# Sthanam, I960 May 4. f( avalnppaya K nlt11Yathil Kochuni v. Stale of Madt"as

- **Citation:** [1960] 3 S.C.R. 887
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 427 of 1957
- **Bench:** B. P. Sinha, Jafer Imam, A. K. Sarkar, K. Subba Rao, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sthanam-i960-may-4-f-avalnppaya-k-nlt11yathil-kochuni-v-stale-of-madt-as-1905
- **Pages:** 67

## Headnote

Marumakkathayam Law-Enactment for removal of doubtsConstitutional validity-Madras Marumakkathayam (Removal of
Doubts) Act, I955 (32 of r955)-Constitution of India, Arts. r9(r)
(f), ]I, 3rA.
These petitions by the holder of Kavalappara Sthanam, his
wife, daughters and son challenged the constitutional validity of
the Madr8s Marumakkathayam (Removal of Doubts) Act, 1955,
passed by the Madras Legislature soon after the Privy Council
had declared the properties in possession of the Sthanee to be
Sthanam properties in which the members of the tarwad had no
interest. Section 2 of the Act, which contained the substantive
provision, was as follows:--
" 2. Notwithstanding any decision of Court, any sthanam in
respect of which :-
~a) there is or had been at any time an intermingling of the
properties of the sthanam and the properties of the tarwad, or
(b) the members of the tarwad have been receiving maintenance from the properties purporting to be sthanam properties
as of right, or in pursuance of a custom or otherwise, or
(c) there had at any time been a vacancy caused by there
being no male member of the tarwad eligible to succeed to the
Sthanam,
I960
May 4.
f( avalnppaya
K nlt11Yathil
Kochuni
v.
Stale of Madt"as
888
SUPREME COURT REPORTS
[1960]
shall be deemed to be and shall be deemed always to have
been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed
always to have been properties belonging to the tarwad to which
the provisions of the Madras Marumakkathayam Act, 1932 (Mad.
XXII of 1933), shall apply."
The question for decision was whether the impugned Act
infringed the fundamental rights of the petitioners guaranteed by
Arts. 4, 19(r)(f) and 31 of the Constitution.
Held (per Sinha, C. J., Subba Rao and Shah, JJ.) that the
three tests laid down by the Act were contrary to the well-settled
principles of Marumakkathayam Law with regard to which there
could be no scope for doubt and as such not only not germane but
extraneous to the object it sought to achieve. They were a device
to deprive the sthanam of its properties and vest them in the
tarwad and as such directly hit by Art. 19(r)(f) and could not be
saved by Art. 1915).
Assuming that the Sthanam properties were held in janmam
right and as such were estates within the meaning of Art. 31A,
tbe impugned Act was immune from challenge. That Article,
properly construed, envisages agrarian reform and provides for
the acquisition, extinguishment or modification of proprietory
and various other kinds of subordinate rights in a tenure called
the estate solely for that purpose arid must be limited to it.
Although it may not be permissible to refer to the statement of
objects and reasons of its amendment for purposes of construction,
it can be referred to for the limited purpose of ascertaining the
conditions prevailing at the time and purpose underlying the
amendment.
Aswini Kumar Ghose v. Arabinda Bose, [1953] S.C.R. 1, considered.
There is no substance in the argument that since the
impugned Act seeks to regulate the rights of the Sthanee and the
junior members of the tarwad inter se it falls within by cl. (2)(b)
of Art. 31A. That clause has to be read with cl. (1)(a) of the
Article and since the impugned Act does not contemplate any
agrarian reform or seek to regulate the rights inter se between
landlords and tenants or modify or extinguish any of the rights
appertaining janmam right, leaving all its characteristics intact,
it does not come within the purview of Art. 31A of the Constitution.
Sri Ram Ram Narain v. State of Bombay,
[1959]
Supp. I
S.C.R. 489, and Atma Ram v. State of Punjab, [1959] Supp. I
S.C.R. 748, referred to.
Fundamental rights have a transcendental position in the
Constitution and before an Article embodying a fundamental
right can be construed to exclude another every attempt should
be made to harmonise them and not until it is found impossible
to do so, can one be made to yield to the other. Barr

## Text

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•
3 S.C.R.
SUPREME COURT REPORTS
887
against the excess dividends. In our opinion, the
z960
question of modification of the language cannot arise Commissioner of
in the circumstances of the case. Our reasons have
.Income-tax, -
been given in Civil Appeal No. 427 of 1957, decided toBombay
day, and we need not go over the ground again.
v.
