# Supp. KAVALAPPARA KOTTARATHIL KOCHUNNI MOOPIL NAYAR v. THE STATE OF MADRAS AND OTHERS

- **Citation:** [1959] Supp. 2 S.C.R. 316
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. R. Das, N. H. BHAGWA'l'I, B. P. Sinha, K. SumiA ltAo, K. N. WANCHoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supp-kavalappara-kottarathil-kochunni-moopil-nayar-v-the-state-of-madras-and-1652
- **Pages:** 23

## Headnote

Fundamental Rights, Enforcement
of-Maintainability of
petition-Powers a.11-d jurisdiction of Supreute Court-Extcnt-Consiiiution of India, Art. 32.
The petitioner in Petition No. L!J was the Moopil Nair of
the Kavalappara sthanam and, as the sthanee, claimed to be the
sole proprietor of the sthanam properties. The respondents
Nos. 2 to rJ, who were the junior members of the Kavalappara
tarwad or family, resisted the claim on the ground that the properties were tarward properties and they had rights in them.
There was litigation between the parties and ultimately the
Privy Council held in favour of the petitioner. The petitioner
transferred some of the properties to his wife and t\vo <laughters
and son and they:were the petitioners in the t'vo other petitions.
The parties were governed by the Marumakkathayam Law and
in 1955 the l\1adras Legislature, purporting to remove certain
misapprehensions evident in decisions of courts, passed the
Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Act
32 of 1955), which bys. z provided as follows:-
" 2.
Certain kinds of sthanam properties declared to be
tarward properties :-Notwithstanding any decision of Court,
any sthanam in respect of 'vhich-
(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 sthanan1 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,
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,
(Madras Act XXJI of 1932), shall apply."
(2) S.C.R.
SUPREME COURT HEPORTS
317
Immediately after the publication of the Act, the respondents Nos. 2 to lJ, published notices in the press that by reason
of the passing of the Act, Kavalappara estate had become their
tarwad property and that rents could be paid to the sthanee
only· as the Karna van of the properties and not otherwise. The
notices further stated that the done es under the i wo deeds of
gift executed by the sthanee were not entitled to the properties
conveyed to them and should not be paid any rents at all. One
of the respondents filed a partition suit and others also contemplated doing the same. The petitioners sought for a writ of
mandamus or any other writ or order directing the respondents
to forbear from enforcing the impugned Act against the sthanee
and the sthanam estate and declaring the Act to be unconsti tutional and invalid. Preliminary objection was raised on behalf
of some of the respondents as to the maintainability of the petitions and it was contended that (1) the prayer for a writ
of mandamus was not maintainable since there was an adequate
remedy in the partition suit filed by one of the respondents; (2)
that violation of right of property by private individuals was
not within the purview of Art. 19(1)(£) or Art. 31(1) and the
remedy was not by way of application under Art. 32; (3) that
no application under Art. 32 could be maintained until the State
had taken or threatened to take any action under the impugned
law that would infringe fundamental rights; (4) that the proceeding under Art. 32 could not be converted into or equated with a
declaratory suit under s. 42 of the Specific Relief Act in and (5)
that this court could not, on an application under Art. 32, embark
upon an enquiry·into disputed questions of fact.
Held (per Das, C. J., Bhagwati, Sinha and Subba Rao, JJ.),
that all the contentions must be negatived and all the preliminary
objections must fail.
The right to enforce a fundamental right conferred by the
Constitution was itself a fundamen

## Text

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I959
iYJ arch 4.
316
SUPREME COURT REPORTS
[1959] Supp.
KAVALAPPARA KOTTARATHIL KOCHUNNI
MOOPIL NAYAR
v.
THE STATE OF MADRAS AND OTHERS
(and connected petition)
(S. R. DAS, c. J., N. H. BHAGWA'l'I, B. P. SINHA,
K. SumiA ltAo and K. N. WANCHoo, JJ.)
Fundamental Rights, Enforcement
of-Maintainability of
petition-Powers a.11-d jurisdiction of Supreute Court-Extcnt-Consiiiution of India, Art. 32.
