The Palace Administration Board Vs.
Rama Verma Bharathan Thampuran & Ors [1980] INSC 55 (27 March 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
DESAI, D.A.
KOSHAL, A.D.
CITATION: 1980 AIR 1187 1980 SCR (3) 187
ACT:
Review-when the Court would review its earlier
judgment-earlier judgement clarified.
PER KRISHNA IYER AND DESAI JJ.
HEADNOTE:
In a petition for review, once a clear error
in the judgment is revealed no sense of shame or infallibility complex absesses
or dissuades this Court from the anxiety to be ultimately right, not
consistently wrong. [189 H] Three points were raised for review of the earlier
judgment.
1. The Kerala Joint Hindu Family System
(Abolition) Act 1975 (Act 30 of 1976) governs the erstwhile ruling family of
former Cochin State and observations of this Court giving a contrary impression
may be modified.
2. The observations of the Court that the
Board is composed of the heads or seniormost members of the four branches of
the family is not wholly correct.
3. The order of this Court dated 30th July,
1979 should not have the intent and effect of nullifying the enormous amount of
work and considerable steps taken by the Board so far for partitioning the
properties of the family. [193 A-C]
1. (a) The second point arising out of three reliefs
mentioned above was an inconsequential error which has crept in by oversight.
The statement in the judgment that "the Board, being an old institution in
plenary management since 1949 and wisely composed of the seniormost members of
the four branches ...... " was not correct because the Board was
constituted by the Royal Proclamation of 1124 and continued by later Acts. [193
D] (b) The Cochin Maharaja had the power to nominate the five trustees of the
Board and there was no objection on him to choose the seniormost members of the
Thavashies. What he had to comply with was the directive in section 4 to secure
representation so far as possible for each of the four main Thavashies. It is
sufficient if its composition secures fair representation so for as possible
for each of the four Thavashies of the family. The seniormost need not
necessarily be chosen. The Board which has been functioning all these decades
is beyond legal cavil and has been rightly constituted. [193 G]
2. (a) The first relief telescopes into the
third. From the materials on record it is quite clear that the Board had done
good and satisfactory work especially because competent engineers and valuers
have been pressed into service. A retired judge of the High Court has been
playing the role of a mentor and a small committee of members has democratised
and legitimated the process of partition by participation.
There is no reason to sweep off the work of
valuation done all these years. The argument that the Board's labours should be
liquidated cannot be acceded to. The valuation the Board has carried out, the
alienations it has effected and provisional allotments it 188 has made will be
allowed to stand only subject to the obligation to hear objections and to take
follow-up action.
[196 C-D] (b) It is not necessary to demolish
the work done by the Board upto now. The Boards decision cannot be arbitrary.
It has to be reasonable and fair and for that
purpose must comply with the opportunity for a hearing to every sharer.
Group allotment may be permissible provided
the sharers composing the groups consent. Otherwise each member is entitled to
a per capita share. If the Board had made group allotments it has to be
justified by practical considerations and by acceptance by the members of the group
concerned. The valuation made and the sales effected must be subject to the
objections of those who have not had a say in the matter. The draft partition
deed, with necessary particulars regarding properties and their value shall be
made available for the inspection of the various parties from the office of the
Board. The Board will consider the objections and decide them on their merits.
Parties affected by such decision will be given brief hearing by the Board.
[196 H; 197 A-C]
3. The 1976 Act leaves in tact, in large
part, the proclamation as well as the 1961 Act. Section 7 of the 1976 Act
expressly repeals the scheduled Acts. It also renders texts of Hindu law,
customs and usages contrary to the provisions of the 1976 Act ineffective. The
consequence of the omission of the Proclamation and the 1961 Act from the
schedule is that they survive and co-exist with the 1976 Act. The definition of
joint Hindu family is wide enough to include the Cochin royal family and
prima-facie section 4(2) spells a division in status and substitutes a
tenancy-in- common in the place of jointness vis a vis the Cochin royal family
also. This consequences can be obviated only if there is something in section 7
which compels a contrary conclusion. The omission in the repealing section of
1961 Act by itself does not render inapplicable section 4(2) which creates the
division in status. It admits of no doubt that until Act 30 of 1976 was passed,
there was no partition effected by any decision of the Maharaja persuant to the
1961 Act. Thus one of the joint Hindu families which subsisted at the time of
the 1976 Act was the Cochin royal family and section 4(2) could and, therefore,
did operate on it. Nor is the rule of per capita division provided for in the
1976 Act contrary to the shares prescribed in the 1961 Act. The survival of the
1961 Act, because of its omission from the Schedule of the Acts repealed has
one effect and that is that the Board alone has the power to divide the
properties. Section 3 of the 1961 Act provides for it and must prevail despite
the 1976 Act in view of section 7 of the later Act read with the Schedule
thereto. The non-repeal of the 1961 Act also leads to the conclusion that child
in the womb is entitled to a share, whatever the meaning of section 4(2) of the
1976 Act may be. Thus a close up view of the statutory scene vis-a-vis the
Cochin royal family, it is clear that in 1976, the family was divided in
statuts with shares for every member including the per capita share for a child
in the womb and such partition is to be worked out by metes and bounds only by
the Board and not by the Civil Court. [200 B-G] Koshal, J. (concurring in the
final result) The proclamation coupled with the 1961 Act constituted an
exception to the provisions of the 1976 Act which otherwise applied to all
joint Hindu families.
