Special Leave Petition Civil No 5863 of 1979
139 From the Judgment and Order dated 15 12 1978 of the Kerala High Court in Original Petition No 67978 II
N Sudhakaran for the Petitioner
A section Nambiar for the Respondents
The Order of the Court was delivered by KRISHNA IYER J All the parties are represented by counsel and we have heard them in extenso
We therefore proceed to pass a speaking order
The princely family of Cochin with a proletarian plurality of members has been the cynosure of special legislations the last of which is Act 15 of 1978 the target of attack in this special leave petition
Articles 14 and 19 of the Constitution have been the ammunation used by the petitioner in the High Court and here to shoot down the legislation as ultra vires
A brief sketch of the family law of the Cochin royalty may serve to appreciate the scheme of the latest legislation under challenge
The Maharaja of Cochin reigned and ruled over a pretty princely State Cochin which is now an integral part of the Kerala State
When the curtain of history rose to find India free the constellation of princedoms fused into Independent India s democratic geography
Cochin and Travancore finally fell in with this trend
As a first step they were integrated into the Travancore Cochin State which came into being on July 1 1949
Two days before this constitutional merger the Maharaja of Cochin issued a Proclamation to provide for the impartibility administration and preservation of the Royal Estate and the Palace Fund through a Board of Trustees
A small process of family legislation on the Cochin Palace followed the political transformation of the State
The Valiamma Thampuram Kovilakam Estate and the palace Fund Partition Act 1961 Actt 16 of 1961 was the first the primary purpose of which was to undo the impartibility of the royal estate as declared by the Proclamation of 1949
The shares of the members the mode of division and the machinery for partition were statutorily prescribed by Sections 4 and 5 of the said Act
The basics of those two sections were that on a majority of the major members of the royal family expressing their wish to be divided the Maharaja would consider whether it was in the interest of the family to partition the estate among the members and if he did direct the Board of Trustees to proceed with the partition under his supervision and control
Each member including a child in the womb was eligible for a single share on an equal basis
The privi 140 leges of the Maharaja were preserved as his personal right but vis a vis family assets feudal Primogeniture  fell to modern egalite within limits
The next epochal legislation was the 26th Constitution Amendment Act of December 1971 which extinguished all royal privileges privy purses and cher dignities of the erstwhile rulers of the Indian States
With the denudation of his royal privileges the Cochin Maharaja stepped down to the level of the karta of a joint Hindu family
The royalty which was once a reality became a mere memory and with the statutory injection of democratic rights into this blue blooded family plebeian claims for equal shares began to be voiced especially because the multifid of little royalties of the Maharaja s matriarchal family lived in lurid poverty as counsel distressingly described
Indeed the marummakkattayam system which at one time ensured impartibility and management by the senior most member had lost its functional value and virtually vanished from the Kerala coast thanks to the erosive process of legislative individualism
The final blow to this system was delivered by the Kerala Joint Hindu Family System Abolition Act 1975 Act 30 of 1976 which fully wiped out the matriarchal pattern of holding and the Hindu undivided family system in the State of Kerala
Despite this revolutionary change the Cochin royal family maintained its former status as a marummakkattayam undivided coparcenary since it was governed by special legislation which remained unrepealed
This regal matriarchal survival levelled into the main stream of proprietary life with equal partible shares for young and old like the rest of the community when the Kerala legislature enacted the Valiamma Thampuram Kovilakam Estate and the Palace Fund Partition and the Kerala Joint Hindu Family System Abolition Amendment Act 1978 Act 15 of 1978 preceded by Ordinance No 1 of 1978
A close up of this statutory scheme is necessary since it is this legislation which is furiously fusilladed as unconstitutional by counsel for the petitioner
The legislative Proclamation of 1949 if we briefly recapitulate commended the Constitution by His Highness the Maharaja of a five man Board of Trustees charged with the plenary task of administration management and conservation  of the Estate  and Palace Fund 
Act 16 of 1961 brought about a degree of economic democratisation while preserving some of the special legal habiliments of the royal estate
The Board nominated under the earlier Proclamation was continued but its responsibilities were broadened to include partitioning of the Kovilakam assets if a majority of major members the voice of Palace democracy asked for divi 141 sion and the Maharaja deemed it desirable in the interests of the family
This was a half way house between the impartible old and partible at will new
