TaxTMI 
TaxTMI 
1992 (12) TMI 241
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....du 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 Succession Act, 1956. They contend that Section ....
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....kshmikutty 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 The trial Court also held that Section 15 of the Hindu Succession Act, 1956 applied and that Section 17 was no longer applicable after the passing of the Joint Family Abolition Act, 1975 and that, therefore, Chellamma could not have claimed any right to the property on the death of her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 plaintiff was allowed to have it removed through the E....
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....he 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 Joint Family Abolition Act, 1975. Alternatively, the princip....
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....at 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 Travancore and Cochin and former State of Madras to amend the pristline Marumakkathayam law not only ....
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....aughters 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 that group as are alive. This succession was altered under Section 17 of the Hindu Succession Act to the ....
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.... 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 Travancore Nair Act, it is clear that the said Act made provisions in regard to marriage and its dissolution, maintenance and guardi....
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.... 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 provisions contained in this Act. Section 7 deals with devolution of interest in the property of a tarwed, tavazhi, kavaru or illom. It is necessary to extract Section 7(1) which reads as....
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.... 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 of List III to the 7th Schedule to the Constitution of India, It made the above provisions so far as the Marumakkathayam law was concerned. In view of Article 254(i) of the Constitution of India to the extent of provisions made in the Hindu Succession Act in relation to wills, intestacy and succession, the same shall necessarily override ....
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....e 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 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. We are of the view that the Kerala Legislature, when it passed the Joint Fa....
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....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 intestate succession. That is because of the provisions of Article 254(1) of the Constitution of India. But that does not mean that the provisions of Section 17 of the Hindu Succession Act become engrafted into the Travancore Nair Act or other Kerala State Statutes so as to suffer a repeal by virtue of Section 7(2) of the Joint Family Abolition Act, 1975. We accordingly hold that there is no express repeal of Section 17 of the Hindu Succession Act by the prov....
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....ncore 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, persons who were governed by that law and who were alive on the passing of the Hindu Succession Act but who died on a date subsequent to the passing of the Joint Family Abolition Act, 1975 would also be in the same position. What matters in cases relating to succession is the date of death. On the date of death if a particular system of marumakkathayam law was not in existence, the person could not be said to be governed by that law. That is the contention. ....
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.... 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 Travancore Nair Act, etc., with respect to the matters for which provisions were made in the Hindu Succession Act. 26. For the purpose of understanding the scope of the words "persons who would have been governed by the marumakkathayam law if the Act had not been passed" occurring in Section 17 of the Hindu Succession Act, 1956, we have to find out whether on the passing of the Joint Family Abolition Act, 1975, the marumakkathayam law -- both statutory and custom....
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....e 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 applicability of that Act to any person who is a Hindu by religion, etc. This has been pointed out by Gajendragadkar C.J. in Yagnapurushodasji v. Muldas, AIR 1966 SC 1119 at p. 1131 (paragraphs 40 to 42). It was there stated after referring to that four Acts passed under this Hindu Law in 1955 and 1956 that in those Acts the word 'Hindu' was used in a 'broad' and comprehensive sense'. The marumakkathayam law was considered by Sundara Iyer J. in Krishnan Nair v. Damodaran AIR 1916 Mad 751 (FB)....
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....i) 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 Succession Act, 1956 came into force but before 1-12-1976 and who died after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force, and (v) those who were born into families which were once governed by Marumakkathayam law but were born on or after 1-12-1976 when the Joint Family Abolition Act, 1975 came into force and who died later. Though we are concerned with a case falling under category (ii), as the discussion of the legal principles is an integrated one, it has become necessary to deal with these five categories. 29. So far as categ....
