TMI Blog1960 (5) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... rshottam Trikamdas and M. B. Krishna Pillai A. V. Viswanatha Sastri and K. R. Krishnaswami, K. B. Krishnaswami, Purshottam Trikamdas and K. R. Krishnaswami, A.V. Viswanatha Sastri and M. R. Krishna Pillai, Sardar Bahadur JUDGMENT: Subba Rao, J. These three connected petitions filed under Art. 32 of the Constitution raise the question of the constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955, (Madras Act 32 of 1955) (hereinafter referred to as the impugned Act). These petitions were heard by this Court on a preliminary question raised by the respondents and the judgment thereon was delivered on March 4, 1959. This Court rejected the preliminary objection and directed the petitions to be heard on merits, and pursuant to that order, these petitions were posted for disposal on merits. The facts have been fully stated by Das, C. J., in the preliminary judgment and it would, therefore, be sufficient if the relevant facts pertaining to the questions raised were stated here. The petitioner in Petition No. 443 of 1955 is Kavalappara Kottarathil Kochunni Moopil Nair. He is the holder of the Kavalappara sthanam to which is attached Kavalappara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanee were declared to be sthanam properties and that the members of the tarwad had no interest therein. After the title of the sthanee was thus established, the Madras Legislature passed the impugned Act in 1955. Under the impugned Act, every sthanam possessing one or other of the three characteristics mentioned therein it is common case that the impugned Act applies to the petitioner's sthanam shall be deemed and shall be deemed always to have been properties belonging to the tarwad. The sthanee states that the impugned Act is ultra vires the Madras Legislature, void and inoperative and that the said Act cannot affect the rights of the sthanee or his estate to any extent. The first petitioner in Petition No. 40 of 1956 is the wife of the sthanee, who has also been added as respondent 18 to this petition ; and petitioners 2 and 3 therein are their daughters. The first respondent to the said petition is the State of Madras and respondents 2 to 17 are the members of the tarwad. On August 3, 1955, the sthanee executed a gift deed in favour of the petitioners in the said petition in respect of properties granted to his predecessor by the Raja of Palghat. This petition raised the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Art. 32 of the Constitution. Before we pass on to the merits of the case, it would be convenient at the outset to clear the ground. It cannot be disputed that the impugned Act passed by the Madras Legislature could not have had any extra-territorial operation so as to affect the properties in the quondam Cochin State. It is not disputed that, after the States Reorganization, the provisions of the Act were not extended by any legal process to the properties situate in that area of the Kerala State which originally formed part of Cochin State. In the premises, we are not called upon to decide the fundamental right of the sthanee in respect of the sthanam properties in the said area. We do not also propose to express any opinion on the validity or otherwise of the gift deeds executed by the sthanee in favour of his wife and daughters, and son; for, if the gifts were valid, the donees would have a right to maintain the petitions, and if they were not valid, the donor would continue to be the owner of the properties gifted. The title inter se is not really germane to the present. enquiry, for the validity of the Act in respect of sthanam properties other than those in the Cochin Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oopil Nair ". But that in itself does not conclude the matter. Ordinarily, when a question raised depends upon elucidation of further facts not disclosed in the statements already filed, we would be very reluctant to allow a party to raise such a plea at the time of arguments. But in this case we do not think we would be justified in not allowing the respondents to raise the contention, as the validity of the impugned Act depends upon the application of' Art. 31A of the Constitution. We would, therefore, for the purpose of this petition, assume against the petitioner that he is in possession of the properties in janmam right and proceed to consider on that basis the contention raised. Learned counsel for the respondents contends that Art. 31A of the Constitution excludes the operation of Art.13 in the matter of the extinguishment or modification of any rights in an estate, that the impugned legislation either extinguishes or modifies the sthanam right in the janmam property which is an " estate as defined in the said Article and that, therefore, the impugned Act cannot be challenged on the ground that it infringes Arts. 14, 19 and 31 in Part III of the Constitution. To appreciate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merous inter mediaries between the State and the tiller of the soil has been achieved for the most part, our next objectives in land reform are the fixing of limits to the extent of agricultural land