Santhamma and Others vs Neelamma and Others

Rajagopala Ayyangar, J.—This is a reference u/s 113 of the CPC by the learned Subordinate Judge of Mangalore.

Three suits, Original Suits Nos. 23 of 1951, 177 and 182 of 1952, were filed in the Court of the Subordinate Judge of Mangalore for partition

of the properties belonging to three Aliyasanthana families under the provisions of Section 36 of the Madras Aliyasanthana Act, 1949. The

immovable properties which were the subject-matter of the suits are situated in the district of South Kanara, Most of the Defendants in the several

suits reside in the State of Madras, except that some of the Defendants in Original Suit No. 182 of 1952, are said to have settled down in Coorg

long before the Act came into force. A detailed written statement was filed, in Original Suit No. 182 of 1952, by the 177th Defendant who was the

Manager of the family there in dispute, which was treated by the Subordinate Judge as the main statement in the cases, and in this, the plea 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. 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 Subordinate

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:

Whether chapter VI of the Madras Aliyasanthana Act (IX of 1949), which was passed by the Madras Legislative Assembly and which received

the assent of His Excellency the Governor-General on 13th April 1948, is repugnant to Clause 3 of Section 100 of the Government of India Act,

1935, and ultra vires?

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 (IX of 1949), included in any of the entries 2 and 3 of Schedule VII of the Government of

India Act, 1935?

Is the scheme of fixation of shares at a partition in an Aliyasanthana family, as provided by Section 35 of the Aliyasanthana Act (IX of 1949),

arbitrary in its application, discriminatory and unreasonable in its operation and confiscatory in effect and therefore offends the fundamental rights

secured by the Constitution of India?

The Madras Aliyasanthana Act, 1949, enacted by the Legislature of this Province, deals with various topics pertaining to the followers of the

Aliyasanthana system of inheritance, but as the suits out of which this reference arises are for partition, we are concerned only with the validity of

the provisions relating to this topic contained in chapter VI of the Act.

The challenge to the validity of this chapter was before us rested on three grounds: (i) the Provincial Legislature constituted under the

Government of India Act, 1935, was not legally competent to enact the measure for the reason that ""the pith and substance"" of the legislation or the

subject-matter of the enactment was not comprehended within any of the items in lists (2) or (3) of the legislative lists in Schedule VII. (ii) The

provisions were subject to the vice of extra-territoriality and that the portions thus vitiated and those which related to the territory within the

jurisdiction of the Legislature were so inextricably interwoven that the entire chapter should be pronounced invalid. (iii) The provisions of this

chapter contravene the fundamental rights guaranteed by Articles 14, 19 and 31 of the Constitution of India and, therefore, the chapter should be

struck down under Article 13 as unconstitutional, after the coming into force of the Constitution of India. We shall consider these three objections

in that order.

Legislative competence to enact chapter VI.--The argument under this head is founded upon a law relating to partition in a Mitakshara family, in

a Marumakkathayam tarwad or an Aliyasanthana kutumba, being in pith and substance a law relating to status and civil rights. The argument as

formulated by Mr. Natnbiar was this: the right on foot of which persons who are members of such families hold their interests in the family

properties is wholly dependent upon the status of the family and it is that status which is crucial and determinative of the nature of those rights. If the

status is one of union, the rights, which the members of that family are entitled to enjoy fall under one category. 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. In the first case where the status of the

family and of its member 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 groups--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. 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 they 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. When a disruption takes place in the family, a radical change occurs in the manner in which the members enjoy

their properties and manage their affairs. The quasi-corporation owning the property, with incidents flowing from this condition is broken up, and in

its place emerge the several individual components each having rights over their separated shares, the common managership disappearing. The

latter is the condition which is brought about by a disruption of that joint status. The critical thing, therefore, in these matters is this ""status"" of this

quasi-corporation. This entity might be designated differently in the several sister-systems, a joint family by the Mitakshara, a tarwad in the

Marumakkathayam system or a kutumba in Aliyasanthana Law. In all these systems, it is the change in the status of the group that causes an

alteration in the rights and obligations of the members and which changes the relationship in which, quoad the property of the group the several

members stand to each other. In this connection, we were referred to the passage at pages 326 to 329 in the dissenting judgment of Scot, L.J., in

Re. Luck (1940) 3 A.E.R. 307, as authority for the position that ""status"" was the central concept-in-law--the source and origin from which legal

rights flowed, and from this it was argued that unless a Legislature was specially clothed with authority to legislate on the particular status, it could

have no competence to enact laws dealing with the incidents which arose out of that status.

We shall deal with the argument of Mr. Nambiar on the merits, but having carefully read the passage referred to, we are utterly unable to see

any relevance in it to the present context. The learned Lord Justice is there dealing with ""status"" in Private International Law and it is not as if the

status of a joint Hindu family forms one of these categories. Even otherwise, we fail to see the bearing of that discussion on the questions arising in

the present reference.

The argument further ran that the entries in the Legislative lists have followed this principle and have been patterned on this basis. While there

was specific provision for legislation on the topic of ""status and civil rights"" in the lists under the Government of India Act, 1919, this head of

legislative power was omitted when the items were enumerated in the lists in Schedule VII to the 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. 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. 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 Schedule I thereof. Schedule 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 procedure.

Even though the subject of status fell under the head ""Central Subjects"", Section 80(a)(3) enabled the Provincial Legislature to regulate Central

Subjects with the previous sanction of the Governor-General, so that under the Government of India Act, 1915, as amended by the Act of 1919, it

was competent to the Provincial Legislature to enact laws relating to ""status and civil rights"". It was under this head of legislative power that pieces

of legislation analogous to the impugned Aliyasanthana Act, viz., the Nambudri Act (Act XXI of 1933), Marumakkathayam Act (Act XXII of

1933) and the Mapilla Marumakkathayam Act (Act XVII of 1939), were all passed. When the Government of India Act of 1915 was repealed

and replaced by the Government of India Act, 1935, the powers of the Provincial Legislatures were expressly confined to the subjects enumerated

in lists II and III to Schedule VII by reason of the provisions contained in Section 100 of the Act. The scheme of the Government of India Act,

1935, was federal in its nature and the competence of the Legislatures, both Central as well as Provincial, was limited to the subjects enumerated

in the respective lists with Section 104, empowering the Governor-General by public notification to enable either the Federal or the Provincial

Legislature to enact a law with reference to any matter not enumerated in any of the lists in the seventh schedule. Though an attempt was made to

make the three lists, federal, provincial and the concurrent as exhaustive as possible so as to leave little or nothing to the residuary field, yet if on a

reasonable construction of the entries in the lists any particular topic of legislation were left uncovered, neither the Federal nor the Provincial

Legislature would have power to enact legislation on that topic, but resort should be had to the power of the Governor-General u/s 104. Partition

is a resultant of a change in status from a corporate or a quasi-corporate to individual ownership. Unless the Legislature is competent to legislate on

status, it would not have power to deal with the incidents of a family corporation and provide for its break up. ""Status"" is not one of the subjects

enumerated in any of the lists in Schedule VII.

The only entry in the Provincial list which might be argued as having any bearing upon the present topic was, it was urged, item 21, the relevant

portion of which is in these terms:

Land, that is to say, rights in or over land, transfer alienation and devolution of agriculture land....

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. Certain entries in list III 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"". We were referred to entry 6 of list III dealing with ""marriage and

divorce; infants and minors;"" adoption, and entry 12 ""bankruptcy 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 resultant from an alteration in status was not within the legislative lists. It was further contended that item No. 7 in list III dealing with ""wills,

intestacy and succession"" was not apt to include partition since there is no succession involved in a partition.

