{"id":5718,"date":"2009-02-26T00:00:00","date_gmt":"2009-02-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishnakumari-thampuran-vs-the-palace-administration-board-on-26-february-2009"},"modified":"2018-02-26T17:47:11","modified_gmt":"2018-02-26T12:17:11","slug":"krishnakumari-thampuran-vs-the-palace-administration-board-on-26-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishnakumari-thampuran-vs-the-palace-administration-board-on-26-february-2009","title":{"rendered":"Krishnakumari Thampuran vs The Palace Administration Board on 26 February, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Krishnakumari Thampuran vs The Palace Administration Board on 26 February, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 1907 of 2006(A)\n\n\n1. KRISHNAKUMARI THAMPURAN,\n                      ...  Petitioner\n2. SABU T.M., S\/O.KRISHNAKUMARI THAMPURAN,\n3. SALI T.M., S\/O.KRISHNAKUMARI THAMPURAN,\n\n                        Vs\n\n\n\n1. THE PALACE ADMINISTRATION BOARD,\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.CHANDRASEKHAR\n\n                For Respondent  :S.C FOR PALACE ADMN.BOARD\n\nThe Hon'ble the Acting Chief Justice MR.J.B.KOSHY\nThe Hon'ble MR. Justice V.GIRI\n\n Dated :26\/02\/2009\n\n O R D E R\n                  J.B. KOSHY, Ag.C.J. &\n                          V.GIRI, J.\n          -------------------------\n                  W.A.No.1907 of 2006\n          -------------------------\n       Dated this the 26th day of February, 2009.\n\n\n                       JUDGMENT\n<\/pre>\n
GIRI, J.\n<\/p>\n
         An issue arising from a claim for partition<\/p>\n
intractably pursued by a member of the erstwhile Cochin<\/p>\n
Royal Family in the first instance and thereafter by her two<\/p>\n
sons born out of her relationship with a person professing<\/p>\n
a different religion, has given rise to this litigation. No<\/p>\n
doubt, the issues have become more perplexing due to the<\/p>\n
peculiar nature of the property involved, firstly by the fact<\/p>\n
that the personal law applicable to the members of the<\/p>\n
erstwhile Cochin Royal Family was the Marumakkathayam<\/p>\n
Rules of inheritance;       secondly on account of the<\/p>\n
successive statutory interventions applicable to the system<\/p>\n
of Joint Hindu Family in the State as a whole, and<\/p>\n
sometimes applicable to the erstwhile Cochin Royal Family.<\/p>\n
We will recapitulate the bare essential facts necessary to<\/p>\n
understand the issues arising for consideration.<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                            :: 2 ::\n<\/p>\n<\/p>\n
         2.   The first appellant [now deceased], was a<\/p>\n
member of the erstwhile Cochin Royal Family. She married<\/p>\n
a Namboodiri and a male child was born in the wedlock.<\/p>\n
Later, during the lifetime of her husband and during the<\/p>\n
subsistence    of the     marriage,   she entered into a<\/p>\n
relationship with a Muslim and begot two children, viz.,<\/p>\n
appellants 2 and 3.\n<\/p>\n
         3. The claim, which is adjudicated in this appeal<\/p>\n
was one which was raised on behalf of appellants 2 and 3,<\/p>\n
who are the children of the first appellant, born to a<\/p>\n
Muslim.    The claim was pursued qua a share in the<\/p>\n
properties which belong to the erstwhile Cochin Royal<\/p>\n
Family. It may noted, at the outset, that the claim raised<\/p>\n
by the first appellant, now deceased, as regards her share<\/p>\n
in the erstwhile Joint Hindu Family properties was<\/p>\n
entertained and satisfied, though the first appellant earlier<\/p>\n
had expressed a dissatisfaction regarding the quantum of<\/p>\n
the share allotted to her in this regard. As noted by the<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                              :: 3 ::\n<\/p>\n
\nlearned single Judge, that claim was not pursued by the 1st<\/p>\n
appellant.\n<\/p>\n
          4. The statutes applicable to the properties in<\/p>\n
question regulating its division and succession are peculiar<\/p>\n
and it is necessary to refer to the law in question. Finding<\/p>\n
that the members in the erstwhile Cochin Royal Family, are<\/p>\n
quite numerous and also finding that the properties<\/p>\n
available were not, at the same time, getting enlarged, the<\/p>\n
then Ruler of Cochin Sri.Rama Varma promulgated a<\/p>\n
proclamation on IX\/1124, corresponding to 29th June,<\/p>\n
1949 in relation to the administration and management<\/p>\n
and conservation of the properties of the Valiamma<\/p>\n
Thampuram Kovilakom Estate and Palace Fund. Clause 2<\/p>\n