A short provision of great relevance to the issue of constitutionality is to be found in Section 7
The public policy behind this Section excluding civil court jurisdiction is not merely the special situation of the former royal family but the virtual impossibility within a life time of division by metes and bounds and allotment of shares to the 800 odd members most of whom are little royalties in rags homeless and hungry seeking to survive by the small pieces from the large cake if ever it will be sliced and distributed
The exasperating longevity of partition litigation what with the present cantankerous orientation and procedural interminability preliminary decree appeals thereon commissions objections revisions final decrees and a ruinous crown of other interlocutory proceedings punctuating the suit followed by inevitable appeals and special leave petitions and the like baffles the humble and baulks their hope of getting a morsel in their short life span
When this phenomenon an Indo Anglican processual bequest is compounded by the calamitous fact that there are around 800 sharers and a variety of considerable assets to be divided civil litigation for partition is the surest punishment to the tattered princelings  by pauperising them through the justice process and giving them stones instead of bread in the end if the end would arrive at all  The compulsive pragmatics of distributive justice elicited legislative compassion for this uniquely numerous crowd of pauperised patricians by exclusion of civil court s jurisdiction
The pathology of protracted exotic processual legalistics needs comprehensive renovation if the Justice System is to survive but the legislature salvaged the largest royal family with the littlest individual resources without waiting for the remote undertaking to overhaul Processual Justice to the People
Sociology is the mother of law lest law in the books should be bastardised by the law of life
A radical measure which swept off the matriarchal system and the Joint family form of estate for Hindus is the next statutory even which needs mention
Kerala Act 30 of 1976 The Kerala Joint Hindu Family System Abolition Act 1975 abolished at one stroke the Hindu undivided family and converted them into tenancies in common with the rule of one member one share
The Cochin Kovilagam  was not affected because neither Act 16 of 1961 nor the prior royal proclamation expressly repealed
But the individualist spirit of Act 30 of 1976 invaded the royal family legislatively as there is no basis for proprietary privilege even as vestiges of past glory in a democracy charged with social justice
So Act 15 of 1978 The Valiamma 142 Thampuram Kovilakam Estate and the Palace Fund Partition and the Kerala Joint Hindu Family System Abolition Amendment Act 1978 came to be passed whereby division of the Kovilakam assets was freed from the Maharaja s subjectivism and made a mandate of the statute in tune with the common trend
The modus operandi to work out partition was the Board and no specific prescription regarding the shares of members is given
No appeal from the partition effected by the Board is specified and Sections 4 and 5 of Act 16 of 1961 are deleted retrospectively
A quick glance at the provisions gives the impression that the legislature merely equated the right in partition of the junior members of the Kovilakam with that of the commonalty of marumakkattayam families save that instead of the Civil Court the division by metes and bounds was to be carried out by the Board which was already in management and was familiar with the features of the family and the assets
A closer look in the light of the constitutional challenge which was repelled by the High Court leaves us cold hot submissions to burn down the allegedly arbitrary and irresesonable legislation notwithstanding
Let us dissect the anatomy of the Amending Act of 1978
Be it remembered that Act 16 of 1961 the principal Act is not and has never been attacked as ultra vires
If the principal Act was good the search for the invalidatory vice must be confined to the cluster of new clauses
The principal violation pressed before us by Shri Govindan Nair for the petitioner who is a senior member of the family is of article 14 and the customary contention more easily waged than established is that arbitrary unguided naked and tyrannical power is conferred on the Board and therefore the whole Act is bad because the central piece of the statutory scheme is this machinery
True our constitutional order is sensibly and sensitively allergic to arbitrary power and we have no hesitation in striking down any provision which can be anathematised as creating uncanalised and Neronised Power
The very creation of the Board was challenged as violative of article 14 since the jurisdiction of the Civil Court is the common forum with other judicial remedies appellate and revisional available for the aggrieved party
While the Board is given plenary power to divide and distribute with validity being conferred on such partition the grievance is that there are no appeals and revisions and the arbitrament of the Board even if it is arbitrary becomes final
This is castigated as a caprice of the legislature
