In the Supreme Court of India 1960 AIR 1080 Petitioner Kavalappara Kottarathil Kochuni Respondents The State of Madras & ors. Date of Judgement 04.05.1960 Bench Justice B.P. Sinha; C.J., A.K. Sarkar; Justice J.C. Shah; Justice K. Subba Rao; Justice Syed Jaffer Imam
The origin of the sthanam is lost in antiquity. It primarily means dignity and denotes the status of the senior Raja in a Malabar Kovilagom or palace. It is surmised that sthanams were also created by the Rajas by giving certain properties to military chieftains and public officers and also by tarwads creating them and allocating certain properties for their maintenance. Most of the incidents of a sthanam are well settled. Usually, the senior-most male member of the family and occasionally a female member attains a sthanam. Properties are attached to the sthanam for the maintenance of its dignity.
Madras Marumakkathayam Act: In 1932, the Madras Marumakkathayam Act (Mad. Act XXII of 1932) came into force whereunder the members of a Malabar tarwad were given a right to enforce the partition of tarwad properties or to have them registered as impartible.
Judicial and Historical Background:
The legal position of a sthanee is equated to that of a Hindu widow in that he represents the estate for the time being and he can alienate the properties for necessity or the benefit of the estate. Unlike a Hindu widow, the successor to a sthanee is always a life-estate-holder. In that respect, his position is more analogous to an impartible estate-holder. He ceases to have any present interest in the tarwad properties. Like a Hindu widow or an impartible estate-holder, he has an absolute interest in the income of the sthanam properties or acquisitions therefrom. His position is approximated to a member separated from the family and that the members of the tarwad succeed in his acquisitions unless accreted to the estate and he succeeds in the tarwad properties if the tarwad becomes extinct. Questions like what would happen if there is no male heir to a sthanam at any point of time – whether the properties pertaining to the sthanam would escheat to the State or devolve upon the members of the tarwad or whether a subsequent birth of a male heir would revive the sthanam – are raised by SundaraAiyar in his book, but there is a decision of the Madras High Court wherein the case of Punnathoor family a subsequent born male heir was given a decree for the possession of the properties of a sthanam. On the question of whether a sthanam property, not being the property of a member of a tarwad, be blended with the property of the tarwad so as to make it a tarwad property, there is no direct decision. On principle, if the sthanee, on attaining the sthanam is in the position of a separated member of a Hindu family, there may not be any scope for the application of the doctrine of blending. No member of a tarwad has any right to maintenance from out of the sthanam properties and the mere fact that a sthanee for the time being, out of generosity or otherwise, gives maintenance to one or other members of the tarwad cannot legally have the effect of converting the sthanam property into a tarwad property; nor the fact that the sthanam properties are treated as tarwad properties can have such a legal effect
Article 31A of the Madras Marumakkathayam Act was introduced in the Constitution by the Constitution (First Amendment) Act, 1951. As it originally stood, the said Article only provided that no law affecting rights of any proprietor or intermediate holder in any estate shall be void on the ground that it is inconsistent with any of the fundamental rights included in Part III of the Constitution. Art. 31A was enacted by two successive amendments – one in 1951 (First Amendment), and the second in 1955 (Fourth Amendment) – with retrospective effect, in order to save legislation affecting agrarian reforms.
Difference between Marumakkathayam law and Hindu law: Marumakkathayam law governs a large section of people inhabiting the West Coast of South India. Marumakkathayam means descent through sisters’ children. It is a body of custom and usage which have received judicial recognition.There is a fundamental difference between Hindu Law and Marumakkathayam system in that the former is founded on agnatic family and the latter is based on matriarchate. Marumakkathayam family consists of all the descendants of the family line of one common ancestor and is called a tarwadThe joint family in a Marumakkathayam Nayartarwad consists of a mother and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but the tarwad of their consorts. The property belonging to the tarwad is the property of all the males and females that compose it. Its affairs are administered by one of those persons, usually, the eldest male called the karnavan. The individual members are not entitled to enforce partition, but a partition may be affected by common consent.
