9911796707
TMI Blog1960 (5) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... estion raised by the respondents and the judgment thereon was delivered on March 4, 1959. This Court rejected the preliminary objection and directed the petitions to be heard on merits, and pursuant to that order, these petitions were posted for disposal on merits. The facts have been fully stated by Das, C. J., in the preliminary judgment and it would, therefore, be sufficient if the relevant facts pertaining to the questions raised were stated here. The petitioner in Petition No. 443 of 1955 is Kavalappara Kottarathil Kochunni Moopil Nair. He is the holder of the Kavalappara sthanam to which is attached Kavalappara estate situate in Walluvanad Taluk in the district of South Malabar. In pre-British times the Kavalappara Moopil Nair, who was the senior most male member of Kavalappara Swaroopam (dynasty), was the ruler of Kavalappara territory. He had sovereign rights over his territory. Besides the Rajasthanam, the Kavalappara Moopil Nair 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 favour 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 Ravunniarath Rajan 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 stanee. This petitioner alleges that on August 3, 1955, the sthanee executed a gift deed in his favour 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 sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not called upon to decide the fundamental right of the sthanee in respect of the sthanam properties in the said area. We do not also propose to express any opinion on the validity or otherwise of the gift deeds executed by the sthanee in favour of his wife and daughters, and son; for, if the gifts were valid, the donees would have a right to maintain the petitions, and if they were not valid, the donor would continue to be the owner of the properties gifted. The title inter se is not really germane to the present. enquiry, for the validity of the Act in respect of sthanam properties other than those in the Cochin State, falls to be decided in the first petition itself. We, therefore, leave open the question of the validity of the gift deeds. We shall take first the contention of the respondents based on Art. 31A of the Constitution, for, if that contention was accepted, no other questions except one would arise for consideration. Learned Attorney-General contends that the question was not specifically raised in the pleadings, that it was a mixed question of fact and law, and that if it was allowed to be raised at this stage, his clients would be irreparably prejudiced. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner that he is in possession of the properties in janmam right and proceed to consider on that basis the contention raised. Learned counsel for the respondents contends that 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. To appreciate this contention it will be convenient to read the material portions of Art. 31A. Article 31A. (1) Notwithstanding anything contained in article 13, no law providing for- (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31. ...... (2) In this article,- (a) The expression " estate " shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential welfare legislation." The object of the amendment relevant to the present enquiry was only to enable the State to implement its next objective in the land reform, namely, the fixing of limits to the extent of agricultural lands that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings. The object was, therefore, to bring about a change in the agricultural economy but not to recognize or confer any title in the whole or a part of an estate on junior members of a family. This Court has held in Aswini Kumar Ghose v. Arabinda Bose([1953] S.C.R. 1) that the statement of objects and reasons is not admissible as an aid to the construction of a statute. But we are referring to it only for the limited purpose of ascertaining the conditions prevailing at the time the bill was introduced, and the purpose for which the amendment was made. Unhampered by any judicial decision, let us now scrutinize the express terms of the Article to ascertain its scope and limitations. Sub-el. (a) of Art. 31A(1) enables the State to acquire any estate or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired, between himself and other members of his family or create interest therein in favour of persons other than tenants who had none before. Such acts have no relation to land-tenures and the.), are purely acts of expropriation of a citizen's property without any reference to agrarian reform. Article 31A deprives citizens of their fundamental rights and such an Article cannot be extended by interpretation to overreach the object implicit in the Article. The unsondness of the wider interpretation will be made clear if the Article is construed with reference to the janmam right. Under the definition, any janmam right in Kerala is an " estate ". A janmam right is the freehold interest in a property situated in Kerala. Moor in his " Malabar Law and Custom " describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as " proprietary interest of a landlord in lands " and such a janmam right is described as "estate" in the Constitution. Substituting janmam right " in place of "estate " in cl. 2 (b), the rights " in Art. 31 A (1) (a) will include the rights of a proprietor and subordinate tenure-holders in respect of a janmam right. It follows that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do. It does not modify any of the rights appertaining to " janmam right ", but only confers shares in the property on other members of the tarwad. It is said that the inclusive definition of the expression " rights " in cl. (2) (b) takes in such a case as it extinguishes or modifies the proprietor's right in the land. This is a superficial reading of the Article. We have already explained how