(bb)(c) and 3(1) of the said proclamation are relevant and<\/p>\n
are, therefore, extracted hereunder:<\/p>\n
       “2(bb)  ‘family; means the marumakkathayam joint
\n               family consisting of the four main travazhies
\n               of the Ruler, of the former state of Cochin
\n               within the meaning of Clause (22) of Article
\n               266 of the Constitution of India.”\n<\/p><\/blockquote>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 4 ::<\/p>\n
\n\n\n       3(1)    The Estate and the Palace Fund shall vest in\n               a  Board    to  be    called \"The    Palace\n<\/pre>\n
               Administration Board” and such Board shall
\n               administer the Estate and the Palace Fund
\n               subject   to   the   provisions  of    this
\n               Proclamation.”\n<\/p>\n
         5.    Clause 13 of the proclamation provided that<\/p>\n
the Board shall administer the properties and palace fund<\/p>\n
as carefully as an ordinary prudent man deals with his<\/p>\n
properties or fund. What is to be noted, insofar as the<\/p>\n
proclamation is concerned, is the vesting of the Estate and<\/p>\n
Palace Fund in the Palace Administration Board and the<\/p>\n
power available to the Board under Clause 21 thereof,<\/p>\n
extended to acquisition of movable and immovable<\/p>\n
properties   and   leasing   out    any    movable     property<\/p>\n
belonging to the estate.     No other alienation could be<\/p>\n
effected by the Board. No other member of the family was<\/p>\n
considered to have any other right in relation to the<\/p>\n
property.\n<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 5 ::\n<\/p>\n<\/p>\n
         6.   It has to be noticed, at this juncture, that the<\/p>\n
Hindu Succession Act, 1956, when it was enacted<\/p>\n
specifically provided vide Section 5(iii) thereof that the Act<\/p>\n
shall not apply to the Estate and Palace Fund administered<\/p>\n
by the Board.\n<\/p>\n
         7.   The next statutory intervention came in 1961<\/p>\n
by virtue of the Valiamma Thampuram Kovilakom Estate<\/p>\n
and Palace Fund Act {hereinafter referred to as the “VTK<\/p>\n
Act 16\/61”}.     Section 3 of the said Act enabled the<\/p>\n
Maharaja of Cochin to declare the decision to effect a<\/p>\n
partition under his supervision and control provided he is<\/p>\n
satisfied in that regard in the interest of the family. Under<\/p>\n
Section 4(1), each member shall be entitled to an equal<\/p>\n
share of the Estate and the Palace Fund and ‘Member’<\/p>\n
means a member of the family of the Maharaja of Cochin<\/p>\n
{vide Section 2(d) of the Act}. Section 6 of the Act provided<\/p>\n
for the execution and registration of the deed of partition<\/p>\n
on behalf of all the members by the Maharaja of Cochin<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 6 ::\n<\/p>\n
\nand the members of the Board. Section 7 expressly bars<\/p>\n
the power to institute a suit for partition of the estate and<\/p>\n
the palace fund.      Section 8 of the Act excluded the<\/p>\n
personal privileges of the Maharaja from the purview of<\/p>\n
the Act.    Section 5(3) of the Act which shielded the<\/p>\n
Kovilakam Estate and Palace Fund from the provisions of<\/p>\n
the Hindu Succession Act was directed to be omitted with<\/p>\n
effect from the execution of the partition deed under<\/p>\n
Section 6 of the Act.       The effect of 1961 Act was,<\/p>\n
therefore, to bring about a limited partibility of the<\/p>\n
Kovilakam Estate and Palace Fund.         The restriction on<\/p>\n
partibility was relatable to Section 3 of the Act, which still<\/p>\n
made partition dependent on a decision to be taken by the<\/p>\n
Maharaja of Cochin in that regard.\n<\/p>\n
          8.  In chronological order, the next statutory<\/p>\n
intervention came about by the Joint Hindu Family System<\/p>\n
(Abolition) Act, Act 30\/76 {hereinafter referred to as the<\/p>\n
“Abolition Act”}. Section 2(1) of the Abolition Act defined a<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                                :: 7 ::\n<\/p>\n
\n‘Joint Hindu Family’ as to include a ‘tarwad’ or ‘thavazhy’<\/p>\n
governed by the Cochin Marumakkathayam Act. Section 4<\/p>\n
(2) of the Abolition Act is relevant in this context and it<\/p>\n
reads as follows:\n<\/p>\n
       “4(2) All members of a Joint Hindu Family, other
\n             than an undivided Hindu Family referred to in
\n             sub-section(1),   holding  any   Joint  Family
\n             property on the day this Act comes into
\n             force,s hall, with effect from that day be
