IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WA.No. 2374 of 2002() --------------------- AGAINST THE JUDGEMENT IN OP.18798/1995 Dated 22/07/2002 .................... APPELLANT(S): 8TH RESPONDENT ---------------------------- J.SARASWATHY AMMA, KRISHNA VILASOM BUILDING, ULLOOR, TRIVANDRUM. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.PRAVEEN VYASAN RESPONDENT(S): PETITIONER AND RESPONDENTS 1 TO 7 AND 9 ------------------------------------------------------ 1. N.SREEDHARAN NAIR, ARKAL VEEDU, ULLOOR, TRIVANDRUM. 2. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE BOARD OF REVENUE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY 4. THE SECRETARY OF GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 6. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM. 7. THE SETTLEMENT OFFICER (SPECIAL TAHSILDAR) SERVICE INAM LANDS, KAITHAMUKKU, THIRUVANANTHAPURAM. WA.No. 2374 of 2002() 2 8. THE VILLAGE OFFICER (RECEIVER) ULLOOR, THIRUVANANTHAPURAM. 9. K.CHANDRASEKHARAN NAIR, KRISHNAVILASOM BUILDING, ULLOOR, THIRUVANANTHAPURAM. BY SR.ADV.SRI.A.M.SHAFIQUE FOR R1 BY G.P.SMT.R.BINDU FOR R2 TO R8 SRI.P.R. VENKITESH FOR R9 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON 6.4.2010 DELIVERED THE FOLLOWING: C.R. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No.2374 of 2002 ---------------------------------------- Dated this the 6th day of April, 2010 JUDGMENT Ravindran, J. The appellant is the 8th respondent in O.P.No.18798 of 1995. The first respondent is the petitioner and respondents 2 to 9 are respondents 1 to 7 and 9 respectively therein. By judgment delivered on 22.7.2002, in N.Sreedharan Nair v State of Kerala (2002 (3) KLT 307), the learned single Judge allowed the original petition. The 8th respondent in the original petition has, aggrieved thereby, filed this writ appeal. For the sake of convenience, the parties are referred to as they are arrayed in the original petition. The brief facts of the case are as follows: 2. A parcel of land, 91 cents in extent, comprised of 15 cents in Survey No.1026, 34 cents in Survey No.1342 and 42 cents in Survey No.1421 of Ulloor Village, Trivandrum Taluk, was outstanding in the occupation of Viruthicars who were obliged to perform Oozhiyam services in Sree Padmanabhaswamy Temple, Trivandrum and Sree Balasubramanya-swamy Temple, Ulloor. The lands described above W.A.No2374/2002 2 were in the occupation of Sri.Kumaran Velayudhan of Arakkal Veedu Tarwad, in whose favour the holding had been registered under the provisions of the Viruthi Proclamation 1061 (Travancore). Sri.Kumaran Velayudhan passed away in the year 1934 and thereafter, Sri.Madhavan Pillai Velayudhan Pillai, a near relative of late Kumaran Velayudhan and the senior most male member of Arakkal Veedu Tarwad was holding the lands though it had not been registered in his name under the Viruthi Proclamation 1061 (Travancore). Sri.Madhavan Pillai Velayudhan Pillai passed away in the year 1954. Thereupon, two brothers, Sri.Parameswaran Pillai Narayanan Pillai and Sri.Parameswaran Pillai Krishna Pillai of Arakkal Veedu Tarwad of which the registered holder late Kumaran Velayudhan was a member, moved the Tahsildar, Trivandrum for transfer of the patta of the lands in their favour. Sri.Govinda Pillai Narayana Pillai of Kannaruputhen Veedu, a nephew of Sri.Madhavan Pillai Velayudhan Pillai also moved for transfer of the patta in his favour. The rival claims were considered by the Revenue Divisional Officer, Trivandrum who by Ext.P1 order passed on 31.12.1959 transferred the patta in respect of the lands to Sri.Parameswaran Pillai Krishna Pillai, the husband of the 8th respondent and father of the 9th respondent. On the strength of Ext.P1, Sri.Parameswaran Pillai Krishna Pillai was in possession and enjoyment of the lands. W.A.No2374/2002 3 3. Sri.Parameswaran Pillai Krishna Pillai passed away on 2.1.1981. Within one week thereafter, Sri.N.Sreedharan Nair, the petitioner in the original petition, who is the nephew of late Parameswaran Pillai Krishna Pillai, submitted Ext.P2 application dated 8.1.1981 before the Tahsildar, Trivandrum seeking transfer of the patta in his favour. Along with Ext.P2, he had enclosed Ext.P2 (a) consent letter dated 8.1.1981 from his brother Sri.N.Ramakrishna Pillai wherein his brother had stated that he has no objection in the patta being transferred in favour of the petitioner. Late Parameswaran Pillai Krishna Pillai had raised paddy crop in the above lands held by him. The 8th respondent and her son, the 9th respondent, who are the legal heirs of late Parameswaran Pillai Krishna Pillai under the provisions of the Hindu Succession Act, 1956 resisted the claim made by the petitioner for possession of the lands. The petitioner thereupon filed an application before the Revenue Divisional Officer, Trivandrum for an order of injunction restraining the legal heirs of late Parameswaran Pillai Krishna Pillai from entering into the lands