. .
Th
·
1
t"
f
· t
·
1 d Th Jalgaon Electricity
ere is a so no ques 10n o unJUS ness invo ve .
e supply co. Ltd.
Income-tax law seeks to p11t in the net certain class
of income, and can only successfully do so, if it frames Hidayatullah J.
a provision appropriate to that end. If the law fails
and the tax-payer cannot be brought within its letter,
no question of unjustness as such, arises. The answers
given by the High Court to the two questions were
correct in the circumstances of the case.
In the result, the appeal fails, and will be dismissed
with costs.
Appeal dismissed .
KA V ALAPPARA KOTTARATHIL KOCHUNI
AND OTHERS
v.
THE STATE OF MADRAS AND OTHERS
(B. P. SINHA, c. J., JAFER IMAM, A. K. SARKAR,
K. SUBBA RAO and J. C. SHAH, JJ.)
Marumakkathayam Law-Enactment for removal of doubtsConstitutional validity-Madras Marumakkathayam (Removal of
Doubts) Act, I955 (32 of r955)-Constitution of India, Arts. r9(r)
(f), ]I, 3rA.
These petitions by the holder of Kavalappara Sthanam, his
wife, daughters and son challenged the constitutional validity of
the Madr8s Marumakkathayam (Removal of Doubts) Act, 1955,
passed by the Madras Legislature soon after the Privy Council
had declared the properties in possession of the Sthanee to be
Sthanam properties in which the members of the tarwad had no
interest. Section 2 of the Act, which contained the substantive
provision, was as follows:--
" 2. Notwithstanding any decision of Court, any sthanam in
respect of which :-
~a) there is or had been at any time an intermingling of the
properties of the sthanam and the properties of the tarwad, or
(b) the members of the tarwad have been receiving maintenance from the properties purporting to be sthanam properties
as of right, or in pursuance of a custom or otherwise, or
(c) there had at any time been a vacancy caused by there
being no male member of the tarwad eligible to succeed to the
Sthanam,
I960
May 4.
f( avalnppaya
K nlt11Yathil
Kochuni
v.
Stale of Madt"as
888
SUPREME COURT REPORTS
[1960]
shall be deemed to be and shall be deemed always to have
been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed
always to have been properties belonging to the tarwad to which
the provisions of the Madras Marumakkathayam Act, 1932 (Mad.
XXII of 1933), shall apply."
The question for decision was whether the impugned Act
infringed the fundamental rights of the petitioners guaranteed by
Arts. 4, 19(r)(f) and 31 of the Constitution.
Held (per Sinha, C. J., Subba Rao and Shah, JJ.) that the
three tests laid down by the Act were contrary to the well-settled
principles of Marumakkathayam Law with regard to which there
could be no scope for doubt and as such not only not germane but
extraneous to the object it sought to achieve. They were a device
to deprive the sthanam of its properties and vest them in the
tarwad and as such directly hit by Art. 19(r)(f) and could not be
saved by Art. 1915).
Assuming that the Sthanam properties were held in janmam
right and as such were estates within the meaning of Art. 31A,
tbe impugned Act was immune from challenge. That Article,
properly construed, envisages agrarian reform and provides for
the acquisition, extinguishment or modification of proprietory
and various other kinds of subordinate rights in a tenure called
the estate solely for that purpose arid must be limited to it.
Although it may not be permissible to refer to the statement of
objects and reasons of its amendment for purposes of construction,
it can be referred to for the limited purpose of ascertaining the
conditions prevailing at the time and purpose underlying the
amendment.
Aswini Kumar Ghose v. Arabinda Bose, [1953] S.C.R. 1, considered.
There is no substance in the argument that since the
impugned Act seeks to regulate the rights of the Sthanee and the
junior members of the tarwad inter se it falls within by cl. (2)(b)
of Art. 31A. That clause has to be read with cl. (1)(a) of the
Article and since the impugned Act does not contemplate any
agrarian reform or seek to regulate the rights inter se between
landlords and tenants or modify or extinguish any of the rights
appertaining janmam right, leaving all its characteristics intact,
it does not come within the purview of Art. 31A of the Constitution.
Sri Ram Ram Narain v. State of Bombay,
[1959]
Supp. I
S.C.R. 489, and Atma Ram v. State of Punjab, [1959] Supp. I
S.C.R. 748, referred to.