More than all the very singling 143 out of the ruler s family populous though it be is anathematised as discriminatory
Incidentally the powers of the Board are charged as unreasonable since there is no provision to give a hearing to the affected parties in the process of adjudication and the whole process may well be the deliberations of a secret campaign
These violent vices imputed to the statute will certainly invalidate the Act 15 of 1978 if there were some substance therein
Even an imaginative exercise if informed by realism discovers no such infirmity
Let us clear the confusion caused by the omission of Sections 4 and 5 of the principal Act
Shri Govindan Nair for the petitioners relied on this omission to contend that the wholesome provisions of sections 4 and 5 of the Principal Act of 1961 have been waywardly withdrawn leaving it to the Board to award such shares as they fancied to the various members
This submission proceeds on a simple misconception
Section 4 provides for an equal share for every member including a child in the womb and Section 5 arrogates to the Maharaja of Cochin the power to exclude any properties from the category of partible estate
No democrat will shed a tear if Section 5 were deleted
The members as Shri Govindan Nair himself urged were mostly indigent
If that were so the infliction upon such members by the Maharaja s act of exclusion of as many properties as he thought should not be divided would be unjust
Since every member was entitled to an equal share with the Maharaja himself all the properties should be available for partition and this result which is eminently just is achieved by the omission of Section 5 from Act 16 of 1961
Therefore the provision in Act 15 of 1978 omitting Section 5 from the principal Act is a virtue to be commended not a vice to be condemned
It is eminently reasonable and to contend against it is obviously unreasonable
A different criticism has been made regarding the deletion of Section 4 by Shri Govindan Nair but it is equally mis conceived if we may say so
Section 4 of Act 16 of 1961 provided for the share of members including those en ventre sa mere
This provision was deleted because its purpose was otherwise served by the substituted Section 3 of Act 16 of 1961 by including a direction to the Board to effect partition of the Estate and the Palace Fund among all the members entitled to a share
under Section 4 of the Kerala Joint Hindu Family System Abolition Act 1975 Act 30 of 1976
 The effect of the importation of Section 4 of the Abolition Act is to ensure partition per capita among all the members as in the case of a Joint Hindu Family other than an undivided Mitakshara Hindu family
144 What was otiose namely Section 4 of Act 16 of 1961 was cut out
This was merely a drafting operation not making any change in the substantive law bearing upon the shares of the members
The contention that by this deletion the members of the Kovilagam had been made over as hostages to the caprice of the Board of Trustees is a frightful error or disingenuous scare
In the course of his submissions counsel had a dig at the Board which according to him was an imperium in imperio a law unto itself and therefore arbitrary
This again is an egregious error
The Board was not a new creation but an old concoction
Thirty years ago the Ruler brought it into being
Since then the Kerala legislature in Act 16 of 1961 continued it and the latest legislation now denounced before us recognised this time honoured entity wherein the heads of the four branches were members and entrusted it with the work of division of assets
The Board being an old institution in plenary management since 1949 and wisely composed of the seniormost members of the four branches is sentimentally and functionally the best instrument to divide and distribute
Indeed Act 16 of 1961 had also entrusted the task of partition to the same Board and no member had during nearly two decades challenged the wisdom of the provision
We see no legal ground to blaspheme this Board
The greater grievance of counsel about the Board was something else
He contended that the Board under Section 3 2 was empowered to effect the partition of the Estate and the Palace Fund and the partition so effected shall be valid  From this the criticism was spun out that the Board was likely to act in any manner it pleased sell the properties at any price distribute the assets at its sweet will or whim and thus reduce the partition of Kovilagam properties to a mock exercise by an unchallengable Board
He contrasted this grim picture with the advantageous alternative of a civil suit where the shares were fixed according to law the properties were valued by a Commissioner objections to the report of the Commissioner were considered by the Court and a decree preliminary or final was subject to appeal and further appeal
The judicial process was a great guarantee of the rights of parties which was unavailable before the statutorily immunised and potentially eccentric Board of Trustees
We remained unmoved by this sombre picturisation made up of illusory apprehensions
We have earlier pointed out that the strength of the Cochin Royal family is around 800
The properties consist of urban lands rural lands buildings and other assets considerable in volume and value
