IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WA.No. 1907 of 2006(A) ---------------------- {IN OP.8975/1997 OF THIS COURT} .................... APPELLANT(S): PETITIONERS ----------------------------------------------- 1. KRISHNAKUMARI THAMPURAN, D/O.AMMINI THAMPURAN, AGED 49 YEARS, CHITTETH HOUSE, KUNNEPARAMBATHU ROAD, VAZHAKKALA, B.M.C. P.O., COCHIN-21. 2. SABU T.M., S/O.KRISHNAKUMARI THAMPURAN, CHITTETH HOUSE, KUNNEPARAMBU ROAD, VAZHAKKALA, B.M.C. P.O., COCHIN-21. 3. SALI T.M., S/O.KRISHNAKUMARI THAMPURAN, CHITTETH HOUSE, KUNNEPARAMBU ROAD, VAZHAKKALA, B.M.C. P.O., COCHIN-21. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S)/RESPONDENTS: ------------------------------------------------------- THE PALACE ADMINISTRATION BOARD, KALIKOTTA FORT, THRIPUNITHURA, REP. BY ITS PRESIDENT. BY ADVS. SRI.JOSEPH FRANKLIN & SMT.NIMMI FRANKLIN FOR PALACE ADMN.BOARD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, Ag.C.J. & V.GIRI, J. ------------------------- W.A.No.1907 of 2006 ------------------------- Dated this the 26th day of February, 2009. JUDGMENT GIRI, J. An issue arising from a claim for partition intractably pursued by a member of the erstwhile Cochin Royal Family in the first instance and thereafter by her two sons born out of her relationship with a person professing a different religion, has given rise to this litigation. No doubt, the issues have become more perplexing due to the peculiar nature of the property involved, firstly by the fact that the personal law applicable to the members of the erstwhile Cochin Royal Family was the Marumakkathayam Rules of inheritance; secondly on account of the successive statutory interventions applicable to the system of Joint Hindu Family in the State as a whole, and sometimes applicable to the erstwhile Cochin Royal Family. We will recapitulate the bare essential facts necessary to understand the issues arising for consideration. W.A.No.1907 of 2006 :: 2 :: 2. The first appellant [now deceased], was a member of the erstwhile Cochin Royal Family. She married a Namboodiri and a male child was born in the wedlock. Later, during the lifetime of her husband and during the subsistence of the marriage, she entered into a relationship with a Muslim and begot two children, viz., appellants 2 and 3. 3. The claim, which is adjudicated in this appeal was one which was raised on behalf of appellants 2 and 3, who are the children of the first appellant, born to a Muslim. The claim was pursued qua a share in the properties which belong to the erstwhile Cochin Royal Family. It may noted, at the outset, that the claim raised by the first appellant, now deceased, as regards her share in the erstwhile Joint Hindu Family properties was entertained and satisfied, though the first appellant earlier had expressed a dissatisfaction regarding the quantum of the share allotted to her in this regard. As noted by the W.A.No.1907 of 2006 :: 3 :: learned single Judge, that claim was not pursued by the 1st appellant. 4. The statutes applicable to the properties in question regulating its division and succession are peculiar and it is necessary to refer to the law in question. Finding that the members in the erstwhile Cochin Royal Family, are quite numerous and also finding that the properties available were not, at the same time, getting enlarged, the then Ruler of Cochin Sri.Rama Varma promulgated a proclamation on IX/1124, corresponding to 29th June, 1949 in relation to the administration and management and conservation of the properties of the Valiamma Thampuram Kovilakom Estate and Palace Fund. Clause 2 (bb)(c) and 3(1) of the said proclamation are relevant and are, therefore, extracted hereunder: “2(bb) 'family; means the marumakkathayam joint family consisting of the four main travazhies of the Ruler, of the former state of Cochin within the meaning of Clause (22) of Article 266 of the Constitution of India.” W.A.No.1907 of 2006 :: 4 :: 3(1) The Estate and the Palace Fund shall vest in a Board to be called “The Palace Administration Board” and such Board shall administer the Estate and the Palace Fund subject to the provisions of this Proclamation.” 