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1980 (3) TMI 263 - SUPREME COURT

1980 (3) TMI 263 - SUPREME COURT - 1980 AIR 1187, 1980 SCR (3) 187 - Review Petition No. 150/1979 - Dated:- 27-3-1980 - KRISHNAIYER, V.R., DESAI, D.A. AND KOSHAL, A.D., JJ. JUDGMENT: T. S. Krishnamoorthy, Vishnu Bahadur Saharya and Sardar Bahadur Saharya for the Appellant. P. Govindan Nair and N. Sudhakaran for the Respondent KRISHNA IYER, J.- Horace wrote : "But if Homer, who is good nods for a moment, I think it a shame". We, in the Supreme Court do 'nod' despite great care t .....

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f statutes so that the flaw may be identified and rectified. The subject-matter is the partition of the assets of the erstwhile royal family of the Maharajah of Cochin, if we may avoid the jaw-breaking description used in one of the relevant legislations viz. The Valiamma Thampuran Kovilakam Estate and Palace Fund belonging to the family of the Maharajah of Cochin. A capsulated survey of the landmark legislations will help locate the controversy and liquidate the error, if any. This family, to b .....

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ivide in the story of the royal family and began its slow integration into the commonalty, retaining in some measure, its peculiar individuality. By Act 16 of 1961 (The Valiamma Thampuran Kovilakam Estate and Palace Fund (Partition) Act, 1961 (for short the 1961 Act) impartibility was abolished conditionally, as it were. Sec. 3 therein laid down: 3. (1) Notwithstanding anything contained in Section 22 of the Proclamation, if a request in writing is made by the majority of the major members and t .....

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place at the office of the Board. Of course, partibility reflected the spirit of the times both in Kerala and in the Hindu fold of India and royalty lost its regalia, including the privy purse, with the enactment of the Constitution (26th Amendment) Act. Even though royalty had become fossilised and Maharaja's family had become partible the latter retained its legislative distinctiveness in important features, because of its unique history, unwieldy membership and statutory singularity since .....

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satisfied about the desirability of partitioning the Estate and the Palace Fund, the process of partitioning was the responsibility of the Board, although under the supervision and control of the Maharaja himself. A ticklish question, which is one of the aspects involved in the present review petition, turns on the division among the members and, more particularly, the fixation of shares, depending, as it does, on the number of members. This number, in turn, is determined by the date of division .....

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hild who is in the womb on the date of the publication of the decision under Section 3 and who is subsequently born alive shall have the some right for a share in the Estate and Palace Fund as any other member as if he or she had been born on or before the date of such publication. We may state even here that the Maharaja never made the statutory declaration under Sec. 3 and so no division in status took place. The next statutory milestone which has relevance to our legal journey is the Kerala J .....

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f a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1) holding any joint family property on the day this act comes into force, shall, with effect from that day be deemed to hold it as tenants in common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members .....

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and Act 16 of 1961 (which are measures specially devoted to Cochin Royal Family) are not repealed. What the impact of this omission is, is a subject of debate between the parties and we will come presently to it. We then move on to ordinance 1 of 1978 promulgated on 6-1-1978 which was replaced duly by Act 15 of 1978, published in the Gazette on 19-3-78. This Act (The Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Family System Abolition) (Amendment Act, .....

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assets are immense and varied even as the members are numerous, being well over 700 in strength. Each member being entitled to a share, the partition is sure to be complicated and if in the shortrun of a human life the partition is to be completed and the properties are to be enjoyed by the shares, innovative strategies of speedy justice must be resorted to. On this basis we have to appreciate the grounds raised for review by the petitioner herein who had substantially succeeded in the first rou .....

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Order of this Court dated 30-7-1979 should not have the intent and effect of nullifying the enormous amount of work and considerable steps taken by the Board so far for partitioning the properties of the family. The 2nd point may readily be conceded as it is an inconsequential error which has crept in by oversight which may be corrected straightway. It is true that in the judgment earlier delivered in this case, it has been stated in passing that "the Board, being an old institution in plen .....

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nated by us from among the male members of our family so as to secure representation as far as possible for each of the four main thavashies of our family. One of the Trustees shall be appointed as the President of the Board by us. It follows that the Cochin Maharaja had the power to nominate the five trustees of the Board and there was no objection on him to choose the seniormost members of the thavashies. What he had to comply with was the directive in sec. 4 to secure representation as far as .....