in respect of which he had filed Ext.P2 application for transfer of patta. The Revenue Divisional Officer forwarded the said application to the Village Officer, Ulloor Village. On that application, the Village Officer, Ulloor Village passed Ext.P3 order of injunction dated 17.1.1981, restraining the legal heirs of late Parameswaran Pillai Krishna Pillai from entering into W.A.No2374/2002 4 the lands. In view of the scramble for possession, the Revenue Divisional Officer passed an order dated 5.2.1981 appointing the Village Officer, Ulloor Village, as the Receiver of the lands. The Village Officer took possession of the lands in his capacity as the Receiver on 16.2.1981 and submitted Ext.P4 report of even date to the Revenue Divisional Officer. The Revenue Divisional Officer thereafter issued Ext.P5 notice to the petitioner and the legal heirs of late Parameswaran Pillai Krishna Pillai calling upon them to appear for a hearing scheduled to be held on 27.2.1981 on Ext.P2 application submitted by the petitioner. The Village Officer, Ulloor Village, thereafter submitted Ext.P6 report dated 27.4.1981 to the Revenue Divisional Officer stating that on the death of Parameswaran Pillai Krishna Pillai, the senior most member of Arakkal Veedu Tarwad is entitled to transfer of the patta. He also reported that the children of late Parameswaran Pillai Krishna Pillai are not entitled to apply for transfer of the patta and that after the death of Parameswaran Pillai Krishna Pillai, his legal heirs were not in possession of the lands. 4. While matters stood thus, the State Legislature enacted the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 and it came into force with effect from 6.8.1981. Thereafter, the Tahsildar, Trivandrum submitted Ext.P7 report dated 7.11.1981 to the Sub Collector, Trivandrum to the effect that the petitioner is the W.A.No2374/2002 5 rightful claimant for transfer of the patta. After the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 (hereinafter referred to as `the Act' for short) came into force, the petitioner filed O.A.No.650 of 1982, the 9th respondent filed O.A.No.1065 of 1982, Sri.Vasudevan Pillai filed O.A.No.929 of 1982 and 8th respondent filed O.A.No.412 of 1983 (Ext.P8) for assignment of the disputed lands under the provisions of the Act before the Special Tahsildar, Trivandrum, the Settlement Officer appointed under the Act. The Settlement Officer considered the rival claims and passed Ext.P9 order dated 31.12.1983 allowing the application filed by the petitioner. The applications filed by the 9th respondent and Sri.Vasudevan Pillai were rejected. The application filed by the 8th respondent as O.A.No.412 of 1983 was not considered. The 8th respondent had in the meanwhile filed O.P.No.11079 of 1983 in this Court complaining that though she had filed an application in O.A.No.650 of 1982 filed by the petitioner, seeking impleadment as a respondent therein, the Settlement Officer is taking hasty steps to dispose of O.A.No.650 of 1982 and connected cases without affording her an opportunity of being heard. In that original petition this Court passed an interim order on 30.12.1983 staying further proceedings in the original applications pending before the Settlement Officer. The Settlement Officer however passed Ext.P9 order dated 31.12.1983 allowing the application filed by the petitioner. W.A.No2374/2002 6 By judgment delivered on 7.2.1984 in O.P.No.11079 of 1983, this Court directed the Settlement Officer to consider the application for impleadment filed by the 8th respondent in O.A.No.650 of 1982 and pass orders thereon on the merits, after hearing the concerned parties. This Court also observed that the 8th respondent can move for consideration and disposal of any other original application pending before the Settlement Officer in relation to the very same lands. 5. Aggrieved by Ext.P9 order, the 9th respondent and Sri.Vasudevan Pillai filed appeals under section 12 of the Act before the District Collector. The 8th respondent thereafter filed O.P.No.3620 of 1984 in this Court. By judgment delivered on 9.9.1985 this Court disposed of the said original petition with a direction to the District Collector, Trivandrum before whom the petitioner and Sri.Vasudevan Pillai had filed appeals, to hear the 8th respondent also while passing orders on the appeals. Pursuant to the said direction, the District Collector heard all the parties and passed Ext.P10 order dated 23.4.1987 remanding the applications filed by the petitioner and others to the Settlement Officer for fresh consideration. O.A.No.929 of 1982, the application filed by Sri.Vasudevan Pillai was dismissed as withdrawn. 