In support of the argument that the expression ""status"" has been used by the Courts to designate the condition of the family while in its state of

union as well as to indicate the change effected by disruption, Mr. Nambiar referred us to several decisions in which such expressions were used.

Dealing with the question as to what constitutes separation in the Mithakshara joint family and the effect of a unilateral declaration by one of the

members communicated to others to get divided, Ameer Ali, J., in Girja Bai v. Sadashiv Dhundiraj (1916) ILR 43 Cal. 1031, 1045 (P.C.) said:

But as the question of the effect on the joint status of such an intention has been raised in this case in a direct and concrete form, their Lordships

think it fit to discuss the principle somewhat more fully....

In the Hindu Law, ""Partition"" does not mean simply division of property into specific shares; ...In the Mitakshara, Vijnaneswara defines the words

vibhaga which is usually rendered into English by the word ""partition"" as the ""adjustment of diverse rights regarding the whole by distributing them

in particular portions of the aggregate...."" In fact later writers leave no room for doubt that ""separation"" which means the severance of the status of

jointness is a matter of individual volition.

In a later passage at 1047, he said:

They propose to refer shortly to the cases which establish clearly that separation from the joint family involving the severance of the joint status so

far as the separating member is concerned, with all the legal consequences resulting therefrom, is quite distinct from the de facto division into

specific shares of the property held until then jointly.

We were also referred to similar passages occurring in the judgment of Venkataramana Rao, J., in Adam Haji Peer Muhammad Issac Sait Vs.

Pattakkarantavita Kunkan and Others, , where the learned Judge drawing an analogy between a Mitakshara family and Malabar tarwad said:

A Malabar tarwad or tavazhi is a corporate unit just like the Mitakshara joint Hindu family. 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 other members in the extent of beneficial

enjoyment of the tarwad property or the death of a member leaving property which lapses to the tarwad, may enable the other members to share

in the enjoyment thereof also with the rest of the tarwad property.

as also to a further passage in the same judgment, where the learned Judge quotes the observations of the Judicial Committe in Abraham v.

Abraham (1863) 9 M.L.A. 195, 237:

...Parcenership, understood in the sense in which their Lordships here use the term, as expressing the rights and obligations growing out of the

status of an undivided family, is the creature of, and must be governed by, the Hindu Law.... Parcenership may be put an end to by a severance

effected by partition; it must, as their Lordships think, equally be put an end to by severance which the Hindu Law recognises and creates.

And after referring to the disruption which takes place by the conversion by one of the members of the family, the learned Judge says:

Their rights and obligations incident to their status as members of the tavazhi must therefore cease.

Reliance was placed by Mr. Nambiar on these and other like passages in other decisions as supporting his contention that partition was a

matter of ""status"" and, therefore, that a Legislature would not have power to deal with the subject unless ""partition"" was specifically enumerated or

there was a general entry like ""status"", as under the devolution rules, conferring legislative power.

Finally reliance was placed on the observations to be found in the dissenting judgment of Sulaiman, J., in Subrahmanyan Chettiar v.

Muttuswami Goundan (1940) F.C.R. 188, 208, where dealing with the lists in the seventh schedule to the Government of India Act, 1935, his

Lordship said:

No doubt, every effort appears to have been made to make the three Lists as comprehensive and exhaustive as well as exclusive as possible; and

it may well be that barring personal or customary laws, it would only be extremely rare cases which would not come in any one of these three Lists

so as to fall within the residual powers of legislation dealt with by Section 104 of the Act.

Considerable emphasis was laid on the words we have underlined as supporting the position that the subject of partition which is a branch of

personal or customary law was not within the lists as fairly construed.

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. 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 a particular subject was not enumerated within the lists in

Schedule VII, referred to in Section 100, did not by itself deprive the Legislature of the powers conferred by Section 99. In support of this line of

argument, reliance was also placed upon the fact that though in respect of the subjects enumerated in the lists, the Federal Legislature is forbidden

to legislate in respect of matters contained in list No. II and the Provincial Legislature likewise is debarred from legislating on matters in the Federal

Legislative lists, with a positive provision enabling the respective Legislatures to enact laws on the topics enumerated in the permitted lists, there is

no corresponding prohibition against either Legislature enacting laws with respect to matters not in the lists.

This argument was further sought to be sustained on the strength of a passage in the judgment of the Privy Council in Wallace Brothers and

Co. Limited v. Commissioner of income tax, Bombay City (1948) F.C.R. 1, 15:

There is no rule of law that the territorial limits of a subordinate Legislature define the possible scope of its legislative enactments or mark the field

open to its vision. The ambit of the powers possessed by a subordinate Legislature depends upon the proper construction of the statute conferring

those powers. No doubt the enabling statute has to be read against the background that only a defined territory has been committed to the charge

of the Legislature. Concern by a subordinate Legislature with affairs or persons outside its own territory may therefore suggest a query whether the

Legislature is in truth minding its own business. It does not compel the conclusion that it is not. The enabling statute has to be fairly construed.

The submission was that the only criterion for legislative competency is whether the Legislature is minding its own business. If it is, the resulting

legislation must, it was contended, be held valid.

The only questions which were raised for the consideration of the Board in the Wallace Brothers case (1948) F.C.R. 1, 15 were whether the

provisions of the income tax Act had extraterritorial operation, and whether if so, the Central Legislature had the power to enact them. It was held

that there was a sufficient nexus or territorial connection between the person sought to be charged and India to sustain the validity of the tax on the

foreign income of such person. We find ourselves unable to discern any basis for the very novel argument of Counsel founded on this decision and

the passage extracted above.

If we understand learned Counsel aright, the argument was that Section 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 the three lists. It

is impossible to uphold this construction of Section 99 or regarding the relative scope and function of this provision and of Section 100. The

argument assumes two things for both of which there is no foundation, viz., (i) that Section 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 (ii) that

Section 99 is not subject to the provisions in the rest of the Act, particularly Section 100, notwithstanding the opening words of Section 99. 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 Statute was to set up Legislatures, Central and Provincial, with enumerated

powers--the Governor-General ""in his discretion"" being vested by Section 104 with authority to deal with the residuary field in the event of there

being any such residue after the very full enumeration attempted in the entries in the three lists. The argument of learned Counsel would render

otiose and absolutely unmeaning the provisions contained in Section 104 of the Act.

The second line of approach attempted by learned Counsel in this part of the case was based upon the interpretation, which Counsel invited us

to place on Sections 104 and 109 of the Act. Section 109 enacts:

109(1)....

(2) No act of the Federal Legislature or a Provincial Legislature, and no provision in any such Act, shall be invalid by reason only that some

previous sanction or recommendation was not given, if assent to that Act was given--

(a) where the previous sanction or recommendation required was that of the Governor, either by the Governor, by the Governor-General, or by

His Majesty....

The contention was that when Section 104 refers to a public notification empowering the Provincial Legislature to enact a law with respect to any

matter not enumerated in any of the lists of the seventh schedule, it is merely a prescription of a requirement of previous sanction or

recommendation of the Governor-General within Section 109 and, therefore, as the Madras Aliasanthana Act of 1949 had received the assent of

the Governor-General, the ""want of previous sanction"" by way of ""public notification"" u/s 104 was cured by his subsequent assent. In our opinion,

neither the language of the Section 104 or Section 109 nor the scheme of the Government of India Act, 1935, permits this construction of these

provisions. In fact, learned Counsel did not conceal from us that the contention he was putting forward was directly in the teeth of the decision of

the Federal Court in the Estates Duty Reference as well as of the Supreme Court in The Rajahmundry Electric Supply Corporation Ltd. Vs. The

State of Andhra, . We are clearly of the opinion that the Central and Provincial Legislatures constituted under the Government of India Act, 1935,

though sovereign bodies possessing wide and plenary powers when legislating on subjects assigned to them by entries in the appropriate lists, were

however Legislatures 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.

