JUDGMENT
Gopalan Nambiyab, C.J.
1. The writ petitioner is a member of the Cochin Royal Family. He challenges the validity of the provisions of the Kerala Ordinance No. 1 of 1978 replaced by Kerala Act 15 of 1978 and prays to prevent respondents 2 to 7, the members of the Palace Board, from functioning in pursuance of the Act.
2. The Maharaja of Cochin was the Ruler of one of the princely States of this country when it was under the British rule. After the attainment of independence on the 15th of August, 1947, and as preliminary to the formation of the Republic of India on the 26th of January, 1950, many of the princely States were integrated. The Travancore and the Cochin States were integrated into the Travancore-Cochin State, by a covenant dated 29-5-1949, a copy of which has been exhibited as Ext. R1. His Highness the Maharaja of Travancore and His Highness the Maharaja of Cochin were signatories to the covenant and the Government of India concurred in it and guaranteed all its provisions. In confirmation of the same, the Adviser to the Government of India in the Ministry of States also appended his signature to the covenant. The Travancore-Cochin State itself was formed on 1-7-1949. Before that date, the Maharaja of Cochin issued a proclamation dated 29-6-1949, (1124 M. E.) a copy of which is Ext. R2. That was meant to provide for the administration, management and conservation of the properties of the Valiamma Thampuran Kovilakam Estate and the Palace Fund (referred for short as the V. T. K. Estate and the Palace Fund). Clause 2 (a) of the Proclamation is the definition clause. ‘Board’ was defined to mean the Board of Trustees appointed under the Proclamation; ‘Estate’ as the V. T. K. Estate and all the properties belonging to the said
Estate; and ‘Palace Fund’ as the Special Palace Fund then in existence and payments made from time to time by the Government towards the maintenance of the junior members of the Cochin Royal family and shall include other properties earned out of such fund and any property owned in common by the Royal family except the Palliyara Muthalpidy Estate. Under Clause (3) the Estate and the Palace Fund are to vest in the Palace Administration Board. Under Clause (4) the Board is to consist of five trustees to be nominated by the Maharaja from among the male members of his family so as to secure representation for each of the main tavazhies of the family. One of the Trustees shall be the President of the Board. Under Clause 17, no decision of the Board is to have effect unless it was approved by the Maharaja. Under Clause 7, any vacancy in the Board of Trustees is to be filled up by the Maharaja. Under Clause 12 bye-laws can be made by the Board with the previous sanction of the Maharaja. Under Clause 21 (2) the Board shall not sell or encumber the properties of the Estate except with the written consent of the Maharaja and of the Valiamma Thampuran in the case of the Estate, and the written consent of the Maharaja in the case of the Palace Fund. Under Clause 22, the Estate and the Palace Fund shall be impartible and the Management shall be carried on in accordance with the provisions of the Proclamation.
3. The rapid developments and transformations that took place since then, which we shall proceed to survey, made it necessary to replace, and practically to supplant, the provisions of this Proclamation. The V. T. K. Estate and the Palace Fund (Partition) Act, 1961 (Act 16 of 1961) received the assent of the President and was published in Kerala Gazette Extraordinary No. 54 dated 18-5-1961. The object of the Act was to abolish the impartibility of the V. T. K. Estate and Palace Fund, proclaimed by Clause 22 of the 1124 proclamation. This was done by Section 3 of the Act which enacted:
“3. Maharaja of Cochin to order partition.
Notwithstanding anything contained in Section 22 of the Proclamation, if a request in writing is made by the majority of the major members, and the Maharaja of Cochin is satisfied that in
the interests of the family it would be desirable to partition the Estate and the Palace Fund, among all the members, he may declare his decision to effect a partition under his supervision and control, and direct the Board to proceed with the partition.
(2V The decision of the Maharaja of Cochin under Sub-section (1) shall be published by the Board in the Gazette in English and Malayalam, and a copy of the notification shall be affixed in a conspicuous place at the office of the Board.”
