Mrs. Mary Roy Vs. State of Kerala
& Ors [1986] INSC 22 (24 February 1986)
BHAGWATI, P.N. (CJ) BHAGWATI, P.N. (CJ)
PATHAK, R.S.
CITATION: 1986 AIR 1011 1986 SCR (1) 371 1986
SCC (2) 209 1986 SCALE (1)250
ACT:
Intestate Succession to the property of a member
of the Indian Christian Community IN the territories originally forming part of
the erstwhile State of Travancore - Merger of State of Travancore with State of
Cochin in July 1949 and enactment of Part States (Laws) Act, 1951 providing for
extension of certain Parliamentary statutes to Part States Consequential effect
of the extension of Indian Succession Act, 1925 - Whether the Indian Succession
Act, 1925 or the old Travancore Cochin Succession Act 1092 (Kollan Era) will
govern the intestate succession from the date of extension - Indian Succession
Act, section 29(2), scope of - Legislative device of incorporation by
reference, explained.
HEADNOTE:
Prior to July 1949, the State of Travancore
was a princely State and the law in force in the territories of that State in
regard to intestate succession to the property of the members of the Indian
Christian Community was the Travancore Christian Succession Act, 1092 (Kollan
Era).
Under the said Act, a widow or mother
becoming entitled under sections 16, 17, 21 & 22 shall have only life
interest terminable at death or on remarriage and a daughter shall not be
entitled to succeed to the property of the intestate in the same share as the
son but she will be entitled to one-fourth the value of the share of the son or
Rs. 5000 whichever is less and even this amount she will not be entitled on
intestacy, if Streedhanom was provided or promised to her by the intestate or
in the life time of the intestate, either by his wife or husband or after the
death of such wife or husband by her or his heirs.
In or about July 1949, the former State of
Travancore merged with the former State of Cochin to form Part State of
Travancore-Cochin. With a view to bringing about uniforming of legislation in
the whole of India, including Part-B States, Parliament enacted Part States
(Laws) Act, 1951 providing 372 for extension to Part States certain
Parliamentary Statutes prevailing in rest of India, including the Indian
Succession Act, 1925. As to the impact of the extension of the Indian Succession
Act, 1925, that is to sag, whether it impliedly repealed the
Travancore-Christian Succession Act, 1092, divergent judicial opinions were
handed over one by a Single Judge of the Madras High Court and the contrary one
by the Division Bench of the Madras High Court and the former Travancore Cochin
High Court. The petitioners therefore, have now challenged, under Article 32 of
the Constitution, Sections 24, 28 and 29 of the Travancore Christian Act, 1092
as unconstitutional and void.
Allowing the petitions, the Court, ^
HELD: 1.1 On the coming into force of Part-B
States (Laws) Act, 1951 the Travancore & succession Act, 1092 stood
repealed and Chapter II of Part V of the Indian Succession Act, 1925 became
applicable and intestate succession to the property of members of the Indian
Christian community in the territories of the erstwhile State of Travancore was
thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925.
