IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 7TH JANUARY, 2008/17TH POUSHA, 1929 RFA.No. 605 of 2004(A) ---------------------- OS.168/2000 OF THE ADDL. SUB COURT, ALAPPUZHA .................... APPELLANT/22ND DEFENDANT ------------------------ M.D.VARADARAJAN, S/O. LATE DAMODARAN, MALIKAYIL HOUSE, SANATHANAM WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA. BY ADV. SRI.K.V.SADANANDA PRABHU SRI.V.SATHEESH RESPONDENTS: PLAINTIFF & DEFENDANTS 1 TO 21 & 23 TO 28 ------------------------------------------------------ 1. G.SURESHKUMAR, S/O. B.RAJAMMA, KARTHIKA, THAMPURAN MUKKU, KUNNUKUZHI, THIRUVANANTHAPURAM 695 087. 2. JAYAPALAN S/O. LATE NARAYANAN, ABHILASH, CHELLAMANGALAM, OPPOSITE, POUDIKONAM PANCHAYAT OFFICE, PAUDIKONAM, SREEKARYAM, THIRUVANANTHAPURAM. (DIED) 3. DEVAPALAN S/O. LAGE NARAYANAN, SHEEJA BHAVAN, T.C.14/548, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM-33. 4. T.RADHAKUMARY, D/O. LATE N.SAHADEVAN, 'SWATHI', TC-12/548 (1), MULAVANA, KUNNUKUZHY, THIRUVANANTHAPURAM. 5. MAYA JAYASEELAN D/O. LATE N.SAHADEVAN, 'SWATHI', TC.-12/548 (2), MULAVANA, KUNNUKUZHY, THIRUVANANTHAPURAM. 6. S.ASHOK KUMAR S/O. LATE N.SANADEVAN, 'GOKULAM', THAZHAVA, KUTHIRAPANTHI P.O., KARUNAGAPALLY - 690 523. 7. RENUKUMARI T., D/O. LATE N.SAHADEVAN, CHAPRAYIL, RADIO JUNCTION, MARANAD P.O., EZHUKONE, KOLLAM. -2- R.F.A.NO.605/2004 8. PYARI SAHADEV, S/O. SHADEVAN, TC-6/571, KOOTH ROAD, ELIPODE, VETTIYOORKAVU P.O., THIRUVANANTHAPURAM 695 013. 9. K.S.UDAYAKUMAR S/O. LATE B.SARASAMMA, ARUN, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM. 10. K.S.UDAYAKUMARI D/O. LATE B.SARASAMMA, KALPANA, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM-695 034. 11. K.S.PRASANNAKUMARI D/O. LATE B.SARASAMMA, KARTHIKA, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM - 695 035. 12. K.S.PRASANNAKUMAR, S/O. LATE B.SARASAMMA KAMALALAYAM, TC-27/2347/2, CONVENT ROAD, THIRUVANANTHAPURAM 695 035. 13. K.S.BEENA D/O. LATE B.SARASAMMA, KALLARAVILASAM, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM. 14. SURITHI SANKAR, D/O. LATE B.SARASAMMA OF DO. DO. 15. REKHA SANKAR D/O. LATE B.SARASAMMA OF DO. DO. 16. R.SUSHARA DEVI D/O. LATE B.RAJAMMA, DEEPAM, NAVARANGAM LANE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 17. R.ASHA D/O. LATE B.RAJAMMA, SARAS, PLAMMODU, PATTOM, THIRUVANANTHAPURAM 695 037. 18. R.NALI D/O. LATE B.RAJAMMA, ROHINI, KOVILAKAM ROAD, MANJERI, MALAPPURAM. 19. G.SUDHEESHKUMAR S/O. LATE B.RAJAMMA, ROHINI, ROBOTAN LANE, CONVENT ROAD, G.H.JUNCTION, THIRUVANANTHAPURAM. 20. SUNIL GANGADHARAN S/O. LATE B.RAJAMMA, THARAVADU, VATTIYURKAVU, THIRUVANANTHAPURAM. 21. T.K.MANU S/O. LATE CHANDRIKA DEVI, GOKULAM, THEKKUMMOODU, THIRUVANANTHAPURAM. 22. LEELA SREENIVASAN D/O. LATE DAMODARAN, KALLARAVEEDU, NANANPOOR PANCHAYAT, KAVALAYUR P.O., CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM. -3- R.F.A.No.605/2004 23. MEENA UTHAMAN D/O. LATE DAMODARAN, MALIKAYIL HOUSE, SANATHANAM WARD, SOUTH ARYAD MURI, ARYAD SOUTH VILLAGE, ALAPPUZHA. 24. SAROMA PURUSHOTHAMAN, D/O. LATE DAMODARAN, ARUNIMA, NEAR X-RAY HOSPITAL, CHERTHALA. 25. MOHAN RAJ, S/O. LATE GANGADHARAN, MALIKAYIL HOUSE, KOMMADY L WARD, ALAPPUZHA. 26. RADHAVIJAYA RAGHAVAN, D/O. GANGADHARAN, KRISHNA NIVAS, MALAKUNNAM P.O., CHANGANACHERRY. 27. SUDARSANAN, MAHALAKSHMI MARBLES, CCSB ROAD, EAST OF IRON BRIDGE, ALAPPUZHA. 28. THE DEPOT MANAGER, ALLEPPEY, AGRO SALES & SERVICE, CCSB ROAD, EAST OF IRON BRIDGE, ALLEPPEY-11. 29. THE MANAGING DIRECTOR, ALAPPUZHA FINANCE ENTERPRISES OF DO. ADDL. 30. KAMALADEVI, W/O.JAYAPALAN, AGED 70, RESIDING AT ABHILASH, CHELLAMANGALAM, POUDIKUNNU, SREEKARYAM, THIRUVANANTHAPURAM. " 31. JIKKI, D/O.JAYAPALAN, AGED 40, -DO- -DO " 32. NIMMI, D/O.JAYAPALAN, AGED 37, -DO- -DO- " 33. BAIJU, S/O.JAYAPALAN, AGED 35, -DO- -DO- (LEGAL HEIRS OF DECEASED R2 ARE IMPLEADED AS ADDL. R30 TO R33 AS PER ORDER DTD. 6/6/07 ON IA.2061/06) BY ADV. SRI R.AZAD BABU SRI J.OM PRAKASH SRI JAYAN.C.DAS THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2007, THE COURT ON 07/01/2008 DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- R.F.A.NO.605 OF 2004 -------------------------------- Dated this the day of January, 2008 JUDGMENT Raman, J. This appeal arises out of the judgment and decree in O.S.No.168/2000 of the Sub Court, Alappuzha. The suit is one for partition. Defendant No.22 is the appellant herein. The suit property jointly belonged to one Rajan and his wife Sulochana. They had no issues. Rajan died in 1991. Subsequently, Sulochana died intestate in 1993. Hence succession is governed by the provisions of Hindu Succession Act, 1956. But the point in controversy is as to whether the estate of the deceased will devolve on the legal heirs as per Section 16 or Section 17 of the Hindu Succession Act. In this regard it