KERALA HIGH COURT
CHELLAMMA KAMALAMMA AND ORS. VS NARAYANA PILLAI PRABHAKARAN NAIR ON 17 DECEMBER, 1992
Summarised Judgement(Scroll for Complete Judgement)
Question of Law:
The question referred to this larger Bench is one of great importance in respect of the rights of inheritance to females governed by the Marumakkathayam law in Kerala. The question is whether Section 17 of the Hindu Succession Act, 1956 which deals with succession to females continues to be in force and operative notwithstanding the commencement of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter referred to as 'the Joint Family Abolition Act, 1975'). A learned single Judge of this Court in Madhavi Amma v. Kalliani Amma, (1988) 2 Ker LT 964 and a Division Bench of this Court in Bhaskaran v. Kalliani, (1990) 2 Ker LT 749, have taken the view that the above-said Section 17 of the Hindu Succession Act, 1956 continues to be in force notwithstanding the Joint Family Abolition Act, 1975. It is the correctness of the said decisions that falls for consideration before us.
Facts of the Case:
The basic facts are not in dispute and are as follows: The property in question belongs to one Lakshmikutty Amma, who belonged to a Nair family and who died on 18-2-1982 leaving behind her, her husband (plaintiff) and her mother, one Chellamma. The dispute is in regard to the succession to the property held by Lakshmikutty Amma on the date of her death on 18-2-19.82. Her husband is claiming as legal heir under Section 15 of the Hindu Succession Act, 1956 on the basis that the effect of the Joint Family Abolition Act, 1975 was to make Section 17 of the Hindu Succession Act, 1956 inoperative.
Observation of Court:
The contest on the other side is raised by defendants 1 to 8 who are the legal heirs of Lakshmikutty Amma's mother, Chellamma, the said Chellamma having died on 8-9-1982 subsequent to Lakshmikutty Amma's death. Defendants 1 to 8 claim that their mother, Chellamma became the legal heir to the property of her daughter by virtue of Section 17 of the Hindu Succession Act, 1956. They contend that Section 17 continues to be operative even after the passing of the Joint Family Abolition Act, 1975. There is no dispute that the plaintiff married Lakshmikutty Amma in April, 1973 and the defendants 1 to 8 are the brothers and sisters of Lakshmikutty Amma and children of Chellamma. 9th defendant is the paternal uncle of late Lakshmikutty Amma.
The suit was filed for a declaration of title by the plaintiff over plaint A Schedule properties except in regard to the building in item 4 of plaint A Schedule and plaint B Schedule amounts deposited in Bank by Lakshmikutty Amma.
Judgement:
In the view that I have taken in regard to succession of Lakshmikutty Amma it is Section 15 of the Hindu Succession Act that is applicable and not Section 17. If that be so, the plaintiff who is her husband alone will be her heir as admittedly she died issueless. In that view of the matter, no interference is called for with the decree of the trial court and accordingly. I dismiss the appeal, but, in the circumstances, without any order as to costs.
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Complete Judgement
KERALA HIGH COURT
CHELLAMMA KAMALAMMA AND ORS. VS NARAYANA PILLAI PRABHAKARAN NAIR ON 17 DECEMBER, 1992
Equivalent citations: AIR 1993 Ker 146
Author: J Rao
Bench: M J Rao, K Nayar, T Ramakrishnan, P Krishnamoorthy, K B Marar
JUDGMENT Jagannadha Rao, C.J.
1. The question referred to this larger Bench is one of great importance in respect of the rights of inheritance to females governed by the Marumakkathayam law in Kerala. The question is whether Section 17 of the Hindu Succession Act, 1956 which deals with succession to females continues to be in force and operative notwithstanding the commencement of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter referred to as 'the Joint Family Abolition Act, 1975'). A learned single Judge of this Court in Madhavi Amma v. Kalliani Amma, (1988) 2 Ker LT 964 and a Division Bench of this Court in Bhaskaran v. Kalliani, (1990) 2 Ker LT 749, have taken the view that the above-said Section 17 of the Hindu Succession Act, 1956 continues to be in force notwithstanding the Joint Family Abolition Act, 1975. It is the correctness of the said decisions that falls for consideration before us.
2. The basic facts are not in dispute and are as follows: The property in question belongs to one Lakshmikutty Amma, who belonged to a Nair family and who died on 18-2-1982 leaving behind her, her husband (plaintiff) and her mother, one Chellamma. The dispute is in regard to the succession to the property held by Lakshmikutty Amma on the date of her death on 18-2-19.82. Her husband is claiming as legal heir under Section 15 of the Hindu Succession Act, 1956 on the basis that the effect of the Joint Family Abolition Act, 1975 was to make Section 17 of the Hindu Succession Act, 1956 inoperative. The contest on the other side is raised by defendants 1 to 8 who are the legal heirs of Lakshmikutty Amma's mother, Chellamma, the said Chellamma having died on 8-9-1982 subsequent to Lakshmikutty Amma's death. Defendants 1 to 8 claim that their mother, Chellamma became the legal heir to the property of her daughter by virtue of Section 17 of the Hindu Succession Act, 1956. They contend that Section 17 continues to be operative even after the passing of the Joint Family Abolition Act, 1975. There is no dispute that the plaintiff married Lakshmikutty Amma in April, 1973 and the defendants 1 to 8 are the brothers and sisters of Lakshmikutty Amma and children of Chellamma. 9th defendant is the paternal uncle of late Lakshmikutty Amma.
3. The suit was filed for a declaration of title by the plaintiff over plaint A Schedule properties except in regard to the building in item 4 of plaint A Schedule and plaint B Schedule amounts deposited in Bank by Lakshmikutty Amma. Admittedly, items 1, 2, 3 and 5 of plaint A Schedule belong to said Lakshmikutty Amma while plaint B Schedule were deposits in her name. Item 4 in the plaint A Schedule is a building in item 3 alleged to have been put up by defendants subsequent to the death of Lakshmikutty Amma while item 2 is a building in item 1 of plaint A Schedule. According to the plaintiff, items 1, 3 and 5 were acquired by deceased Lakshmikutty Amma with the funds supplied by him and the amounts mentioned in plaint B Schedule are deposited by him in the State Bank of India, Changanacherry branch in the name of the deceased and that on her death, defendants 1 to 8 have trespassed into the plaint A Schedule properties. It may be noted that Chellamma had filed OP 71 of 1982 before the Sub Court, Kottayam for grant of a succession certificate in respect of plaint B Schedule amounts. The plaintiff got himself impleaded therein and opposed the said application and the said O.P. was dismissed. Chellamma having subsequently died, defendants 1 to 8 got themselves impleaded as additional petitioners in the said application. While the O.P. was pending, the present suit had been filed by the plaintiff and it was because of the filing of the present suit that the O.P. was dismissed declaring that the said dismissal will be subject to the result of the suit. Though an appeal was filed before the Sub Court against the judgment in the O.P., that was also dismissed reserving the rights of the parties to be governed by the judgment in the suit. As already stated, the plaintiff relied on Section 15 of the Hindu Succession Act, 1956 while the defendants relied upon Section 17 of the Hindu Succession Act, 1956,
4. Defendants have filed a joint written statement contending that the plaint A Schedule items were the self-acquisition of late Lakshmikutty Amma and that plaintiff has not given any money for the acquisition of these properties.
5. The trial Court held that plaint A Schedule items 1, 2, 3 and 5 and the deposits shown in plaint B Schedule were the separate properties of Lakshmikutty Amma and that item 4 of plaint A Schedule was unauthorisedly put up in item 3 by the defendants after the death of Lakshmikutty Amma. The trial Court also held that Section 15 of the Hindu Succession Act, 1956 applied and that Section 17 was no longer applicable after the passing of the Joint Family Abolition Act, 1975 and that, therefore, Chellamma could not have claimed any right to the property on the death of her daughter Lakshmikutty Amma and that it was the plaintiff who could claim the property. It was, therefore, held that the plaintiff had title to plaint A Schedule items 1, 2, 3 and 5 and in regard to plaint B Schedule amounts as the legal heir of his wife Lakshmikutty Amma and a decree for possession was granted for plaint A and B Schedules. Defendants were directed to remove item 4 of plaint A Schedule within two months from the date of judgment and on failure the plaintiff was allowed to have it removed through the Execution Court at the expenses of the fourth defendant. It is against this judgment that the defendants have preferred this appeal.
6. In this appeal, it is not in dispute that plaint A Schedule properties (except item 4) belong to Lakshmikutty Amma. It is on that basis that we have to consider whether Section 15 would help the plaintiff-respondent or whether Section 17 would help the defendants-appellants.
7. Elaborate arguments have been addressed for the appellants by learned Counsel, Sri M. Krishnan Nair and by counsel for the respondents, Sri C. K. Sivasankara Panicker. As the matter is of considerable importance affecting all those who had been governed by the Marumakkathayam law, we requested other senior members of the Bar to address us if they so desired. Pursuant to our request, Sri Jagadeeshchandran Nair, Sri T. P. Kelu Nambiar and Sri S. Venkatasubramanya Iyer submitted elaborate arguments before us supporting the contention of the appellants that Section 17 continues to operate even after the passing of the Joint Family Abolition Act, 1975. We are thankful to them as also to counsel who appeared in the case for the very valuable assistance given to us.
8. It will be noticed that the Marumakkathayam system of law was applicable in the South-Western coast of India, in areas which have now become part of the State of Kerala and in some parts which are now within the State of Karnataka and the State of Tamil Nadu. What we decide in this case is meant to apply within the State of Kerala inasmuch as the Joint Family Abolition Act, 1975 extends its operation only within the State of Kerala. We shall now set out the contentions of learned Counsel on both sides.
9. It is the contention for the appellants-defendants that Section 17 of the Hindu Succession Act, 1956, which relates to the succession to a female dying after the commencement of the Hindu Succession Act, 1956 and who would have been governed by the Marumakkathayam law had the Hindu Succession Act, 1956 not been passed, continues to be governed by Section 17 and that the abolition of right by birth, right of survival ship, pious obligation etc. and the abolition of the Travancore Nair Act etc. by the Joint Family Abolition Act, 1975 has no bearing on Section 17 of the Hindu Succession Act. It is also agreed that the principle of Incorporation or Reference is not attracted to Section 17 of the Hindu Succession Act. That Section merely referes to the persons who are governed by the Marumakkathayam law on the date of the commencement of the Hindu Succession Act and once that group is identified, they will be governed by Section 17 of the Hindu Succession Act and the Joint Family Abolition Act, 1975 cannot indirectly make Section 17 inoperative. Their contention further is that the Statement of Objects and Reasons and the reports of the State Law Commission which preceded the enactment indicate clearly that the State Legislature while passing the Joint Family Abolition Act, 1975 did not intend to disturb the continued operation of Section 17 of the Hindu Succession Act.
