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TMI Blog1980 (3) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... -matter is the partition of the assets of the erstwhile royal family of the Maharajah of Cochin, if we may avoid the jaw-breaking description used in one of the relevant legislations viz. The Valiamma Thampuran Kovilakam Estate and Palace Fund belonging to the family of the Maharajah of Cochin. A capsulated survey of the landmark legislations will help locate the controversy and liquidate the error, if any. This family, to begin with, was impartible and its administration was statutorised by a Royal Proclamation of 1124 (hereinafter called the Proclamation) which constituted a Board in this behalf consisting of five trustees to be nominated by the Maharajah with an equitable eye on representation for each branch (tavazhi) of the family. Sec. 2 (a) read with Sec. 4 of the Proclamation defines the Board's composition which shows a slight oversight on our part in the earlier order. And thereafter, came the Great Divide in the story of the royal family and began its slow integration into the commonalty, retaining in some measure, its peculiar individuality. By Act 16 of 1961 (The Valiamma Thampuran Kovilakam Estate and Palace Fund (Partition) Act, 1961 (for short the 1961 Act) impa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declares his decision, there is, eo instanti a division in status. Thereafter, s.4 of Act 16 of 1961 operates. That Section states: 4. Share of Members (1) Each member shall be entitled to an equal share of the Estate and the Palace Fund. (2) The share obtained by a member on partition shall be the separate property of the member. (3) A child who is in the womb on the date of the publication of the decision under Section 3 and who is subsequently born alive shall have the some right for a share in the Estate and Palace Fund as any other member as if he or she had been born on or before the date of such publication. We may state even here that the Maharaja never made the statutory declaration under Sec. 3 and so no division in status took place. The next statutory milestone which has relevance to our legal journey is the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) (for short 1976 Act). By this measure, the joint family system among Hindus in the state of Kerala was extinguished. All Marumakkathayam families were embraced by the Act and the right by birth in ancestral properties was also put an end to. By force of s. 4 of that Act, joint family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e completed and the properties are to be enjoyed by the shares, innovative strategies of speedy justice must be resorted to. On this basis we have to appreciate the grounds raised for review by the petitioner herein who had substantially succeeded in the first round when we pronounced a lengthy order on the special leave petition. The review sought revolves round three points: (1) The Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) governs the erstwhile ruling family of former Cochin State and observations of this Court giving a contrary impression may be suitably modified: (2) The observation of the Court that the Board is composed of the heads or senior most members of the 4 branches of the family is not wholly correct. (3) The Order of this Court dated 30-7-1979 should not have the intent and effect of nullifying the enormous amount of work and considerable steps taken by the Board so far for partitioning the properties of the family. The 2nd point may readily be conceded as it is an inconsequential error which has crept in by oversight which may be corrected straightway. It is true that in the judgment earlier delivered in this case, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned therein the valuable, enormous and irreplaceable volume of work turned out over the years stands nullified. Were this consequence true, the consternation of Board might well be justified. If the basis for the nullification of the Board's work is the invalidity of the composition of the Board, there is no need for apprehension because we have already clarified the position. The Board was rightly constituted and validly continues. The grievance of the Board is different and is based upon its plea that, not being a party to the special leave petition, it should not be hit adversely without being heard adequately. Indeed, it is for this reason that we have afforded a full length hearing. Actus curiae nomihem gravabit is a wholesome admonition to the court itself. There are two substantial controversies implied in the third relief. In essence, the first relief telescopes into the third and may well be considered in a composite manner. A partition by metes and bounds becomes possible only if the number of sharers is clearly settled. The first point over which the parties have fought before us in this review proceeding relates to the number of sharers which, in turn, follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t abandon pragmatic justice and play into the hands of those who have a vested interest in keeping the litigative pot boiling and actualisation of the fruits of partition a teasing illusion. Even so, we must not ignore the law and be stampeded into affirming the Board's blunders, if any, in the name of early finality. Counsel for the first respondent has contested the ground urged by the Board and has sought to maintain that there has been no error in the judgment of this court and that the review sought must be repelled. The number of shares into which the properties must be divided depends on the number of members entitled to shares. If the date were to be fixed with reference to Act 30 of 1976 i.e. 1-12-1976, 719 sharers have claims on the family assets. On the other hand, if the later Act 15 of 1978 were to be operative the relevant date will be 6-1-1978. During this period of around 13 months it is conceivable that a few more members might have been born or dead; but shares have to be precisely accounted and no person can be deprived of his property if the law confers on him a right thereto. Therefore, we will presently proceed to decide this issue, but before that, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Board's decision cannot be arbitrary, as explained in our earlier judgment. It has to be reasonable and fair and for that purpose must comply with the opportunity for a hearing to every sharer. Group allotment may be permissible provided the sharers composing the groups consent. Otherwise, each member is entitled to a per capita share. Therefore, if the Board has made group allotments, it has to be justified by practical considerations and by acceptance by the members of the group concerned. Secondly, the valuation made and the sales effected must be subject to the objections of those who have not had a say in the matter. So we direct that the draft partition deed, with necessary particulars regarding properties and their value etc., shall be made available for the inspection of the various parties from the office of the Board. A notice shall be put up within one month from today on the office notice board stating that requisite copies of the draft partition deed and the necessary details will be available in the office for the inspection of the members or their representatives. They will also be permitted to