\n             deemed to hold it as tenants-in-common, as
\n             if a partition of such property per capita had
\n             taken place among all the members of the
\n             family living on the day aforesaid, whether
\n             such members were entitled to claim such
\n             partition or not under the law applicable to
\n             them, and as if each one of the members is
\n             holding his or her share separately as full
\n             owner thereof.”<\/p><\/blockquote>\n
         9.     The erstwhile Royal Family of Cochin would<\/p>\n
be a Joint Hindu Family, falling under Sub-Section (2) of<\/p>\n
Section 4 of the Abolition Act and therefore, the<\/p>\n
enforcement of the Act would have normally provided for a<\/p>\n
per capita division of the family properties amongst the<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                               :: 8 ::\n<\/p>\n
\nmembers of the family. But this statutory intervention was<\/p>\n
kept at bay by reason of Section 8 of the Abolition Act,<\/p>\n
which reads as follows:\n<\/p>\n
           “8.    Proclamation IX of 1124 and Act 16 of
\n     1961 to continue in force:–\n<\/p><\/blockquote>\n
     Notwithstanding anything containing in this Act or in
\n     any   other  law  for   the   time  being   in   force,
\n     Proclamation (IX of 1124) dated the 29th June, 1949,
\n     promulgated by the Maharaja of Cochin, as amended
\n     by the Valiamma Thampuran Kovilakam Estate and
\n     the Palace Fund (Partition) and the Kerala Joint Hindu
\n     Family System (Abolition) Amendment Act, 1978,
\n     and the Valiamma Thampuran Kovilakam Estate and
\n     the Palace Fund (Partition Act, 1961 (16 of 1961), as
\n     amended by the said Act, shall continue to be in
\n     force and shall apply to the Valiamma Thampuran
\n     Kovilakam Estate and the Palace Fund administered
\n     by the Board of Trustees appointed under Section 3
\n     of the said Proclamation.”\n<\/p><\/blockquote>\n
         10.    The Abolition Act was amended in 1978 by<\/p>\n
the amendment Act 15\/78. This provided for abolition of<\/p>\n
Sections 4 and 5 of the VTK Act, by way of an amendment<\/p>\n
of Section 3 to the following effect:\n<\/p><\/blockquote>\n
W.A.No.1907 of 2006<\/p>\n
                              :: 9 ::\n<\/p>\n<\/p>\n
         3.     Partition of the Estate and
\n                Palace Fund:- (1) The seniormost
\n                male member of the family shall,
\n                within sixty days from the date of
\n                commencement of the Valiamma
\n                Thampuran Kovilakam Estate and
\n                the Palace Fund (Partition) and the
\n                Kerala Joint Hindu Family System
\n                (Abolition) Amendment Ordinance,
\n                1978, direct the Board to effect
\n                partition of the State and the Palace
\n                Fund    among     all  the  members
\n                entitled to a share of the Estate and
\n                Palace Fund under S.4 of the Kerala
\n                Joint    Hindu       Family   System
\n                (Abolition) Act, 1975 (30 of 1976),
\n                and    such  a   direction  shall  be
\n                published   by   the Board    in  the
\n                Gazette.\n<\/p>\n
         (2)    If the seniormost male member fails
\n                to direct the Board as required by
\n                sub-section (1) the Board shall, on
\n                the expiry of the period specified int
\n                hat sub-section proceed to effect
\n                the partition of the Estate and the
\n                Palace Fund among the members
\n                referred to in sub-section (1), and
\n                the partition so effected shall be<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                              :: 10 ::\n<\/p>\n<\/p>\n
                 valid    notwithstanding anything\n                 contained in Section 17 of the\n                 Proclamation.\"\n\n<\/pre>\n
          11. Thus, the statutory frame work, as applicable<\/p>\n
and available with effect from the enforcement of the<\/p>\n
Amendment Act 15\/78 could, briefly, be encapsulated as<\/p>\n
follows:\n<\/p>\n
          12.   The properties of the erstwhile Royal Family<\/p>\n
of Cochin, which was earlier comprehended by the Cochin<\/p>\n
Marumakkathayam Act and wherein the members of the<\/p>\n
family had earlier followed the Marumakkathayam system<\/p>\n
of inheritance came to be vested in an Estate and Fund.<\/p>\n
Each member of the family was entitled to a share in the<\/p>\n