A division bench of the Madras High Court in ViraRayen v. The Valia Rani of PudiaKovilagom, Calicut I.L.R. (1881) Mad.141 held that according to the custom obtaining in the family of the Zamorin Rajas of Calicut, property acquired by a sthanam-holder and not merged by him in the properties of his sthanam, or otherwise disposed of by him in his lifetime, became, on his death, the property of the kovilagom in which he was born, and, if found in the possession of a member of the kovilagom, belonged presumably to the kovilagom as common property.
The decision in Mahomed v. Krishnan I.L.R. (1888) Mad. 106 dealt with a suit filed by the junior members of a tarwad, which consisted of the three sthanams, against the karnavan and others, including certain persons to whom he had alienated some tarwad property, inter alia, for a declaration that the alienations were invalid as against the tarwad and for possession of the property alienated.
The Judicial Committee in considering some of the aspects of the institution of a sthanam in K. Kochunni v. K. Kuttanunni I.L.R. (1948) Mad. 672, accepted the meaning given to the word “sthanam” by SundaraAiyar in his book on “Malabar and Aliyasanthana Law”, namely, that it is a dignity to which property is attached for its maintenance and the fulfillment of the duties attached to the position, but rejected the contention that the following two circumstances indicated that the sthanam was a tarwad : (1) maintenance was decreed against Moopil Nair to the junior members of the family and that maintenance was being paid to the junior members; and (2) the Court of Wards treated the sthanam property as tarwad property.
Constitutional and Statutory Provisions discussed:
- Madras Marumakkathayam Act (Mad. Act XXII of 1932)
- Articles 13, 19 and 31A of the Constitution, 1950
- The petitioner in Petition No. 443 of 1955 is Kavalappara Kottarathil Kochunni who is the holder of the Kavalapparasthanam to which is attached Kavalappara estate situate in Walluvanad Taluk in South Malabar
.Besides the Rajasthanam, the petitioner held five other sthanams granted by the Raja of Palghat for rendering military services and two other sthanams granted to his ancestors by the Raja of Cochin for rendering similar services. Properties are attached to each of these sthanams. (The petitioner in Petition No. 443 of 1955 is referred to as “the sthanee”). Respondents 2 to 17 are the junior members of the Kavalapparatarwad, and, according to the sthanee, they have no interest in the said properties.
- Respondents 10 to 17, constituted the entire Kavalapparatarwad, filed O.S. No. 46 of 1934 in the court of the Subordinate Judge of Ottapalam for a declaration that all the properties under the management of the sthanee were tarwad properties belonging equally and jointly to the sthanee and the members of the tarwad.
- The Privy Council found that the Kavalappara estate in Walluvanad Taluk was an impartible estate and that nothing had happened to alter the original character of the property in its relation to the members of the family. On that finding, the Privy Council held that respondents 10 to 17 were not entitled to the declaration they sought in that case. All the properties in the possession of the sthanee were declared to be sthanam properties and that the members of the tarwad had no interest therein.
- After the title of the sthanee was established, the Madras Legislature passed the impugned Act in 1955. Under the impugned Act, every sthanam possessing one or other of the three characteristics mentioned therein – it is common cause that the impugned Act applies to the petitioner’s sthanam – shall be deemed and shall be deemed always to have been properties belonging to the tarwad. The sthanee states that the impugned Act is ultra vires the Madras Legislature, void and inoperative, and that the said Act cannot affect the rights of the sthanee or his estate to any extent.
- The first petitioner in Petition No. 40 of 1956 is the wife of the sthanee, who has also been added as respondent 18 to this petition; and petitioners 2 and 3 therein are their daughters. The first respondent to the said petition is the State of Madras and respondents 2 to 17 are the members of the tarwad. On August 3, 1955, the sthanee executed a gift deed in favor of the petitioners in the said petition in respect of properties granted to his predecessor by the Raja of Palghat. This petition raised the same questions as Petition No. 443 of 1955 and seeks for the same reliefs.
- Petition No. 41 of 1956 is filed by RavunniarathRajan Menon, who is the son of the sthanee. The first respondent therein is the State of Madras and respondents 2 to 17 are the members of the tarwad and respondent 18 is the sthanee.
