TaxTMI 
TaxTMI 
1992 (12) TMI 241
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....w that the above-said Section 17 of the Hindu Succession Act, 1956 continues to be in force notwithstanding the Joint Family Abolition Act, 1975. It is the correctness of the said decisions that falls for consideration before us. 2. The basic facts are not in dispute and are as follows: The property in question belongs to one Lakshmikutty Amma, who belonged to a Nair family and who died on 18-2-1982 leaving behind her, her husband (plaintiff) and her mother, one Chellamma. The dispute is in regard to the succession to the property held by Lakshmikutty Amma on the date of her death on 18-2-19.82. Her husband is claiming as legal heir under Section 15 of the Hindu Succession Act, 1956 on the basis that the effect of the Joint Family Abolition Act, 1975 was to make Section 17 of the Hindu Succession Act, 1956 inoperative. The contest on the other side is raised by defendants 1 to 8 who are the legal heirs of Lakshmikutty Amma's mother, Chellamma, the said Chellamma having died on 8-9-1982 subsequent to Lakshmikutty Amma's death. Defendants 1 to 8 claim that their mother, Chellamma became the legal heir to the property of her daughter by virtue of Section 17 of the Hindu Suc....
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....hedule items were the self-acquisition of late Lakshmikutty Amma and that plaintiff has not given any money for the acquisition of these properties. 5. The trial Court held that plaint A Schedule items 1, 2, 3 and 5 and the deposits shown in plaint B Schedule were the separate properties of Lakshmikutty Amma and that item 4 of plaint A Schedule was unauthorisedly put up in item 3 by the defendants after the death of Lakshmikutty Amma. The trial Court also held that Section 15 of the Hindu Succession Act, 1956 applied and that Section 17 was no longer applicable after the passing of the Joint Family Abolition Act, 1975 and that, therefore, Chellamma could not have claimed any right to the property on the death of her daughter Lakshmikutty Amma and that it was the plaintiff who could claim the property. It was, therefore, held that the plaintiff had title to plaint A Schedule items 1, 2, 3 and 5 and in regard to plaint B Schedule amounts as the legal heir of his wife Lakshmikutty Amma and a decree for possession was granted for plaint A and B Schedules. Defendants were directed to remove item 4 of plaint A Schedule within two months from the date of judgment and on failure the pla....
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....orporation or Reference is not attracted to Section 17 of the Hindu Succession Act. That Section merely refers to the persons who are governed by the Marumakkathayam law on the date of the commencement of the Hindu Succession Act and once that group is identified, they will be governed by Section 17 of the Hindu Succession Act and the Joint Family Abolition Act, 1975 cannot indirectly make Section 17 inoperative. Their contention further is that the Statement of Objects and Reasons and the reports of the State Law Commission which preceded the enactment indicate clearly that the State Legislature while passing the Joint Family Abolition Act, 1975 did not intend to disturb the continued operation of Section 17 of the Hindu Succession Act. 10. On the other hand, it is contended by learned Counsel for the respondent-plaintiff that Section 17 of the Hindu Succession Act must be treated as an express amendment to the Travancore Nair Act and other State enactments dealing with succession and on the repeal of the Travancore Nair Act by Section 7(2) of the Joint Family Abolition Act, 1975, Section 17 gets expressly repealed even otherwise it gets impliedly repealed on the passing of the....
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....egories of persons it applies and to what categories of persons it does not apply? (5) What is the position of those persons who were born on or after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force? 12. Point No. 1 :-- Under this point, we shall make a brief survey of the changes made in the Marumakkathayam system of inheritance and with particular reference to the facts of this case. We shall, however, extract the relevant statutory provisions while dealing with Point No. 2. 12A. It has to be noticed that the Marumakkathayam system of inheritance means the system of inheritance by descent from a common ancestress. It is called a matrilineal system of inheritance and is somewhat different from the patrilineal system of inheritance in the various branches of Hindu law. Various principles of succession were being applied both when a male died or a female died, in the South-Western parts of this country and these principles of succession were generally treated as Marumakkathayam system of inheritance. Before the States Reorganisation Act of 1956 was passed, several legislations had been made by the Provincial Legislatures both in the former State of....
