and other State
statutes and that the subsequent repeal of the State laws by Section 7(2)
of the Joint Family Abolition Act, 1975 resulted in the express repeal of
Section 17 of the Hindu Succession Act pointing out that the latter Act
had received the assent of the President of India, and, therefore, Article
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254(2) of the Constitution of India was attracted. This Court repelled the
said contention and said that it is true that Section 17 of the Hindu
Succession Act creates certain changes in the Travancore Nair Act in
relation to intestate succession. That is because of the provisions of
Article 254(1) of the Constitution of India. But that does not mean that the
provisions of Section 17 of the Hindu Succession Act become engrafted
into the Travancore Nair Act or other Kerala State Statutes so as to suffer
a repeal by virtue of Section 7(2) of the Joint Family Abolition Act, 1975.
It was held that there is no express repeal of Section 17 of the Hindu
Succession Act by the provisions of Section 7(2) of the Joint Family
Abolition Act, 1975. The discussion is contained in paragraph 23 of the
judgment. In that regard a contention was raised that once the
Marumakkathayam law has been repealed, a person, who is born after the
commencement of the Joint Family Abolition Act, 1975 will never be
considered as being governed by the Marumakkathayam law any more. If
that be so, persons who were governed by that law and who were alive on
the passing of the Joint Family Act, 1975 would also be in the same
position. What matters in cases relating succession is the date of death.
On the date of death if a particular system of Marumakkathayam law was
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not in existence, the person could not be said to be governed by that law.
On the other hand, it was submitted by the other side that Section 17 of
the Hindu Succession Act identifies a group of persons, as on the date of
the commencement of the Hindu Succession Act who were governed by a
particular Marumakkathayam law and that once the said group of persons
is fixed, Section 17 will continue to operate even assuming that the entire
Marumakkathayam law is repealed on the passing of the Joint Family
Abolition Act, 1975. It was therefore argued that the principle of
incorporation or reference as mentioned in the three decisions of the
Supreme Court, namely, Ram Sarup v. Munshi (AIR 1963 SC 553),
Bajya v. Gopika Bai (AIR 1978 SC 793) and State of Madhya Pradesh
v. Narasimhan (AIR 1975 SC 1835), cannot be applied. It was pointed
out that this is not a case where Section 17 states that a particular
Marumakkathayam law will govern the succession. On the other hand,
Section 17 has itself fixed the method of devolution. When Section 17
refers to persons who would have been governed by Marumakkathayam
law on the date of commencement of the Hindu Succession Act, 1956, the
Section, it is argued, is only referring to a group of persons governed by
that law on the date of commencement of the Hindu Succession Act. The
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court considered the scope of the words “persons who would have been
governed by the Marumakkathayam law if the Act had not been passed”
occurring in Section 17 of the Hindu Succession Act, 1956 and found out
whether on the passing of the Joint Family Abolition Act, 1975, the
Marumakkathayam law–both statutory and customary–come to be totally
repealed. In that regard, the question as to what is the effect of Section 7
(1) and Section 7(2) of the Joint Family Abolition Act was answered.
After an elaborate discussion on the point in controversy with reference to
the various provisions of the Hindu Succession Act and Joint Family
Abolition Act and after referring to the case law decided by the Apex
Court, the court held as follows:
” We, therefore, hold that on the passing of the
Joint Family Abolition Act, 1975, Section 17 of the
Hindu Succession Act, 1956 does not become
inoperative in respect of group (ii), that is the group of
the persons who were living on 18/6/1956 when the
Hindu Succession Act 1956 came into force and who
died on or after the commencement of the Joint Family
Abolition, Act, 1975. It also does not become
inoperative in respect of the group (iv) that is the group
of persons who were born on or after 18/6/1956 but
before 1/12/1976 and who died on or after the
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1975.”
7. So far as this category of persons who were born on or after
1/12/1976 and who died later, there was no right by birth, survivorship or
practically any vestige of the Marumakkathayam law, at their birth or
death. Therefore, in our view, in the case of these persons, male or
female, Section 17 of the Hindu Succession Act, 1956 cannot apply. The
principles applicable to other Hindus as stated in the Hindu Succession
Act, 1956 would then apply. The points summarised in paragraph 50 of
the judgment are as follows:
“(1)S.17 of the Hindu Succession Act, 1956 will
govern the law of succession on the death of males or
females who were governed by the Marumakkathayam
system if such persons were:
i) living as on 18/6/1956 when the Hindu Succession Act,
1956 came into force and they died before 1/12/1976
when the Kerala Joint Hindu Family System (Abolition)
Act, 1975 came into force,
ii) living as on 18/6/1956 when the Hindu Succession Act,
1956 came into force and who dies on or after 1/12/1976
when the Kerala Joint Hindu Family System (Abolition)
Act, 1975 came into force,
iii) born on or after 18/6/1956 when the Hindu Succession
Act, 1956 came into force and who died before
1/12/1976 when the Kerala Joint Hindu Family System
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(Abolition) Act, 1975 came into force, and
iv) born on or after 18/6/1956 when the Hindu Succession
Act, 1956 came into force but before 1/12/1976 and who
died on or after 1/12/1976 when the Kerala Joint Hindu
Family System (Abolition) Act, 1975 came into force.
(2) S.17 of the Hindu Succession Act, 1956 will
not, however, govern the law of succession of males or
females if such persons were born on or after 1/12/1976
and died thereafter. Succession to them would be
governed by the provisions of the Hindu Succession
Act, 1956 other than the provisions applicable to those
governed by the Marumakkathayam system.
. . . . . . . . . . . . . . ”
8. Subsequently, in Bhaskaran v. Kalliani (1990 (2) KLT 749) it
was held that notwithstanding the coming into force of the Joint Hindu
Family System (Abolition) Act, 1976-Kerala, succession to the properties
of a Marumakkathayi female, who dies after the commencement of the
Act, would continue to be governed by Section 17 of the Hindu
Succession Act. On the facts stated the only point that arises for decision
in the present case therefore is as to whether the effect of the repealing
provisions contained in Section 7(1) and 7(2) of the Joint Hindu Family
System (Abolition) Act had in any away affect the the continued
application of Section 17 and whether the court below was right in holding
that in view of the decision of the Full Bench of this Court, partition has to
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be effected by applying the provisions contained in Section 17. In the
light of the above discussion, it has to be held that the plaintiff and
defendants 1 and 20 have got partible interest over the plaint schedule
property and on the death of Sulochana, the succession governed by
Section 17 of the Hindu Succession Act.
In the circumstances, we confirm the judgment and decree passed
by the court below and dismiss this appeal.
P.R.RAMAN,
Judge.
V.K.MOHANAN,
Judge.
kcv.
