TaxTMI 
TaxTMI 
1955 (7) TMI 35
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....at, ed by the Sub-ordinate Judge as the main statement in the cases, and in this the plea was raised that the Madras Aliyasanthana Act, 1949 was beyond the competence of the Provincial Legislature under the Government of India Act, 1935. It was also urged that the enactment was subject to the vice of extra-territoriality. 3. Article 14 of the Constitution was also relied upon impugning the validity of the provision regarding the shares assigned by the enactment to the several members in a partition. As the Sub-ordinate Judge was in agreement with the points set out as regards the validity of the enactment, he has submitted a statement of the case raising the following points for the opinion of this Court; (1) Whether Chapter 6, Madras Aliyasanthana Act 9 of 1949, which was passed by the Madras Legislative Assembly and which received the assent of His Excellency the Governor General on 13-4-1949 is repugnant to cl (3) of Section 100 of the Government of India Act, 1935 and ultra vires? (2) Are the subjects of joint family and partition in respect of which parties in judicial proceedings were governed by their customary personal law before the enactment of the Ma....
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....h is crucial and determinative of the nature of those rights. If the status is one of union, the rights, which the members of that family are entitled to enjoy fall under one category. 8. If on the other hand the status of the family or the status of the members quoad the others undergoes any alteration by way of disruption of that joint status, this is reflected in the manner in which the members of the erstwhile undivided family hold and enjoy their interests in the property. 9. In the first case where the status of the family and of its members is one of union or non-division, the eldest member of the family and in any abnormal case some other selected by the consensus of the group is in possession and management of the entire property and regulates and looks after the enjoyment by the component members of the income received by him on behalf of the family. 10. Such a head of the family a kartha or a manager, by whatever description known, is invested with certain powers and is under certain obligations. He alone could effect alienations, though these might be only for the benefit of the family or for its necessity. The component members are each entitled to be maintain....
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....ernment of India Act, 1919, this head of legislative power was omitted when the items were enumerated in the lists in Sch 7 Government of India Act, 1935, with the result that the Legislatures constituted under the latter statute, one of which enacted the impugned Act, were not endowed with the requisite capacity to legislatively bring about disruption of joint status in a family or to provide for the consequences arising from such disruption. 16. The detailed argument on this branch was broadly on these lines. Under the Government of India Act, 1915, as amended by the Act of 1919 the position was this. Section 45(A)(1) of the Government of India Act, 1915, provided for a classification of subjects in relation to the functions of the Government as Central and Provincial, i.e for the purpose of distinguishing the functions of Local Governments and Local Legislatures from the functions of the Governor-General-in-Council and the Indian Legislature. 17. The Rules made under the powers thus conferred were known as the Devolution Rules. Rule 3 of these rules made the classification and set it out in Sch. I thereof. Sch. I Part I enumerated the Central subjects and Entry 16 of this ....
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....ial Lists which might be argued as having any bearing upon the present topic was, it was urged, Item 21, the relevant portion of which is in these terms: "Land, that is to say, rights in or over land, transfer, alienation and devolution of agriculture land............." 24. But it was contended that the adjustment of rights involved in a partition in a family, could not properly be termed "a transfer or an alienation," nor is there any devolution of title to land involved in a partition. Central entries in List 3 were also referred to as supporting the construction of the learned counsel that the law relating to partition is a law with respect to "status." 25. We were referred to Item 6 of List 3 dealing with "Marriage and divorce; infants and minors; adoption, and Item 12 "Brankruptcy and insolvency", as indicating that several species of "status" were recognised by the framers and dealt with under separate headings; the argument being that the legislative power included Under the term 'status' as used in Item No. 16 of the Central Lists under the Devolution Rules had now been split up into several component parts and assigned to the respective Legislatures, but tha....
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....analogy between a Mitakshara family and Malabar Tarwad said: "A Malabar tarwad or tavazhi is a corporate unit just like the Mitakshara joint Hindu family. The members are joint in food, worship and estate but the property held by them is impartible except with the consent of all the members. No individual member has any definite share therein nor can he enforce a right to a share by partition. The mode in which the proprietary right is enjoyed is by participating in the enjoyment of the family property, and provision is made sometimes for maintenance and other expenses which in law are strictly in exercise of a proprietary right. The right of management is vested in the senior male member called karnavan who has got certain rights of alienation analogous to the powers possessed by a manager of a joint Hindu family. His right to management is unrestricted except in cases where he is guilty of waste or makes some alienations not for the benefit of the family when the junior members of the family have got a right to interdict by taking appropriate proceedings in a Court of law. The right possessed by an individual member enures only for his life. Neither the....