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....a) inasmuch as under that clause, the legal heirs of the properties of the females are only the sons and daughters and the mother. In the present case, since Lakshmikutty Amma did not have sons or daughters, the property would go under Section 17(ii)(a) to her mother, Chellamma. Succession to a female on her death under the Travancore Nair Act in a case where the deceased had no male or female children, would have been governed by Section 18 of the Travancore Nair Act. That Section stated that on the death of a Nair female leaving no lineal descendants surviving her, the whole of the self-acquired and separate property left undisposed of by her at her death shall devolve on her mother's tavazhee. Section 2(3) of the Travancore Nair Act had defined "Thavazhee of a female" as "a group of persons consisting of that female and her issue how-low-so-ever in the female line, or such of that group as are alive". In other words, before the passing of the Hindu Succession Act, 1956, if a Nair female died without leaving any male or female lineal descendants surviving her, her property would have gone to her mother and the mother's issues how-low-so-ever in the female line, or such of....
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....I dealt with definitions. Section 1(2) stated that the Travancore Nair Act would apply to all Nairs domiciled in Travancore, and to such Nairs not so domiciled and non-Nairs, whether so domiciled or not, as have, or shall have, marital relation with Nairs domiciled in Travancore. Section 2(2) defines 'marumakkathayam' as the system of inheritance in which descent is traced in the female line. Chapter IV which dealt with intestate succession contained Sections 11 to 22. Intestate succession on the death of a Nair male was governed by Sections 11 to 16. Intestate succession on the death of a female member of a Nair family was governed by Sections 17 - 20. Sections 21 - 23 dealt with certain other connected matters relating to succession. Testamentary succession in Chapter V was governed by a single Section, that is Section 24. There was a saving provision in Section 44 in Chapter IX dealing with supplemental provisions, which reads as follows : 44. Nothing in this Regulation shall -- (a) affect the existing rules of marumakkathayam law, custom or usage except to the extent hereinbefore expressly provided for; or ..... From the provisions of the above Trav....
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.... Act (XXXIII of 1113 K); or the Cochin Nair Act (XXIX of 1113 K) with respect to the matters for which provision is made in this Act, or (b) who belong to any community, the members of which are largely domiciled in the State of Travancore-Cochin or Madras, as it existed immediately before the 1st November, 1956 and who, if this Act had not been passed, would have been governed with respect to the matters for which provision is made in this Act by any system of inheritance in which descent is traced through the female line; but does not include the aliyasanthana law. Section 4 of the Hindu Succession Act has an overriding effect of the said Act and reads as follows: 4. Overriding effect of Act: (1) Save as otherwise expressly provided in this Act -- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus so far as it is inconsistent with any of the provi....
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.... (e) lastly, upon the heirs of the husband; (iii) Clause (a) of Sub-section (2) of Section 15 had been omitted. (iv) Section 23 had been omitted. So far as testamentary succession is concerned, the same is governed by Section 30 of the Hindu Succession Act, which reads as follows : 30. Testamentary succession. -- Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation. -- The interest of a male Hindu in a Mitakshara Coparcenary property or the interest of a member of a tarwad, tawazhi, illom, Kutumba or kavaru in the property of the tarwad, tawazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act, or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Section . Therefore Parliament passed the Hindu Succession Act under the heading 'wills, intestacy, and succession' in Entry 5 ....
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...., VII of 1115, the Cochin Nayar Act, XXIX of 1113, or the Cochin Marumakkathayam Act, XXXIII of 1113; (2) a kutumba or kavaru governed by the Madras Aliyasanthana Act, 1949; (3) an illom governed by the Kerala Nambudiri Act 1958; and (4) an undivided Hindu family governed by the Mitakshara law. Section 3 abolishes the right by birth in the joint family, while Section 4 replaces tenancy in common in respect of joint tenancy rights of the members of the undivided Hindu family with effect from the day of commencement of the Act. In other words, those who were holding property as undivided Hindu family as defined in Section 2(1) of the said Act, immediately on the passing of the Act become tenants in common, as if partition had taken place. Section 5 abrogated the rule of pious obligation Hindu son, and Section 6 dealt with the liability of members of joint Hindu family of debts contracted before the Act and stated that the said liability was not affected. Section 7 is a repeal provision and is important. It reads as follows: 7. Repeal:-- (1). Save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu Law or any cu....
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.... 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. Point No. 2 is found accordingly. 21. Point No. 3:-- A contention was raised by learned counsel for the respondent-plaintiff that Section 17 of the Hindu Succession Act, 1956 was in the nature of an amendment to the Travancore Nair Act and other State Statutes and that the subsequent repeal of the State laws by Section 7(2) of the Joint Family Abolition Act, 1975 resulted in the express repeal of Section 17 of the Hindu Succession Act. It was pointed out that the latter Act had received the assent of the President of India and, therefore, Article 254(2) of the Constitution of India was attracted and the State legislation could repeal Section 17 of the Central legislation. 22. We are unable to agree with this contention. It is true that Section 17 of the Hindu Succession Act creates certain changes in the Travancore Nair Act in relation to int....