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. The relevant portion of item 21 of the Provincial list refers to

laud, transfer, alienation and devolution of agricultural land"" while the corresponding entries dealing with the non-agricultural property in list III

(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 power to enact

laws in respect of all these matters, is competent to pass enactments over the entire field of wills, intestacy, succession, transfer and devolution of

all properties--agricultural and non-agricultural--which between them exhaust every species of property. The whole question, therefore, is whether

a law relating to partition in a Hindu family, be it a Mitakshara family, a Marumakkathayam tarwad or an Aliyasanthana Kutumba, could be

brought within the caption of ""transfer"" or wills, intestacy, succession or devolution"". In this connection it has to be remembered that the Court is

now concerned with the interpretation of lists conferring power upon a sovereign body and not with the interpretation of words used in a Municipal

enactment.

In the first place, there is a presumption in favour of the legality of a statute and the Court will not declare an Act unconstitutional or, ultra vires,

unless the repugnancy to the Constitution is clear and beyond doubt. As stated in Clement''s Canadian Constitution (p. 347),

The Privy Council, indeed, has laid down that Courts of law must treat the provisions of the British North American Act by the same methods of

construction and exposition which they apply to the other statutes. But there are statutes and statutes; and the strict construction deemed proper in

the case for example of a penal or taxing statute or one passed to regulate the affairs of an English Parish would often be subversive of

Parliament''s real intent if applied to an act passed to ensure the peace, order and good Government of a British Colony.

Lord Wright expressed the same idea in slightly different words while delivering the judgment of the Privy Council in James v. Commonwealth of

Australia (1936) A.C. 578, 614, where the learned Lord had to deal with the Constitution of Australia. He said:

...A Constitution must not be construed in any narrow or pedantic sense. The words used are necessarily general, and their full import and true

meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge.

It is not that the meaning of the words changes, but the changing circumstances illustrates and illuminate the full import of that meaning.

Similarly in the British Coal Corporation v. The King (1935) A.C. 500, 518, it was stated:

Indeed 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.

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 system of law or politics"" (Clement''s Canadian Constitution, page 348).

The approach of our own Courts has been on similar lines. For instance, Chief Justice Gwyer saidr:

I think however 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. The United Provinces v. Atiqa Begum

(1940) F.C.R. 110, 134.

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 the Seventh Schedule, intended the three lists to completely exhaust the whole field of law such as they were then able to visualise,

though they foresaw a remote possibility of some omissions and with a view to provide for such an exceptional case devised the machinery u/s

Dealing with this aspect of the framing of the lists, they said in paragraph 34.

These lists are so widely drawn that they might seem at first sight to cover the whole field of possible legislative activity, and to leave no residue of

legislative power unallocated. It would however be beyond the skill of any draftsman to guarantee that no potential subject of legislation has been

overlooked nor can it be assumed that new subjects of legislation unknown and unsuspected at the present time, may not hereafter arise; and

therefore however carefully the lists are drawn, a residue of subjects must remain, however small, it may be which it is necessary to allocate either

to the Central or to the Provincial Legislatures. The plan adopted in the White Taper is that the allocation of this residue should be left to the

discretion of the Governor-General and settled by him ad hoc on each occasion when the need for the legislation arises.

Again at paragraph 232, they said dealing with the lists as revised under their direction subsequent to the White Paper draft:

We are convinced that the laborious and careful enumeration of both sets of subjects has secured, that in fact no material and unforeseen accretion

of power, either to the Centre or Provinces would result from the elimination of one list or the other; and we are satisfied that the process has

reduced the residue to proportions so negligible that the apprehensions which have been felt on the one side or the other are without foundation.

The conclusion, therefore, that a subject of legislation which is of normal and ordinary occurrence has been omitted to be included in the lists is not

to be lightly reached. To hold that a topic falls within Section 104 should be the last resort of a Court of construction.

It is in the context of these considerations that the meaning to be attached to the words in the entries has to be gathered. Mr.

Venkatasubramania Ayyar, learned Counsel for the Respondents, urged that the subject of ""partition"" might be comprehended principally within

succession"" or ""transfer"". He particularly relied upon the fact that in the vocabulary of the framers 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 Section 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.

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 re-produced in the Pitts India Act, 1781 (21 Geo. III. C. 17 Section 17), whereunder 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 or family law of

the parties. Subsequent parliamentary Statutes such as 37 Geo. III Ch. 142, Section 13, re-enacted the same provisions, and so did several

provincial Acts. Of these latter it is sufficient to refer to the Madras Civil Courts Act of 1873, Section 16 of which provides:

Where in any suit or proceeding it is necessary for any Court to decide any question regarding succession, inheritance, marriage or caste or any

religious usage or institution, etc., etc.,

the Court is enjoined in such cases to apply Muhammadan Law where the parties are Muhammadans and the Hindu Law in cases where the

parties are the Hindus and, subject to any change by the Legislature and in cases where no specific rule exists, according to justice, equity and

good conscience. A provision in these terms continued in the Government of India Act, 1915, Section 108, and this was repealed by the

Government of India Act, 1935.

In a case reported in Ponnappa Pillai v. Pappuvayyangar (1881) ILR 4 Mad. 1 (F.B.), a Full Bench of this Court had to consider the liabibility

under the Mitakshara Law of a son to discharge a debt of his father not contracted for illegal or immoral purposes with a related question whether

this was part of the law relating to inheritance and succession in regard to which the Court had to apply the Hindu Law. The majority of the Court

held:

The question as to the extent of the son''s liabiliy is not one of contract but the duty is an incident of inheritance.

This idea was expressed by Kindersley, J.,--one of the majority--in these terms:

This (contention of the son) appears to me to be part of the Law of Inheritance and not of contract,

though in the case before the Court the father was alive and was a party to the suit for partition in which the right of the creditor was impugned.

This decision and the passage extracted above show that the expression ""inheritance"" or ""succession"" as used in the Regulations and the other

Parliamentary and Indian enactments is not to be understood as confined to cases of a ""devolution"" in the strict sense of a passing of interest in

property from the dead to the living, but as comprehending also the adjustment of the rights and obligations that subsist between the parties

governed by Hindu Law. This aspect of the matter was referred to, in the opinion of the Federal Court on the special reference in In re The Hindu

Women''s Rights to Property Act (1941) F.C.R. 12. Dealing with the exact connotation of the expression ""devolution"" and ""succession"" which

occur in entry No. 7 of list III and entry No. 21 of list II, their Lordships said at page 33:

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 no other appropriate words in those provisions. Such being the position as to the meaning of the words, it is permissible to

add that it is difficult to conceive of any reason why in framing lists II and III, Parliament should have thought fit to take away the law of

survivorship from the jurisdiction of the Indian Legislatures, and there is no justification for attributing oversight either, when, as above explained,

the language employed may properly be held to comprehend the law of survivorship as well.

We might add that we do not also see any sufficient reason why in framing these lists the Parliament should have thought fit to take away the

law relating to partition in joint families from the jurisdiction of the Indian Legislatures. We, therefore, consider this argument of Mr.

