ivil Appeal No 1277 of 1979
From the Judgment and Decree dated 481977 of the Kerala High Court in A section No 640 of 1971
G Viswanath lyer FS Nariman K Parasaran KR Nambiar P K Pillai section Balakrishnan section Ganesh Joy Joseph Mrs AK Verma section Sukumaran for JBD  Co Baby Krishnan and VJ Francis for the appearing parties
The Judgment of the Court was delivered by KULDIP SINGH J
The dispute before us is regarding the ownership rights over the timber clear felled from about 150 acres of jungle area in Kallar Valley and the right to transport the timber so felled from the said area
The Kallar Valley area forms part of the tract of land originally known as Kanan Devan Anchanatu Mala in the erstwhile Travancore territory of Kerala State
This area is generally called the Kanan Devan Hills concession hereinafter called the Concession Area   The Poonjar Rajs held free hold proprietary rights in the Concession Area
Originally the Raja was exercising sovereign rights but later on he came under the suzerainty of Travancore State
The Poonjar Rajsa by a deed dated July 11 1877 hereinafter called First Concession  conveyed the concession area with all the hills and forests therein to one JD Munro for cash consideration of Rs5000 and a deferred perpetual annual payment of Rs 3000 from 1884 onwards
Thereafter on July 26 1879 a second document was executed between the same parties hereinafter called Second Concession 
The terms of the first concession were reiterated enuring to Munro his heirs successors and assigns absolute right for ever to make all kinds of cultivations and improvements on the Concession Area
The grant of rights to Munro by the First Concession was ratified by the Travancore Government by a deed of ratification dated November 28 1878
Munro assigned the Concession Area to The North Travancore Land Planting and Agricultural Society Limited by a deed dated December 8 1879
Thereafter an agreement was executed between the Travancore Government and the Society on August 2 1886
264 By virtue of the agreement dated September 18 1889 between the Poonjar Raja and the Travancore Government and the proclamation of the Maharaja of Travancore dated August 24 1899 the territory comprising the Kanan Devan Hills including the Concession Area was declared part of the Travancore State
There were various transfers in respect of the Concession Area but finally by a deed dated July 16 1900 the Concession Area came to be vested in the Kanan Devan Hills Produce Company Limited hereinafter called the company 
In and around May 1963 the company clear felled about 150 acres in the Concession Area for cultivation
The Company applied to the State Government for grant of free passes to transport the timber from the Concession Area
The State Government by an order dated November 25 1966 informed the company that it could not take away timber outside the limits of the Concession Area except in accordance with the Rules of the forest department and on payment of levy in the shape of Kuttikanam
According to the Government in terms of the deeds of conveyanceratification the company was liable to pay Kuttikanam in respect of the timber taken out of the Concession Area
The company filed a suit in the year 1968 in the Court of Subordinate Judge Kottayam against the State of Kerala and its officers
In the suit the company prayed for the following reliefs a A declaration that the plaintiff company has full and unqualified ownership and title over and right of removal of the said timber from the Concession Area b Declaration that the State has no right to claim seigniorage Kuttikanam or any other payment in respect of the said timber c A mandatory injunction directing the defendants to grant the necessary free passes for the free transit of the timber outside the Concession Area d Prohibitory injunction restraining the defendants from taking any steps under the order dated 25111966
The State Government resisted the suit and controverted the interpretation placed by the company on the deeds of conveyance ratification
According to the State the company was only a lessee of the Concession Area and in terms of the deeds of conveyanceratification the State Government had the absolute right over the trees and 265 timber in the Concession Area
The company only acquired the right to use and remove the timber subject to the restrictions imposed in the said documents
It was further contended by the State Government that the title and ownership in the trees and timber in the Concession area always remained with the State Government and the company could only take the timber outside the limits of the Concession Area in accordance with the rules framed by the State Government and on payment of Kuttikanam
The Trial Court in a detailed and well reasoned judgment dismissed the suit of the company
The Trial Court on the interpretation of First Concession Exhibit P 1 Second Concession Exhibit P 2 deed of ratification Exhibit P 62 and the Government agreement with the Society dated August 2 1866 Exhibit P 64 came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area
It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee
It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyanceratification
The Court further held that the relevant rules framed under the Travancore Forest Act 1952 for levy of Kuttikanam were applicable to the timber transported from the Concession Area
The contention of the company that it was entitled to free passes for transportation of timber outside the Concession Area under the Transit Rules was rejected