- This petitioner alleges that on August 3, 1955, the sthanee executed a gift deed in his favor in respect of the properties granted to the sthanee’s predecessor by the Raja of Cochin. This petition contains similar allegations as the other two petitions and asks for similar reliefs.
- The constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955, (Madras Act 32 of 1955) (hereinafter referred to as the impugned Act).
- Whether the impugned Act deprives the petitioner of his fundamental right to hold and dispose of property and is not protected by clause (5) of Art. 19 of the Constitution?
- Whether Art. 31(1) excludes the operation of Art. 19(1)(f) of the Constitution?
- Whether the provisions of the impugned Act infringes Art. 19(1)(f) of the Constitution?
Arguments by counsel of petitioners:
- The impugned Act is constitutionally void because it offends against Art. 14 of the Constitution.
- It is also void because it deprives the sthanee of his fundamental right to hold and dispose of property and thereby offends against Art. 19(1)(f) of the Constitution and is not saved by clause (5) of Art. 19. (3) The impugned Act is further bad because it has been made by the Legislature, not in the exercise of its legislative power but exercise of judicial power.
- There is no material on the record based on which we can decide whether the properties of the petitioners are held in janmam right or not.
- Present case the petitioner is not deprived of his property, but his right is only restricted
- No law can impose restrictions retrospectively on fundamental rights[i]
Arguments by counsel of respondents:
- The petitioner’s sthanam is an “estate” within the meaning of Art. 31A of the Constitution and therefore the Act extinguishing or modifying the rights pertaining to the said sthanam cannot be questioned on the ground that it infringes Arts. 14, 19 and 31 of the Constitution; and
- The impugned Act purports to deprive the petitioner of his sthanam properties by the authority of law within the meaning of Art. 31(1) of the Constitution and, as he is legally deprived of his properties, Art. 19(1)(f) of the Constitution has no application, for, it is said, Art. 19(1)(f) presupposes the existence of the petitioner’s title to the sthanam and its properties, and, as he is deprived of his title therein by the impugned Act, he can no longer rely upon his fundamental right under Art. 19(1)(f).
- Gifts of the sthanam properties by the sthanee in favor of the petitioners in the other two petitions were void and that, therefore, they have no fundamental right to enable them to come to this Court under Art. 32 of the Constitution.
- Art. 31A of the Constitution excludes the operation of Art. 13 in the matter of the extinguishment or modification of any rights in an estate, that the impugned legislation either extinguishes or modifies the sthanam right in the janmam property which is an “estate” as defined in the said Article and that, therefore, the impugned Act cannot be challenged on the ground that it infringes Arts. 14, 19 and 31 in Part III of the Constitution.
- . In other words, a person’s fundamental right to acquire, hold, and dispose of property is conditioned by the existence of property and if he is deprived of that property by authority of law under Art. 31(1), his fundamental right under Art. 19(1)(f) disappears with it.[ii]
- In the context of Art. 31, we should apply the construction analogous to that put upon by this Court on the word “law” in Art. 21 of the Constitution[iii]
- 1) After the Constitution (Fourth Amendment) Act, 1955, clause (1) of Art. 31 must be read independently of clause (2) thereof and, of so read, clause (1) must be held to deal with police power. (2) Without such power, the State cannot usher in a welfare State which the Constitution enjoins it to do. (3) The fact that there is no limitation on the power of the legislature to make law depriving a citizen of his property need not deter us from recognizing such power, as we can trust our legislatures and Parliament as the people of Great Britain have trusted their Parliament.
- The law depriving a person of his property – however urgent the need may be and whatever grave danger or serious vice it seeks to avert or suppress – can never be a reasonable restriction on the right to enjoy the property and therefore every such law would be void.
- Article 31A deals with a tenure called “estate” and provides for its acquisition or the extinguishment or modification of the rights of the land-holder or the various subordinate tenure-holders in respect of their rights in relation to the estate.
