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Report No. 110

8.7. Madras view.-

The Madras High Court has disagreed with the reasoning of the Travancore Cochin High Court, as well as with the earlier decisions relied on by it. According to the Madras High Court, section 29(2) was in pari materia with section 2 of the Indian Succession Act, 1865 on the point under consideration. Relying on three decisions1 on the Act of 1865 which had held that the section should be deemed to have universal application, and that, any saving of any law had to be specifically provided for in the Act, the Madras Iiigh Court ruled out the saving of any customary law by section 29(2).

It placed emphasis on the words "save as provided in any other law" [in section 29(2)]. This, according to the Madras High Court, clearly showed that the Act which is sought to be saved should itself contain a clear provision to this effect.

The Madras High Court found additional support in section 3 of the Succession Act. If the idea of saving any customary law under the Indian Succession Act, 1925, was in the mind of the legislature, it could be done under section 3 of the Act, by which the Government was empowered to notify and exempt the operation of the Act in respect of any race, sect or tribe. Certain communities had, in fact, been notified under the section, such as the Christians in the (erstwhile) Province of Coorg and the Khasis and Syntengs in Assam.

The Madras High Court also found it impossible to accept the view of the Travancore. Cochin High Court that the Travancore Regulation (2 of 1092) was adopted by Reference by section 29(2). It observed that in such a case the wording of the section should have been entirely different.

1. (a) De Souza v. Secretary of State for India, (1874) 12 Beng LR 423.

(b) Dagree v. Pacotti San Po, 1895 ILR 19 Born 783; Apenbala Debi v. Siti Kania Banerjee, (1911) 15 CWN 158.

The Indian Succession Act, 1925 Back

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