property;   Civil Court could not direct partition, as the<\/p>\n
jurisdiction of the civil court was ousted. The senior most<\/p>\n
male member of the family {as distinguished from the<\/p>\n
erstwhile Ruler} was obliged, within 60 days from the<\/p>\n
commencement of the Amendment Act 15\/78, to direct<\/p>\n
the Board to effect partition of the estate and the palace<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 11 ::\n<\/p>\n
\nfund among all the members entitled to a share in terms<\/p>\n
of Section 4 of the Abolition Act.\n<\/p>\n
         13.   In this context, it is apposite to refer to the<\/p>\n
two judgments of the Supreme Court which cleared the air<\/p>\n
of considerable confusion prevailing as to the law of<\/p>\n
succession applicable to the members of the family, the<\/p>\n
right available to the Board to effect partition, the nature<\/p>\n
of the powers to be exercised in that regard by the Board,<\/p>\n
whether there was a complete ouster of jurisdiction of the<\/p>\n
civil court to entertain claims of partition and most<\/p>\n
importantly the date, with reference to which a member of<\/p>\n
the family could claim a right to obtain a share in the<\/p>\n
properties in question. In Rama Varma v. State of Kerala<\/p>\n
{AIR 1979 SC 1918} , the Apex Court was essentially<\/p>\n
concerned with the constitutional validity of the provisions<\/p>\n
of the Act, 1961, juxtaposed with the provisions of the<\/p>\n
Abolition Act.    The court upheld the validity of the<\/p>\n
provisions of the Act and held that the Board had the right<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 12 ::\n<\/p>\n
\nto effect partition of the properties and the absence of an<\/p>\n
appeal against the Orders of the Board is of no<\/p>\n
consequence.      The court thought it appropriate to<\/p>\n
entertain a review preferred by the Board in relation to the<\/p>\n
aforementioned decision and it is, therefore, that by the<\/p>\n
decision    in     Palace    Administration      Board     v.<\/p>\n
R.V.B.Thampuran<\/a>      {AIR  1980      SC 1187},   the   court<\/p>\n
proceeded to hold that the definition of “Joint Hindu<\/p>\n
Family”, as occurring in Section 4(2) of the Abolition Act, is<\/p>\n
wide enough to include the Cochin Royal Family. It was<\/p>\n
further held that the rule of per capita division provided<\/p>\n
for in the 1976 Act was not contrary to the provisions of<\/p>\n
the 1961 Act. The court positively held that the division<\/p>\n
among the members of the erstwhile Royal Family is to be<\/p>\n
effected according to Section 4(2) of the Abolition Act.<\/p>\n
         14. Thus, the irrefutable position which came to<\/p>\n
prevail on the enforcement of Act 15\/78, which is the<\/p>\n
latest in the statutory intervention as considered and<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 13 ::\n<\/p>\n
\nespoused by the Supreme Court can be stated thus: That<\/p>\n
the properties of the erstwhile Royal Family of Cochin will<\/p>\n
have to be treated as properties belonging to the Joint<\/p>\n
Hindu Family as contemplated by Section 4(2) of the<\/p>\n
Abolition Act, Act 30\/76.     A member of the family, as<\/p>\n
obtaining on the date of enforcement of Act 15\/78 is<\/p>\n
entitled to a share in the said property, consequent upon a<\/p>\n
per capita division, by enforcement of Section 4(2) of the<\/p>\n
Abolition Act. The entitlement to a per capita share in the<\/p>\n
said property was to be determined with reference to the<\/p>\n
enforcement of Act 15\/78.         The Board, which was to<\/p>\n
administer the partition was obliged to act in accordance<\/p>\n
with the principles of natural justice and the power<\/p>\n
exercised by the Board was considered as quasi judicial in<\/p>\n
character.\n<\/p>\n
          15. With the above background in mind, we shall<\/p>\n
now proceed to consider the specific contentions taken up<\/p>\n
by the appellants.\n<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 14 ::\n<\/p>\n<\/p>\n
         16.   As stated above, the first appellant (now<\/p>\n
deceased) a member of the erstwhile Royal Family and a<\/p>\n
sharer in the properties of the VTK Estate and Palace Fund,<\/p>\n
during the subsistence of a valid marriage, contracted a<\/p>\n
relationship with a person professing another religion and<\/p>\n
begot appellants 2 and 3 on 6.3.1969 and 25.5.1970.<\/p>\n
Pursuant to the later decision of the Supreme Court in<\/p>\n
Palace Administration Board v. R.V.B.Thampuran<\/a> {AIR<\/p>\n
1980 SC 1187}, the Board finalised its proceedings for<\/p>\n