The petitioner in Petition No. L!J was the Moopil Nair of
the Kavalappara sthanam and, as the sthanee, claimed to be the
sole proprietor of the sthanam properties. The respondents
Nos. 2 to rJ, who were the junior members of the Kavalappara
tarwad or family, resisted the claim on the ground that the properties were tarward properties and they had rights in them.
There was litigation between the parties and ultimately the
Privy Council held in favour of the petitioner. The petitioner
transferred some of the properties to his wife and t\vo <laughters
and son and they:were the petitioners in the t'vo other petitions.
The parties were governed by the Marumakkathayam Law and
in 1955 the l\1adras Legislature, purporting to remove certain
misapprehensions evident in decisions of courts, passed the
Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Act
32 of 1955), which bys. z provided as follows:-
" 2.
Certain kinds of sthanam properties declared to be
tarward properties :-Notwithstanding any decision of Court,
any sthanam in respect of 'vhich-
(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 sthanan1 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,
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,
(Madras Act XXJI of 1932), shall apply."
(2) S.C.R.
SUPREME COURT HEPORTS
317
Immediately after the publication of the Act, the respondents Nos. 2 to lJ, published notices in the press that by reason
of the passing of the Act, Kavalappara estate had become their
tarwad property and that rents could be paid to the sthanee
only· as the Karna van of the properties and not otherwise. The
notices further stated that the done es under the i wo deeds of
gift executed by the sthanee were not entitled to the properties
conveyed to them and should not be paid any rents at all. One
of the respondents filed a partition suit and others also contemplated doing the same. The petitioners sought for a writ of
mandamus or any other writ or order directing the respondents
to forbear from enforcing the impugned Act against the sthanee
and the sthanam estate and declaring the Act to be unconsti tutional and invalid. Preliminary objection was raised on behalf
of some of the respondents as to the maintainability of the petitions and it was contended that (1) the prayer for a writ
of mandamus was not maintainable since there was an adequate
remedy in the partition suit filed by one of the respondents; (2)
that violation of right of property by private individuals was
not within the purview of Art. 19(1)(£) or Art. 31(1) and the
remedy was not by way of application under Art. 32; (3) that
no application under Art. 32 could be maintained until the State
had taken or threatened to take any action under the impugned
law that would infringe fundamental rights; (4) that the proceeding under Art. 32 could not be converted into or equated with a
declaratory suit under s. 42 of the Specific Relief Act in and (5)
that this court could not, on an application under Art. 32, embark
upon an enquiry·into disputed questions of fact.
Held (per Das, C. J., Bhagwati, Sinha and Subba Rao, JJ.),
that all the contentions must be negatived and all the preliminary
objections must fail.
The right to enforce a fundamental right conferred by the
Constitution was itself a fundamental right guaranteed by Art.
32 of the Constitution and this court could not refuse to entertain a petition under that Article simply because the petitioner
might have any other adequate, alternative, legal remedy.
Rashid Ahmed v. Municipal Board, Kairana, [1950] S.C.R
566 and Ramesh Thappar v. The State of Madras, [1950] S.C.R.
594, referred to.
In the instant cases as the grievance of the petitioners
was primarily against the impugned Act passed by the Madras
Legislature, which was a State as defined by Art. 12 of the Constitution and the dispute was not one between two sets of private
individuals but between the petitioners on the one hand and the
State and persons claiming under a law made by the State on the
other, Art. 32 must apply.
P. D. Shamclasani v. Central Bank of India Ltd., [1952] S.C.R.
39r, distinguished and held inapplicable .
. Where an enactment such as the impugned Act, unlike
I959
]( avalappara
K ottarathil
Kocliunni
Moopil Nayar
"·
The State of
1\1 ~dras & Others
r959
KaValappara
](ottarathil
Kochunni
Moopil Nayar
v.