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....simhan, AIR 1975 SC 1835. It is stated that the two earlier decisions are directly in point and that so far as the third case is concerned, the Exceptions mentioned in paragraph 16 of that judgment would apply inasmuch as Section 17 of the Hindu Succession Act is either supplemental to the provisions of the Travancore Nair Act and the other analogous laws in relation to intestate succession; or the two Statutes, namely, the Hindu Succession Act and the Travancore Nair Act and other analogous laws are at least in pari materia. The subsequent changes made to the Marumakkathayam law including its entire repeal by Sections 7(1) and 7(2) of the Joint Family Abolition Act, 1975 should be read into Section 17 of the Hindu Succession Act and if so read, there could be no female, after the commencement of the Joint Family Abolition Act, 1975 who could be said to be governed on the date of her death by the Marumakkathayam law. It is also argued for the respondent that once the Marumakkathayam law has been repealed, a person who is born after the commencement of the Joint Family Abolition Act, 1975 will never be considered as being governed by the Marumakkathayam law any more. If that be so, ....
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.... Act or under other corresponding laws, Section 17 of the Hindu Succession Act cut down the rigour of that system of female line of succession, at the same time maintaining a limited part of the said system. For example in the case before us where the deceased female died without any children, but leaving her husband and her mother at the time of her death, her property would have gone under Section 18 of the Travancore Nair Act to the mother's tavazhi which includes the mother and the mother's issue how-low-so-ever in the female line or such of that group as are alive, while under Section 17(ii)(a) of the Hindu Succession Act, the property of the female would go to the mother of the deceased. Parliament, therefore, intended that that group of persons who would have been governed by the marumakkathayam law as on the date of commencement of the Hindu Succession Act, 1956 should be governed by Section 17. Those persons could be identified by virtue of the provisions of Section 3(h) of the Hindu Succession Act, which defined the marumakkathayam law as the system of law applicable to persons who, if the Hindu Succession Act had not been passed would have been governed by the Tr....
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....75. 27A. In other words, by the combined effect of Article 254(1), Hindu Succession Act, 1956 and Section 7(2) of the Joint Family Abolition Act, 1975, the statutory laws mentioned in the Schedule to the Joint Family Abolition Act, 1975 stood repealed. So far as the pristine law which was not covered by those Acts is concerned, it stood repealed by Section 7(1) to the Extent provision is made in the Joint Family Abolition Act, 1975. Of course, once all this is gone, almost nothing is left under the pristine marumakkathayam law, or the customary and statutory on 1-12-1976. Therefore, learned counsel for the respondent is right to this extent, namely, that the entire marumakkathayam law stood repealed after passing of the Joint Family Abolition Act, 1975. 27B. A contention was raised that the word "Hindu Law" used in Section 7(1) is referrable to Hindu law other than the marumakkathayam and other laws and is meant to refer only to the Mitakshara law. We cannot accept this contention. We may here point out that the words 'Hindu law' in Section 7(1) have to be understood in a broad sense, having regard to Section 2 of the Hindu Succession Act, 1956, which dealt with the a....
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....bolition Act, 1975 the question arises as to the meaning of the word in Section 17 "persons who would have been governed by the Marumakkathayam law, if this Act had not been passed". In order to be clear, we shall divide the persons who were governed by the Marumakkathayam law into five groups : (i) those who were governed by the Marumakkathayam law and were living as on 18-6-1956 when the Hindu Succession Act, 1956 came into force and died before 1-12-1976 when the Joint Family Abolition Act, 1975 came into force, (ii) those who were so governed by the Marumakkathayam law and living as on 18-6-1956 when the Hindu Succession Act, 1956 came into force and who died on or after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force, (iii) those who were governed by the Marumakkathayam law, i.e., Travancore Nair Act etc. and were born on or after 18-6-1956 when the Hindu Succession Act, 1956 came into force and who died before 1-12-1976 when the Joint Family Abolition Act, 1975 came into force, (iv) those who were governed by the Marumakkathayam law, i.e., Trvancore Nair Act etc. and were born on or after 18-6-1956 when the Hindu Success....