The suit of the company was thus dismissed with costs
The company went up in appeal before the High Court
It was contended that the Trial Court misinterpreted the documents P 1 P 2 P 62 and P 64
It was contended that the Poonjar Raja had conveyed absolute possession to the grantee to be enjoyed perpetually with heritable and transferable right and it ought to have been held that the natural consequence of such a conveyance was to grant the company absolute title to the trees standing on the area so conveyed
It was argued before the High Court that the State Government had no right over the trees and the timber within the Concession Area
Before adverting to the various contentions raised by the parties before it the High Court indicated the approach it adopted to the questions involved in the case in the following words 266 For resolving the real controversy in the case we do not think there should be an enquiry into the question whether the plaintiff company is the absolute owner of the Concession Area as alleged by them or the company is only a lessee as contended by the defendants
Nor do we think any decision is necessary here as to whether at the time the agreement and proclamation of 1899 came into existence the Poonjar Chief had vested in him any proprietary rights over the Concession Area which he could pass to the government
We also do not think we should make a general enquiry as to the nature and extent of the rights conveyed and secured by the First Poonjar Concession of 1171877 and second Poonjar Concession of 2671879 Exs
P 1 and P2
We can well proceed in the matter on the basis as stated by the court below that absolute rights over the Concession Area had not been conveyed under Exs
P 1 and P 2 that by virtue of the transactions the plaintiff had only absolute possession with heritable and transferable interest and the right to enjoy the land subject to the terms and conditions declared and defined in the Ratifica tion Deed and agreement of modification namely Exs
P 62 and P 64
The question is what is the plaintiff s right over the timber and tree growth in the area on the basis of the grant under Exs
P 1 and P 2 wherein it gets wide rights in regard to the jungles and forest in the Concession Area unqualified rights to clear the land and improve the source
It is no doubt true that the rights which the plaintiff has acquired as per the grant of the Poonjar Raja are subject to the terms and conditions imposed by the Sovereign power of the Maharaja under exhibit P 62 and P 64
In short the question for a decision in the appeal will revolve round the interpretation of the relevant clauses in these documents
 The High Court then considered the contents of the documents P 62 and P 64 and came to the conclusion that the company had full rights over the timber clear felled from the Concession Area and it had right of removal of the timber with the necessary free passes issued under the timber transit rules
It was further held that the State of Kerala had no right or claim for the seigniorage or Kuttikanam or any other payment in respect of the said timber
The High Court allowed the appeal of the company and set aside the judgment and decree of the Trial Court
This appeal via special leave petition is against the judgment of the High Court
267 The High Court proceeded on the basis that absolute rights over the Concession Area had not been conveyed under the documents of conveyanceratification and the right to enjoy the land was subject to the terms and conditions declared in the ratification deed P 62 and the agreement of modification P 64
We agree with the approach of the High Court
The question therefore is what are the company s rights over the timber and the tree growth in the Concession Area
This takes us to clause 5 of P 62 and clause 7 of P 64 which are relevant
Clause fifth of the ratification dated November 28 1878 Exhibit P 62 is as under Fifth The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved viz Teak Coal teak Black wood Aboney Karinthali Sandalwood
Should he carry any timber without the limits of the grant it will be subject to the payment of Kuttikanam or customs duty or both as the case may be in the same way as timber ordinarily felled
In the case of the excepted timber the grantee is required to pay seigniorage according to the undermentioned scale 
The grantee is bound to deliver to the Poonjar Chief to enable him to make over to the Sirkar all ivory cardamoms and other royalties produced in the land and all captured elephants and he will be paid by the said Chief according to agreement with him the regulated price for the articles of produce and the regulated reward for the elephants
Clause 7 of the agreement dated August 2 1886 Exhibit P 64 is as under 7
The society its successors and assigns may use and appropriate to its own use within the limits of the said tract of land all timber except the following and such as may hereafter be reserved viz Teak Coak teak Black wood Aboney Karinthali and Sandalwood
But such society its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building furniture and machinery within the limits of the grant
No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and 268 customs department for the time being in force
In the case of the excepted timber the society for itself its successors and assigns agrees to pay seigniorage according to the undermentioned scale  
The society for itself its successors and assigns agrees to deliver to the said Poonjar Raja or Chief to enable him to make over the same to the government of Travancore all ivory and cardamoms and other royalties  captured elephants 
