# • .,._ • 1 8 'l THE PALACE ADMINISTRATION BOARD v. RAMA VERMA BHARATIIAN THAMPURAN & ORS

- **Citation:** [1980] 3 S.C.R. 187
- **Court:** Supreme Court of India
- **Decided:** 1980-03-27
- **Bench:** V. R. Krishna !Yer, D. A. Desai, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-8-l-the-palace-administration-board-v-rama-verma-bharatiian-thampuran-ors-8025
- **Pages:** 20

## Headnote

Review-when the Court would review its earlier judgment-earlier judq·
B
ment clarified.
PER KRISHNA IYER AND DESAI JJ.
In a petition for review, once a clear error in the judgment is revealed
no sen,!le of shame or infallibility complex absesses or dissuades this
Court
fiom the anxiety to be ultimately right, not consistently wrong. [189 HJ
Three points were raised for review of the earlier judgment.
!. 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 in1pression may be modified.
2. -The observations of the Court that the Board is composed of the heads
c
or seniormost members of the four branches of the family is not wholly cor·
D
rect.
3. The order of this Court dated 30th July, 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.
[193 A-CJ
1. (a) The second point arising out of three reliefs mentioned above was
.an inconsCquential error which has crept in by oversight. The statement in
the judgment that "the Board, being an old institution in plenary management
since 1949 and wisely
composed of
the seniormost members of the four
branches . ....... " \Vas not correct because the Board \Vas constituted by the
Royal Proclamation of 1124 and continued by later Acts. [193 DJ
E
(b) The Cochin Maharaja had the power to nominate
the five trustees
p
of the Board and there was no objection on him to choose the seniormost
~embers of the Thavashies. What he had to comply with was the directh'e
in section 4 to secure representation so far as possible for each of the four
main Thavashies. It is sufficient if its composition secures fair representation
so fer as possible for each of the four Thavashies of the family. The senior~
most need not necessarily be chosen. The Board which has been functioning
all these decades is beyond legal cavil and has been rightly eonstituted. (193 G]
G
2. (a) The first relief telescopes into the third. From the materials on
record it is quite clear that the Board had done good and satisfactory work
especially because competent engineers and valuers have been
pressed into
s~ice. A retired judge of !he High Court has been playing the role of a
mentor and a small committee of members has democratised and legitimated
th.e process of partition by participation. There is no reason to sweep off
the work of valuation done all these years. ,The argument that the Board's
labours shmtld be liquidated cannot be acceded to. The valuation the Board
has carried out, the alienations it has effected Qnd provisional allotments it
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188
SUPREME COURT REPORTS
{1980] 3 s.c.R.
A
has made will be allowed to stand only subject to the obligation to hear
objections and to take follow-up action. [196 C·D]
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(b) It is not necessary to demolish the work done by the Board upto
now. The Boards decision cannot be arbitrary. It bas to be reasonable
and fair and for that purpose must comply with the opportunity· for a hearing to every sharer. Group allotn1ent may be ·permissible provided
the
sharers composing the groups consent. Otherwise each member is entitled
to a per capita share.· If the ·Board bad made group allotments it has to
be justified by practical considerations and by acceptance by the members
of the group concerned. The valuation made and the sales effected must
be subject to the objections of those who have not had a say in the matter.
The draft partition deed, with necessary particulars regarding properties and
their value shall be made available for the inspection of the various partiesfrom the office of the Board. The Boord will consider the objections and
decide them on their merits.
Parties affected by such decision will be given
~ brief hearing by the Board. [196 H; 197 A-CJ
3. The 1976 Act leaves in tact, in large part, the proclamation as '\Ye11

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•
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•
1 8 'l
THE PALACE ADMINISTRATION BOARD
A
v.
RAMA VERMA BHARATIIAN THAMPURAN & ORS.
March 27, 1980
[V. R. KRISHNA !YER, D. A. DESAI AND A. D. KosHAL, JJ.J
Review-when the Court would review its earlier judgment-earlier judq·
B
ment clarified.
PER KRISHNA IYER AND DESAI JJ.
In a petition for review, once a clear error in the judgment is revealed
no sen,!le of shame or infallibility complex absesses or dissuades this
Court
fiom the anxiety to be ultimately right, not consistently wrong. [189 HJ
Three points were raised for review of the earlier judgment.