- The impugned Act does not purport to modify or extinguish any right in an estate. The avowed object of it is only to declare particular sthanams to be Marumakkathayamtarwads and the property pertaining to such sthanams as the property of the said tarwads. It declares particular sthanams to have always been tarwads and their property to have always been tarwad property. The result is that the sole title of the sthanee is not recognized and the members of the tarwad are given rights therein. The impugned Act does not effectuate any agrarian reform and regulate the rights inter se between landlords and tenants.
- Article 13(2) not only declares that all laws in force before the commencement of the Constitution and made thereafter taking away or abridging the said rights would be void to the extent of the contravention but also prohibits the State from making any law taking away or abridging the said rights.
- The law must satisfy two tests before it can be a valid law, namely, (1) that the appropriate legislature has the competency to make the law; and (2) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution. The law depriving a person of his property will be invalid if it infringes on either Art. 19(1)(f) or any other Article of Part III.
- (1) to invoke Art. 19(1), a law shall be made directly infringing that right; (2) Arts. 21 and 22 constitute a self-contained code; and (3) the freedoms in Art. 19 postulate a free man. On the basis of the said theories, this Court, with Fazl Ali, J., dissenting, rejected the plea that a law made under Art. 21 shall not infringe Art. 19(1)
- There is a material difference not only in the phraseology but also in the setting of Article 19-22. Article 31(1), therefore, cannot be construed on the basis of the construction placed upon Art. 21.
- Article 19(1)(f) read with articles 19(5) must likewise presuppose that the person to whom that fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised
- The Constitution declares the fundamental rights of a citizen and lays down that all laws made abridging or taking away such rights shall be void. That is a clear indication that the makers of the Constitution did not think fit to give our Parliament the same powers which the Parliament of England has. While the Constitution contemplates a welfare State, it also provides that it should be brought about by the legislature subject to the limitations imposed on its power. If the makers of the Constitution intended to confer unbridled power on the Parliament to make any law it liked to bring about the welfare State, they would not have provided for the fundamental rights.
- The State is expected to bring about a welfare State within the framework of the Constitution, for it is authorized to impose reasonable restrictions, in the interests of the general public, on the fundamental rights recognized in Art. 19. If the interpretation sought to be placed on Art. 31(1) was accepted, it would compel the importation of the entire doctrine of police power and grafting it in Art. 31(1) or the recognition of arbitrary power in the legislature with the hope or consolation suggested that our Parliament and legislatures may be trusted not to act arbitrarily. The first suggestion is not legally permissible and the second does not stand to reason, for the Constitution thought fit to impose limitations on the power of the legislatures even in the case of lesser infringements of the rights of a citizen.
- A law made depriving a citizen of his property shall be void unless the law so made complies with the provisions of clause (5) of Art. 19 of the Constitution.
- The Act presupposes the existence of a sthanam and its properties. It says that the sthanam and its properties possessing one or more of the characteristics mentioned therein shall be deemed and shall be always deemed to have been a Marumakkathayamtarwad and its properties respectively. The impugned Act applies also to sthanams whose title to properties has been declared by courts of law. Further, the Act is given retrospective operation. It is suggested that the provisions of the Act have not been happily worded and, if properly understood with the help of the preamble, it would be clear that the sthanams were not converted into tarwads but only tarwads which were wrongly claimed to be sthanams were declared to be not sthanams. The preamble of a statute is “a key to the understanding of it” and it is well established that “it may legitimately be consulted to solve any ambiguity, or to alter the multiple meanings of words and/or to keep the effect of the Act within its clarified scope, whenever the enacting part is doubtful.
- In the instant case, the restrictions imposed by the statute are reasonable and between citizens, the individual proprietary rights are ordinarily respected unless a clear case is made out for imposing restrictions thereon. There must, therefore, be harmonious balancing between the fundamental rights declared by Art. 19(1) and the social control permitted by Art. 19(5). It is implicit in the nature of restrictions that no inflexible standard can be laid down: each case must be decided on its facts and the restrictions sought to be imposed shall not be arbitrary but must have a reasonable relation to the object sought to be achieved and shall be in the interests of the general public.