[382 D-E]
1.2 The Indian Succession Act, 1925 was
enacted by Parliament with a view to consolidating the law applicable to
intestate and testant succession. This Act being a consolidating Act replaced
many enactments which were in force at that time dealing with intestate and
testant succession including the Indian Succession Act, 1865. So far as Indian
Christians are concerned, Chapter II of Part V contains rules relating to
intestate succession and a fortiori on the extension of the Indian &
Succession Act, 1925 to Part State of Travancore Cochin, the rules relating to
intestate succession enacted in Chapter II of Part V would be applicable
equally to Indian Christians in the territories of the former State of
Travancore. [377 H, 378 A-B, F-G]
1.3 Sub-section 2 of section 29 of the Indian
Succession Act, 1925 did not save the provisions of the Travancore Christian
Succession Act, 1092 and therefore, it cannot be said that despite the
extension of the Indian Succession Act, 1925 to Part State of
Travancore-Cochin, the Travancore Christian Succession Act, 1092 continued to
apply to Indian 373 Christians in the territories of the erstwhile State of
Travancore. [378 H; 379 A-B] When the Indian Succession Act, 1925 was extended
to Part-B State of Travancore-Cochin every Part of that Act was so extended
including Chapter II of Part V and the Travancore Christian Succession Act,
1092 was a law corresponding to Chapter II of Part V, since both dealt with the
same subject matter, namely, intestate succession among Indian Christians and
covered the same field. me fact that Travancore Christian Succession Act, 1092
confined only to laying down rules of intestate succession among the Indian
Christians while Indian Succession Act had a much wide coverage cannot lead to
the conclusion that the Travancore Christian Succession Act, 1092 was not a law
corresponding to the Indian Succession Act. Further by Section 6 of Part States
(Laws) Act, 1951 the Travancore Christian Succession Act, 1092 stood repealed
in its entirety. When section 6 of Part States (Laws) Act, 1951 provided in
clear and unequivocal terms that the Travancore Christian Succession Act, 1092
which was a law in force in part States of Travancore-Cochin corresponding to
Chapter II of Part V of the Indian Succession Act, 1925 shall stand repealed, it
would be nothing short of subversion of the legislative intent to hold that the
Travancore Christian Succession Act, 1092 did not stand repealed but was saved
by section 29 sub- section (2) of the Indian Succession Act, 1925. [380 A-H;
381 A-B] Solomon v. Muthiah [1974] 1 M.L.J.
Page 53; D. Chelliah v. G. Lalita Bai, A.I.R. 1978 (Madras) 66 (DB) referred
to.
2. The legislative device of incorporation by
reference is a well known device where the legislature instead of repeating the
provisions of a particular statute in another statute incorporates such
provisions in the latter statute by reference to the earlier statute. It is a
legislative device adopted for the sake of convenience in order to avoid
verbatim reproduction of the provisions of an earlier statute in a later
statute. But when the legislature intends to adopt this legislative device the
language used by it is entirely distinct and different from the one employed in
section 29 sub-section (2) of the Indian Succession Act, 1925. The opening part
of section 29 sub-section (2) is intended to be a qualificatory or excepting
provision and not a provision for incorporation by reference. [381 H; 382 A-C]
374 Kurian Augusty v. Devasay Aley, A.I.R. 1957 Travancore Cochin Page 1
distinguished.
ORIGINAL JURISDICTION: Writ Petition
(Civil) No.8260 of 1983 etc.
(Under Article 32 of the Constitution of
India.) Ms. Indira Jai Singh, Ms. Kamini Jaiswal for the Petitioners.
G. Viswanath Iyer, G.P. Pai, V.J. Francis,
S.Sukumaran, D.N. Misra, P.K. Pillai, C.S. Vaidyanathan, O.P. Sharma, Hemant
Sharma, R.N. Poddar and Madhu Moolchandani for the Respondents.
Mandita Pandey, Mrs. K. Hingorani and Mrs.
Rekha Pandey for the Intervener.
The Judgment of the Court was delivered by
BHAGWATI, C.J. These Writ Petitions raise an interesting question as to whether
after the coming into force of the Part States (Laws) Act 1951, the Travancore
Christian Succession Act 1092 continues to govern intestate succession to the
property of a member of the Indian Christian Community in the territories
originally forming part of the erstwhile state of Travancore or is such
intestate succession governed by the Indian Succession Act 1925 and if it
continues to be governed by the Travancore Christian Succession Act 1092,
whether sections 24, 28 and 29 of that Act are unconstitutional and void as
being violative of article 14 of the Constitution. This question is of great
importance because it affects the property rights of women belonging to the
Indian Christian Community in the territories of the former State of
Travancore. It is not necessary for the purpose of deciding this question to
refer to the facts of any particular Writ Petition. It will be sufficient to
trace the history of the legislation in regard to intestate succession to the
property of members of the Indian Christian Community in the territories
forming part of the erstwhile State of Travancore.
