MADRAS HIGH COURT

D. CHELLIAH NADAR & ANR. VS. G. LALITA BAI & ANR.

DATED : 21.07.1976

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

The trial court found that the Indian Succession Act governed the parties to the suit and dismissed the suit. On appeal, the learned District Judge of Kanyakumari held that the first plaintiff was not entitled to claim exclusive title to the properties. In the second appeal preferred by the plaintiffs, Raghavan, J. came to the conclusion that the Indian Succession Act was applicable. But considering the importance of the question, gave leave to prefer a Letters Patent Appeal. Thus the matter has come up before a Bench.

Facts of the Case :

The only question that arises in Letters Patent Appeal is whether the parties are governed by the Travancore Christian Succession Act, Regulation II of 1092, or the Indian Succession Act, 1925. The Indian Succession Act X of 1865 was enacted by the Governor General of India in Council and received the assent of the Governor General on 16-3-1865. The Act was to amend and define the law of intestate and testamentary succession in British India. The preamble states:

"Whereas it is expedient to amend and define the rules of law applicable to Intestate and Testamentary succession in British India, it is enacted... ... ..."

Observation of Court :

On behalf of the defendants-respondents, it is submitted that the plaintiffs are not entitled to a decree for possession as the relief of possession has not been asked for. 

The plaint proceeds on the basis that the plaintiffs are in possession. In para. 4 it is stated that the first plaintiff came into possession of A and B schedule properties and that he executed a gift in favour of his wife, the second plaintiff, in respect of the B schedule properties and thus she was in possession of the B schedule properties. In para. 6 it is also stated that the suit properties vest with the plaintiffs and that they are in enjoyment of the suit properties. 

The allegation is that the defendants are creating trouble in the enjoyment of the suit properties by the plaintiffs. Therefore the plaintiffs prayed for an order of injunction restraining defendants 1 and 2 from disturbing the possession of the plaintiffs of the suit properties. The relief prayed for is for declaration of title and possession of the plaintiffs over the suit properties and an order of injunction against the defendants from disturbing the plaintiff's possession. The plaint has not asked for possession of the suit properties as it proceeds on the basis that the plaintiffs are in possession.

Judgement :

The trial court did not go into the question as to who was in possession, but observing that whatever that might be, the first plaintiff possessed A and B schedule properties only as one of the heirs of Daniel Nadar, answered the issue as to whether the plaintiffs are in possession of the suit properties, accordingly. The appellate court did not agree with the trial court that the first plaintiff was in exclusive possession. It referred to the evidence of P. W. 2, who stated that Items 2 to 4 end 7 of A schedule and Items 13 and 16 of B schedule are in the possession of the defendants ever since the death of father Daniel and found that it has not been proved that the plaintiffs are in exclusive possession of A and B schedule properties. 

This finding was not challenged in the second appeal and the learned Judge in disposing of the second appeal did not refer to this aspect of possession. On the evidence of P. W. 2 himself, which is accepted by the lower appellate court, it cannot be said that the plaintiffs have established that they are in possession of Items 2 to 4 and 7 of A schedule and Items 13 and 16 of the B schedule. As the relief of possession has not been asked for, the order of injunction cannot be granted against the defendants regarding these items. In other respects, the suit is decreed. The appeal is partly allowed, but there will be no order as to costs.

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MADRAS HIGH COURT

D. CHELLIAH NADAR & ANR. VS. G. LALITA BAI & ANR.

DATED : 21.07.1976

Equivalent citations: AIR 1978 Mad 66

Author: Kailasam

Bench: Kailasam, Balasubrahmanyam

ORDER Kailasam, C.J.

1. The plaintiffs are the appellants in this Letters Patent Appeal. The plaintiffs sued for a declaration of their title to and possession of the suit properties and for an injunction. Plaintiffs 1 and 2, Chelliah Nadar and Mercy Bai, are husband and wife. The first defendant, Lalitha Bai, is the sister of the first plaintiff. The second defendant Muthayyan is the husband of the first defendant. The suit properties belonged to one Daniel Nadar, the deceased father of the first plaintiff. Daniel Nadar died as a Travancore Christian leaving behind him his son, the first plaintiff, and four daughters, including the first defendant. The contest is between the son and the daughter of Daniel Nadar. If the Christian Succession Act of Travancore is applicable, the first plaintiff will be the sole heir. But, if the Indian Succession Act is applicable, the first plaintiff and the first defendant would each be entitled to a half share in the properties.