Venkatasubramania Ayyar regarding the wide import of the expressions ""devolution"" and ""succession"" and as to the words being apt to cover

partition in a Hindu family, well founded. This conclusion, is, in our opinion, reinforced by the use of the expression ""succession"" after ""wills and

intestacy"". ""Wills and intestacy"" between themselves would exhaust the entire content of the law relating to the sequence of ownership occurring on

a person''s death. What then is intended to be conveyed by the entry ""succession""? In the context it could not be taken to cover merely

succession"" on death or the accession of rights which flow from the death of the owner. In the Hindu Law texts, Daya Vibhaga is a part of the law

relating to Daya, which has been translated as ""inheritance"". It is, therefore, not unreasonable to hold that rights flowing from the corporate

ownership of property, which is involved in the concept of joint family and coparcenary property has been connoted by the expression

inheritance"" and ""succession"" which occur in the earlier Government of India Acts, which we have referred to and in the lists in Schedule VII to

the Government of India Act, 1935. The expression ""devolution"" used in item 21 of list II is really a compound of the entries ""wills, intestacy and

succession"" in entry 7 of list III.

Learned Counsel for the Respondents also relied upon item 8 of list III ""transfer of property"" as in a sense there is a transfer of property or

rights in property consequent upon and involved in a partition. For instance, it has been held by this Court in Rasa Goundan v. Arunachala

Goundan (1923) 44 M.L.J. 513, that a partition is a ""transfer"" of property within the meaning of Section 53 of the Transfer of Property Act. A

partition signifies a surrender of a portion of a joint right in exchange for a similar right from the co-sharer: vide Atrabanessa Bibi v. Safatullah Mia

(1915) ILR 43 Cal. 504, 509. 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. A transfer involved in a partition

would, in our judgment, be a ""transfer"" within the scope of the entry No. 8 in list III. We have no hesitation in saying that the subject of partition in

a joint family including an Aliyasanthana Kutumba 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"" already discussed. We, therefore, hold that chapter VI of the Madras

Aliasanthana Act was within the legislative competence of the Provincial Legislature under the Government of India Act, 1935.

We are not inclined to attach much importance to the alteration in the language of the lists in Schedule VII as compared to item 16 of the

Central subject under the Devolution Rules. Our discussion of the topic clearly demonstrates that ""status"" was not thought of as the head of

Legislative power to enact laws in relation to joint families and Mr. Nambiar is not right in his contention in that regard. It is possible that the

expression ""Civil Rights"" which occurred in item 16 of the Central list under the Devolution Rules was omitted by the draftsmen of the Government

of India Act, 1935, either because it was unnecessary having regard to the other entries which exhaustively defined that type of right or because it

was thought that such a residuary general subject might conflict with their other allocation of powers and might result in overlapping. Anyway, as

the language of the entries in the list are, in our opinion, sufficient to sustain the legislation, it is unnecessary to enquire whether other terminology

might not have better expressed the intention of the framers.

The next head of argument relates to the attack on the ground that the enactment is intended to have an extraterritorial operation beyond the

limits of the province and that chapter VI is invalid on that account. Mr. Nambiar had to concede that even assuming the existence of this vice of

extra-territoriality, it would not affect the validity of the law, so far as it operates within the territory of the Province, and that the suit for partition in

the present case did not embrace any property beyond the limits of the Province.

One of the questions mooted before the Judicial Committee in Bhairabendra Narayan Deb v. Debendra Narayan Ray ILR (1942) 2 : Cal. 349

(P.C.), was whether the Bijni Succession Act, passed by the Provincial Legislature of Assam, was invalid on the ground that it would have effect

outside Assam. Some of the properties pertaining to Bijni Raj were situated outside Assam, The question was whether by reason of the preamble

and the operative portion of the Act applying to the entirety of the properties of the Raj, the whole enactment was invalid. Their Lordships held, on

a construction of the Act, that the expression ""estate"" in the enactment was not intended to apply to land in other provinces. 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 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.

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.

The last point that was urged against the validity of chapter VI was, that it offended Articles 14, 19 and 31 of the Constitution and, therefore,

the entire chapter ought to be struck down under Article 13. Though Mr. Nambiar started by referring to Article 19 also as among the articles

which the impugned enactment violated, he recognised early in his argument that as the complaint in the present case was not that the challenged

Act imposed any restraint on the holding of property which could be characterised as unreasonable, the case must rest on the argument regarding

the violation of Articles 14 and 31 alone and, therefore, he confined his submissions to these two articles.

To appreciate the contentions raised on this part of the case it would be necessary to set out the three sections which constitute chapter VI and

contain the law relating to partition in an Aliyasanthana family as enacted by the impugned Act:

(1) Any kavarn represented by the majority of its major members may claim to take its share of all the properties of the kutumba over which

the kutumba has power of disposal and separate from the kutumba:

Provided that--

(i) where a kavaru consists of only two persons, such a claim may be made by either of them;

(i) no kavaru shall make such a claim during the lifetime of any ancestors common to such kavaru and to any other kavaru or kavarus of the

kutumba who has not completed fifty years of age, unless--

(a) she has signified her consent in writing, or

(b) two-thirds of the major members of the kavaru join in making the claim for partition;

(iii) the common ancestress may on her own volition claim a partition.

(2) The share obtained by the kavaru shall be taken by it with all the incidents of kutumba property.

Explanation.--For the purposes of this Chapter--

(a) A male member of a kutumba, or a female member thereof who has no living descendant in the female line, shall be deemed to be a kavaru if

he or she has no living female ascendant who is a member of the kutumba;

(b) such male member, or such female member if she has completed the age of fifty years, shall be deemed to be a nissanthathi kavaru.

(1) Any kavaru entitled to partition u/s 35 shall be allotted a share of the kutumba properties in accordance with the provisions of Sub-section

2.

(2)(a) If, on the date on which a partition is claimed, any of the members of the kutumba who are nearest in degree to their common ancestress is

removed four 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 division thereof were made

among the Kavarus per stirpes.

(b) In other cases, the division shall be effected in the following manner:

(i) In one-half 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 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 Clause (a)(ii) or (b)(ii), the common ancestress if alive shall be entitled to the same share as a child of hers.

(d) Where the kavaru seeking a partition is not a main kavaru of the kutumba, the share of the main kavaru shall first be ascertained in accordance

with the provisions of the foregoing clauses, and the share so ascertained shall thereafter be divided and subdivided according to the provisions of

Clause (b) until the kavaru seeking partition is reached.

(e) The provisions of Clauses (a) to (d) shall apply only to partitions claimed before the expiry of a period of fifteen years from the commencement

of this Act.

(f) In a partition of a kutumba claimed after the expiry of the period aforesaid, a kavaru shall be allotted such share as would fall to it if a division of

the kutumba properties were made per stirpes among all the kavarus.

(g) In a partition under Clause (f), where the kavaru seeking partition is not a main kavaru of the kutumba, the share of the main kavaru shall first

be ascertained in accordance with that clause and the share so ascertained shall thereafter be divided and sub-divided in the same manner until the

kavaru seeking partition is reached.

(h) The share of a kavaru at a partition shall be ascertained as on the date on which it makes a claim for partition.

Explanation.--For the purposes of this sub-section, the date on which a partition is claimed shall be--

(a) where the claim is made by a suit for partition, the date of the institution of the suit (whether the suit is prosecuted or not); and

(b) where the claim is made otherwise than by a suit, the date on which such a claim is made.

(3) If, at the time of the partition, any kavaru taking a share is a nissanthathi kavaru, it shall have only a life-interest in the properties allotted to it, if

the kutumba from which it separates has at least one female member who has not completed the age of fifty years, or where the kutumba breaks

up into a number of kavarus at the partition, if at least one of such kavarus is a santhathi kavaru and if there is no such female member or santhathi

kavaru, the kavaru shall have an absolute interest in the properties allotted to it.

(4) In the case referred to in Sub-section (3), the life-interest of the nissanthathi kavaru in the properties allotted to it at the partition shall become

absolute, if the kutumba concerned ceases to have among its members a female who has not completed the age of fifty years or if all the kavarus

into which the kutumba 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.