!. 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 in1pression may be modified.
2. -The observations of the Court that the Board is composed of the heads
c
or seniormost members of the four branches of the family is not wholly cor·
D
rect.
3. The order of this Court dated 30th July, 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.
[193 A-CJ
1. (a) The second point arising out of three reliefs mentioned above was
.an inconsCquential error which has crept in by oversight. The statement in
the judgment that "the Board, being an old institution in plenary management
since 1949 and wisely
composed of
the seniormost members of the four
branches . ....... " \Vas not correct because the Board \Vas constituted by the
Royal Proclamation of 1124 and continued by later Acts. [193 DJ
E
(b) The Cochin Maharaja had the power to nominate
the five trustees
p
of the Board and there was no objection on him to choose the seniormost
~embers of the Thavashies. What he had to comply with was the directh'e
in section 4 to secure representation so far as possible for each of the four
main Thavashies. It is sufficient if its composition secures fair representation
so fer as possible for each of the four Thavashies of the family. The senior~
most need not necessarily be chosen. The Board which has been functioning
all these decades is beyond legal cavil and has been rightly eonstituted. (193 G]
G
2. (a) The first relief telescopes into the third. From the materials on
record it is quite clear that the Board had done good and satisfactory work
especially because competent engineers and valuers have been
pressed into
s~ice. A retired judge of !he High Court has been playing the role of a
mentor and a small committee of members has democratised and legitimated
th.e process of partition by participation. There is no reason to sweep off
the work of valuation done all these years. ,The argument that the Board's
labours shmtld be liquidated cannot be acceded to. The valuation the Board
has carried out, the alienations it has effected Qnd provisional allotments it
B
188
SUPREME COURT REPORTS
{1980] 3 s.c.R.
A
has made will be allowed to stand only subject to the obligation to hear
objections and to take follow-up action. [196 C·D]
B
' c
D
E
F
G
H
(b) It is not necessary to demolish the work done by the Board upto
now. The Boards decision cannot be arbitrary. It bas to be reasonable
and fair and for that purpose must comply with the opportunity· for a hearing to every sharer. Group allotn1ent may be ·permissible provided
the
sharers composing the groups consent. Otherwise each member is entitled
to a per capita share.· If the ·Board bad made group allotments it has to
be justified by practical considerations and by acceptance by the members
of the group concerned. The valuation made and the sales effected must
be subject to the objections of those who have not had a say in the matter.
The draft partition deed, with necessary particulars regarding properties and
their value shall be made available for the inspection of the various partiesfrom the office of the Board. The Boord will consider the objections and
decide them on their merits.
Parties affected by such decision will be given
~ brief hearing by the Board. [196 H; 197 A-CJ
3. The 1976 Act leaves in tact, in large part, the proclamation as '\Ye11
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 tbet they
survive and co-exist with the 1976 Act. The definition of joint Hindu family
is wide enough to include the Cochin royal family and prima-facie section
4(2) spells a division in status and substitutes a tenancy-in-common in the
place of jointness vis a vis the Cochin royal family also. This consequences
can be obviated only if there is something in section 7 which compels a
contrary conclusion. The omission in the repealing section of 1961 Act by
itself does not render inapplicable section 4(2) which creates the division
in· status.
It admits of no doubt that until Act 30 of 1976
was
passed,
there was no partition effected by any decision of the Meharaja persuant to
the 1961 Act. Thus one of the joint Hindu families which subsisted at the
time of the 1976 Act was the Cochin royal family and section 4(2) could
<lnd, therefore, did operate on it.
Nor is the rule of per capita division
provided for in the 1976 Act contrary to the shares prescribed in the 1961
Act.
