D. Chelliah Nadar and Another vs G. Lalita Bai and Another

This Judgment has been overruled by : Mary Roy and Others Vs. State of Kerala and Others, AIR 1986 SC 1011 : (1986) 1 SCALE

250 : (1986) 2 SCC 209 : (1986) 1 SCR 371 : (1986) 1 UJ 515

Kailasam, C.J.—The plaintiffs are the appellants in this Letters Patent Appeal. The plaintiffs sued for a declaration of their title to and

possession of the suit properties and for an injunction. Plaintiffs 1 and 2, Chelliah Nadar and Mercy Bai, are husband and wife. The first defendant,

Lalitha Bai, is the sister of the first plaintiff. The second defendant Muthayyan is the husband of the first defendant. The suit properties belonged to

one Daniel Nadar, the deceased father of the first plaintiff. Daniel Nadar died as a Travancore Christian leaving behind him his son, the first

plaintiff, and four daughters, including the first defendant. The contest is between the son and the daughter of Daniel Nadar. If the Christian

Succession Act of Travancore is applicable, the first plaintiff will be the sole heir. But, if the Indian Succession Act is applicable, the first plaintiff

and the first defendant would each be entitled to a half share in the properties.

The trial court found that the Indian Succession Act governed the parties to the suit and dismissed the suit. On appeal, the learned District Judge

of Kanyakumari held that the first plaintiff was not entitled to claim exclusive title to the properties. In the second appeal preferred by the plaintiffs,

Raghavan, J. came to the conclusion that the Indian Succession Act was applicable. But considering the importance of the question, gave leave to

prefer a Letters Patent Appeal. Thus the matter has come up before a Bench.

The only question that arises in Letters Patent Appeal is whether the parties are governed by the Travancore Christian Succession Act,

Regulation II of 1092, or the Indian Succession Act, 1925. The Indian Succession Act X of 1865 was enacted by the Governor General of India

in Council and received the assent of the Governor General on 16-3-1865. The Act was to amend and define the law of intestate and testamentary

succession in British India. The preamble states:

Whereas it is expedient to amend and define the rules of law applicable to Intestate and Testamentary succession in British India, it is enacted... ...

...

The rules contained therein constituted the law of British India applicable to all cases of intestate or testamentary succession. But Section 331 of

the Act provided that the provisions of this Act shall not apply to intestate or testamentary succession to the property of any Hindu,

Muhammadan or Buddhist; nor shall they apply to any will made, or any intestacy occurring before 1-1-1866. Section 332 enabled the Governor

General of India in Council to exempt the members of any race, sect, or tribe in British India from the operation of the Act. Though Section 2

provided that the Indian Succession Act shall constitute the law of British India applicable to all cases of intestate or testamentary succession, the

provisions of the Act were expressly excluded from application to testamentary succession to the property of any Hindu, Muhammadan or

Buddhist and to any intestacy occurring before 1-1-1866, the Governor General of India in Council was also empowered from time to time to

exempt from the operation of the whole or any part of the Act any race, sect or tribe in British India. It may also be noted that at that time there

was no intention to make the Act applicable to the native States as they were then constituted.

While the Indian Succession Act of 1865 was in force in British India, the Travancore Regulation II of 1092, corresponding to 1916, was

passed. The Regulation was intended to consolidate and amend the rules of law applicable to intestate succession among the Indian Christians in

Travancore. The Regulation was passed by his Highness the Maharajah of Travancore on 21-12-1916. In the preamble it is stated that whereas it

is expedient to consolidate and amend the rules of law applicable to intestate succession among Indian Christians in Travancore, His Highness is

pleased to enact the Regulation. In the objects and reasons, it is stated--

The law of intestate succession among the various sections of Indian Christians in Travancore is vague and unsettled. The High Court has been

complaining about the unsatisfactory state of the law among Christians. Repeated representations were made by Christians'' representatives about

the desirability of enacting a law of succession. The necessity for legislation has therefore long been felt"". The Regulation provided for the

succession among the Indian Christians in the Travancore State.