318
SUPREME COURT REPORTS [1959] Supp.
others that contemplated some further action to be taken by the
State after the enactment had come into force, automatically
took away or abridged.a person's fundamental rights immediately. it came into force, there was no reason why the aggrieved
person ,shoul4 not immediately be entitled to seek the remedy
under Art. 32 of the Constitutibn.
ThB State of
.l\.fadras 6- Others
State of Bombay v. United Motors (India) Limited, [r953]
S'.C.R. ro69 and Himmatlal Harilal Mehta v. The State of Madhya
Pradesh, [r954] S.C. R. rr22, referred to.
In view of the language used in s. 2 of .the impugned Act
and its effect, there could be no doubt that the petitioners could
legiti[Uately complain that their fundamental right to hold and
dispose of the sthanam properties have been viola led by the
action of the Legisla lure.
Artie!~ 32 of the Constitution conferred Mde powers on this
Court and such 'powers were not confined to the issuing of prerogative writs alone. In appropriate cases, this court had the
right in its discretion to frame its writs or orders suitable to
the exigencies created by enactments.
It was clear on the
authorities that this Court could, where the occasion so required,
make. eyen a declaratory order with consequential relief under
Art. 32 of the Constitution.
·
Chiranjit Lal Chowdhury v. The Unio" of Indiq, [r950] S.C.R.
900, Rashid Ahmed v. Municipal Board, Kaira1'a, [1950] S.C.R. 566,
T. C. Basappa v. T. Nagappa, [r955] r S.C.R. 250 and Ebrahim
Vazir Mayat v. The State of Bombay, [r954] S.C.R. 933, relied on.
Maharaj Umeg Singh v. The State of Bombay, [r955] 2 S.C.R.
I64, considered.
This court would fail in its duty as the custodian and protector of the fundamental rights if it were to decline to entertain
a petition under Art. 32 simply because it involved the determination of disputed ·questions of fact.
Clause (2) of Art. 32 conferred on this court the power to issue directions or orders or
\vrits of various kinds mentioned therein and in dismissing a
petition, it had either to hold that any particular writ asked for
was not appropriate to the occasion or that the petitioner had
failed to establish a fundamental right or its breach. In either
case, however, it had to decide the petition on merits.
Chiranjit l,.al Chowdhuri v. The Unio1' of India, [r950] S.C.R.
869, Kathi Raning Rawat v. The State of Saurashtra,. [1952] S.C.R.
435 and J.?amkrishna Dalmia v. Shri Justice S. R. Tendolkar,
[1959] S.C.R. 279, referred to.
In appropriate cases opportunity might also be given to the
parties to establish their cases by further affidavits, or by issuing
a commission or even by setting the application down for trial on
evidences.
Per Wanchoo, J.-If the petitions were based solely on the
infringement of Ar~. r4, there could be no doubt that they would
not be maintainable. Even though they were based on the
(2) S.C.R.
SUPREME COURT REPORTS
319
infringement of Art. 19(1)(£) also, their maintainability would
still be in doubt in the absence of any further provision in the
impugned Act for its direct enforce.ment by the State.
ORIGINAL JURISDICTION:
Petitions No. 433 of 1955
and 40-41 of 1956.
Petitions under Article 32 of the Constitution of
India for enforcement of Fundamental Rights.
M. 0. Setalvad, Attorney-General for India, M. K.
Nambiyar, J. B. Dadachanji, S. N. Andley
and
Rameshwar Nath, for the petitioners.
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.
M. R. Krishna Pillai, for respondents Nos. 2-9.
Purshottam Tricumdas and M. R. Krishna Pillai,
for respondent No. 12 in Petitions Nos. 40 and 41 of
1956.
K. R. Krishnaswami, for respondents Nos. 11, 13-17
in Petn. No. 443 of 55.
Purshottam Tricumdas and K. R. Krishnaswami, 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.