The· survival of the 1961 Act. because of its
onnss1on
from
the
Schedule of the A~ts. repealed has .one effec: and that is that the· Boar~ alo~
has the power to d1v1de the properties. Section 3 of the 1961 Act provides for
~
it and must prevail despite the 1976 Act in view of section 7 of the later
Act read with the Schedule thereto. The non-repeal of the 196{ Act also
leads to the conclusion that child in the lVomb is entitled to a she.re, whatever
the meaning of section 4(2) of the 1976 Act may be. Thus a closeup view
of the statutory scene vis-a-vis the Cochin royal family, it is clear that in
1976, the family was divided in statuts with shares for every member including the per capita share for fl child in the womb and such partition is to be
worked out by metes and bounds only by the Board and not by the Civil
Court. [200 B-G]
Kesha!, J. (concurring in the final result)
The proclamation coupled with the 1961 Act constituted an exception to the
provisions of the 1976 Act which otherwise applied to all joint Hindu families.
•
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PALACE ADMN. BOARD v. RAMA VERMA (Krishna Iyer, 1.)
189
Under the proclamation 1124, the Cochin royal family was impartible. The
concept of partition in relation to it was for the first time introduced by the
1961 Act subject to three conditions mentioned in section 3 of the Act. All
the three conditions had to be satisfied before the Estate could be considered
partible and till it acquired that character the Proclamation remained in full
force. The 1976 Act did not make the slightest difference to the position prevailing till that Act into force. Neither the Proclamation nor the 1961 Act
was
repealed by the 1976 Act and, therefore, tbey continued to co-exist with
the 1976 Act. In- view
of
the
provisions of_ section
3
of
the
1961
Act which were left in tact by the 1976 Act
the
Estate
could
become
partible only if all the three conditions specified in section 3 of 1961 Act were
fulfilled. The result is that when the 1976 Act was enforced in its original form
the Estate continued to be impartible and, therefore, there was no question of
section 4(2) of that Act being applicable to it. [203 H-204 A-Gl
After the promulgation of the 1978 Act the Proclamation has to govern
the Cochin royal family subject to section 3 of the 196 l Act as ~mended
by the 1978 Act which would fully apply to that family notwithstanding anything contained in the 1978 Act or any other law for the time being in force.
Finality haS thus been given to the provisions of that section which states that
the partition is to be made "among all the members entitled to a share of the
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Estate, and the. Palace Fund under
section 4 of the Kerala
Joint Hindu
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Family System (Abolition) Act 1975 (30 of 1976.)" Section 4 of the 1976
Act is thus made specifically applicable to the Cochin royal family by reason
of the amendment of section 3 of the 1961 Act by the 1978 Act. If this be
so the ·crucial date for determining the number and identity of the members
of the family entitled to a share of the Estate and the Palace Fund would
be 1st of December, 1976, that is, the date on which the 1976 Act came into
force.
[206 D-El
IC
CIVIL APPELLATE JURISDICTION : Review Petition No.
150/1979.
Review of this Court's Order dated 30-7-1979 in SLP (Civil)
No. 5863 of 1979.
T. S. Krishnamoorthy, Vishnu
Bahadur
Saharya and Sardar
'Ji..._ Bahadur Saharya for the Appellant.
P. Govindan Nair and N. Sudhakaran for the Respondents.
The Order of V.R. Krishna Iyer, J. and D.A. Desai, J. was
delivered by Krishna Iyer, J. Koshal, J. gave a concurring Opinion.
KR1sHNA IYER, J.-Horace wrote : "But if Homer, who· is good
nods for a moment, I think it a shame". We, in the Supreme Court
do 'nod' despite great care to be correct, and once a clear error in
our judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this Court from] the anxiety to be
ultimately right, not consistantly wrong. The present petition
for review is one such and we have listened, at unusual length, to
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SUPREME COURT REPORTS
[1980] 3 S.C.R.
counsel's oral submissions, having felt that an error in the judgment
under review, likely to injure and unsettle, needed to be mended.
We may narrate, very briefly, the necesrnry facts and catena
of statutes so that the flaw may be identified and rectified. The
subject-matter is the partition of the assets of the erstwhile royaf
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 Kovi/akam 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) impartibility was abolished conditionally, as it were. Sec. 3 therein laid down :
3. (1) Notwithstanding anything contained in Section 22 of the
Proclamation, if a request in writing is made by the majority of the
major members and the Maharajah of Cochin 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 he may declare his ~.
decision to effect a partition under his supervision and control, and
direct the Board to proceed with the partition.
(2) The decision of the Maharaja of Cochin under sub-section
(1) shall be published by the Board in the Gazette in English and
I Malayalam, and a copy of the notific~tion shall be affixed in cons-
~icuous place at the office of the Board.
