Marumakkathayam succession under Section 17 survives abolition law and continues for the protected class

Section 17 of the Hindu Succession Act, 1956 was treated as a special succession rule that uses Marumakkathayam law only to identify the protected class of persons, not as the governing law itself. The Kerala Joint Hindu Family System (Abolition) Act, 1975 did not repeal or create repugnancy with Section 17, because it did not deal with intestate succession and did not expressly displace that provision. The later abolition of Marumakkathayam law did not stop Section 17 from applying to persons already within its class at the commencement of the Hindu Succession Act, including those dying after 1-12-1976. Succession for such persons therefore continued under Section 17 rather than the general rules.

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Issues: (i) Whether the Kerala Joint Hindu Family System (Abolition) Act, 1975 repealed or rendered inoperative Section 17 of the Hindu Succession Act, 1956 in relation to succession to persons governed by Marumakkathayam law; (ii) whether Section 17 applied only if Marumakkathayam law continued to exist on the date of death, or whether it was enough that the deceased belonged to the identified class of persons covered when the Hindu Succession Act, 1956 came into force; (iii) whether the abolition of the Marumakkathayam system affected the succession of persons dying after 1-12-1976.

Issue (i): Whether the Kerala Joint Hindu Family System (Abolition) Act, 1975 repealed or rendered inoperative Section 17 of the Hindu Succession Act, 1956 in relation to succession to persons governed by Marumakkathayam law.

Analysis: The Hindu Succession Act, 1956 was held to be a complete code on intestate succession for the matters it covered, and Section 17 was treated as a special provision identifying a class of persons who, but for that Act, would have been governed by Marumakkathayam law. The majority held that the Kerala Abolition Act did not trench upon the subject of wills, intestacy and succession, and therefore did not bring about repugnancy under Article 254(1) of the Constitution of India. It also held that Section 17 was not engrafted into the Travancore Nair Act or other State enactments, so repeal of those enactments did not expressly repeal Section 17.

Conclusion: Section 17 was neither repugnant to nor expressly repealed by the Kerala Joint Hindu Family System (Abolition) Act, 1975.

Issue (ii): Whether Section 17 applied only if Marumakkathayam law continued to exist on the date of death, or whether it was enough that the deceased belonged to the identified class of persons covered when the Hindu Succession Act, 1956 came into force.

Analysis: The majority held that Section 17 uses Marumakkathayam law only as a means of identifying a class of persons, and not as the governing rule of succession itself. Once a person fell within the class described by Section 17 as on the commencement of the Hindu Succession Act, 1956, subsequent abolition of the Marumakkathayam system did not destroy the applicability of Section 17. The Court rejected a broad application of the doctrine of incorporation by reference and held that the legal fiction in Section 17 was confined to identification of the relevant class.

Conclusion: Section 17 applied to the identified class notwithstanding the later abolition of Marumakkathayam law.

Issue (iii): Whether the abolition of the Marumakkathayam system affected the succession of persons dying after 1-12-1976.

Analysis: The majority held that persons living on 18-6-1956 and those born thereafter but before 1-12-1976, if they otherwise fell within the class described by Section 17, remained governed by that provision even if they died after 1-12-1976. However, persons born on or after 1-12-1976 could not be treated as persons who would have been governed by Marumakkathayam law, because no vestige of that system survived for them. On the facts, the deceased belonged to the class protected by Section 17, so her succession was governed by that section and not by Section 15.

Conclusion: The abolition Act did not displace Section 17 for the protected class, and the deceased's succession was governed by Section 17.

Final Conclusion: The appeal succeeded because the deceased female's estate devolved under the special Marumakkathayam provision in the Hindu Succession Act, leaving the husband without a share and vesting succession in the mother and thereafter her heirs.

Ratio Decidendi: Where a statute uses an earlier personal law only to identify a class of persons and itself fixes the mode of succession, later abolition of that personal law does not affect the operation of the special succession provision for that identified class; the fiction created for identification cannot be extended to defeat the statutory scheme.

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