Fundamental rights have a transcendental position in the
Constitution and before an Article embodying a fundamental
right can be construed to exclude another every attempt should
be made to harmonise them and not until it is found impossible
to do so, can one be made to yield to the other. Barring .. such
exceptional cases, any law that infringes any of the fundamental
rights must be void,
1~
L
r
I
I
(
3 S.C.R. SUPREME COURT REPORTS
889
The word 'law' in Art. 31(1) must mean a valid law, and
such a law must satisfy two tests, (1) that the legislature must be
competent to enact it and (2) that it must not infringe any fundamental rights. A law that deprives a citizen of his property must,
therefore, be invalid if it infringes Art. r9(1)(f) of the Constitution.
Deep Chand v. State of U. P., [1959] Supp. (2) S.C.R. 8, and
Basheshwar Nath v. Commissioner of Income-tax,
Delhi, [1959]
Supp. l S.C.R. 528, referred to.
Article 31 of the Constitution, since its amendment by the
Constitution (Fourth Amendment) Act, 1955, is no longer a selfcontained Article prnviding for a subject different from that dealt
with by Art. 19, but deals with two different subjects, els. (2) and
(2A) dealing with acquisition and requisition and cl. (1) with
deprivation of property by authority of law, and can no longer
be construed on the analogy of Art. 21 so as to exclude the operation of Art. 19.
The State of West Bengal v. Subodh Gopal Bose, [1954] S.C.R.
587, A. K. Gopalan v. The State of Madras, [1950] S.C.R. 88,
referred to.
State of Bombay v. Bhanji Munji and Anr., [1955] l S.C.R.
777, held inapplicable.
Nor does Art. 31(1) deal with police power. Although such
power, as understood in America, is no arbitrary power divorced
from social control and public good, there can be no need of
importing such a doctrine into the Indian Constitution.
The word 'law' used by Art. 31(1) indicates its limitation
and refers back to Art. 19 and any law made under Art. 31(1)
can be sustained only if the restrictions it imposes are reasonable
and in the interest of the general public. The Constitution does
not confer on the Indian Parliament the same power which the
Parliament of England possesses and while it does contemplate a
welfare State, that has to be brought about within its frame-work
of the Constitution itself.
The correct approach should, therefore, be first to ascertain
the fundamental right and then to see whether the law infringes
that right. If ex facie it does so, it has to stand the test of Art.
19(5). In certain circumstances, however, deprivation of fundamental right to property may also amount to a reasonable restriction under the Article.
Narendra Kumar v. The Union of India, [1960] 2 S.C.R. 375,
referred to.
Individual proprietary rights being ordinarily inviolable
unless a clear case is made out for restricting them, there must be
a harmonious balancing between the fundamental rights declared
by Art. 19(1) and social control permitted by Art. 19(5). It is
a.::_,, implicit in the nature of restrictions that no inflexible standard
r: can be laid down and each case must be decided on its own facts.
But the restrictions must not be arbitrary and must have a
reasonable relation to the object sought to be achieved and shall
be in the interest of the general public.
Kavalappara
Ko ttarathit
Kpchuni
v.
State of Madras
890
SUPREME COURT REPORTS
[19ti0 J
Ig6o
State of Madras v. V. G. Rao, [1952] S.C.R.
597, Henry
Webster v. Peter Cooper, 14 Law Ed. 5ro, and The Citizens'
Kavalappara
Savings and Loan Association and Cleaveland, Ohio v. Topeka City,
Koitaralhil
22 Law Ed. 455, referred to.
Ko&huni
Although the redress of a real and genuine grievance of a
v.
. section of the community may be in public interest, it is imposSlate of Madras sible to hold that the impugned legislation was either justified or
in such public interest. .
Iswari Prasad v. N. R. Sen, A.LR.. 1952 Cal. 273, held inapplicable.
.
Marumakkathayam Law is a body of customs and usages
that have received judicial recognition, and is fundamentally
different from Hindu Law, being a matriarchal system. The
family, called tarwad, consists of all the descendants of one common ancestor. It consists of a mother and her male and female
children and the children of those female children and so on.
Only the senior-most male member can attain the sthanam,
which is a position of dignity with specific properties attached to
it. When he does so and becomes the Sthanee he ceases to have.
any interest in the tarwad properties. Occasionally a female
member also becomes the Sthanee. Like a Hindu widow or an
impartible estate-holder the Sthanee has an absolnte interest in
the income of the Sthanam properties or acquisitions therefrom.