M. R. Krishna Pillai, for Intervener No. 3.
1959. March 4.
The Judgment of Das, C. J., Bhagwati, Sinha and Subba Rao, J J., was delivered by
Das, C. J. Wanchoo, J., delivered a separate Judgment ..
DAS, C. J.-The circumstances leading up to the
presentation of the above noted three petitions under
Art. 32, which have been heard together, may be
shortly stated :
In pre-British times the Kavalappara Moopil Nair,
who was the senior-most male member of Kavalappara Swaroopam of dynastic family, was the ruler of
the Kavalappara territory situate in Walluvanad
I959
K avalappara
Kottarathil
Kochunni
Moopil Nayar
v.
The State of
Madras & Other,>
Das C. ].
320
SUPREME COURT REPORTS [1959] Supp.
r959
Taluk in the district of South Malabar. He was an
independent prince or chieftain having sovereign
J(avalappara
h'
.
d
h
ICotto.athil
rights over is territory an as sue was the holder of
Hochimni
the Kavalappara sthanam, that is tp say, "the sta.tus .
Moopil Naya1 and the attendant property of the senior Raja".
v.
Apart from the Kavalappara sthanam, which was a
The 5101'0 °(
Rajasthanam, the Kavalappara Moopil Nair held five
Madias Ci,
1'"" th
th
· th
d' t · t
t d t h'
_
o er s anams m
e same
IS rw gran e
o
IS anDas c. ;.
cestors by the superior overlord, the Raja of Palghat,
as reward for military services rendered to the latter.
He also held two other sthanams in Cochin, granted
to his ancestors by another overlord, the Raja of
Cochin, for military services. Each of these sthanams
has also properties attached to it and such properties
belong to the Kavalappara Moopil Nair who is the
sthanee thereof.
On the death in 1925 of his immediate predecessor the petitioner in Petition No. 443 of
1955 became the Moopil Nair of Kavalappara and as
such the holder of the Kavalappara sthanam to which
is attached the Kavalappara estate and also the
holder of the various other sthanams in Mahi.bar and
Cochin held by the Kavalappara Moopil Nair. The
petitioner in Petition No. 443 of 1955 will hereafter be
referred to as " the sthanee petitioner ". According
to him all the properties attached· to all the sthanams
belong to him and respondeuts 2 to 17, who are the
junior members of the Kavalappara family or tarwad,
have no interest in them.
The Madras Marumakkattayam Act (Mad. XXII of
1932) passed by the Madras Legislature came into
force on August 1., 1933. This Act applied to tarwads ·
and not to sthanams and s. 42 of the Act gave to the
members of a Malabar tarwad a right to enforce pa.rtition of tarward properties or to have them registered
as impartible. In March 1934 respondents 10 to 17,
then constituting the entire Kavalappara tarwad,
applied under s. 42 of the said Act for registration of
their family as an impartible tarwad. In spite of the
objection raised by the sthanee petitioner, the SubCollector ordered the registration of the Kavalappara
tarwad as impartible. The sthanee petitioner applied
to the High Court of Madras for the issue of a writ to
(2) S.C.R. SUPREME COURT REPORTS
321
quash the order of the Sub Collector, but the High
x959
Court declined to do so on the ground that the sthanee
petitioner had no real grievance as the said order did
~~;~'.;!a~::za
not specify any particular property as impartible
Kochunni
property. While this decision served the purpose of Moopil Nayar
the sthanee petitioner, it completely frustrated the
v.
object of respondents IO to 17. On April IO, 1934,
The State of
therefore, respondents IO to 17 filed 0. S. No. 46 of Madras &- Others
1934 in the court of the Subordinate Judge of Otta.