189 Under the proclamation 1124, the Cochin
royal family was impartible. The concept of partition in relation to it was for
the first time introduced by the 1961 Act subject to three conditions mentioned
in section 3 of the Act. All the three conditions had to be satisfied before
the Estate could be considered partible and till it acquired that character the
Proclamation remained in full force. The 1976 Act did not make the slightest
difference to the position prevailing till that Act into force. Neither the
Proclamation nor the 1961 Act was repealed by the 1976 Act and, therefore, they
continued to co-exist with the 1976 Act. In view of the provisions of section 3
of the 1961 Act which were left in tact by the 1976 Act the Estate could become
partible only if all the three conditions specified in section 3 of 1961 Act
were fulfilled. The result is that when the 1976 Act was enforced in its
original form the Estate continued to be impartible and, therefore, there was
no question of section 4(2) of that Act being applicable to it. [203 H-204 A-G]
After the promulgation of the 1978 Act the Proclamation has to govern the
Cochin royal family subject to section 3 of the 1961 Act as amended by the 1978
Act which would fully apply to that family notwithstanding anything contained
in the 1978 Act or any other law for the time being in force.
Finality has thus been given to the
provisions of that section which states that the partition is to be made
"among all the members entitled to a share of the Estate, and the Palace
Fund under section 4 of the Kerala Joint Hindu Family System (Abolition) Act
1975 (30 of 1976.)" Section 4 of the 1976 Act is thus made specifically
applicable to the Cochin royal family by reason of the amendment of section 3
of the 1961 Act by the 1978 Act. If this be so the crucial date for determining
the number and identity of the members of the family entitled to a share of the
Estate and the Palace Fund would be 1st of December, 1976, that is, the date on
which the 1976 Act came into force. [206 D-E]
CIVIL APPELLATE JURISDICTION : Review
Petition No. 150/1979. Review of this Court's Order dated 30-7-1979 in SLP
(Civil) No. 5863 of 1979.
T. S. Krishnamoorthy, Vishnu Bahadur Saharya
and Sardar Bahadur Saharya for the Appellant.
P. Govindan Nair and N. Sudhakaran for the
Respondents.
The Order of V.R. Krishna Iyer, J. and D.A.
Desai, J.
was delivered by Krishna Iyer, J. Koshal, J.
gave a concurring Opinion.
KRISHNA IYER, J.-Horace wrote : "But if
Homer, who is good nods for a moment, I think it a shame". We, in the
Supreme Court do 'nod' despite great care to be correct, and once a clear error
in our judgment is revealed, no sense of shame or infallibility complex
obsesses us or dissuades this Court from the anxiety to be ultimately right,
not consistantly wrong. The present petition for review is one such and we have
listened, at unusual length, to 190 counsel's oral submissions, having felt
that an error in the judgment under review, likely to injure and unsettle,
needed to be mended.
We may narrate, very briefly, the necessary
facts and catena of statutes so that the flaw may be identified and rectified.
The subject-matter is the partition of the assets of the erstwhile royal family
of the Maharajah of Cochin, if we may avoid the jaw-breaking description used
in one of the relevant legislations viz. The Valiamma Thampuran Kovilakam
Estate and Palace Fund belonging to the family of the Maharajah of Cochin. A
capsulated survey of the landmark legislations will help locate the controversy
and liquidate the error, if any. This family, to begin with, was impartible and
its administration was statutorised by a Royal Proclamation of 1124
(hereinafter called the Proclamation) which constituted a Board in this behalf
consisting of five trustees to be nominated by the Maharajah with an equitable
eye on representation for each branch (tavazhi) of the family. Sec. 2 (a) read
with Sec. 4 of the Proclamation defines the Board's composition which shows a
slight oversight on our part in the earlier order. And thereafter, came the
Great Divide in the story of the royal family and began its slow integration
into the commonalty, retaining in some measure, its peculiar individuality. By
Act 16 of 1961 (The Valiamma Thampuran Kovilakam Estate and Palace Fund
(Partition) Act, 1961 (for short the 1961 Act) impartibility was abolished
conditionally, as it were. Sec. 3 therein laid down:
3. (1) Notwithstanding anything contained in
Section 22 of the Proclamation, if a request in writing is made by the majority
of the major members and the Maharajah of Cochin is satisfied that in the
interests of the family it would be desirable to partition the Estate and the
Palace Fund, among all the members he may declare his decision to effect a
partition under his supervision and control, and direct the Board to proceed
with the partition.
(2) The decision of the Maharaja of Cochin
under sub- section (1) shall be published by the Board in the Gazette in
English and Malayalam, and a copy of the notification shall be affixed in
conspicuous place at the office of the Board.
Of course, partibility reflected the spirit
of the times both in Kerala and in the Hindu fold of India and royalty lost its
regalia, including the privy purse, with the enactment of the Constitution
(26th Amendment) Act. Even though royalty had become fossilised and Maharaja's
family had become partible the latter retained its legislative distinctiveness
in important features, because of its unique history, unwieldy membership and
statutory singularity since 1949. The legislature took pragmatic note of these
legitimate factors while enacting Act 16 of 1961. Thus partibility was not
automatic but dependent on the Maharaja's decision. The division was not to be
affected by the civil courts as in ordinary cases but by Board only.