Subsequently, the Indian Succession Act of 1925 was passed in the year 1925. The Act was for consolidating the law applicable to intestate

and testamentary succession. In the Preamble, it is stated that Whereas it is expedient to consolidate the law applicable to intestate and

testamentary succession the Act has been enacted. Section 3 of the Act provides that the State Government may, by a notification in the official

Gazette, either retrospectively from 16th March 1865 or prospectively exempt from the operation of any of the provisions of the Act mentioned in

that section, the members of any race, sect or tribe, to whom the State Government considers it impossible or inexpedient to apply such provisions

or any of them mentioned in the order. This section more or less corresponds to Section 332 of the Indian Succession Act of 1865. There are

several parts in the Indian Succession Act of 1925 and it is provided whether a particular part has a universal application or not. For instance,

Section 4 states that Part II relating to domicile, will not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina. We are

concerned with Part V which relates to intestate succession. Section 29(1) provides that Part V shall not apply to any intestacy occurring before 1-

1-1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina. It is explicit therefore that Part V of the Indian Succession Act of

1925 has no application to the property of any Hindu, Muhammadan, Buddist, Sikh or Jaina. Section 29(2) is very important as the decision in the

case mostly depends upon it. It runs as follows--

Save as provided in Sub-section (1) or by

any other law for the time being in force, the provisions of this Part shall constitute the law of India in all cases of intestacy."" The effect of Sub-

section (2) is that apart from the non-applicability of the provisions of Part V to any Hindu, Muhammadan, Buddhist, Sikh or Jaina, they will not

also apply if there is any other law for the time being in force. Otherwise, the provisions of this Part shall constitute the law of India in all cases of

intestacy. It may be noted that at the time when the Indian Succession Act of 1925 was enacted, the Travancore territory, with which we are

concerned, was a native State.

While Travancore Regulation II of 1092 was the law of intestate succession among the Christians of Travancore and the Indian Succession Act

of 1925 was applicable to British India except to the classes exempted u/s 29(2), after the consolidation of the States, the Part B States (Laws)

Act was enacted in 1951. Many of the enactments that were in force in British India were extended to Part B States. The section with which

we are concerned in Section 6. It runs as follows--

If immediately before the appointed day there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now

extended to that State, that law shall, save as otherwise expressly provided in this Act, stand repealed"".

The two provisos, which are not material, need not be considered. The appointed date is 2-8-1952. The question is whether before the appointed

date there was in force in Part B States any law corresponding to the Indian Succession Act. The point that has to be decided is whether the

Christian Succession Act Regulation II of 1092 of Travancore, is a law corresponding to the Indian Succession Act, and if so whether the Indian

Succession Act would repeal the Travancore Regulation.

The Christian Succession Regulation II of 1092 relates to intestate succession among the Indian Christians in Travancore, whereas the Indian

Succession Act is a law relating among other things, to intestate succession, which is applicable to immovable property in India of a person

deceased in India. The Act itself provides that it is not applicable to intestate succession of a Hindu, Muhammadan, Buddhist, Sikh or Jaina and to

others, who are governed by any other law for the time being in force. The subject of legislation is intestate succession. Though the Travancore

Regulation is confined to Indian Christians in Travancore, the conclusion is inescapable that the Travancore Regulation is a law corresponding to

the Indian Succession Act, as contemplated in Section 6 of the Part B States (Laws) Act, 1951. In The Custodian of Evacuee Property,

Bangalore Vs. Khan Saheb Abdul Shukoor, etc., , the Supreme Court has pointed out that where the Act repealed provided substantially for all

matters contained in the Act effecting the repeal there is correspondence between the two Acts and the earlier Act would thus stand repealed and

that it is not necessary that there should be complete identity between the repealing Act and the Act repealed in every respect. Following the above

decision the Supreme Court in A.B. Abdulkadir and Others Vs. The State of Kerala and Another, , laid down that all that we have to see is

whether the law repealed substantially provided for the same matters as the Central Act even though it may not be identical in all respects. The

same view was reaffirmed by the Supreme Court in Anant Prasad Lakshminivas Generiwal Vs. State of Andhra Pradesh and Others, . There were

two Acts in that case, the Charitable Endowments Act VI of 1890, and the Charitable and Religious Trusts Act XIV of 1920. It was contended

that because of the application of these two Acts to the then Part B State of Hyderabad, the Regulation must be deemed to have been repealed in

view of Section 6 of Part B States (Laws) Act. The Supreme Court rejected that contention holding that Act VI of 1890 definitely excluded

religious public trusts from it, that the Regulations dealt with two kinds of trusts, namely, public religious trusts and trusts for purposes of charity

and public utility and that in that case, they were concerned with a public religious trust which was specifically excluded from the purview of Act VI

of 1890 and that therefore whatever might be the effect of Act VI of 1890, on that part of the Regulations which dealt with public trusts other than

religious trusts, there was no doubt that the Regulations in so far as they applied to religious trusts, could not be held to have been repealed by the

application of Act VI of 1890 to the then Part B States of Hvdera-bad, for the Regulations when they dealt with religious trusts would not be a law

corresponding to Act VI of 1890. The Supreme Court therefore held that the application of Act XIV of 1920 to the then Part B State of

Hyderabad could not be said to have repealed the Regulations by virtue of Section 6 of the Part B States (Laws) Act, 1951. The Supreme Court

took this view as a perusal of Section 6 of Act XIV of 1920 showed that it was confined to a very limited purpose, whereas the Regulations were

a much wider enactment and Act XIV of 1920 did not cover the entire field. The decisions of the Supreme Court make it clear that the law

repealed should substantially provide for the same matters as the Central Act even though it may not be identical in all respects, and that it must

cover the entire field which was covered by the law which was sought to be repealed Applying the principle laid down in the three decisions of the

Supreme Court, viz., The Custodian of Evacuee Property, Bangalore Vs. Khan Saheb Abdul Shukoor, etc., , A.B. Abdulkadir and Others Vs.