Mr Parasaran learned counsel appearing for the respondent company contended that in P 62 it was provided that the grantee could not carry timber beyond the limits of the grant without payment of Kuttikanam but by the time the agreement P 64 was executed in the year 1886 Kuttikanam had been abolished and as such there was no provision for the payment of Kuttikanam in the document P 64
Clause 7 of P 64 reproduced above makes it clear that the respondent company may use and appropriate to its own use within the limits of the Concession Area all timber except to the extent mentioned therein
It was further provided that   society its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building furniture and machinery within the limits of the grant
No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and customs department for the time being in force
It is thus clear that the company has no right under the said clause to carry the unworked timber beyond the limits of the grant
The company could not fell timber beyond what was necessary for clearing the ground for cultivation and for building furniture and machinery within the limits of the grant
Clause 7 clearly indicates that the grantee has no absolute right of ownership over the tree growth and the timber within the Concession Area
The ownership remains with the Government and the grantee has been given the right to fell the trees for clearing the ground for cultivation and to use the timber for specified purposes within the limits of the grant
An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie vs State of Kerala  K K Mathew J as the learned Judge then was interpreted the clause as under We think that if title to the reserved trees passed to the grantees a provision of this nature would have been 269 quite unnecessary
There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant if title to the trees passed to the grantees the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession
We agree with the interpretation given to the clause by Mathew J and hold that the respondent company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein
The company acquired the right to fell the trees and use the timber subject to the restrictions imposed in clause 7 of P 64
Since the respondent company has no right to remove the timber beyond the limits of the Concession Area the State Government was justified in refusing to permit free transportation of timber from the said area
We do not agree with Mr Parasaran that Kuttikanam having been abolished in the year 1884 the respondent company was not liable to pay Kuttikanam while transporting the timber from within the Concession Area
In Leslie vs State of Kerala supra the term Kuttikanam was explained as under In the Malayalam and English Dictionary by Rev H Gundert D Ph page 278 Kuttikanam  is defined as meaning the price of timber fee cliambable by the owner for every tree cut down by the renter 
In The Manual of Malabar Law  by Kadaloor Ramachandra lyer Chapter VII page 44 it is stated Kuttikanam is a mortgage of forests by which the landlord assigns on mortgage a tract of forest land receiving a stipulated fee for every trees felled by the mortgagee the entire number of the trees to be cut down and the period within which they are to be felled being expressly fixed in the karar entered into between the parties 
In the Glossary attached to the Land Revenue Manual 1916 Vol
IV at page 883 the word Kutti kanam  is said to mean a fee paid to the Sirkar for felling trees other than royal trees and tax paying trees 
In the 270 Glossary of Administrative Terms English Malayalam by the Official Language Committee at page 302 seigniorage  is defined as meaning 
We do not think that Kuttikanam  is either a fee or tax
A tax or fee is levied in the exercise of sovereign power
We think that in the context Kuttikanam  means the Government s share of the value of the reserved trees
 It was further held by Mathew J that Kuttikanam being the Government s share of the value of the trees owned by the Government it has the power to fix the value of the trees
We agree with the reasoning and conclusions reached by Mathew J Since the ownership cover the tree growth and timber in Concession area vests with the Government it has a right to impose Kuttikanam on the removal of the trees from within the Concession area
We may examine the justification for levying Kuttikanam from another angle
Clause 7 of P 64 states that no unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest department for the time being in force
The Government of Kerala in exercise of its rule making power under Section 93 of the Travancore Cochin Forest Act 1951 framed rules regulating the levy of Kuttikanam on trees standing on Government land by a notification dated July 9 1958
The said rules are reproduced hereinafter
TRAVANCORE COCHIN FOREST ACT 1951 111 OF 1952 RULES REGULATING THE LEVY OF KUTTIKANAM ON TREES IN GOVERNMENT LANDS
Section 932ddd and e Notification No 1482458 3AgriFB 3 dated 9th July 1958 published in the Gazette dated 15th July 1958 Part In exercise of the powers conferred by sub section 2ddd and e of Section 93 of the Travancore Cochin Forest Act 1951 Act Ill of 1952 the Government of Kerala hereby make the following rules regulating the levy of Kuttikanam on trees standing on Government lands namely 271 1
All trees standing on land temporarily or permanently assigned the right of Government over which has been expressly reserved in the deed of grant or assignment of such land shall be the absolute property of Government