The provisions of this Chapter shall apply to every kavaru possessing separate properties as if it were a kutumba.

The expression ""kutumba"" is defined in Section 3 to mean

the group of persons forming a joint family with community of property governed by the Aliyasanthana Law of Inheritance;

and ""kavaru"" is defined

when used in relation to a female as meaning the group of persons consisting of that female, her children and all her descendants in the female line"",

while ""when used in relation to a male it meant the kavaru of the mother of that male.

Santhathi kavaru is defined as meaning

a kavaru of which at least one member is a female who has not completed the age of fifty years,

while by nissanthathi kavaru is meant

a kavaru which is not a santhathi kavaru

(vide: Sections 3(f) and (h)).

The argument as presented on this head was on these lines: the impugned enactment has effected radical changes in the property rights of the

members of an Aliyasanthana family. In order to judge of the validity of these changes and to see whether these are in accordance with the

constitutional guarantees regarding property rights, one must first examine the law as it stood prior to the enactment and ascertain the quantum and

nature of the rights which inhered in any particular member of the family at that date. The next step would be to determine whether any changes

had been introduced as regards the quantum and nature of these rights, and if as a result of such enquiry it were found that any member had been

adversely affected by the enactment, to that extent it should be held that there is ""deprivation"" of property and as admittedly no compensation has

been provided for such ""deprivation"" the statute should be pronounced void as offending Article 31 of the Constitution. This is how Article 31 is

sought to be invoked. It is further urged that assuming the changes in the law are otherwise in order, persons and groups who stand in identically

the same position have been dealt with differently and unequally by Sections 35 and 36 of the Act without any rational or reasonable justification

therefor, and this, it is urged, violates the equal protection of the laws guaranteed by Article 14.

We shall first consider the argument regarding chapter VI violating Article 31 of the Constitution. The Aliyasanthana Act IX of 1949, though a

pre-Constitution law is not, it is true, saved from the operation of Article 31(2) (vide: Clause 5 of Article 31) because it was enacted not more than

eighteen months before 26th January 1950, and it was not submitted to the President for certification under Clause 6 of that article. 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 Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, (second Sholapur case)

and The State of West Bengal Vs. Subodh Gopal Bose and Others, (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). 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 page 696, in the Sholapur case:

...all forms of deprivation of property by the State without payment of compensation have been included within the ambit of the exception clause,

while other forms of deprivation of property which are outside the ambit of the exception clause are inevitably within the mischief of Clause 2 of the

article. From the language employed in the different sub-clauses of Article 31 it is difficult to escape the conclusion that the words ""acquisition"" and

taking possession"" used in Article 31(2) have the same meaning as the word ""deprivation"" in Article 31(1).

And at page 701 in the same judgment:

The next contention of the learned Counsel that the word ""acquisition"" in Article 31(2) means the acquisition of title by the State and that unless the

State becomes vested with the property there can be no acquisition within the meaning of the clause and that the expression ""taking possession

connoted the idea of requisition cannot be sustained and does not, to my mind, affect the decision of the case. As above pointed, both these

expressions used in Clause 2 convey the same meaning that is conveyed in Clause 1 by the expression ""deprivation"". As I read Article 31, it gives

complete protection to private property as against executive action, no matter by what process a person is deprived of possession of it. In other

words, the Constitution declares that no person shall be deprived of possession of private property without payment of compensation and that too

under the authority of law, provided there was a public purpose behind that law. It is immaterial to the person who is deprived of property as to

what use the State makes of his property or what title it acquires in it. The protection is against loss of property to the owner and there is no

protection given to the State by the Article. It has no fundamental right as against the individual citizen. Article 31 states the limitation on the power

of the State in the field of taking property and those limitations are in the interests of the person sought to be deprived of his property. The question

whether acquisiton has a larger concept than is conveyed by the expression ""taking possession"" is really of academic interest in view of the

comprehensive phraseology employed by Clause (2) of Article 31.

Reference was also made to a passage in the judgment of Bose, J., at page 733, where his Lordship said:

Next, have these interests been ""taken possession of"" 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 Clause 1. In my opinion, the possession and acquisition

referred to in Clause 2 mean the sort of ""possession"" and ""acquisition"" that amounts to ""deprivation"" within the meaning of Clause 1. No hard and

fast rule can he laid down. Each case must depend on its own facts. But if there is substantial deprivation, then Clause 2 is, in my judgment,

attracted. By substantial deprivation I mean the sort of deprivation that substantially robs a man of those 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.

Referring to the West Bengal case, Mr. Nambiar invited our attention to what the learned Chief Justice of the Supreme Court said at page 611:

...the additional words ''taking possession of'' or ''requisitioning'' are used in Article 31(2) ...not in contradistinction with, but in amplification of the

term ''acquisition'' so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued

existence of the property after it is acquired.... It is, however, unnecessary here to express any concluded opinion on the precise scope and the

meaning of the expression ''shall be taken possession of or acquired'' in Clause 2 except to say that it does not admit of being construed in the

same wide sense as the word ''taken'' used in the Fifth Amendment of the American Constitution, but implies such an appropriation of property or

abridgement of the incidents of its ownership as would amount to a deprivation of the owner.

And to a passage lower down at page 618,

Under the Constitution of India, however, such questions most be determined with reference to the expression ''taken possession of or acquired''

as interpreted above, namely, that it must be read along with the word ''deprived'' in Clause 1 and understood as having reference to such

substantial abridgement of the rights of ownership as would amount to deprivation of the owner of his property. No cut and dried test can be

formulated as to whether in a given case the owner is ''deprived'' of his property within the meaning of Article 31; each case must be decided as it

arises on its own facts. Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation within the

meaning of Article 31, if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and

enjoyment by him, or materially reduced its value.

But this statement of the law has to be understood in the light of the principles formulated and explained at page 144 of the report where

dealing with the particular case before the Court, the learned Chief Justice said:

A comparison of the scope and effect of the old Section 37 which is substituted in its place by Section 4 of the Amending Act and which Section 7

shows to be clearly retrospective, discloses that, although the right of a purchaser to annul under-tenures and evict under-tenants is curtailed by the

new Section 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 amounts to a deprivation of his property within the meaning of Article 31(1) and (2).

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 acquisition of property or interests in property by the State, but should be held to cover cases also of substantial deprivation of property even

where there is no corresponding accession of rights to the State. In the light of the principles established by these decisions we shall have to

consider: (a) whether the adjustment of or variation in the rights of co-proprietors consequent on a partition constitutes a deprivation so as to

amount to a ""taking"" within Article 31(2); and (b) whether the deprivation, if any is substantial so as to offend the guarantee conferred by the

article. To these questions we shall advert after dealing with the exact degree of variation in the rights of the members of an Aliyasanthana family

effected by the impugned enactment.

The argument of Mr. Nambiar was that an Aliyasauthana kutumba was like a Mitakshara joint family, a quasi-corporation with, however, two

points of fundamental difference from it: (i) whereas in the Mitakshara family it is the male members who were recognised as the sole corporators

and stocks of descent, in an Aliyasanthana kutumba it was the female members that formed the stock of descent, and (ii) as contrasted with a

Mitakshara family, no member of an Aliyasauthana kutumba had a right to demand partition, though partition could be brought about by consent

among the members of the family. Till division the affairs of the kutumba were managed by the eldest of its members, male or female, and not by

the elder male alone, though as regards the power of the manager there was similarity to the kartha in a Mitakshara family.