The structure and identity of the Board
created under the earlier Proclamation was preserved even for the purpose of
effecting partition of the family assets. Once the majority's request was made
and the Maharaja was satisfied about the desirability of partitioning the
Estate and the Palace Fund, the process of partitioning was the responsibility
of the Board, although under the supervision and control of the Maharaja
himself. A ticklish question, which is one of the aspects involved in the
present review petition, turns on the division among the members and, more
particularly, the fixation of shares, depending, as it does, on the number of
members. This number, in turn, is determined by the date of division in status
of the family, Section 3 of the 1961 Act makes partition contingent on the
Maharaja's declaration of his decision to effect a partition. Once he declares
his decision, there is, eo instanti a division in status. Thereafter, s.4 of Act
16 of 1961 operates. That Section states:
4. Share of Members (1) Each member shall be
entitled to an equal share of the Estate and the Palace Fund.
(2) The share obtained by a member on
partition shall be the separate property of the member.
(3) A child who is in the womb on the date of
the publication of the decision under Section 3 and who is subsequently born
alive shall have the some right for a share in the Estate and Palace Fund as
any other member as if he or she had been born on or before the date of such
publication.
We may state even here that the Maharaja
never made the statutory declaration under Sec. 3 and so no division in status
took place. The next statutory milestone which has relevance to our legal
journey is the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30
of 1976) (for short 1976 Act). By this measure, the joint family system among
Hindus in the state of Kerala was extinguished. All Marumakkathayam families
were embraced by the Act and the right by birth in ancestral properties was
also put an end to. By force of s. 4 of that Act, joint family ownership was
converted into tenancy-in-common as if partition had taken place among all the
members. We may read s. 4 (2) at this point.
192 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, 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.
The emphasis, from the point of view of the
date of transformation into tenancy-in-common, is on the date of coming into
force of Act 30 of 1976. From that date (1-12- 76) onwards a division in status
and a quantification of shares per capita must be deemed to have occurred.
Section 7 of this Act repeals certain
enactments mentioned in the schedule thereto; but what is of significance in
that schedule is that the Proclamation of 1124 and Act 16 of 1961 (which are
measures specially devoted to Cochin Royal Family) are not repealed. What the
impact of this omission is, is a subject of debate between the parties and we
will come presently to it. We then move on to ordinance 1 of 1978 promulgated
on 6-1-1978 which was replaced duly by Act 15 of 1978, published in the Gazette
on 19-3-78. This Act (The Valiamma Thampuran Kovilakam Estate and the Palace
Fund (Partition) and the Kerala Joint Family System Abolition) (Amendment Act,
1978), is an amendatory adventure affecting vitally the partitioning of the
Cochin Royal Family. The implications of the provisions of this legislation
constitute the subject-matter of the review petition on which the parties
bitterly join issue.
It cannot be denied that partition by metes
and bounds of the Cochin Royal Family properties is a stupendous effort, a
time-consuming task and an operation involving legal know-how, valuers' skills
and adjudicatory steps. We must remember that the assets are immense and varied
even as the members are numerous, being well over 700 in strength.
Each member being entitled to a share, the
partition is sure to be complicated and if in the shortrun of a human life the
partition is to be completed and the properties are to be enjoyed by the
shares, innovative strategies of speedy justice must be resorted to. On this
basis we have to appreciate the grounds raised for review by the petitioner
herein who had substantially succeeded in the first round when we pronounced a
lengthy order on the special leave petition.
193 The review sought revolves round three
points:
(1) The Kerala Joint Hindu Family System
(Abolition) Act, 1975 (Act 30 of 1976) governs the erstwhile ruling family of
former Cochin State and observations of this Court giving a contrary impression
may be suitably modified:
(2) The observation of the Court that the
Board is composed of the heads or senior most members of the 4 branches of the
family is not wholly correct.
(3) The Order of this Court dated 30-7-1979
should not have the intent and effect of nullifying the enormous amount of work
and considerable steps taken by the Board so far for partitioning the
properties of the family.
The 2nd point may readily be conceded as it
is an inconsequential error which has crept in by oversight which may be
corrected straightway. It is true that in the judgment earlier delivered in
this case, it has been stated in passing that "the Board, being an old
institution in plenary management since 1949 and wisely composed of the
seniormost members of the 4 branches...... "Strictly speaking, this is not
correct because the Board was constituted by the Royal Proclamation of 1124 and
continued by later Acts. Section 2 (a) of the Proclamation states that the
"Board" means the Board of Trustees appointed under Sec.
3 of this Proclamation. Section 4 defines the
composition of the Board and reads thus:
The Board shall consist of five Trustees who
shall be nominated by us from among the male members of our family so as to
secure representation as far as possible for each of the four main thavashies
of our family. One of the Trustees shall be appointed as the President of the
Board by us.
It follows that the Cochin Maharaja had the
power to nominate the five trustees of the Board and there was no objection on
him to choose the seniormost members of the thavashies. What he had to comply
with was the directive in sec. 4 to secure representation as far as possible
for each of the four main thavashies. We regret the mistake in this detail
although so far as the judgment was concerned it made little difference in the
reasoning or the result. Even so, when cantankerous persons seek to read this
court's judgment with scriptural regard, mischief may follow. The petitioner in
his review petition states that some member of the family has gone to court
with a suit (O.S. 391 of 1976) and has issued a notice dated September 19, 1979
wherein he has challenged the validity 194 of the Board on the score that it
did not consist of the seniormost members of the four thavashies as required by
the judgment of this court. It is sufficient if its composition secures fair
representation as far as possible for each of the four thavashies of the
family. The seniormost need not necessarily be chosen. The Board, which has
been functioning all these decades, is beyond legal cavil and has been rightly
constituted. We regret the pecadillo and are surprised at the tendency to
impugn the Board's doings on the unexpected score of illegal composition.