2. The trial court found that the Indian Succession Act governed the parties to the suit and dismissed the suit. On appeal, the learned District Judge of Kanyakumari held that the first plaintiff was not entitled to claim exclusive title to the properties. In the second appeal preferred by the plaintiffs, Raghavan, J. came to the conclusion that the Indian Succession Act was applicable. But considering the importance of the question, gave leave to prefer a Letters Patent Appeal. Thus the matter has come up before a Bench.

3. The only question that arises in Letters Patent Appeal is whether the parties are governed by the Travancore Christian Succession Act, Regulation II of 1092, or the Indian Succession Act, 1925. The Indian Succession Act X of 1865 was enacted by the Governor General of India in Council and received the assent of the Governor General on 16-3-1865. The Act was to amend and define the law of intestate and testamentary succession in British India. The preamble states:

"Whereas it is expedient to amend and define the rules of law applicable to Intestate and Testamentary succession in British India, it is enacted... ... ..."

The rules contained therein constituted the law of British India applicable to all cases of intestate or testamentary succession. But Section 331 of the Act provided that the provisions of this Act shall not apply to intestate or testamentary succession to the property of any Hindu, Muhammadan or Buddhist; nor shall they apply to any will made, or any intestacy occurring before 1-1-1866. Section 332 enabled the Governor General of India in Council to exempt the members of any race, sect, or tribe in British India from the operation of the Act. 

Though Section 2 provided that the Indian Succession Act shall constitute the law of British India applicable to all cases of intestate or testamentary succession, the provisions of the Act were expressly excluded from application to testamentary succession to the property of any Hindu, Muhammadan or Buddhist and to any intestacy occurring before 1-1-1866, the Governor General of India in Council was also empowered from time to time to exempt from the operation of the whole or any part of the Act any race, sect or tribe in British India. It may also be noted that at that time there was no intention to make the Act applicable to the native States as they were then constituted.

4. While the Indian Succession Act of 1865 was in force in British India, the Travancore Regulation II of 1092, corresponding to 1916, was passed. The Regulation was intended to consolidate and amend the rules of law applicable to intestate succession among the Indian Christians in Travancore. The Regulation was passed by his Highness the Maharajah of Travancore on 21-12-1916. In the preamble it is stated that whereas it is expedient to consolidate and amend the rules of law applicable to intestate succession among Indian Christians in Travancore, His Highness is pleased to enact the Regulation. In the objects and reasons, it is stated--

"The law of intestate succession among the various sections of Indian Christians in Travancore is vague and unsettled. The High Court has been complaining about the unsatisfactory state of the law among Christians. Repeated representations were made by Christians' representatives about the desirability of enacting a law of succession. The necessity for legislation has therefore long been felt". The Regulation provided for the succession among the Indian Christians in the Travancore State.

5. Subsequently, the Indian Succession Act of 1925 was passed in the year 1925. The Act was for consolidating the law applicable to intestate and testamentary succession. In the Preamble, it is stated that Whereas it is expedient to consolidate the law applicable to intestate and testamentary succession the Act has been enacted. Section 3 of the Act provides that the State Government may, by a notification in the official Gazette, either retrospectively from 16th March 1865 or prospectively exempt from the operation of any of the provisions of the Act mentioned in that section, the members of any race, sect or tribe, to whom the State Government considers it impossible or inexpedient to apply such provisions or any of them mentioned in the order. 

This section more or less corresponds to Section 332 of the Indian Succession Act of 1865. There are several parts in the Indian Succession Act of 1925 and it is provided whether a particular part has a universal application or not. For instance, Section 4 states that Part II relating to domicile, will not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina. We are concerned with Part V which relates to intestate succession. Section 29(1) provides that Part V shall not apply to any intestacy occurring before 1-1-1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina. It is explicit therefore that Part V of the Indian Succession Act of 1925 has no application to the property of any Hindu, Muhammadan, Buddist, Sikh or Jaina. Section 29(2) is very important as the decision in the case mostly depends upon it. It runs as follows--

"Save as provided in Sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India in all cases of intestacy." The effect of Sub-section (2) is that apart from the non-applicability of the provisions of Part V to any Hindu, Muhammadan, Buddhist, Sikh or Jaina, they will not also apply if there is any other law for the time being in force. Otherwise, the provisions of this Part shall constitute the law of India in all cases of intestacy. It may be noted that at the time when the Indian Succession Act of 1925 was enacted, the Travancore territory, with which we are concerned, was a native State.