that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings. ...............It is accordingly proposed in clause 3 of the Bill to extend the scope of article 31A so as to cover these categories of essential welfare legislation." The object of the amendment relevant to the present enquiry was only to enable the State to implement its next objective in the land reform, namely, the fixing of limits to the extent of agricultural lands that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings. The object was, therefore, to bring about a change in the agricultural economy but not to recognize or confer any title in the whole or a part of an estate on junior members of a family. This Court has held i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned with landtenure. It is, therefore, manifest that the said Article deals with a tenure called "estate" and provides for its acquisition or the extinguishment or modification of the rights of the land-holder or the various subordinate tenureholders in respect of their rights in relation to the estate. The contrary view would enable the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform. It would also enable the State to compel a proprietor to divide his properties, though self-acquired, between himself and other members of his family or create interest therein in favour of persons other than tenants who had none before. Such acts have no relation to land-tenures and the.), are purely acts of expropriation of a citizen's property without any reference to agrarian reform. Article 31A deprives citizens of their fundamental rights and such an Article cannot be extended by interpretation to overreach the object implicit in the Article. The unsondness of the wider interpretation will be made clear if the Article is construed with reference to the janmam right. Under the definition, any janmam right in Kerala is an " estate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be extinguished or modified. A law may regulate the rights between a janmi and his subordinate tenureholders; but it may also affect his rights unconnected with the tenure. To illustrate: A janmi holds 10 acres of land in janmam right, out of which he may sell 2 acres each to five persons; the land is divided into 5 plots held by different holders, but each one continues to have full rights of a janmi ; the janmam right is not extinguished or modified, though the land is divided between 5 persons. That is what the impugned Act purports to do. It does not modify any of the rights appertaining to " janmam right ", but only confers shares in the property on other members of the tarwad. It is said that the inclusive definition of the expression " rights " in cl. (2) (b) takes in such a case as it extinguishes or modifies the proprietor's right in the land. This is a superficial reading of the Article. We have already explained how such a modification is not a modification of a right pertaining to a " janmam right ", but only a deprivation of a particular janmi of his right in his property or a curtailment of his right therein, leaving all the characteristics of a janmam right inta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved at p. 526 thus: "Keeping in view the fact that Art. 31A was enacted by two successive amendments-one in 1951 (First Amendment), and the second in 1955 (Fourth Amendment)-with retrospective effect, in order to save legislation effecting agrarian reforms, we have every reason to hold that those expressions have been used in their widest amplitude, consistent with the purpose behind those amendments ". This Court has, therefore, recognised that the amendments inserting Art. 31A in the Constitution and subsequently amending it were to facilitate agrarian reforms and in that case it was held that the impugned Act affected the rights of the landlords and tenants. Neither of the two decisions, therefore, supports the contention that Art. 31A comprehends modification of the rights of an owner of land without reference to the law of land-tenures. The impugned Act does not purport to modify or extinguish any right in an estate. The avowed object of it is only to declare particular sthanams to be Marumakkathayam tarwads and the property pertaining to such sthanams as the property of the said tarwads. It declares particular sthanams to have always been tarwads and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution may exclude the operation of the fundamental rights in respect of a specific matter-for instance, Arts. 31A and 31B. It may also be that an Article embodying a fundamental right may exclude another by necessary implication, but before such a construction excluding the operation of one or other of the fundamental rights is accepted, every attempt should be made to harmonise the two Articles so as to make them co-exist, and only if it is not possible to do so, one can be made to yield to the other. Barring such exceptional circumstances, any law made would be void if it infringes any one of the fundamental rights. The relevant Articles read: Article 19. (1) AU citizens shall have the right.... (f)acquire, hold and dispose of property... (5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said subclauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. " Article 31. (1) No person shall be deprived o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to eject all under-tenants " with certain exceptions. In exercise of that right he brought a suit for eviction of certain under-tenants and obtained a decree therein. When the appeal against the said decree was pending, the Act was amended. The amending Act substituted by s. 4 the new s. 37 in place of the original s. 37 and it provided by s. 7 that all pending suits, appeals and other proceedings which had not already resulted in delivery of possession, should abate. It was contended on behalf of one of the respondents therein that s. 7 was void as abridging his fundamental rights under Art. 19(1)(f) and Art. 31. The Court by a majority held that the Act was void as it infringed Art. 31 of the Constitution. The majority of the Judges, who constituted the bench, took the view that cls. (1) and (2) of Art. 31 related to the same subject of eminent domain and that the State had no power to seriously impair the rights of a citizen in property without paying compensation. Patanjali Sastri, C. J., expressed his view thus at p. 618: " Under the Constitution of India, however, such questions must be determined with reference to the expression " taken possession of or acquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the said amendment. explains that unless a law provides for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. The result is that it did not accept the majority view of this Court that deprivation of property need not be by acquisition alone but also by any serious impairment of an dividual's right to property, whether his ownership or right to possession of the property has been transferred to the State or its nominee or not. This amendment also in effect accepted the view of Das, J., that deprivation of property in el. (1) of Art. 31 covers cases other than acquisition or requisition of property by the State. But the amendment in other respects does not give any indication as regards the interpretation of Art. 31(1) of the Constitution, for no change in the phraseology of that clause is made. Therefore, we must look at the terms of that clause to ascertain its true meaning. The words are clear and unambiguous and they do not give rise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s they are inconsistent with the provisions of Part III shall, to the extent of the inconsistency, be void. Likewise cl. (2) of' this Article prohibits the State from making any law which takes away or abridges the rights conferred by the same Part and follows it up by saying that any law made in contravention of this clause shall, to the extent of the contravention, be void. It will be observed that so far as this Article is concerned, there is no relaxation of the restriction imposed by it such as there are in some of the other Articles" Bhagwati, J., observed much to the same effect at p. 161 thus: "It is absolutely clear on a perusal of Art. 13(2) of the Constitution that it is a constitutional mandate (1) [1959] SUPP. 1 S.C.R. 528 to the State and no citizen can by any act or con. duct relieve the State of the solemn obligation imposed on it by Art. 13(2)" One of us had also stated to the same effect, after citing Art. 13, at p. 181 : "This Article, in clear and unambiguous terms, not only declares that all laws in force before the commencement of the Constitution and made thereafter taking away or abridging the said rights would be void to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating thereto. It may not be inappropriate to describe these provisions as forming an exhaustive code, as they elaborately deal with a particular subject, namely, life and personal liberty. In construing the said provisions, Kania, C. J., said at p. 100-101 thus: "So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these subclauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid , on the mode of the detenue's life." Mahajan, J. (as he then was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protected by article 19(1), in so far as they relate to rights attached to the person, i.e., the rights referred to in sub-clauses (a) to (e) and (g), are rights which only a free citizen, who has the freedom of his person unimpaired, can exercise." The views of the learned Judges may be broadly summarized under three heads, viz., (1) to invoke Art. 19(1), a law shall be made directly infringing that right; (2) Arts. 21 and 22 constitute a self-contained code; and (3) the freedoms in Art. 19 postulate a free man. On the basis of the said theories, this Court, with Fazl Ali, J., dissenting, rejected the plea that a law made under Art. 21 shall not infringe Art. 19(1). Had the question been res integra, some of us would have been inclined to agree with the dissenting view expressed by Fazl Ali, J.; but we are bound by this judgment. Even so, there is no analogy between Art. 21, as interpreted by this Court, and Art. 31(1). Article 21 deals with personal liberty. Personal liberty, Kania, C.J., observed, includes " the right to eat or sleep when one likes or to work or not to work as and when one pleases and several