It was urged that before the passing of the impugned enactment, the decisions of this Court had crystallised the rights of the members of an

Aliyasanthana (family quoad) the kutumba properties, and the resultant position was (i) the eldest member of the family, male or female, had a right

to be in management and administration of the family properties and regulate its internal economy; (ii) all the members of the family were co-

proprietors of the family assets but no member of the family nor any majority of members was entitled to enforce a right to partition against the

wishes cf the other members; (iii) as incidental to this co-proprietorship and equal rights in family property (a) all the members of the family were

entitled to be maintained out of the family income; (b) as 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 larger 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

iu which the quantum of maintenance 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 of turn.

If this were the position before the enactment, the first change introduced by the Act was to enable partitions to be effected against the will of

the ejaman and if the jointness of the family was disrupted, it necessarily resulted in the elimination of the ejaman from the managership of the family

properties. The argument was that the right to manage the assets of the family and regulate its internal economy was a right of property analogous

to that of the head of a mutt whose light to manage the properties of the mutt was recognised by the Supreme Court in the The Commissioner,

Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., , as a right ""to hold property"" protected by

Article 19(1)(f) against the imposition by law of unreasonable restrictions. The submission was that though no doubt this right of the ejaman would

under the law even prior to the enactment have lasted only so long as the family remained joint, yet since no individual member or a group or even

a majority of members had a right to demand partition or claim a division, the joint status of the family, and therefore, the right of management by

the ejaman would never have been broken and the ejaman could not have been deprived of this right of management except with his consent. He

could have been removed for misconduct but for the consideration of the present question, this is wholly irrelevant. The Act, however, has made a

change in that it has conferred a right on a majority of the members of any kavaru to demand partition of the kutumba properties and for the

separation of the share of the property attributable to the kavaru and this has been done without providing for any compensation for the deprivation

of the manager''s right. This, it is urged, is violative of the right to property guaranteed by Article 31.

We shall deal with the contention that the termination of jointuess brought about by the recognition of the right to partition constitutes a

deprivation of the manager''s right to property after setting out the other matters which are urged also as contravening this constitutional guarantee

under Article 31.

The next point pressed upon us relates to the deprivation said to have been suffered by individual members of the family who before the

enactment were each one entitled to the same and equal degree of interest in the family properties but who under the impugned law were entitled to

larger 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

Section 36 failing to provide for a pure per capita division and partition being effected under the Act.

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 Maradevi v. Pammakka (1911) ILR 36 Mad. 203 at 205, at page 205:

According to the Aliyasanthana system which is very similar in its incidents to the Marumakathayam Law...as 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.

The income belongs to all, and all are entitled to participate in the benefit of it.... The right to maintenance is an individual right.... It has been held

that a suit for maintenance by a junior member of a Marumakkathayam or Aliyasanthana family is one that falls under Article 127 of the Limitation

Act--a suit to enforce the right to share in joint family property--Achutan Nair v. Kunjunni Nair (1903) 13 M.L.J. 499. ...In other words the right

to maintenance in a Malabar tarwad is the mode in which the right of ownership is enforced.

Reference was also made to the decision in Ammani Amma v. Padmanabha Menon (1918) ILR 41 Mad. 1075, where dealing with a

Marumakka-thayam tarwad, it was held that it was the right of every member to be maintained out of the tarwad properties as the same was

based on his or her right as co-proprietor and that consequently separate maintenance could not be denied to any member except where the

tarwad was not in a position to make a separate allowance. For this branch of the argument considerable stress was laid on Seshappa Shetty v.

Devaraja Shetty (1925) ILR 49 Mad. 407--an Aliyasanthana case--where the question for decision related to the right of a junior member to be

married at the family expense, a position which was affirmed. In the course of the judgment the learned Judges observed:

The Aliyasanthana system is very similar in its incidents to the Marumakkathayam Law.... Large and absolute though his powers be over the

administration of the tarwad property and its funds, the regulation of the tarwad''s internal economy, and the protection, control and supervision of

the junior members, it should never be forgotten that the tarwad property in his possession is not exclusively his own, but he owns it along with the

other members only as a co-proprietor.... The right of ownership is of overwhelming importance to the junior members, as it clothes them with very

valuable rights which they can enforce aganst the karnavan. The status of a member of a Malabar tarwad carries with it four distinct rights, viz., (i)

a right to be maintained by the karnavan, (ii) a right to see that the tarwad property is not alienated otherwise than in accordance with law, (iii) a

right to become tarwad karnavan, when he becomes the senior male member, and (iv) a right to a share if a partition were made and tarwad

broken up by common consent.... To these might be added another right, viz., a right 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 effecively enforced by the junior members.

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.

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 individuals 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. 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 to exigencies of employment or profession, the

members of the family had to leave the family house, questions arose whether they would be entitled to be maintained at the family expense and the

later decisions were to the effect that if a member of the family went out of the family house for a proper purpose he would be entitled to receive

his share of maintenance. There was a further extension of this principle that the members were permitted to draw their maintenance allowance

wherever they lived and whatever be the reason why they remained outside the family house. All these changes were effected by judge-made law

which followed somewhat tardily in the wake of the consciousness of the community. The position was thus summarised in Maradevi v. Pammakka

(1911) ILR 36 Mad. 203, (sic), to which we have already referred:

The law regulating the right of junior members to maintenance has been gradually developed in the decisions of this Court, and it is necessary to

state the position in which it now stands. In the earlier cases it was sometimes stated that the right of a member is only to be maintained in the

family house, and that he has no right to maintenance if he resided elsewhere. But it will be observed that in some of these cases at least this

statement was made in denial of the right of any member to enforce the payment to him separately of a proportionate share of the income. Such a

claim was regarded as an indirect attempt to enforce a right to partition which no member of a Marumakkathayam tarwad possesses. In Appeal

No. 275 of 1858, etc., such a claim to an aliquot part of the family income was negatived by Holloway, J. ...The statement that a definite share of

the income cannot be claimed by a junior member is no doubt coupled, in one of these cases, Appeal No. 275 of 1858, with the statement that

''the junior members are not entitled to be supported out of the family house from the family property.'' But it is doubtful whether that learned Judge

intended to lay down any such rigorous rule, for in another case where also a proportionate share of the income was claimed by some junior

members of a family, after negativing such a right, he abstained from decisively laying down that no member had right to be maintained out of the

family house. (See Moore, page 125.)

Again on the quantum of maintenance to be allowed to the members, several decisions have drawn 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 Pammakka''s case itself (1911) ILR 36

Mad. 203, 207, the District Munsif had allotted an aliquot share of the net 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 Munsif was certainly wrong in dividing the total income of the property into as many shares as there are members and in awarding a

15/40ths share to the Plaintiffs on the principle of an equal share to each member.

The appeal was, therefore, remanded for fresh disposal. It is worthy of note that in the case of the very family concerned in Original Suit No. 182

of 1952, which has given rise to Reference 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 applied

logically and literally to determine the rights of the several members even while in a state of non-division.

In the next place, even if it were established that each member of the family was entitled to the same amount by way of maintenance as every

other, it does not follow that a partition when it takes place should be on a per capita basis. No decision has laid this down as the rule under the

Aliyasanthana Law. In fact the position appears to have been the other way at least so far as the earlier ones are concerned. Sundara Ayyar in his

Malabar and Aliyasanthana Law says at page 10:

In 1810, the Provincial Court of Western Division seems to have held: ''If partition is made it must be per stripes and not per capita.'' (See

Moore''s Malabar Law, page 12.) Mr Strange in his Manual on Hindu Law, page 389, says the same thing. (See also Grady''s Hindu Law, page

310.) In practice, the division is generally by branches. In Timma v. Daramma (an Aliyasanthana case) (1887) ILR 10 Mad. 362 and Madhavi

Amma v. Kunhuni Menon (1893) 4 M.L.J. 43, both cases of succession, it is assumed that division is to be per stripes. Dr. Pandaiai in his

monograph on Succession and Partition, at page 147, refers to a case in Travancore in which the point directly arose and was so decided. A

number of other rulings are also referred to by him in which stirprtal division was recognized as the rule. In a recent Privy Council case stirpital

division is taken as the normal mode of division.