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....iderable emphasis was laid on the words we have underlined (here in ???) as supporting the position that the subject of partition which is a breach of personal or customary law was not within the lists as fairly construed. 33. Before dealing with this argument and the entries in the Provincial and Concurrent Lists which are relied upon by Mr. Venkatasubramania Ayyar who appeared for the plaintiffs in the suit and the Advocate General who appeared on behalf of the State, both supporting the impugned legislation, it is necessary to refer to an argument of Mr. Venkatasubramania Ayyar that the enactment would be valid as within the Provincial Legislative competence notwithstanding that there was no entry in the Provincial or Concurrent Lists dealing with the subject-matter of the impugned legislation. 34. The contention was that Section 99 of the Government of India Act, 1935, determined not merely the territorial ambit of the laws enacted by the Legislatures Federal and Provincial, but was designed to confer legislative powers of the widest amplitude embracing all and every topic of legislation on the Indian law-making bodies and that the mere fact that all particular subject wa....
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....gn income of such person. We find ourselves unable to discern any basis for the very novel argument of counsel founded on this decision and the passage extracted above. 39. If we understand learned counsel aright, the argument was that S. 99 referred not merely to the territorial extent over which the laws enacted by the Legislatures set up by the Government of India Act, 1935, could operate, but that it also conferred upon them unrestricted powers in respect of all and every subject of legislation and that the width of this content was not cut up by the enumeration of the items in three Lists. 40. It is impossible to uphold this construction of S. 99 regarding the relative scope and function of this provision and of S. 100. The argument assumes two things for both of which there is no foundation, viz., (1) that s. 99 is a power conferring provision - conferring an unrestricted power to deal with all subjects of legislation, and not merely one delineating or defining the territorial operation of laws, and (2) that S. 99 is not subject to the provisions in the rest of the Act particularly S. 100 notwithstanding the opening words of S. 99. 41. The argument is not merely not ....
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....nstituted under the Govt. of India Act, 1935, though sovereign bodies possessing wide and plenary powers when legislating on subjects assigned to them by entries in the appropriate lists, were, however, Legislatures with strictly enumerated powers and that when any of their enactments is challenged on the ground of want of legislative competence, their competency could be established only on proof that the same was covered by some entry in the Legislative Lists committed to their Jurisdiction. We have therefore necessarily to examine whether a law providing for partition in an Aliyasanthana family was within any of the entries of the Provincial or Concurrent Lists. 46. The entries on which reliance was placed by the learned counsel for the respondents were item 21 of the Provincial Legislative List and Items 4, 7, 8 and 15 of the Concurrent Legislative List, which we shall proceed to examine. 47. The relevant portion of Item 21 of the Provincial List refers to "land, transfer, alienation and devolution of agricultural land" while the corresponding entries dealing with the non-agricultural property in List 3 (Concurrent Legislative List) are Items 7 and 8 "wills, intestacy and....
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....ge. It is not that the meaning of the words changes but the changing circumstances illustrate and illumine the full import of that meaning". 51. Similarly in the British Coal Corporation v. The King, 1935 AC 500 at p. 518 : (AIR 1935 PC 158 at p. 162) (I) it was stated: "In interpreting the constituent and organic statute such as the Act the British North American Act that construction most beneficial to the widest possible amplitude of the powers of the Legislature must be adopted". 52. Finally it has to be borne in mind that where powers are conferred by entries as in the Lists "one sentence, one phrase or even one word might deal with a whole Code or a system of law of politics" (Clement's Canadian Constitution, page 348). 53. The approach of our own Courts has been on similar lines. For instance, Chief Justice Gwyer said: "I think that none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary and subsidiary matters which can be fairly and reasonably be said to be comprehended in it": United Provinces v. Mt. Atiqa Begum, 1940 FCR 110 at p. 134 : (AIR 1941 FC 16 ....
