TMI Blog1955 (7) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... lea was raised that the Madras Aliyasanthana Act, 1949 was beyond the competence of the Provincial Legislature under the Government of India Act, 1935. It was also urged that the enactment was subject to the vice of extra-territoriality. 3. Article 14 of the Constitution was also relied upon impugning the validity of the provision regarding the shares assigned by the enactment to the several members in a partition. As the Sub-ordinate Judge was in agreement with the points set out as regards the validity of the enactment, he has submitted a statement of the case raising the following points for the opinion of this Court; (1) Whether Chapter 6, Madras Aliyasanthana Act 9 of 1949, which was passed by the Madras Legislative Assembly and which received the assent of His Excellency the Governor General on 13-4-1949 is repugnant to cl (3) of Section 100 of the Government of India Act, 1935 and ultra vires? (2) Are the subjects of joint family and partition in respect of which parties in judicial proceedings were governed by their customary personal law before the enactment of the Madras Aliyasanthana Act 9 of 1949 included in any of the lists 2 and 3 of Schedule 7 Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that family are entitled to enjoy fall under one category. 8. If on the other hand the status of the family or the status of the members quoad the others undergoes any alteration by way of disruption of that joint status, this is reflected in the manner in which the members of the erstwhile undivided family hold and enjoy their interests in the property. 9. In the first case where the status of the family and of its members is one of union or non-division, the eldest member of the family and in any abnormal case some other selected by the consensus of the group is in possession and management of the entire property and regulates and looks after the enjoyment by the component members of the income received by him on behalf of the family. 10. Such a head of the family a kartha or a manager, by whatever description known, is invested with certain powers and is under certain obligations. He alone could effect alienations, though these might be only for the benefit of the family or for its necessity. The component members are each entitled to be maintained by the family and its head, in such status and condition as the income of the family will permit. 11. When a disrupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 Government of India Act, 1935, with the result that the Legislatures constituted under the latter statute, one of which enacted the impugned Act, were not endowed with the requisite capacity to legislatively bring about disruption of joint status in a family or to provide for the consequences arising from such disruption. 16. The detailed argument on this branch was broadly on these lines. Under the Government of India Act, 1915, as amended by the Act of 1919 the position was this. Section 45(A)(1) of the Government of India Act, 1915, provided for a classification of subjects in relation to the functions of the Government as Central and Provincial, i.e for the purpose of distinguishing the functions of Local Governments and Local Legislatures from the functions of the Governor-General-in-Council and the Indian Legislature. 17. The Rules made under the powers thus conferred were known as the Devolution Rules. Rule 3 of these rules made the classification and set it out in Sch. I thereof. Sch. I Part I enumerated the Central subjects and Entry 16 of this list ran in these terms: Civil law including laws regarding status property, civil rights and liabilities and civil P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which is in these terms: Land, that is to say, rights in or over land, transfer, alienation and devolution of agriculture land . 24. But it was contended that the adjustment of rights involved in a partition in a family, could not properly be termed a transfer or an alienation, nor is there any devolution of title to land involved in a partition. Central entries in List 3 were also referred to as supporting the construction of the learned counsel that the law relating to partition is a law with respect to status. 25. We were referred to Item 6 of List 3 dealing with Marriage and divorce; infants and minors; adoption, and Item 12 Brankruptcy and insolvency , as indicating that several species of status were recognised by the framers and dealt with under separate headings; the argument being that the legislative power included Under the term status as used in Item No. 16 of the Central Lists under the Devolution Rules had now been split up into several component parts and assigned to the respective Legislatures, but that as partition was not separately enumerated, and there being no general head entitled status , the subject of partition which is the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily. The members are joint in food, worship and estate but the property held by them is impartible except with the consent of all the members. No individual member has any definite share therein nor can he enforce a right to a share by partition. The mode in which the proprietary right is enjoyed is by participating in the enjoyment of the family property, and provision is made sometimes for maintenance and other expenses which in law are strictly in exercise of a proprietary right. The right of management is vested in the senior male member called karnavan who has got certain rights of alienation analogous to the powers possessed by a manager of a joint Hindu family. His right to management is unrestricted except in cases where he is guilty of waste or makes some alienations not for the benefit of the family when the junior members of the family have got a right to interdict by taking appropriate proceedings in a Court of law. The right possessed by an individual member enures only for his life. Neither the principle of the right of representation nor the principle of survivorship as known to Mitakshara law exists but the birth or the death of a member may affect the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot within the lists as fairly construed. 