A member of the tarwad has no right to maintenance from out of
the Sthanam properties nor can such property be converted into
tarwad property by the grant of such maintenance by custom or
otherwise or intermingling of the Sthanam properties with the
tarwad properties by the Sthanee. His position approximates to
that of a member separated from a Hindu family and there can
be no scope for the application of the doctrine of blending. Like
the Sthanee who ceases to have any present proprietary interest
in the tarwad, the members of the tarwad also can have no present
proprietary interest in the sthanam property. They continue to
be blood relations with a contingent right of succession to each
others' property that is no more than a spes successionis. The
right of a subsequently born male member of the tarwad to succeed to the Sthanam and its property is judicially recognised.
Case-law reviewed.
Per Imam and Sarkar, JJ.-The impugned Act is protected
by Art. 31A and is not open to question in the ground that it
violates Arts. 14, 19(1)(f) and 31(1) of the Constitution. There
is no basis for the contention that Art. 31(1)(a) contemplates a
law relating to agrarian reform only. The Article makes no
mention of any such reform and there can be no doubt that under
it a janmam right may be acquired, extinguished or modified
whether the land held in such right is agricultural or not.
It is not permissible to refer to the objects and reasons
stated in the Bills, by which the Acts amending Art. 31A of the ·
Constitution were introduced, for the construction of the statute
and, therefore, the word 'law' in Art. 31A(1) cannot be read in
relation to sub-cl. (a) only as a law intended to achieve agrarian
-
3 S.C.R. SUPREME COURT REPORTS
891
reform on the basis of the supposed object of the Legislature in
enacting Art. 31A.
Aswini Kumar
Ghos~ v. Arabinda Bose, [1953] S.C.R. l,
referred to.
It is not correct to say that the impugned Act does not effect
any modification of janmam rights and therefore it does not come
within Art. 31A.
When the Article speaks of modification of
janmam rights, it does not speak of such rights in the abstract
but contemplates the modification of such rights held by a person.
It would be as much modification of janmam rights, if such rights
held by one person are directed to be held by a number of
persons jointly, as when the incidents of such rights are altered.
Sri Ram Ram Narain Medhi v. The State of Bombay, [1959]
Supp. l S.C.R. 489, and Atma Ram v. State of Punjab, [1959]
Supp. l S.C.R. 748, relied on.
It is not correct to say that the Legislature in giving the
provisions of the impugned Act retrospective operation or in providing that they should prevail notwithstanding any decision of
the court to the contrary, was acting judicially and not in a legislative capacity and that the Act was on that ground invalid.
The rule obtaining in America that legislative action cannot
retroact on past controversies and reverse decisions of courts
and the relevant American decisions can have no application in
India.
I;iare Dusadh's case, [1944] F.C.R. 6I, referred to.
ORIGINAL JURISDICTION: Petitions Nos. 443 of
i955 and 40-41 of 1956.
Petitions under Article 32 of the Constitution of
India for enforcement of Fundamental Rights.
M. C. Setalvad, Attorney-General of India, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L.
Vohra, for the petitioners (In all the petitions).
fl. H. Dhebar and T. M. Sen, for the State of
Madras.
K. V. Suryanarayana Iyer, Advocate-General for the
State of Kerala and T. M. Sen, for the State of
Kerala.
A. V. Viswanatha Sastri and M. R. Krishna Pillai,
for respondents Nos. 2 to 9.
Purshottam Trikamdas and M. R. Krishna Pillai,
for respondent No. 12 (In Petn. Nos. 40-41 of 56).
A. V. Viswanatha Sastri and K. R. Krishnaswami,
for respondents Nos. 13 and 15-17 (In Petn. No. 443
of 55).
K. R. Krishnaswami for respondents Nos.11 and 14
(In all the petitions).
Kavalappara
Kottarathil
lfochuni
v.
State oj Mad1as
Kavulappa'Ta
l(ottarathU
Kochuni
v.
';tate of Mad'Tas
Subba Rao ].
892
SUPREME COURT REPORTS
[1960]
Purshottam Trikamdas and K. R. K rishnaswami,
for respondent No. 12 (In Petn. No. 443 of 55).
A. V. Viswanatha Sastri and M. R. Krishna Pillai,
for Intervener No. 1.
Sardar Bahadur, for Intervener No. 2.
1960. May 4. The judgment of Sinha, 0. J., Subba
Rao and Shah, JJ., was delivered by Subba Rao, ;r.·
The judgment of Imam and Sarkar, JJ. was delivered
by Sarkar, J.