The State of Kerala and Another, , and Anant Prasad Lakshminivas Generiwal Vs. State of Andhra Pradesh and Others, , it is clear that, unless

the entire field is covered by the Central Act there will be no repeal under the Part B States (Laws) Act. In this case, the Indian Succession Act, as

It stands, does not purport to legislate so far as Indian Christians in Travancore State are concerned.

In the case before us both the laws relate to intestate succession. Though the Travancore Regulation is confined only to Christians in that State,

the field of legislation is the same and the Indian Succession Act has a universal application to the extent provided for under the Act. On the facts,

there is no doubt that both the legislations are intended to provide for intestate succession, though the application of the Travancore Regulation is

confined only to the Christian Community of Travancore. Section 6 of the Part B States (Laws) Act does not require the law to be identical, but

only requires that it should correspond to the Central Act. Though the Central Act as well as the Travancore Regulation related to the same

subject, namely, intestate succession and covered identical fields and to that extent is corresponding law, in view of the decisions of the Supreme

Court cited above, it will not be corresponding law for the purpose of Section 6, as the Indian Succession Act does not cover Travancore

Christians, governed by the Travancore Regulation. Taking all the circumstances into account, we feel that the Travancore Regulation is a law

corresponding to the Indian Succession

It has now to be considered whether the Travancore Regulation stands repealed. On and from the appointed date the Indian Succession Act,

39 of 1925, had come into force in Part B States. What it seeks to repeal is the corresponding law. But the Act conies Into force without any

modification and under its own provisions the Act will not apply to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina or when any

other law for the time being in force provides for the succession. It cannot be said that, because the Indian Succession Act is intended to apply in

the case of succession to Immovable property in India, which will include Part B States also, it repeals all laws statutory or otherwise, relating to

Hindus, Muhammadans, etc., for Section 29(1) itself makes it clear that it shall not apply to the property of any Hindu, Muhammadan, Buddhist,

Sikh or Jaina. There could therefore be no question of the Indian Succession Act repealing any corresponding law relating to Hindu,

Muhammadan, Buddhist, Sikh or Jaina, for it is not applicable to them at all. u/s 29(2), the Indian Succession Act relating to intestate succession is

not made applicable to cases where there is any other law for the time being in force. On the date, when the Indian Succession Act came into

force, the Travancore Regulation was in force in Travancore State, though strictly under the Indian Succession Act, they would not have

contemplated any law in the Travancore State. But, on a proper construction of the intention of the enactment, it is seen that the Indian Succession

Act, even after the merger of the State, will not be applicable to Christians in the Indian States. Thus Section 29(2) stands, as much as Section

29(1), thereby excluding the application of the enactment to Hindus, Muhammadans, Buddhists, Sikhs or Jainas and also persons who are covered

by any other law for the time being in force, one such law being the Travancore Regulation II of 1092. When the Indian Succession Act itself does

not provide for succession to the property of Indian Christians in Travancore, it cannot take the place of the Travancore Regulation. Therefore, as

long as the Indian Succession Act of 1925 stands, with Section 29(1) and (2) intact, the Travancore Regulation cannot be said to have been

repealed because of the provisions of Section 6 of the Part B State (Laws) Act. If the Indian Succession Act had a universal application or applied

to Indian Christians, then, to that extent, the corresponding legislation would have been repealed. But as we are satisfied that as the Indian

Succession Act which seeks to provide for the law of intestate succession throughout the country, itself omitted from its operation the Travancore

Regulation Act, we are of the view that the Travancore Regulation has not been repealed.