It shall not be lawful to fell lop cut or maim or otherwise maltreat any tree which is the property of Government without proper sanction in writing granted by an officer of the Forest Department not below the rank of an Assistant Conservator Provided that in cases where the holder of the land is allowed under the title deed to lop or fell any such tree such lopping or felling may be done by such holder in the manner and subject to such conditions and payment as may be specified in the title deed in that behalf
Any lopping or felling of such trees otherwise than in accordance with the conditions and limitation specified in the deed of grant shall be unlawful
Government may in the absence of any provision to the contrary in the title deed sanction the sale of timber which is the property of Government to the holder of the land on which such timber is standing on payment of Kuttikanam or Seigniorage or such other rates as may be specified by Government in each individual case
In cases where the title deed specified the rate at which the timber will be sold to the holder of the land such rates only will be levied
Explanation Kuttikanam  means the seigniorage rate that may be in force in the Forest Department from time to time and notified by Government
The Collector of each District shall forward to the Chief Conservator of Forests a statement showing the full details of the trees standing on such lands at the disposal of Government as may hereafter be granted for permanent cultivation under the Land Assignment Act and the rules framed thereunder
On receipt of such statement the Chief Conservator of Forests will take appropriate action for the disposal of such tree growth within the period allowed under Section 99 of the Forest Act
272 The Travancore Cochin Forest Act 1951 was repealed by the Kerala Forest Act 1961 but Section 853 of the said Act saves the rules framed under the repealed Act
It is thus obvious that the rules reproduced above were holding the field at the relevant time
The trial Judge primarily relied on these rules for holding that the Government was justified in demanding Kuttikanam from the respondent company
The High Court however did not take into consideration these rules while interpreting clause 7 of Exhibit P 64
We agree with the findings of the trial court to the effect that the above quoted rules read with clause 7 of Exhibit P 64 empowers the State Government to levy and demand Kuttikanam from the respondent company in respect of timber taken out of the limits of the Concession area
Mr Parasaran invited our attention to a letter dated May 21 1932 Exhibit P 4 from Chief Secretary to Government to the General Manager of the respondent company
The letter reads as under With reference to your letter dated the 25th January 1928 regarding the payment of seigniorage on reserved trees felled from the KDHP Company s Concession Area I have the honour to inform you that Government accept your view that no seigniorage is due from the Company on trees other than the Royal Trees specifically mentioned in Clause 7 of the Agreement and sanction accordingly Mr Parasan contended that the State Government interpreted clause 7 of P 64 to mean that no seigniorage Kuttikanam was due from the company on trees other than the Royal Trees specified in the said clause
He argued that in the face of the Government decision in the above letter the Government could not demand Kuttikanam from the respondent company in respect of the non Royal Trees removed from within the limits of the Concession Area
We do not agree with the contention of the learned counsel
The letter re produced above refers to the letter dated January 25 1928 exhibit P 3 written by the General Manager of the company to the Government
The letter P l states as under The question arose through the Forest Department claiming seigniorage on certain species of timber used by this Company within the concession area for building purposes and which have been reserved under the Forest Regulation
273 The letter also states as under A  
I think it advisable that the whole question of Timber Rights in the Concession should be considered and settled if possible
 It is no doubt correct that while focusing the controversy in respect of the timber used by the company within the Concession Area the General Manager dealt with the larger question of timber rights in the Concession Area but reading the two letters P 3 and P 4 together the only conclusion which could be reached is that the letter P 4 was with respect to the use of timber by the company within the Concession Area
The letter P 4 cannot be read to mean that no Kuttikanam was leviable on the timber removed by the respondent company outside the Concession Area
In any case the wording of clause 7 of P 64 is clear and unambiguous
The Government letter P 4 is to be read in the light of clear phraseology of clause 7 and not the vice versa
We allow the appeal and set aside the judgment of the High Court
We uphold and approve the judgment and findings of the Trial Court
The suit of the respondent plaintiff is dismissed with costs which we quantify as Rs5000 R N J Appeal allowed


Summary:
The appellant No1 Maharani was married to a Maharaja in 1960 and the daughter appellant no2 was born of the wedlock in 1964
The relationship between the husband and the wife thereafter ceased to be cordial and the appellant started living in Bombay and the Maharaja within his estate in Madhya Pradesh
It is the case of the respondent No1 that the Maharaja decided to remarry without legally separating from the appellant