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llenged the validity of the Board on the score that it did not consist of the seniormost members of the four thavashies as required by the judgment of this court. It is sufficient if its composition secures fair representation as far as possible for each of the four thavashies of the family. The seniormost need not necessarily be chosen. The Board, which has been functioning all these decades, is beyond legal cavil and has been rightly constituted. We regret the pecadillo and are surprised at th .....

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d might well be justified. If the basis for the nullification of the Board's work is the invalidity of the composition of the Board, there is no need for apprehension because we have already clarified the position. The Board was rightly constituted and validly continues. The grievance of the Board is different and is based upon its plea that, not being a party to the special leave petition, it should not be hit adversely without being heard adequately. Indeed, it is for this reason that we h .....

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arers which, in turn, follows from the date of division in status. The Board has proceeded on the basis that Act 30 of 1976 has brought about a division in status as on 1-12-1976 If that point of time were legally sustainable, there were 719 members in the family, each being entitled to one share. The rival contention put forward by the opposite parties is that the division in status took place much later when Ordinance 1 of 1978 was promulgated i.e. on 6-1-78. If this later date were to be take .....

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ion to the plurality of sharers. Each one being entitled to his share and group partition not being the rule, the Board's submission is that it has proceeded on the footing of 719 sharers taking the date, 1-12-1976 when Act 30 of 1976 came into force as the crucial dateline. On this basis, the Board claims that it has turned out a tremendous amount of work by way of valuation of properties through highly competent and fairly expensive architects and engineers. It is further stated that the s .....

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ised. It is asserted that all these Himalayan labours have materialised in valuations of properties which, if subverted sterilised, or otherwise invalidated, would spell great loss, waste of energy and indefinite postponement of effective partition. The many members who are virtually royal proletarians cannot afford the price of further procrastination, bewails the Board. True, the court, in search of perfection, should not abandon pragmatic justice and play into the hands of those who have a ve .....

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ties must be divided depends on the number of members entitled to shares. If the date were to be fixed with reference to Act 30 of 1976 i.e. 1-12-1976, 719 sharers have claims on the family assets. On the other hand, if the later Act 15 of 1978 were to be operative the relevant date will be 6-1-1978. During this period of around 13 months it is conceivable that a few more members might have been born or dead; but shares have to be precisely accounted and no person can be deprived of his property .....

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rvice, a retired judge of the High Court of Kerala has been playing the role of a mentor and a small committee of members has, in a way, democratised and legitimated the process of partition by participation. Without exaggerating the role of the Board or the turn-out of work it has done, we see no reason to sweep off the work of valuation done all these years and decline to accede to the argument that the Board's considerable labours should be liquidated. There is no substantial reason for d .....

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ligation to hear objections and to take follow-up action, as indicated below Sri Govindan Nair has two submissions which merit serious notice. Firstly, the number of shares have been fixed with reference to Ist December, 1976 and group allotments have been made and these are contrary to the 'one man one share' basis and the valid date of disruption in status. Secondly, many members have had no say in the valuation and sales made by the Board and natural justice cannot be sacrificed at th .....

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must make it clear that the Board's decision cannot be arbitrary, as explained in our earlier judgment. It has to be reasonable and fair and for that purpose must comply with the opportunity for a hearing to every sharer. Group allotment may be permissible provided the sharers composing the groups consent. Otherwise, each member is entitled to a per capita share. Therefore, if the Board has made group allotments, it has to be justified by practical considerations and by acceptance by the mem .....

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tion deed and the necessary details will be available in the office for the inspection of the members or their representatives. They will also be permitted to take such number of copies as they want. This is necessary for the members who wish to file objections. Within six weeks thereafter, any sharer will be entitled to file his objections, with specificity, to the various valuations and sales and other actions impugned. The Board will consider these objections and decide them on their merits. .....

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guments in Court we felt that the decisions of the Board should be subject to review by a judicial functionary of high stature, if that were practical. Mr. Govind an Nair, appearing for the first respondent, stated that Shri Justice Mathew, a distinguished retired Judge of the Supreme Court, was available in Cochin and his presence could be taken advantage of for this purpose. Speaking for the Board, Mr. Krishna Moorthy also agreed with the choice. We would have been very happy had Shri Justice .....