5. Clause 13 of the proclamation provided that the Board shall administer the properties and palace fund as carefully as an ordinary prudent man deals with his properties or fund. What is to be noted, insofar as the proclamation is concerned, is the vesting of the Estate and Palace Fund in the Palace Administration Board and the power available to the Board under Clause 21 thereof, extended to acquisition of movable and immovable properties and leasing out any movable property belonging to the estate. No other alienation could be effected by the Board. No other member of the family was considered to have any other right in relation to the property. W.A.No.1907 of 2006 :: 5 :: 6. It has to be noticed, at this juncture, that the Hindu Succession Act, 1956, when it was enacted specifically provided vide Section 5(iii) thereof that the Act shall not apply to the Estate and Palace Fund administered by the Board. 7. The next statutory intervention came in 1961 by virtue of the Valiamma Thampuram Kovilakom Estate and Palace Fund Act {hereinafter referred to as the “VTK Act 16/61”}. Section 3 of the said Act enabled the Maharaja of Cochin to declare the decision to effect a partition under his supervision and control provided he is satisfied in that regard in the interest of the family. Under Section 4(1), each member shall be entitled to an equal share of the Estate and the Palace Fund and 'Member' means a member of the family of the Maharaja of Cochin {vide Section 2(d) of the Act}. Section 6 of the Act provided for the execution and registration of the deed of partition on behalf of all the members by the Maharaja of Cochin W.A.No.1907 of 2006 :: 6 :: and the members of the Board. Section 7 expressly bars the power to institute a suit for partition of the estate and the palace fund. Section 8 of the Act excluded the personal privileges of the Maharaja from the purview of the Act. Section 5(3) of the Act which shielded the Kovilakam Estate and Palace Fund from the provisions of the Hindu Succession Act was directed to be omitted with effect from the execution of the partition deed under Section 6 of the Act. The effect of 1961 Act was, therefore, to bring about a limited partibility of the Kovilakam Estate and Palace Fund. The restriction on partibility was relatable to Section 3 of the Act, which still made partition dependent on a decision to be taken by the Maharaja of Cochin in that regard. 8. In chronological order, the next statutory intervention came about by the Joint Hindu Family System (Abolition) Act, Act 30/76 {hereinafter referred to as the “Abolition Act”}. Section 2(1) of the Abolition Act defined a W.A.No.1907 of 2006 :: 7 :: 'Joint Hindu Family' as to include a 'tarwad' or 'thavazhy' governed by the Cochin Marumakkathayam Act. Section 4 (2) of the Abolition Act is relevant in this context and it reads as follows: “4(2) All members of a Joint Hindu Family, other than an undivided Hindu Family referred to in sub-section(1), holding any Joint Family property on the day this Act comes into force,s hall, 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.” 9. The erstwhile Royal Family of Cochin would be a Joint Hindu Family, falling under Sub-Section (2) of Section 4 of the Abolition Act and therefore, the enforcement of the Act would have normally provided for a per capita division of the family properties amongst the W.A.No.1907 of 2006 :: 8 :: members of the family. But this statutory intervention was kept at bay by reason of Section 8 of the Abolition Act, which reads as follows: “8. Proclamation IX of 1124 and Act 16 of 1961 to continue in force:-- Notwithstanding anything containing in this Act or in any other law for the time being in force, Proclamation (IX of 1124) dated the 29th June, 1949, promulgated by the Maharaja of Cochin, as amended by the Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Act, 1978, and the Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition Act, 1961 (16 of 1961), as amended by the said Act, shall continue to be in force and shall apply to the Valiamma Thampuran Kovilakam Estate and the Palace Fund administered by the Board of Trustees appointed under Section 3 of the said Proclamation.” 