such rights " and " deprivation of such liberty ", in the words of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. This Court also considered the alternative argument advanced, namely, that the Act was hit by Art. 19(1)(f) of the Constitution inasmuch as unreasonable restrictions were imposed on the rights of the respondents to acquire, bold and dispose of property. In rejecting that argument, Bose, J., speaking for the Court, observed at p. 780 thus : "We need not examine those differences here because it is enough to say that article 19(1)(f) read with clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the article postulates the existence of property over which these rights can be exercised. " For these observations the learned Judge has drawn upon the principle laid down in A. K. Gopalan's Case ([1950] S.C.R. 88). These observations p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent indicated in clause (5). Article 31, as its heading shows, guarantees to all persons, citizens and non-citizens, the ' right to property' as a fundamental right to the extent therein mentioned. What, I ask myself, is the correlation between article 19(1)(f) read with article 19(5) and article 31 ? If, as held by my Lord in A. K. Gopalan's Case([1950] S.C.R, 88) at p. 191, subclauses (a) to (e)and (g) of article 19(1) read with the relevant clauses (2) to (6) ' presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests', it must follow logically that article 19(1)(f) read with article 19(5) must likewise presuppose that the person to whom that fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised. I found myself unable to escape from this logical conclusion." The learned Judge earlier expressed the same opinion in Chiranjit Lal Chowdhuri v. The Union of India ([1950] S.C.R. 869). When it was pointed out to the learned Judge that, if his view was correct, the legislature while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower, as we can trust our legislatures and Parliament as the people of Great Britain have trusted their Parliament. We cannot agree with the con tention of the learned counsel that Art. 31(1) deals with " police power ". In the view expressed by Das, J. (as he then was), the legislature can make any law depriving a person of his property and the only limitation on such power is its good sense. But "police power", as it is understood in American Law, can never be an arbitrary power. Willis on Constitutional Law " says at p. 727: " The United States Supreme Court has said that the police power embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety '. " In the Constitution of the United States of America, prepared by the Legislative Reference Service, Library of Congress (Senate Document No. 170, 82D Congress), " police power " is generally defined thus at p. 982: " The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, morals, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided for the fundamental rights. The Constitution gives every scope for ordered progress of society towards a welfare State. The State is expected to bring about a welfare State within the framework of the Constitution, for it is authorized to impose reasonable restrictions, in the interests of the general public, on the fundamental rights recognized in Art. 19. If the interpretation sought to be placed on Art. 31(1) was accepted, it would compel the importation of the entire doctrine of police power and grafting it in Art. 31(1) or the recognition of arbitrary power in the legislature with the hope or consolation suggested that our Parliament and legislatures may be trusted not to act arbitrarily. The first suggestion is not legally permissible and the second does not stand to reason, for the Constitution thought fit to impose limitations on the power of the legislatures even in the case of lesser infringements of the rights of a citizen. Another argument raised by learned counsel for the respondents may also be noticed. If the view expressed by us be correct, the argument proceeds, the law depriving a person of his property-however urgent the need may be and whatever grave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is undoubtedly correct, however, that when, as in the present case, the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court. " If so, the State can establish that a law, though it purports to deprive the petitioner of his fundamental right, under certain circumstances amounts to a reasonable restriction within the meaning of cl. (5) of Art. 19 of the Constitution. We, therefore, hold that a law made depriving a citizen of his property shall be void, unless the law so made complies with the provisions of el. (5) of Art. 19 of the Constitution. This leads us to the question whether the provisions of the Act infringe Art. 19(1)(f) of the Constitution. The impugned Act is The Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Madras Act No. XXXII of 1955). As the argument turns upon the provisions of the Act and as the Act itself is a short one, it will be convenient to set out all the provisions thereof. The Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Act No. XXXII of 1955). (An Act to remove cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly claimed to be sthanams were declared to be not sthanams. The preamble of a statute is " a key to the understanding of it " and it is well established that " it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt ". We do not find any ambiguity in the enacting part of the Act. Assuming that there is some doubt, the preamble confirms our view of the construction of the Act. According to the preamble certain properties of the tarwad are erroneously claimed to be or regarded as sthanam properties and it has become necessary to remove those doubts by making the Act. The preamble also recognizes the existence of sthanams and the doubts related only to the title to the property of sthanams. The enacting part purports to resolve these doubts by laying down three tests, and if any one of these tests is satisfied, the sthanam shall be deemed to be a tarwad and the properties tarwad properties. In short, the Act, read with the preamble, takes the sthanam, lays down certain tests and proceeds to say t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of a modern welfare State. If that be the object of the Act, the argument proceeds, the mere fact that the law incidently disturbs the rights of parties who have obtained decrees of court does not make it unreasonable. Before we consider the validity of these arguments, it would be convenient at this stage to notice the scope of Art. 19(1)(f) and Art. 19(5) of the Constitution. The said Articles read Article 19. (1) All citizens shall have the right .......(f) to acquire, hold and dispose of property........ (5)Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Under cl. (5), the State can make a law imposing reasonable restrictions on the fundamental rights embodied in Art. 19(1)(f) in the interests of the general public. What is " reasonable restriction " has been succinctly stated by Patanjali Sastri, C. J., in State Of -Madras v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again declares the importance of individual property right thus: "The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the same. No court, for instance, would hesitate to declare void a statute which enacted that A and B who were husband and wife to each other should be so no longer, but that A should thereafter be the husband of C, and B the wife of D. Or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B." We have cited the relevant passages from the textbook and the decisions not with a view to define the scope of " reasonable restrictions " in Art. 19(5) of our Constitution, but only to point out that, as between citizens, the individual proprietary rights are ordinarily respected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are not entitled to enforce partition, but a partition may be effected by common consent. The rights of the union members are stated to be (1) if, males, to succeed to management in their turn, (2) to be maintained at the family house, (3) to object to an improper alienation or administration of the family property, (4) to see that the property is duly conserved, (5) to bar an adoption, and (6) to get a share at any partition that may take place. These are what may be called effective rights. Otherwise everyone is a proprietor and has equal rights." For the purpose of this case it is not necessary to go into further ramifications of the incidents of a tarwad, for nothing turns upon them. We are concerned in this case with a sthanam. In the book of Sundara Aiyar the origin, scope and incidents of a sthanam are discussed at p. 249: " As a technical word, ' stanom' means a position of dignity of this kind, that is, one to which certain specific property is attached, and which passes with it, and is held by the person as the " stani. The origin of stanom is by no means clear and is more or less a matter for speculation." The learned author proceeds to give the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question, what would happen to the sthanam, if at the time of the death of the sthanee there was no male member in the tarwad, though he cited a decision of the Madras High Court where a subsequent born male infant was given a decree to recover the properties, he was of the view that the question was not an easy one to decide. The decided cases considered the nature of this institution and also its incidents. A division bench of the Madras High Court in Vira Rayen v. The Valia Rani of Pudia Kovilagom, Calicut ((1881) I.L.R. 3 Mad. 141) held that according to the custom obtaining in the family of the Zamorin Rajas of Calicut, property acquired by a sthanam-holder and not merged by him in the properties of his sthanam, or otherwise disposed of by him in his lifetime, became, on his death, the property of the kovilagom in which he was born, and, if found in the possession of a member of the kovilagom, belonged presumably to the kovilagom as common property. In the course of the judgment, the learned judges pointed out that in the family of the Zamorin of Calicut there were five sthanams or places of dignity with separate properties attached to them, which were enjoyed in succes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a joint