33. Before dealing with this argument and the entries in the Provincial and Concurrent Lists which are relied upon by Mr. Venkatasubramania Ayyar who appeared for the plaintiffs in the suit and the Advocate General who appeared on behalf of the State, both supporting the impugned legislation, it is necessary to refer to an argument of Mr. Venkatasubramania Ayyar that the enactment would be valid as within the Provincial Legislative competence notwithstanding that there was no entry in the Provincial or Concurrent Lists dealing with the subject-matter of the impugned legislation. 34. The contention was that Section 99 of the Government of India Act, 1935, determined not merely the territorial ambit of the laws enacted by the Legislatures Federal and Provincial, but was designed to confer legislative powers of the widest amplitude embracing all and every topic of legislation on the Indian law-making bodies and that the mere fact that all particular subject was not enumerated within the lists in Sch 7 referred to in S. 100 did not by itself deprive the Legislature of the powers conferred by S. 99. 35. In support of this line of argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd learned counsel aright, the argument was that S. 99 referred not merely to the territorial extent over which the laws enacted by the Legislatures set up by the Government of India Act, 1935, could operate, but that it also conferred upon them unrestricted powers in respect of all and every subject of legislation and that the width of this content was not cut up by the enumeration of the items in three Lists. 40. It is impossible to uphold this construction of S. 99 regarding the relative scope and function of this provision and of S. 100. The argument assumes two things for both of which there is no foundation, viz., (1) that s. 99 is a power conferring provision - conferring an unrestricted power to deal with all subjects of legislation, and not merely one delineating or defining the territorial operation of laws, and (2) that S. 99 is not subject to the provisions in the rest of the Act particularly S. 100 notwithstanding the opening words of S. 99. 41. The argument is not merely not borne out by the language of the section but would contradict the very basis of the scheme of federation embodied in the Government of India Act, 1935. The purpose of this Parliamentary Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with strictly enumerated powers and that when any of their enactments is challenged on the ground of want of legislative competence, their competency could be established only on proof that the same was covered by some entry in the Legislative Lists committed to their Jurisdiction. We have therefore necessarily to examine whether a law providing for partition in an Aliyasanthana family was within any of the entries of the Provincial or Concurrent Lists. 46. The entries on which reliance was placed by the learned counsel for the respondents were item 21 of the Provincial Legislative List and Items 4, 7, 8 and 15 of the Concurrent Legislative List, which we shall proceed to examine. 47. The relevant portion of Item 21 of the Provincial List refers to land, transfer, alienation and devolution of agricultural land while the corresponding entries dealing with the non-agricultural property in List 3 (Concurrent Legislative List) are Items 7 and 8 wills, intestacy and succession in respect of property other than agricultural land and transfer of property other than agricultural land . The combined effect of these two sets of entries is that the Provincial Legislature, which has p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (AIR 1935 PC 158 at p. 162) (I) it was stated: In interpreting the constituent and organic statute such as the Act the British North American Act that construction most beneficial to the widest possible amplitude of the powers of the Legislature must be adopted . 52. Finally it has to be borne in mind that where powers are conferred by entries as in the Lists one sentence, one phrase or even one word might deal with a whole Code or a system of law of politics (Clement's Canadian Constitution, page 348). 53. The approach of our own Courts has been on similar lines. For instance, Chief Justice Gwyer said: I think that none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary and subsidiary matters which can be fairly and reasonably be said to be comprehended in it : United Provinces v. Mt. Atiqa Begum, 1940 FCR 110 at p. 134 : (AIR 1941 FC 16 at p. 25) (J). 54. In addition we might note the fact that the Joint Select Committee of Parliament, which finalised the Lists, which were subsequently enacted as the entries in Sch. 7, intended the three Lists to completely exha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Indian enactments from the earliest times and long before the Government of India Act, 1935, the topic of partition and the rights inter se between the members of a joint Hindu family have always been considered as falling within the head of succession . The language employed by S. 27 the Bengal Regulation of 1780 which contained a direction to-the Courts set up by the East India Company ran; In all suits relating to inheritance, marriage and caste and other religious usages and institutions the laws of the Koran with respect to Muhammadans and those of the Sastra with respect to Gentoos shall be invariably adhered to . 