The learned author continues:

It must also he conceded that equal right of enjoyment does not necessarily connote equality of interest.... Before the decision Munda Chetti v.

Timmaju Hensu (sic), which put an end to suits for partition under Aliyasanthana system, the practice seems to have been to allot a life-interest to

males and females with possibility of issue extinct and to divide the property among the females. In Narainikutti Amma v. Achuthankutti Nair (sic),

it is laid down that partition cannot be set aside on the ground that the division is stirpital. In that very case, however, it will be noticed that a part of

the property had been divided per capita and no objection was taken to it. Having regard to the state of authorties the only safe position that can

be taken is that there is no definite rule either way and a division on either basis or a combination of both will not be set aside merely on that

ground.

The entire argument in regard to this point really rests on two propositions: i. That except in regard to certain stated matters, the

Marumakkathayam and the Aliyasanthana systems are identical and that the rule as to the mode of division is not one of those exceptional matters,

and ii. it is the settled rule under the Marumakkathayam Law that the division is per capita. So far as the first proposition is concerned, the main

reliance is on a passage at page 246 of Sun-dara Ayyar''s Malabar and Aliyasanthana Law where the learned author enumerates the points of

distinction between the Marumakkathayam and Aliyasanthana systems and points out that the two systems are identical, 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.

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 second premise also is not in our opinion fully made out. The main reliance in this respect is on a decision of this Court in Sreedevi v.

Peruvunni Nair (1934) ILR 58 Mad. 36. The parties were governed by the Marumakkathayam Law and the contest raised in the case related to

whether the division should be per capita as urged by the Defendants. The District Munsif held that the division should be per stirpes. This was set

aside by the learned Subordinate Judge on appeal who held in favour of the per capita view. On second appeal to this Court, Curgenven, J.,

restored the decree of the District Munsif and there was a Letters Patent Appeal filed against the decision of Curgenven, J., and this decision was

reversed, Madhavan Nair and Anantakrishna Ayyar, JJ., holding that the preponderance of authority in this Court was in favour of the per capita

rule. The wide divergence of opinion among the Judges who had to consider this case at least shows that the point is not free from doubt. We are

not now sitting in appeal over the decision of this Court in Sreedevi v. Peruvunni Nair (1934) ILR 58 Mad. 36 But it would be sufficient to say that

on the basis of this decision we are not convinced that a partition on any other basis than per capita would be a deprivation of the right of property

vested in the members within the meaning of Article 31.

Before concluding, it is only necessary to add two observations. The entire argument seeks to correlate equality between individual members in

the right to maintenance with a right to allotment of an equal amount of property to him or her in a division. This, however, does not logically or

necessarily follow. For instance in a Mitakshara joint family there is equality among the members in the matter of maintenance. When, however, a

division takes place, it is on a stirpital basis. No doubt the recognition of a right of representation may account for this feature. But this should at

least show that there is no necessary inconsistency between equal rights to maintenance and a stirpital division on a break-up. The second point is

that ever since Munda Chetty''s case (1863) 1 M.H.C.R. 380, in 1863, no compulsory partition through Courts has been possible in an

Aliyasanthana family. We have, therefore, nothing on the basis of which it could be said that only a per capita division gives effect to the real rights

of the parties and not a stirpital or a mixture of per capita and stirpital division.

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. 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. 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 31 of the Constitution. It is but a right exercised on behalf of others and by reason of the necessity to have a single person to

manage where there are multiplicity of co-proprietors. It must be deemed to be based on a theory of implied consent on the part of the other

members. If it is competent to the Legislature to pass a law enabling the individual members to assert their rights to possession of what is in reality

their property, we do not see how there is any deprivation of any right of property in the ejaman or manager. Moreover, even if one could

conceive of this right of management as being in the nature of property, we are clearly of the view that an enactment enabling a change in the

manner of enjoyment with a resultant termination of the managership is not a substantial deprivation so as to conflict with the constitutional

guarantee embodied in Article 31(2) of the Constitution.

There is one further reason for holding that neither the termination of the managership, nor the provision for the mode of division prescribed by

Section 36 of the Act is in violation of the Constitution. The Madras Aliyasanthana Act, 1949, is in line with the series of the previous enactments

like the Nambudri Act, the Marumakkathayam Act, 1933, the Malabar Marriage Act, the Mopila Marumakkathayam Act, etc., by which the

harshness or inconvenience of ancient customs which fettered the lives of the community by reason of the conservatism of the Courts were

alleviated. These enactments were passed in response to the changes in the consciousness of the community and the insistent demands made by its

members for a more equitable system of law than had been recognized and enforced by the Courts. Particularly in regard to the Aliyasanthana

enactment, it arose out of the general dissatisfaction expressed by the members of the community as regards their customary law regarding

marriage, inheritance and partition. The important features of this system as laid down and enforced by the Courts were impartibility, descent in the

line of females and non-recognition of marriage as a legal institution, in all of which matters Judge-made-law in respect of both Marumakkathayam

and Aliyasanthana systems were completely identical. When the Marumakkathayam Bill was introduced into the Madras Assembly in 1932,

persons belonging to the Aliyasanthana system were included within the scope of that bill. The conservative sections of the Aliyasanthana

community objected to this inclusion on the ground that it constituted much too great a departure from the prevailing customs. The result of this

agitation was that the followers of the Aliyasanthana system were excluded from the scope of the bill by the definition which was introduced into

Section 3(e) of the Marumakkathayam Act. ""Marumakkathayam"" was defined 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. 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 Legislature 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 end his natural affection

towards his own wife and children. Naturally he prefers the interests of his own wife and children to the interests of his sisters and their children.

The case becomes worse when he becomes the manager of a big family consisting of several branches. He finds it difficult to hold the scales even

between these several branches. Naturally he becomes partial to the members of his own branch. Family lands are neglected and family funds are

unjustly appropriated for the benefit of his own wife and children. The Aliyasanthana family manager or ejaman as he is called spends money on the

education of his children and not on the education of the children of his sisters.

...When distant relatives removed from each other by several degrees are huddled together in the same joint family house, home-life in the best

sense of the word becomes impossible. The different branches of the family quarrel and fight among themselves and often criminal proceedings are

being instituted against each other. Junior members of the family file maintenance suits against the ejaman and very often they seek to depose him.

Voluntary division of family properties takes place in some cases but very often it is effected only after much ruinous litigation and creation of bad

blood. The unnaturalness of this system has been often dealt upon in judicial pronouncements. Travancore and Cochin have many years ago

passed legislation for effecting reforms in this system.

It was in these circumstances that this enactment was passed.

Before the establishment of Courts by the British Indian Government, the customary law in this country contained in itself the mechanism of

change reflecting the principle of growth. Changing situations led to changes in customs, and variations in the law and practice were effected to

keep pace with such changes. It was only the establishment of Courts by the British Government with the principle of stare decis that arrested this

process of natural growth, slow though it might be. To take an instance from the Aliyasanthana law itself, it would be noticed that in the early years

of the administration of justice in the State, the right of partition among the members was recognised and in several cases the Courts decreed suits

for partition on the footing that this was in conformity with the custom. But all these earlier decisions were overruled by this Court in Munda

Chetty''s Case (1863) 1 M.H.C.R. 380, 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. 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. When with increasing and rapid facilities in communications, members of such families got dispersed all over

the county 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. In our opinion, to characterise a legislation which seeks to bring about division between the

members in such circumstances as deprivation of property would be a clear misuse of language.