10. On the other hand, it is contended by learned Counsel for the respondent-plaintiff that Section 17 of the Hindu Succession Act must be treated as an express amendment to the Travancore Nair Act and other State enactments dealing with succession and on the repeal of the Travancore Nair Act by Section 7(2) of the Joint Family Abolition Act, 1975, Section 17 gets expressly repealed even otherwise it gets impliedly repealed on the passing of the Joint Family Abolition Act, 1975. Alternatively, the principle of Incorporation or Reference applies to Section 17 of the Hindu Succession Act and that the Marumakkathayam law mentioned in Section 17 must be treated as changing from time to time depending upon whatever changes were brought in the said law by the State Legislature and that once the Joint Family Abolition Act, 1975 was passed, the said Marumakkathayam law came to be totally abolished both under Section 7(1) and Section 7(2) of the said Act, and therefore, Section became inoperative. It is also contended that the Hindu Succession Act and (for example) the Travancore Nair Act (insofar as it relates to succession) are in pari materia or are supplements to each other and, therefore, the effect of the repeal of the Travancore Nair Act (and other laws) has to be carried into Section 17 of the Hindu Succession Act. Once that is done, Section 17 becomes inoperative inasmuch as there is no person, after the passing of the Joint Family Abolition Act, 1975, governed by the Marumakkathayam law. That would make Section 17 of the Hindu Succession Act inoperative.
11. On the basis of the above contentions, the following points arise for consideration :
(1) What are the changes, relevant to the present case, made in the Marumakkathayam law from time to time by the Parliament or by the Kerala State Legislature?
(2) Whether the Kerala State Legislature, when it made a legislation under Entry 5 of List III to the Seventh Schedule of the Constitution of India by passing the Joint Family Abolition Act, 1975, intended to trench upon Section 17 of the Hindu Succession Act, 1956 which was a law passed by the Parliament under the same Entry in relation to testamentary and intestate matters?
(3) Whether Section 17 of the Hindu Succession Act, 1956 incorporates an amendment into the Travancore Nair Act and other Statutes and whether subsequent to the repeal of the Travancore Nair Act and other State laws by the State Legislature and by virtue of Section 7(2) of the Joint Family Abolition Act, 1975, Section 17 of the Hindu Succession Act stands repealed by virtue of the operation of Article 254(2) of the Constitution of India?
(4) Whether Section 17 of the Hindu Succession Act, 1956 becomes inoperative after the passing of the Joint Family Abolition Act, 1975 and if so, to what categories of persons it applies and to what categories of persons it does not apply?
(5) What is the position of those persons who were born on or after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force?
12. Point No. 1 :-- Under this point, we shall make a brief survey of the changes made in the Marumakkathayam system of inheritance and with particular reference to the facts of this case. We shall, however, extract the relevant statutory provisions while dealing with Point No. 2.
12A. It has to be noticed that the Marumakkathayam system of inheritance means the system of inheritance by descent from a common ancestress. It is called a matrilineal system of inheritance and is somewhat different from the patrilineal system of inheritance in the various branches of Hindu law. Various principles of succession were being applied both when a male died or a female died, in the South-Western parts of this country and these principles of succession were generally treated as Marumakkathayam system of inheritance. Before the States Reorganisation Act of 1956 was passed, several legislations had been made by the Provincial Legislatures both in the former State of Travancore and Cochin and former State of Madras to amend the pristline Marumakkathayam law not only in regard to succession but also in regard to marriage, divorce, joint family management etc. The said Statutes were, therefore, governing the law relating to testamentary and intestate succession among Nairs, Ezhavas and other communities. The Nairs were governed by the Travancore Nair Act, II of 1100 while the Ezhavas were governed by the Travancore Ezhava Act, III of 1100 and so on.
13. In 1955 and 1956 Parliament came forward with four important Statutes governing Hindus, namely, the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956. These Acts were passed after considerable debate over several years. So far as the Hindu Succession Act, 1956 was concerned, it contained certain provisions amending or modifying the existing law relating to testamentary and intestate successions which were till then governed by the Travancore Nair Act or the Travancore Ezhava Act etc. For the aforesaid purposes, the Hindu Succession Act introduced a definition of 'Marumakkathayam law' in Section 3(h) and modified the law of succession in certain respects in Sections 7, 17 and 30 of the said Act. While Section 7 related to the devolution in respect of the undivided interest of a person in the property of a tarwad, tavazhee, kutumba, kavaru or illom, Section 17 made a separate provision in relation to succession to property of males or females who would have been governed by the Marumakkathayam law if the Hindu Succession Act had not been passed. So far as succession to females, with which we are concerned, Section 17 stated that provisions of Section 15 relating to succession to a female will have to be applied in the manner mentioned in Section 17(ii). Section 30 of the Act contains an Explanation permitting interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru to be capable of being disposed of by male or female in accordance with the provisions of Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus.
14. Taking the example of the present case, it will be noticed that if Lakshmikutty Amma, on her death, was governed by the Hindu Succession Act, her mother would be her legal heir under Section 17(ii)(a) inasmuch as under that clause, the legal heirs of the properties of the females are only the sons and daughters and the mother. In the present case, since Lakshmikutty Amma did not have sons or daughters, the property would go under Section 17(ii)(a) to her mother, Chellamma. Succession to a female on her death under the Travancore Nair Act in a case where the deceased had no male or female children, would have been governed by Section 18 of the Travancore Nair Act. That Section stated that on the death of a Nair female leaving no lineal descendants surviving her, the whole of the self-acquired and separate property left undisposed of by her at her death shall devolve on her mother's tavazhee. Section 2(3) of the Travancore Nair Act had defined "Thavazhee of a female" as "a group of persons consisting of that female and her issue how-low-so-ever in the female line, or such of that group as are alive". In other words, before the passing of the Hindu Succession Act, 1956, if a Nair female died without leaving any male or female lineal descendants surviving her, her property would have gone to her mother and the mother's issues how-low-so-ever in the female line, or such of that group as are alive. This succession was altered under Section 17 of the Hindu Succession Act to the extent that instead of the property devolving on the mother's thavazhee, it would devolve on the mother alone.
15. We can notice that the other sub Sections of Section 17 brought about similar changes in the law of succession mentioned in the Travancore Nair Act and other laws in relation to succession to males or females who died after the commencement of the Hindu Succession Act and who were, before the said Act, governed by the Marumakkathayam law of succession as specified in the Travancore Nair Act. The question before us is whether upon the passing of the Joint Family Abolition Act, 1975, Section 17 of the Hindu Succession Act stood either repealed expressly or on account of repugnancy or on account of its becoming inoperative. We think that the aforesaid discussion of the general changes made in the Marumakkathayam system of inheritance will be sufficient to understand our discussion under Points 2 to 5. Point No. 1 is decided accordingly.
16. Point No. 2:-- As stated earlier, Lakshmikutty Amma, in the present case, belong to a Nair family. The dispute is in relation to succession to her property on her death on 18-2-1982. The question depends upon whether Section 17 of the Hindu Succession Act applies or whether the said Section has become repugnant on the passing of the Kerala Joint Hindu Family system (Abolition) Act, 1975, in view of Article. 254(2) of the Constitution of India. For the purpose of deciding that question, it is necessary to refer to the relevant statutory provisions contained in the Travancore Nair Act (Regulation II of 1100), the relevant provisions of the Hindu Succession Act, 1956 and the relevant provisions of the Kerala Joint Hindu Family System (Abolition) Act, 1975.
17. As stated in Point No, 1, at one point of time, the succession was governed by pristine Marumakkathayam law. Subsequently, the succession came to be governed by the Travancore Nair Act (Regulation II of 1100). That Act dealt with the following subjects : marriage and its dissolution (Chapter II), maintenance and guardianship (Chapter III), intestate succession (Chapter IV), testamentary succession (Chapter V), the tarwad and its management (Chapter VI), partition of tarwad property (Chapter VII) and impartible tarwads (Chapter VIII). Chapter I dealt with definitions. Section 1(2) stated that the Travancore Nair Act would apply to all Nairs domiciled in Travancore, and to such Nairs not so domiciled and non-Nairs, whether so domiciled or not, as have, or shall have, marital relation with Nairs domiciled in Travancore. Section 2(2) defines 'marumakkathayam' as the system of inheritance in which descent is traced in the female line. Chapter IV which dealt with intestate succession contained Sections 11 to 22. Intestate succession on the death of a Nair male was governed by Sections 11 to 16. Intestate succession on the death of a female member of a Nair family was governed by Sections 17 to 20. Sections 21 to 23 dealt with certain other connected matters relating to succession. Testamentary succession in Chapter V was governed by a single Section , that is Section 24. There was a saving provision in Section 44 in Chapter IX dealing with supplemental provisions, which reads as follows :
"44. Nothing in this Regulation shall --
(a) affect the existing rules of marumakkathayam law, custom or usage except to the extent hereinbefore expressly provided for; or ....."
From the provisions of the above Travancore Nair Act, it is clear that the said Act made provisions in regard to marriage and its dissolution, maintenance and guardianship, intestate succession, testamentary succession, tarwad and its management, partition of tarwad property and impartible tarwads. It also provided in Section 44 that the rule of Marumakkathayam law, custom, usage, except to the extent hereinbefore expressly provided for, would be saved.
18. After the commencement of the Constitution of India, provisions were made in the Concurrent List (List III) permitting Parliament or the State Legislature to make various laws in regard to intestate succession and also certain other matters. It is necessary to refer to Entry 5 of List III of the 7th Schedule to the Constitution of India, which reads as follows :
"Marriage and divorce; infants and minors; adoption; Wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law."