58. This section was subsequently re-enacted in a revised Bengal Code with the addition of the word succession after - inheritance. The text of this Regulation was reproduced in the Pitts India Act 1781 (21 Geo. III. C. 17 S. 17) sswhereunder the Supreme Court was directed to apply the personal law of Hindus and Muslims in matters of inheritance and succession to lands, rents and goods and in matters of contract and dealing between party and party , the expression inheritance and succession being intended as comprehending the entirety of the personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n In re Hindu Women's Rights to Property Act, 1937, 1941 FCR 12 : (AIR 1941 FC 72) (L) Dealing with the exact connotation of the expression devolution and succession which occur in entry No. 7 of List III and entry 21 of List II, their Lordships said at p. 33 (of 1941 FCR) at p. 78, of AIR): It is equally important to remember that neither in their ordinary grammatical significance nor by a long continued use in a technical sense have the words devolution and succession acquired a connotation that would preclude their application to describe the operation of the rule of survivorship as above explained . Many enactments of Parliament and of the Indian Legislature have used the words inheritance and succession in juxtaposition, justifying the inference that succession is either another category from or a wider category than inheritance If in these enactments succession should be held not to include the principle of survivorship, it would be difficult to say what else that word is meant to refer to and in any other view the continued administration of that part of the Hindu Law by the British Indian Courts could not have been provided for, because there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dan v. Arunachala Goundan, 44 Mad LJ 513 : (AIR 1923 Mad 577) (M), that a partition is a transfer of property within the meaning of Section 53 of the Transfer of Property Act. 69. A partition signifies a surrender of a portion of a joint right in exchange for a similar right from the co-sharer: Vide Atra Bannessa Bibi v. Safatulla Mia, 43 Cal 504 at p. 509 : (AIR 1916 Cal 645 at p. 646) (N). We are not very much concerned whether these rulings are correct as regards the proper interpretation of Section 53 of the Transfer of Property Act - a point as regards which we express no opinion whatever - but as to whether the expression transfer when it occurs in a Legislative List is not capable of being given a meaning to cover the transfer involved in a partition. 70. A transfer involved in a partition would in our judgment be a transfer within the scope of the entry No. 8, in List 3. We have no hesitation in saying that the subject of partition in a joint family including an Aliyasanthana Kuthumba would fall within the entry transfer in Item 21 of the Provincial and Item 8 of the Concurrent Lists even if it does not fall within the entries succession and devolution alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the expression estate in the enactment was not intended to apply to land in other provinces. 76. Applying the principle of this decision, the, Aliyasanthana Act may be construed as applying to land and properties situate within the province of Madras and so construed it must be and is conceded that the Act is valid and operative to govern the title in respect of the properties included in I the suits now before us. The fact that the individuals who are entitled to shares in the properties belonging to these families happen to reside outside the province is wholly irrelevant for considering the validity of the enactment. 77. Further, though certain of the defendants to the suit reside outside the State, they have filed written statements agreeing to the partition so that even if the residence of a party were a relevant factor for determining the validity of a legislation in relation to property whose locus is within the province, and in our opinion it is not, the non-resident defendants do not raise any such issue and the point does not arise for consideration in these suits, and therefore, need not be discussed any further. 78. The last point that was urged against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the kutumba who are nearest in degree to their common ancestress is removed lour degrees or more from such ancestress, then, the division shall be effected in the following manner:- (i) In three-fourths of the kutumba properties, the Kavaru shall be allotted such share as would fall to it, if a division thereof were made per capita among all the members of the kutumba then living. (ii) In the other one-fourth of the kutumba properties, the kavaru shall be allotted such share as would fall to it, if a divison thereof were made among the kavarus per stirpes. (b) In other cases, the division shall be effected in the following manner:- (i) In one-hath of the kutumba properties, the kavaru shall be allotted such share as would fall to if it a division thereof were made per capita among all the members of the kutumba then living. (ii) In the other half of the kutumba properties, the kavaru shall be allotted such share as would fall to it if a division thereof were made per stirpes among the kavarus. (c) In a stirpital division under cl. (a)(ii) or (b)(ii), the common ancestress if alive, shall be entitled to the same share as a child of hers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utumba broke up, whether at the same or at a subsequent partition, become nissanthathi kavarus. (5) The properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, shall devolve upon the kutumba, or where the kutumba has broken up, at the same or at a subsequent partition, into a number of kavarus, upon the nearest santhathi kavaru or kavarus. (6) A registered family settlement (by whatever name called) or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purport to have been distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties notwithstanding any terms to the contrary in such settlement or award. 