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....ave 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 principle that the law applicable as on the date of death is relevant is not applicable. 34. It is, however, argued for the respondents that the principle of Incorporation or Reference applies to the facts of the case. Reliance was placed on the three decisions of the Supreme Court in Ram Sarup v. Munshi, AIR 1963 SC 553, in Bajya v. Gopikabai, AIR 1978 SC 793 and in State of M.P. v. M. V. Narasimhan, AIR 1975 SC 1835 to say that Section 17 does not apply once the Marumakkathayam law is repealed. It is argued that these decisions would lead to the inference that the Marumak....
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....early 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 reversioners --(her husband having died in 1936) were entitled to succeed to the property. This was on the basis that the succession would be governed by personal law applicable as on 5-2-1955 when the M.P. Land Revenue Code came into force. On the other hand, it was contended for the respondents who were the sister's daughters of the last male member that if the provisions of the Hindu Succession Act applied, the widow of the last male member Surji had become the absolute owner of the property, and on her death in 1956, the legal heirs of the estate had to be identified on the basis of....
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....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 Succession Act. If, therefore, the mode of devolution is not referable to any personal law, which would change from time to time, and what all was done under Section 17 with reference to a personal law was to fix a group of persons, then the persons so identified would, in our view, be governed by Section 17 of the Hindu Succession Act, even if they died after the total repeal of the Marumakkathayam law. In our view, therefore, the above decision is clearly distinguishable. We are also not satisfied that there is a legislation by Incorporation or Reference involved in this case. In the aforesaid case,....
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....y 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 subsequent Act. The Supreme Court while holding that the definition of 'public servant' in the Indian Penal Code became incorporated into the Prevention of Corruption Act, 1947, proceeded to consider whether, notwithstanding the said incorporation, the subsequent amendment to the definition of 'public servant' in Indian Penal Code should be applied to the definition of 'public servant' in the Prevention of Corruption Act, 1947. A contention was raised before their Lordships that inasmuch as the Prevention of Corruption Act and the Indian Penal Code were pari materia, therefore, amendments to the Indian Penal Code would automatically ap....
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....hayam. 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 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 and, therefore, there is no question of considering whether any exception in relation to the said principle applies to the facts of this case. Therefore, State of M.P. v. Narasimhan (AIR 1975 SC 1835) (supra) is clearly not attracted to the facts of this case. 42. A contention was raised for the respondent that on the basis of the words "if this Act had not been passed" in Section 3(h) of Section 17 o....
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.... 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, 1956 not been passed. Obviously, there would be people governed by the Marumakkathayam law till 1-12-1976, when that law statutory and customary was repealed. The fiction stops there and does not extend to create a vacuum. The argument that the fiction extends for all purposes, that if the Hindu Succession Act, 1956 was to be forgotten altogether including Section 4 thereof and then the Intestate Succession Chapter in (say) the Travancore Nair Act comes back into it and then gets repealed by Section 7(2) on 1-12-1976 and then there would be no Marumakkathayam law and no person governed by it, would lead us nowhere. If Section 17 becomes inoperative by such a wider....
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....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 Abolition Act, 1975, Section 17 of the Hindu Succession Act, 1956 does not become inoperative in respect of the group (ii), that is the group of persons who were living on 18-6-1956 when the Hindu Succession Act, 1956 came into force and who died on or after the commencement of the Joint Family Abolition Act, 1975. It also does not become inoperative in respect of the: group (iv) that is the group of persons who were born on or 18-6-1956 but before 1-12-1976 and who died on or after the commencement of the Joint Family Abolition Act, 1975. Point No. 4 is held accordingly. 48. Point No. 5:-- It may be asked whether it is necessary to consider the cases of persons born on o....
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....ve 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 Succession Act, 1956. As she had no children, male or female, Section 17(ii)(a) applies and Chellamma, her mother succeeded to her properties and not her husband. Section 15 of the Hindu Succession Act, 1956 does not apply. On the death of Chellamma, the properties devolve on defendants 1 to 8. 52. In the result, the appeal is allowed and the suit is dismissed, but in the circumstances, there will be no costs. P. Krishnamoorthy, J. 53. In spite of the persuasive arguments by counsel for the appellants and other counsel who advanced arguments in the case and even after seeing the judgment prepared by My Lord the Chief Justice, I do not feel myself persuaded to agree with the decree passed by My Lord the Chief Justice in the case. Fact....