The question whether the Travancore Christian Succession Act (Regulation II of 1092) was repealed by Part B States (Laws) Act 3 of 1951

came up for consideration before the Travancore Cochin High Court. In Kurian Augusty v. Devassy Aley, AIR 1957 Tray-Col, the court, after

extracting Section 19(1) and (2) of the Indian Succession Act, came to the conclusion that from that section it was clear that the Indian Succession

Act was not intended to interfere with the personal law of communities which have settled laws of their own as regards intestate succession. The

Court took the view that the Travancore Christian Succession Act would in no sense be regarded as law corresponding to Part V of the Indian

Succession Act and that it had to be regarded as forming part of the Indian Succession Act. We are of the view, though for different reasons, that

as Section 29(2), which is still in force, does not purport to legislate for the Indian Christians, there cannot be any repeal of the Travancore

Christian Succession Act. We do not think it is necessary for us to consider whether the Indian Succession Act must be deemed to have adopted

by reference all laws for the time being in force relating to intestate succession which will include the Travancore Succession Act so far as the

Christians in the Travancore State are concerned.

The question was fully considered by Ismail J. in Solomon and Others Vs. Muthiah and Others, , where the learned Judge held that by virtue of

Section 6 of the Central Act III of 1951, the Travancore Christian Succession Act, Regulation II of 1092, stood repealed with effect from 1-4-

1961. The reasoning of the learned Judge is contained in para. 60 of the report, where he has stated that the expression ''save as provided by any

other law for the time being in force'' must necessarily refer to the exclusion of Part V made by any other law. The learned Judge has stated that so

long as an existing statute has not excluded the applicability of Part V of the Indian Succession Act 1925, the provisions of the said Part V will

apply and that no other enactment was brought to his notice specifically excluding the applicability of the provisions of Part V of the Indian

Succession Act 1925 to the Christians of the former Travancore Cochin State. We feel that this reasoning is erroneous as the Travancore

Regulation is of the year 1917, about eight years before the Indian Succession Act was passed. It was within the jurisdiction of the Indian State

when the exclusion of the operation of the provisions of Part V could not have been contemplated. Further, in our view, it is Section 29(2), as it

stands, that has to be construed and if that excludes the application of any other law in force, it is needless for any law to state that Part V is not

applicable. The Indian Succession Act by itself excludes its operation to the Indian Christians in the Travancore State. There could, therefore, be

no repeal of any enactment not covered by the Indian Succession Act In this view we are unable to accept the conclusion arrived at by the learned

Judge, that being a corresponding law, the Travancore Christian Succession Act stood, repealed. The decisions of Gokulakrishnan J. in S. A. No.

529 of 1968 (Mad), Devarees v. Earl Nadar and of K. N. Mudaliyar J. in S. A. 1006 of 1968 (Mad), Mary Santhakumari v. Susai Pakkiam, are

also not good law.

In the result, we hold that the Travancore Christian Succession Act, Regulation II of 1092, is applicable to the appellants.

On behalf of the defendants-respondents, it is submitted that the plaintiffs are not entitled to a decree for possession as the relief of possession

has not been asked for. The plaint proceeds on the basis that the plaintiffs are in possession. In para. 4 it is stated that the first plaintiff came into

possession of A and B schedule properties and that he executed a gift in favour of his wife, the second plaintiff, in respect of the B schedule

properties and thus she was in possession of the B schedule properties. In para. 6 it is also stated that the suit properties vest with the plaintiffs and

that they are in enjoyment of the suit properties. The allegation is that the defendants are creating trouble in the enjoyment of the suit properties by

the plaintiffs. Therefore the plaintiffs prayed for an order of injunction restraining defendants 1 and 2 from disturbing the possession of the plaintiffs

of the suit properties. The relief prayed for is for declaration of title and possession of the plaintiffs over the suit properties and an order of

injunction against the defendants from disturbing the plaintiff''s possession. The plaint has not asked for possession of the suit properties as it

proceeds on the basis that the plaintiffs are in possession.

The trial court did not go into the question as to who was in possession, but observing that whatever that might be, the first plaintiff possessed

A and B schedule properties only as one of the heirs of Daniel Nadar, answered the issue as to whether the plaintiffs are in possession of the suit

properties, accordingly. The appellate court did not agree with the trial court that the first plaintiff was in exclusive possession. It referred to the

evidence of P. W. 2, who stated that Items 2 to 4 end 7 of A schedule and Items 13 and 16 of B schedule are in the possession of the defendants

ever since the death of father Daniel and found that it has not been proved that the plaintiffs are in exclusive possession of A and B schedule

properties. This finding was not challenged in the second appeal and the learned Judge in disposing of the second appeal did not refer to this

aspect of possession. On the evidence of P. W. 2 himself, which is accepted by the lower appellate court, it cannot be said that the plaintiffs have

established that they are in possession of Items 2 to 4 and 7 of A schedule and Items 13 and 16 of the B schedule. As the relief of possession has

not been asked for, the order of injunction cannot be granted against the defendants regarding these items. In other respects, the suit is decreed.

The appeal is partly allowed, but there will be no order as to costs.