Prior to July 1949 the State of Travancore
was a prince b state and the law in force in the territories of that state in
regard to intestate succession to the property of members of the Indian
Christian community was the Travancore 375 Christian Succession Act 1092. m is
Act was promulgated by His Highness the Maharaja of Travancore with a view to
consolidating and amending the rules of law applicable to intestate succession
among Indian Christians in Travancore.
The statement of objects and reasons for
enactment of this Act provided that "the usages of the various sections of
the Christian community do not agree in all respects. Separate legislation for
the various sections of Christians is neither desirable nor practicable and is
likely to lead to much litigation and trouble. It is therefore thought
necessary to enact a common law for all the various sections of Indian
Christians." Section 2 of the Act accordingly provided:
"Except as provided in this Act, or by
any other law for the time being in force, the rules herein contained shall constitute
the law of Travancore applicable to all cases of intestate succession among the
members of the Indian Christian community".
Sections 16 to 19 laid dawn the rules of law
applicable to intestate succession among Indian Christians. The contention of the
petitioners was that these rules discriminated against women by providing
inter-alia that so far as succession to the immovable property of the intestate
is concerned, a widow or mother becoming entitled under secs.
16, 17, 21 and 22 shall have only life
interest terminable at death or on remarriage and that a daughter shall not be
entitled to succeed to the property of the intestate in the same share as the
son but that she will be entitled to one- fourth the value of the share of the
son or Rs. 5,000 whichever is less and even to this amount she will not be
entitled on intestacy, if Streedhanom was provided or promised to her by the
intestate or in the life time of the intestate, either by his wife or husband
or after the death of such wife or husband, by his or her heirs and on account
of such discrimination these rules were unconstitutional and void as being
violative of article 14 of the Constitution.
On the view we are taking as regards the
consequential effect of the extension of the Indian Succession Act, 1925 to the
territories of the former State of Travancore by virtue of Part-B States (Laws)
Act, 1951, it is not necessary to examine this challenge to the constitutional
validity of the rules laid down in the Travancore Christian 376 Succession Act,
1092 and we do not therefore propose to refer to them in detail, as that would
be a futile exercise and would unnecessarily burden the judgment. But it is
relevant to point out that sec. 30 of the Travancore Christian Succession Act,
1092 specifically excluded the applicability of the rules laid down in secs.
24, 28 and 29 to certain classes of Roman Catholic Christians of the Latin Rite
and also to certain Protestant Christians living in certain specified Taluks,
according to the customary usage among whom, the male and female heirs of an
intestate share equally in the property of the intestate and proceeded to add
ex majori cautela that so far as these Christians are concerned, nothing in
secs. 24, 28 and 29 shall be deemed to affect the said custom obtaining among
them. This was the law which governed intestate succession to the property of
members of the Indian Christian community in the territories of the former
State of Travancore.
In or about July 1949 the former State of
Travancore merged with the former State of Cochin to form Part-B State of
Travancore - Cochin. m ere were also other Part-B States formed out of
erstwhile princely States and they were Hyderabad, Jammu & Kashmir, Madhya
Bharat, Mysore, Pepsu, Rajasthan and Saurashtra. With a view to bringing about
uniformity of legislation in the whole of India including Part-B States,
Parliament enacted Part-B States (Laws) Act, 1951 providing for extension to
Part-B States of certain Parliamentary Statutes prevailing in rest of India.
Two sections of this Act are material, namely, sec.3 and 6 and they provide
inter-alia as follows :
"3. Extension and a t of certain Acts
find Ordinances The Acts and Ordinances specified in the Schedule shall be
amended in the manner and to the extent therein specified, and the territorial
extent of each of the said Acts and Ordinances shall, as from the appointed day
and in so far as any of the said Acts or Ordinances or any of the provisions contained
therein relates to matters with respect to which Parliament has power to make
laws, be as stated in the extent clause thereof as so amended.