10. The Abolition Act was amended in 1978 by the amendment Act 15/78. This provided for abolition of Sections 4 and 5 of the VTK Act, by way of an amendment of Section 3 to the following effect: W.A.No.1907 of 2006 :: 9 :: 3. Partition of the Estate and Palace Fund:- (1) The seniormost male member of the family shall, within sixty days from the date of commencement of the Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Ordinance, 1978, direct the Board to effect partition of the State and the Palace Fund among all the members entitled to a share of the Estate and Palace Fund under S.4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), and such a direction shall be published by the Board in the Gazette. (2) If the seniormost male member fails to direct the Board as required by sub-section (1) the Board shall, on the expiry of the period specified int hat sub-section proceed to effect the partition of the Estate and the Palace Fund among the members referred to in sub-section (1), and the partition so effected shall be W.A.No.1907 of 2006 :: 10 :: valid notwithstanding anything contained in Section 17 of the Proclamation.” 11. Thus, the statutory frame work, as applicable and available with effect from the enforcement of the Amendment Act 15/78 could, briefly, be encapsulated as follows: 12. The properties of the erstwhile Royal Family of Cochin, which was earlier comprehended by the Cochin Marumakkathayam Act and wherein the members of the family had earlier followed the Marumakkathayam system of inheritance came to be vested in an Estate and Fund. Each member of the family was entitled to a share in the property; Civil Court could not direct partition, as the jurisdiction of the civil court was ousted. The senior most male member of the family {as distinguished from the erstwhile Ruler} was obliged, within 60 days from the commencement of the Amendment Act 15/78, to direct the Board to effect partition of the estate and the palace W.A.No.1907 of 2006 :: 11 :: fund among all the members entitled to a share in terms of Section 4 of the Abolition Act. 13. In this context, it is apposite to refer to the two judgments of the Supreme Court which cleared the air of considerable confusion prevailing as to the law of succession applicable to the members of the family, the right available to the Board to effect partition, the nature of the powers to be exercised in that regard by the Board, whether there was a complete ouster of jurisdiction of the civil court to entertain claims of partition and most importantly the date, with reference to which a member of the family could claim a right to obtain a share in the properties in question. In Rama Varma v. State of Kerala {AIR 1979 SC 1918} , the Apex Court was essentially concerned with the constitutional validity of the provisions of the Act, 1961, juxtaposed with the provisions of the Abolition Act. The court upheld the validity of the provisions of the Act and held that the Board had the right W.A.No.1907 of 2006 :: 12 :: to effect partition of the properties and the absence of an appeal against the Orders of the Board is of no consequence. The court thought it appropriate to entertain a review preferred by the Board in relation to the aforementioned decision and it is, therefore, that by the decision in Palace Administration Board v. R.V.B.Thampuran {AIR 1980 SC 1187}, the court proceeded to hold that the definition of “Joint Hindu Family”, as occurring in Section 4(2) of the Abolition Act, is wide enough to include the Cochin Royal Family. It was further held that the rule of per capita division provided for in the 1976 Act was not contrary to the provisions of the 1961 Act. The court positively held that the division among the members of the erstwhile Royal Family is to be effected according to Section 4(2) of the Abolition Act. 14. Thus, the irrefutable position which came to prevail on the enforcement of Act 15/78, which is the latest in the statutory intervention as considered and W.A.No.1907 of 2006 :: 13 :: espoused by the Supreme Court can be stated thus: That the properties of the erstwhile Royal Family of Cochin will have to be treated as properties belonging to the Joint Hindu Family as contemplated by Section 4(2) of the Abolition Act, Act 30/76. A member of the family, as obtaining on the date of enforcement of Act 15/78 is entitled to a share in the said property, consequent upon a per capita division, by enforcement of Section 4(2) of the Abolition Act. The entitlement to a per capita share in the said property was to be determined with reference to the enforcement of Act 15/78. The Board, which was to administer the partition was obliged to act in accordance with the principles of natural justice and the power exercised by the Board was considered as quasi judicial in character. 