Section 17 Hindu Succession Act applies to Marumakkathayam governed persons despite 1975 abolition act

Kerala HC held that Section 17 of Hindu Succession Act, 1956 remains operative despite abolition of Marumakkathayam law by Kerala Joint Hindu Family System (Abolition) Act, 1975. Court ruled Section 17 applies to persons governed by Marumakkathayam law at commencement of Hindu Succession Act (18-6-1956) who died after Joint Family Abolition Act (1-12-1976), but not to persons born after 1-12-1976. Property of deceased female devolved upon mother under Section 17, not husband under Section 15. Appeal allowed, suit dismissed.

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1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court were:

(a) Whether Section 17 of the Hindu Succession Act, 1956, which governs succession to females who would have been governed by the Marumakkathayam law, continues to be in force and operative despite the commencement of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter "Joint Family Abolition Act, 1975").

(b) What changes relevant to the Marumakkathayam law have been made by Parliament and the Kerala State Legislature, particularly by the Hindu Succession Act, 1956 and the Joint Family Abolition Act, 1975.

(c) Whether the Kerala State Legislature intended, by the Joint Family Abolition Act, 1975, to repeal or render inoperative Section 17 of the Hindu Succession Act, 1956.

(d) Whether Section 17 of the Hindu Succession Act, 1956 incorporates amendments into the Travancore Nair Act and other State enactments, and whether subsequent repeal of those State enactments by the Joint Family Abolition Act, 1975 results in express or implied repeal of Section 17 of the Hindu Succession Act.

(e) Whether Section 17 becomes inoperative after the passing of the Joint Family Abolition Act, 1975, and to which categories of persons it applies or does not apply.

(f) What is the position of persons born on or after 1-12-1976, the date of commencement of the Joint Family Abolition Act, 1975.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) & (b): Changes to Marumakkathayam Law and Applicability of Section 17 Post-Abolition Act

The Marumakkathayam system is a matrilineal system of inheritance prevalent among certain communities in Kerala, governed by statutory enactments such as the Travancore Nair Act and others. Parliament passed the Hindu Succession Act, 1956, which included Section 17, making special provisions for persons governed by Marumakkathayam law. Section 17 modifies succession rules for such persons, for example, providing that a female Hindu's property devolves firstly upon her sons, daughters, and mother, differing from the earlier broader matrilineal group succession under the Travancore Nair Act.

The Kerala Joint Hindu Family System (Abolition) Act, 1975 abolished the joint family system and the Marumakkathayam law in Kerala with effect from 1-12-1976. The Act repealed the statutory and customary Marumakkathayam law, abolished rights by birth and survivorship, and converted joint tenancy into tenancy-in-common.

The Court examined the legislative intent and the Statement of Objects and Reasons of the Joint Family Abolition Act, 1975, which clarified that the Act did not intend to interfere with matters governed by the Hindu Succession Act, 1956, such as wills, intestacy, and succession. The Law Commission reports preceding the Act also indicated no intention to alter Section 17 of the Hindu Succession Act.

The Court concluded that the Kerala Legislature did not intend to repeal or make Section 17 inoperative by the Joint Family Abolition Act, 1975.

Issue (c): Whether Section 17 of the Hindu Succession Act is Repealed by the Joint Family Abolition Act

The respondents argued that Section 17 is effectively repealed either expressly or by implication due to the repeal of the Travancore Nair Act and other State enactments by Section 7(2) of the Joint Family Abolition Act, 1975. They contended that Section 17 is an amendment incorporated into those State enactments and thus stands repealed along with them.

The Court rejected this contention, holding that Section 17 of the Hindu Succession Act is an independent statutory provision and does not get repealed by the repeal of the State enactments. The Court held that there is no express repeal of Section 17 by the Joint Family Abolition Act, 1975.

Issue (d): Application of the Principle of Incorporation or Reference to Section 17

The respondents relied on the doctrine of incorporation or reference, arguing that Section 17 incorporates the Marumakkathayam law as it stands at the time of death, and since the Marumakkathayam law was repealed, Section 17 becomes inoperative.

The Court analyzed precedents on incorporation, including Supreme Court decisions in Ram Sarup v. Munshi, Bajya v. Gopika Bai, and State of Madhya Pradesh v. Narasimhan. It distinguished these cases, noting that in those cases the statute incorporated the law as it stood at the time of application, allowing subsequent amendments to affect applicability. However, Section 17 does not incorporate the Marumakkathayam law as a mode of succession but rather identifies a fixed group of persons governed by that law as of the commencement of the Hindu Succession Act, 1956, and prescribes a specific mode of devolution.

The Court held that Section 17 fixes the mode of succession and does not depend on the continued existence of the Marumakkathayam law at the time of death. Therefore, the principle of incorporation or reference does not apply to Section 17, and its operation is not affected by the repeal of the Marumakkathayam law.