Das C. ].
palam for a declaration that all the properties under
the management of the defendant (meaning the
sthanee petitioner) were tarwad properties belonging
equally and jointly to the plaintiffs (meaning the respondents IO to 17 herein) and the defendant, i.e., the
sthanee petitioner, and that the latter was in management thereof only as the Karna van and manager of
the tarwad. The sthanee petitioner contested the
suit asserting that he was the Kavalappara Moopil
Nair and as such a sthanee and that the properties
belonged to him exclusively and that the plaintiffs
(the respondents 10 to 17 herein) had no interest in
the suit properties. By his judgment pronounced on
February 26, 1938, the Subordinate Judge dismissed
the 0. S. "46 of 1934. The plaintiffs (the respondents
10 to 17 herein) went up in appeal to the Madras
High Court, which, on April 9, 1943, allowed the
appeal and reversed the decision of the Subordinate
Judge and decreed the suit. That judgment will be
found reported in Kuttan Unni v. Kochunni (1). The
defendant, i.e., the sthanee petitioner herein· carried
the matter to the Privy Council and the Privy Council by its judgment, pronounced on July ~9, 1947,
reversed the judgment of the High Court and restored
the decree of dismissal of the suit passed by the Subordinate Judge. In the meantime in 1946 respondents 10 to 17 had filed a suit (0. S. 77 of 1121) in the
Cochin Court claiming similar reliefs in respect of the
Cochin sthanam. After the judgment of the Privy
Council was announced, respondents 10 to 17 withdrew the Cochin suit. The matter rested here for the
time being.
(1) (1943) I.L.R. [1944) Mad. 515.
4l
1959
Kavalappara
Kotlarathil
Kochunni
M oopil Nayar
v.
The S1ate of
Madras &- Others
Das C. ].
322
SUPREME COURT REPORTS
[1959] Supp.
On February 16; 1953, respondents 10 to 17 took
the initiative again and presented a Memorial to the
Madras Government asking that legislation be undertaken to reverse the Privy Council decision.
The
Government apparently did not think fit to take any
action on that Memorial. Thereafter a suit was filed
in the g_ourt of the Subordinate Judge at Ottapalam
by respondents 2 to 9 who were then the minor members of the tarwad claiming Rs. 4,23,000 as arrears of
maintenance and Rs. 44,000 as yearly maintenance
for the future.
The suit was filed in forma pauperis.
There were some interlocutory proceedings in this suit
for compelling the defendant (i.e., the sthanee petitioner) to deposit the amount of the maintenance into
court which eventually came up to this Court by special leave but to which it is not necessary to refer in
detail. During the pendency of that pauper suit, the
sthanee petitioner, on August 3, 1955, executed two
deeds of gift, one in respect of the Palghat properties
in favour of his wife and two daughters who are the
petitioners in Petition No. 40 of 1956 and the second
in respect of the Cochin properties in favour of his son
who is the petitioner in Petition No. 41 of 1956.
Meanwhile respondents 2 to 17 renewed their efforts
to secure legislation for the reversal of the decree of
the Privy Council and eventually on August 8, 1955,
procured a private member of the Madras Legislative
Assembly to introduce a Bill (L. A. Bill N o .. 12 of 1955)
intituled " The Madras Marumakkathayam (Removal
of Doubts) Bill, 1955" with only two clauses on the
allegation, set forth in the statement of objects and
reasons appended to the Bill, that certain decisions of
courts of law had departed from the age old customary law of Marumakkathayees with regard to sthanams and sthanam properties and that those decisions
were the result of a misapprehension of the customary
law which governed the Marumakkathayees from
ancient times and tended to disrupt the social and
economic structure of several ancient Marumakkathayam families in Malabar in that Karnavans oftarwad
were encouraged to claim to be sthanees and thus
deny the legitimate rights of the members of tarwads
(2) S.C.R.
SUPREME COURT REPORTS
323
with the result that litigation had arisen or were pendr959
ing. It was said to be necessary, in the interests of
1\avalappara
harmony and well being of persons following the
Kottarathil
Marumakkathayam law, that the correct position of
Kochunni
customary law governing sthanams and sthanam
Moopil Nayar
properties should be clearly declared.