partition of the properties and the first appellant as a<\/p>\n
member of the Cochin Royal Family was allotted a share<\/p>\n
therein. But, it was only in 1995 that she had proceeded<\/p>\n
to question the quantum of the share so allotted to her, as<\/p>\n
is evident by Ext.P2 representation and thereafter she had<\/p>\n
approached this court in O.P.No.2305\/96 which was<\/p>\n
dismissed as per Ext.P4 judgment by a learned Judge of<\/p>\n
this court. In appeal, as evidenced by Ext.P5 judgment,<\/p>\n
the Division Bench permitted the first appellant\/petitioner<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                            :: 15 ::\n<\/p>\n
\nto  pursue    Ext.P2  representation    before  the  Palace<\/p>\n
Administration Board, which was directed to dispose it of ,<\/p>\n
within a time frame.         The Board considered the<\/p>\n
representation and rejected the same. Though a claim was<\/p>\n
raised in this regard in the writ petition, it was expressly<\/p>\n
given up before the learned single Judge.<\/p>\n
         17.   The crucial issue, which was considered by<\/p>\n
the learned single Judge and which was pursued before us<\/p>\n
relates to the claim made on behalf of appellants 2 and 3,<\/p>\n
the children born to the 1st appellant, in her relationship<\/p>\n
with the father of appellants 2 and 3. As stated above,<\/p>\n
Krishnakumari    Thampuran,     while   being   married   to<\/p>\n
Vamadevan Namboodiri, is stated to have contracted a<\/p>\n
marriage with a person professing Islam and begot two<\/p>\n
children, appellants 2 and 3.      The question is whether<\/p>\n
appellants 2 and 3 are entitled to a share in the properties<\/p>\n
vested in the VTK Estate and Palace Fund, which originally<\/p>\n
belonged to the Cochin Royal Family.\n<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                              :: 16 ::\n<\/p>\n<\/p>\n
           18.  The Board considered the contention and<\/p>\n
rejected the same as per Ext.P7 order on two grounds.<\/p>\n
Firstly, if appellants 2 and 3 are the illegitimate children of<\/p>\n
Krishnakumari Thampuran, a member of the family, then a<\/p>\n
limited right available to the children are those contained<\/p>\n
in Section 16(3) of the Hindu Marriage Act. This right, it<\/p>\n
was held, could be exercised only qua the individual<\/p>\n
property of the parent and cannot be used to pursue a<\/p>\n
claim in relation to a Joint Hindu Family property, like that<\/p>\n
of the VTK Estate and Palace Fund. Reliance in this regard<\/p>\n
was made on the decision of the Supreme Court in<\/p>\n
P.E.K.Kalyani Amma & others v. K.Devi and others<\/a> {AIR<\/p>\n
1996 SC 1963}. The learned Judge held that the rights<\/p>\n
available to illegitimate children under Section 16(3) of the<\/p>\n
Hindu Marriage Act is confined only to the individual<\/p>\n
properties of the parents and cannot be extended to<\/p>\n
coparcenary property.       Essentially, the learned single<\/p>\n
Judge, therefore, rejected the claim of appellants 2 and 3,<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 17 ::\n<\/p>\n
\non the aforementioned basis. The correctness of this view<\/p>\n
has been challenged by the appellants.<\/p>\n
         19. We heard counsel on both sides.\n<\/p>\n
         20.       Learned counsel for the appellants<\/p>\n
contended that the properties in question are not<\/p>\n
coparcenary in character and therefore, the view taken by<\/p>\n
the learned single Judge on the basis of Kalyani Amma’s<\/p>\n
case, in the context of Section 16(2) of the Hindu Marriage<\/p>\n
Act is not correct. It is contended that, to an extent, there<\/p>\n
is some similarity between coparcenary property and<\/p>\n
Marumakkathayam property, inasmuch as that, in both,<\/p>\n
succession is by survivorship. But, what is crucial, it is<\/p>\n
contended, insofar as Marumakkathayam properties are<\/p>\n
concerned, is that succession is traced through the female<\/p>\n
line of descent and since there is no dispute that<\/p>\n
appellants 2 and 3 are the children of the 1st appellant and<\/p>\n
it is not disputed that the first appellant is a member of<\/p>\n
the Royal Family, and a member of the tarwad, her<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                            :: 18 ::\n<\/p>\n
\noffspring, it is contended, per se, would also be members<\/p>\n
of the Marumakkathayam tarwad, to which the properties<\/p>\n
in question belong. How far is this contention sustainable?<\/p>\n
We have bestowed our anxious consideration on the<\/p>\n
different aspects emanating from this.        The statutory<\/p>\n