"'--'--
Of course, partibility nflcctcd the spirit of the times both in Kerala
-and in the Hindu fold of India and royalty lost its regalia, including
the
privy purse, with the enactment of the Constitution (26th
fAmeJidment) Act. Even though royalty had become fossilised and
Maharaja's family
had become partible the latter retained its.
legislative_ [distinctiveness in important features, because of its uni-
+
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PALACE ADMN. BOARD v. RAMA VERMA (Krishna Iyer, J.)
191
que history, unwieldy membership and statutory singularity since
1949. The legislature took pragmatic note of these legitimate
factors while enacting Act 16 of 1961. Thus partibility was not
automatic but dependent on the Maharaja's decision. The division
was not to be affected by the civil courts as in ordinary cases but
by Board only.
The structure and identity of the Board created under the
earlier Proclamation was preserved even for the purpose of effecting
partition of the family assets. Once the majority's request was
made and the Maharaja was satisfied about the desirability of partitioning the Estate and the Palace Fund, the process of partitioning
was the responsibility of the Board, although under the supervision
and control of the Maharaja himself. A ticklish question, which is
one of the aspects involved in the pre,ei:t review petitic.n, turns on
the division among the members and, more particularly, the fixation
of shares, depending, as it does, on the number of members. This
, number, in turn, is determined by the date of division in status of the
family,
Section 3 of the 1961 Act makes partition contingent on
the Maharaja's
declaration of his decision to effect a partition.
Once he 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 (!) 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
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place. The next statutory milestone which has relevance to our
G
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 ownership
B
was
converted into tenancy-in-common as if partition had taken
place among all the members. We may read s. 4 (2) at this point.
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SUPREME COURT REPORTS
{1980] 3 S.C.R.
All members of a joint Hindu family, other than an undivided
Hindu family referred to in sub-section (1) holding any joint
family property on the day this act
comes into force, shall, with
effect from that day ·be deemed to hold it as tenants in common, as if
a pal'tition of such property per capita had taken place among all
the members of the family Jiving on the
day aforesaid, whether
such members were entitled to claim such partition or not under
the law applicable
to them, ·and as if each one of the members is
holding his or her share separately as full owner thereof.
The emphasis, from the point of view of the date of transformation into tenancy-in-common, is on the date of coming into force
of Act 30 of 1976. From that date (1-12-76) onwards a !division
in status and a quantification of shares per capita must be deemed to
have occurred.
Section 7 of this Act repeals certain enactments mentioned
in the schedule thereto; but what is of significance in that schedule
is that the Proclamation of 1124 and Act 16 of 1961 (which are
measures specially devoted to Cochin Royal Family) are not repealed. What the impact of this omission is, is a subject of debate
between the parties and we will come presently to it.
We then move
on to ordinance 1 of 1978 promulgated on 6-1-1978 which was replaced duly by Act 15 of 1978, published in the Gazette on 19-3-78.
This Act (The Valiamma Thampuran Kovilakam Estate and the
Palace Fund (Partition) and the Kerala Joint Family System Abolition) (Amendment Act, 1978),, is an amendatory adventure affecting
vitally the partitioning of the Cochin Royal Family. The implications of the provisions of this legislation constitute the subject·
matter of the review petition on which the parties bitterly join issue.
It cannot be denied that partition by metes and bounds of the
Cochin Royal Family properties is a stupendous effort, a timeconsuming task and an operation involving legal know-how, valuers'
•kills and adjudicatory steps. We must remember that the assets
are immense and varied even as the members are numerous, being
well over 700 in strength. Each member being entitled to a share,
the partition is sure to be complicated and if in the shortrun of a
human life the partition is to be 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.
•
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PALACE ADMN. BOARD v. RAMA VERMA (Krishna Iyer, !.)
193
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
-0f 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
~traightway. It is true that in the judgment earlier delivered in this
case, it has been stated in passing that "the Board, being an old
institution in plenary management since 1949 and wisely composed of the rseniormost members of the 4 branches .. .... "Strictly
speaking, this is not correct because the Board was constituted by
the Royal Proclamation of 1124 and continued by later Acts.