beneficial enjoyment. Although the position of a stani is analogous to that of a childless widow, in that both have a life interest, both represent the estate ate or the inheritance for the time being, and both have a disposing power only to the estate taken by reversioner. Each male reversioner becomes under Hindu Law the full owner when the reversion falls in, whereas the person that succeeds to a stanom takes the same qualified estate that his predecessor bad. The legal relation therefore between the Vayoth Nair and the other stanomdars and the karnavans of the three subsidiary tarwads is that which subsists among a group of person-, entitled to succeed to the stanom property in a certain order, each having only a life interest therein and qualified power of disposition over it. The relation between the stani and the junior members of each subsidiary tarwad is that which exists between the representative of the stanom for the time beinog and the class of persons who may become karnavans of their tarwads and therefore representatives of the junior and senior stanoms in the order of seniority." This decision not only brings out the differences between a Hindu widow's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "It appears from the evidence that the Court of Wards throughout the entire period of their management from 1872 till 1910 treated the estate as if it was a tarwad, but this was apparently without any investigation into the true nature of the property. . Besides there was no adult male at that time to question the treatment by the Court of Wards of the property as tarwad property." A third circumstance was relied upon, namely, that in 1872 the only surviving member of the family was then a girl of six years of age and that, therefore, there being no male heir to succeed to the sthanam, the sthanam became extinct. The Judicial Committee did not allow this plea to be raised for the first time before them. That apart, quoting from Sundara Aiyar's book, they pointed out that the question whether a sthanam becomes extinct on the extinction of the male members or is only in abeyance during the absence of the male members so as to be capable of being revived, does not admit of an easy solution...... "This decision lays down that if once it has been ... established that a property is a sthanam property, the mere fact that the sthanamdar was giving maintenance to the member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Hindu family, there may not be any scope for the application of the doctrine of blending. No member of a tarwad has any right to maintenance from out of the sthanam properties and the mere fact that a sthanee for the time being, out of generosity or otherwise, gives maintenance to one or other members of the tarwad cannot legally have the effect of converting the sthanam property into a tarwad property; nor the fact that the sthanam properties are treated as tarwad properties can have such a legal effect. Now, what is the relationship between the tarwad and the sthanee ? It is true that whatever may be the origin of the sthanam, ordinarily, the seniormost member of a tarwad succeeds to that position, but once he succeeds, lie ceases to have any proprietary interest in the tawad. So too, the members of the tarwad have absolutely no proprietary interest in the sthanam property. Thereafter, they continue to be only " blood relations" with perhaps a right of succession to the property of each other on the happening of some contingency. The said right is nothing more than a spes successions the tarwad may supply future sthanees. With this background let us look at the terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad. The word "otherwise" in the context, it is contended, must be construed by applying the rule of ejusdem generis. The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary. On the basis of this rule, it is contended, that the right or the custom mentioned in the clause is a distinct genus and the words " or otherwise " must be confined to things analogous to right or custom such as lost grant, immemorial user, etc. It appears to us that the word " otherwise " in the context only means " whatever may be the origin of the receipt of maintenance ". One of the objects of the legislation is to by-pass the decrees of courts and the Privy Council observed that the receipt of maintenance might even be out of bounty. It is most likely that a word of the widest amplitude was used to cover even acts of charity and bounty. If that be so, under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Iswari Prosad v. N. R. Sen (A.I.R. 1952 Cal. 273). It was contended before the full bench of the said High Court that the words " in the interests of the general public " mean " in the interests of the public of the whole of the Republic of India ". Negativing this contention, Harries, C.J., observed at p. 278 thus: " The phrase ' in the interests of the general public' means I think nothing more than 'in the public interest', and it may well be that legislation affecting a limited class of persons or a limited area might well be legislation in the public interests, though the public of other parts of India might not be directly