framework within which the rights of the members of the<\/p>\n
erstwhile Royal Family of Cochin was to be regulated has<\/p>\n
been referred to in extenso. The personal law applicable<\/p>\n
to the parties has also been referred to. We are of the view<\/p>\n
that, though not for the reasons which found favour with<\/p>\n
the learned single Judge, the claim pursued by appellants<\/p>\n
2 and 3 for a share in the properties currently vested in the<\/p>\n
VTK Estate and Palace Fund is clearly unsustainable and<\/p>\n
untenable.\n<\/p>\n
         21. There are one or two aspects relating to the<\/p>\n
applicability of the Hindu Marriage Act and Hindu<\/p>\n
Succession Act, that requires a clarification straight away.<\/p>\n
Hindu Marriage Act of 1955 is an Act to amend and codify<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                                :: 19 ::\n<\/p>\n
\nthe law relating to marriage among Hindus.              What is<\/p>\n
crucial, insofar as the present case is concerned, is Section<\/p>\n
2(1) of the Act, which is extracted hereunder:<\/p>\n
      “2(1)  This Act applies —\n<\/p><\/blockquote>\n
      (a)    to any person who is a Hindu by religion
\n             in any of its forms or developments,
\n             including a Virashaiva, a Lingayat or a
\n             follower of the Brahmo, Prarthana or Arya
\n             Samaj,\n<\/p><\/blockquote>\n
      (b)    to any person who is a Buddhist, Jaina or
\n             Sikh by religion, and\n<\/p><\/blockquote>\n
      (c)    to any other person domiciled in the
\n             territories to which this Act extends who
\n             is not a Muslim, Christian, Parsi or Jew by
\n             religion, unless it is proved that any such
\n             person would not have been governed by
\n             the Hindu law or by any custom or usage
\n             as part of that law in respect of any of
\n             the matters dealt with herein if this Act
\n             had not been passed.”<\/p><\/blockquote>\n
          22. The explanation is expansive to the extent it<\/p>\n
comprehends      Buddhists,      Sikhs   and     Jains. What is<\/p>\n
mentioned in Sub-clause (a) and (b) thereof, is thus any<\/p>\n
child, legitimate or illegitimate, both of whose parents are<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 20 ::\n<\/p>\n
\nHindus, would be a Hindu. Admittedly, only one among<\/p>\n
the parents of appellants 2 and 3 is a Hindu. The father of<\/p>\n
appellants 2 and 3 is admittedly a Muslim and obviously,<\/p>\n
by reason of Section 2(1)(c), the Act is not applicable to a<\/p>\n
Muslim, Christian or a Parsi or a Jew by religion. Secondly,<\/p>\n
as per Clause (b) coming under the explanation, any child<\/p>\n
even illegitimate, one of whose parents is a Hindu by<\/p>\n
religion, could also be a Hindu, provided he has been<\/p>\n
brought up a member of the tribe, community, group or<\/p>\n
family to which such parent, viz., the parent who is a<\/p>\n
Hindu belongs or belonged. Is it the case of appellants 2<\/p>\n
and 3, that though there was no valid marriage between<\/p>\n
first appellant and their father and therefore, they could be<\/p>\n
considered as illegitimate in that sense, nevertheless they<\/p>\n
are entitled to be treated as Hindus because their mother<\/p>\n
is a Hindu and they were brought up as members of the<\/p>\n
tribe, community, group or family to which their mother<\/p>\n
belonged? Significantly, at no point of time did appellants<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                              :: 21 ::\n<\/p>\n
\n2 and 3 put forward a case that they are Hindus by birth,<\/p>\n
or that they profess the Hindu Religion or that they are<\/p>\n
eligible or liable to be treated as Hindus by reason of the<\/p>\n
fact that their mother is a Hindu, though their father is a<\/p>\n
non-Hindu and that they were brought up as a member of<\/p>\n
the community or group to which their mother belonged.<\/p>\n
The original petition does not contain such an averment.<\/p>\n
The claim before the Board also did not contain such a<\/p>\n
claim. In fact, the case put forward by appellants 2 and 3<\/p>\n
is to the effect that on the marriage between the mother,<\/p>\n
the 1st appellant and their father, they have all been living<\/p>\n
separately, in rented premises.       They have no house of<\/p>\n
their own and at the time of filing the writ petition, they<\/p>\n
have been living with their wives and children. There were<\/p>\n
no suggestions put forward, at any point of time, that<\/p>\n