A litigative resolution of the conflicts among members with the plethora of interlocutory proceedings plus revisions 145 and appeals may be an endless adventure which would surely bankrupt the poorer members and deny to everyone a share in the properties by metes and bounds for a generation to come
Of course those who are already in possession of properties and counsel for the respondent hinted that the petitioners belong to this category would benefit by striking down this legislation and delay in legislative rectification of the situation and the further litigation that might be launched and so on
Those who have have a vested interest in procratination those who have not have an urgent interest in instant justice
In this view a non curial instrumentality and procedure for partitioning the properties cannot be condemned as discriminatory
The alternative created by the statute is quite a reasonable and in our view a better instrument having regard to the totality of factors
Law is not a cocoon and keeps its eyes wide awake to the realities of life
The legislation in question has taken note of the fact that the Board has been for decades entrusted by the Maharaja by his Proclamation with the administration of the family estate and no complaints have ever been voiced against their management
The latter legislation of 1961 has sanctified this Board
That legislation has gone to the extent of conferring powers of partitioning the Kovilagam properties on this Board and the present Act of 1978 does nothing more
We are unable to understand how what was good and valid in 1961 Act could become vicious and invalid in 1978
The composition of the Board and its history and experience convince us that it was a fit instrument for the task entrusted
The fear expressed before us that the Board may ignore the norms of judicial procedure while settling the rights of parties is misplaced
We do not regard Section 3 of Act 15 of 1978 as dispensing with canons of fairplay of natural justice and of quasi judicial values
We realise that the enormous work of dividing the properties has to be carefully carried out
Quasi judicial responsibilities are implied by the statute in the Board s functions and if the Board breaches these norms and canons the constitutional remedy under Article 226 comes into play
After all the Board is a statutory body and not an executive creature
It has been saddled with effecting the rights of parties and is bound to act quasi judicially
Its deviances are not unreviewable in writ jurisdiction
Therefore we direct the Board to comply with the requirements prescribed in several decisions of this Court in quasi judicial jurisdictions
Natural justice is obviously the first as this Court has ruled in a shower of cases especially highlighting in Maneka Gandhi s case1 and M section Gill s case2
This Court has 146 gone to the extent of holding that natural justice require reasons to be written for conclusions made
The Organo Chemical Industries  Anr
vs Union of India  Anr1 this Court has held that the absence of a right of appeal does not spell arbitrariness
It is further held in the same ruling that giving of reasons for conclusions is ordinarily an important component of natural justice in quasi judicial tribunals
In short every facility that a party will reasonably receive before a quasi judicial body when rights are adjudicated upon will be available before this Board and we mandate it to extend such facilities and opportunities
We need hardly mention that when properties are sold parties must be intimated and the principles embedded in the Partition Act must be taken note of when properties are valued and allotted
The services of valuers of properties or of Commissioners must also be used
Moreover parties must be given opportunity to object to reports of Commissioners if any appointed
In short the general law processual and substantive bearing on allotment of properties cannot be thrown to the winds by the Board merely because Section 3 does not write these details into it
We must hasten to caution that no party can hold the Board in ransom by raising vexatious and frivolous objections and putting in proceeding after proceeding merely to delay or defeat
The Board is geared to completion of the partition with a reasonable speed and that purpose must inform its activities
While every party is entitled to a reasonable voice in the proceedings no party can enjoy the privilege of thwarting the processes of justice
These observations and directions which are built in in Section 3 in our view are sufficient guidelines to repel the submission that the power under Section 32 is unbridled and unconstitutional
Partitions are best done by a broad consensus and the Board will remember that constant consultation with the members may facilitate its work and reduce tension and friction
Nor are we impressed with the argument that because appeals are absent justice is jettisoned
Oftentimes appeals are the bane of the justice system especially because the rich can defeat the poor and the weak can be baulked of their rights indefinitely that way
We do not mean to decry the right of appeal but may not go with the petitioner in glorifying it in all situations