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....r Act and other Kerala laws has no bearing on their status as "persons who would have been governed by the Marumakkathayam law if this Act had not been passed." 33. It is true that in matters relating to succession, the date of death of the persons is the criterion and it is the law of succession as on that date that will apply. But this principle is not offended for Section 17 does not say that the Marumakkathayam law will apply for succession of males and females. On the other hand, Section 17 fixed up the devolution, i.e., the legal heirs of persons who "would have been governed by the Marumakkathayam law as if this Act had not been passed". Now, the persons who were so governed either on 18-6-1956 and who were so governed till 30-11-1976 are an identifiable group and their succession is fixed according to the mode prescribed in Section 17. Such persons once identified need not, in our view, continue to be governed by the Marumakkathayam law on their death. As already stated, Marumakkathayam law is referred to in Section 17 not to govern succession but merely to identify a group of persons, who would be governed by the devolution fixed in Section 17. Hence the general princip....
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....fore us. Their Lordships held that being a member of an 'Agricultural tribe' was a necessary condition for a right of pre-emption on the date of the actual sale. It was nut a case where the members of the agricultural tribe were to be identified as on an earlier date. We, therefore, hold that the said decision of the Supreme Court is clearly distinguishable on facts. 36. The case in Bajya v. Gopikabai, AIR 1978 SC 793 may appear at the first blush to support the case of the respondents. But a closer examination would, in our opinion, show that the said decision is also clearly distinguishable. In that case succession to certain rights of tenure holders was covered by Section 151 of the M.P. Land Revenue Code, 1954 which came into force on 5-2-1955. The Section read as follows: Subject to his personal law, the interest of a tenure-holder shall on his death pass by inheritance, survivorship or bequest, as the case may be. Subsequent to the said Code of 1954, the Hindu Succession Act, 1956 came into force. The appellant claimed that even though the widow, Surji died on 6-11-1956, subsequent to the commencement of the Hindu Succession Act, 1956, her husband's....
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....it as on the date of her death. 37. In our opinion, the above said decision is clearly distinguishable. In Section 151 of the M.P. Land Revenue Code, 1954, the statute did not specifically fix a particular mode of devolution. On the other hand, it said that the devolution would be as per the personal law applicable to the parties. In such a case there could be no doubt that the personal law as on the date of death of a particular person would be the law applicable so far as the succession was concerned. It would not be the personal law on the date when Section 151 itself was created, under the M.P. Land Revenue Code, 1954. In the present case, Section 17 does not allow the mode of succession to be decided with reference to any personal law. The Section itself fixes the mode of devolution in the case of males and females. In fact, Section 17 mentions the persons on whom the property would devolve. The mode of devolution is not left indefinite to be governed by a personal law which would be changing from time to time. The limited scope of applicability of the personal law in Section 17 is in relation to fixing of the group of people who would be governed by Section 17 of the Hindu....
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....provision in a latter Act with reference to an earlier Act, the incorporated provision becomes an independent provision of the latter Act and is not affected by any changes in the earlier Act. However, there are four exceptions to such a rule. Adverting to the exceptions, the Supreme Court observed in paragraph 16 as follows : On a consideration of these authorities, therefore, it seems that the following proposition emerges: Where a subsequent Act incorporates provisions of a previous Act when the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment In the previous Act. This principle, however, will not apply in the following cases: (a) Where the subsequent Act and the previous Act are supplemental to each other; (b) Where the two Acts are in pari materia; (c) Where the amendment in the previous Act if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and, (d) Where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subseque....
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....the exceptions to the rule of incorporation will depend upon whether the principle of incorporation itself is applicable to the facts of the case. If the principle of incorporation is in itself not applicable the facts of the case, then, in our view, there is no question of the present case falling within any of the exceptions mentioned in the decision in State of M.P. v. M.V. Narasimhan (AIR 1975 SC 1835) (supra). 41. In our view, the principle of Incorporation is not at all applicable to the facts of the case. Here, we are not, as stated earlier, concerned with a situation where the very mode of devolution is on the basis of the personal law of Marumakkathayam. If Section 17 stated that the mode of devolution would be according to the Marumakkathayam law, then it could be treated that the mode of succession was governed by the incorporated law. Then the question could arise whether the exceptions to the general principles of incorporation were attracted. In the present case, Section 17 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 que....