So far as "Wills, intestacy and succession" are concerned, Parliament passed the Hindu Succession Act, 1956. The said Act came into force with effect from 18-6-1956. Section 2 of the said Act stated that the said Act would apply to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, and to any person who is a Buddhist, Jains or Sikh by religion, and to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it was proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Section 3(h) defines 'Marumakkathayam law' as follows :
"3(h): "Marumakkathayam law" means the system of law applicable to persons --
(a) who if this Act had not been passed, would have been governed by the Madras Marumakkathayam Act, 1932 (Madras Act XXII of 1933); the Travancore Nair Act (II of 1100 K); the Tranvancore Ezhava Act (III of 1100 K); the Travancore Nanjined Vellala Act (VI of 1101 K); the Travancore Kshatriya Act (VII of 1108 K ); the Travancore Krishnanaka Marumakkathayee Act (VII of 1115 K); the Cochin Marumaskkatham Act (XXXIII of 1113 K); or the Cochin Nair Act (XXIX of 1113 K) with respect to the matters for which provision is made in this Act, or
(b) who belong to any community, the members of which are largely domiciled in the State of Travancore-Cochin or Madras, as it existed immediately before the 1st November, 1956 and who, if this Act had not been passed, would have been governed with respect to the matters for which provision is made in this Act by any system of inheritance in which descent is traced through the female line; but does not include the aliyasanthana law."
Section 4 of the Hindu Succession Act has an overriding effect of the said Act and reads as follows:
"4. Overriding effect of Act: (1) Save as otherwise expressly provided in this Act --
(a) 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 effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus so far as it is inconsistent with any of the provisions contained in this Act."
Section 7 deals with devolution of interest in the property of a tarwed, tavazhi, kavaru or illom. It is necessary to extract Section 7(1) which reads as follows ;
"7. Devolution of interest in the property of a tarwed, tavazhi, kutumba, kavaru or illom:--
(1) When a Hindu, to whom the marumakkathayam or nambudiri law would have applied if this act had not been passed, dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tawazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkatayam or nambudiri law.
Secrtion 15 of the Hindu Succession Act deals with general rules of succession in the case of female Hindus, and it reads as follows :
"15. General rules of succession in the case of female Hindu dying intestate shall devolve according to the rules set out in Section 16 --
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father;
(e) lastly, upon the heirs of the mother;
....."
Section 17 with which we are concerned now reads as follows.
"17. Special provisions respecting persons governed by marumakkathayam and aliyasantana laws. -- The provisions of Sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkathayam law or aliyasantana law if this Act had not been passed as if --
(i) for Sub-clauses (c) and (d) of Section 8, the following had been substituted, namely:--
'(c) thirdly, if there is no heir of the two classes then upon his relatives, whether agnates or cognates'.
(ii) for Clauses (a) to (e) of Sub- Section (i) of Section 15, the following had been substituted, namely:--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son of daughter and the mother;
(b) secondly, upon the father and the husband;
(c) thirdly, upon the heirs of the mother;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the husband;
(iii) Clause (a) of Sub- Section (2) of Section 15 had been omitted.
(iv) Section 23 had been omitted."
So far as testamentary succession is concerned, the same is governed by Section 30 of the Hindu Succession Act, which reads as follows :
"30. Testamentary succession. -- Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation. -- The interest of a male Hindu in a Mitakshara Coparcenary property or the interest of a member of a tarwad, tawazhi, Illom, Kutumba or kavaru in the property of the tarwad, tawazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act, or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Section ."
Therefore Parliament passed the Hindu Succession Act under the heading 'wills, intestacy, and succession' in Entry 5 of List III to the 7th Schedule to the Constitution of India, It made the above provisions so far as the marumakathayam law was concerned. In view of Article 254 (i) of the Constitution of India to the extent of provisions made in the Hindu Succession Act in relation to wills, intestacy and succession, the same shall necessarily override to that extent the corresponding provisions in relation to the said subject matter as contained in the Travancore Nair Act, etc. This is clear from Article 254 of the Constitution of India. Article 254 (1) reads as follows:
"Article 254:-- Inconsistency between laws made by parliament and laws made by the Legislatures of States -- (1) If any provision of a law made by Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void."
It will be noticed that the provisions relating to testamentary and intestate succession as contained in chapters IV and V of the Travancore Nair Act, in so far as they are repugnant to any provisions made in the Hindu Succession Act, 1956 would be void, to the extent of repugnancy. In fact, there is no dispute insofar as this aspect of the matter is concerned.
19. The dispute arises in relation to the position after the passing of the Joint Family Abolition Act, 1975 which came into force with effect from 1-12-1976.
The preamble of the said Act says that it is an Act to abolish the joint family system among Hindus in the State of Kerala. Section 1(2) extends the Act of the whole State of Kerala. Section 2 defines joint Hindu family as follows :
"'joint Hindu family' means any Hindu family with community of property and includes --
(1) a tarwad or thawazhi governed by the Madras Marumakkathayam Act, 1932, the Travancore Nayar Act, of 1100, the Travan-core Ezhava Act, 111 of 1100, the Nanjinad Vellala Act of 1101, the Travancore Kshatriya Act of 1108, the Travancore Krishnavaka Marumakkathayaee 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 Nambudiri Act 1958; and (4) an undivided Hindu family governed by the Mitakshara law."
Section 3 abolishes the right by birth in the joint family, while Section 4 replaces tenancy in common in respect of joint tenancy rights of the members of the undivided Hindu family with effect from the day of commencement of the Act. In other words, those who were holding property as undivided Hindu family as defined in Section 2(1) of the said Act, immediately on the passing of the Act become tenants in common, as if partition had taken place. Section 5 abrogated the rule of pious obligation Hindu son, and Section 6 dealt with the liability of members of joint Hindu family of debts contracted before the Act and stated that the said liability was not affected. Section 7 is a repeal provision and is important. It reads as follows:
"7. Repeal:-- (1). 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 effect with respect to any matter for which provision is made in this Act.
(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 hereby repealed."
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 filed 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 Hindu Succession Act and the Joint Family Abolition Act, 1975.
20. This is clear not only from the body of the provisions in the Joint Family Abolition Act, 1975 but is also made clear from the . Statement of Objects and Reasons.
It is stated as follows:
"Parliament has enacted the following Acts for the whole of India:
(i) The Hindu Marriage Act, 1955; (ii) The Hindu Succession Act, 1956;
(iii) The Hindu Minority ' Guardianship Act, 1956; and
(iv) The Hindu Adoption and Maintenance Act, 1956.
As regards matters for which provision has been made in the above Acts, the provisions therein prevail over those in the State enactments. The only topic that has not been dealt with in the above Acts is "Tarward and its management and partition"."
The Statement of Objects and Reasons also refers to two reports of the Kerala Law Commission. The first report of 1966 related to the changes proposed to be made in the Personal Laws of Hindu Marumakkathayees of Kerala while the second report of 1972 related to the changes proposed to be made in the Kerala Namboodiri Act and in the Mitakshara law. In paragraph 40 of the first report, it is stated as follows:
"40. Section 17 of the Hindu Succession Act, contains special provisions regarding succession among all those governed by Marumakkathayam and Aliyasanthana laws. Since the provision is applicable alike to all the Marumakkathayis and Aliyasanthanis there is no need to suggest any change to this provision now."
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. Point No. 2 is found accordingly.
21. Point No. 3:-- A contention was raised by learned counsel for the respondent-plaintiff 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. It was pointed out that the latter Act had received the assent of the President of India and, therefore, Article 254 (2) of the Constitution of India was attracted and the State legislation could repeal Section 17 of the Central legislation.
22. We are unable to agree with this contention. 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. We accordingly hold 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. Point No. 3 is decided accordingly.
23. Point No. 4:-- This is the central question. We have already held under Point No. 2 that Section 17 of the Hindu Succession Act, 1956 has not become repugnant to the provisions of the Joint Family Abolition Act, 1975 because the State Legislature, while passing the latter Act, did not intend to trench upon the former. We have also held under Point No. 3 that there is no express repeal of Section 17 of the Hindu Succession Act on account of the passing of the Joint Family Abolition Act, 1975. The only other question would, therefore, be whether on the passing of the Joint Family Abolition Act, 1975, Section 17 of the Hindu Succession Act, 1956 has become inoperative or otiose. The submission on behalf of the respondent, in this connection, is that for Section 17 of the Hindu Succession Act is to operate, the continued existence of the Marumakkathayam law is necessary so as to identify the females who would have been governed by that law before the passing of the Hindu Succession Act. It is contended that once Section 7(2) of the Joint Family Abolition Act, 1975, the Travancore Nair Act and other analogous State laws are repealed and when under Section 7(1), the residuary customary laws are repealed, there is no Marumakkathayam law in existence so that it can be said that the female who died after the commencement of the Joint Family Abolition Act, 1975 was governed by Marumakkathayam law. Reliance in this connection is made for the respondent on the principles relating to Incorporation and Reference of one Statute into another. Strong reliance is placed in this connection on two decisions of the Supreme Court in Ram Sarup v. Munshi (AIR 1963 SC 553, para 12) and Bajya v. Gopika Bai, AIR 1978 SC 793. Reference is also made by the respondent to the Exceptions referred to in State of Madhya Pradesh v. Narasimhan, AIR 1975 SC 1835. It is stated that the two earlier decisions are directly in point and that so far as the third case is concerned, the Exceptions mentioned in paragraph 16 of that judgment would apply inasmuch as Section 17 of the Hindu Succession Act is either supplemental to the provisions of the Travancore Nair Act and the other analogous laws in relation to intestate succession; or the two Statutes, namely, the Hindu Succession Act and the Travancore Nair Act and other analogous laws are at least in pari materia. The subsequent changes made to the Marumakkathayam law including its entire repeal by Sections 7(1) and 7(2) of the Joint Family Abolition Act, 1975 should be read into Section 17 of the Hindu Succession Act and if so read, there could be no female, after the commencement of the Joint Family Abolition Act, 1975 who could be said to be governed on the date of her death by the Marumakkathayam law. It is also argued for the respondent 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 Hindu Succession Act but who died on a date subsequent to the passing of the Joint Family Abolition Act, 1975 would also be in the same position. What matters in cases relating to succession is the date of death. On the date of death if a particular system of marumakkathayam law was not in existence, the person could not be said to be governed by that law. That is the contention.
24. On the other hand, it is submitted by the appellants 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 is, therefore, argued that the principle of Incorporation or Reference as mentioned in the above said three decisions of the Supreme Court cannot be applied. It is 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 the commencement of the Hindu Succession Act.