We have emphasised that the Board is a statutory body and when it violates the prescriptions of the law or otherwise acts arbitrarily or mala fide article 226 of the Constitution is a corrective
Nothing more is needed because everything needed is implied in that power
147 The last and perhaps the least valid submission with meretricious attraction is the challenge based on unequal legislation picking out one from among equals for hostile treatment
We have held that the royal family estate is being partitioned on principles similar to those applicable to all other Kerala Hindu families and the only difference is a Board instead of a court to allot shares by metes and bounds
This we have shown is fully justified by the special circumstances
The Cochin Kovilakam vis a vis the Kerala State is sui generis
It has been legislatively dealt with as a special class throughout the history of Kerala and before
The Act impugned has none of the characteristics of class legislation and is on the other hand an equalising measure with a pragmatic touch
We negative the specious submission
We find no merit in this Special Leave Petition and dismiss it without costs
VDK Petition dismissed


Summary:
The Maharaja of Cochin reigned and ruled over a pretty State Cochin which is now an integral part of the Kerala State
The Travancore Cochin State came into being on July 1 1949
Two days before this constitutional merger the Maharaja of Cochin issued a Proclamation to provide for the impartibility administration and preservation of the Royal Estate and the Palace Fund through a Five man Board of Trustees
A small Process of family legislation on the Cochin Palace followed the political transformation of the State
The first was the Valiamma Thampuram Kovilakam Estate and the Palace Fund Partition Act 1961 Act 16 of 1961 the primary purpose of which was to undo the impartibility of the Royal Estate as declared by the Proclamation of 1949
Sections 4 and 5 of the Act prescribed the shares of the members the mode of division and the machinery for partition under these provisions on a majority of the major members of the royal family expressing their wish to be divided the Maharaja would consider whether it was in the interest of the family to partition the estate among the members and if he did direct the Board of Trustees to proceed with the partition under his supervision and control
Each member including en ventra sa mere was eligible for a single share on an equal basis
The Board nominated under the earlier Proclamation was continued but its responsibilities were broadened
The privileges of the Maharaja were preserved as his personal rights but vis a vis family assets feudal primogeniture fell to modern egalite within limits
As a result of the 26th Constitution Amendment Act of 1971 which extinguished all royal privileges privy purses and other dignities of the erstwhile rulers of the Indian States the Cochin Maharaja stepped down to the level of the Karta of a Joint Hindu Family
The Marummakkattayam system which ensured impartibility and management by the senior most member had lost its functional value and virtually vanished from the Kerala coast with the passing of the Kerala Joint Hindu Family System Abolition Act 1975 Act 30 of 1976
Despite this revolutionary change the Cochin royal family maintained its former status as Marummakkattayam undivided coparcenary since it was governed by special legislation which remained unrepealed
Therefore the Kerala Legislation enacted the Valiamma Thampuram Kovilakam Estate and the Palace Fund Partition and the Kerala Joint Hindu Family System Abolition Amendment Act 1978 Act 15 of 1978
Before the High Court and in the special leave petition the vires of the Amending Act omitting sections 4 and 5 from the Principal Act 161961 was challenged as offending Articles 14 and 19 of the Constitution
Dismissing the special leave petition the Court 137  HELD The public policy behind Section 7 of the Valiamma Thampuram Kovilakam Estate and the Palace Fund Partition Act 1961 excluding civil court jurisdiction is not merely the special situation of the former royal family but the virtual impossibility within a life time of division by metes and bounds and allotment of shares to the 800 odd members most of whom are real royalties in rags homeless and hungry seeking to survive by the small pieces from the large cake if ever it will be sliced and distributed
141A B Civil litigation for partition is the surest punishment to the tattered princelings  by pauperizing them through the justice process and giving them stones instead of bread in the end if the end would arrive at all
The compulsive pragmatics of distributive justice elicited legislative compassion for this uniquely numerous crowd of pauperised patricians by exclusion of civil courts jurisdiction
The pathology of protracted exotic processual legalistic needs comprehensive renovation if the Justice System is to survive but the legislature salvaged the largest royal family with the littlest individual resources without waiting for the remote undertaking to overhaul Processual Justice to the People
Sociology is the mother of law lest law in the books should be bastardized by the law of life
141D F 2