Section 2 (a) of the Proclamation states that the '"Board" means
the Board of Trustees appointed under Sec. 3 of this Proclamation.
Section 4 defines the composition of the Board and reads thus:
The Board shall 'consist of five Trustee' who shall be nominated by us from among the male members of our
family so as to secure representation as far as possible
for each of the four main thavashies of our family. One
of the Trustees shall be appointed as the President of the
Board by us.
It follows that the Cochin Maharaja had the power to nominate
the five trustees of the Board and there was no objection on him to
choose the seniormost members of the thavashies. What he had to
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comply with was the directive in sec. 4 to secure representation
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as far as possible for each of the four main thavashies. We regret
the mistake in this detail although so far as the judgment was
concerned it made little difference in the reasoning or the result.
Even so, when cantankerous persons seek to read this court's judgment with scriptural regard, mischief may follow. The petitioner
in his review petition states that some member of the family has
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gone to court with a suit (O.S. 391 of 1976) and has issued a notice
dated September 19, 1979 wherein he has
challenged the validity
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SUPREME COURT REPORTS
(1980] 3 S.C.R.
of the Board on the score that it did not consist of the seniormost
members of the four thavashies as required by the judgment of this
court. It is sufficient if its composition secures fair representation
as far as possible for each of the four thavashies of the family. The
seniormost need not necessarily be chosen. The Board, which,
has been functioning all these decades, is beyond legal cavil and
has been rightly constituted. We regret the pecadil!o and are
surprised at the tendency to impugn the Board's doings on the unexpected score of illegal composition.
Even the 3rd relief, although hotly contested by Shri Govindan•
Nair for the opposite party, cannot be wholly refused.
The grievance of the Palace Administration Board is that by virtue of the
judgment of this Court and some observations contained 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 becanse
we have already clarified the position. The Board was rightly
constituted and validly continues. The grievance of the Board isdifferent 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 wliolesome 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 from the date of divisiorr
in status. The Board has proceeded on the basis that Act 30 of
1976 has brought about a division in status as on 1-12-1976 If that
point of time were legally sustainable, there were 719 members in
the family, each being entitled to one share. The rival contention put forwara by the oppo8ite parties is that the division in
status took place much later when Ordinance 1 of 1978 was promulgated i.e. on 6-1-78. If this later date were to be taken as
decisive more members would have been born into the family and
their shares would also have to be given by the Board on partition.
There would also have been some exits by death whose heirs could
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PALACE ADMN. BOARD v. RAMA VF.RMA (Krishna Iyer,!.)
195
not claim shares on behalf of their proposite. We have, therefore,
to see which view-point is correct in the light of the statutory; provisions and their rather ambivalent wordin~.
The other essential factor in making a satisfactory partition
is the valuation of the numerous assets and their allocation to the
plurality of sharers. Er ch one being entitled to his share and group
partition not being the rule, the Board's submission is that it has
proceeded on the footing of 719 sharers taking the date, 1-12-1976
when Act 30 of 1976 came into force as the crucial dateline. On
this basis, the Board claims that it has turned out a tremendous
amount of work by way of valuation of properties through highly
competent
and fairly
expensive
architects and engineers. It is
further stated that the services of a retired judge of the Kerala High
Court had been relied on all and along to tender advice as and when
required so that legal guidance may be available for the Boarc't
An Advisory Committee of leading members of the family had also
been constituted to assist the Board with its suggestions. Valuation
sheets had been prepared and handed over to each group and in
the light of representations made and duly considered, revaluation
had been directed to be done wherever objections had been raised.
It is asserted that all these Himalayan labours have materialised
in valuations of properties which, if subverted sterilised, or otherwise invalidated, would spell great
loss, waste of energy and
indefinite postponement of effective partition. The many members
who are virtually royal proletarians cannot afford the price of
further procrastination,
bewails the Board. True, the court, in
search of perfection, should not 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
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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, bnt before that, we wish to make it clear that the substantial
amount of work done by the Board should not be allowed to go
waste. After all, a creative, rather than a negative, application of
law makes it truly functional. We are satisfied from the materials
on record that the Board has done good and satisfactory work
especially because competent engineers and valuers have been pressed
into service, a retired judge of the High Court of Kerala has been
playing the role of a mentor and a small committee of members has,
in a way, democratised and legitimated the process of partition by
participation. Without exaggerating the role of the Board or the
turn-out of work it has done, we see no reason to sweep off the work
of valuation d.one all these years and decline to accede to the argument that the Board's considerable labours should be liquidated.