Even the 3rd relief, although hotly contested
by Shri Govindan Nair for the opposite party, cannot be wholly refused. The
grievance of the Palace Administration Board is that by virtue of the judgment
of this Court and some observations contained therein the valuable, enormous
and irreplaceable volume of work turned out over the years stands nullified.
Were this consequence true, the consternation of Board might well be justified.
If the basis for the nullification of the Board's work is the invalidity of the
composition of the Board, there is no need for apprehension because we have
already clarified the position.
The Board was rightly constituted and validly
continues. The grievance of the Board is different and is based upon its plea
that, not being a party to the special leave petition, it should not be hit
adversely without being heard adequately. Indeed, it is for this reason that we
have afforded a full length hearing. Actus curiae nomihem gravabit is a
wholesome admonition to the court itself.
There are two substantial controversies
implied in the third relief. In essence, the first relief telescopes into the
third and may well be considered in a composite manner.
A partition by metes and bounds becomes
possible only if the number of sharers is clearly settled. The first point over
which the parties have fought before us in this review proceeding relates to
the number of sharers which, in turn, follows from the date of division in
status. The Board has proceeded on the basis that Act 30 of 1976 has brought
about a division in status as on 1-12-1976 If that point of time were legally
sustainable, there were 719 members in the family, each being entitled to one
share. The rival contention put forward by the opposite parties is that the
division in status took place much later when Ordinance 1 of 1978 was
promulgated i.e. on 6-1-78. If this later date were to be taken as decisive
more members would have been born into the family and their shares would also
have to be given by the Board on partition. There would also have been some
exits by death whose heirs could 195 not claim shares on behalf of their
proposite. We have, therefore, to see which view-point is correct in the light
of the statutory provisions and their rather ambivalent wording.
The other essential factor in making a
satisfactory partition is the valuation of the numerous assets and their
allocation to the plurality of sharers. Each one being entitled to his share
and group partition not being the rule, the Board's submission is that it has
proceeded on the footing of 719 sharers taking the date, 1-12-1976 when Act 30
of 1976 came into force as the crucial dateline. On this basis, the Board
claims that it has turned out a tremendous amount of work by way of valuation
of properties through highly competent and fairly expensive architects and
engineers. It is further stated that the services of a retired judge of the
Kerala High Court had been relied on all and along to tender advice as and when
required so that legal guidance may be available for the Board. An Advisory
Committee of leading members of the family had also been constituted to assist
the Board with its suggestions.
Valuation sheets had been prepared and handed
over to each group and in the light of representations made and duly
considered, revaluation had been directed to be done wherever objections had
been raised. It is asserted that all these Himalayan labours have materialised
in valuations of properties which, if subverted sterilised, or otherwise
invalidated, would spell great loss, waste of energy and indefinite
postponement of effective partition. The many members who are virtually royal
proletarians cannot afford the price of further procrastination, bewails the
Board.
True, the court, in search of perfection,
should not abandon pragmatic justice and play into the hands of those who have
a vested interest in keeping the litigative pot boiling and actualisation of
the fruits of partition a teasing illusion.
Even so, we must not ignore the law and be
stampeded into affirming the Board's blunders, if any, in the name of early
finality.
Counsel for the first respondent has
contested the ground urged by the Board and has sought to maintain that there
has been no error in the judgment of this court and that the review sought must
be repelled. The number of shares into which the properties must be divided
depends on the number of members entitled to shares. If the date were to be
fixed with reference to Act 30 of 1976 i.e. 1-12-1976, 719 sharers have claims
on the family assets. On the other hand, if the later Act 15 of 1978 were to be
operative the relevant date will be 6-1-1978. During this period of around 13
months it is conceivable that a few more members might have 196 been born or
dead; but shares have to be precisely accounted and no person can be deprived
of his property if the law confers on him a right thereto. Therefore, we will
presently proceed to decide this issue, but before that, we wish to make it
clear that the substantial amount of work done by the Board should not be
allowed to go waste. After all, a creative, rather than a negative, application
of law makes it truly functional. We are satisfied from the materials on record
that the Board has done good and satisfactory work especially because competent
engineers and valuers have been pressed into service, a retired judge of the High
Court of Kerala has been playing the role of a mentor and a small committee of
members has, in a way, democratised and legitimated the process of partition by
participation.
Without exaggerating the role of the Board or
the turn-out of work it has done, we see no reason to sweep off the work of
valuation done all these years and decline to accede to the argument that the
Board's considerable labours should be liquidated. There is no substantial
reason for doing so.
Even so, we cannot exclude the possibility of
the Board having made errors, even blunders. After all, there is much force in
hearing aggrieved parties before a correct conclusion is reached. That is why,
we have in a later paragraph, subjected the acts and doings of the Board to a
clear condition which stems from natural justice. The valuation the Board has
carried out, the alienations it has effected and provisional allotments it has
made will be allowed to stand only subject to the obligation to hear objections
and to take follow-up action, as indicated below Sri Govindan Nair has two
submissions which merit serious notice. Firstly, the number of shares have been
fixed with reference to 1st December, 1976 and group allotments have been made
and these are contrary to the 'one man one share' basis and the valid date of
disruption in status. Secondly, many members have had no say in the valuation
and sales made by the Board and natural justice cannot be sacrificed at the altar
of expediency.