Our constitutional order is sensibly and sensitively allergic to arbitrary power and the Supreme Court will unhesitatingly strike down any provision which can be anathematised as creating uncanalised and Neronised power
Section 4 of the Principal Act of 1961 provided for an equal opportunity for every member including those en ventre sa mere
This provision was deleted because its purpose was otherwise served by the substituted Section 3 of Act 16 of 1961 by including a direction to the Board to effect partition of the Estate and the Palace Fund among all the members entitled to a share   under Section 4 of the Kerala Joint Hindu Family System Abolition Act 1975 Act 30 of 1976
 The effect of the importation of Section 4 of the Abolition Act is to ensure partition per capita among all the members as in the case of a Joint Hindu Family other than an undivided mitakshara Hindu family
What was otiose namely Section 4 of Act 16 of 1961 was cut out
This was merely a drafting operation not making any change in the substantive law bearing upon the shares of the members
The contention that by this deletion the members of the Kovilagam had been made over as hostages to the caprice of the Board of Trustees is a frightful error or disingenuous scare
142 F G 143H 144A B 3
Section 5 of the 1961 Act arrogated to the Maharaja of Cochin the power to exclude any properties from the category of partible estate
If most members were to be indigent the infliction upon such members by the Maharaja s act of exclusion of as many properties as he thought should not be divided would be unjust
Since every member was entitled to an equal share with the Maharaja himself all the properties should be available for partition and this result which is eminently just is achieved by the omission of Section 5 from Act 16 of 1961
Therefore the provision in Act 15 of 1978 omitting Section 5 from the principal Act is a virtue to be commended not a vice to be condemned
It is eminently reasonable and to contend against it is obviously unreasonable
143D F 4
To blaspheme the Board as an imperium in imperio a law unto itself and therefore arbitrary is an egregious error
The Board was not a new creation 138 but an old concoction brought into being by the Ruler thirty years ago continued by the Kerala Legislature in Act 16 of 1961 and recognised by the latest amendment Act
The Board is a time honoured entity wherein the heads of the four branches are members and is entrusted with the work of division of assets
The Board being an old institution in plenary management since 1949 and wisely composed of senior most members of the four branches is sentimentally and functionally the best instrument to divide and distribute
Indeed Act 16 of 1961 had also entrusted the task of partition to the same Board and no member had during nearly two decades challenged the wisdom of the provision
144B D Section 3 of the Act 15 of 1978 does not dispense with canons of fair play of natural justice and of quasi judicial values
A non curial instrumentality and procedure for partitioning cannot be condemned as discriminatory
The alternative created by the statute is quite reasonable and is a better instrument having regard to the totality of factors
Law is not a cocoon and keeps its eyes wide awake to the realities of life
The legislation in question has taken note of all facts namely a absence of any complaint against their management ever since the Board s creation b sanctification of the Board by the principal Act 16 of 1961 by conferring powers of partitioning the Kovilagam properties on this very Board and does nothing more What was good and valid in 1961 could not become vicious and invalid in 1978
145 B D E Quasi judicial responsibilities are implied by the statute in the Board s function and if the Board breaches these norms and canons the constitutional remedy under Article 226 comes into play
After all the Board is a statutory body and not an executive creature
It has been saddled with effecting the rights of parties and is bound to act quasi judicially
Its deviances are not unreviewable in writ jurisdiction
Sufficient guidelines are built in Section 3 and therefore Section 3 2 is not unbridled and unconstitutional
145F G 146E Maneka Gandhi vs Union of India 1976 Suppl
SCR 489 M section Gill and Anr
vs Union of India 1978 2 SCR 621 Organo Chemical Industries and Anr
vs Union of India  Anr 1980 1 SCR p 61 referred to
Absence of appeals does not jettison justice though often times appeals are the bane of the justice system especially because the rich can defeat the poor and the weak can be baulked of their rights indefinitely that way
The Board is a statutory body and when it violates the prescriptions of the law or otherwise acts arbitrarily or malafide article 226 of the Constitution is a corrective
146 F G of 1978 has none of the characteristics of class legislation and is on the other hand an equalising measure with a pragmatic touch
The Cochin Kovilagam vis a vis the Kerala State is sui generis
It has been legislatively dealt with as a special class throughout the history of Kerala and before
Partitioning of the royal family estates on principles similar those applicable to all other Kerala Hindu Families with the only difference that a Board instead of a Civil Court allots shares by metes and bounds is fully justifiable by the special circumstances
147 A B