There is no substantial reason for doing so. Even so, we cannot
exclude the possibility of the Board having
made errors, even
blunders. After all, there is much force
in hearing aggrieved
parties before a correct conclusion is reached. That is why, we have
in a later paragraph, subjected the acts and doings of the Board
to a clear condition which stems from natural justice. The valuation
the Board has carried out, the alienations it has effected and provisional allotments it has made will be allowed to stand only subject
to the obligation to hear objections and to take follow-up action,
as indicated below.
Sri Govindan Nair has two submissions which merit serious
notice. Firstly, the number of shares have been fixed with reference
to Ist December, 1976 and group allotments have been made and
these are contrary to the •one man one share' basis and the valid
date of disruption in status. Secondly, many members have had no
say in the valuation and sales made by the Board and natural justice
cannot be sacrificed at the alter of expediency.
Taking the second objection first, we feel that there is force in
it bnt do not consider it necessary to demolish the work done by the
Board upto now. The situation can be salvaged by a few practical
directions which will take care of natural justice and resolve the
grievances of affected sharers. It was represented by Shri Krishnamoorty Iyer, appearing on behalf of the Board, that the work of
partition was almost complete and even the draft deed had been
drawn up. But we must make it clear that the Board's decision
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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 for the members
who wish to file
objections. Within six weeks thereafter, any
sharer will be entitled to file his objections, with specificity, to the
various valuations and sales and other
actions
impugned. The
Board will consider these objections and decide them on their merits.
Parties affected by such decision will naturally be given a brief hearing by the Board. In short, although without the full panoply of
natural justice, a fair and impartial consideration of· the '.objections
d< novo will be made by the Board. Its decisions will, as far as
possible, be made within three months of the last date for objections
and be published on the office notice board. Those who ask for
copies of the decision or portion of the decision will be furnished
them
In the course of the arguments in Court we felt that the decisions
of the Board should be subject to review by a judicial functionary of
high stature, ifthat were practical. Mr. Govind an Nair, appearing for
the first respondent, stated that Shri Justice Mathew, a distinguished
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retired Judge of the Supreme Court, was available in Cochin and his
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presence could be taken advantage of for this purpose. Speaking for
the Board, Mr. Krishna Moorthy also agreed with the choice.
We would have been very happy had Shri Justice Mathew been
appointed the final Arbitrator to consider the objections by the parties
to the Board's decisions in regard to any of the matters covered by the
partition. We are unable to make a formal direction to this effect
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because many of the sharers are not before us. We must however,
observe that taking advantage of the fact that the group represented by
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Shri Govindan Nair is willing to abide by Shri Justice Mathew's
arbitral decision, the Board may if possible contact other sharers for
their consent. If all the sharers agree in writing to abide by the decision
of Mr. Justice Mathew in regard to contested points in the Board's
partition arrangement we tliink that Shri Justice Mathew may be
persuaded to agree. Indeed, if it is brought to our notice that all
· parties are agreeable, the Court itself may make a request and clothe
Shri Justice Mathew with necessary decisional powers. We do not
say more than make these observations. But even apart from the
appointment of Mr. Justice Mathew as sole Arbitrator, it is necessary
to insist that the other directions regarding hearing and compliance
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 of 1976 and find a
comprehensive Kerala legislation abolishing the joint family status of
all coparcenaries generally. The Cochin royal family, prima facie,
was covered by the 1976 Act. In that event, there must normally
have occurred a division in status in the Cochin royal family too and
quantification of shares would then have had to be done by the Board
with reference to 1-12-1976 when that Act came into force. This is
the Board's stand and it has proceeded on this premise. This position
would have been unassailable but for the two circumstances·which, in a
way, we have adverted to earlier. The 1976 Act contains a schedule
repealing certain Acts and as indicated earlier the Proclamation and the
1961 Act do not find a place in the Schedule. We must infer from
this circumstance argues Sri Govindan Nair, that the 1961 Act and
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even the Proclamation modified by the 1961 Act survived the 1976
Act. Did they, and if they. did, to what extent and effect ?