6. While Travancore Regulation II of 1092 was the law of intestate succession among the Christians of Travancore and the Indian Succession Act of 1925 was applicable to British India except to the classes exempted under Section 29(2), after the consolidation of the States, the Part B States (Laws) Act was enacted in 1951. Many of the enactments that were in force in British India were extended to Part B States. The section with which we are concerned in Section 6. It runs as follows--

"If immediately before the appointed day there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in this Act, stand repealed".

The two provisos, which are not material, need not be considered. The appointed date is 2-8-1952. The question is whether before the appointed date there was in force in Part B States any law corresponding to the Indian Succession Act. The point that has to be decided is whether the Christian Succession Act Regulation II of 1092 of Travancore, is a law corresponding to the Indian Succession Act, and if so whether the Indian Succession Act would repeal the Travancore Regulation.

7. The Christian Succession Regulation II of 1092 relates to intestate succession among the Indian Christians in Travancore, whereas the Indian Succession Act is a law relating among other things, to intestate succession, which is applicable to immovable property in India of a person deceased in India. The Act itself provides that it is not applicable to intestate succession of a Hindu, Muhammadan, Buddhist, Sikh or Jaina and to others, who are governed by any other law for the time being in force. The subject of legislation is intestate succession. Though the Travancore Regulation is confined to Indian Christians in Travancore, the conclusion is inescapable that the Travancore Regulation is a law corresponding to the Indian Succession Act, as contemplated in Section 6 of the Part B States (Laws) Act, 1951. In Custodian of Evacuee Property v. Abdul Shakoor, , the Supreme Court has pointed out that where the Act repealed provided substantially for all matters contained in the Act effecting the repeal there is correspondence between the two Acts and the earlier Act would thus stand repealed and that it is not necessary that there should be complete identity between the repealing Act and the Act repealed in every respect. Following the above decision the Supreme Court in Abdulkadir v. State of Kerala, , laid down that all that we have to see is whether the law repealed substantially provided for the same matters as the Central Act even though it may not be identical in all respects. The same view was reaffirmed by the Supreme Court in Anant Prasad v. State of Andhra Pradesh,.

There were two Acts in that case, the Charitable Endowments Act VI of 1890, and the Charitable and Religious Trusts Act XIV of 1920. It was contended that because of the application of these two Acts to the then Part B State of Hyderabad, the Regulation must be deemed to have been repealed in view of Section 6 of Part B States (Laws) Act. The Supreme Court rejected that contention holding that Act VI of 1890 definitely excluded religious public trusts from it, that the Regulations dealt with two kinds of trusts, namely, public religious trusts and trusts for purposes of charity and public utility and that in that case, they were concerned with a public religious trust which was specifically excluded from the purview of Act VI of 1890 and that therefore whatever might be the effect of Act VI of 1890, on that part of the Regulations which dealt with public trusts other than religious trusts, there was no doubt that the Regulations in so far as they applied to religious trusts, could not be held to have been repealed by the application of Act VI of 1890 to the then Part B States of Hvdera-bad, for the Regulations when they dealt with religious trusts would not be a law corresponding to Act VI of 1890. 

The Supreme Court therefore held that the application of Act XIV of 1920 to the then Part B State of Hyderabad could not be said to have repealed the Regulations by virtue of Section 6 of the Part B States (Laws) Act, 1951. The Supreme Court took this view as a perusal of Section 6 of Act XIV of 1920 showed that it was confined to a very limited purpose, whereas the Regulations were a much wider enactment and Act XIV of 1920 did not cover the entire field. The decisions of the Supreme Court make it clear that the law repealed should substantially provide for the same matters as the Central Act even though it may not be identical in all respects, and that it must cover the entire field which was covered by the law which was sought to be repealed Applying the principle laid down in the three decisions of the Supreme Court, viz., Custodian of Evacuee Properties v. Abdul Shakoor, , Abdulkadir v. State of Kerala. , and Anant Prasad v. State of Andhra Pradesh, , it is clear that, unless the entire field is covered by the Central Act there will be no repeal under the Part B States (Laws) Act. In this case, the Indian Succession Act, as It stands, does not purport to legislate so far as Indian Christians in Travancore State are concerned.