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....katasubramania Ayyar, learned counsel for the respondents, urged that the subject of "partition" might be comprehended principally within "succession" or "transfer" He particularly relied upon the fact that in the vocabulary of the framers of Indian enactments from the earliest times and long before the Government of India Act, 1935, the topic of partition and the rights inter se between the members of a joint Hindu family have always been considered as falling within the head of "succession". The language employed by S. 27 the Bengal Regulation of 1780 which contained a direction to-the Courts set up by the East India Company ran; "In all suits relating to inheritance, marriage and caste and other religious usages and institutions the laws of the Koran with respect to Muhammadans and those of the Sastra with respect to Gentoos shall be invariably adhered to". 58. This section was subsequently re-enacted in a revised Bengal Code with the addition of the word "succession" after - inheritance. The text of this Regulation was reproduced in the Pitts India Act 1781 (21 Geo. III. C. 17 S. 17) sswhereunder the Supreme Court was directed to apply the personal law of Hindus and....
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....ead to the living but as comprehending also the adjustment of the rights and obligations that subsist between the parties governed by Hindu Law. 64. This aspect of the matter was referred to in the opinion of the Federal Court on the special reference in In re Hindu Women's Rights to Property Act, 1937, 1941 FCR 12 : (AIR 1941 FC 72) (L) Dealing with the exact connotation of the expression "devolution" and "succession" which occur in entry No. 7 of List III and entry 21 of List II, their Lordships said at p. 33 (of 1941 FCR) at p. 78, of AIR): "It is equally important to remember that neither in their ordinary grammatical significance nor by a long continued use in a technical sense have the words 'devolution' and 'succession' acquired a connotation that would preclude their application to describe the operation of the rule of survivorship as above explained.... Many enactments of Parliament and of the Indian Legislature have used the words 'inheritance' and 'succession' in juxtaposition, justifying the inference that succession is either another category from or a wider category than 'inheritance'...... If in these enactments 'succession' should be held not to incl....
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.... 68. Learned counsel for the respondents also relied upon Item 8 of List 3 "transfer of property" as in a sense there is a transfer of property or rights in property consequent upon and involved in a partition. For instance, it has been held by this Court in Rasa Goundan v. Arunachala Goundan, 44 Mad LJ 513 : (AIR 1923 Mad 577) (M), that a partition is a "transfer" of property within the meaning of Section 53 of the Transfer of Property Act. 69. A partition signifies a surrender of a portion of a joint right in exchange for a similar right from the co-sharer: Vide Atra Bannessa Bibi v. Safatulla Mia, 43 Cal 504 at p. 509 : (AIR 1916 Cal 645 at p. 646) (N). We are not very much concerned whether these rulings are correct as regards the proper interpretation of Section 53 of the Transfer of Property Act - a point as regards which we express no opinion whatever - but as to whether the expression "transfer" when it occurs in a Legislative List is not capable of being given a meaning to cover the transfer involved in a partition. 70. A transfer involved in a partition would in our judgment be a "transfer" within the scope of the entry No. 8, in List 3. We have no hesitation in s....
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....ng to Bijni Raj were situated outside Assam. The question whether by reason of the preamble and the operative portion of the Act applying to the entirety of the properties of the Raj, the whole enactment was invalid. Their Lordships held on a construction of the Act that the expression "estate" in the enactment was not intended to apply to land in other provinces. 76. Applying the principle of this decision, the, Aliyasanthana Act may be construed as applying to land and properties situate within the province of Madras and so construed it must be and is conceded that the Act is valid and operative to govern the title in respect of the properties included in I the suits now before us. The fact that the individuals who are entitled to shares in the properties belonging to these families happen to reside outside the province is wholly irrelevant for considering the validity of the enactment. 77. Further, though certain of the defendants to the suit reside outside the State, they have filed written statements agreeing to the partition so that even if the residence of a party were a relevant factor for determining the validity of a legislation in relation to property whose locus i....
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.... has completed the age of fifty years, shall be deemed to be a nissanthathi kavaru. "36.(1) Any kavaru entitled to partition under S. 35 shall be allotted a share of the kutumba properties in accordance with the provisions of sub-s. (2). (2)(a) If, on the date on which a partition is claimed, any of the members of the kutumba who are nearest in degree to their common ancestress is removed lour degrees or more from such ancestress, then, the division shall be effected in the following manner:- (i) In three-fourths of the kutumba properties, the Kavaru shall be allotted such share as would fall to it, if a division thereof were made per capita among all the members of the kutumba then living. (ii) In the other one-fourth of the kutumba properties, the kavaru shall be allotted such share as would fall to it, if a divison thereof were made among the kavarus per stirpes. (b) In other cases, the division shall be effected in the following manner:- (i) In one-hath of the kutumba properties, the kavaru shall be allotted such share as would fall to if it a division thereof were made per capita among all the members of the kutumba then li....
