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M.D.Varadarajan vs G.Sureshkumar on 7 January, 2008

Kerala High Court
M.D.Varadarajan vs G.Sureshkumar on 7 January, 2008
       

  

  

 
 
  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.
             -------------------------------
                   R.F.A.NO.605 OF 2004
            --------------------------------
              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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

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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R.F.A.No.605/2004

commencement of the Joint Family Abolition Act,

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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R.F.A.No.605/2004

(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.

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