is contended by the learned Counsel, Sri Sadananda Prabhu, appearing for the appellant that at the time Sulochana died in 1993 she is not governed by the marumakkathayam law, since the marumakkathayam law in the State of Kerala had been repealed by the provisions contained in the Kerala Joint Hindu Family System (Abolition) Act, 1975. According to him, since the succession opens in 1993, on the -2- R.F.A.No.605/2004 death of Sulochana when she is not governed by the marumakkathayam law, the estate of the deceased will be devolved on the legal heirs in terms of Section 17 of the Hindu Succession Act. Per contra it is contended by the contesting respondents that Section 17 itself gives sufficient indication that whether the provisions of Section 15 will apply or Section 17 will apply, will have to be decided as on the date of commencement of the Hindu Succession Act, 1956. As per Section 17 of the Act, the provisions of Sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the provisions of marumakkathayam law, if this Act had not been passed. In other words, according to them, the application of Section 15 or Section 17 as the case may be, will have to be decided as on the date of commencement of the Hindu Succession Act. The parties are governed by the marumakkathayam law at the time of commencement of the provisions of the Hindu Succession Act. There were two provisions governing the succession. While enacting the law the legislature has taken care to provide two separate provisions indicating the manner in which the estate will devolve and the determination of the heirs will therefore be governed by the provisions of Section 15 in the case of marumakkathayi as per Section 17 of the Act. According to them, -3- R.F.A.No.605/2004 both Section 15 and Section 17 have come into force. In the absence of any provision contained in the Joint Hindu Family System (Abolition) Act expressly amending the provision of Section 17, the continued application of Section 17 is not affected by the Joint Hindu Family System (Abolition) Act, 1975. 2. Heard both sides. 3. The Hindu Succession Act, 1956 codified the law relating to intestate succession among Hindus. The Act lays down a uniform and comprehensive system of inherintance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to previous Marumakkathayam, Aliyasanthana and Namboodiri laws. The Act applies to every person who is a Hindu by religion. By the Hindu Succession (Amendment) Act, 2005 certain amendments were brought out more particularly to Section 6 with a view to remove gender discrimination and recognises the right of female to inherit ancestral property as their counterpart male do in coparcenary property besides omitting Section 23. The Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force on 1/12/1976. As per the statement of objects and reasons itself it can be seen that as regards matter for which provisions have been made in -4- R.F.A.No.605/2004 Hindu Marriage Act, Hindu Succession Act, Hindu Minority & Guardianship Act and Hindu Adoption and Maintenance Act as per law made by the Parliament, those provisions will prevail over the State enactment. Among the Hindus of Kerala a sizable portion are Marumakkathayees. In the Travancore area of the State different sections of Marumakkathayees are governed by various enactments. As regards marriage and its dissolution joint family property and its management, succession etc. there are some sections of Marumakkathayees in the Travancore Area to whom none of these enactments applies. They are governed by the pure Marumakkathayam system of law as modified by custom. In the Cochin area also, the Marumakkathayees are governed by various enactments. In the Malabar area all Marumakkathayees except those who follow the Aliyasanthana system are governed by the Madras Marumakkathayam Act, 1932. Those who follow Aliyasanthana system are governed by the Madras Aliyasanthana Act, 1949. In all the three regions, there are Makkathayee Hindus who are governed by statutes or the Mitakshara Law as modified by custom and statutes or by the Kerala Namboodiri Act, 1958. Thus, from the statement of objects it is clear that as regards matters for which provisions have been made in the above acts, -5- R.F.A.No.605/2004 the provisions contained in the Hindu Succession Act will prevail over those in the State enactments and what has been dealt with under the Hindu Joint Family System (Abolition) Act is only "Tharwad and its management and partition." The preamble of the Joint Hindu Family System (Abolition) Act, 1975 shows that the statute was brought to abolish the Joint Family System among Hindus in the State of Kerala. The term "Joint Hindu Family" as defined under Section 2 would take in (1) A tharwad or thavazhi governed by the Madras Marumakkathayam act, 1932, the Tavancore Nayar Act, 11 of 1100, the Travancore Ezhava Act, 111 of 1100, the Nanjinad Vellala Act of 1101, the Travancore Kshatriya Act of 1108, the Travancore Krishnavaka Marumakkathayee 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 Namboodiri Act 1958; and (4) an undivided Hindu Family governed by the Mitakshara Law. Section 3 of the Act abolishes the right by birth in the property of the ancestor. It is an incidence both under the Marumakkathayam Law as well as the Mitakshara Law, the only difference between them being that the former is founded on matriarchal -6- R.F.A.No.605/2004 family and the latter on the patriarchal. By the passing of the Abolition Act, the legal incidence of right by birth in the community property has been abolished and no claim based on such right will be countenanced. In Marry v. Bhasuradevi (1967 KLT 430 (FB)) a Full Bench of 5 Judges held that the three degree rule of Mitakshara Law regarding right by birth founded on religious obligation does not apply to Marumakkathayam system of law. Under the Marumakkathayam Law every member of a tharwad, however gets a right by birth. As per Section 4 of the Act, the property held as thavazhi got converted into property held as tenancy-in- common by all the existing members of the thavazhi as on 1/12/1976. Section 3 preserves the right of the creditor to proceed against a son under the rule of pious obligation in respect of a debt contracted before the commencement of the Act. Section 6 provides that the liability of the members of a Hindu Joint Family for debts contracted before the commencement of the Act shall remain unaffected by any provisions of the Act. Section 7 is repealing provision. It provides that 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 -7- R.F.A.No.605/2004 effect with respect to any matter for which provision is made in this Act. As per sub section 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 repealed. There are 12 enactments included in the Schedule including Travancore Nayar Act, 11 of 1100 and Travancore Ezhava Act, 111 of 1100. Section 8 provides that notwithstanding anything contained in this Act or in any other law for the time being in force, proclamation (IX of 1124) dated 29th June, 1949 will continue to be in force. Therefore, the only section which provides for deemed partition is Section 4 as per which all the members of an undivided Hindu Family governed by the Mitakshara Law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in- common, as if a partition had taken place among all the members of that undivided Hindu Family as respects such property and as if each one of them holding his or her share separately as full owner thereof. As per the proviso to sub section 1 of Section 4, nothing in this sub section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undivided Hindu Family, other than persons who have -8- R.F.A.No.605/2004 become entitled to hold their shares separately and any such right can be enforced as if this Act had not been passed. As per sub section 2 of Section 4, all the members of a Joint Hindu Family, other than an undivided Hindu Family referred to sub section (1), holding any Joint Family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof. 4. The question as to whether Section 17 of the Hindu Succession Act was impliedly repealed by the provisions contained in the Joint Hindu Family System (Abolition) Act or there is any repugnancy came up for consideration before this Court in Chellamma Kamalamma v. Narayana Pillai (1993 (1) KLT 174 (FB)). A Full Bench of 5 Judges after referring to various provisions under the related enactments and after a brief survey of the changes made in the Marumakkathayam system of inheritance with particular reference to the facts of those case held that Section 17 of the -9- R.F.A.No.605/2004 Hindu Succession Act, 1956 made separate provision in relation to succession on the death of males or females who would have been governed by the Marumakkathayam law, if the Hindu Succession Act has not been passed. So far as succession to females are concerned, Section 17 states that provisions of Section 15 relating to succession to female will have to be applied in the manner in Section 17(ii). Thus, Section 17 of the Hindu Succession Act and other sections brought about changes in the law of succession mentioned in the Travancore Nair Act and other matters relating to succession to males or females, who died after the commencement of the Hindu Succession Act governed by the Marumakkathayam Law of succession as specified in the Travancore Nair Act. The question is as to whether the general changes made in the