25. It will be noticed that when Parliament passed the Hindu Succession Act, it made certain inroads into the law of succession governing Hindus belonging to various schools of law. So far as females are concerned, it made certain provisions in Section 15 of the Hindu Succession Act, 1956. While doing so, the Parliament thought it fit to make a special provision for females who up to the date of passing of the Hindu Succession Act were governed by the marumakkathayam law, and this was done as per Section 17. The provisions of Section 17 would reveal that the law of succession as contained in the Kerala Statutes, such as those contained in Chapter IV of the Travacore Nair Act were altered. While the matrilineal system of succession is the main basis for the marumakkathayam system under the Travancore Nair Act or under other corresponding laws, Section 17 of the Hindu Succession Act cut down the rigour of that system of female line of succession, at the same time maintaining a limited part of the said system. For example in the case before us where the deceased female died without any children, but leaving her husband and her mother at the time of her death, her property would have gone under Section 18 of the Travancore Nair Act to the mother's tavazhi which includes the mother and the mother's issue how-low-so-ever in the female line or such of that group as are alive, while under Section I7(ii)(a) of the Hindu Succession Act, the property of the female would go to the mother of the deceased. Parliament, therefore, intended that that group of persons who would have been governed by the marumakkathayam law as on the date of commencement of the Hindu Succession Act, 1956 should be governed by Section 17. Those persons could be identified by virtue of the provisions of Section 3(h) of the Hindu Succession Act, which defined the marumakkathayam law as the system of law applicable to persons who, if the Hindu Succession Act had not been passed would have been governed by the Travancore Nair Act, etc., with respect to the matters for which provisions were made in the Hindu Succession Act.
26. For the purpose of understanding 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, we have to find out whether on the passing of the Joint Family Abolition Act, 1975, the marumakkathayam law -- both statutory and customary -- came to be totally repealed.
27. The question then is what is the effect of Section 7(1) and Section 7(2) of the Joint Family Abolition Act. The discussion can be split into three parts :
(A) Effect of Section 7(1).
(B) Effect of repugnancy under Article 254(1) when Section 17 was enacted.
(C) Effect of Section 7(2).
(A). So far as Section 7(1) is concerned, the words "Hindu Law" are used. In our view, the words "Hindu Law" are used in the same sense as they are used in Section 4(1)(a) of the Hindu Succession Act. In fact Section 7(1) of the Joint Family Abolition Act and Section 4(1)(a) of the Hindu Succession Act, 1956 are identical in words. The marumakkathayam law was contained in the Travancore Nair Act and other analogous statutes made by the Kerala Legislature, and there were provisions in the said statutes such as Section 44 of the Travancore Nair Act which saved the pristine Marumakkathayam law to the extent to which provisions were not made in the Travancore' Nair Act. By virtue of Section 7(1) of the Joint Family Abolition Act, 1975, there was a repeal of the residuary and customary principles of marumakkathayam law, if any, saved under Section 44 of the Travancore Nair Act. No doubt, Section 7(1) states that the repeal is to the extent provision is made in the Joint Family Abolition Act, 1975.
(B) So far as Chapter relating to intestate succession in the Travancore Nair Act and analogous Acts is concerned, to the extent provisions were made in the Hindu Succession Act, 1956, the said Sections became repugnant and void by virtue of the joint operation of Article 254(1) of the Constitution of India and Section 4(1)(b) of the Hindu Succession Act.
(C) Coming to the remaining statutory provisions of the Travancore Nair Act and analogous laws, they stood repealed by virtue of Section 7(2) of the Joint Family Abolition Act, 1975.
27A. In other words, by the combined effect of Article 254(1), Hindu Succession Act, 1956 and Section 7(2) of the Joint Family Abolition Act, 1975, the statutory laws mentioned in the Schedule to the Joint Family Abolition Act, 1975 stood repealed. So far as the pristine law which was not covered by those Acts is concerned, it stood repealed by Section 7(1) to the Extent provision is made in the Joint Family Abolition Act, 1975. Of course, once all this is gone, almost nothing is left under the pristine marumakkathayam law, or the customary and statutory on 1-12-1976. Therefore, learned counsel for the respondent is right to this extent, namely, that the entire marumakkathayam law stood repealed after passing of the Joint Family Abolition Act, 1975.
27B. A contention was raised that the word "Hindu Law" used in Section 7(1) is referrable to Hindu law other than the marumakkathayam and other laws and is meant to refer only to the Mitakshara law. We cannot accept this contention. We may here point out that the words 'Hindu law' in Section 7(1) have to be understood in a broad sense, having regard to Section 2 of the Hindu Succession Act, 1956, which dealt with the applicability of that Act to any person who is a Hindu by religion, etc. This has been pointed out by Gajendragadkar C.J. in Yagnapurushodasji v. Muldas, AIR 1966 SC 1119 at p. 1131 (paragraphs 40 to 42). It was there stated after referring to that four Acts passed under this Hindu Law in 1955 and 1956 that in those Acts the word 'Hindu' was used in a 'broad' and comprehensive sense'. The marumakkathayam law was considered by Sundara Iyer J. in Krishnan Nair v. Damodaran, AIR 1916 Mad 751 (FB) as a school of Hindu law. No doubt, Subba Rao J., as he then was, in Kochunni v. State of Madras and Kerala, AIR 1960 SC 1080, at 1099, paragraph 43, made an observation that the above statement has not been accepted by others. The learned Judge did not, however, categorically say that the observations of Sundara Iyer, J. were wrong. In any event, having regard to the broad and comprehensive meaning of the word 'Hindu' in the Hindu Succession Act, 1956, as pointed out by Gajendragadkar, C. J. in the case already referred to, it must be held that the Marumakkathayam law is a school of Hindu law. In fact, Section 7 of the Hindu Succession Act itself states as follows :
"any Hindu to whom the marumakkathayam or nambudiri law would have applied."
Further, the Joint Family Abolition Act, 1975 also states in its preamble that it is an Act to abolish the joint family system among Hindus in the State of Kerala. We therefore hold that the words 'Hindu law' in Section 7(1) are used in a broad and comprehensive sense, so as to attract the residuary marumakkathayam law referable to Section 44 of the Travancore Nair Act and other similar provisions of the Kerala Statutes and the said residuary Marumakkathayam law stood repealed by Section 7(1) of the Joint Family Abolition Act, 1975. So far as the statutory provisions relating to marumakkathayam law are concerned, such as the Travancore Nair Act, etc. they were repealed by Section 7(2) of the Joint Family Abolition Act, 1975. Therefore, the entire Marumakkathayam law stood repealed after the Joint Family Abolition Act, 1975 and no part of it can be said to be in existence thereafter. On this, we accept the contention for the respondent-plaintiff.
28. Once we, therefore, come to the conclusion that the Marumakkathayam law stood totally abolished on the commencement of the Joint Family Abolition Act, 1975 the question arises as to the meaning of the word in Section 17 "persons who would have been governed by the Marumakkathayam law, if this Act had not been passed". In order to be clear, we shall divide the persons who were governed by the Marumakkathayam law into five groups :
(i) those who were governed by the Marumakkathayam law and were living as on 18-6-1956 when the Hindu Succession Act, 1956 came into force and died before 1-12-1976 when the Joint Family Abolition Act, 1975 came into force,
(ii) those who were so governed by the Marumakkathayam law and living as on 18-6-1956 when the Hindu Succession Act, 1956 came into force and who died on or after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force,
(iii) those who were governed by the Marumakkathayam law, i.e., Travancore Nair Act etc. and were 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 Joint Family Abolition Act, 1975 came into force,
(iv) those who were governed by the Marumakkathayam law, i.e., Trvancore Nair Act etc. and were born on or after 18-6-1956 when the Hindu Succession Act, 1956 came into force but before 1-12-1976 and who died after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force, and
(v) those who were born into families which were once governed by Marumakkathayam law but were born on or after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force and who died later.
Though we are concerned with a case falling under category (ii), as the discussion of the legal principles is an integrated one, it has become necessary to deal with these five categories.
29. So far as category (i) and category (iii) are concerned, there is no dispute that Section 17 of the Hindu Succession Act applies. The dispute is only in relation to category (ii), category (iv) and category (v).
30. We shall deal with category (ii) and category (iv) in the ensuing discussion. So far as category (v) is concerned, we shall deal with it under Point No. 5.
31. We shall, therefore, take category (ii), i.e. persons who were governed by the Marumakkathayam system of law as on 18-6-1956 when the Hindu Succession Act, 1956 came into force and who died on or after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force; and category (iv), i.e., persons who were governed by the Marumakkathayam law, i.e., Travancore Nair Act etc. and were born on or after 18-6-1956 when the Hindu Succession Act, 1956 came into force (but before 1-12-1976) and who died after 1-12-1976. The thing that is common to these two categories is that 'the persons died after 1-12-1976'.
32. In our view, the words "persons would have been governed by the Marumakkathayam law if this Act had not been passed" are sufficient to identify the category (ii), the group of persons who were living on 18-6-1956 and were governed by the Travancore Nair Act and other Kerala laws and who died on or after 1-12-1976. It is also not difficult to identify the group (iv), the group of persons who were born on or after 18-6-1956, who were governed by the Travancore Nair Act and other Kerala laws, but before 1-12-1976 and died after 30-11-1976. All these persons are, in our view, identifiable for purposes of Section 17 of the Hindu Succession Act, 1956 and once they are so identified, the changes in the Marumakkathayam law, whether by way of amendment or repeal, cannot affect such identification. The continuance of the Travancore Nair Act and other Kerala laws has no bearing on their status as "persons who would have been governed by the Marumakkathayam law if this Act had not been passed."
33. It is true that in matters relating to succession, the date of death of the persons is the criterion and it is the law of succession as on that date that will apply. But this principle is not offended for Section 17 does not say that the Marumakkathayam law will apply for succession of males and females. On the other hand, Section 17 fixed up the devolution, i.e., the legal heirs of persons who "would have been governed by the Marumakkathayam law as if this Act had not been passed". Now, the persons who were so governed either on 18-6-1956 and who were so governed till 30-11-1976 are an identifiable group and their succession is fixed according to the mode prescribed in Section 17. Such persons once identified need not, in our view, continue to be governed by the Marumakkathayam law on their death. As already stated, Marumakkathayam law is referred to in Section 17 not to govern succession but merely to identify a group of persons, who would be governed by the devolution fixed in Section 17. Hence the general principle that the law applicable as on the date of death is relevant is not applicable.