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.... 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 Hindu Family System (Abolition) Act will not by itself affect the operation of Section 17 of the Hindu Succession Act. Moreover, the Kerala Joint Hindu Family System (Abolition) Act is not intended to touch the topic of succession and in that view of the matter also it has to be held that Section 17 cannot be said to be repealed by the provisions contained in the Joint Hindu Family System (Abolition) Act. I accordingly hold that Section 17 of the Hindu Succession Act is not repealed by the provisions contained in the Kerala Joint Hindu Family System (Abolition) Act. But the question whether Section 17 has become inoperative by virtue of the aforesaid Act is a different question which will be considered in the subsequent part of this judgment. 56. Points 2 and 3 : These two ....
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....ement 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 agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings." Section 6 of the Hindu Succession Act provides for devolution of interest in coparcenary property. General rules of succession in the case of males are provided for in Section 8. Sections 9 and 10 provide for the order of succession among heirs in the Schedule and the distribution of property among heirs in class I of the Schedule. Section 15 of the Act contains the general rules of succession in the case of female Hindus and it reads :-- "15. (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,-- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son, or daughter) and the husband; (b) secondly, upon the heirs of the hus....
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....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; (c) thirdly, upon the heirs of the mother; (d) fourthly, upon the heirs of the father; and (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. 58. In order to understand the applicability and scope of these two Sections, it is also necessary to note the definition of "Marumakkattayam law" contained in Section 3(i)(h) of the Hindu Succession Act to the following effect: "3(1) In this Act, unless the context otherwise requires,-- x x x (h) marumakkattayam law" means the system of law applicable to persons - (a) who, if this Act had not been passed, would have been governed by the Madras marumakkattayam Act, 1932; the Travancore Nayar Act; the Travancore Ezhava Act; the Travancore Nanjinad Vellala Act; the Travancore Kshatriya Act; the Travancore Krishnanvaka Marumakkathayee Act; the Cochin Marumakkathayam Act; or the Cochin Nayar Act with respe....
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....n 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 enactments mentioned in Section 3(h) of the Hindu Succession Act.) 61. The question to be considered is as to whether for the application of the special provision contained in Section 17 of the Hindu Succession Act it is necessary that the intestate should be a person governed by the 'Marumakkathayam law' on the date of his or her death or is it sufficient if he or she was a marumakkathayee as on the date of the commencement of the Hindu Succession Act in 1956. 'Marumakkathayam law' is defined in Section 3(1)(h) of the Hindu Succession Act as a system of law applicable to persons who, if the Hindu Succession Act had not been passed, would have been governed by the respective State enactments with respect to matters provided in the Act. So also, the special provision contained in Section 17 applies to persons who would have been governed by the Marumakkathayam law if the Hindu Succession Act had not been passed. So it is clear that for finding out the persons referred to in Section 3(1)(h) as also in Section 17 it has to be assumed that ....
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....statute was enacted. (Vide, Sutherland's Statutory Construction, Third Edition, Article 520.8, p. 5208). Corpus Juris Secundum also enunciates the same principle in these terms : .... Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof......the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute. 63. In Section 17 of the Hindu Succession Act the reference is to a general law on the subject viz. 'Marumakkathayam law' and not to any particular statute. Any changes made in that general law from time to time have to be taken note of and the law as it stands on the date when it is sought to be applied has to be adopted. It is elementary and fundamental that a provision like Section 17 of the Hindu Succession Act regarding succession shall have application only on the death of a person and not before. If that be so, the changes made in the Marumakkathayam law by any other statute till the date of dea....