SuBBA RAO, J.-These three connected petitions
filed under Art. 32 of the Constitution raise the quest.ion of the const.itutional validity of the Madras
Marumakkathayam (Removal of Doubts) Act, 1955,
(Madras Act 32 of 1955) (hereinafter referred to as the
impugned Act).
These petitions were heard by this
Court on a preliminary question raised by the res·-
pondents and the judgment thereon was delivered on
March 4, 1959. This Court rejected t.he 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 prelimina.ry judgment and it would, therefore, be
sufficient if the relevant facts pertaining to the ques·
tions 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 Kavalappa.ra Moopil Nair,
who was the seniormost male member ofKavalappara
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 petitioner's immediate predecessor died in 1925 and· the
petitioner became the Moopil Nair of Kavalappara
estate and as such the sthanee of the properties
-·
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3 S.C.R.
SUPREME COURT REPORTS
893
attached to the various sthanams held by him. The
petitioner in Petition No. 443 of 1955 will herea.fter
be referred to as "the sthanee ". Respondents 2 to 17
are the junior members of the Kavalappara tarwad,
and, according to the sthanee, they have no interest
in the said properties.
In 1932, the Madras Marumakkathayam Act (Wad.
Act XXII of 1932) came into force whercunder the
members of a Malabar tarwad were given a right to
enforce partition oftarwad properties or to have them
registered as impartible.
After some infructuous
proceedings under the provisions of the said Act, respondents 10 to 17, who then constituted the entire
Kavalappara ta,rwad, filed O.S. No. 46 of 1934 in the
court of the Subordinate Judge of Ottapalam for a
declaration that all the properties under the management of the sthanee were tarwad properties belonging
equally and jointly to the sthanee and the members
of the tarwad. The Subordinate Judge dismissed the
s11it. On appeal, the High C.mrt of Madras on April 9,
1943, allowed the appeal and reversed the decision
&f the Subordinate Judge and decreed the suit. On
further appeal to the Privy Council, the Board by its
judgment dated July 29, 1947, restored the judgment
of the Subordinate Judge. The Privy Council found
that the Kavalappara estate in Walluvanad Taluk
was an impartible estate and that nothing had happened to alter the original character of the property
in its relation to the members of the family. On that
finding, the Privy Council held that respondents 10
t0 17 were not entitled to the declaration they sought
in that case.
The result of that litigation was that
all the properties in the possession of the sthanee
were declared to be sthanam properties and that the
members of the. tar wad had no interest therein.
After the title of the sthanee was thus established,
the Madras Legislature passed the impugned Act in
1955. Under the impugned Act, every sthanam
possessing one or other of the three characteristics mentioned therein-it is common case that the impugned
Act applies to the petitioner's sthanam-shall be
deemed and shall be deemed always to have been
properties belonging to the tarwad. The sthanee
n6
Kov,lrippara
K oltarathil
Krchuni
v.
State of Madras
Suiba Rao].
•
IT)6o
Kavalaf'pnra
]{ ottarathil
Kochuni
v.
State of ;l!adras
S.ubba Rao ] .
•
894
SUPREME COURT REPORTS
[1960]
states that the impugned Act is ultra vires the Madras
Legislature, void and inoperative and that the said
Act cannot affect the rights of the sthanee or his
estate to any extent.
The first petitioner in Petition No. 40 of 1956 is the
wife of the sthanee, who has also been added as respondent 18 to this petition; and petitioners 2 and 3
therein are their daughters. The first respondent to
the said petition is the State of Madras and respon.
dents 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 Sil-me 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
itnd respondent 18 is the sthanee. 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 similar reliefs.
The learned Attorney-General, appearing for the
petitioners in all the three petitions, raised before, us
the following points: (1) The impugned Act is constitutionally void, because it offends against Art. 14 of the
Constitution. (2) It is also void because it deprives
the sthanee of his fundamental right to hold and
dispose of property and thereby offends against
Art. 19(1) (f) of the Constitution and is not saved by
cl. (5) of Art. 19. (3) The impugned A_ct is further bad
because it has been. made by the Legislature not in
exercise of its legislative power but in exercise of
judicial power.