This complication is accentuated by the later 1978 Act which
amends the 1976 Act and the 1961 Act.
Section 8 and 9 are the
.p:rtinent pro visions. Section 8 iPserts a new sec. 8 in the 1976
.Act with retrospective effect:-
"8. Amendment of Act 30 of 1976 : In the Kerala 'Joint Hindu
Family System (Abolition) Act, 1975 (30 of 1976), after
Section 7, the following soction shall be, and shall be
deemed always to have been inserted, namely:-
8. Proclamation IX of 1124 and Act 16 of 1961 to !continue in
force: Notwithstanding] anything contained in this Act or
in any other law for the time
being in force Proclamation (IX of 1124) dated the 29th
June, 1949,
promulgated by the Maharaja of Cochin, as amended
by the Valiamma Thampuran Kovilakam Estate and
the Palace Fund (Partition) and the Kerala Joint Hindu
Family System (Abolition) Amendment Act 1978 and
the Valiamma] Thampuran Kovilakam j Estate and th<
Palace
Fund
(Partition) Act,
1961
(16 of 1961),
as amended by the said Act, shall continue to be in
force and shall apply to
the Valiamma Thampuran
Kovilakam Estate and the Palace Fund administered
by the Board of Trustees appointed under sec. 3 ~ of
the said Pcoclam1tion."
·Section 9 also is significant and runs thus:
·"9. Repeal and Saving:-(!) The
Valiamma
Thampuran
Kovilakam Estate and the Palace Fund [(Partition) and the
Kerala Joint Hindu Family System (Aboliton) Amendment Ordinance, 1978 (I of 1978), is hereby 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."
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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 place. 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 much debate took place
is as to whether section 4(2) of the 1976 Act which produce a statutory
division in status of all Kerala undivided Hindu Families effects such
a division in the Cochin royal family also. The definition of Joint
Hindu Family is wide enough to include the Cochin royal family and,
prima facie, sec. 4(2) spells a division in status :and substitutes a
tenancy-in-common in the place .of jointness vis-a-vis the Cochin
royal family also. This consequonce~ can be obviated only ifthere is
something in sec. 7 which compels a contrary conclusion. The
omission in the repealing section of the 1961 Act, by itself, does not
render inapplicable sec.
4(2) which creates the division in status.
·It admits of no doubt that, until Act 30 of 1976 was passed, there was
no partition effected by any decision of the Maharaja pursuant to the
1961 Act. Thus or.e oft~.e joint Hindu Families which subsisted at
the time of :;·,e 1976 Act was the Cochin royal family and sec. 4(2)
could, and, therefore, did oper~tec. on it. Nor is the rule of per capita
division provided for in the 1976 Act contrary to the shares :prescribed
in the 1961 Act. The survival of ;the 1961 Act, because of its
omission from the Schedule of Acts repealed, ,has one effect and that
is that the Board alone has the p"ower to divide the properties.
Sec.
3 of the 1961 Act provides for it and must prevail despite the 1976
Act in view of sec. 7 of the later Act read with the :sch<dule thereto, J
The non-repeal of the 1961 Act also leads to _the conclusion that chi d
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in the womb is entitled to a share, (sec. 4 of the 1961 Act), whatever
the meaning of sec. 4(2) of the 1976 Act may be. Thus, if we take a
close-up of the
statutory
scene, vis-a-vis the Cochin royal
family, in 1976, we get the position that the family is divided in status
with shares for every member including ;a per capita share for a child
in the womb and such partition is to be worked out by metes and
bounds only by the Board and not by the civil court.
Things would have been simple had the
situation er.ded here.
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.l!ut sections 8 and 9 of ihe 1978 Act have left a ,trail of seemingly
queer consequences, or, at any rate, scope Jor plausible, yet contra-
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PALACE ADMN. BOARD v. RAMA VERMA (Krishna lyer, !.)
201
dietary interpretations.
We will, therefore, examine these two proA
visions which will be the final exercise in this review proceeding.
According to Shri Krishnamurthi Iyer for the Board, the determination 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 irrekvance 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. Actis 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.