34. It is, however, argued for the respondents that the principle of Incorporation or Reference applies to the facts of the case. Reliance was placed on the three decisions of the Supreme Court in Ram Sarup v. Munshi, AIR 1963 SC 553, in Bajya v. Gopikabai, AIR 1978 SC 793 and in State of M.P. v. M. V. Narasimhan, AIR 1975 SC 1835 to say that Section 17 does not apply once the Marumakkathayam law is repealed. It is argued that these decisions would lead to the inference that the Marumakkathayam law referred to in Section 17 of the Hindu Succession Act, 1956 would suffer a repeal on account of Section 7 of the Joint Family Abolition Act, 1975 and would cease to apply in relation to persons who died after the commencement of the Joint Family Abolition Act, 1975. We shall, therefore, deal with these three decisions.
35. Ram Sarup v. Munshi, AIR 1963 SC 553 was concerned with the Punjab Preemption Act, 1913. That Act in Section 14 gave certain rights of pre-emption in respect of agricultural land sold by a member of an 'agricultural tribe'. Agricultural tribe referred to in Section 14 was defined in Section 3(4) of the Punjab Pre-emption Act, 1913 as follows :
"member of an agricultural tribe and group of agricultural tribes shall have the meanings assigned to them respectively under the Punjab Alienation of Land Act, 1900."
The latter Act of 1900 was repealed by the Adaptation of Laws (Third Amendment) Order, 1951. The Supreme Court held that Section 14 became inoperative after the repeal of the Punjab Alienation of Land Act, 1900. It was further held that with the repeal of the Punjab Alienation of Land Act, 1900 the restriction imposed by Section 14 as regards the availability of the right of pre-emption to particular agricultural tribes would disappear. In other words, the effect of the removal of the limitation of Section 14 would only be that the pending words of Section 15 cease to operate. In such circumstances, Section 14 would lose all significance because the post-Constitution law does not recognise membership of tribes as conferring any special rights and consequently the elimination of Section 14 would leave Section 15 without the limitation originally imposed upon it. In our view, the said decision has no application to the facts of the case before us. Their Lordships held that being a member of an 'Agricultural tribe' was a necessary condition for a right of pre-emption on the date of the actual sale. It was nut a case where the members of the agricultural tribe were to be identified as on an earlier date. We, therefore, hold that the said decision of the Supreme Court is clearly distinguishable on facts.
36. The case in Bajya v. Gopikabai, AIR 1978 SC 793 may appear at the first blush to support the case of the respondents. But a closer examination would, in our opinion, show that the said decision is also clearly distinguishable. In that case succession to certain rights of tenure holders was covered by Section 151 of the M.P. Land Revenue Code, 1954 which came into force on 5-2-1955. The Section read as follows:
"Subject to his personal law, the interest of a tenure-holder shall on his death pass by inheritance, survivorship or bequest, as the case may be."
Subsequent to the said Code of 1954, the Hindu Succession Act, 1956 came into force. The appellant claimed that even though the widow, Surji died on 6-11-1956, subsequent to the commencement of the Hindu Succession Act, 1956, her husband's reversioners --(her husband having died in 1936) were entitled to succeed to the property. This was on the basis that the succession would be governed by personal law applicable as on 5-2-1955 when the M.P. Land Revenue Code came into force. On the other hand, it was contended for the respondents who were the sister's daughters of the last male member that if the provisions of the Hindu Succession Act applied, the widow of the last male member Surji had become the absolute owner of the property, and on her death in 1956, the legal heirs of the estate had to be identified on the basis of Section 15(1)(b) of the Hindu Succession Act, the property heaving been inherited by the husband of the widow. Thereafter, Section 16, Rule 3 would apply and the devolution would be not to the reversioners but to the husband's heirs under the Hindu Succession Act who would have been entitled to the husband's property, if the husband had died intestate immediately after the death of Surji. In other words, the appellant contended that the law of succession which was in force on 5-2-1955 became incorporated into the M.P. Land Revenue Code in Section 151. The Supreme Court affirmed the view of the High Court and held that the law that would be applicable was personal law as stated in Section 151 and that that would be the law as on the date of death of the widow Surji, namely, 6-11-1956, and not the law as on the date when the M.P. Land Revenue Code came into force. It is to be noted that the Supreme Court made reference to the Corpus Juris Secundum, Vol. 82, paragraph 370 at page 848 as follows :
"A well established exception to, or qualification of, the general rule exists where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof; in such case the reference will be held to include the law as it stands at the time it is sought to be applied with all the changes made from time to time at least as far as the changes are consistent with the purpose of the adopting statute."
It was pointed out by their Lordships that in view of the words 'personal law' used in Section 151 of the M.P. Land Revenue Code, 1954, the personal law as obtaining from time to time would be the law applicable and viewed in that light the personal law would be the law applicable to Surjit as on the date of her death.
37. In our opinion, the above said decision is clearly distinguishable. In Section 151 of the M.P. Land Revenue Code, 1954, the statute did not specifically fix a particular mode of devolution. On the other hand, it said that the devolution would be as per the personal law applicable to the parties. In such a case there could be no doubt that the personal law as on the date of death of a particular person would be the law applicable so far as the succession was concerned. It would not be the personal law on the date when Section 151 itself was created, under the M.P. Land Revenue Code, 1954. In the present case, Section 17 does not allow the mode of succession to be decided with reference to any personal law. The Section itself fixes the mode of devolution in the case of males and females. In fact, Section 17 mentions the persons on whom the property would devolve. The mode of devolution is not left indefinite to be governed by a personal law which would be changing from time to time. The limited scope of applicability of the personal law in Section 17 is in relation to fixing of the group of people who would be governed by Section 17 of the Hindu Succession Act. If, therefore, the mode of devolution is not referable to any personal law, which would change from time to time, and what all was done under Section 17 with reference to a personal law was to fix a group of persons, then the persons so identified would, in our view, be governed by Section 17 of the Hindu Succession Act, even if they died after the total repeal of the Marumakkathayam law. In our view, therefore, the above decision is clearly distinguishable. We are also not satisfied that there is a legislation by Incorporation or Reference involved in this case. In the aforesaid case, the Supreme Court observed (AIR 1978 SC 793, para 27) :
".....Broadly speaking, legislation by referential incorporation falls in two categories : First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of the latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference."
38. We then come to the decision in State of M.P. v. M. V. Narasimhan, AIR 1975 SC 1835. In that case an employee of the Heavy Electricals India Limited was sought to be proceeded against under the Prevention of Corruption Act, 1947. The question arose whether the definition of 'public servant' in the Indian Penal Code, 1860 which was engrafted into the Prevention of Corruption Act would take in the subsequent amendments to the definition of 'public servant' in the Indian Penal Code by virtue of the Criminal Law (Amendment) Act, 1958 and the Anti-Corruption Laws (Amendment) Act, 1964. These two amendment Acts had only amended the provisions of the Indian Penal Code. The Supreme Court dealt elaborately with the principle of incorporation by reference and adverted to the leading cases in Clarke v. Brad Laugh (1881) 8 QBD 63, Secretary of State for India in Council v. Hindustan Co-operative Society Ltd., AIR 1931 PC 149 and other cases. Their Lordships pointed out that in the case of incorporation of a particular provision in a latter Act with reference to an earlier Act, the incorporated provision becomes an independent provision of the latter Act and is not affected by any changes in the earlier Act. However, there are four exceptions to such a rule. Adverting to the exceptions, the Supreme Court observed in paragraph 16 as follows :
"On a consideration of these authorities, therefore, it seems that the following proposition emerges:
Where a subsequent Act incorporates provisions of a previous Act when the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment In the previous Act. This principle, however, will not apply in the following cases:
(a) Where the subsequent Act and the previous Act are supplemental to each other;
(b) Where the two Acts are in pari materia;
(c) Where the amendment in the previous Act if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and,
(d) Where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."
The Supreme Court while holding that the definition of 'public servant' in the Indian Penal Code became incorporated into the Prevention of Corruption Act, 1947, proceeded to consider whether, notwithstanding the said incorporation, the subsequent amendment to the definition of 'public servant' in Indian Penal Code should be applied to the definition of 'public servant' in the Prevention of Corruption Act, 1947. A contention was raised before their Lordships that inasmuch as the Prevention of Corruption Act and the Indian Penal Code were pari materia, therefore, amendments to the Indian Penal Code would automatically apply to the definition of 'public servant' in the Prevention of Corruption Act. This contention was rejected on the basis that the two statutes were not in pari materia. It was then contended that the provisions of the Prevention of Corruption Act were supplemental to the provisions of the Indian Penal Code, and on that basis the amendment to the provisions of the Indian Penal Code would affect the definition of 'public servant' in the Prevention of Corruption Act. This contention was accepted and the case was treated as one falling within the first of the above exceptions, namely, where the subsequent Act (Prevention of Corruption Act) and the previous Act (Indian Penal Code) were supplemental to each other.
39. The contention of the learned counsel for the respondents is that in the case before us the principle of incorporation applies and therefore it is necessary to test whether the exceptions laid down by the Supreme Court in the above said decision would apply to the facts of the case. It is pointed out that the Travancore Nair Act and the Marumakkathayam law was the previous law, and the subsequent legislation was the Hindu Succession Act. Once the Travancore Nair Act is repealed by Section 7(2) of the Joint Family Abolition Act, 1975, it is contended that Section 17 will cease to apply any longer as there is no person who can be said to be governed by the Marumakkathayam law as defined in Section 3(h) of the Hindu Succession Act. It is pointed out that the Travancore Nair Act in so far as succession is concerned and the Hindu Succession Act are either in pari materia to each other or supplemental to each other.
40. In our view, the question as to whether the case will fall within the exceptions to the rule of incorporation will depend upon whether the principle of incorporation itself is applicable to the facts of the case. If the principle of incorporation is in itself not applicable the facts of the case, then, in our view, there is no question of the present case falling within any of the exceptions mentioned in the decision in State of M.P. v. M.V. Narasimhan (AIR 1975 SC 1835) (supra).
41. In our view, the principle of Incorporation is not at all applicable to the facts of the case. Here, we are not, as stated earlier, concerned with a situation where the very mode of devolution is on the basis of the personal law of Marumakkathayam. If Section 17 stated that the mode of devolution would be according to the Marumakkathayam law, then it could be treated that the mode of succession was governed by the incorporated law. Then the question could arise whether the exceptions to the general principles of incorporation were attracted. In the present case, Section 17 does not lay down any principle of devolution generally applicable. On the other hand, the Section itself fixes the mode of devolution in a particular manner. The Section only deals with the question of identification of a group of persons, who would have been governed by the Marumakkathayam law as mentioned in Section 3(h) of the Hindu Succession Act. In our view, therefore, the principle of Incorporation itself does not apply to the facts of the case and, therefore, there is no question of considering whether any exception in relation to the said principle applies to the facts of this case. Therefore, State of M.P. v. Narasimhan (AIR 1975 SC 1835) (supra) is clearly not attracted to the facts of this case.