Learned counsel for the respondents while countering the arguments advanced by the learned AttorneyGeneral raised two further points, viz., (1) the petitioner's sthanam is an " estate " within the meaning
of Art. 31A of the Constitution and therefore the Act
-
-
I
3 S.O.R. SUPREME COURT REPORTS
895
extinguishing or modifying the rights pertaining to
the said sthanam cannot be questioned on the ground
that it infringes Arts. 14, 19 and 31 of the Constitution ; and (2) the impugned Act purports to deprive
the petitioner of his sthanam properties by aut.hority
oflaw within the meaning of Art. 31(1) of the Constitution and, as he is legally deprived of his properties,
Art. 19(1) (f) of the Constitution has no application,
for, it is said, Art. 19(1) (f) pre-supposes the existence
of the petitioner's title to the sthanam and its properties, and, as he is deprived of his title therein by the
impugned Act, he can no longer rely upon his fundamental right under Art. 19(1) (f).
Learned counsel for the respondents further contended that the gifts of the sthanam properties by
the sthanee in favour of the petitioners in the other
t
two petitions were void and that, therefore, they
have no fundamental right to enable them to come to
this Court under Art. 32 of the Constitution.
Before we pass on to the merits of the case, it would
be convenient at the outset to clear the ground. It
cannot be disputed that the impugned Act passed by
the Madras Legislature could not have had any
extra-territorial operation so as to affect the properties in the quondam Cochin State. It is not disputed
that, after the States J{eorganization, the provisions
of the Act were not extended by any legal process to
the properties situate in that area of the Kerala State
which originally formed part of Cochin State. In the
premises, we are 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 ..
Kava!appara
J<-0ttarathil
Kochun(
v,.
State of M adr.as
Subba Raoj,
1y60
Koval appara
KottarAhil
Kochuni
v.
State of .. \! adras
Subba Rao ] .
~96
SUPREME COURT REPORTS
[1960)
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-Genera! 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, he argues
that there is no material on the record on the basis of
which we can decide whether the properties of the
petitioners are held in janmam right or not. In the
counter-affidavit filed by respondents 2 to 17, no plea
on the basis of Art. 31A is taken. Only in the counter
filed by the State of Kerala, this contention is raised.
~
Paragraph 6 of the counter-affidavit contains the said
plea and it is :
"I am advised that the impugned statute is not
open to attack on any of the grounds set forth in
the petition and further and in any view of the
case that it is saved by virtue of the provisions of
Art. 31 A of the Constitution as amended by the
Constitution (Fourth Amendment) Act, 1955."
Except this bald statement, no statement is made to
the effect that all the properties of the sthanee, or
any . portion thereof, are held in janmam right.
Learned Advocate-General, appearing for the State of
Kerala, while conceding that the plea could have been
more precise, and supported by definite particulars,
contends that there is material on the record containing the admission of the petitioner in the first petition
that the properties are janmam properties, and, even
apart from such admission, whatever properties the
petitioner held as appertaining to the sthanam, they
could not be other thau janmam properties or properties held as a subordinate tenure-holder under a janmi
and that in either case they would form part of an
"estate" within the meaning of Art. 31A of the
Constitution.
It is true that in the previous proceedings which
went up to the Privy Council, there is a statement
,
'
::> S.C.1\,
~U.PHEME COU]:{,T HE.POH.T~
897
that in regard to the properties under the management of the Court of Wards, " sthanam registration
took place in Malabar and all the properties belonging to the sthanee were registered in the name of
Kavalappara Moopil Nair". But that in itself does
not conclude the matter. Ordinarily, when a question
raised depends upon elucidation of further facts not
disclosed in the statements already filed, we would be
very reluctant to allow a party to raise such a plea
at the time of arguments. But in this case we do not
think we would be justified in not allowing the respondents to raise the contention, as the validity of the
impugned Act depends upon the application of
Art. 31A of the Constitution. We would, therefore,
for the purpose of this petition, assume against the
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 ii;i 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.
o o 0 0 0 o o 0 o 0 o 0 o o o o o o 0 0 o 0 o o o o o 0 0 o 0 0 0 0 o 0 0 0 o 0 0 0 0 0 0 0 0 o 0.0 I 0 0 o 0 0 o 0 0 0 0 0 I
(2) In this article,-
1960
K • valappara
Kottarathil
l<ochuni
v.
State of Madras
Subba Rao ].
r960
Kavatappara
K ottarathil
Kochttni
v.
State of Madras
Subba Rao ].
898
SUPREME COURT REPORTS
[1960 J
(a) The expression "estate" shall, in relation to
any local area, have the same meaning as that
expression or its local equivalent has in the existing
law relating to land tenures in force in that area,
and shall also include any jagir, inam or muafi or
other similar grants and in the States of Madras
and Kerala any janmam right.