6. The petitioner filed a revision petition under section 13 of the Act before the Board of Revenue challenging Ext.P10 order W.A.No2374/2002 7 passed by the District Collector. By Ext.P11 order passed on 29.7.1988, the Board of Revenue rejected the revision petition. The petitioner thereupon filed a petition dated 2.1.1989 before the Government challenging the orders passed by the District Collector and the Board of Revenue. On that petition, the Government passed an interim order staying further proceedings before the Settlement Officer pending disposal of the said petition. The 8th respondent thereupon filed O.P.No.9750 of 1989 in this Court challenging the order of stay passed by the Government. This Court disposed of the said original petition by judgment delivered on 27.11.1989 with a direction to the Government to pass final orders after hearing all the parties and after examining whether the petition filed by the petitioner is maintainable and whether it is referable to any provision of law. The Government was directed to pass final orders in the matter within six weeks from 27.11.1989. Even thereafter, when orders were not passed by the Government and steps were taken to hand over possession of the lands to the petitioner, the 8th respondent filed O.P.No.8243 of 1992 in this Court, inter alia, seeking a direction to the Government to pass final orders on the petition filed by the petitioner. The petitioner filed O.P.No.8878 of 1992 challenging Exts.P10 and P11 orders passed by the District Collector and the Board of Revenue respectively and seeking a direction to the Government to pass final orders on the W.A.No2374/2002 8 revision petition filed by him. By Ext.P21 judgment delivered on 13.10.1993, this Court disposed of the said original petitions with a direction to the Government to dispose of the revision petition filed by the petitioner within eight weeks from the date of receipt of a copy of the judgment. The Government thereafter heard the parties and passed Ext.P22 order dated 28.10.1995 holding that the 8th respondent and her children are the rightful claimants for the disputed lands under the provisions of section 5 of the Act. The Settlement Officer was directed to take further steps to assign the lands in their favour. O.P.No.18798 of 1995 was thereupon filed challenging Ext.P22 and seeking the following reliefs: “(i) to issue a writ of certiorari or other appropriate writ, order or direction, quashing Exts.P22, P10 and P11. (ii) issue such other appropriate writ, order or direction as this Hon'ble Court deems fit and proper including stay of operation of Ext.P22 order till the disposal of the Original Petition.” 7. The petitioner contended, relying on rule 10 of the Viruthi Rules 1945, that as late Parameswaran Pillai Krishna Pillai was governed by the Marumakkathayam law, he is entitled to have the patta in respect of the lands transferred to him as he is the senior male member in the family of late late Parameswaran Pillai Krishna Pillai. He further contended that the lands were not the individual or family property of late Parameswaran Pillai Krishna Pillai, that no law W.A.No2374/2002 9 other than the Viruthi Proclamation 1061 and Viruthi Rules 1945 were applicable to the disputed lands till the Act came into force on 6.8.1981 and that as he was in possession of the disputed lands after the death of late Parameswaran Pillai Krishna Pillai, in his capacity as the next senior male member of the family of the last registered holder, he is entitled to hold the lands in terms of rule 10 of the Viruthi Rules 1945. He also contended that the words “next senior male member in the family” occurring in rule 10 of the Viruthi Rules, 1945 does not denote the son of the registered holder for the reason that the heir of the registered holder has been defined as the next senior male member in the family, meaning thereby, the next senior male member in the family of late Parameswaran Pillai Krishna Pillai. Respondents 8 and 9 resisted the original petition contending, inter alia, that with the enactment and bringing into force of the Hindu Succession Act, 1956 and the Kerala Joint Hindu Family System (Abolition) Act, 1976; the Travancore Nair Act, 1100 and the Marumakkathayam system of inheritance ceased to exist and therefore, the wife and children of the last registered holder constitute his heirs, thereby entitling them to obtain transfer of the holding in their favour and also to apply for settlement in terms of the Act. It was also contended that late Parameswaran Pillai Krishna Pillai was not a member of a Marumakkathayam Tarwad for the reason that the W.A.No2374/2002 10 Marumakkathayam Tarwads were abolished by the Travancore Nair Act, 1100 and the Kerala Joint Hindu Family System (Abolition) Act, 1976. 