42. A contention was raised for the respondent that on the basis of the words "if this Act had not been passed" in Section 3(h) of Section 17 of the Hindu Succession Act, 1956, a legal fiction has been created and that fiction has to be carried to the logical limits irrespective of the consequences. It is contended that if such a fiction comes into play and the Hindu Succession Act is to be deemed as not passed for the purpose of identifying the group of persons, mentioned in Section 17, Section 4 of the Hindu Succession Act also goes out of the picture and consequently the Chapter relating to intestate succession in the Travancore Nair Act and other Statutes would have to be treated as in existence (notwithstanding their having been otherwise repugnant to the provisions of the Hindu Succession Act), and that Section 7(2) of the Joint Family Abolition Act, 1975 has to be applied. It is then stated that the Chapter relating to intestate succession in the Travancore Nair Act also would then stand repealed expressly by Section 7(2) of the Joint Family Abolition Act, 1975 and there would be no person who could be governed by the Travancore Nair Act or similar Acts for the purpose of being governed thereby. It is said that that would result in no person being governed by the Marumakkathayam law after Section 7(2) of the Joint Family Abolition Act, 1975 applied.
43. In our opinion, this contention cannot be accepted. It is well settled that even in cases where a fiction is created, the Court must bear in mind the purpose of which the fiction is created. We need not quote any authority for this proposition, (per James L. J. in Ex parte Walton, In re Levy (1881) 17 Ch D 746 at 756) (S. R. Das, J. in State of T. C. v. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC 333; Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661 at p. 680). In fact, in M. K. Baiakrishna Menon v. Asst. Controller of Estate Duty, AIR 1971 SC 2392 at p. 2395), it was held by the Supreme Court that the fiction created in Section 7(3) of the Hindu Succession Act, 1956 by the words "as if the sthanam property had been divided per capita immediately before the death of sthanamdar among himself and all the members of the family," was introduced for the purpose of determining the shares of the members of the family and heirs of the sthanamdar on his death but not for creating a division during the lifetime of the sthanamdar. It was held that the opening words of the Section made it clear that during his lifetime, he holds the entire sthanam and there is no factual division while he was living and that on the death of the sthanamdar, the entire sthanam property devolved on the members and heirs, and, therefore, the entire property was held liable to payment of estate duty and for that purpose, the fiction in Section 7(3) did not apply.
44. The fiction here in Section 17 of the Hindu Succession Act, 1956 is, in our view, limited to ascertaining the group of persons who would have been governed by the Marumakkathayam law, had the Hindu Succession Act, 1956 not been passed. Obviously, there would be people governed by the Marumakkathayam law till 1-12-1976, when that law statutory and customary was repealed. The fiction stops there and does not extend to create a vacuum. The argument that the fiction extends for all purposes, that if the Hindu Succession Act, 1956 was to be forgotten altogether including Section 4 thereof and then the Intestate Succession Chapter in (say) the Travancore Nair Act comes back into it and then gets repealed by Section 7(2) on 1-12-1976 and then there would be no Marumakkathayam law and no person governed by it, would lead us nowhere. If Section 17 becomes inoperative by such a wider fiction and the Chapter relating to intestate succession in (say) the Travancore Nair Act etc. also stand repealed by Section 7(2) of the Joint Family Abolition Act, 1975, then we would be left with a situation where there is no law of succession, because one ( Section 17) is treated as inoperative and the other (the succession law in Travancore Nair Act) has got repealed. That is why we say, the fiction should not be used in a wider manner but should be confined within its purpose, namely, to identify the group of persons, as stated above. We would, therefore, confine the fiction within the limits of its above said purpose.
45. In the result, as Lakshmikutty Amma was in existence as on 18-6-1956 when the Hindu Succession Act came into force and she belonged to an identified group of persons who were governed by the Marumakkthayam law as on 18-6-1956, the devolution upon her death will be governed by Section 17 of the Hindu Succession Act and the abolition of Marumakkathayam system by the Joint Family Abolition Act, 1975 does not have any bearing on the applicability of Section 17 of the Hindu Succession Act, 1956.
46. It is then argued for the respondent that when Section 7 of the Hindu Succession Act, 1956 has become inoperative on the passing of the Joint Family Abolition Act, 1975, in like manner. Section 17 must also be deemed to have become inoperative. We are unable to agree. The two Sections stand on a different footing. So far as Section 7 is concerned, it deals with succession to an undivided interest in a tarward, tavazhee, kutumba, kavaru or illom. It may be that on account of the abolition of right by birth in Section 3 and the immediate conversion of joint tenancy into tenants-in-common by Section 4, there is no undivided interest in the tarward, tavazhee, kutumba, kavaru or illom, so far as the Marumakkathayam law in Kerala State is concerned. That is because there is no longer any undivided interest in property in regard to which the law of succession stated in Section 7 can apply. In other words, the type of property to which it can apply is no longer there. But, that analogy, in our view, cannot apply to Section 17 of the Hindu Succession Act. Once the group of persons who would be governed by the Marumakkathayam law and who were living on 18-6-1956 when the Hindu Succession Act, 1956 came into force had been identified as on 18-6-1956, the fact that on the date of their death subsequent to the commencement of the Joint Family Abolition Act, 1975, the said Marumakkathayam law was not in force would not matter. A situation of a particular type of interest not existing as in the case of Section 7, does not arise here. We have, in fact, already given elaborate reasons as to why Section 17 continued to be in force in respect of persons in spite of the repeal of the Marumakkathayam law.
47. 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 the group (ii), that is the group of 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 18-6-1956 but before 1-12-1976 and who died on or after the commencement of the Joint Family Abolition Act, 1975. Point No. 4 is held accordingly.
48. Point No. 5:-- It may be asked whether it is necessary to consider the cases of persons born on or after 1-12-1976, on which day the Joint Family Abolition Act, 1975 came into force and who died later. We may state that this issue has necessarily fallen for decision for the following reason. As stated earlier, the entire discussion is based on a logic and a reason and is an integrated one. For the purpose of deciding the meaning of the words "persons who would have been governed by the Marumakkathayam law as if this Act has not been passed", we have to lay down who are within these words and who are outside of it.
49. 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.
50. We may finally summarise as follows :
(I) Section 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 died 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 (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) Section 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.
(3) We approve the decision of the learned single Judge in Madhavi Amma v. Kalliani Amma, (1988) 2 Ker LT 964 and of the Division Bench in Bhaskaran v. Kalliani (1990) 2 Ker LT 749. We overrule the observations to the contrary in Saraswathy Amma v. Radhamma, (1990) 2 Ker LT 183 : (AIR 1991 Kerala 86).
51. The case before us comes under principle 1(ii) referred to above and, therefore, succession to Lakshmikutty Amma will be as provided in Section 17 of the Hindu Succession Act, 1956. As she had no children, male or female, Section 17(ii)(a) applies and Chellamma, her mother succeeded to her properties and not her husband. Section 15 of the Hindu Succession Act, 1956 does not apply. On the death of Chellamma, the properties devolve on defendants 1 to 8.
52. In the result, the appeal is allowed and the suit is dismissed, but in the circumstances, there will be no costs.
Krishnamoorthy, J.
53. In spite of the persuaive arguments by counsel for the appellants and other counsel who advanced arguments in the case and even after seeing the judgment prepared by My Lord the Chief Justice, I do not feel myself persuaded to agree with the decree passed by My Lord the Chief Justice in the case. Facts of the case and contentions raised by parties are set out in his judgment and it is not necessary to repeat the same.
54. In the light of the contentions raised, the following points arise for consideration :
(1) Whether Section 17 of the Hindu Succession Act is repealed by the provisions contained in the Kerala Joint Hindu Family System (Abolition) Act.
(2) Whether the continued existence of the system of Marumakkathayam Law a necessary precondition for the operation of Section 17.
(3) Whether Section 17 of the Hindu Succession Act applied to persons who were governed by the respective enactments, irrespective of the fact whether they are governed by Marumakkathayam law or not on the date when succession opens.
(4) Whether the Marumakkathayam System of law survives after the coming into force of the Kerala Joint Hindu Family System (Abolition) Act.
(5) Whether Section 17 is operative after 1-12-1976 in the light of the findings on points 1 to 4.
55. Point No. 1 : In regard to intestate succession among marumakkathayees before the coming into force of the Hindu Succession Act they were governed by the respective State enactments, and Nairs of Travancore, with whom we are concerned in this case, were governed by the Travancore Nair Act. Section 4(1)(a) of the Hindu Succession Act provides that the provisions contained in the Act will have overriding effect over 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 the Act. Clause (b) provides that any other law in force immediately before the commencement of the Hindu Succession Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provision contained in the Hindu Succession Act. From the above Section it is clear that the provisions contained in the Travancore Nair Act in regard to intestate succession were given a go-by and were superseded by the provisions contained in the Hindu Succession Act. So far as marumakkathayees are concerned, a special provision was enacted in the Hindu Succession Act, namely Section 17 which provides for intestate succession of both male and female marumakkathayees. It is thus a case of repeal of the Travancore Nair Act in so far as it related to intestate succession and re-enactment of the law. In that view of the matter, it is not possible to agree with the contention of counsel for the respondent-plaintiff that Hindu Succession Act is only an amending Act of the Travancore Nair Act or the other State enactments in regard to the law of intestate succession, but an independent enactment providing for intestate succession among the Hindus including marumakkathayees. The repeal of the Travancore Nair Act or other State enactments by Section 7 of the Kerala Joint Hindu Family System (Abolition) Act will not by itself affect the operation of Section 17 of the Hindu Succession Act. Moreover, the Kerala Joint Hindu Family System (Abolition) Act is not intended to touch the topic of succession and in that view of the matter also it has to be held that Section 17 cannot be said to be repealed by the provisions contained in the Joint Hindu Family System (Abolition) Act. I accordingly hold that Section 17 of the Hindu Succession Act is not repealed by the provisions contained in the Kerala Joint Hindu Family System (Abolition) Act. But the question whether Section 17 has become inoperative by virtue of the aforesaid Act is a different question which will be considered in the subsequent part of this judgment.