15. With the above background in mind, we shall now proceed to consider the specific contentions taken up by the appellants. W.A.No.1907 of 2006 :: 14 :: 16. As stated above, the first appellant (now deceased) a member of the erstwhile Royal Family and a sharer in the properties of the VTK Estate and Palace Fund, during the subsistence of a valid marriage, contracted a relationship with a person professing another religion and begot appellants 2 and 3 on 6.3.1969 and 25.5.1970. Pursuant to the later decision of the Supreme Court in Palace Administration Board v. R.V.B.Thampuran {AIR 1980 SC 1187}, the Board finalised its proceedings for partition of the properties and the first appellant as a member of the Cochin Royal Family was allotted a share therein. But, it was only in 1995 that she had proceeded to question the quantum of the share so allotted to her, as is evident by Ext.P2 representation and thereafter she had approached this court in O.P.No.2305/96 which was dismissed as per Ext.P4 judgment by a learned Judge of this court. In appeal, as evidenced by Ext.P5 judgment, the Division Bench permitted the first appellant/petitioner W.A.No.1907 of 2006 :: 15 :: to pursue Ext.P2 representation before the Palace Administration Board, which was directed to dispose it of , within a time frame. The Board considered the representation and rejected the same. Though a claim was raised in this regard in the writ petition, it was expressly given up before the learned single Judge. 17. The crucial issue, which was considered by the learned single Judge and which was pursued before us relates to the claim made on behalf of appellants 2 and 3, the children born to the 1st appellant, in her relationship with the father of appellants 2 and 3. As stated above, Krishnakumari Thampuran, while being married to Vamadevan Namboodiri, is stated to have contracted a marriage with a person professing Islam and begot two children, appellants 2 and 3. The question is whether appellants 2 and 3 are entitled to a share in the properties vested in the VTK Estate and Palace Fund, which originally belonged to the Cochin Royal Family. W.A.No.1907 of 2006 :: 16 :: 18. The Board considered the contention and rejected the same as per Ext.P7 order on two grounds. Firstly, if appellants 2 and 3 are the illegitimate children of Krishnakumari Thampuran, a member of the family, then a limited right available to the children are those contained in Section 16(3) of the Hindu Marriage Act. This right, it was held, could be exercised only qua the individual property of the parent and cannot be used to pursue a claim in relation to a Joint Hindu Family property, like that of the VTK Estate and Palace Fund. Reliance in this regard was made on the decision of the Supreme Court in P.E.K.Kalyani Amma & others v. K.Devi and others {AIR 1996 SC 1963}. The learned Judge held that the rights available to illegitimate children under Section 16(3) of the Hindu Marriage Act is confined only to the individual properties of the parents and cannot be extended to coparcenary property. Essentially, the learned single Judge, therefore, rejected the claim of appellants 2 and 3, W.A.No.1907 of 2006 :: 17 :: on the aforementioned basis. The correctness of this view has been challenged by the appellants. 19. We heard counsel on both sides. 20. Learned counsel for the appellants contended that the properties in question are not coparcenary in character and therefore, the view taken by the learned single Judge on the basis of Kalyani Amma's case, in the context of Section 16(2) of the Hindu Marriage Act is not correct. It is contended that, to an extent, there is some similarity between coparcenary property and Marumakkathayam property, inasmuch as that, in both, succession is by survivorship. But, what is crucial, it is contended, insofar as Marumakkathayam properties are concerned, is that succession is traced through the female line of descent and since there is no dispute that appellants 2 and 3 are the children of the 1st appellant and it is not disputed that the first appellant is a member of the Royal Family, and a member of the tarwad, her W.A.No.1907 of 2006 :: 18 :: offspring, it is contended, per se, would also be members of the Marumakkathayam tarwad, to which the properties in question belong. How far is this contention sustainable? We have bestowed our anxious consideration on the different aspects emanating from this. The statutory framework within which the rights of the members of the erstwhile Royal Family of Cochin was to be regulated has been referred to in extenso. The personal law applicable to the parties has also been referred to. We are of the view that, though not for the reasons which found favour with the learned single Judge, the claim pursued by appellants 2 and 3 for a share in the properties currently vested in the VTK Estate and Palace Fund is clearly unsustainable and untenable. 