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or their consent. If all the sharers agree in writing to abide by the decision of Mr. Justice Mathew in regard to contested points in the Board's partition arrangement we think that Shri Justice Mathew may be persuaded to agree. Indeed, if it is brought to our notice that all parties are agreeable, the Court itself may make a request and clothe Shri Justice Mathew with necessary decisional powers. We do not say more than make these observations. But even apart from the appointment of Mr. Jus .....

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that the drafting of the legislation has been somewhat slippery breeding semantics confusion. This feature has accentuated the plausibility of both points of view. Going to the basics, we must observe that originally the royal family was impertible but the concept of partition in relation to it subject to certain conditions was introduced by the 1961 Act. However, notwithstanding the 1961 Act, the Cochin Maharaja had not declared his decision that the family properties be partitioned. A few item .....

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that event, there must normally have occurred a division in status in the Cochin royal family too and quantification of shares would then have had to be done by the Board with reference to 1-12-1976 when that Act came into force. This is the Board's stand and it has proceeded on this premise. This position would have been unassailable but for the two circumstances which, in a way, we have adverted to earlier. The 1976 Act contains a schedule repealing certain Acts and as indicated earlier th .....

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quot;8. Amendment of Act 30 of 1976 : In the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), after Section 7, the following section shall be, and shall be deemed always to have been inserted, namely:- 8. Proclamation IX of 1124 and Act 16 of 1961 to continue in force: Notwithstanding anything contained in this Act or in any other law for the time being in force Proclamation (IX of 1124) dated the 29th June, 1949, promulgated by the Maharaja of Cochin, as amended by the Valia .....

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runs thus: "9. Repeal and Saving:-(1) The Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Ordinance, 1978 (1 of 1978), is hereby repealed. (2) Not withstanding such repeal, anything done or any action taken under the principal Act or the Proclamation (IX of 1124) dated the 29th June, 1949, promulgated by the Maharaja of Cochin or the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), as amen .....

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es intact, in large part, the Proclamation as well as the 1961 Act. Section 7 of the 1976 Act expressly repeals the scheduled Acts. It also renders texts of Hindu Law, customs and usages, contrary to the provisions of the 1976 Act, ineffective. The consequence of the omission of the Proclamation and the 1961 Act from the schedule is that they survive and co-exist with the 1976 Act. The crucial point on which much debate took place is as to whether section 4(2) of the 1976 Act which produce a sta .....

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ling section of the 1961 Act, by itself, does not render inapplicable sec. 4(2) which creates the division in status. It admits of no doubt that, until Act 30 of 1976 was passed, there was no partition effected by any decision of the Maharaja pursuant to the 1961 Act. Thus one of the joint Hindu Families which subsisted at the time of the 1976 Act was the Cochin royal family and sec. 4(2) could, and, therefore, did operated on it. Nor is the rule of per capita division provided for in the 1976 A .....

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61 Act), whatever the meaning of sec. 4(2) of the 1976 Act may be. Thus, if we take a close-up of the statutory scene, vis-a-vis the Cochin royal family, in 1976, we get the position that the family is divided in status with shares for every member including a per capita share for a child in the womb and such partition is to be worked out by metes and bounds only by the Board and not by the civil court. Things would have been simple had the situation ended here. But sections 8 and 9 of the 1978 .....

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rary, argues that sections 8 and 9 will be rendered otiose and the statute stultified were we to treat the two sections as of functional irrelevance in fixing the shares and the sharers. Sec. 8 contains a non-obstante clause and so must prevail over other provisions. The substantive directive in sec. 8 of the 1978. Act is that the proclamation, as amended by the 1961 Act, as further amended by the 1978 Act, shall continue to be in force, and shall apply is the assets of the Cochin royal family. .....

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eans that the Proclamation, as amended by the subsequent legislation, shall continue to apply to the Estate and the Fund of the royal family. Shri Krishnamurthy Iyer construes this provision to mean that the processual part of the Proclamation, as amended by the 1961 Act, which, in turn had been amended by the 1978 Act was preserved by the legislature with a deliberate design, namely, to speed up the partition without getting clogged up in the formal coils of court proceedings with inevitable de .....

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s to keep out the civil court and to continue the Board's jurisdiction to partition. Nothing more, nothing less. Sec. 9 merely gives retrospectively to the Act and, more importantly, preserves as 14-189 SCI/80 valid all acts done under the Proclamation and the 1976 Act as amended by the 1978 Act. This is meaningful because anything done or any section taken under the 1976 Act is also preserved. In our view only purpose of this saving clause is the quantum of shares, the number of shares, the .....