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...., in M. K. Baiakrishna Menon v. Asst. Controller of Estate Duty, AIR 1971 SC 2392 at p. 2395), it was held by the Supreme Court that the fiction created in Section 7(3) of the Hindu Succession Act, 1956 by the words "as if the sthanam property had been divided per capita immediately before the death of sthanamdar among himself and all the members of the family," was introduced for the purpose of determining the shares of the members of the family and heirs of the sthanamdar on his death but not for creating a division during the lifetime of the sthanamdar. It was held that the opening words of the Section made it clear that during his lifetime, he holds the entire sthanam and there is no factual division while he was living and that on the death of the sthanamdar, the entire sthanam property devolved on the members and heirs, and, therefore, the entire property was held liable to payment of estate duty and for that purpose, the fiction in Section 7(3) did not apply. 44. The fiction here in Section 17 of the Hindu Succession Act, 1956 is, in our view, limited to ascertaining the group of persons who would have been governed by the Marumakkathayam law, had the Hindu Succession Act....
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....-in-common by Section 4, there is no undivided interest in the tarward, tavazhee, kutumba, kavaru or illom, so far as the Marumakkathayam law in Kerala State is concerned. That is because there is no longer any undivided interest in property in regard to which the law of succession stated in Section 7 can apply. In other words, the type of property to which it can apply is no longer there. But, that analogy, in our view, cannot apply to Section 17 of the Hindu Succession Act. Once the group of persons who would be 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. A situation of a particular type of interest not existing as in the case of Section 7, does not arise here. We have, in fact, already given elaborate reasons as to why Section 17 continued to be in force in respect of persons in spite of the repeal of the Marumakkathayam law. 47. We, therefore, hold that on the passing of the Joint Family A....
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....nd who died before 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, and (iv) born on or after 18-6-1956 when the Hindu Succession Act, 1956 came into force but before 1-12-1976 and who died on or after 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force. (2) Section 17 of the Hindu Succession Act, 1956 will not, however, 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. (3) We approve the decision of the learned single Judge in Madhavi Amma v. Kalliani Amma (1988) 2 Ker LT 964 and of the Division Bench in Bhaskaran v. Kalliani (1990) 2 Ker LT 749. We overrule the observations to the contrary in Saraswathy Amma v. Radhamma, (1990) 2 Ker LT 183 : AIR 1991 Kerala 86). 51. The case before us comes under principle 1(ii) referred to above and, therefore, succession to Lakshmikutty Amma will be as provided in Section 17 of the Hindu Successio....
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....encement of the Hindu Succession Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provision contained in the Hindu Succession Act. From the above Section it is clear that the provisions contained in the Travancore Nair Act in regard to intestate succession were given a go-by and were superseded by the provisions contained in the Hindu Succession Act. So far as marumakkathayees are concerned, a special provision was enacted in the Hindu Succession Act, namely Section 17 which provides for intestate succession of both male and female marumakkathayees. It is thus a case of repeal of the Travancore Nair Act in so far as it related to intestate succession and re-enactment of the law. In that view of the matter, it is not possible to agree with the contention of counsel for the respondent-plaintiff that Hindu Succession Act is only an amending Act of the Travancore Nair Act or the other State enactments in regard to the law of intestate succession, but an independent enactment providing for intestate succession among the Hindus including marumakkathayees. The repeal of the Travancore Nair Act or other State enactments by Section 7 of the Kerala Joint Hin....
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....on 4 of the Acts mentioned as items 1, 2 and 4 and Section 5 of item 3). In this case we are concerned with Hindu Succession Act alone and so it is necessary to consider the provisions therein with special reference to marumakkathayees and to the extent it is necessary for this case. The Act is a codifying Act dealing with in testate succession among Hindus throughout India. Section 4 of the Hindu Succession Act is to the following effect:-- "4. (1) Save as otherwise expressly provided in this Act,-- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultu....
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.... When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkathayam or nambudri law." "17. The provisions of Sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if-- (i) for Sub-clauses (c) and (d) of Section 8, the following had been substituted, namely:- "(c) thirdly, if there is no heir of any of the two classes, then upon his relatives, whether agnates or cognates"; (ii) for Clauses (a) to (e) of Sub-section (1) of Section 15, the following had been substituted, namely:-- "(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the mother; (b) secondly, upon the father and the husband; ....
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....erent in every member of a joint family under Hindu law and every member of tarwad following Marumakkathayam law was abolished and by Section 4 joint tenancy was abolished and instead the members of a coparcenary or tarwad holding joint family property on the date of coming into force of the Act were made tenants-in-common from that day holding his or her share separate as full owner. Section 5 has done away with the rule of pious obligation of a Hindu son, with certain exceptions and Section 6 saved the liability of members of joint family for the debts binding on it. Section 7 is the repealing Section which has a bearing on the case and it is advantageous to reproduce the same :-- 7. Repeal.-- (1) Save as otherwise expressly provided in this act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. (2) The Acts mentioned in the Schedule, in so far as they apply to the whole or any part of the State of Kerala, are hereby repealed. (The Schedule includes all the State enactmen....