37. The provisions of this Chapter shall apply to every kavaru possessing separate properties as if it were a kutumba. 81. The expression kutumba is defined in S. 3 to mean the group of persons forming a joint family with community of property go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle. 87. Consequently the enactment is subject to the provisions of Article 31 and if the changes effected by the Act amount to taking or acquisition of property without compensation, the Act should be deemed invalid to that extent. The contention that was urged was that in view of two recent decisions of the Supreme Court in Dwarakadas Srinivas v. Sholapur Spg. and Wvg. Co., Ltd. 1954 SCJ 175 : (AIR 1954 SC 119 (P) (second Sholapur case) and State of West Bengal v. Subodh Gopal, 1954 SCJ 127 : (AIR 1954 SC 92) (Q) (West Bengal case), there need be no acquisition by the State in order to constitute a taking within Article 31(2) and that if the right to property or to its enjoyment were substantially interfered with by the legislation there would be a deprivation of property and when this was compassed without provision for fair compensation for the interest taken as thus understood there would be a violation of Article 31(2). 88. Particular reliance was, in this connection, placed on two passages in the judgment of Mahajan, J. as he then was, for this construction of the article. His Lordship observed at 187 (of 1954 SCJ) (at p. 127 of AIR) in the Sholapur case: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . at p. 207 (of 1954 SCJ) (at p. 138 of AIR) where His Lordship said: Next, have these interests been taken possession of or acquired ? Here again I have no doubt. In my judgment, the provisions in the Constitution touching fundamental rights must be construed broadly and liberally in favour of those on whom the rights have been conferred. But in any case, in this instance, these words have to be read along with the word deprived in cl. (1) In my opinion, the possession and acquisition referred to in cl. (2) mean the sort of possession and acquisition that amounts to deprivation within the meaning of cl. (1). No hard and fast rule can be laid down. Each case must depend on its own facts. But if there is substantial deprivation, then cl. (2) is, in my judgment, attracted. By substantial deprivation I mean the sort of deprivation that substantially robs a man of these attributes of enjoyment which normally accompany rights to, or an interest in, property. The form is unessential. It is the substance that we must seek. 93. Referring to the West Bengal case (Q), Mr. Nambiar invited our attention to what the learned Chief Justice of the Supreme Court said at p. 140 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the new S. 37 by enlarging the scope of the exception in the old section, it entitles the purchaser, as a countervailing advantage, to enhance the rent payable by the tenure-holders and tenants newly brought within the exception. The purchaser is left free in other respects to continue in enjoyment of the property as before. In other words, what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section, as it was found to be inadequate, while conferring certain compensating benefits on the purchaser. This amendment is in line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to changing conditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgment sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of Article 31(1) and (2). 96. These decisions to some extent support the contention of the learned counsel that the expression taking in Article 31(2) is not confined to cases of acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each member was equally entitled to this right of maintenance and the payment of other necessary expenses, each was entitled roughly to an aliquot share of the family-income subject to the right of the ejaman to a slightly large share on account of his or her position as manager as well as on account of need of the manager to meet common family-burdens like entertaining family guests, etc., (c) though a partition of family properties could not be enforced at the instance of any member, it could be brought about by common consent and when thus a division took place the normal rule in the absence of a specific agreement to the contrary among the members was that the division should be per capita, this being in accordance with the equal proprietary interest of the members in the family-property and the manner in which the quantum of maintanance payable while in a state of non-division was computed, (d) a right to object to and interdict alienations of family property by the ejaman which were not for either necessary or beneficial family purposes, and (e) a contingent right to become an ejaman in his or her order or turn. 101. If this were the position before the enactment, the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the impugned law were entitled to large or smaller shares in its assets depending on the number of members of the kavaru to which he or they belong. This contention was based on S. 36 failing to provide for a pure per capita division and partition being effected under the Act. 107. It was stated that before the Act every member of the family had an equal right in the family properties and to an equal share in the family income and that this was reflected in the manner in which the maintenance to be allotted to any individual was determined. In this connection reliance was placed on the following observations in Maravadi v. Pamakkar, 36 Mad 203 (S) at p. 205: According to the Aliyasanthana system which is very similar in its incidents to the Marumakkathayam law - no member of the family is entitled to enforce partition of the family property which belongs to all the members. Every junior member is entitled to be maintained by the karnavan and has the right to object to any improper administration of the property of the tarwad and to see that it is duly conserved for the use of the tarwad. 