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.... shall have an absolute interest in the properties allotted to it. (4) In the case referred to in sub-s. (3), the life-interest of the nissanthathi kavaru in the properties allotted to it at the partition shall become absolute, if the kutumba concerned ceases to have among its members a female who has not completed the age of fifty years or if all the kavarus into which the kutumba broke up, whether at the same or at a subsequent partition, become nissanthathi kavarus. (5) The properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, shall devolve upon the kutumba, or where the kutumba has broken up, at the same or at a subsequent partition, into a number of kavarus, upon the nearest santhathi kavaru or kavarus. (6) A registered family settlement (by whatever name called) or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purport to have been distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetui....
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....We shall first consider the argument regarding Chap. 6 violating Article 31 of the Constitution. The Aliyasanthana Act, 9 of 1949, though a pre-Constitution law is not it is true saved from the operation of Article 31(2) (vide cl. (5) of Article 31) because it was enacted not more than 18 months before 26-1-1950 and it was not submitted to the President for certification under cl. (6) of that article. 87. Consequently the enactment is subject to the provisions of Article 31 and if the changes effected by the Act amount to "taking" or "acquisition" of property without compensation, the Act should be deemed invalid to that extent. The contention that was urged was that in view of two recent decisions of the Supreme Court in Dwarakadas Srinivas v. Sholapur Spg. and Wvg. Co., Ltd. 1954 SCJ 175 : (AIR 1954 SC 119 (P) (second Sholapur case) and State of West Bengal v. Subodh Gopal, 1954 SCJ 127 : (AIR 1954 SC 92) (Q) (West Bengal case), there need be no acquisition by the State in order to constitute a "taking" within Article 31(2) and that if the right to property or to its enjoyment were substantially interfered with by the legislation there would be a "deprivation" of property and ....
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....n the field of taking property and those limitations are in the interests of the person to be deprived of his property. The question whether acquisition has a larger concept than is conveyed by the expression 'taking possession' is really of academic interest in view of the comprehensive phraseology employed by cl. (2) of Article 31." 92. Reference was also made to a passage in of the judgment of Bose, J. at p. 207 (of 1954 SCJ) (at p. 138 of AIR) where His Lordship said: "Next, have these interests been 'taken possession' of or 'acquired'? Here again I have no doubt. In my judgment, the provisions in the Constitution touching fundamental rights must be construed broadly and liberally in favour of those on whom the rights have been conferred. But in any case, in this instance, these words have to be read along with the word 'deprived' in cl. (1) In my opinion, the possession and acquisition referred to in cl. (2) mean the sort of 'possession' and 'acquisition' that amounts to 'deprivation' within the meaning of cl. (1). No hard and fast rule can be laid down. Each case must depend on its own facts. But if there is substantial deprivation, then cl. (2) is, in my....
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....ed at p. 144 (of 1954 SCJ) (at p. 102 of AIR) of the report where dealing with the particular case before the Court, the learned Chief Justice said: "A comparison of the scope and effect of the old S. 37 with S. 37 which is substituted in its place by Section 4 of the Amending Act and which S. 7 shows to be clearly retrospective, discloses that, although the rights of a purchaser to annual under-tenures and evict under-tenants is curtailed by the new S. 37 by enlarging the scope of the exception in the old section, it entitles the purchaser, as a countervailing advantage, to enhance the rent payable by the tenure-holders and tenants newly brought within the exception. The purchaser is left free in other respects to continue in enjoyment of the property as before. In other words, what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section, as it was found to be inadequate, while conferring certain compensating benefits on the purchaser. This amendment is in line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to changing condit....
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.... of the family properties and regulate its internal economy; (2) all the members of the family were co-proprietors of the family assets but no member of the family nor any majority of members was entitled to enforce a right to partition against the wishes of the other members; (3) as incidental to this co-proprietorship and equal rights in family property (a) all the members of the family were entitled to be maintained out of the family income, (b) as each member was equally entitled to this right of maintenance and the payment of other necessary expenses, each was entitled roughly to an aliquot share of the family-income subject to the right of the ejaman to a slightly large share on account of his or her position as manager as well as on account of need of the manager to meet common family-burdens like entertaining family guests, etc., (c) though a partition of family properties could not be enforced at the instance of any member, it could be brought about by common consent and when thus a division took place the normal rule in the absence of a specific agreement to the contrary among the members was that the division should be per capita, this being in accordance with the equal ....