We have up to now proceeded on the footing that Article 31 of the Constitution would cover cases of adjustment of rights among the members

of a family, the article being so interpreted that to effect any change whereby the rights of any member would be affected would amount to a

deprivation of the right of property guaranteed by the Constitution, and have endeavoured to pursue the question as to whether such a deprivation

would be substantial. There is, however, another aspect from which the problem might be viewed. The argument of Mr. Nambiar when finally

analysed comes to this: Here is a manager of a family who had a right to manage the family property. No doubt other members of the family are

co-proprietors along with him but under the law as laid down by the Courts, the family was indivisible so that the manager could not be ousted

except with his consent or except on proof of his misconduct. This right of management is a right of property of which the ejaman cannot be

deprived without compensation, because under the law before the Act the Court would refuse to allow a partition, though in other systems of law a

right to partition and separate possession is deemed an incident of the right of co-proprietorship vested in each individual member and custom, as

understood by the Courts, deprived these co-proprietors of a necessary incident of co-proprietorship. This state of affairs might have become

intolerable, and if a change has to be effected, it can only be by legislation. But if such a change were effected and the rights of parties readjusted

departing in any manner from the pattern as determined by judicial decisions, it can only be effected after the payment of adequate compensation

to the manager--of course at the cost of the general tax-payer. The other part of the argument is that each individual member had under the law an

equal right to maintenance along with the others. Therefore, if a division were effected on that basis he would get some particular fraction of the

family property. But under the Act, the scheme of division adopted u/s 36 is a mixture of the stirpital and per capita principles. In particular cases

this 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. 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 recognized by the law and by the community, 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. 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 recognition of the individual as distinct from the membership of his family. The Constitution has been designed

as an instrument of progress and not to petrify the law and prevent all social change except on terms of the general tax-payer having to pay

adequate compensation for the so-called deprivation of property. The acceptance of the argument would mean that the dead hand of the past in

the form of outworn customs and inconvenient modes of life or of holding property has been endowed, so to speak, with perpetual life and that the

particular group or community has to bear the burden of this old man of the sea on pain of the general tax-payer having to pay the price for its

liberation. On this analogy, a law providing for maintenance for a married woman or for a widow would, if it were not the law before the

Constitution, be violative of Article 31 unless the general tax-payer was asked to pay the maintenance which was claimed against any individual.

We refuse to regard Article 31 as a barrier against progress of the readjustment of rights or against the scrapping up of outworn customs. We are

clearly of the opinion that this legislation is in the language of American Constitutional Law an exercise of Police power--a power to regulate and

determine the internal relationships that should subsist between the members of the family and one passed to secure the contentment and well being

of the community. What is involved in this legislation is not any eminent domain, any ""taking"" or ""acquisition"" of property to public use however

widely the phrase ""taking"" is understood, but rather the exercise of the power ""to make, ordain and establish all manner of wholesome and

reasonable laws, statutes and ordinances, which the Legislature shall judge to be for the good and welfare of the State and of its subjects""--per

Shaw, C.J., in Commonwealth v. Alger 7 Cushing 53. In our judgment the deprivation of property referred to in Article 31 has nothing to do with

the so-called impairment of rights involved in a partition or with the allotment of shares to the divided groups.

The next head of argument is that chapter VI offends against Article 14 of the Constitution. Before dealing with this, we might as well set out

the manner in which the question should be approached. In this connection the following passage from the judgment of Van Devanter in the

Supreme Court of United States of America in Lindsley v. Natural Carbonic Gas Co. (1910) 55 L ed. 369, which has been quoted with approval

by our Supreme Court in Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, , 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 hut 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 facts at the time the law was enacted must be assumed. One who assails the

classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.

Applying these tests, we shall examine those provisions which are said to involve an unequal protection of the law.

The first item that is referred to is that Section 35(1) of the Act singles out the kavaru as a unit which might effect a division of the kutumba

properties, though individual members who are co-proprietors of the family properties are not given any such right. As we have had occasion to

point out before, the kavaru was not a creation of the Legislature but was a unit recognised by custom. The framers of the Act did not desire to go

the whole hog and give effect to the rights of individuals as such. They stopped short of this and conferred rights on the natural unit which the

community itself recognised. There is no gainsaying that kavarus are more closely knit than kutumbas--there is close relationship between the

members of the kavaru. We do not see, therefore, any justification for regarding this treatment of the kavaru as anything unreasonable.

It is next said that proviso (ii) to Section 35(1) under which a kavaru cannot make such a claim to partition during the lifetime of an ancestress

common to such kavaru and to any other kavaru or kavarus who has not completed fifty years of age without the consent of such ancestress is

discriminatory in favour of such common ancestress. This argument does not appeal to us because the position of the common ancestress is one

which has been recognised by the community and the limit of fifty years has been put in to indicate that the common ancestress is past the child-

bearing age as to preclude additions to the family. The third point of attack is the distinction between a santhathi kavaru and nissanthathi kavaru.

But this is forgetting that this distinction was not invented by the Act but only made provision for the two sets of cases, the distinction between them

being that in the case of a nissanthathi kavaru there is no chance of any expansion of that kavaru.

Referring to the shares allotted to the several kavarus under the provisions of Section 36, it is argued that the distinction drawn in Sections

36(2)(a) and (2)(b) by which the mode of division is made dependent 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. 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 and 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. Several private members and also public men drafted several Bills. In 1939, the

Aliyasanthanam 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 support of the principal Aliyasanthana

communities in the district, namely, the Bunts, the Jains, the Mogaveeras and the Billavas. The Bill sponsored by the Government in 1948 was on

the same lines as that which had been drafted by this Peoples'' Committee. A Select Committee to consider this Bill was constituted of members

from Malabar. At its first meeting it decided to call for the opinions of persons interested in the Bill by a notification in the Press and they met in

South Kanara and took oral evidence of persons who appeared before them. It was in the light of the opinions expressed before them that this

Joint Select Committee amended the Bill by providing for the shares at a partition in the manner in which it is now found there. In these

circumstances, we do not see how the provisions of the enactment could be challenged as unreasonable or irrational and as violative of the equal

protection of the laws guaranteed by Article 14.

We shall, however, out of regard to the Counsel who argued the case elaborately, set out the particular provisions which he contended were

not based on any reasonable classification. First it was stated that the difference between the four degrees and below introduced by Sub-section

2(a) and (b) was not reasonable. That nearness of relationship is the criterion that could be taken into account in these matters cannot be disputed.

In the light of this we fail to see how the fixation of the point at four degrees can be said to be arbitrary. Next it is urged that there is no logical or

reasonable basis for the distinction between the provisions in Sub-section 2(a) and (b) on the one hand and Sub-section 2(e) and (f) on the other.

The objection is that the period of fifteen years which has been fixed under Clause (e) of Sub-section 2 is arbitrary. The framers of the Act

evidently desired to introduce a general rule which would operate after a particular period. Of course, there is no particular sanctity about this

period of fifteen years; it might have been ten or it might have been twenty. But the Legislature wished to give sufficient time to the members of the

community to avail themselves of the rights, and the period of fifteen years is as reasonable a period of time within which this would be effected as

any other period. We do not, therefore, see any substance in this contention of the learned Counsel.

It is next stated that the distinction drawn between the provision in Sub-sections 3 and 4 of Section 36 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 fifty and a female who is capable of bringing into existence new members. We do not see anything

irrational either in fixing the critical sge at fifty 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-section 4 and that in Sub-section 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 Section 35 or 36 violates Article 14 of the Constitution.

In the result, we are clearly of the opinion that the impugned provisions of the Madras Aliyasanthana Act are valid in their entirety. The records

will be transmitted to the Subordinate Judge of South Kanara who will dispose of the suits in the light of our decision.