appellants 2 and 3 were brought up as members of the<\/p>\n
community or group to which their mother belonged. It is<\/p>\n
only appropriate to proceed on the premise that appellants<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 22 ::\n<\/p>\n
\n2 and 3 did not, any point of time, claim that they are<\/p>\n
Hindus.\n<\/p>\n
          23.       In  such    circumstances,   it  is  only<\/p>\n
consequential to hold that the provisions of the Hindu<\/p>\n
Marriage Act do not apply to appellants 2 and 3. Section<\/p>\n
16 of the Act also, therefore, will not confer any right in<\/p>\n
favour of appellants 2 and 3.\n<\/p>\n
          24. We are also of the view that the legitimacy of<\/p>\n
children out of void and voidable marriage, as contained in<\/p>\n
Section 16 of the Act is essentially in the context of Section<\/p>\n
11 of the Act, which provides for null and void marriages.<\/p>\n
Section 16(3) is, of course, an exception to Section 16(1) of<\/p>\n
the Act. But the application of Section 16(1) itself would<\/p>\n
be restricted to children born out of a marriage which are<\/p>\n
only void in the context of Section 11 of the Act. Since the<\/p>\n
nullity of a marriage is provided in Sections 5 of the Act, it<\/p>\n
is clear that Section 11 would have application only in the<\/p>\n
case of a marriage which may be solemnised between two<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 23 ::\n<\/p>\n
\nHindus, subject to the conditions mentioned therein viz.,<\/p>\n
neither parties, at the time of marriage have another living<\/p>\n
spouse, that the bridegroom has completed the age of 21<\/p>\n
and the bride has completed the age of 18 and that the<\/p>\n
parties are not within prohibited distance.        What is<\/p>\n
contemplated by Section 16 of the Act is a marriage, which<\/p>\n
is null and void by reason of the contravention of the<\/p>\n
provisions of Sections 5(i)(iii) and (iv). Neither Section 5<\/p>\n
nor Section 11 nor Section 16 would have application to<\/p>\n
the present case for the reason that the alleged marriage<\/p>\n
between the 1st appellant and the father of appellants 2<\/p>\n
and 3 is not a marriage between two ‘Hindus’. Section 5 of<\/p>\n
the Hindu Marriage Act cannot have any application<\/p>\n
whatsoever to the alleged marriage between the first<\/p>\n
appellant and a Non-Hindu. It follows that neither Section<\/p>\n
11 nor Section 16 of the Act can have any application<\/p>\n
whatsoever. In other words, the limited rights, otherwise<\/p>\n
made available to the illegitimate children under Section<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                            :: 24 ::\n<\/p>\n
\n16(1) of the Act would not enure in favour of appellants 2<\/p>\n
and 3.    For the same reason, Section 16(3) of the Act<\/p>\n
would also have no application to the case of appellants 2<\/p>\n
and 3.\n<\/p>\n
         25.    Similar is the situation obtaining qua the<\/p>\n
provisions of the Hindu Succession Act.         The clause<\/p>\n
relating to the applicability of Hindu Succession Act is<\/p>\n
similarly worded as that in the Hindu Marriage Act. The<\/p>\n
said provisions would also, therefore, not comprehend<\/p>\n
appellants 2 and 3.\n<\/p>\n
         26.    Does it, in any manner, bring about any<\/p>\n
improvement in the case of appellants 2 and 3? We are<\/p>\n
afraid, not.\n<\/p>\n
         27.   As stated above, appellants 2 and 3 are not<\/p>\n
Hindus and therefore, cannot claim to be members of the<\/p>\n
Marumakkathayam Joint Family, consisting of the four<\/p>\n
main thavazhies of the Ruler of the former State of Cochin,<\/p>\n
answering to the definition of ‘family’ in Clause 2(bb) of<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                             :: 25 ::\n<\/p>\n
\nProclamation 9\/1124. It is only reasonable to infer that the<\/p>\n
personal   law    applicable   to    the members     of   the<\/p>\n
Marumakkathayam Joint Family          comprising of the four<\/p>\n
main thavazhies in Cochin Royal Family was the ‘Cochin<\/p>\n
Marumakkathayam Act, Act 33\/1113 (Malayalam Era). The<\/p>\n
said Act was brought into force to reform, regulate and<\/p>\n
amend the law of marriage, inheritance, succession, family<\/p>\n
management, partition and adoption of communities<\/p>\n
following Marumakkathayam. ‘Tarwad’ is defined as to<\/p>\n
include   ‘a group of persons forming joint family with<\/p>\n
community       of     property       governed    by      the<\/p>\n
Marumakkathayam law of inheritance’. It is true that<\/p>\n
inheritance is traced in the female line. But, what will have<\/p>\n