such a modification is not a modification of a right pertaining to a " janmam right ", but only a deprivation of a particular janmi of his right in his property or a curtailment of his right therein, leaving all the characteristics of a janmam right intact. It is said that a contrary construction has been accepted by this Court in two decisions. The first is that in Sri Ram Ram Narain v. State of Bombay ([1959] SUPP. 1 S.C.R. 489). In that case, the constitutional validity of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 (Bom. XIII of 1956), was canvassed. Under that Act the title to the land which vested originally in the landlord passes to the tenant on the tiller's day or within the alternative period prescribed in that behalf. This title is defeasible only in the event o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Art. 31A in the Constitution and subsequently amending it were to facilitate agrarian reforms and in that case it was held that the impugned Act affected the rights of the landlords and tenants. Neither of the two decisions, therefore, supports the contention that Art. 31A comprehends modification of the rights of an owner of land without reference to the law of land-tenures. 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 Marumakkathayam tarwads 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 recognised 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. We, therefore, hold that the respondents cannot rely upon Art. 31A to deprive the petitioner of his fundamental rights. Now coming to the arguments advanced by the learned Attorney-General, as we prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to yield to the other. Barring such exceptional circumstances, any law made would be void if it infringes any one of the fundamental rights. The relevant Articles read: Article 19. (1) AU citizens shall have the right.... (f)acquire, hold and dispose of property... (5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said subclauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. " Article 31. (1) No person shall be deprived of his property save by authority of law. (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of possession, should abate. It was contended on behalf of one of the respondents therein that s. 7 was void as abridging his fundamental rights under Art. 19(1)(f) and Art. 31. The Court by a majority held that the Act was void as it infringed Art. 31 of the Constitution. The majority of the Judges, who constituted the bench, took the view that cls. (1) and (2) of Art. 31 related to the same subject of eminent domain and that the State had no power to seriously impair the rights of a citizen in property without paying compensation. Patanjali Sastri, C. J., expressed his view thus at p. 618: " Under the Constitution of India, however, such questions must 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 meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not accept the majority view of this Court that deprivation of property need not be by acquisition alone but also by any serious impairment of an dividual's right to property, whether his ownership or right to possession of the property has been transferred to the State or its nominee or not. This amendment also in effect accepted the view of Das, J., that deprivation of property in el. (1) of Art. 31 covers cases other than acquisition or requisition of property by the State. But the amendment in other respects does not give any indication as regards the interpretation of Art. 31(1) of the Constitution, for no change in the phraseology of that clause is made. Therefore, we must look at the terms of that clause to ascertain its true meaning. The words are clear and unambiguous and they do not give rise to any difficulty of construction. The said clause says in a negative form that no person shall be deprived of his property save by authority of law. The law must obviously be a valid law. Article 13(2) says that " the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be observed that so far as this Article is concerned, there is no relaxation of the restriction imposed by it such as there are in some of the other Articles" Bhagwati, J., observed much to the same effect at p. 161 thus: "It is absolutely clear on a perusal of Art. 13(2) of the Constitution that it is a constitutional mandate (1) [1959] SUPP. 1 S.C.R. 528 to the State and no citizen can by any act or con. duct relieve the State of the solemn obligation imposed on it by Art. 13(2)" One of us had also stated to the same effect, after citing Art. 13, at p. 181 : "This Article, in clear and unambiguous terms, 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." It is, therefore, manifest that the law must satisfy two tests before it can be a valid law, namely, (1) that the appropriate legislature has competency to make the law; and (2) that it does not take away or abridge any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; "So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these subclauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid , on the mode of the detenue's life." Mahajan, J. (as he then was), gave the reason for his conclusion at p. 226: "I am satisfied on a review of the whole scheme of the Constitution that the intention was to make article 22 selfcontained in respect of laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auses (a) to (e) and (g), are rights which only a free citizen, who has the freedom of his person unimpaired, can exercise." The views of the learned Judges may be broadly summarized under three heads, viz., (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). Had the question been res integra, some of us would have been inclined to agree with the dissenting view expressed by Fazl Ali, J.; but we are bound by this judgment. Even so, there is no analogy between Art. 21, as interpreted by this Court, and Art. 31(1). Article 21 