Section 4 provided that each member shall be entitled to an equal share of the Estate and the Palace F-und and that the share obtained on partition shall be the separate property of the member. It was also provided by the same section that a child in the womb on the date of the publication of the decision under Section 3 and who is born alive subsequently, shall have the same right for a share as any other member. Under Section 5 the Maharaja of Cochin had the power, if satisfied, that any property shall not be partitioned but shall remain as common property for the benefit of the family, to exclude such property from being partitioned. Such excluded property shall be under the management of the Board and shall be subject to the provisions of the 1124 Proclamation. Section 6 provided for a deed of partition to be executed on behalf of all the members by the Maharaja of Cochin and the members of the Board and to be binding on all the members of the family. Section 7 barred the right of any member to institute a suit for partition of the Estate and the Palace Fund. Section 8 stated that the partition of the Estate and the Palace Fund shall not affect the personal rights, privileges and dignities of the Maharaja and the members of his family by the covenant executed between the rulers of Cochin and Travancore. The way had perhaps been paved for the passing of this measure by at least two statutory enactments. First, was the Hindu Succession Act which by Section 7 (1), made the interest of a member of a Marumakka-thayam tarwad, a heritable interest, and by Section 7 (3) provided for the statutory fragmentation of sthanam property on the death of a stani. The second was a more or less consequential statute of the local legislature, the Kerala Stanam Properties (Assumption of Temporary Management) Act, 1958
(Act 28/58). As the rule of impartiality itself was destroyed by Act 16 of 1961, the exclusion directed by Section 5 (iii) of the Hindu Succession Act had to be done away with. This was accomplished by Section 10 of Act 16 of 1961, which provided that Clause (iii) of Section 5 of the Hindu Succession Act shall be omitted from the date of the execution of the partition deed under Section 6 of the Act (the Act was passed with the assent of the President).
4. Thus the rule of impartiality of the Palace Fund and Estate provided by Section 22 of the 1124 Proclamation had to yield to the rapid developments of the law. The definition Section of Act 16 of 1961 had retained the definition of the terms ‘Board’, ‘Estate’, ‘Maharaja of Cochin’, ‘member’ and ‘Palace Fund’ in the same way as in the 1124 Proclamation.
5. The Maharaja of Cochin at the time of the integration, died in 1964. The next turn of the cycle occurred in 1971. On 28-12-1971 the Constitution 26th Amendment Act abolished all Royal privileges and privy purses and other dignities, which were, till then, accorded to, or enjoyed by, the Rulers of the erstwhile Indian States. The Rulers were de-recognised. Article 363-A of the Constitution provided as follows:
“363-A. Recognition granted to Rulers of Indian States to cease and privy purses to be abolished.– Notwithstanding anything in this Constitution or in any law for the time being in force.-
(a) the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler shall, on and from such commencement, cease to be recognised as such Ruler or the successor of such Ruler;
(b) on and from the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, privy purse is abolished and all rights, liabilities and obligations in respect of privy purse are extinguished and accordingly the Ruler or, as the case may be, the successor of such Ruler, referred to in Clause (a) or any other person shall not be paid any sum as privy purse.”
Article 366 Clause (22) substituted a new definition of ‘Ruler’ as follows:–
” ‘Ruler’ means the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler;” The Maharaja who succeeded in 1964 died in 1975. He had been de-recognised by the operation of the above Articles of the Constitution, and on and from 28-12-71 the status as the Ruler or Maharaja had itself become a myth or legend. Respondents 2 and 3 in the writ petition are two of the senior members of the Royal family, who had executed two deeds of renunciation (copies Exts. R7 and R8). Ext. R7 is dated 29-8-1975 and Ext. R8, dated 30-9-1975. Ext. R7 recites that on the death of the senior-most male member of the family on 9-8-1975, the 2nd respondent had become the seniormost male member of the Cochin Royal family. The senior-most male member was in management of the Palliyara Muthalpidy Estate and the three residential palaces which the Ruler got after the integration of the two States of Travancore and Cochin. The former was sthanam property which was said to have been affected by Section 7 (3) of the Hindu Succession Act, 1956. The 2nd respondent stated that he did not wish to assume management of the Palliyara Muthalpidy Estate, and desired to renounce his right of management to the same. That right vested in him by Section 5 (2) of the Sthanam Properties (Assumption of Temporary Management etc.) Act, 1958, Act 28 of 1958. They were therefore relinquished. The 2nd respondent also renounced his right to possession and management of the two palaces mentioned therein, (the third, the Hill Palace, Trippunithura, having been taken over by the Cochin University), and the Palliyara Muthalpidy Estate. The 8th respondent similarly executed Ext. R8 renunciation deed. This proceeded on the basis that after Ext. R7 renunciation, the 3rd respondent was the next seniormost male member of the Cochin Ruling family entitled to assume the right to management of all properties and rights renounced by the 2nd respondent. But, as the 3rd respondent did not want to assume management and control of the Palliyara Muthalpidy Estate or other properties, he was executing the deed
of renunciation in respect of all properties, the right to management of which was vested in the 2nd respondent, and which he renounced by Ext. R2. It is said by the petitioner that despite the de-recognition of the Ruler of Cochin and the abolition of his dignities and privileges, nomination of members to the Palace Board continued to be made as provided in the 1124 Proclamtion and in Act 16 of 1961. These nominations have been challenged as illegal and improper, and the status of the Board itself has been assailed as not having been legally or properly constituted. It was to keep abreast of this cyclical transformation of events that the Ordinance and the Act challenged in this writ petition were passed. But before we come to their provisions, one other connecting link should be noticed, i.e., the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976). This Act was meant to abolish the joint family system among Hindus in the State of Kerala. By definition under Section 2, ‘joint Hindu family’, includes a tarwad or thavazhi governed by the Marumakkathayam Act and various allied enactments. Section 3 abolished the right by birth in ancestral properties. Section 4 of the Act enacted:
“4. Joint tenancy to be replaced by tenancy in common.– (1) All members of an undivided Hindu family governed by the Mitakshara law holding any co-par enary 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 is holding his or her share separately as full owner thereof:
Provided that 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 become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed.