affected by such legislation. If they are indirectly affected such would be quite sufficient to make such legislation in the public interest. Legislation affecting a particular class or a particular area would only directly affect the members of that class or the inhabitants of that particular area. But the removal of some serious abuse or grievance or discontent is a matter indirectly affecting the public generally. It is not in the interests of the general public or in the public interest to allow any class of persons to labour under some grievance an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of his contention, he relied upon the wording of cl. (5) of Art. 19 of the Constitution and also on the decision of the Privy Council in Punjab Province v. Daulat Singh ([1946] F.C.R. 1). But, as we have held that the restrictions imposed are not reasonable within the meaning of cl. (5) of Art. 19 of the Constitution, this question need not be decided in this case. We declare that Madras Act 32 of 1955 is void and ultra vires the Constitution and issue a writ of mandamus restraining the State of Kerala from enforcing the provisions of the said Act against the petitioner and his sthanams. In the result, Petition No. 443 of 1955 is allowed with costs; Petition No. 40 of 1956 is allowed, but in the circumstances, without costs ; and Petition No. 41 of 1956 is dismissed, but in the circumstances, without costs. SARKAR, J.-In our view these petitions fail. The petitions challenge the validity of an Act passed by the Madras Legislature called the Madras Marumakkathayam (Removal of Doubts) Act, 1955. The substantive provisions of the Act are contained in s. 2 which is in these terms: "S. 2. Notwithstanding any decision of Court, any sthanam in respect of which- (a)there is or had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o rulers now. Apart from Rajasthanams, there are other kinds of sthanams. The rulers often granted sthanams with lands attached to them to their subsidiary chieftains or other persons of consequence in their States. Sthanams with lands were also sometimes granted for rendering military service. Again when a family became opulent and influential the members of the tarwad sometimes agreed to set aside for the karnavan certain lands in order that he might keep up his social position and influence and so again a sthanam was created. A sthanam with the lands attached thereto devolved on the death of the holder for the time being to the next senior member of his tarwad. When a member of the tarwad becomes the sthani he loses his interest in the tarwad properties though he does not cease to be a member of the tarwad. The members of the tarwad in their turn have no interest in the sthanam lands. The sthani is entitled to utilize the income of the sthanam properties for his own purposes. For a more detailed statement of the character of a sthanam reference may be made to P. R. Sundara Ayyar's book on Malabar and Aliyasanthana Law. We have taken the greater part of what we have said in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive sthanams which had been granted by the Raja of Palghat, to his wife and daughters. The donees under this gift are the petitioners in Petition No. 40 of 1956. He likewise made a gift of the lands attached to the two sthanams which had been granted by the Raja of Cochin to his son who is the petitioner in Petition No. 41 of 1956. These gifts had been made before the impugned Act bad been passed. It is necessary now to refer to a previous litigation. On April 10, 1934, the then junior members of the Kavalappara family filed a suit in the Court of the Subordinate Judge of Ottapalam for a declaration that all the properties managed by the Moopil Nayar were tarwad properties belonging equally and jointly to all the members of the tarwad including the Moopil Nayar and that the latter was managing them as Karnavan and not as sthani. The defendant to this suit was the petitioner in Petition No. 443 of 1955, the Moopil Nayar or the senior member of the family. The Moopil Nayar resisted the suit claiming to be solely entitled to the disputed lands on the basis that they were sthanam lands and he was the sthani. The suit was dismissed by the learned Subordinate Judge but on appeal the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution inasmuch as it applies to the stbanam held by him only and to no other sthanams. This raises a question of fact. He, however, also says that the Act is bad as infringing Arts. 19(1)(f) and 31(1) of the Constitution as it deprives him of his right to hold property and that it is not saved by cl. (5) of Art. 19. If, however, the Act enacts a law within the meaning of Art. 31 A of the Constitution, the -petitioner cannot be heard to complain of violation of Arts. 14, 19(1)(f) and 31(1). So the question arises, Is it saved by Art. 31A? That article so far as is material in this case is set out below:" Art. 31A. (1) Notwithstanding anything contained in article 13, no law providing for-- (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, ................ shall be deemed to be void on the around that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31 : Provided that where such law is a law made by the Legislature of a State, previsions of this article shall not apply thereto unless such law having been reserved for the consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Art. 31 A, therefore, clearly implies that the lands attached to the sthanams were held in janmam rights or rights subordinate to janmam rights. There is no statement by the petitioner anywhere on the records that the lands were not held on such rights. On the other hand, it would appear from what we state later that the rights in the lands were janmam rights or rights subordinate to janmam rights. Janmam right is really a freehold interest in land. In s. 3 (k) of the Malabar Tenancy Act, 1929, a janmi has been defined as a person entitled to the absolute proprietorship of land. What we have earlier stated leaves no doubt that the lands, belonging to the sthanams were lands held in absolute proprietorship, that is, in freehold interest. It has not been alleged that the freehold interest in the sthanam lands has undergone any change. Neither has it been shown to us that in the Malabar area land can be held in any right other than janmam right or subordinate rights created by the holder of a janmam right. Again in his written statement in the suit of 1934, earlier mentioned, which is on the record of this case, the petitioner, Moopil Nayar, stated that the lands of the sthanams ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a), only as a law intended to achieve agrarian reforms on the basis of the supposed object of the legislature in enacting Art. 31A. We also observe that apart from the objects and reasons found in the Bills, there is nothing on which the contention that the law contemplated by Art. 31 A (1)(a) is a law intended to achieve agrarian reform, can be based. It is next said that the Act did not effect any modification of janmam rights and hence again Art. 31A is of no avail to protect it. It is contended that the modification contemplated by the Article is a modification of the incidents of the janmam rights. It is said that what the Act did was to distribute janmam rights among various persons and several owners held the same janmam rights which, before the Act, had been held by one. That, it may be stated, is so but that does not affect the real question for decision. When the Article talks of modification of janmam rights it does not talk of such rights in the abstract. It contemplates the modification of the rights held by a person. It would be as much modification of janmam rights if such rights held by one person are directed to be held by a number of persons jointly, as when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.R. 61) it was pointed out that in India the legislature very often in the enactments that it makes sets aside decisions of Courts. In America a rule appears to obtain that " Legislative action cannot be made to retroact on past controversies and to reverse decisions which the courts in the exercise of their undoubted authority have made ": Cooley's Constitutional Limitations, 8th Ed., p. 190. It was held in Piare Dusadh's case (supra) at p. 104, that this rule had no application in India. The observation there made may be set out:- It is clear from the American authorities that this limitation has been derived from the interpretation placed by the American courts on what are known as the Fifth and Fourteenth Amendments which provide against any person being " deprived of life, liberty or property without due process of law ". The expression " due process of law" has been interpreted as referring only to ' judicial process' and as not including legislation ......... As this requirement had been made part of the written constitution, it followed that no enactment passed by a legislature limited by that constitution could authorise anything in violation of it Hence the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Petition No. 443 of 1955 had the right to make the gift in favour of his wife and daughters. That question has not been gone into by consent of the parties. If the gift is valid then what we have said earlier in connection with Petition No. 443 of 1955, will apply to this petition also and it must for the same reason fail. If the gift is invalid, the petition must fail on the ground that the Act has not affected the petitioners' rights in any lands held by them. We would, therefore, dismiss that petition with costs except the costs of the hearing before us for all the three petitions were heard together. Lastly, we come to Petition No. 41 of 1956. This petition must clearly be dismissed. It was filed by the son of the petitioner in Petition No. 443 of 1955 claiming to be entitled to the sthanam lands situate in an area which was formerly part of the Cochin State. It is not in dispute that the impugned Act was never extended to that area. Therefore, whether the gift to him was valid or not, as to which we say nothing, the petitioner in this petition is not affected by that Act at all. His petition is clearly misconceived. His petition is, therefore, dismissed and he will pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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