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....t to partition constitutes a deprivation of the manager's right to property after setting out the other matters which are urged also as contravening this constitutional guarantee under Article 31. 106. The next point pressed upon us relates to the deprivation said to have been suffered by individual members of the family who before the enactment were each one entitled to the same and equal degree of interest in the family properties but who under the impugned law were entitled to large or smaller shares in its assets depending on the number of members of the kavaru to which he or they belong. This contention was based on S. 36 failing to provide for a pure per capita division and partition being effected under the Act. 107. It was stated that before the Act every member of the family had an equal right in the family properties and to an equal share in the family income and that this was reflected in the manner in which the maintenance to be allotted to any individual was determined. In this connection reliance was placed on the following observations in Maravadi v. Pamakkar, 36 Mad 203 (S) at p. 205: "According to the Aliyasanthana system which is very similar in....
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....gainst the karnavan. The status of a member of a Malabar tarwad carries with it four distinct rights, viz., (1) a right to be maintained by the karnavan, (2) a right to see that the tarwad property is not alienated otherwise than in accordance with law, (3) a right to become tarwad karnavan when he becomes the senior male member, and (4) a right to a share if a partition were made and tarwad broken up by common consent....To these might be added another right, viz., a right to bar an adoption. "Of these rights, obviously the most substantial one is the right to 'maintenance' as such a right is the mode in which the right of ownership in the tarwad property is most effectively enforced by the junior members." 112. All these, however, do not carry the learned counsel far enough to support the position that the co-proprietorship on which the right to maintenance is based necessarily implies that when a partition takes place in the family it was and should only be on a per capita basis. 113. In the first place the law relating to maintenance has not been static but has progressively grown and has been undergoing changes in its content. Though originally some doubt was en....
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.... the family property. But it is doubtful whether that learned Judge intended to lay down any such rigorous rule, for in another case where also a proportionate share of the income was claimed by some junior members of a family, after negativing such a right, be abstained from decisively laying down that any member had "right to be maintained out of the family house". (See Moore. P. 125). 116. Again on the quantum of maintenance to be allowed to the members, several decisions have drawn a distinction between adults and minors, the minors being held entitled to an allotment roughly of one half of that allowed to the adults. For instance in Pemmakka's case itself (36 Mad 203) (S) the District Munsif had allotted an aliquot share of the nett income from the family property to each member, adult as well as minor. Dealing with this the learned Judges of this Court said: "The District Muhsif was certainly wrong in dividing the total income of the property Into as many shares as there are members and in awarding a 15/40th share to the plaintiffs on the principle of an equal share to each member." 117. The appeal was therefore remanded for fresh disposal. It is w....
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....divide the property among the females. In Narayani Kutti Amma v. Achuthankutti 42 Mad 292 : (AIR 1919 Mad 573) (Z) it is laid down that partition cannot be set aside on the ground that the division is stirpital. In that very case, however, it will be noticed that a part of the property had been divided per capita and no objection was taken to it. Having regard to the state of authorities the only safe position that can be taken is that there is no definite rule either way and a division on either basis or a combination of both will not be set aside merely on that ground." 120. The entire argument in regard to this point really rests on two prepositions: (1) that except in regard to certain stated matters, the Marumakkathayam and the Aliyasanthana Systems are indentical and that the rule as to the mode of division is not one of those exceptional matters, & (2) it is the settled rule under the Marumakkathayam law that the division is per capita. 121. So far as the first proposition is concerned, the main reliance is on a passage at page 246 of Sundaram Ayyar's Malabar and Aliyasanthana law where the learned author enumerates the points of distinction between the Ma....
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....f a right of representation may account for this feature. But this should at least show that there is no necessary inconsistency between equal rights to maintenance and a stirpital division on a break-up. 128. The second point is that ever since Munda Chetty's case (Y) in 1863 no compulsory partition through Courts has been possible in an Aliyasanthana family. We have, therefore, nothing on the basis of which it could be said that only a per capita division gives effect to the real rights of the parties and not a stirpital or a mixture of per capita and stirpital division. 129. We are clearly of the opinion that the termination of the ejaman's right to manage family property and to regulate its internal economy by the provision for the disruption of the family by a demand for partition as enacted in Section 35 of the Act is not in violation of Article 31(2) of the Constitution. 130. In the first place, this legislation is not intended or designed with a view to deprive the manager of any right of property but the termination of the managership is consequential on, and incidental to the giving effect to the rights of the other members of the family by way of a separ....