take such number of copies as they want. This is necessary fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with natural justice will bind the Board before its completion of the partition. This takes us to the most contentious issue viz. the number of shares and the date with reference to which the division in status must be deemed to have taken place. Certain fundamental facts must be under scored for appreciating the hotly asserted competing contentions. At the outset, we may mention that the drafting of the legislation has been somewhat slippery breeding semantics confusion. This feature has accentuated the plausibility of both points of view. Going to the basics, we must observe that originally the royal family was impertible but the concept of partition in relation to it subject to certain conditions was introduced by the 1961 Act. However, notwithstanding the 1961 Act, the Cochin Maharaja had not declared his decision that the family properties be partitioned. A few items out of the enormity of the assets were, it is said, divided. But it seems probable and parties, perhaps proceeded on the footing that there was no royal decision to divide the family pursuant to the enabling provision in the 1961 Act. The family continued joint. Now we shift the focus to the statutory scene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by repealed. (2) Not withstanding such repeal, anything done or any action taken under the principal Act or the Proclamation (IX of 1124) dated the 29th June, 1949, promulgated by the Maharaja of Cochin or the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), as amended by the said Ordinance, shall be deemed to have been done or taken under the principal Act or the said Proclamation or Act, as the case may be, as amended by this Act as if this Act had come into force on the 6th day of January, 1978. There is a sharp divergence between counsel on the role of the various provisions we have briefly referred to above in determining the date on which division in status of the Cochin royal family took palace. The 1976 Act, as we have indicated earlier, leaves intact, in large part, the Proclamation as well as the 1961 Act. Section 7 of the 1976 Act expressly repeals the scheduled Acts. It also renders texts of Hindu Law, customs and usages, contrary to the provisions of the 1976 Act, ineffective. The consequence of the omission of the Proclamation and the 1961 Act from the schedule is that they survive and co-exist with the 1976 Act. The crucial point on which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the date of division in status and consequently the number of shares and the persons eligible thereto, are not affected by sections 8 and 9 of the 1978 Act. Shri Govindan Nair, on the contrary, argues that sections 8 and 9 will be rendered otiose and the statute stultified were we to treat the two sections as of functional irrelevance in fixing the shares and the sharers. Sec. 8 contains a non-obstante clause and so must prevail over other provisions. The substantive directive in sec. 8 of the 1978. Act is that the proclamation, as amended by the 1961 Act, as further amended by the 1978 Act, shall continue to be in force, and shall apply is the assets of the Cochin royal family. Of course, the Section has been drafted in a jaw-breaking fashion and its cumbersomeness could have been simplified had a different type of legislative drafting skill been brought to bear upon the subject. Sec. 8 reminds one of the old British Jingle: I'm the parliamentary draftsman I compose the country's laws And of half the litigation I'am undoubtedly the cause. Why only half the litigation half the frustration too ! Be that as it may, stripped of the complexities, sec. 8 merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Partition of the Estate and the Palace Fund :(1) The senior most male member of the family shall, within sixty days from the date of commencement of the Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment ordinance, 1978 direct the Board to effect Partition of the Estate and the Palace Fund among all the members entitled to a Share of the Estate and the Palace Fund under section 4 of the Kerala, Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), and such direction shall be published by the Board in the Gazette. (2) If the senior-most male member fails to direct the Board as required by sub-section (1), the Board shall on the expiry of the period specified in that sub-section proceed to effect the partition of the Estate and the Palace Fund among the members referred to in sub-section (1) and the Partition so affected shall be valid notwithstanding anything contained in section 17 of the Proclamation. The plausible inference is that in tune with the Proclamation (which survives) the senior-most male member- the Maharaja system having ended is to give direction to the Board to effect a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the three points around which the petition for review revolves but I regret that I am unable to subscribe to the reasons listed by him in relation to the effect of the 1976 and 1978 Acts. I am therefore recording this short note which may be read in continuation of that judgment. H 2. There is no dispute regarding the proposition that under the Proclamation of 1124 the Cochin royal family was impartible and that the concept of partition in relation to it was for the first time introduced by the 1961 Act, subject to certain conditions which are contained in section 3 of that Act and are to the effect that the Estate would become partible only if- (i) a request in writing is made to the Maharaja of Cochin by the majority of the major members of the family; (ii) the Maharaja is satisfied that in the interests of the family it would be desirable to partition the Estate and the Palace Fund among all the members of the family; and (iii) the Maharaja declares his intention to effect a partition under his supervision and control and directs the Board to proceed with the partition. All these three conditions had to be satisfied before the Estate could be considered partible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Trustees appointed under s.3 of Trustees appointed of the Proclamation. under s.3 of the Procl- amation. (b) 'Estate' means the valiamma (b) `Estate' means the Thamapuram Kovilakam Estate valiamma Kovilakam and all properties belonging Estate and all Proper- to the said Estate. ties belonging to the said Estate. (c) 'Maharaja of Cochin' means (c) `family' means the Ruler of former State of Maraumakkathayam Cochin within the meaning joint family consist- of Clause (22) of Article ing of the four main 366 of the Constitution. thavashies of the Ruler of the former State of Cochin within the meaning of Clause (22) of article 366 of the Constitution of India. (d) Member means a member of (d) `Member' means a member the family of tho Maharaja of the family. of Cochin. (e) 'Palace Fund' shall have the (e) 'Palace Fund' shall same meaning as in Clause have the same meaning (c) of s.2 of the Proclamation - as in Clause (c) of s.2 of the Proclamation. (f) `Proclamation' means Proclamation - (f) `Proclamation' means (IX of 1124) dated proclamation (IX of 29th June, 1949, promulgated 1124) dated 29t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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