377 xx xx xx
6. Repeals and Savings If immediately before
the appointed day, there is in force in any Part State any law corresponding to
any of the Acts or Ordinances now extended to that State, that law shall, save
as otherwise expressly provided in the Act, stand repealed:" The Schedule
to this Act referred to several statutes and one of these statutes was the Indian
Succession Act, 1925.
The expression "the States",
whereever occurring in the Indian Succession Act, 1925 was substituted by the
word 'India" and a new definition was introduced in clause (cc) of sec. 2
of that Act defining "India" to mean "the territory of India
excluding the State of Jammu & Kashmir".
The effect of sec. 3 read with the Schedule
was to extend the provisions of the Indian Succession Act, 1925 to all Part-B
States including the State of Travancore-Cochin with effect from 1st April,
1951 which was the appointed date under the Part-B States (Laws) Act, 1951. The
question is as to what was the impact of the extension of the Indian Succession
Act, 1925 to the territories of the State of Travancore - Cochin on the
continuance of the Travancore Christian Succession Act, 1092 in the territories
forming part of the erstwhile State of Travancore. Did the introduction of the Indian
Succession Act, 1925 have the effect of repealing the Travancore Christian
Succession Act, 1092 so that from and after 1st April, 1951, intestate
succession to the property of a member of the Indian Christian community in the
territories of the former State of Travancore was governed by the Indian
Succession Act, 1925 or did the Travancore Christian Succession Act, 1092
continue to govern such intestate succession despite the introduction of the Indian
Succession Act, 1925? This question has evoked divergence of judicial opinion,
a single Judge of the Madras High Court taking one view while a Division Bench
of the Madras High Court as also the former Travancore Cochin High Court taking
other view. We shall proceed to consider which view is correct .
The Indian Succession Act, 1925 was enacted
by Parliament with a view to consolidating the law applicable to intestate 378
and testamentary succession. m is Act being a consolidating act replaced many
enactments which were in force at that time dealing with intestate and testant
succession including the Indian succession Act, 1865. Part V of the Act relates
to intestate succession and it consists of a fasciculus of sections beginning with
sec. 29 and going upto sec.56. The rules relating to testate succession are to
be found in Part VI of the Act which comprised 23 Chapters commencing from sec.
57 and ending with sec. 191. We are concerned here only with intestate
succession and hence we shall confine our attention to Part V of the Act. Sec.
29 which is the first section in Chapter I of Part V deals with the
applicability of the rules contained in that Part. This section is material and
hence it would be desirable to set it out in extenso :
"29. Application of Part (1) This part
shall not apply to any intestacy occurring before the first day of January,
1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.
(2) Save as provided in sub-section (1) or by
any other law for the time being in force, the provisions of this Part shall
constitute the law of India in all cases of intestacy.
Chapter II of Part V lays down the rules
governing intestate succession in case of persons other than Parsis and that is
made clear by sec. 31 which delcares that nothing in Chapter II shall apply to
Parsis. Chapter III enacts special rules for Parsi intestates and lays down
what shall be the principles relating to intestate succession among them. It
will thus be seen that so far as Indian Christians are concerned, Chapter II of
Part V contains rules relating to intesate succession and a fortiori on the
extension of the Indian Succession Act, 1925 to Part State of Travancore
Cochin, the rules relating to intestate succession enacted in Chapter II of Part
V would be applicable equally to Indian Christians in the territories of the
former State of Travancore. But the respondents sought to resist the
applicability of these rules on the ground that sec. 29 sub- sec.(2) of the Indian
Succession Act, 1925 saved the provisions of the Travancore Christian
Succession Act, 379 1092 and therefore despite the extension of the Indian Succession
Act, 1925 to Part State of Travancore Cochin, the Travancore Christian
Succession Act, 1092 continued to apply to Indian Christians in the territories
of the erstwhile State of Travancore. m is contention urged on behalf of the
respondents is plainly unsustainable and cannot be accepted.