(2) All members of a joint Hindu family, other than an undivided Hindu family referred to in 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.”
Section 5 abolished the rule of pious obligation. Section 7 repealed the Acts mentioned in the Schedule. It is enough to notice that the 1124 Proclamation and Act 16 of 1961 are not in the Schedule of the Acts repealed. It is then that we come to Ordinance 1 of 1978 (Ext. R6) dated 6-1-1978 replaced by Act 15 of 1978 published in the Gazette dated 19-3-1978. It would be enough to refer to the provisions of the Act. The Act is referred to as ‘The Valiamma Tham-puran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Act, 1978, Act 15 of 1978. For the definition of ‘family’ in Section 2 (c) of Act 16 of 1961 a new definition is substituted, that family means the Marumakkathayam joint family, consisting of the four main thavazhies of the Ruler of the former State of Cochin within the meaning of Article 366 (22) of the Constitution. In Clause (d) the words ‘of the Maharaja of Cochin’ shall be and shall be deemed to have been omitted with effect from the 28th December, 1971 (the date of the 26th Constitution Amendment Act). For Section 3 of the 1961 Act, a new section has been inserted as follows:
“3. Partition of the Estate and the Palace Fund.-
(1) The seniormost male member of the family shall, within sixty days from the date of commencement of the Valiamma Thampuran Kovilakam Estate and the Palare Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Ordinance, 1978, direct the Board to effect partition of the Estate and the Palace Fund among all the members entitled to a share of the Estate and the Palace Fund under Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), and such direction shall be published by the Board in the Gazette.
(2) If the seniormost male member fails to direct the Board as required by Sub-section (1), the Board shall, on the expiry of the period specified in that
Sub-section, proceed to effect the partition of the Estate and the Palace Fund among the members referred to in Subsection (1), and the partition so effected shall be valid notwithstanding anything contained in Section 17 of the Proclamation.” Sections 4 and 5 of the 1961 Act have been omitted from the first day of December 1976. In Section 6, the expression ‘Maharaja of Cochin’ has been substituted by the ‘seniormost male member’ with effect from the 28th December, 1971. In Section 8 of the principal Act, the words ‘of the Maharaja’ in the marginal note have been omitted; and for the words ‘Maharaja of Cochin’, the words ‘former Ruler of Cochin’ have been substituted with effect from the 28th December 1971. In Clause (c) the words ‘and subsisting at the time of partition’ have been inserted at the end. Section 11 has been substituted by a new section. It is enough to notice that the concept of family has been changed to mean the Marumakkathayam family consisting of the four thavazhies of the Ruler of the former State of Cochin. The rest of the changes made in the Act are purely consequential. Section 11 deleted the provision in Section 22 of the 1124 Proclamation making the Estate and the Palace Fund impartible. Act 30 of 1976 has also undergone a consequential amendment. Section 8 of the same having been inserted and been deemed always to have been inserted by a new section, which is as follows:
“8. Proclamation IX of 1124 and Act 16 of 1961 to continue in force.– Notwithstanding anything contained in this Act or in any other law for the time being in force, Proclamation (IX of 1124) dated the 29th June, 1949, promulgated by the Maharaja of Cochin, as amended by the Valiamma Thampu-ran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Ordinance, 1978 and the Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) Act, 1961 (16 of 1961), as amended by the said Ordinance shall continue to be in force and shall apply to the Valiamma Thampuran Kovilakam Estate and the Palace Fund administered by the Board of Trustees appointed under Section 3 of the said Proclamation.”