- The Act destroys the finality of decrees of courts establishing the title of janmies to the sthanam properties. It affects the undisputed title of sthanees in sthanam properties, though they may not have obtained decrees in respect thereof. It statutorily confers title retrospectively on the members of the tarwad who had none before. It arbitrarily dislocates the title of particular sthanees in respect of certain sthanam with particular characteristics, which have no relation to the title of the sthanees
- The three tests laid down by the impugned Act to enable the drawing of the statutory fiction are not only not germane but extraneous to the object sought to be achieved.
- The impugned Act is made retrospective so as to make the sthanee liable to arrears of maintenance and past profits. The contention that the impugned Act is nothing more than a readjustment of rights inter se between the members of the tarwad and the sthanee is without substance, for, before the Act, except ties of blood and a right to succeed in a particular contingency the members of the tarwad had no interest in praesenti in the sthanam property nor vice versa. The impugned Act is only a legislative device to take the property of one and vest it in another without compensation, and, therefore, on its face stamped with unreasonableness. In short, the impugned Act is expropriatory in character and is directly hit by Art. 19(1)(f) and is not saved by clause (5) of Art. 19.
Hence, Madras Act 32 of 1955 is void and ultra vires the Constitution and issue a writ of mandamus restraining the State of Kerala from enforcing the provisions of the said Act against the petitioner and his sthanams.
- The definition of “estate” in Art. 31A refers to an existing law relating to land tenures in a particular area indicating thereby that the Article is concerned only with the land tenure described as an “estate”. The inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure-holders.
- Substituting “janmam right” in place of “estate” in clause 2(b), the “rights” in Art. 31A(1)(a) will include the rights of a proprietor and subordinate tenure-holders in respect of a janmam right. It follows that the extinguishment or modification of a right refers to the rights of a proprietor or a subordinate tenure-holder in the janmam right.
- A law may regulate the rights between a janmi and his subordinate tenure-holders; but it may also affect his rights unconnected with the tenure.
- Art. 31, before the amendment, was a self-contained Article providing for a subject different from that dealt with in Art. 19. On that basis it was possible to hold,[iv] on the analogy drawn from Art. 21, when the property therein was requisitioned within the meaning of Art. 31, the operation of Art. 19 was excluded. But there is no scope for drawing such an analogy after the Constitution (Fourth Amendment) Act, 1955, as thereafter they dealt with two different subjects: Art. 31(2) and (2A) with acquisition and requisition and Art. 31(1) with deprivation of property by authority of law
- “Police power”, as it is understood in American Law, can never be an arbitrary power[v] and the law made can be sustained only if it imposes reasonable restrictions in the interest of the general public
- A law depriving a citizen of his fundamental right to property may amount to a reasonable restriction[vi]
- The impugned Act in the guise of applying certain tests seeks to convert certain sthanams into tarwards and their properties into tarwad properties. It applies equally to sthanams governed by decrees of courts and sthanams whose character and title to the properties can be established by clear evidence and to sthanams whose title is admitted.
- The word “otherwise” in the context of part two of the act, must be construed by applying the rule of ejusdem generis. This phrase gives a rule which is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified.
The Supreme Court's decision, in this case, marks an important addition to the jurisprudence of Marumakkathayam Law in India. It laid down proper definitions of the terminology used in the act and removed certain misapprehensions evident in the decisions of courts. However, the supreme court has only delineated the most important fractures in this law and is prone to ambiguity owing to the secular state of the Constitution.
“The views of the authors are personal“
[i] Punjab Province v. Daulat Singh MANU/FE/0006/1946 : (1946) F.C.R. 1.
[ii] The State of Bombay v. BhanjiMunji MANU/SC/0034/1954 : 1SCR777.
[iii] A. K. Gopalan v. The State of Madras MANU/SC/0012/1950: 1950CriLJ1383.
[iv] The State of Bombay v. BhanjiMunji MANU/SC/0034/1954 : 1SCR777.
[v]Willis on Constitutional Law, Constitution of the United States of America.
[vi] In Narendra Kumar v. The Union of India MANU/SC/0013/1959 : 2SCR375.