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....w that if Marumakkathayam law has ceased to be in force from 1-12-1976, Section 17 of the Hindu Succession Act can have no application to persons who were born after that date, for they were never governed by Marumakkathayam Act. I am in complete agreement with that view. If it cannot apply to such persons, I am unable to find any reason how it can apply to a person who died after 1-12-1976, though born before that date, for the applicability of Section 17 could arise only on death. 66. In Madhavi Amma v. Kalliani Amma (1988) 2 Ker LT 964 a learned single Judge of this Court considering the very same question held as follows : Reference to Marumakkathayam and Aliyasantana laws in Section 17 therefore is only to clarify the position that these special provisions are applicable only to persons, who at the time of the coming into force of the Succession Act, were governed by the Marumakkahayam law or Aliyasantana law as the case may be. In Bhaskaran v. Kalliani (1990) 2 Ker LT 749, a Division Bench of this Court (in which the judgment was delivered by one of us, Ramakrishnan, J.) said at page 754 : The reference to 'Marumakkathayam law or Aliyasantana Law' in Section 17 ....
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....a common ancestor, the members of a marumakkathayam tarwad are descended from a common ancestress. The joint family is called the tarwad and the senior most male member will be the manager who is called 'Karnavan'. The interest of a member in tarwad property was neither heritable nor alienable and on his death it would devolve on the other members by survivorship. Under the pristine Marumakkathayam law, the separate property of a member also would devolve upon members of the tarwad and not on his wife and children. In the case of a female member her self-acquisitions descend to her thavazhi or sub-tarwad constituted by her children and further descendants in the female line. A member had no right to demand partition of tarwad properties. Impartiality was the rule and there could be no partition without the concurrence of all the members of the tarwad. 69A. The customary Marumakkathayam law had been very materially altered by Statutes in the three component parts of Kerala, namely Malabar. Travancore and Cochin and those enactments are mentioned in Section 3(1)(h) of the Hindu Succession Act. They dealt with the law of marriage, succession, adoption and maintenance, and min....
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....those in the State enactments. The only topic that was not dealt with in the above Acts is the tarwad and its management and partition. As stated earlier, by the provision contained in the Joint Hindu Family System (Abolition) Act (which is a composite legislation in regard to Marumakkathayees as also followers of Mitakshara law) in Section 3, right by birth which is inherent in evey member of a tarwad following Marumakkathayam law was abolished. By Section 4 joint tenancy was abolished and instead the members of the tarwad holding tarwad property on the date of coming into force of the Act were made tenants-in-common from that day holding his or her share separately as full owner. Section 5 deals with rule of pious obligation which has no relevance so far as Marumakkathayees are concerned and by Section 7 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 the Act were made inoperative. By Section 7(2) the entire State Acts mentioned in Section 3(1)(h) of the Hindu Succession Act were also repealed. 73. From the above development of the law, it can be seen that the pristine Marumakkathayam law wa....
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....ded to do away with the system of tarwad. By the operation of Section 7 as well the system of Marumakkathayam law has ceased to exist. Point No. 4 is answered accordingly. 75. Point No. 5: I have already found that Section 17 of the Hindu Succession Act is not-repealed by the provisions contained in the Joint Hindu Family System (Abolition) Act nor is it in any way repugnant to the provisions of the Hindu Succession Act. Even if there is no repeal or repugnancy between the two enactments, in certain cases if the provision in a former enactment become unworkable or cannot be applied in the light of the latter enactment, the former provision become inoperative and ineffective. If the application of a provision in the earlier enactment is dependent on the existence of certain factors and if those factors are effaced by a latter enactment, such a provision becomes unworkable and ceases to be operative. Tested in the light of the, above principle, I have no hesitation to hold that Section 17 of the Hindu Succession Act has become inoperative. Sections 7 and 17 are the two special provisions in regard to Marumakkathayee contained in the Hindu Succession Act. It was agreed by all counsel....