By Section 9, the V. T. K. Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Ordinance 1 of 1978 is re-
pealed. These are the provisions of the Impugned Act.
6. The Act has been attacked as vio-lative of Article 14, on the ground that the Board has been granted unlimited and uncontrolled powers to effect a partition with no norms, or no principles or guidelines supplied, and has been left completely to its own resources in effecting a division. It was stated that the Board was at liberty to make an unequal division or partition, or even any inequitable division; and that the members affected, were without any remedy. These were based on the fact that the provisions in Section 3 of Act 16 of 1961 by which a partition is to be directed subject to the salutary safeguards of a request by the majority of major members, and the satisfaction of the Maharaja of Cochin that it is desirable in the interests of the family, have been substituted, making it obligatory on the senior member of the family within sixty days of the commencement of the Act to direct the Board to effect a partition; and on failure to do so, directing the Board to proceed to effect a partition. Stress was laid on the omission of Section 4 of Act 16 of 1961 providing for an equal share for each member, and for a share for a child in the womb. The deletion of these sections has been stressed to point to the inequitableness of the division and the unfairness of the partition sanctioned by the Act. The controlling power of the Maharaja in the matter of directing a partition and of even excluding certain assets from partition, (Section 5 of Act 16/61) which are presented as healthy fetters on the Board’s power of effecting a partition have also been taken away, giving a free hand to the Board to proceed with the work of partition in any way it liked. It was also argued that the provision in Section 6 of Act 16 of 1961 making the partition valid and binding on all the members of the family after execution of the deed of partition, coupled with the provision in Section 7 barring the right to institute a suit for partition, are further stringent provisions placing the Board’s action in effecting a partition outside the pale of challenge. It was pointed out that there was no justification for sta-tutorily entrusting the work of partition to the Palace Board; and mention was made that O.S. 29 of 1976 Sub-Court, Ernakulam, has already been filed and is pending, for partition of the
Palliyara Muthalpidy Estate. It is said that partition has been sought among nearly 730 members of the family. In the light of the same provisions already noted, the attack has also been made of violation of the fundamental rights to hold property under Article 19 (1) (f) of the Constitution. It was stated that the restrictions on the exercise of the right provided by the impugned provisions statutorily directing a partition through the intervention of the Palace Board amount to unreasonable restrictions and cannot be saved under Article 19 (5) of the Constitution. These, in substance, are the attacks made against the provisions of the Act.
7. It should be remembered that the rule of impartibility of the V.T.K. Estate and the Palace Fund proclaimed in Section 22 of the 1124 Proclamation was done away with by Section 3 of Act 16 of 1961. Partibility of the Estate and the Palace Fund must therefore be accepted as a settled fact. Partition was originally subject to the satisfaction of the Maharaja of Cochin and on the request of the majority of the major members. It was also subject to the Maharaja’s power to exclude such property from division and to treat it as the common property of the family to be placed under the management of the Board. No complaint can be made against the disappearance of these provisions. The rule of partibility of the Estate and the Fund which emerged in Section 3 of Act of 1961 was liberalised by Act 30 of 1976, the provisions of which we have already noticed. With that Act, the joint family system was abolished; and a tenancy in common was substituted by Section 4 of the Act for the system of joint family holding till then prevalent. Add to these, the disappearance of the status of the Maharaja itself by the Constitution 26th Amendment, In the face of these provisions, there is little force or merit in the complaint or the lament made about the disappearance of the provisions for the request of the majority of major members for partition or for the satisfaction of the Maharaja in regard to the partition, or about his powers to control, within limits, the partition to be effected. Equally unsubstantial is the complaint that no norms and guidelines have been supplied or indicated for the Board to proceed with its work of partition. The work of partition of the V.T.K. Estate and the