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ld be letting a statutory bull in a china shop demolishing the concrete work already done. Let us, for a moment, examine the rival plea, which is to the effect that the Proclamation and the 1961 Act having been brought back to life the shares had to be determined on that basis updated to 1978, having special regard to s. 3 of the 1978 Act. For convenience, we may re-read that section: 3. Partition of the Estate and the Palace Fund :(1) The senior most male member of the family shall, within sixt .....

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) If the senior-most male member fails to direct the Board as required by sub-section (1), the Board shall on the expiry of the period specified in that sub-section proceed to effect the partition of the Estate and the Palace Fund among the members referred to in sub-section (1) and the Partition so affected shall be valid notwithstanding anything contained in section 17 of the Proclamation. The plausible inference is that in tune with the Proclamation (which survives) the senior-most male membe .....

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otal effect is the resuscitation of the Proclamation and the direction for Partition willy nilly by virtue of s. 3 of the 1978 Act and, therefore, the date of division-in-status has to be reckoned as that date which falls on the expiry of the 60 days of the promulgation of the 1978 Act. There is a meritorious appeal for this interpretation provided we overlook the vital direction in s. 3 (1) that the division is to be among "all the members entitled to a share under s. 4" of the 1976 A .....

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the Board. The work done upto now is to retain its force. While considering the constitutionality of the impugned Act in our earlier judgment we had made it clear that the Board was not entitled to behave arbitrarily or unreasonably and had to conform to the norm of natural justice. We maintain that conclusion and, indeed, counsel for the Board has not challenged it. In fact, we have strengthened that conclusion by providing for objections and even an appeal against the -decision by the Board t .....

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three points around which the petition for review revolves but I regret that I am unable to subscribe to the reasons listed by him in relation to the effect of the 1976 and 1978 Acts. I am therefore recording this short note which may be read in continuation of that judgment. H 2. There is no dispute regarding the proposition that under the Proclamation of 1124 the Cochin royal family was impartible and that the concept of partition in relation to it was for the first time introduced by the 1961 .....

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nder his supervision and control and directs the Board to proceed with the partition. All these three conditions had to be satisfied before the Estate could be considered partible and till it acquired that character the Proclamation remained in full force so that the Estate remained impartible and no question could therefore arise as to the persons entitled to a share on a partition. This position prevailed till the 1976 Act was promulgated and, in my opinion, that Act also did not make the slig .....

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ere fulfilled which has never been the case so far. The result is that when the 1976 Act was enforced in its original form the Estate continued to be impartible and therefore there was no question of section 4(2) of that Act being applicable to it, the specification of shares being incompatible with impartibility. In this view of the matter, the Proclamation coupled with the 1961 Act constituted an exception to the provisions of the 1976 Act which otherwise applied to all Joint Hindu Families. 3 .....

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e 1978 Act. It is therefore necessary to examine the changes effected by the 1978 Act in the 1961 Act. They are detailed in the following table: - 1961 Act as prevailing before the 1978 1961 Act as obtaining amendment after the 1978 amendment - Section 2: In this Act.... Section 2 : In this Act.. (a) 'Board' means the Board of (a) Board' means the Board Trustees appointed under s.3 of Trustees appointed of the Proclamation. under s.3 of the Procl- amation. (b) 'Estate' means .....

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se (22) of article 366 of the Constitution of India. (d) "Member" means a member of (d) Member' means a member the family of tho Maharaja of the family. of Cochin. (e) 'Palace Fund' shall have the (e) 'Palace Fund' shall same meaning as in Clause have the same meaning (c) of s.2 of the Proclamation - as in Clause (c) of s.2 of the Proclamation. (f) Proclamation' means Proclamation - (f) Proclamation' means (IX of 1124) dated proclamation (IX of 29th June, 19 .....

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Cochin is satisfied Estate and the Palace that in the interest of the Fund (partition) and Kerala family it would be desirable to Joint Hindu Family System partition the Estate and the (Abolition) Amendment Palace Fund, among all members, Ordinance 1978 direct the he may declare his Board to effect partition of the Estate and the Palace Fund decision to effect a partition among all the members under his supervision and entitled to a share of the control, direct the Board Estate and the Palace Fu .....

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