Taking the second objection first, we feel
that there is force in it but do not consider it necessary to demolish the work
done by the Board upto now. The situation can be salvaged by a few practical
directions which will take care of natural justice and resolve the grievances
of affected sharers. It was represented by Shri Krishnamoorty Iyer, appearing
on behalf of the Board, that the work of partition was almost complete and even
the draft deed had been drawn up. But we must make it clear that the Board's
decision 197 cannot be arbitrary, as explained in our earlier judgment.
It has to be reasonable and fair and for that
purpose must comply with the opportunity for a hearing to every sharer.
Group allotment may be permissible provided
the sharers composing the groups consent. Otherwise, each member is entitled to
a per capita share. Therefore, if the Board has made group allotments, it has
to be justified by practical considerations and by acceptance by the members of
the group concerned. Secondly, the valuation made and the sales effected must
be subject to the objections of those who have not had a say in the matter. So
we direct that the draft partition deed, with necessary particulars regarding
properties and their value etc., shall be made available for the inspection of
the various parties from the office of the Board. A notice shall be put up
within one month from today on the office notice board stating that requisite
copies of the draft partition deed and the necessary details will be available
in the office for the inspection of the members or their representatives. They
will also be permitted to take such number of copies as they want. This is
necessary for the members who wish to file objections. Within six weeks
thereafter, any sharer will be entitled to file his objections, with
specificity, to the various valuations and sales and other actions impugned.
The Board will consider these objections and decide them on their merits.
Parties affected by such decision will naturally be given a brief hearing by
the Board. In short, although without the full panoply of natural justice, a
fair and impartial consideration of the objections de novo will be made by the
Board. Its decisions will, as far as possible, be made within three months of
the last date for objections and be published on the office notice board. Those
who ask for copies of the decision or portion of the decision will be furnished
them.
In the course of the arguments in Court we
felt that the decisions of the Board should be subject to review by a judicial
functionary of high stature, if that were practical. Mr. Govind an Nair,
appearing for the first respondent, stated that Shri Justice Mathew, a
distinguished retired Judge of the Supreme Court, was available in Cochin and
his presence could be taken advantage of for this purpose. Speaking for the
Board, Mr. Krishna Moorthy also agreed with the choice. We would have been very
happy had Shri Justice Mathew been appointed the final Arbitrator to consider
the objections by the parties to the Board's decisions in regard to any of the
matters covered by the partition. We are unable to make a formal direction to
this effect because many of the sharers are not before us. We must however,
observe that taking advantage of the fact that the group represented by 198
Shri Govindan Nair is willing to abide by Shri Justice Mathew's arbitral
decision, the Board may if possible contact other sharers for their consent. If
all the sharers agree in writing to abide by the decision of Mr. Justice Mathew
in regard to contested points in the Board's partition arrangement we think
that Shri Justice Mathew may be persuaded to agree. Indeed, if it is brought to
our notice that all parties are agreeable, the Court itself may make a request
and clothe Shri Justice Mathew with necessary decisional powers. We do not say
more than make these observations. But even apart from the appointment of Mr. Justice
Mathew as sole Arbitrator, it is necessary to insist that the other directions
regarding hearing and compliance with natural justice will bind the Board
before its completion of the partition.
This takes us to the most contentious issue
viz. the number of shares and the date with reference to which the division in
status must be deemed to have taken place.
Certain fundamental facts must be under
scored for appreciating the hotly asserted competing contentions. At the
outset, we may mention that the drafting of the legislation has been somewhat
slippery breeding semantics confusion. This feature has accentuated the
plausibility of both points of view. Going to the basics, we must observe that
originally the royal family was impertible but the concept of partition in
relation to it subject to certain conditions was introduced by the 1961 Act.
However, notwithstanding the 1961 Act, the Cochin Maharaja had not declared his
decision that the family properties be partitioned. A few items out of the
enormity of the assets were, it is said, divided. But it seems probable and
parties, perhaps proceeded on the footing that there was no royal decision to
divide the family pursuant to the enabling provision in the 1961 Act. The
family continued joint.
Now we shift the focus to the statutory scene
of 1976 and find a comprehensive Kerala legislation abolishing the joint family
status of all coparcenaries generally. The Cochin royal family, prima facie,
was covered by the 1976 Act. In that event, there must normally have occurred a
division in status in the Cochin royal family too and quantification of shares
would then have had to be done by the Board with reference to 1-12-1976 when
that Act came into force. This is the Board's stand and it has proceeded on
this premise. This position would have been unassailable but for the two
circumstances which, in a way, we have adverted to earlier. The 1976 Act
contains a schedule repealing certain Acts and as indicated earlier the
Proclamation and the 1961 Act do not find a place in the Schedule. We must
infer from this circumstance argues Sri Govindan Nair, that the 1961 Act and
199 even the Proclamation modified by the 1961 Act survived the 1976 Act. Did
they, and if they did, to what extent and effect ? This complication is
accentuated by the later 1978 Act which amends the 1976 Act and the 1961 Act.