108. The income belongs to all, and all are entitled to participate in the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to bar an adoption. Of these rights, obviously the most substantial one is the right to maintenance as such a right is the mode in which the right of ownership in the tarwad property is most effectively enforced by the junior members. 112. All these, however, do not carry the learned counsel far enough to support the position that the co-proprietorship on which the right to maintenance is based necessarily implies that when a partition takes place in the family it was and should only be on a per capita basis. 113. In the first place the law relating to maintenance has not been static but has progressively grown and has been undergoing changes in its content. Though originally some doubt was entertained as to whether the male members of the family who were not stocks of descent under the Aliyasanthana system, could be treated as indiduals who could count for purposes of maintenance, it was early recognised that they too were members of the family entitled to be maintained at family expense. 114. At an early date the decisions required members to reside in the family house before they could claim that provision should be made for their maintenance. But when owing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a distinction between adults and minors, the minors being held entitled to an allotment roughly of one half of that allowed to the adults. For instance in Pemmakka's case itself (36 Mad 203) (S) the District Munsif had allotted an aliquot share of the nett income from the family property to each member, adult as well as minor. Dealing with this the learned Judges of this Court said: The District Muhsif was certainly wrong in dividing the total income of the property Into as many shares as there are members and in awarding a 15/40th share to the plaintiffs on the principle of an equal share to each member. 117. The appeal was therefore remanded for fresh disposal. It is worthy of note that in the case of the very family concerned in O.S No. 182 of 19, 52 which has given rise to Ref. No. 18 of 1953, there was a previous litigation between the members of the family as regards the maintenance and under the decree finally passed, the minor members of the family were allotted maintenance at half the rate that was allotted to the adults. This of course indicates that though in a general sense members, of the family are co-proprietors, the theory of equality cannot be applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombination of both will not be set aside merely on that ground. 120. The entire argument in regard to this point really rests on two prepositions: (1) that except in regard to certain stated matters, the Marumakkathayam and the Aliyasanthana Systems are indentical and that the rule as to the mode of division is not one of those exceptional matters, (2) it is the settled rule under the Marumakkathayam law that the division is per capita. 121. So far as the first proposition is concerned, the main reliance is on a passage at page 246 of Sundaram Ayyar's Malabar and Aliyasanthana law where the learned author enumerates the points of distinction between the Marumakkathayam and Aliyasthana systems and points out that the two systems are indentical subject to these small variations. But the learned author adds a note: These are the main points on which the two systems differ though there are other minor points of difference in detail due in large measure to differing social and economic conditions. 122. In view of this reservation we consider it unsafe to proceed upon the theory that on this topic as to the mode of division the two systems are identical. The secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stirpital or a mixture of per capita and stirpital division. 129. We are clearly of the opinion that the termination of the ejaman's right to manage family property and to regulate its internal economy by the provision for the disruption of the family by a demand for partition as enacted in Section 35 of the Act is not in violation of Article 31(2) of the Constitution. 130. In the first place, this legislation is not intended or designed with a view to deprive the manager of any right of property but the termination of the managership is consequential on, and incidental to the giving effect to the rights of the other members of the family by way of a separation of their shares. 131. We do not also consider the right of the ejaman to manage the family property as a right of property within the meaning either of Article 19 or Article 31 of the Constitution. It is but a fight exercised on behalf of others and by reason of the necessity to have a single person to manage where there is a multiplicity of co-proprieters. It must be deemed to be based on a theory of implied consent on the part of the other members. 132. If it is competent to the Legislature to pass a law en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bill by the definition which was introduced into Section 3(e) of the Marumakkathayam Act. Marumakkathayyam was denned to mean a system of inheritance in which descent is traced in the female line but so as not to include the system of inheritance known as Aliyasanthana . The agitation for reforms was still kept up by the bulk of the community. 