The principal infirmity affecting this
contention is that it overlooks the repealing provision enacted in sec. 6 of
the Part State (Laws) Act, 1951. This section provides that if immediately
before the appointed day, that is, 1st April, 1951, there was in force in any
Part State any law corresponding to any of the Acts or Ordinances extended to
that State, that Law shall, save as otherwise expressly provided in Part State
(Laws) Act, 1951 stand repealed. Now the Indian Succession Act, 1925 was
extended to Part State of Travancore-Cochin by virtue of sec. 3 of Part State
(Laws) Act, 1951 and if therefore, there was in force in part State of
Travancore-Cochin any law corresponding to the Indian Succession Act, 1925
immediately prior to 1st April, 1951, such law would stand wholly repealed. The
petitioners contended that the Travancore Christian Succession Act, 1092 which
was admittedly in force in Part State of Travancore Cochin immediately prior to
1st April, 1951, was a law corresponding to Chapter II of Part V of the Indian Succession
Act, 1925 and this law, namely, the Travancore Christian Succession Act, 1092
must consequently be held to have been repealed in its entirety on the
extension of the provisions of Chapter II of Part V to the Indian Succession Act,
1925 to the territories of the former State of Travancore and if that be so,
the continuance of the Travancore Christian Succession Act, 1092 could not
possibly be regarded as saved by sec.29 sub-sec.(2) of the Indian Succession
Act, 1925. me respondents made a faint attempt to combat this argument by
urging that the Travancore Christian & Succession Act, 1092 was not a law
corresponding to the Indian Succession Act, 1925 since the latter Act had a
much wider coverage in that it dealt not only with rules relating to intestate
succession among Indian Christian but also laid down rules of intestate
succession among Parsis as also rules relating to testate succession, while the
Travancore Christian Succession Act, 1092 was confined only to laying down
rules of intestate succession among Indian Christians.
This plea urged on behalf of the respon- 380
dents is wholly fallacious. It ignores the basic fact that when the Indian
Succession Act, 1925 was extended to Part-B State of Travancore-Cochin every
Part of that Act was so extended including Chapter II of Part V and the
Travancore Christian Succession Act, 1092 was a law corresponding to Chapter II
of Part V, since both dealt with the same subject matter, namely, intestate
succession among Indian Christians and covered the same field. We may point out
that Mr.
Justice Ismail of the Madras High Court
sitting as a Single Judge of the Madras High Court recognised the validity of
this position in Solomon v. Muthiah; [1974] 1 Madras Law Journal 53 and held
that "the conclusion is irresistible that the Travancore Christian
Succession Regulation II of 1902 is a law corresponding to the provisions
contained in Part V of the Indian Succession Act, 1925 so far as Christians are
concerned". me learned Judge following upon this view held that the
Travancore Christian Succession Act, 1092 was wholly repealed by virtue of
sec.6 of Part States (Laws) Act, 1951 and it could not be held to have been
saved by sec.29 sub-sec. (2) of the Indian Succession Act, 1925.
This conclusion reached by the learned Single
Jugde was overruled by the Division Bench of the Madras High Court in D.
Chelliah v. G. Lalita Bai, A.I.R. 1978 (Mad.) 66, but even this decision of the
Division Bench while disagreeing with the conclusion reached by the learned
Single Judge accepted the position that the Travancore Christian Succession
Act, 1092 was a law corresponding to Part V of the Indian Succession Act, 1925.
And if that be so, it is difficult to resist the conclusion that by sec. 6 of
Part States (Laws) Act, 1951 the Travancore Christian Succession Act, 1092
stood repealed in its entirety. When sec.6 of Part States (Laws) Act, 1951
provided in clear and unequivocal terms that the Travancore Christian
Succession Act, 1092 which was a law force in Part States of Travancore-Cochin
corresponding to Chapter II of Part V of the Indian Succession Act, 1925 shall
stand repealed, it would be nothing short of subversion of the legislative
intent to hold that the Travancore Christian Succession Act, 1092 did not stand
repealed but was saved by sec.29 sub-sec.(2) of the Indian Succession Act, 1925.