deals with personal liberty. Personal liberty, Kania, C.J., observed, includes " the right to eat or sleep when one likes or to work or not to work as and when one pleases and several such rights " and " deprivation of such liberty ", in the words of the learned Chief Justice, " is quite different from restriction (which is only a partial control) of the right to move freely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion inasmuch as unreasonable restrictions were imposed on the rights of the respondents to acquire, bold and dispose of property. In rejecting that argument, Bose, J., speaking for the Court, observed at p. 780 thus : "We need not examine those differences here because it is enough to say that article 19(1)(f) read with clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the article postulates the existence of property over which these rights can be exercised. " For these observations the learned Judge has drawn upon the principle laid down in A. K. Gopalan's Case ([1950] S.C.R. 88). These observations prima facie appear to be against the contentions of the petitioner her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guarantees to all persons, citizens and non-citizens, the ' right to property' as a fundamental right to the extent therein mentioned. What, I ask myself, is the correlation between article 19(1)(f) read with article 19(5) and article 31 ? If, as held by my Lord in A. K. Gopalan's Case([1950] S.C.R, 88) at p. 191, subclauses (a) to (e)and (g) of article 19(1) read with the relevant clauses (2) to (6) ' presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests', it must follow logically that article 19(1)(f) read with article 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. I found myself unable to escape from this logical conclusion." The learned Judge earlier expressed the same opinion in Chiranjit Lal Chowdhuri v. The Union of India ([1950] S.C.R. 869). When it was pointed out to the learned Judge that, if his view was correct, the legislature while it cannot restrict a person's right to property unless the restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our legislatures and Parliament as the people of Great Britain have trusted their Parliament. We cannot agree with the con tention of the learned counsel that Art. 31(1) deals with " police power ". In the view expressed by Das, J. (as he then was), the legislature can make any law depriving a person of his property and the only limitation on such power is its good sense. But "police power", as it is understood in American Law, can never be an arbitrary power. Willis on Constitutional Law " says at p. 727: " The United States Supreme Court has said that the police power embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety '. " In the Constitution of the United States of America, prepared by the Legislative Reference Service, Library of Congress (Senate Document No. 170, 82D Congress), " police power " is generally defined thus at p. 982: " The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, morals, and is not confined to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rights. The Constitution gives every scope for ordered progress of society towards a welfare State. 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. Another argument raised by learned counsel for the respondents may also be noticed. If the view expressed by us be correct, the argument proceeds, the law depriving a person of his property-however urgent the need may be and whatever grave danger or serious vice it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore be accepted. It is undoubtedly correct, however, that when, as in the present case, the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court. " If so, the State can establish that a law, though it purports to deprive the petitioner of his fundamental right, under certain circumstances amounts to a reasonable restriction within the meaning of cl. (5) of Art. 19 of the Constitution. We, therefore, hold that a law made depriving a citizen of his property shall be void, unless the law so made complies with the provisions of el. (5) of Art. 19 of the Constitution. This leads us to the question whether the provisions of the Act infringe Art. 19(1)(f) of the Constitution. The impugned Act is The Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Madras Act No. XXXII of 1955). As the argument turns upon the provisions of the Act and as the Act itself is a short one, it will be convenient to set out all the provisions thereof. The Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Act No. XXXII of 1955). (An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 fix the meaning of words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt ". We do not find any ambiguity in the enacting part of the Act. Assuming that there is some doubt, the preamble confirms our view of the construction of the Act. According to the preamble certain properties of the tarwad are erroneously claimed to be or regarded as sthanam properties and it has become necessary to remove those doubts by making the Act. The preamble also recognizes the existence of sthanams and the doubts related only to the title to the property of sthanams. The enacting part purports to resolve these doubts by laying down three tests, and if any one of these tests is satisfied, the sthanam shall be deemed to be a tarwad and the properties tarwad properties. In short, the Act, read with the preamble, takes the sthanam, lays down certain tests and proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he concept of a modern welfare State. If that be the object of the Act, the argument proceeds, the mere fact that the law incidently disturbs the rights of parties who have obtained decrees of court does not make it unreasonable. Before we consider the validity of these arguments, it would be convenient at this stage to notice the scope of Art. 19(1)(f) and Art. 19(5) of the Constitution. The said Articles read Article 19. (1) All citizens shall have the right .......