8. The learned single Judge considered the rival contentions and held that the disputed land was transferable from the registered holder to the next senior male member in his family and that the said right, recognised in rule 10 of the Viruthi Rules, 1945 remained unaffected even after the Kerala Joint Hindu Family System (Abolition) Act, 1976 was enacted and brought into force. The learned single Judge held that the “next senior male member in the family” was the petitioner, one among the two nephews of late Parameswaran Pillai Krishna Pillai and that the said term does not denote his son. It was also held that the petitioner, a male member of the family referred to in rule 10 of the Viruthi Rules, 1945 was entitled to transfer of the holding in his favour. The learned single Judge also held, interpreting the explanation to section 2(c) of the Act, that though the the possession referred to therein can only be lawful possession as on 6.8.1981, the date on which the Act came into force, as the possession of the petitioner was lawful in its origin; his right traceable to rule 10 of the Viruthi Rules, 1945, he is entitled to have the lands assigned in his favour. The original petition was accordingly allowed, Exts.P10 and P22 were set aside and the Settlement Officer was directed to take W.A.No2374/2002 11 steps to assign the lands in favour of the petitioner. The 8th respondent, the wife of late Parameswaran Pillai Krishna Pillai (the last registered holder), aggrieved thereby, has filed this writ appeal. 9. We heard Sri.S.V.Balakrishna Iyer, learned Senior Advocate appearing for the appellant/8th respondent, Sri.A.M.Shafique, learned Senior Advocate appearing for the first respondent/petitioner, Smt.R.Bindhu, learned Government Pleader appearing for respondents 2 to 8 and Sri.P.R.Venkitesh, learned counsel appearing for the 9th respondent. We have also gone through the pleadings and the materials on record. The learned Senior Counsel appearing for the appellant/8th respondent contended that the Marumakkathayam system of inheritance or the Marumakkathayam law ceased to exist when the Hindu Succession Act, 1956 came into force on 17.6.1956 and in any case on 1.12.1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1976 came into force and therefore, the expression `heir' referred to in rule 10 of Viruthi Rules, 1945 has to be understood as the legal heir of late Parameswaran Pillai Krishna Pillai in terms of section 8 of the Hindu Succession Act, 1956. Reliance was placed on sections 4 and 17 of the Hindu Succession Act, 1956 in support of the said contention. The learned Senior Counsel for the appellant, relying on the decision of a Larger Bench of this Court in Chellamma Kamalamma v. Narayana Pillai (1993 (1) KLT 174) W.A.No2374/2002 12 contended that though with the enactment and coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1976, those persons who were governed by the Marumakkathayam law continue to be governed by section 17 of the Hindu Succession Act, 1956, section 17 only modifies the rule of succession in section 8 thereof and that even applying section 8 read with section 17 of the Hindu Succession Act, when Class I and II heirs of the deceased registered holder are available, his other relatives cannot be termed as his legal heirs. 10. Per contra, the learned Senior Counsel appearing for the first respondent/petitioner Sri.A.M.Shafique contended that a woman cannot be a Viruthicaran, that the rights of parties are not governed by the laws of succession but by rule 10 of the Viruthi Rules, 1945 and that on the death of the last registered holder, the next senior male member in his family becomes entitled to be the Viruthicaran. The learned Senior Counsel contended that the appellant/8th respondent who is the wife of the last registered holder cannot therefore claim that she or her children are entitled to have the holding transferred to them applying the laws of succession. He also contended that the first respondent/petitioner was in possession of the lands as on 6.8.1981 when the Act came into force and therefore, as the person in lawful possession, the right to possession being traceable to rule 10 of Viruthi Rules, 1945, the first respondent/petitioner was W.A.No2374/2002 13 entitled to apply for assignment of the right, title and interest in respect of the holding. The learned Senior Counsel for the first respondent/petitioner also contended that the Hindu Succession Act, 1956 does not apply to lands to which the Viruthi Proclamation 1061 (Travancore) and Viruthi Rules, 1945 apply. The learned Senior Counsel contended that the disputed land is an estate which descends to a single heir by virtue of the provisions in rule 10 of the Viruthi Rules, 1945 and therefore, the Hindu Succession Act, 1956 does not apply to the said land. Reliance was placed on section 5(ii) of the Hindu Succession Act, 1956 and the decision of the Division Bench of the Bombay High Court in Balwant v. Annasaheb (AIR 1978 Bombay 64) in support of the said contention. Sri.P.R.Venkitesh, learned counsel appearing for the 9th respondent adopted and reiterated the contentions raised by the learned Senior Counsel appearing for the appellant/8th respondent. 