Marumakkathayam system of inheritance by Hindu Succession Act more particularly Section 17 of the Hindu Succession Act was intended to be trenched upon by the Joint Hindu Family System (Abolition) Act. 5. The Kerala State Legislature passed the Joint Family Abolition Act, 1975 under Entry 5 of List III of the Constitution of India, whereas the Hindu Succession Act 1956 was passed by the Parliament under the same entry in relation to the matters, which was specifically provided for. -10- R.F.A.No.605/2004 After referring to the provisions contained in the Hindu Succession Act including its preamble, the Court held as follows: "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 field 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 Indian Succession Act and the Joint Family Abolition Act, 1975." 7. 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. An argument was raised 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 pointing out that the latter Act had received the assent of the President of India, and, therefore, Article -11- R.F.A.No.605/2004 254(2) of the Constitution of India was attracted. This Court repelled the said contention and said that 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. It was held 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. The discussion is contained in paragraph 23 of the judgment. In that regard a contention was raised 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 Joint Family Act, 1975 would also be in the same position. What matters in cases relating succession is the date of death. On the date of death if a particular system of Marumakkathayam law was -12- R.F.A.No.605/2004 not in existence, the person could not be said to be governed by that law. On the other hand, it was submitted by the other side 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 was therefore argued that the principle of incorporation or reference as mentioned in the three decisions of the Supreme Court, namely, Ram Sarup v. Munshi (AIR 1963 SC 553), Bajya v. Gopika Bai (AIR 1978 SC 793) and State of Madhya Pradesh v. Narasimhan (AIR 1975 SC 1835), cannot be applied. It was 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 commencement of the Hindu Succession Act. The -13- R.F.A.No.605/2004 court considered 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 and found out whether on the passing of the Joint Family Abolition Act, 1975, the Marumakkathayam law--both statutory and customary--come to be totally repealed. In that regard, the question as to what is the effect of Section 7 (1) and Section 7(2) of the Joint Family Abolition Act was answered. After an elaborate discussion on the point in controversy with reference to the various provisions of the Hindu Succession Act and Joint Family Abolition Act and after referring to the case law decided by the Apex Court, the court held as follows: " 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 group (ii), that is the group of the 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 after 18/6/1956 but before 1/12/1976 and who died on or after the -14- R.F.A.No.605/2004 commencement of the Joint Family Abolition Act, 1975." 7. 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. The points summarised in paragraph 50 of the judgment are as follows: "(1)S.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 dies 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 -15- R.F.A.No.605/2004 (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) S.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. . . . . . . . . . . . . . . " 8. Subsequently, in Bhaskaran v. Kalliani (1990 (2) KLT 749) it was held that notwithstanding the coming into force of the Joint Hindu Family System (Abolition) Act, 1976-Kerala, succession to the properties of a Marumakkathayi female, who dies after the commencement of the Act, would continue to be governed by Section 17 of the Hindu Succession Act. On the facts stated the only point that arises for decision in the present case therefore is as to whether the effect of the repealing provisions contained in Section 7(1) and 7(2) of the Joint Hindu Family System (Abolition) Act had in any away affect the the continued application of Section 17 and whether the court below was right in holding that in view of the decision of the Full Bench of this Court, partition has to -16- R.F.A.No.605/2004 be effected by applying the provisions contained in Section 17. In the light of the above discussion, it has to be held that the plaintiff and defendants 1 and 20 have got partible interest over the plaint schedule property and on the death of Sulochana, the succession governed by Section 17 of the Hindu Succession Act. In the circumstances, we confirm the