Issue (e): Whether Section 17 Becomes Inoperative After the Joint Family Abolition Act and Applicability to Various Categories

The Court examined five categories of persons governed by Marumakkathayam law:

(i) Persons alive on 18-6-1956 (commencement of Hindu Succession Act) who died before 1-12-1976 (commencement of Joint Family Abolition Act).

(ii) Persons alive on 18-6-1956 who died on or after 1-12-1976.

(iii) Persons born on or after 18-6-1956 who died before 1-12-1976.

(iv) Persons born on or after 18-6-1956 but before 1-12-1976 who died on or after 1-12-1976.

(v) Persons born on or after 1-12-1976 who died thereafter.

It was undisputed that Section 17 applies to categories (i) and (iii). The dispute was regarding categories (ii), (iv), and (v).

The Court held that Section 17 continues to apply to categories (ii) and (iv), i.e., persons who were governed by Marumakkathayam law at the commencement of the Hindu Succession Act and who died after the commencement of the Joint Family Abolition Act, irrespective of the repeal of the Marumakkathayam law.

However, for category (v), persons born on or after 1-12-1976, the Court held Section 17 does not apply because these persons were never governed by the Marumakkathayam law after its repeal. Their succession is governed by the general provisions of the Hindu Succession Act.

The Court reasoned that the reference in Section 17 to persons "who would have been governed by the Marumakkathayam law if this Act had not been passed" is a legal fiction to identify a fixed group of persons as of the commencement of the Hindu Succession Act, 1956. This fiction is limited to identification and does not extend to creating a vacuum or to ignoring subsequent repeal of the Marumakkathayam law.

Issue (f): Position of Persons Born on or After 1-12-1976

The Court held that persons born on or after the commencement of the Joint Family Abolition Act, 1975, are not governed by Section 17 of the Hindu Succession Act, 1956, as they were never subject to the Marumakkathayam law. Their succession is governed by the general rules of the Hindu Succession Act.

3. SIGNIFICANT HOLDINGS

"The Kerala State Legislature, when it passed the Joint Family Abolition Act, 1975 under Entry 5 of List III of the Constitution of India, did not intend to trench upon Section 17 of the Hindu Succession Act, 1956. Therefore, there is neither any repugnancy nor implied repeal of Section 17 of the Hindu Succession Act by reason of the passing of the Joint Family Abolition Act, 1975."

"Section 17 of the Hindu Succession Act, 1956 does not lay down any principle of devolution generally applicable. On the other hand, the Section itself fixes the mode of devolution in a particular manner. The Section only deals with the question of identification of a group of persons, who would have been governed by the Marumakkathayam law as mentioned in Section 3(h) of the Hindu Succession Act. In our view, therefore, the principle of Incorporation itself does not apply to the facts of the case."

"Once the group of persons who would have been governed by the Marumakkathayam law and who were living on 18-6-1956 when the Hindu Succession Act, 1956 came into force had been identified as on 18-6-1956, the fact that on the date of their death subsequent to the commencement of the Joint Family Abolition Act, 1975, the said Marumakkathayam law was not in force would not matter."

"Section 17 of the Hindu Succession Act, 1956 will govern the law of succession on the death of males or females who were governed by the Marumakkathayam system if such persons were living as on 18-6-1956 and died either before or after 1-12-1976, or born on or after 18-6-1956 but before 1-12-1976 and died on or after 1-12-1976."

"Section 17 of the Hindu Succession Act, 1956 will not govern the law of succession of males or females if such persons were born on or after 1-12-1976 and died thereafter. Succession to them would be governed by the provisions of the Hindu Succession Act, 1956 other than the provisions applicable to those governed by the Marumakkathayam system."

"The fiction created in Section 17 of the Hindu Succession Act, 1956 is limited to ascertaining the group of persons who would have been governed by the Marumakkathayam law, had the Hindu Succession Act, 1956 not been passed. The fiction stops there and does not extend to create a vacuum."

"The abolition of Marumakkathayam system by the Joint Family Abolition Act, 1975 does not have any bearing on the applicability of Section 17 of the Hindu Succession Act, 1956."

The Court's final determination was that Section 17 of the Hindu Succession Act, 1956 remains operative and applicable to persons who were governed by the Marumakkathayam law at the commencement of the Hindu Succession Act and who died after the commencement of the Joint Family Abolition Act, 1975, including the deceased in the present case. Accordingly, the property of the deceased female devolves upon her mother under Section 17(ii)(a) and not upon her husband under Section 15. The appeal was allowed, and the suit dismissed.

In a dissenting opinion, it was held that Section 17 requires the continued existence of the Marumakkathayam law at the time of death for its applicability, and since the law was abolished by the Joint Family Abolition Act, 1975, Section 17 became inoperative for deaths occurring after 1-12-1976. Therefore, succession would be governed by Section 15 of the Hindu Succession Act, 1956, favoring the husband as heir in the absence of children.

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