Palace Fund has been statutorily entrusted to a Board constituted in the fashion indicated. This does not and cannot mean that the Board is to effect the partition without any regard to the principles of the personal or the customary law of the parties. The obligation to observe the principles of justice and fair play, and to decide in accordance with law, are certainly there, as far as the Board is concerned. The bar of jurisdiction of the civil courts to entertain a suit for partition is nothing new. Special mode of division having been provided by the statute, the Civil Court’s jurisdiction is barred by Section 7 of Act 16 of 1961. The fact that a suit for partition has been filed in the Sub-Court, Cochin, in respect of the Palliyara Muthalpidy Estate is of no moment. The special character of that Estate has been taken note of by the 1124 Proclamation itself (see the definition of Estate), and by Section 5 (3) of the Hindu Succession Act. But we do not think that an attack against the inequitableness of the division effected by the Palace Board, on lawful and permissible grounds is in any way foreclosed. We do not regard Section 6 of the Act which makes a deed of partition if executed in the manner prescribed, valid and binding on all the members of the family as foreclosing such an attack, as counsel for the petitioners would contend. That section only makes a partition deed executed by the Maharaja of Cochin (seniormost male member) and the members of the Board and duly registered, binding on all the members of the family. This was only a device to avoid the cumbersome process of execution by all the 700 and odd members of the family, and registration again by them all. More than this, we do not think the section was intended to accomplish. We do not think again, that anything turns on the deletion of Sections 4 and 5 of Act 16 of 1961 or the substitution of Section 3 thereof by a new section. The substitution of Section 3 had to be made for two reasons: (1) in view of the Constitution 26th Amendment which abolished the dignities and privileges and even the status of the Rulers of the princely States; and (2) the provisions of Act 30 of 1976 which, we have already noticed, abolished the system of joint family holding and substituted a tenancy in common. Sections 4(1) and 4 (2) of Act 30 of 1976 provide that members of the
family hold the joint family properties as tenants in common and that each is entitled to a per capita share thereof. In the face of this provision, the deletion of Section 4 (1) of Act 16 of 1961 providing for an equal share to each member, is of little significance. The deletion of Section 4 (2) again, providing for rights of an unborn child appears to be of no moment. The law as to the rights of a child en ventra sa mere is well-settled, and we do not think the deletion of Section 4 (2) is material. The substitution of the senior male member of the family for the Maharaja and the other consequential provisions of the impugned Act have all been occasioned in view of the cyclic transformation of events which we have sketched, resulting in the abolition of the status and privileges of the Maharaja by the Constitution 26th Amendment.
8. The classification of the Cochin Royal family as a special class by itself, to be catered to by a special legislation, was attacked as violative of Article 14 of the Constitution. But both historically, and otherwise, the members of the Royal family of the Maharaja of Cochin stand on a special footing which would justify their separate treatment under a special statute. Even long prior to the Constitution, the 1124 Proclamation and the 1961 Act, were special statutes dealing exclusively with the V.T.K. Estate and Palace Fund. When separate treatment of these under special statutes had been established even prior to the Constitution, there is little force in the complaint of discrimination or violation of fundamental rights — all creatures of the Constitution (See Keshava Madhava Menon’s case (AIR 1951 SC 128)). As pointed out again, by the Supreme Court in Shri Govindlalji v. State of Rajasthan (AIR 1963 SC 1638) and Bira Kishore Deb v. State of Orissa (AIR 1964 SC 1501), with respect to the Rajasthan Nath Dwara Temple, and the Puri Jagannath Temple, the question for consideration is whether the particular institution or entity has any special characteristics which justify treatment under a special statute. Assuming the provisions of Article 14 to have application, the test of rational classification based on intelligible differentia stands satisfied in the case of the Cochin Royal family.
9. There is little merit in the com-plaint raised that the Board has been
granted the power to effect a partition even of properties other than the V.T.K. Estate and the Palace Fund. It was stated that properties relinquished by the Government under Ext. R5, are sought to be partitioned by the Palace Board. By Ext. R5 G.O.M.S. 101/76/PD dated 30-3-1976, the State Government referred to the inventory forwarded by the Government of India indicating the properties considered as belonging to the Maharaja of Cochin and which were to devolve on his successors. In consultation with the Government of India, the State Government declared the buildings mentioned in the list appended to the Government Order as belonging to the former Ruler of Cochin and as devolving on the members of the Ruling family. The buildings were to be administered by the Palace Administration Board for the benefit of the members. We do not think that in dealing with the properties covered by Ext. R5 G.O-, the Board would be arrogating to itself a j urisdiction which it did not possess. The properties covered by Ext. R5 are statedly the properties of the former Ruler of Cochin. The 1124 Proclamation denned ‘State’ as including any property owned in common by the Royal family.
10. We are unable to find any merit or force in the contentions urged by counsel for the petitioner. We rather fee! that the legislative measures were occasioned and called for as a result of the change in the concept of imparti-bility of the V.T.K. Estate and the Palace Fund and the abolition of the status of the Cochin Maharaja as a ruling prince and the dignities and privileges attaching to the same by the Constitution 26th Amendment. We dismiss this Original Petition with no order as to costs.