Of course, if there were any provision in Part States (Laws) Act 1951 expressly
providing that the Travancore Christian Succession Act, 1092 shall not stand
repealed despite the extension of Chapter II of Part V of the Indian Succession
Act 1925 to the territories of the former 381 State of Travancore, then
undoubtedly the Travancore Christian Succession Act, 1092 would not have stood
repealed and would have been saved. But admittedly there 18 nothing in Part
States (Laws) Act, 1951 expressly saving the Travancore Christian Succession
Act, 1092. The only argument urged on behalf of the respondents was that sec.29
sub-sec.
(2) of the Indian Succession Act, 1925 had
the effect of saving the Travancore Christian Succession Act, 1092 and the
latter Act therefore continued to govern Indian Christians in the territories
of the former State of Travancore. Now this contention of the respondent might
perhaps have required some consideration if the Travancore Christian Succession
Act, 1092 had not been expressly repealed and an argument had been raised that
by reason of the extension of the Indian Succession Act, 1925, there was
implied repeal of the Travancore Christian Succession Act, 1092. Then perhaps
an argument could have been advanced that though both Chapter II of Part V of
the Indian Succession Act, 1925 and the Travancore Christian Succession Act,
1092 covered the same field and dealt with the same subject matter, namely,
intestate succession among Indian Christians, there was no implied repeal of
the Travancore Christian Succession Act, 1092 by the extension of Chapter II of
Part V of the Indian Succession Act 1925 and the continued operation of the
Travancore Christian Succession Act 1092 was saved by sec.29 sub-sec. (2) of
the Indian & Succession Act, 1925. We very much doubt whether such an
argument would have been tenable but in any event in the present case there is
no scope for such an argument, since the Travancore Christian Succession Act,
1092 stood expressly repealed by virtue of sec.6 of Part States (Laws) Act,
1951.
It was then contended on behalf of the
respondents, though faintly, that by reason of section 29 sub-sec.(2), the Indian
Succession Act, 1925 must be deemed to have adopted by reference all laws for
the time being in force relating to intestate succession including the
Travancore Christian Succession Act, 1092 so far as Indian Christian in
Travancore are concerned. This contention was sought to be supported by
reference to the decision of the Travancore- Cochin High Court in Kurian
Auggsty v. Devassy Aley, A.I.R.
1957 Travancore Cochin 1. We do not think
this contention is at all sustainable. The legislative device of incorporation
by reference is a well-known device where the legislature instead 382 of
repeating the provisions of a particular statute in another statue incorporates
such provision in the latter statute by reference to the earlier statute. It is
a legislative device adopted for the sake of convenience in order to avoid
verbatim reproduction of the provisions of an earlier statute in a latter
statute. But when the legislature intends to adopt this legislative device the
language used by it is entirely distinct and different from the one employed in
section 29 subsec.(2) of the Indian Succession Act, 1925. The opening part of
section 29 sub- sec.(2) is intended to be a qualificatory or excepting
provision and not a provision for incorporation by reference. We have no
hesitation in rejecting this contention urged on behalf of the respondents.
We are, therefore, of the view that on the
coming into force of Part-B States (Laws) Act, 1951 the Travancore Cochin
Succession Act, 1092 stood repealed and Chapter II of Part V of the Indian
Succession Act, 1925 became applicable and intestate succession to the property
of members of the Indian Christian community in the territories of the
erstwhile State of Travancore was thereafter governed by Chapter II of Part V
of the Indian Succession Act, 1925. On this view, it becomes unnecessary to consider
whether sections 24, 28 and 29 of the Travancore Christian Succession Act, 1092
are unconstitutional and void. We, therefore, allow the writ petitions and
declare that intestate succession to the property of Indian Christians in the
territories of the former State of Travancore is governed by the provisions
contained in Chapter II of Part V of the Indian Succession Act, 1925. There
will be no order as to costs.
S.R. Petitions allowed.
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