(b) the expression" right", in relation to an estate,
shall include any rights vesting in a proprietor, subproprietor, under-proprietor, tenure-holder, raiyat,
under-raiyat or other intermediary and any rights
or privileges in respect of land revenue."
This Article was introduced in the Constitution by the
Constitution (First Amendment) Act, 1951.
As it
originally stood, the said Article only provided that no
law affecting rights of any proprietor or intermediate
holder in any estate shall be void on the ground that
it is inconsistent with any of the fundamental rights
included in Part III of the Constitution. Article 31A
has been amended by the Constitution (Fourth Amendment) Act, 1955. The object of the amendment was
explained in the Statement of the Objects and Reasons
and the relevant part thereof reads :
"It will be recalled that the Zamindari abolition
laws which came first in our programme of social
welfare legislation were attacked by the interests
affected mainly with reference to articles 14, HJ
and 31, and that in order to put an end to the
dilatory and wasteful litigation and place these laws
above challenge in the courts, articles 31A and 31B
and the Ninth Schedule were enacted by the Constitution (First Amendment) Act. Subsequent judicial
decisions interpreting articles 14, 19 and 31 have
raised serious difficulties in the way of the Union
and the States putting through other and equally
important social welfare legislation on the desired
lines, e.g., the following :-
(i) While the abolition of zamindaries and the
numerou" '~'°F rn<>diaries between the State and the
tiller of tne soil has been achieved for the most part,
our next objectives in land reform are the fixing of
limits to.the extent of agricultural land that may
be owned or occupied by any person, the disposal of
:.-,-
·-
3 S.C.R. SUPREME COURT REPORTS
899
·any land held in excess of the prescribed maximum
and the further modification of the rights of land
owners and tenants <in agricultural holdings.
It is accordingly proposed in clause 3 of the Bill
to extend the scope of article 31A so as to cover
these categories of essential 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( 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-cl. (a) of Art. 31A(l)
enables the State to acquire any estate or of any rights
therein or to extinguish or modify any such rights.
"Estate" is defined in cl. (2)(a) to have the same
meaning as that expression or its local equivalent bas
in the existing law relating to land tenures in force in
that area, and by inclusive definition it takes in any
jagir, inam, or muafi or other similar grants and in the
States of Madras and Kerala any janmam right.
Clause (2)(b) defines the expression " rights", in relation to an estate, to include any rights vesting in a
proprietor, sub-proprietor, under-proprietor, tenureholder, raiyat, under-raiyat or other intermediary and
any rights or privileges in respect of land revenue. If
(1) [r953J S~C.,R, I,
Ig6o
Kavalnppara
Kottar<llhil
Kochuni
v.
State of Madras
Subba Rao].
J(aval 1ppara
f(ottarat hil
Kochuni
v.
State oj Madras
Subba Rao ].
900
SUPREME COURT REPORTS
[1960]
an estate so defined is acquired by the State, no law
enabling the State to acquire any such estate can be
questioned as inconsistent with 1the rights conferred by
Arts. 14, 19 or 31 of the Constitution. So too, any
law extinguishing or modifying any such rights mentioned in cl. (l)(a) and defined in cl. (2)(b) cannot be
questioned on the said grounds. The broad contention
that a law regulating inter se the rights of a proprietor
in his estate and the junior mem hers of his family is
also covered by the wide phraseology used in cl. (2)(b ),
may appear to be plausible but that argument cannot
be sustained if that clause is read along with the other
provisions of Art. 31A. The definition of "estate"
refers to an existing law relating to land tenures in a
particular area indicating thereby that the Article is
concerned only with the land tenure described as an
"estate ". The inclusive definition of the rights of
such an estate also enumerates the rights vested in the
proprietor and his subordinate tenure-holders.
The
last clauqe in that definition, viz., that those rights also
include the rights or privileges in respect of land
revenue, emphasizes the fact that the Article is concerned with land-tenure. It is, therefore, manifest
that the said Article deals with a tenure called "estate"
and provides for its acquisition or the extinguishment
or modification of the rights of the land-holder or the
various subordinate tenure-holders in respect of their
rights in relation to the estate. The contrary view
would enable the State to divest a proprietor of his
estate and vest it in another without reference to any
agrarian reform. It would also enable the State to
compel a proprietor to divide his properties, though
self-acquired, 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 they are
purely acts of expropriation of a citizen's propertv
without any reference to agrarian reform. Article 3IA
deprives citizens of their fundamental rights and such
an Article cannot be extended by interpretation to
overreach the object implicit in the Article. The
unqoundness of the wider interpretation will be made
clear if the Article is construed with reference to the
l' -
-
-
3 S.C.R. SUPREME COURT .REPORTS
901
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 janmarn right is
described as "estate" in the Constitution. Substituting
" janmam right " in place of "estate" in cl. 2 (b ), the
"rights" in Art. 31A (1) (a) will include the rights of
a proprietor and subordinate tenure-holders in respect
of a j1mmarn right. It follows that the extingnishment
or modification of a right refers to the rights of a
proprietor or a subordinate tenure-holder in the
janmam right.