Section 8 and 9 are the pertinent provisions. Section 8 inserts a new sec. 8 in
the 1976 Act with retrospective effect:- "8. Amendment of Act 30 of 1976 :
In the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976),
after Section 7, the following section shall be, and shall be deemed always to
have been inserted, namely:-
8. Proclamation IX of 1124 and Act 16 of 1961
to continue in force: Notwithstanding anything contained 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 Valiammal 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 sec. 3 of the said Proclamation."
Section 9 also is significant and runs thus:
"9. Repeal and Saving:-(1) The Valiamma
Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint
Hindu Family System (Abolition) Amendment Ordinance, 1978 (1 of 1978), is
hereby repealed.
(2) Not withstanding such repeal, anything done
or any action taken under the principal Act or the Proclamation (IX of 1124)
dated the 29th June, 1949, promulgated by the Maharaja of Cochin or the Kerala
Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), as amended by the
said Ordinance, shall be deemed to have been done or taken under the principal
Act or the said Proclamation or Act, as the case may be, as amended by this Act
as if this Act had come into force on the 6th day of January, 1978." 200
There is a sharp divergence between counsel on the role of the various
provisions we have briefly referred to above in determining the date on which
division in status of the Cochin royal family took palace. The 1976 Act, as we
have indicated earlier, leaves intact, in large part, the Proclamation as well
as the 1961 Act. Section 7 of the 1976 Act expressly repeals the scheduled
Acts. It also renders texts of Hindu Law, customs and usages, contrary to the
provisions of the 1976 Act, ineffective. The consequence of the omission of the
Proclamation and the 1961 Act from the schedule is that they survive and
co-exist with the 1976 Act. The crucial point on which much debate took place
is as to whether section 4(2) of the 1976 Act which produce a statutory
division in status of all Kerala undivided Hindu Families effects such a
division in the Cochin royal family also. The definition of Joint Hindu Family
is wide enough to include the Cochin royal family and, prima facie, sec. 4(2)
spells a division in status and substitutes a tenancy-in- common in the place
of jointness vis-a-vis the Cochin royal family also. This consequence can be
obviated only if there is something in sec. 7 which compels a contrary
conclusion.
The omission in the repealing section of the
1961 Act, by itself, does not render inapplicable sec. 4(2) which creates the
division in status. It admits of no doubt that, until Act 30 of 1976 was
passed, there was no partition effected by any decision of the Maharaja
pursuant to the 1961 Act.
Thus one of the joint Hindu Families which
subsisted at the time of the 1976 Act was the Cochin royal family and sec.
4(2) could, and, therefore, did operated on
it. Nor is the rule of per capita division provided for in the 1976 Act
contrary to the shares prescribed in the 1961 Act. The survival of the 1961
Act, because of its omission from the Schedule of Acts repealed, has one effect
and that is that the Board alone has the power to divide the properties. Sec. 3
of the 1961 Act provides for it and must prevail despite the 1976 Act in view
of sec. 7 of the later Act read with the Schedule thereto. The non-repeal of
the 1961 Act also leads to the conclusion that child in the womb is entitled to
a share, (sec. 4 of the 1961 Act), whatever the meaning of sec. 4(2) of the
1976 Act may be. Thus, if we take a close-up of the statutory scene, vis-a-vis
the Cochin royal family, in 1976, we get the position that the family is
divided in status with shares for every member including a per capita share for
a child in the womb and such partition is to be worked out by metes and bounds
only by the Board and not by the civil court.
Things would have been simple had the
situation ended here. But sections 8 and 9 of the 1978 Act have left a trail of
seemingly queer consequences, or, at any rate, scope for plausible, yet contra-
201 dictory interpretations. We will, therefore, examine these two provisions
which will be the final exercise in this review proceeding.
According to Shri Krishnamurthi Iyer for the
Board, the determination of the date of division in status and consequently the
number of shares and the persons eligible thereto, are not affected by sections
8 and 9 of the 1978 Act. Shri Govindan Nair, on the contrary, argues that
sections 8 and 9 will be rendered otiose and the statute stultified were we to
treat the two sections as of functional irrelevance in fixing the shares and
the sharers.
Sec. 8 contains a non-obstante clause and so
must prevail over other provisions. The substantive directive in sec. 8 of the
1978. Act is that the proclamation, as amended by the 1961 Act, as further
amended by the 1978 Act, shall continue to be in force, and shall apply is the
assets of the Cochin royal family. Of course, the Section has been drafted in a
jaw-breaking fashion and its cumbersomeness could have been simplified had a
different type of legislative drafting skill been brought to bear upon the
subject. Sec. 8 reminds one of the old British Jingle:
I'm the parliamentary draftsman I compose the
country's laws And of half the litigation I'am undoubtedly the cause.
Why only half the litigation half the
frustration too! Be that as it may, stripped of the complexities, sec. 8 merely
means that the Proclamation, as amended by the subsequent legislation, shall
continue to apply to the Estate and the Fund of the royal family. Shri
Krishnamurthy Iyer construes this provision to mean that the processual part of
the Proclamation, as amended by the 1961 Act, which, in turn had been amended
by the 1978 Act was preserved by the legislature with a deliberate design,
namely, to speed up the partition without getting clogged up in the formal
coils of court proceedings with inevitable delays and interminable appeals the
legislature know that handing up the partition litigation to the civil courts
would be denying for a life time any share to any member of the royal family in
effect and would also mean undoing the considerable work which had already been
done in the direction of division. Therefore, the anxiety of the legislature to
preserve and consolidate what had been done and to accelerate the actual
partition persuaded it to enact s. 8. The intent and achievement of s.