to be stressed is that the line of descent, as contemplated<\/p>\n
by the Act, will have to flow through a legitimate line.<\/p>\n
What is equally irrefutable is that the said law was intended<\/p>\n
to encompass and govern members of a Joint family. The<\/p>\n
divisions of the property which came to be vested in the<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                            :: 26 ::\n<\/p>\n
\nVTK Estate and Palace Fund is to be effected under Section<\/p>\n
4(2) of the Abolition Act, as enjoined by Act 15\/78 and<\/p>\n
directed to be implemented by the Supreme Court in {AIR<\/p>\n
1980 SC 1187}. The legislative intendment discernible from<\/p>\n
the proclamation, 1961 Act. The Abolition Act, Act 30\/76<\/p>\n
followed by the Amendment Act 15\/78 is therefore, clear.<\/p>\n
It is intended to govern the members of Joint Hindu family<\/p>\n
and it would, therefore, be wholly illogical to assume that<\/p>\n
the legislature, by reason of the aforementioned statutory<\/p>\n
intervention expressly referring to a Joint Hindu Family<\/p>\n
intended to confer a benefit on a person, who does not<\/p>\n
profess the Hindu Religion, who is not born a Hindu and<\/p>\n
who was not brought up as a Hindu and to whom none of<\/p>\n
the other statutes expressly comprehending persons<\/p>\n
professing Hindu Religion (like the Hindu Marriage Act and<\/p>\n
Hindu Succession Act) apply. It, therefore, follows that the<\/p>\n
right to claim succession in the female line of descent,<\/p>\n
characteristic of Marumakkathayam property is intended to<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                            :: 27 ::\n<\/p>\n
\nconfer a benefit only on such persons, who otherwise can<\/p>\n
claim to have been born in such Marumakkathayam family,<\/p>\n
which is also a Joint Hindu Family with a peculiar line of<\/p>\n
succession.    The requirement which, therefore, cannot<\/p>\n
admit of any dilution to be encompassed by a law<\/p>\n
applicable to such Joint Hindu Family, as contemplated by<\/p>\n
Section 4(2) of the Act is that the person concerned must<\/p>\n
be born into the said Joint Hindu Family. In other words,<\/p>\n
he must be born a Hindu and therefore, by birth the<\/p>\n
personal law applicable to Hindus should also, ipso facto,<\/p>\n
be applicable to him or her, as the case may be.<\/p>\n
         28.     As stated above, it is not the case of<\/p>\n
appellants 2 and 3 that they were born Hindus or that they<\/p>\n
are otherwise Hindus by reason of having satisfied the<\/p>\n
parameters mentioned in Clause 2(a) of the Hindu<\/p>\n
Marriage Act.\n<\/p>\n
         29.      In these circumstances, we have no<\/p>\n
hesitation in coming to the conclusion that appellants 2<\/p>\n
W.A.No.1907 of 2006<\/p>\n
                              :: 28 ::\n<\/p>\n
\nand 3 have no right to claim any share in the property<\/p>\n
vested  in   the    VTK   Estate     and  Palace  Fund,   the<\/p>\n
administration of which is effected by the respondent and<\/p>\n
governed by the provisions of 1961 Act, as amended by<\/p>\n
Act 15\/78.\n<\/p>\n
         We find no merit in this appeal. Accordingly, the<\/p>\n
same is dismissed. There will be no order as to costs.<\/p>\n
                                               Sd\/-\n<\/p>\n
                                          (J.B. KOSHY)
\n                                        ACTING CHIEF JUSTICE<\/p>\n
                                                Sd\/-\n<\/p>\n
                                             (V.GIRI)
\n                                               JUDGE<\/p>\n
sk\/<\/p>\n
                 \/\/true copy\/\/<\/p>\n
                              P.S. to Judge<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Krishnakumari Thampuran vs The Palace Administration Board on 26 February, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 1907 of 2006(A) 1. KRISHNAKUMARI THAMPURAN, … Petitioner 2. SABU T.M., S\/O.KRISHNAKUMARI THAMPURAN, 3. SALI T.M., S\/O.KRISHNAKUMARI THAMPURAN, Vs 1. THE PALACE ADMINISTRATION BOARD, … Respondent For Petitioner :SRI.P.CHANDRASEKHAR For Respondent :S.C […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-5718","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKrishnakumari Thampuran vs The Palace Administration Board on 26 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/krishnakumari-thampuran-vs-the-palace-administration-board-on-26-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishnakumari Thampuran vs The Palace Administration Board on 26 February, 2009 - 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