A proprietor called the janmi or his
subordinate tenure-holder has certain defined rights in
a "janmam right". Land-tenures in Malabar are
established by precedents or immemorial
usage.
Janmam right is a freehold interest in property and the
landlord is called "janmi ".
He can create many
subordinate interests or tenures therein, such a,; vprumpattom (simple lease), kusbikanom (mortgage of waste
land with a view to its being planted on), kushikanapattam (mortgage of waste land for improvements, the
tenant paying rent), kanom kuzhikanom (mortgage of
w1iste land for improvements, the landlord receiving
some pecuniary consideration), kanom (mortgage with
possession, a fee being generally paid), mel-ka.nom
(higher mortgage), koyu panayam (mortgage of the
right of cultivation), kanom poramkadam (loan advanced on the security of land already held on mortgage), otti usufructuary mortgage, the full value of the
land being advanced), kaivituka otti (usufru<>tua,ry
mortgage, with relinquishment of the power nf transfer),
ottikkumpuram (where a surn is advanced beyond the
otti amount), neerrnuthal (where a further sum is
advanced on an otti mortgage in addition to the ottikkumpuram), peruvartham (usufructuary mortgage,
the land being redeemable at its value in the market
at the time of redemption}, anubham or anubhavam
(relinquishment of land for enjoyment by the tenant
in perpetuity), karankari or
jamma koyu (sale
117
Kavalappara
Kot,arath1l
J<ochuni
v.
State of Madras
Subba Rao].
K avalappnra
Kottarath11
Kochuni
v.
State of Madras
Subba Rao].
902
SUPREME COURT REPORTS
(1960)
or transfer in perpetuity of the right of cultivation), kariama (right of perpetual enjoyment),
cooderoopad or nelamuri (assignment of rent produce), kutti kanom (mortgage of forests, the mortgagee felling the timber for trade and paying a fee on
each stump or tree to the landlord). These rights
may be extinguished or modified.
A law may regulate the rights between a janmi and his subordinate
tenure-holders ; but it may also affect his rights unconnected with the tenure. To illustrate : A janmi
holds 10 acres of land in janmam right, out of which
he may sell 2 acres each to five persons; the land is
divided into 5 plots held by different holders, but
each one continues to have full rights of a janmi; the
janmam right is not extinguished or modified, though
the land is divided between 5 persons. That is what
the imp_ugned Act purports to 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 (1).
In that
case, the constitutional validity of the Bombay
Tenancy and Agricultural Lands (Amendment) Act,
1956 (Born. 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 of the
tenant failing to appear or making a statement that
he is not willing to purchase the land or committing
default in payment of the price thereof as determined
. (1) [1959] Supp. 1 S.C.R. 489.
-
. .,
-
·--. ... -.
3 S.C.R. SUPREME COURT REPORTS
903
by the Tribunal constituted for that purpose. This
Act was, therefore, enacted to implement the agrarian reform in that part of the country and it
expressly confers certain rights on tenants in respect
of their tenements which they did not have before.
The Act creates absolute rights in a tenant which
was either by the extinguishment or by modification
of a landlord's rights and conferment of the same on
the tenant. This law is, therefore, one pertaining to
the land-tenure of the State.
The second decision is that in Atma Ram v. State
of Punjab (1).
There, this Court was concerned with
the provisions of the Punjab Security of Land Tenure
Act (10 of 1953) (as amended by Act 11 of 1955).
Under that Act, the substantive rights of a landowner were modified in three respects, namely, (1) it
modified his rights of settling his lands on _any terms
and to any one he chooses ; (2) it modified, if it did
not altogether extinguish, his right to cultivate the
surplus area as understood under the Act; and (3) it
modified his right of transfer in so far as it obliged
him to sell lands not at his own price but at a price
fixed under the statute, and not to any one but to
specified persons, in accordance with the provisions of
the Act.