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.... 793 in regard to legislation by referential incorporation : 27. Broadly speaking, legislation by referential incorporation falls in two categories First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus : A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted. (Vide, Sutherland's Statutory Construction, Third Edition, Article 520.8, p. 5208). Cor....
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.... all significance, but this does not help, in any manner, the contentions urged by learned counsel for the appellant. It would be seen that Section 14 is restrictive, in that in the case of the alienations by persons referred to in that section the right of pre-emption is conferred upon a limited group. With the repeal of the Punjab Alienation of Land Act, 1900 the restriction imposed by Section 14 as regards the availability of the right of pre-emption to particular agricultural tribes would disappear. In the light of the above decision, when the State enactments mentioned in Section 3(1)(h) of the Hindu Succession Act are repealed in 1976 by the Kerala Joint Hindu Family System (Abolition) Act, the Section loses all its significance and it is not possible to identify the persons to whom the Marumakkahayam law would have been applied. Moreover, the State enactments and the Hindu Succession Act are supplemental to each other and are in pari materia and the repeal of the former will affect the latter (See State of M.P. v. M.V. Narasimhan, AIR 1975 SC 1835). 65. The learned Chief Justice has taken the view that if Marumakkathayam law has ceased to be in force from 1-12-1976, Se....
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....above aspect was lost sight of in the above two decisions and accordingly 1 express my respectful dissent from the above view. 68. In the light of what is stated above, I hold that the continued operation of the system of Marumakkathayam law on the date of death of a person is a necessary precondition for the operation of Section 17 of the Hindu Succession Act. The fact that persons were governed by the respective State enactments mentioned in Section 3(1)(h) of the Hindu Succession Act and by Marumakkathayam Law when the Hindu Succession Act came into force is not sufficient for the applicability of Section 17, but must be continued to be governed by Marumakkathayam law till succession opens on their death. Points 2 and 3 answered accordingly. 69. Point No. 4: Certain communities in Kerala were following a system of law called the 'Marumakkathayam law'. It is a body of customs and usages which received judicial recognition. The main characteristic and distinguishing feature of this system of law is that the descent is traced in the female line. While under the Hindu Mitakshara law the members claim their descent from a common ancestor, the members of a marumakkathaya....
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....sion among Marumakkathayees. 70. Though the Hindu Succession Act provides for devolution of interest in the tarwad property, the Act did not do away with the Marumakkathayam system or with tarwads. The marumakkathayam system or the joint family system continued in spite of the Act. As observed by Govindan Nair J. in Ammalu Amma v. Lakshmy Amma 1966 Ker LT 32 (FB): The Hindu Succession Act does not do away with the Marumakkathayam system or with tarwads though that will doubtless be its ultimate result, and none of its provisions affects the way in which the members of a tarwad hold the joint property during their life-time. 71. Thereafter, it was felt that it was necessary and desirable to have a uniform law for all Marumakkathayees in Kerala in regard to the right to obtain dissolution of marriage and tarwad and its management including partition. Accordingly a Law Commission was also appointed and on the basis of its report the Kerala Joint Hindu Family System (Abolition) Act was passed which came into force on 1-12-1976. 72. After the Parliament passed the four enactments mentioned above, the provisions therein prevailed over those in the State enactments. The ....
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....akkathayam law survive today. The provisions of the Act are clear that it does not envisage the emergence or contemplate the continuance of a Marumakkathayam tavazhi or tarwad after its date. It does not contemplate the possibility of the existence of a group of persons having community of interest in property on account of any personal law governing them, and the tarwad that existed before and at the date of the Act was liquidated by it. No vestige of the Marumakkathayam law remains after the passing of the Joint Hindu Family System (Abolition) Act and the system of Marumakkathayam law has come to an end. 74. The repealing Section in the Joint Hindu Family System (Abolition) Act also indicates that the system has come to an end. The Act deals with both, the Hindu joint family as also Marumakkathayam tarwads. Under Section 7(1) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law is abrogated. In M.K.B. Menon v. A.C., Estate Duty, AIR 1971 SC 2392, it was held by the Supreme Court that Marumakkathyam law is only a branch of Hindu Law, The setting and the provisions contained in that Act also indicate that it decided to do away with the system ....