8. In the case before us both the laws relate to intestate succession. Though the Travancore Regulation is confined only to Christians in that State, the field of legislation is the same and the Indian Succession Act has a universal application to the extent provided for under the Act. On the facts, there is no doubt that both the legislations are intended to provide for intestate succession, though the application of the Travancore Regulation is confined only to the Christian Community of Travancore. Section 6 of the Part B States (Laws) Act does not require the law to be identical, but only requires that it should correspond to the Central Act. Though the Central Act as well as the Travancore Regulation related to the same subject, namely, intestate succession and covered identical fields and to that extent is corresponding law, in view of the decisions of the Supreme Court cited above, it will not be corresponding law for the purpose of Section 6, as the Indian Succession Act does not cover Travancore Christians, governed by the Travancore Regulation. Taking all the circumstances into account, we feel that the Travancore Regulation is a law corresponding to the Indian Succession

9. It has now to be considered whether the Travancore Regulation stands repealed. On and from the appointed date the Indian Succession Act, 39 of 1925, had come into force in Part B States. What it seeks to repeal is the corresponding law. But the Act conies Into force without any modification and under its own provisions the Act will not apply to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina or when any other law for the time being in force provides for the succession. It cannot be said that, because the Indian Succession Act is intended to apply in the case of succession to immoveable property in India, which will include Part B States also, it repeals all laws statutory or otherwise, relating to Hindus, Muhammadans, etc., for Section 29(1) itself makes it clear that it shall not apply to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina. There could therefore be no question of the Indian Succession Act repealing any corresponding law relating to Hindu, Muhammadan, Buddhist, Sikh or Jaina, for it is not applicable to them at all. 

Under Section 29(2), the Indian Succession Act relating to intestate succession is not made applicable to cases where there is any other law for the time being in force. On the date, when the Indian Succession Act came into force, the Travancore Regulation was in force in Travancore State, though strictly under the Indian Succession Act, they would not have contemplated any law in the Travancore State. But, on a proper construction of the intention of the enactment, it is seen that the Indian Succession Act, even after the merger of the State, will not be applicable to Christians in the Indian States. Thus Section 29(2) stands, as much as Section 29(1), thereby excluding the application of the enactment to Hindus, Muhammadans, Buddhists, Sikhs or Jainas and also persons who are covered by any other law for the time being in force, one such law being the Travancore Regulation II of 1092. When the Indian Succession Act itself does not provide for succession to the property of Indian Christians in Travancore, it cannot take the place of the Travancore Regulation. 

Therefore, as long as the Indian Succession Act of 1925 stands, with Section 29(1) and (2) intact, the Travancore Regulation cannot be said to have been repealed because of the provisions of Section 6 of the Part B State (Laws) Act. If the Indian Succession Act had a universal application or applied to Indian Christians, then, to that extent, the corresponding legislation would have been repealed. But as we are satisfied that as the Indian Succession Act which seeks to provide for the law of intestate succession throughout the country, itself omitted from its operation the Travancore Regulation Act, we are of the view that the Travancore Regulation has not been repealed.

10. The question whether the Travancore Christian Succession Act (Regulation II of 1092) was repealed by Part B States (Laws) Act 3 of 1951 came up for consideration before the Travancore Cochin High Court. In Kurian Augusty v. Devassy Aley, AIR 1957 Tray-Col, the court, after extracting Section 19(1) and (2) of the Indian Succession Act, came to the conclusion that from that section it was clear that the Indian Succession Act was not intended to interfere with the personal law of communities which have settled laws of their own as regards intestate succession. 

The Court took the view that the Travancore Christian Succession Act would in no sense be regarded as law corresponding to Part V of the Indian Succession Act and that it had to be regarded as forming part of the Indian Succession Act. We are of the view, though for different reasons, that as Section 29(2), which is still in force, does not purport to legislate for the Indian Christians, there cannot be any repeal of the Travancore Christian Succession Act. We do not think it is necessary for us to consider whether the Indian Succession Act must be deemed to have adopted by reference all laws for the time being in force relating to intestate succession which will include the Travancore Succession Act so far as the Christians in the Travancore State are concerned.