8 was to keep out the civil court and to
continue the Board's jurisdiction to partition. Nothing more, nothing less.
Sec. 9 merely gives retrospectively to the Act and, more importantly, preserves
as 14-189 SCI/80 202 valid all acts done under the Proclamation and the 1976
Act as amended by the 1978 Act. This is meaningful because anything done or any
section taken under the 1976 Act is also preserved. In our view only purpose of
this saving clause is the quantum of shares, the number of shares, the
particular shares having been decided by the 1976 Act, the Board's proceedings
on that footing are left unaffected.
There is force in Sri Krishnamurthy Iyer's
contention that the goal of ss. 8 and 9 of the 1978 Act was to continue the
Board intact to keep as valid all that it had done and to preserve the shares
as settled by the 1976 Act. There was no intent, nor effect, of upsetting every
thing that had been done uptil then by a process of statutory reversal.
Such an interpretation would be letting a
statutory bull in a china shop demolishing the concrete work already done.
Let us, for a moment, examine the rival plea,
which is to the effect that the Proclamation and the 1961 Act having been
brought back to life the shares had to be determined on that basis updated to
1978, having special regard to s. 3 of the 1978 Act. For convenience, we may
re-read that section:
3. Partition of the Estate and the Palace
Fund :(1) The senior most 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 Estate and the Palace Fund among all the members entitled to a Share of the
Estate and the Palace Fund under section 4 of the Kerala, Joint Hindu Family
System (Abolition) Act, 1975 (30 of 1976), and such direction shall be
published by the Board in the Gazette.
(2) If the senior-most male member fails to
direct the Board as required by sub-section (1), the Board shall on the expiry
of the period specified in that 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 affected shall be valid notwithstanding anything contained
in section 17 of the Proclamation.
The plausible inference is that in tune with
the Proclamation (which survives) the senior-most male member- the Maharaja
system having ended is to give direction to the Board to effect a partition of
the Estate and the fund among the members "entitled to a share of the
Estate and the Palace Fund under section 4 of the Kerala Joint Hindu 203 Family
System (Abolition) Act, 1975 (30 of 1976)". Sub- section (2) of section 3
says that if the senior-most male member fails to make such a direction within
60 days, the Board shall proceed to effect the Partition. According to Shri Govindan
Nair, the total effect is the resuscitation of the Proclamation and the
direction for Partition willy nilly by virtue of s. 3 of the 1978 Act and,
therefore, the date of division-in-status has to be reckoned as that date which
falls on the expiry of the 60 days of the promulgation of the 1978 Act. There
is a meritorious appeal for this interpretation provided we overlook the vital
direction in s. 3 (1) that the division is to be among "all the members
entitled to a share under s. 4" of the 1976 Act. None born later can
claim, none dying later can lose. Thus, in our view, the inevitable consequence
of Act IS of 1978 is not to throw out of gear everything done so far but to
clarify possible ambiguities and to stabilies the work of Partition by the Board.
We read the meaning of the various provisions of the 1978 Act in this sense
only. The net result is that the division among the members is to be effected
according to s.4 of 1976 Act. The Partition by metes and bounds is to be
effected by the Board. The work done upto now is to retain its force.
While considering the constitutionality of
the impugned Act in our earlier judgment we had made it clear that the Board
was not entitled to behave arbitrarily or unreasonably and had to conform to
the norm of natural justice. We maintain that conclusion and, indeed, counsel
for the Board has not challenged it. In fact, we have strengthened that
conclusion by providing for objections and even an appeal against the -decision
by the Board to the limited extent indicated above to an arbitral body so that
the hearing component may not be sacrificed for the speedy component of
justice.
In the light of the directions we have made
and the elaborate explanation we have given, the petition for review, in
substantial part, is allowed.
KOSHAL, J. I have had the advantage of going
through the judgment prepared by my learned brother Krishna Iyer, J., and find
myself in agreement with him in regard to the conclusions arrived at by him on
the three points around which the petition for review revolves but I regret
that I am unable to subscribe to the reasons listed by him in relation to the
effect of the 1976 and 1978 Acts. I am therefore recording this short note
which may be read in continuation of that judgment. H
2. There is no dispute regarding the
proposition that under the Proclamation of 1124 the Cochin royal family was
impartible and that 204 the concept of partition in relation to it was for the
first time introduced by the 1961 Act, subject to certain conditions which are
contained in section 3 of that Act and are to the effect that the Estate would
become partible only if- (i) a request in writing is made to the Maharaja of
Cochin by the majority of the major members of the family;
(ii) the Maharaja is satisfied that in the
interests of the family it would be desirable to partition the Estate and the
Palace Fund among all the members of the family; and (iii) the Maharaja
declares his intention to effect a partition under his supervision and control
and directs the Board to proceed with the partition.
All these three conditions had to be
satisfied before the Estate could be considered partible and till it acquired
that character the Proclamation remained in full force so that the Estate
remained impartible and no question could therefore arise as to the persons
entitled to a share on a partition.