(f) to acquire, hold and dispose of property........ (5)Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Under cl. (5), the State can make a law imposing reasonable restrictions on the fundamental rights embodied in Art. 19(1)(f) in the interests of the general public. What is " reasonable restriction " has been succinctly st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f justice, which must necessarily produce that effect." In The Citizens' Savings and Loan Association of Cleveland, Ohio v. Topeka City (22 Law Ed 455, 461), the Supreme Court of the United States of America again declares the importance of individual property right thus: "The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the same. No court, for instance, would hesitate to declare void a statute which enacted that A and B who were husband and wife to each other should be so no longer, but that A should thereafter be the husband of C, and B the wife of D. Or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B." We have cited th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so on. The issue of the male children do not belong to their tarwad but to 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 effected by common consent. The rights of the union members are stated to be (1) if, males, to succeed to management in their turn, (2) to be maintained at the family house, (3) to object to an improper alienation or administration of the family property, (4) to see that the property is duly conserved, (5) to bar an adoption, and (6) to get a share at any partition that may take place. These are what may be called effective rights. Otherwise everyone is a proprietor and has equal rights." For the purpose of this case it is not necessary to go into further ramifications of the incidents of a tarwad, for nothing turns upon them. We are concerned in this case with a sthanam. In the book of Sundara Aiyar the origin, scope and incidents of a sthanam are discussed at p. 249: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned author is the case of a family which has no male member to succeed to the sthanam. He gives three possible answers, namely, (i) escheat to the Crown ; (ii) descent according to the rules of devolution applicable to the property of a divided member ; and (iii) on the assumption that the property is dedicated for the purpose of the tarwad, reverting to the tarwad. On the question, what would happen to the sthanam, if at the time of the death of the sthanee there was no male member in the tarwad, though he cited a decision of the Madras High Court where a subsequent born male infant was given a decree to recover the properties, he was of the view that the question was not an easy one to decide. The decided cases considered the nature of this institution and also its incidents. A division bench of the Madras High Court in Vira Rayen v. The Valia Rani of Pudia Kovilagom, Calicut ((1881) I.L.R. 3 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 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the objections the learned Judges considered the nature of a sthanam property and made the following observations at p. 112: "According to the custom of Malabar, the nature of stanom property is such that the present holder has in it a life interest and the successor derives no benefit from it during the life of his predecessor, whereas in ordinary tarwad property each member of the tarwad has a concurrent interest and a joint beneficial enjoyment. Although the position of a stani is analogous to that of a childless widow, in that both have a life interest, both represent the estate ate or the inheritance for the time being, and both have a disposing power only to the estate taken by reversioner. Each male reversioner becomes under Hindu Law the full owner when the reversion falls in, whereas the person that succeeds to a stanom takes the same qualified estate that his predecessor bad. The legal relation therefore between the Vayoth Nair and the other stanomdars and the karnavans of the three subsidiary tarwads is that which subsists among a group of person-, entitled to succeed to the stanom property in a certain order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originating in ancient times when admittedly the Muppil Nair was a sthani in possession of sthanam rights. There is no evidence as to how the maintenance allowance arose, whether it was given in recognition of a legal claim or was only a generous provision made for the benefit of the women and younger members, which the Raja was perfectly competent to do out of property which he regarded exclusively as his own. " In respect of the second circumstance, the Judicial Committee remarked at p. 693 thus: "It appears from the evidence that the Court of Wards throughout the entire period of their management from 1872 till 1910 treated the estate as if it was a tarwad, but this was apparently without any investigation into the true nature of the property. . Besides there was no adult male at that time to question the treatment by the Court of Wards of the property as tarwad property." A third circumstance was relied upon, namely, that in 1872 the only surviving member of the family was then a girl of six years of age and that, therefore, there being no male heir to succeed to the sthanam, the sthanam became extinct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate or devolve upon the members of the tarwad or whether a subsequent birth of a male heir would revive the athanamare raised by Sundara Aiyar in his book, but there is a decision of the Madras High Court where in 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 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. Now, what is the relationship between the tarw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncept of sthanam. No member of a tarwad is entitled as of right to any maintenance from out of properties of the sthanam. Under this clause, if maintenance is so received, the sthanam is deemed to be a tarwad on the basis that the receipt of maintenance from the sthanee out of the sthanam property brings about the said result. If a sthanee creates any such right in favour of a tarwad, it may bind him, but it cannot certainly be binding on the sthanam properties or its successor. If a custom be established on evidence, it may become an incident of the sthanam, but it cannot obliterate or extinguish it or convert it into a tarwad. The word "otherwise" in the context, it is contended, must be construed by applying the rule of ejusdem generis. The rule 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. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary. On the basis of this rule, it is contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is not saved by cl. (5)of Art. 19. Another condition for the application of cl. (5) of Art. 19 is that the restrictions should be in the interests of the general public. We assume for the purpose of this case that there are sthanams with characteristics similar to those of the petitioner's sthanam and that the Act confers title on the junior members of tarwad in properties of such sthanams and that they form a defined section of the public. If so, a question arises whether a section of the public is "general public " within the meaning of Art. 19(5). This fell to be considered by a full bench of the Calcutta High Court in Iswari Prosad v. N. R. Sen (A.I.R. 1952 Cal. 273). It was contended before the full bench of the said High Court that the words " in the interests of the general public " mean " in the interests of the public of the whole of the Republic of India ". Negativing this contention, Harries, C.J., observed at p. 278 thus: " The phrase ' in the interests of the general public' means I think nothing more than 'in the public interest', and it may well be that legislation affecting a limited class of persons or a limited area might well be legislation in the public int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the sthanam properties. We cannot say on the materials placed before us that any public interest will be served by depriving a sthanee of his properties and conferring title in his properties so deprived on others. Nor is there any evidence that there was a real and genuine grievance in this particular section of the public belonging to tarwads justifying the interference by the State. We cannot on the materials placed before us hold that this reform is in the public interest. The learned Attorney-General raised a further point that no law can impose restrictions retrospectively on fundamental rights aid, in support of his contention, he relied upon the wording of cl. (5) of Art. 19 of the Constitution and also on the decision of the Privy Council in Punjab Province v. Daulat Singh ([1946] F.C.R. 1). But, as we have held that the restrictions imposed are not reasonable within the meaning of cl. (5) of Art. 19 of the Constitution, this question need not be decided in this case. We declare that 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition subject to certain limitations. We turn now to sthanams. A sthanam is a station, rank or dignity. A sthani is the holder of a sthanam. A sthanam usually has lands attached or granted to keep up the station, rank or dignity of the sthani and it appears to have come into existence in one or other of the manners hereinafter stated. The ancient rulers of the Malabar coast possessed sthanams and it may be taken that the lands which they held as rulers were regarded as being sthanam lands in character. The sthanam held by a ruler went by the name of Rajasthanam. The Rajasthanams have continued though there are no rulers now. Apart from Rajasthanams, there are other kinds of sthanams. The rulers often granted sthanams with lands attached to them to their subsidiary chieftains or other persons of consequence in their States. Sthanams with lands were also sometimes granted for rendering military service. Again when a family became opulent and influential the members of the tarwad sometimes agreed to set aside for the karnavan certain lands in order that he might keep up his social position and influence and so again a sthanam was created. A sthanam with the lands attached thereto de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subordinate. Each of these sthanams also had lands attached to it. The lands attached to the Rajasthanam and sthanams granted by the rulers of Palghat were situate in the South Malabar district which originally appertained to the State of Madras and is now part of the State of Kerala. The head of the Kavalappara family was also entitled to two further sthanams with the lands attached to them which had been granted by the ruler of Cochin. The lands belonging to these two sthanams were situate in the former State of Cochin now merged in the State of Kerala. The petitioner made a gift of the lands attached to the five sthanams which had been granted by the Raja of Palghat, to his wife and daughters. The donees under this gift are the petitioners in Petition No. 40 of 1956. He likewise made a gift of the lands attached to the two sthanams which had been granted by the Raja of Cochin to his son who is the petitioner in Petition No. 41 of 1956. These gifts had been made before the impugned Act bad been passed. It is necessary now to refer to a previous litigation. On April 10, 1934, the then junior members of the Kavalappara family filed a suit in the Court of the Subordinate Judge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute that the Act applies to Kavalappara Rajasthanam. The respondents to this petition are the junior members of the Kavalappara family and the States of Kerala and Madras. The State of Madras has not appeared perhaps