11. The question was fully considered by Ismail J. in Solomon v. Muthiah, 1974-1 Mad LJ 53, where the learned Judge held that by virtue of Section 6 of the Central Act III of 1951, the Travancore Christian Succession Act, Regulation II of 1092, stood repealed with effect from 1-4-1961. The reasoning of the learned Judge is contained in para. 60 of the report, where he has stated that the expression 'save as provided by any other law for the time being in force' must necessarily refer to the exclusion of Part V made by any other law. The learned Judge has stated that so long as an existing statute has not excluded the applicability of Part V of the Indian Succession Act 1925, the provisions of the said Part V will apply and that no other enactment was brought to his notice specifically excluding the applicability of the provisions of Part V of the Indian Succession Act 1925 to the Christians of the former Travancore Cochin State. We feel that this reasoning is erroneous as the Travancore Regulation is of the year 1917, about eight years before the Indian Succession Act was passed. 

It was within the jurisdiction of the Indian State when the exclusion of the operation of the provisions of Part V could not have been contemplated. Further, in our view, it is Section 29(2), as it stands, that has to be construed and if that excludes the application of any other law in force, it is needless for any law to state that Part V is not applicable. The Indian Succession Act by itself excludes its operation to the Indian Christians in the Travancore State. There could, therefore, be no repeal of any enactment not covered by the Indian Succession Act In this view we are unable to accept the conclusion arrived at by the learned Judge, that being a corresponding law, the Travancore Christian Succession Act stood, repealed. The decisions of Gokulakrishnan J. in S. A. No. 529 of 1968 (Mad), Devarees v. Earl Nadar and of K. N. Mudaliyar J. in S. A. 1006 of 1968 (Mad), Mary Santhakumari v. Susai Pakkiam, are also not good law.

12. In the result, we hold that the Travancore Christian Succession Act, Regulation II of 1092, is applicable to the appellants.

13. On behalf of the defendants-respondents, it is submitted that the plaintiffs are not entitled to a decree for possession as the relief of possession has not been asked for. The plaint proceeds on the basis that the plaintiffs are in possession. In para. 4 it is stated that the first plaintiff came into possession of A and B schedule properties and that he executed a gift in favour of his wife, the second plaintiff, in respect of the B schedule properties and thus she was in possession of the B schedule properties. In para. 6 it is also stated that the suit properties vest with the plaintiffs and that they are in enjoyment of the suit properties. The allegation is that the defendants are creating trouble in the enjoyment of the suit properties by the plaintiffs. 

Therefore the plaintiffs prayed for an order of injunction restraining defendants 1 and 2 from disturbing the possession of the plaintiffs of the suit properties. The relief prayed for is for declaration of title and possession of the plaintiffs over the suit properties and an order of injunction against the defendants from disturbing the plaintiff's possession. The plaint has not asked for possession of the suit properties as it proceeds on the basis that the plaintiffs are in possession.

14. The trial court did not go into the question as to who was in possession, but observing that whatever that might be, the first plaintiff possessed A and B schedule properties only as one of the heirs of Daniel Nadar, answered the issue as to whether the plaintiffs are in possession of the suit properties, accordingly. The appellate court did not agree with the trial court that the first plaintiff was in exclusive possession. It referred to the evidence of P. W. 2, who stated that Items 2 to 4 end 7 of A schedule and Items 13 and 16 of B schedule are in the possession of the defendants ever since the death of father Daniel and found that it has not been proved that the plaintiffs are in exclusive possession of A and B schedule properties. 

This finding was not challenged in the second appeal and the learned Judge in disposing of the second appeal did not refer to this aspect of possession. On the evidence of P. W. 2 himself, which is accepted by the lower appellate court, it cannot be said that the plaintiffs have established that they are in possession of Items 2 to 4 and 7 of A schedule and Items 13 and 16 of the B schedule. As the relief of possession has not been asked for, the order of injunction cannot be granted against the defendants regarding these items. In other respects, the suit is decreed. The appeal is partly allowed, but there will be no order as to costs.