This position prevailed till the 1976 Act was
promulgated and, in my opinion, that Act also did not make the slightest
difference to it, Section 7 of the 1976 Act effected a repeal of the enactments
mentioned in the Schedule to the Act. Those enactments were twelve in number
and did not include either the Proclamation or the 1961 Act which therefore, as
pointed out by Iyer, J., survived and continued to co exist with the 1976 Act.
In view of the provisions of section 3 of the 1961 Act which were left intact
by the 1976 Act the Estate could be come partible only if all the three
conditions above specified were fulfilled which has never been the case so far.
The result is that when the 1976 Act was enforced in its original form the
Estate continued to be impartible and therefore there was no question of
section 4(2) of that Act being applicable to it, the specification of shares
being incompatible with impartibility. In this view of the matter, the
Proclamation coupled with the 1961 Act constituted an exception to the
provisions of the 1976 Act which otherwise applied to all Joint Hindu Families.
3. The 1978 Act however brought about certain
basic changes in the 1961 and the 1976 Acts. Section 8 of the 1978 Act added a
new section 8 to the 1976 Act with effect from the date on which the 1976 Act
had come into force, i.e., the 1st of December, 1976 and that new section
stated in no uncertain terms that the Cochin royal family would be governed by-
(a) the 1978 Act itself, and, 205 (b) the Proclamation as amended by the 1961
Act which itself was to be read as obtaining after its amendment by the 1978
Act.
It is therefore necessary to examine the
changes effected by the 1978 Act in the 1961 Act. They are detailed in the
following table:
------------------------------------------------------------
1961 Act as prevailing before the 1978 1961 Act as obtaining amendment after
the 1978 amendment ------------------------------------------------------------
1 2 ------------------------------------------------------------ Section 2: In
this Act.... Section 2 : In this Act..
(a) 'Board' means the Board of (a)`Board'
means the Board Trustees appointed under s.3 of Trustees appointed of the Proclamation.
under s.3 of the Procl- amation.
(b) 'Estate' means the valiamma (b) `Estate'
means the Thamapuram Kovilakam Estate valiamma Kovilakam and all properties
belonging Estate and all Proper- to the said Estate. ties belonging to the said
Estate.
(c) 'Maharaja of Cochin' means (c) `family'
means the Ruler of former State of Maraumakkathayam Cochin within the meaning
joint family consist- of Clause (22) of Article ing of the four main 366 of the
Constitution. thavashies of the Ruler of the former State of Cochin within the
meaning of Clause (22) of arti- cle 366 of the Constitution of India.
(d) "Member" means a member of (d)
`Member' means a member the family of tho Maharaja of the family.
of Cochin.
(e) 'Palace Fund' shall have the (e) 'Palace
Fund' shall same meaning as in Clause have the same meaning (c) of s.2 of the
Proclama- as in Clause (c) of tion. s.2 of the Proclamation.
(f) `Proclamation' means Proclam- (f)
`Proclamtion' means ation (IX of 1124) dated proclamation (IX of 29th June,
1949, promulgated 1124) dated 29th by Maharaja of Cochin. June, 1949,
promulgated by Maharaja of Cochin.
Section 3 Section 3 Maharaja of Cochin to
order Partition of the Estate and Partition and Palace Fund Notwithstanding
anything cont- (1) The senior-most male ained in s. 22 of the Proclama- member
of the family shall tion, if request in writing within sixty days from the is
made by the majority of the date of commencement of the the major members and
the Valimma Thampuran Kovila- Maharaja of Cochin is satisfied kam Estate and
the Palace that in the interest of the Fund (partition) and Kerala family it
would be desirable to Joint Hindu Family System partition the Estate and the
(Abolition) Amendment Palace Fund, among all members, Ordinance 1978 direct the
he may declare his Board to effect partition of the Estate and the Palace Fund
206 ------------------------------------------------------------ 1 2
------------------------------------------------------------ decision to effect
a partition among all the members under his supervision and entitled to a share
of the control, direct the Board Estate and the Palace Fund to proceed with the
Partition under Section 4 of the Kerala Joint Hindu Family System (Abolition)
Act, 1975 (30 of 76) and such direction shall be publis- hed by the Board in
the Gazette.
(2) The decision of the Maharaja (2) If the
senior-most male of Cochin under sub-section(1) member failed to direct the
shall be published by the Board Board as required by sub- in the Gazette in
English and section (1), the Board Malyalam and a copy of the noti- shall, on
the expiry of the fication shall be affixed in a period specified in that
conspicuous place at the office sub-section proceed to of the Board. effect the
partition of the Estate and the palace Fund among the members referred to in
sub-section (1) and partition so effected shall be valid notwithstanding
anything contained in section 17 of the proclamation.
After the promulgation of the 1978 Act
therefore the Proclamation has to govern the Cochin royal family subject to
section 3 of the 1961 Act as amended by the 1978 Act which would fully apply to
that family "notwithstanding anything contained" in the 1978 Act or
any other law for the time being in force. Finality has thus been given to the
provisions of that section which states that the partition is to be made among
all the members entitled to a share of the Estate and the Palace Fund under
section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of
1976)". Section 4 of the 1976 Act is thus made specifically applicable to
the Cochin royal family by reason of the amendment of section 3 of the 19.61
Act by the 1978 Act; and if this be so, the crucial date for determining the
number and identity of the members of the family entitled to a share of the
Estate and the Palace Fund would be the 1st of December, 1976, i.e., the date
on which the 1976 Act came into force.
P.B.R. Petition partly allowed.
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