139. In 1933, a Bill was introduced in the Legislative Council for this purpose which was referred for eliciting public opinion and a large volume of opinion expressed was published by the Government. The general trend of the opinion was that a bill on the lines proposed was absolutely essential. But notwithstanding this, nothing much was done in respect of this bill in the Legislature until the Legislative Council Bill No. 1 of 1948 which was in terms identical with the earlier bill was referred to a Joint Select Committee. Mr. A.B Shetty who was then a Minister of the Madras Government in moving the Bill for reference to the Select Committee said: The Aliyasanthana family manager has to carry on a perpetual struggle between his duties to his heirs and their children and his natural affection towards his own wife and childre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (Y) relying on a passage in Boothalapandya (the authenticity of which authority has been doubted in some later cases) and it is only from then onwards that it was firmly established that there could be no partition except with the consent of the members of the family. 145. Though the members of the community chafed under the ruling, nothing could be done by them. The decision of the Courts petrified the law and imposed barriers against change. This was obviously inconvenient to the community as could be seen, from the extract from the speech of the Minister already quoted and this was particularly so in more recent times when individualism was expressing itself and replacing the earlier concept of group-life and family entity. 146. When with increasing and rapid facilities in communications, members of such families got dispersed all over the country and even outside, the system of family ownership was found obviously ill-suited. The result of this was seen in the fact that in South Kanara, partition has been very common. Of course in a majority of cases this must have been brought about after a great deal of conflict and by the exercise of pressure on unwilling managers. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might result in the members of one branch receiving a lesser extent of property than another branch which has fewer members. This might be incidental and accidental and not designed. 152. But this difference in the quantum so far as any particular member is concerned is nevertheless a deprivation of his right of property for which compensation ought to be paid by the State. This argument is unsound and does not appeal to us. The branches or the kavarus were not the creations of the Legislature but were pre-existing units recognised by the law and by the community. 153. If the Legislature took these existing facts into account and recognised the kavaru as a unit, there was nothing unreasonable and this could by no stretch of language be construed as a deprivation of property. If the argument advanced by Mr. Nambiar were accepted, there could be no change effected in any law, however outmoded and inconvenient its provisions might be and however much it might lead to discord among individuals without a payment of compensation. 154. But Courts would and should certainly take notice of the fact that society has been progressing from the concept of the family as a unit to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age from the judgment of Van Devanter in the Supreme Court of United States of America in Stuart Lindsley v. Natural Carbonic Gas Co. (1911) 51 Law Ed 369 (Z3) which has been quoted with approval by our Supreme Court in Charanjit Lal Chowdhury v. Union of India 1951 SCJ 29 at p. 65 : (AIR 1951 SC 41 at p. 63) (Z4) may usefully be referred to. Dealing with the question that the classification there made was arbitrary and consequently denied equal protection to those whom it affected, the learned Judge said at page 377: The equal protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent upon the nearness of the degree of the kavaru to the common ancestress - whether it is removed by four degrees or more or less than that - is arbitrary and not based on any reasonable classification. The manner in which this provision came to be effected would be a sufficient refutation of the argument in that regard. 168. We have already extracted a portion of the speech of Mr. Shetty in moving the reference of the Aliyasanthana Bill to the Select Committee and have referred to the agitation in the community for a change in the law relating to partition succession. When the conservative elements in the community succeeded in getting the persons following the Aliyasanthana Law excluded from the operation of the Marumakkathayam Act of 1933, the demand for legislation on the part of the younger members of the community grew in volume. 169. Several private members and also public men drafted several bills. In 1939 the Aliyasanthana Peoples Reforms Conference which consisted of the leading members of the community constituted a representative committee and they drafted a bill after consulting the opinion all over the district and the bill as drafted by them had the supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the distinction drawn between the provision in sub-ss. (3) and (4) of S. 35 is not founded on any rational basis. This is however forgetting the sharp distinction which the enactment draws between a female who is a stock of descent under this system who is past the child-bearing age which is fixed at 50 and a female who is capable of bringing into existence new members. 176. We do not see anything irrational either in fixing the critical age at 50, or in the provisions consequent upon the condition of such a female member. A similar attack is made on the distinction: between the provisions in sub-s. (4) and that in sub-s. (5) and the devolution prescribed in the latter provision. But all these were part of the system which the enactment has merely adopted and rationalised. We do not see therefore any substance in this objection that S. 35 or S. 36 violates' Article 14 of the Constitution. In the result, we are clearly of the opinion that the impugned provisions of the Madras Aliyasathana Act are valid in their entirety. The records, will be transmitted to the Sub-ordinate Judge of South Kanara who will dispose of the suits in the light of our decision. V.S.B 177. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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