The respondent who is a relation of the Maharaja s mother respondent No2was misled both by the Maharaja and his mother respondent No2 was misled both by the Maharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under that belief she married the Maharaja had been dissolved and under that belief she married the Maharaja and several issues were born of this wedlock
In 1974 when the Maharaja died on application for grant of Letters of Administration was filed by the appellant Maharani and the respondent No1 applied for probate on the basis of an alleged will
This will was denied by the appellants
These proceedings are still pending
Respondent No1 filed an application under Section 11 of the for declaring her marriage as nullity and the Maharaja s mother was impleaded as the sole respondent
The appellants intervened and were impleaded as parties
The maintainability of the aforesaid application was challenged by the appellants on the ground that the marriage could not be declared 194 a nullity after the death of the Maharaja but both the trial court and the High Court have rejected this plea
In the appeal to this Court it was contended on behalf of the appellants that having regard to the very special relationship between husband and wifea marriage cannot be dissolved or declared to be a nullity unless both of them are parties thereto
The martial status of a person sands on a much higher footing than other positions one may hold in the society and cannot be allowed to be challenged lightlyand that the marriage of a person therefore cannot be declared as nullity after his death when he does no have an opportunity to contest
Reliance was placed upon the language of Section 11 of the 
On behalf of the respondent it was pointed out that having regard to the language of Section 16 of the as it it stood before its amendment in 1976he children born of the respondent would not have been entitled to the benefit of the section in absence of a decree declaring the marriage of their parents as nullity and this was precisely the reason that the respondent had to commence the present litigation On the question whether a petition under Section 11 of the for declaring the marriage of the petitioner as a nullity is maintainable after the death of the petitioner s spouse
Dismissing the appeal this Court HELD 1 An application under Section11 of the before its amendment in 1976 was maintainable at the instance of a party to the marriage even after the death of the other spouse201B
In the instant case the proceeding was started in 1974 that is before the amendment was made in the Hindu Marriage Act1955
Section II did not contain the words against the other party
At that time all that was required was that the application had to be filed by a party to the marriage under challenge
On the plain language of the section as it stood thenit could not be claimed that in absence of the other spouse as a party to the proceedings the same would not be maintainable197F 3Under the general law a child for being legitimate has to be 195 born in lawful wedlock and if the marriage is void or declared to be so by the Court it will necessarily have the effect ofbastardising the child born of the parties to such a marriage199F 4
By enacting Section 5i of the the legislature abolished polygamy which had always remained permissible and prevalent among the Hindus in the past
The Act was bringing about a very significant departure in this regard and taking into account the possibility of violation of the law in numerous cases at least for sometime to come special provisions were included under Section 16 of the Act with the object of protecting the legitimacy of the children199G 5
The benefit of Section 16 was confined to only such cases where a decree of nullity was granted under Section 11 or section 12
It did not extend to other cases
in 1976 section 11 was amended by inserting the words against the otherparty and alongwith the same section 16 was amended200D 6
By the amendment in section 11 in so far the cases where marriage can be declared as nullity the application of the rule protectingthe legitimacy was widened
If that had notbeenthe children born of such marriages would have been deprived of the advantage on the death of either of the parents
By the simultaneous amendment of the two sections it can safely be deducted that the Parliament did not hold identical views as expressed by the law Commission in its59th Report200F G 7
The intention of the legislature in enacting section 16 was to protect the legitimacy of the children who would have been legitimate if the Act had not been passed in 1955200H 8
There is no reason to interpret section 11 in a manner which would narrow down its field
With respect to the nature of the proceedings what the court has to do in an application under section 11 is not to bring about any change in the marital status of the parties
The effectof granting a decree of nullity is to discover the flow in the marriage at the time of its performance and accordingly to grant a decree declaring it tobe void
201A B Butterfield vs Butterfield ILRVol50 Calcutta 153 and Stanhope vs Stanhope  and Law Commission of India 59th Report Chapter 6 para 61A referred to
196 9It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status
The question will be dependent upon on the nature of the action and law governing the same
The provisions of the relevant statue relating to a question will be very material198H 199A Rayden and Jackson s Law and Practice in Divorce and Family Matters 15th Edn
p650 referred to