56. Points 2 and 3 : These two points can be considered together. The question to be considered is as to whether Section 17 of the Hindu Succession Act can have any operation after the coming into force of the Joint Hindu Family System (Abolition) Act, 1975. A large population of Kerala belonging to certain communities were following a system of law called 'Marumakkathayam law the characteristic feature of which is that the descent is traced in the female line unlike the ordinary Hindu Mitakshara law. That system of law-was a body of customs and usages which received judicial recognition. The joint family is called a tarwad. The customary Marumakkathayam law has been materially altered by Statutes in Malabar (which was part of Madras State before 1-11-1956), in Travancore and in Cochin the three component parts of the present Kerala State. Most of the enactments contain provisions regarding marriage and its dissolution, maintenance and guardianship, intestate succession, testamentary succession and tarwad and its management and partition. In pursuance to the directive principles contained in Article 44 of the Constitution of India, Parliament passed the following four enactments applicable for the whole of India :
1. The Hindu Marriage Act, 1955
2. The Hindu Succession Act, 1956
3. The Hindu Minority and Guardianship Act, 1956
4. The Hindu Adoptions and Maintenance Act, 1956.
These Acts apply to all Hindus including the Marumakkathayees of Kerala and the Central Acts have overriding effect over the State enactments as regards the matters provided for by the Central Acts ( Section 4 of the Acts mentioned as items 1, 2 and 4 and Section 5 of item 3). In this case we are concerned with Hindu Succession Act alone and so it is necessary to consider the provisions therein with special reference to marumakkathayees and to the extent it is necessary for this case. The Act is a codifying Act dealing with in testate succession among Hindus throughout India. Section 4 of the Hindu Succession Act is to the following effect:--
"4. (1) Save as otherwise expressly provided in this Act,--
(a) 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 effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."
Section 6 of the Hindu Succession Act provides for devolution of interest in coparcenary property. General rules of succession in the case of males are provided for in Section 8. Sections 9 and 10 provide for the order of succession among heirs in the Schedule and the distribution of property among heirs in class I of the Schedule. Section 15 of the Act contains the general rules of succession in the case of female Hindus and it reads :--
"15. (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son, or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in Sub- Section (1),--
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in Sub- Section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub Section (1) in the order specified therein, but upon the heirs of the husband."
Section 16 of the Act provides for the order of succession and manner of distribution among heirs of a female Hindu.
57. In the matter of devolution of the interest of a Hindu to whom the Marumakkathayara law would have applied if the Hindu Succession Act is not passed in the property of a tarwad, and in regard to succession of persons (both male and female) who would have been governed by the Marumakkathayam law if the Hindu Succession Act had not been passed, special provision is made in the Act the former in Section 7(1) and the latter in Section 17. Those Sections read as follows :--
"7(1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkathayam or nambudri law."
"17. The provisions of Sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if--
(i) for Sub-clauses (c) and (d) of Section 8, the following had been substituted, namely:-
"(c) thirdly, if there is no heir of any of the two classes, then upon his relatives, whether agnates or cognates";
(ii) for Clauses (a) to (e) of Sub-section (1) of Section 15, the following had been substituted, namely:--
"(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the mother;
(b) secondly, upon the father and the husband;
(c) thirdly, upon the heirs of the mother;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the husband";
(iii) Clause (a) of Sub-section (2) of Section 15 had been omitted;
(iv) Section 23 had been omitted."
58. In order to understand the applicability and scope of these two Sections, it is also necessary to note the definition of "Marumakkattayam law" contained in Section 3(i)(h) of the Hindu Succession Act to the following effect:
"3(1) In this Act, unless the context otherwise requires,--
(h) "marumakkattayam law" means the system of law applicable to persons -
(a) who, if this Act had not been passed, would have been governed by the Madras Marumakkattayam Act, 1932; the Travancore Nayar Act; the Travancore Ezhava Act; the Travancore Nanjinad Vellala Act; the Travancore Kshatriya Act; the Travancore Krishnanvaka Marumakkathayee Act; the Cochin Marumakkathayam Act; or the Cochin Nayar Act with respect to the matters for which provision is made in this Act; or
(b) who belong to any community, the members of which are largely domiciled in the State of Travancore-Cochin or Madras as it existed immediately before the 1st November, 1956, and who, if this Act had not been passed, would have been governed with respect to the matters for which provision is made in this Act by any system of inheritance in which descent is traced through the female line but does not include the aliyasantana law;"
(In this judgment the enactments mentioned in the above Section will hereinafter be referred to as State enactments).
59. Thus from the above provisions it is clear that intestate succession of Hindus is governed by Sections 8 and 15 of the Act. Section 17 is a special provision In regard to succession among marumakkathayees and in effect it operates as aproviso to Sections 8, 10 and 15.
60. In 1976 the Kerala Legislature enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976). The Act received the assent of the President and came into force on 1-12-1976. The Act abolished the entire joint family system among Hindus governed by Mitakshara law as also marumakkathayees governed by the various State enactments. (See definition of 'joint Hindu family' in Section 2). By Section 3 right by birth which is inherent in every member of a joint family under Hindu law and every member of tarwad following Marumakkathayam law was abolished and by Section 4 joint tenancy was abolished and instead the members of a coparcenary or tarwad holding joint family property on the date of coming into force of the Act were made tenants-in-common from that day holding his or her share separate as full owner. Section 5 has done away with the rule of pious obligation of a Hindu son, with certain exceptions and Section 6 saved the liability of members of joint family for the debts binding on it. Section 7 is the repealing Section which has a bearing on the case and it is advantageous to reproduce the same :--
"7. Repeal.-- (1) 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 effect with respect to any matter for which provision is made in this Act.
(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 hereby repealed."
(The Schedule includes all the State enactments mentioned in Section 3(h) of the Hindu Succession Act.)
61. The question to be considered is as to whether for the application of the special provision contained in Section 17 of the Hindu Succession Act it is necessary that the intestate should be a person governed by the 'Marumakkathayam law' on the date of his or her death or is it sufficient if he or she was a marumakkathayee as on the date of the commencement of the Hindu Succession Act in 1956. 'Marumakathayam law' is defined in Section 3(1)(h) of the Hindu Succession Act as a system of law applicable to persons who, if the Hindu Succession Act had not been passed, would have been governed by the respective State enactments with respect to matters provided in the Act. So also, the special provision contained in Section 17 applies to persons who would have been governed by the Marumakkathayam law if the Hindu Succession Act had not been passed. So it is clear that for finding out the persons referred to in Section 3(1)(h) as also in Section 17 it has to be assumed that Hindu Succession Act had not been passed. So we have to proceed on the basis that Section 4 of the Hindu Succession Act is also not in force and in that view the words 'with respect to the matters for which provision is made in this Act' occurring in Section 3(1)(h) has not much significance in the context. In order to identify the persons who would have been governed by Marumakkathayam law, the provisions of the State enactments have to be looked into and the above law is defined as the system of law applicable to such persons. After identifying such persons when we come to Section 17, it can be seen that the said provision apply to persons who would have been governed by the Marumakkathayam law if the Hindu Succession Act is not passed. Section 17 of the Act is applicable to a particular set of persons following a particular system of law, namely 'Marumakkathayam law' or 'Aliasantana law'. The words 'would have been governed by the Marumakkathayam law' are used because for identifying the persons we have to assume that the Hindu Succession Act is not passed and not that it is sufficient that such persons were governed by Marumakkathayam law at any anterior time.
62. In this connection it is apposite to quote the observations of the Supreme Court in Bajya v. Gopikabai, AIR 1978 SC 793 in regard to legislation by referential incorporation :
"27. Broadly speaking, legislation by referential incorporation falls in two categories First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus :
"A statute which refers to the law of a subject generaly adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted." (Vide, Sutherland's Statutory Construction, Third Edition, Article 520.8, p. 5208).
Corpus Juris Secundum also enunciates the same principle in these terms :
".... Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof......the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute."
63. In Section 17 of the Hindu Succession Act the reference is to a general law on the subject viz. 'Marumakkathayam law' and not to any particular statute. Any changes made in that general law from time to time have to be taken note of and the law as it stands on the date when it is sought to be applied has to be adopted. It is elementary and fundamental that a provision like Section 17 of the Hindu Succession Act regarding succession shall have application only on the death of a person and not before. If that be so, the changes made in the Marumakkathayam law by any other statute till the date of death of a person have to be taken note of and Section 17 applied accordingly. Section 17 of the Hindu Succession Act applies to persons governed by Marumakkathayam law and if on the date of death of a person that law is completely abrogated, Section 17 can have no application, for he or she is not a person governed by Marumakkathayam law on the date of his or her death.
64. In Ram Sarup v. Munshi, AIR 1963 SC 553 the question arose as to the effect of the repeal of the Punjab Alienation of Land Act, 1900 on Section 14 and the definition of agricultural tribe in Section 3(4) of the Punjab Preemption Act 1 of 1913 which was as follows :
"member of an agricultural tribe and group of agricultural tribes shall have the meanings assigned to them respectively under the Punjab Alienation of Land Act, 1900."
Section 14 of the Pre-emption Act is to the following effect:
"14. No person other than a person who was at the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor shall have a right of pre-emption in respect of agricultural land sold by a member of an agricultural tribe."
It was held (AIR 1963 SC 553, para 12):
"With the repeal of the Punjab Alienation of Land Act, 1900 it is manifest that Section 14 would lose all significance, but this does not help, in any manner, the contentions urged by learned counsel for the appellant. It would be seen that Section 14 is restrictive, in that in the case of the alienations by persons referred to in that section the right of pre-emption is conferred upon a limited group. With the repeal of the Punjab Alienation of Land Act, 1900 the restriction imposed by Section 14 as regards the availability of the right of pre-emption to particular agricultural tribes would disappear."
In the light of the above decision, when the State enactments mentioned in Section 3(1)(h) of the Hindu Succession Act are repealed in 1976 by the Kerala Joint Hindu Family System (Abolition) Act, the Section loses all its significance and it is not possible to identify the persons to whom the Marumak-kahayam law would have been applied. Moreover, the State enactments and the Hindu Sucession Act are supplemental to each other and are in pari materia and the repeal of the former will affect the latter (See State of M.P. v. M.V. Narasimhan, AIR 1975 SC 1835).
65. The learned Chief Justice has taken the view that if Marumakkathayam law has ceased to be in force from 1-12-1976, Section 17 of the Hindu Succession Act can have no application to persons who were born after that date, for they were never governed by Marumakkathayam Act. I am in complete agreement with that view. If it cannot apply to such persons, I am unable to find any reason how it can apply to a person who died after 1-12-1976, though born before that date, for the applicability of Section 17 could arise only on death.