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....am and Aliyasanthana systems were completely identical. 137. When the Marumakkathayam Bill was introduced into the Madras Assembly in 1932, persons belonging to the Aliyasanthana system were included within the scope of that bill. The conservative sections of the Aliyasanthana community objected to this inclusion on the ground that it constituted much too great a departure from the prevailing customs. 138. The result of this agitation was that the followers of the Aliyasantha system were excluded from the scope of the bill by the definition which was introduced into Section 3(e) of the Marumakkathayam Act. "Marumakkathayyam" was denned to mean "a system of inheritance in which descent is traced in the female line but so as not to include the system of inheritance known as Aliyasanthana". The agitation for reforms was still kept up by the bulk of the community. 139. In 1933, a Bill was introduced in the Legislative Council for this purpose which was referred for eliciting public "opinion and a large volume of opinion expressed was published by the Government. The general trend of the opinion was that a bill on the lines proposed was absolutely essential. But notwithstanding....
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....British Government with the principle of stare decisis that arrested this process of natural growth, show though it might be. 144. To take an instance from the Aliyasanthana law itself, it would be noticed that in the early years of the administration of justice in the State, the right of partition among the members was recognised and in several cases the Courts decreed suits for partition on the footing that this was in conformity with the custom. But all these earlier decisions were overruled by this Court in 1 Mad HCR 380 (Y) relying on a passage in Boothalapandya (the authenticity of which authority has been doubted in some later cases) and it is only from then onwards that it was firmly established that there could be no partition except with the consent of the members of the family. 145. Though the members of the community chafed under the ruling, nothing could be done by them. The decision of the Courts petrified the law and imposed barriers against change. This was obviously inconvenient to the community as could be seen, from the extract from the speech of the Minister already quoted and this was particularly so in more recent times when individualism was expressing ....
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.... it can only be effected after the payment of adequate compensation to the manager - of course at the cost of the general tax-payer. 151. The other part of the argument is that each individual member had under the law an equal right to maintenance along with the others. Therefore if a division were effected on that basis he would get some particular fraction of the family property. But under the Act, the scheme of division adopted under S. 36 is a mixture of the stirpital and per capita principles. In particular cases this might result in the members of one branch receiving a lesser extent of property than another branch which has fewer members. This might be incidental and accidental and not designed. 152. But this difference in the quantum so far as any particular member is concerned is nevertheless a deprivation of his right of property for which compensation ought to be paid by the State. This argument is unsound and does not appeal to us. The branches or the kavarus were not the creations of the Legislature but were pre-existing units recognised by the law and by the community. 153. If the Legislature took these existing facts into account and recognised the kavaru as....
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....ts", per Shaw, C.J in Common Wealth v. Alger 7 Cushing 53 (Z2). 159. In our judgment the deprivation of property referred to in Article 31 has nothing to do with the I so called impairment of rights involved in a partition or with the allotment of shares to the divided I groups. 160. The next head of argument is that Chap. 6 offends against Article 14 of the Constitution. Before dealing with this, we might as well set out the manner in which the question should be approached. 161. In this connection the following passage from the judgment of Van Devanter in the Supreme Court of United States of America in Stuart Lindsley v. Natural Carbonic Gas Co. (1911) 51 Law Ed 369 (Z3) which has been quoted with approval by our Supreme Court in Charanjit Lal Chowdhury v. Union of India 1951 SCJ 29 at p. 65 : (AIR 1951 SC 41 at p. 63) (Z4) may usefully be referred to. Dealing with the question that the classification there made was arbitrary and consequently denied equal protection to those whom it affected, the learned Judge said at page 377: "The equal protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws bu....
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....point of attack is the distinction between a santhanthi kavaru and nissanthathi kavaru. But this is forgetting that this distinction was not invented by the Act but only made provision for the two sets of cases, the distinction between them being that in the case of a nissanthathi kavaru there is no chance of any expansion of that kavaru. 167. Referring to the shares allotted to the several kavarus under the provisions of S. 36, it is argued that the distinction drawn in S. 36(2)(a) and 2(b) by which the mode of division is made dependent upon the nearness of the degree of the kavaru to the common ancestress - whether it is removed by four degrees or more or less than that - is arbitrary and not based on any reasonable classification. The manner in which this provision came to be effected would be a sufficient refutation of the argument in that regard. 168. We have already extracted a portion of the speech of Mr. Shetty in moving the reference of the Aliyasanthana Bill to the Select Committee and have referred to the agitation in the community for a change in the law relating to partition & succession. When the conservative elements in the community succeeded in getting the p....