21. There are one or two aspects relating to the applicability of the Hindu Marriage Act and Hindu Succession Act, that requires a clarification straight away. Hindu Marriage Act of 1955 is an Act to amend and codify W.A.No.1907 of 2006 :: 19 :: the law relating to marriage among Hindus. What is crucial, insofar as the present case is concerned, is Section 2(1) of the Act, which is extracted hereunder: “2(1) This Act applies -- (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, (b) to any person who is a Buddhist, Jaina or Sikh by religion, and (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.” 22. The explanation is expansive to the extent it comprehends Buddhists, Sikhs and Jains. What is mentioned in Sub-clause (a) and (b) thereof, is thus any child, legitimate or illegitimate, both of whose parents are W.A.No.1907 of 2006 :: 20 :: Hindus, would be a Hindu. Admittedly, only one among the parents of appellants 2 and 3 is a Hindu. The father of appellants 2 and 3 is admittedly a Muslim and obviously, by reason of Section 2(1)(c), the Act is not applicable to a Muslim, Christian or a Parsi or a Jew by religion. Secondly, as per Clause (b) coming under the explanation, any child even illegitimate, one of whose parents is a Hindu by religion, could also be a Hindu, provided he has been brought up a member of the tribe, community, group or family to which such parent, viz., the parent who is a Hindu belongs or belonged. Is it the case of appellants 2 and 3, that though there was no valid marriage between first appellant and their father and therefore, they could be considered as illegitimate in that sense, nevertheless they are entitled to be treated as Hindus because their mother is a Hindu and they were brought up as members of the tribe, community, group or family to which their mother belonged? Significantly, at no point of time did appellants W.A.No.1907 of 2006 :: 21 :: 2 and 3 put forward a case that they are Hindus by birth, or that they profess the Hindu Religion or that they are eligible or liable to be treated as Hindus by reason of the fact that their mother is a Hindu, though their father is a non-Hindu and that they were brought up as a member of the community or group to which their mother belonged. The original petition does not contain such an averment. The claim before the Board also did not contain such a claim. In fact, the case put forward by appellants 2 and 3 is to the effect that on the marriage between the mother, the 1st appellant and their father, they have all been living separately, in rented premises. They have no house of their own and at the time of filing the writ petition, they have been living with their wives and children. There were no suggestions put forward, at any point of time, that appellants 2 and 3 were brought up as members of the community or group to which their mother belonged. It is only appropriate to proceed on the premise that appellants W.A.No.1907 of 2006 :: 22 :: 2 and 3 did not, any point of time, claim that they are Hindus. 23. In such circumstances, it is only consequential to hold that the provisions of the Hindu Marriage Act do not apply to appellants 2 and 3. Section 16 of the Act also, therefore, will not confer any right in favour of appellants 2 and 3. 24. We are also of the view that the legitimacy of children out of void and voidable marriage, as contained in Section 16 of the Act is essentially in the context of Section 11 of the Act, which provides for null and void marriages. Section 16(3) is, of course, an exception to Section 16(1) of the Act. But the application of Section 16(1) itself would be restricted to children born out of a marriage which are only void in the context of Section 11 of the Act. Since the nullity of a marriage is provided in Sections 5 of the Act, it is clear that Section 11 would have application only in the case of a marriage which may be solemnised between two W.A.No.1907 of 2006 :: 23 :: Hindus, subject to the conditions mentioned therein viz., neither parties, at the time of marriage have another