11. We have considered the rival submissions made at the Bar by the learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The disputed lands are lands governed by the Viruthi Proclamation, 1061 (Travancore) which was issued on 4th Edavom 1061 M.E. corresponding to 16.5.1886. Para 8 of the Viruthi Proclamation 1061 (Travancore) reads as follows: W.A.No2374/2002 14 “8. No Viruthicar shall be at liberty to alienate, by sale, gift, mortgage or otherwise, the Inam given to him for the Viruthi Service. All such alienation shall be null and void and the Government shall have the power of resuming any such alienated Viruthi Inam and restoring it to the holder or otherwise disposing of it as to them may seem fit. No action shall lie respecting any such land in any Court of Law.” It is thus evident that a Viruthicaran had no right to alienate by sale, gift, mortgage or otherwise or to transfer possession of the lands given to him for viruthi service. Any such alienation or transfer of possession was declared to be null and void and the Government was empowered to resume the land and restore it to the holder or otherwise dispose of it as the Government deems fit. Later, the Viruthi Proclamation 1068 (Travancore) was issued on 24th Karkatakam 1068 M.E. corresponding to 7.8.1893 amending the Viruthi Proclamation 1061 (Travancore). The provisions thereof are not relevant for the purpose of this case. The Viruthi Rules, 1074 were issued on 4th Thulam 1074 M.E. corresponding to 19.10.1898. Rules 10 and 11 thereof which are relevant for the purpose of this case read as follows: “10. The registered holder of a personal service Viruthi is at liberty to relinquish it by a statement in writing before the Tahsildar and the Viruthi may then with the permission of the Division Peishkar, be transferred to any other member of the family if available or, in the absence of any such person, to any other competent person willing to perform the service. 11. If a registered holder dies, the holding shall be transferred to his heir. In the event of the W.A.No2374/2002 15 registered holder dying heirless, the holding may be transferred to any other competent person, provided that if such registered holder is a Marumakkathayee and has sons, the holding shall be transferred to such of his sons as may be willing to perform the services, preference being given to the senior one among them. No transfer under this Rules shall be made without the previous sanction of the Division Peishkar.” Rule 11 of the Viruthi Rules, 1074 stipulated that the registered holder is not entitled to transfer the holding to any other person without the previous sanction of the Division Peishkar. It was stipulated that in the event of death of the registered holder, the holding may be transferred to his heir. It was also stipulated that if the registered holder dies, his land holding may be transferred to any other competent person also. This was however subject to the stipulation that if the registered holder is a Marumakkathayee and has sons, the holding shall be transferred to such of his sons as may be willing to perform the services and preference may be given to the senior one among them. The Viruthi Rules, 1074 were revised by issuing the Viruthi Rules, 1945 with effect from 9.7.1945. Rules 3, 9 and 10 thereof read as follows: “3.(1) A Viruthicar has no rights over his viruthi holding except its enjoyment during the regular performance of the services imposed on him, and he shall not alienate by sale, gift, mortgage or otherwise or encumber the property in any manner without the sanction of Government. All such alienations shall be null and void. (2) No Viruthicar shall commit acts of waste in his W.A.No2374/2002 16 Viruthi holdings or divide the lands among the several members of the family. (3) On the Viruthicar acting in contravention of the provisions of this rule, it shall be competent to the Government to resume the lands and re-attach them to the service or to deal with the resumed lands and the services connected therewith in any manner they may deem fit. Any loss sustained by the Government on account of waste or any other default committed shall be recoverable from the holders concerned under the provisions of the Revenue Recovery Act. 9. A registered holder of a Viruthi is at liberty to relinquish it by a statement in writing before the Tahsildar; and the Viruthi land and service, may then, with the permission of the Assistant Peishkar be transferred to any other member of the family, if available, or in the absence of any such person, to any other competent person willing to perform the services. 10. If a registered holder dies, the holding may with the sanction of the Assistant Peishkar be transferred to his heir, viz., the next senior male member in the family. In the event of the registered holder dying heirless, the holding may be transferred to any other competent person willing to perform the services, provided that if such a registered holder is a Marumakkathayee and has sons the holding shall be transferred to such of his sons as may be