66. In Madhavi Amma v. Kalliani Amma, (1988) 2 Ker LT 964 a learned single Judge of this Court considering the very same question held as follows :
"Reference to Marumakkathayam and Aliyasantana laws in Section 17 therefore is only to clarify the position that these special provisions are applicable only to persons, who at the time of the coming into force of the Succession Act, were governed by the Maru-makkahayam law or Aliyasantana law as the case may be."
In Bhaskaran v. Kalliani, (1990) 2 Ker LT 749, a Division Bench of this Court (in which the judgment was delivered by one of us, Ramakrishnan, J.) said at page 754 :
"The reference to 'Marumakkathayam law or Aliyasantana Law' in Section 17 of the Hindu Succession Act is only to clarify the position that the special provisions contained therein are applicable only to persons who at the time of coming into force of the Hindu Succession Act were governed by the Marumakkathayam Law or Aliyasantana Law as the case may be."
67. With greatest respect, I find myself unable to subscribe to the above view. Section 17 of the Hindu Succession Act applies to persons who would have been governed by 'Marumakkathayam law' if that Act had not been passed. I have already held that the words 'who would have been governed by Marumakkathayam law' are used in the context that in order to identify the "persons" it has to be presumed that the Hindu Succession Act is not passed. It does not mean that it is enough that they were governed by Marumakkathayam law at any anterior point of time. They must be governed by that law at the time when succession opens, for Section 17 shall have application only on the death of a person and not before. Section 17 is only a modification of Section 15 of the Hindu Succession Act and has to be read together. The opening words of Section 15 "the property of a female Hindu dying intestate shall devolve." are very significant in this context. The above aspect was lost sight of in the above two decisions and accordingly 1 express my respectful dissent from the above view.
68. In the light of what is stated above, I hold that the continued operation of the system of Marumakkathyam law on the date of death of a person is a necessary precondition for the operation of Section 17 of the Hindu Succession Act. The fact that persons were governed by the respective State enactments mentioned in Section 3(1)(h) of the Hindu Succession Act and by Marumakkathayam Law when the Hindu Succession Act came into force is not sufficient for the applicability of Section 17, but must be continued to be governed by Marumakkathayam law till succession opens on their death. Points 2 and 3 answered accordingly.
69. Point No. 4: Certain communities in Kerala were following a system of law called the 'Marumakkathayam law'. It is a body of customs and usages which received judicial recognition. The main characteristic and distinguishing feature of this system of law is that the descent is traced in the female line. While under the Hindu Mitakshra law the members claim their descent from a common ancestor, the members of a marumakkathayam tarwad are descended from a common ancestress. The joint family is called the tarwad and the seniormost male member will be the manager who is called 'Karnavan'. The interest of a member in tarwad property was neither heritable nor alienable and on his death it would devolve on the other members by survivorship. Under the pristine Marumakkathayam law, the separate property of a member also would devolve upon members of the tarwad and not on his wife and children. In the case of a female member her self-acquisitions descend to her thavazhi or sub-tarwad constituted by her children and further descendants in the female line. A member had no right to demand partition of tarwad properties. Impartiality was the rule and there could be no partition without the concurrence of all the members of the tarwad.
69A. The customary Marumakkathayam law had been very materially altered by Statutes in the three component parts of Kerala, namely Malabar. Travancore and Cochin and those enactments are mentioned in Section 3(1)(h) of the Hindu Succession Act. They dealt with the law of marriage, succession, adoption and maintenance, and minority and guardianship. By these enactments the rule of succession in regard to self-acquired or separate property changed and separate rules of succession were prescribed for the property of a male and a female. Right to partition was also conferred on the members.
Certain statutes permitted only thavazhi partition (partition into branches) and certain statutes allowed individual partition on certain conditions. Under the Madras Marumakkathayam Act, 1933 only thavazhi partition was originally recognised. But by the 1958 amendment to the Madras Marumakkathayam Act by the Kerala Legislature, individual partition is allowed and the consent of the common ancestors was dispensed with. In 1956 the Parliament passed four enactments on marriage, succession, minority and guardianship and adoptions and maintenance, as mentioned earlier in this judgment. Succession was regulated by the Hindu Succession Act among the Hindus throughout the country. The Act contained two special provisions in regard to persons governed by the Marumakkathayam law which have already been referred to by me, namely Section 7 which deals with devolution of interest in the tarwad property and Section 17 which makes a special provision in regard to intestate succession among Marumakkathayees.
70. Though the Hindu Succession Act provides for devolution of interest in the tarwad property, the Act did not do away with the Marumakkathayam system or with tarwads. The marumakkathayam system or the joint family system continued in spite of the Act. As observed by Govindan Nair J. in Ammalu Amma v. Lakshmy Amma, 1966 Ker LT 32 (FB):
"The Hindu Succession Act does not do away with the Marumakkathayam system or with tarwads though that will doubtless be its ultimate result, and none of its provisions affects the way in which the members of a tarwad hold the joint property during their life-time."
71. Thereafter, it was felt that it was necessary and desirable to have a uniform law for all Marumakkathayees in Kerala in regard to the right to obtain dissolution of marriage and tarwad and its management including partition. Accordingly a Law Commission was also appointed and on the basis of its report the Kerala Joint Hindu Family System (Abolition) Act was passed which came into force on 1-12-1976.
72. After the Parliament passed the four enactments mentioned above, the provisions therein prevailed over those in the State enactments. The only topic that was not dealt with in the above Acts is the tarwad and its management and partition. As stated earlier, by the provision contained in the Joint Hindu Family System (Abolition) Act (which is a composite legislation in regard to Marumakkathayees as also followers of Mitakshara law) in Section 3, right by birth which is inherent in evey member of a tarwad following Marumakkathayam law was abolished. By Section 4 joint tenancy was abolished and instead the members of the tarwad holding tarwad property on the date of coming into force of the Act were made tenants-in-common from that day holding his or her share separately as full owner. Section 5 deals with rule of pious obligation which has no relevance so far as Marumakkathayees are concerned and by Section 7 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 the Act were made inoperative. By Section 7(2) the entire State Acts mentioned in Section 3(1)(h) of the Hindu Succession Act were also repealed.
73. From the above development of the law, it can be seen that the pristine Marumakkathayam law was interfered with by the various enactments and later by the four Central Acts in 1956. The only matter which was untouched by the Central Acts was the law relating to tarwad and its management. On that subject also a legislation was made by the Kerala Legislature, namely the Kerala Joint Hindu Family System (Abolition) Act, and the whole joint family system was abolished. Community of interest, unity of possession, right by birth and survivorship are the incidents of joint family property, whether of a marumakkathayam tarwad or a mitakshara coparcenary. Descent through the female line in another distinguishing feature of the Marumakkathayam law. By the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975 there is no community of interest, unity of possession, right by birth and rule of survivorship. Descent through female line has also come to an end and property on death devolves upon the personal heirs as mentioned in the Hindu Succession Act. The essence of Marumakkathayam law which is that the woman is the stock of descent, which is to be in the female line, is avoided by the Act. The changes effected are so drastic that none of the characteristic features and incidents of the Marumakkathayam law survive today. The provisions of the Act are clear that it does not envisage the emergence or contemplate the continuance of a Marumakkathayam tavazhi or tarwad after its date. It does not contemplate the possibility of the existence of a group of persons having community of interest in property on account of any personal law governing them, and the tarwad that existed before and at the date of the Act was liquidated by it. No vestige of the Marumakkathayam law remains after the passing of the Joint Hindu Family System (Abolition) Act and the system of Marumakkathayam law has come to an end.
74. The repealing Section in the Joint Hindu Family System (Abolition) Act also indicates that the system has come to an end. The Act deals with both, the Hindu joint family as also Marumakkathayam tarwads. Under Section 7(1) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law is abrogated. In M.K.B. Menon v. A.C., Estate Duty, AIR 1971 SC 2392, it was held by the Supreme Court that Marumak-kathyam law is only a branch of Hindu Law, The setting and the provisions contained in that Act also indicate that it decided to do away with the system of tarwad. By the operation of Section 7 as well the system of Marumakkathayam law has ceased to exist. Point No. 4 is answered accordingly.
75. Point No. 5: I have already found that Section 17 of the Hindu Succession Act is not-repealed by the provisions contained in the Joint Hindu Family System (Abolition) Act nor is it in any way repugnant to the provisions of the Hindu Succession Act. Even if there is no repeal or repugnancy between the two enactments, in certain cases if the provision in a former enactment become unworkable or cannot be applied in the light of the latter enactment, the former provision become inoperative and ineffective. If the application of a provision in the earlier enactment is dependent on the existence of certain factors and if those factors are effaced by a latter enactment, such a provision becomes unworkable and ceases to be operative. Tested in the light of the, above principle, I have no hesitation to hold that Section 17 of the Hindu Succession Act has become inoperative. Sections 7 and 17 are the two special provisions in regard to Marumakkathayee contained in the Hindu Succession Act. It was agreed by all counsel appearing for the parties that after the coming into force of the Abolition Act, Section 7 of the Hindu Succession Act which deals with devolution of interest in a tarwad property has become inoperative, for there is no interest in a tarwad property after the coming into force of the Joint Hindu Family System (Abolition) Act. So far as Section 17 is concerned, by the abolition of the Marumakkathayam system of law, the substratum of Section 17 is gone and the object for which the special provision in Section 17 of the Act was made has ceased to exist. The provisions contained in Section 17 cannot be applied to any person as nobody will be governed by the Marumakkathayam law after 1-12-1976 which is a condition precedent for the applicability of that section. Accordingly I hold that Section 17 of the Hindu Succession Act has become inoperative and ineffective after the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975 from 1-12-1976 and no person dying after that date will be governed by Section 17 but only by the general provision contained in Section 15 of the Hindu Succession Act. Point No. 5 answered accordingly.
76. In the view that I have taken in regard to succession of Lakshmikutty Amma it is Section 15 of the Hindu Succession Act that is applicable and not Section 17. If that be so, the plaintiff who is her husband alone will be her heir as admittedly she died issueless. In that view of the matter, no interference is called for with the decree of the trial court and accordingly. I dismiss the appeal, but, in the circumstances, without any order as to costs.
ORDER
77. In view of the majority view, the appeal is allowed and the suit will stand dismissed, but in the circumstances, without costs.
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ABHISHEK 06012020
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