because the Act applies to lands which have since the filing of the petition, been transferred from Madras to Kerala, upon which transfer the State of Kerala had been made a party to the petition. There are three interveners in this petition two of whom support the respondents and one supports the petitioner. The petitioner, Moopil Nayar, first says that the Act violates Art. 14 of the Constitution inasmuch as it applies to the stbanam held by him only and to no other sthanams. This raises a question of fact. He, however, also says that the Act is bad as infringing Arts. 19(1)(f) and 31(1) of the Constitution as it deprives him of his right to hold property and that it is not saved by cl. (5) of Art. 19. If, however, the Act enacts a law within the meaning of Art. 31 A of the Constitution, the -petitioner cannot be heard to complain of violation of Arts. 14, 19(1)(f) and 31(1). So the question arises, Is it saved by Art. 31A? That article so far as is material in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents contend that the rights affected by the Act are janmam rights and, therefore, the Act is one contemplated by Art. 31A. The petitioner, Moopil Nayar, states that the respondents have not alleged that the sthanam properties are held in janmam right. It appears that in the affidavit of the State of Kerala it is stated that the Act is saved by virtue of the provisions of Art. 31A. As we are concerned with lands in the State of Kerala, the Act could be saved by Art. 31A if the lands were held in janmam rights or in rights held under the holder of the janmam rights. The allegation that the Act is saved by Art. 31 A, therefore, clearly implies that the lands attached to the sthanams were held in janmam rights or rights subordinate to janmam rights. There is no statement by the petitioner anywhere on the records that the lands were not held on such rights. On the other hand, it would appear from what we state later that the rights in the lands were janmam rights or rights subordinate to janmam rights. Janmam right is really a freehold interest in land. In s. 3 (k) of the Malabar Tenancy Act, 1929, a janmi has been defined as a person entitled to the absolute proprietorship of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive effect from the commencement of the Constitution. The petitioner seeks to support the contention that the Act contemplated by Art. 31A (1)(a) is an Act dealing with agrarian reforms by referring to the objects and reasons stated in the Bills by which the Acts amending the Constitution were introduced in the Parliament. It does not seem to us that it is permissible to refer to such objects and reasons for the construction of a statute: see Aswini Kumar Ghose v. Arabinda Bose ([1953] S.C.R. 1). We conceive therefore, that we are not entitled to read the word " law " in Art. 31A (1) in relation to sub-cl. (a), only as a law intended to achieve agrarian reforms on the basis of the supposed object of the legislature in enacting Art. 31A. We also observe that apart from the objects and reasons found in the Bills, there is nothing on which the contention that the law contemplated by Art. 31 A (1)(a) is a law intended to achieve agrarian reform, can be based. It is next said that the Act did not effect any modification of janmam rights and hence again Art. 31A is of no avail to protect it. It is contended that the modification contemplated by the Article is a modification of the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to an Act. That of course interferes with vested rights but the legislature can interfere with such rights in the exercise of its legislative power. That is not adjudicating between parties affected by the Act. It is laying down the law to be followed by courts in future. It is so none the less that the law is altered as from a past date. Then it is said that the Act provides that it is to have effect notwithstanding any decision of the Court contrary to its provisions. That the Act no doubt does. Can it be said that it thereby adjudicates and not legislates ? In Piare Dusadh v. King Emperor ([1944] F.C.R. 61) it was pointed out that in India the legislature very often in the enactments that it makes sets aside decisions of Courts. In America a rule appears to obtain that " Legislative action cannot be made to retroact on past controversies and to reverse decisions which the courts in the exercise of their undoubted authority have made ": Cooley's Constitutional Limitations, 8th Ed., p. 190. It was held in Piare Dusadh's case (supra) at p. 104, that this rule had no application in India. The observation there made may be set out:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It, therefore, seems to us that the contention that the impugned Act is really an exercise of judicial power is ill-founded. In our view, the challenge brought against the impugned Act fails. Petition No. 443 of 1955 should, therefore, be dismissed with costs. Coming now to the Petition No. 40 of 1956 the petitioners here are the wife and the two daughters of the petitioner in Petition No. 443 of 1955. The respondents are the junior members of the tarwad as also the Moopil Nayar. The petitioners claim as donees from the Moopil Nayar to be entitled to the sthanam lands in the Palghat area. It is not necessary for us to decide whether the petitioner in Petition No. 443 of 1955 had the right to make the gift in favour of his wife and daughters. That question has not been gone into by consent of the parties. If the gift is valid then what we have said earlier in connection with Petition No. 443 of 1955, will apply to this petition also and it must for the same reason fail. If the gift is invalid, the petition must fail on the ground that the Act has not affected the petitioners' rights in any lands held by them. We would, therefore, dismiss that petition with costs except the costs o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