This Bill came
v.
before the Madras Legislative Assembly on August MTdhe 5':1"0 °h1
, d
T
.
a ras .,,.
t ers
20, 1955, and was passed on the same ay.
he Bill
_
having been placed before the Madras Legislative
Das c. J.
Council, the latter. passed the same on August 24, 1955.
The assent of the President to the Bill was obtained
on October 15, 1955, and the Act intituled "the
Madras Murumakkathayam (Removal of Doubts) Act,
1955" being Madras Act 32 of 1955 and hereinafter
referred to as the impugned Act, was published in the
official gazette on October 19, 1955.
Section 1 of the
impugned Act is concerned with the short title and its
application. Section 2, which is material for our
purposes, is expressed in the following terms :
"2. Certain kinds of sthanam properties declared to be tarwad properties :::..__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,
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, (Madras Act XXII of 1933), shall apply.
Explanation-All words and expressions used in
this Act shall bear the same meaning as in the Madras
324
SUPREME COURT REPORTS [1959) Supp.
'959
Marumakkathayam Act, 1932 (Madras Act XXII of
1933)."
K;;,~~"!'af:;z"
Almost immediately after the publication of the
Kochunni
impugned Act in the gazette, respondents 2 to 17
Moopil Nayar
published notices in " Mathrubumi ", a Malayalam
v.
daily paper with large circulation in Malabar, Cochin
Th• State 0h1
and Travancore, to the effect that by reason of the
Madras & 01 ers
•
f h ·
d A
K
1
h d
_
passmg o t e impugne
ct,
ava appara estate a
Das c. J.
become their tarwad properties and that rents could
be paid to the sthanee petitioner only as the Karnavan of the properties and not otherwise. The notices
further stated that the donees under the two deeds of
gift executed 'by the sthanee petitioner were not entitled to the properties conveyed to them and should
not be paid any rent at all. After the passing of the
impugned Act one of the respondents filed another
suit, also inf orma pauperis, in the same court. It is
also alleged by the petitioners that respondents 2 to
17 are contemplating the filing of yet another suit for
partition, taking ad vantage of the provisions of the
impugned Act.
•
It was in these circumstances detailed above that
the Kavalappara Moopil Nair, i.e., the sthanee petitioner, on December 12, 1955, filed the present petition
No. 443 of 1955 under Art. 32 of the Constitution.
This was followed by Petition No. 40 of 1956 by his
wife and two daughter.sand Petition No. 41 of 1956
by his son. Both the last mentioned petitions were
filed on February 3, 1956. The first respondent in all
the three petitions is the State of Madras and respondents 2 to 17 are the members of the sthanee petitioner's tarwad. In his petition the sthanee petitioner
prays "that a writ of Mandamus or any other proper
writ, order or directions be ordered to issue for the
purpose of enforcing his fundamental rights, directing
the respondents to forbear from enforcing any of the
provisions of the Madras Act 32 of 1955 against the
petitioner, his Kavalappara sthanam and Kavalappara estate, declaring the said Act to be unconstitutional and invalid". The prayers in the other two
petitions are mutatis mutandis the same.
Shri Purshottam Tricumdas appearing for some of
(2) S.C.R. SUPREME COURT REPORTS
325
the respondents has taken a preliminary objection as
to the maintainability of the petitions. The argument
in support of his objection has been developed and
elaborated by him in several ways. In the first place,
he contends that the petitions, in so far as they pray
for the issue of a writ of Mandamus, are not maintainable because the
petitioners have an adequate
remedy in that they can agitate the questions now
sought to be raised on these petitions and get relief in
the pauper suit filed by one of the respondents after
the passing of the impugned Act. This argument
overlooks the fact that the present petitions are under
Art. 32 of the Constitution which is itself a guaranteed
right. In Rashid Ahmed v. Municipal Board, .Kairana (1) this Court repelled the submission of the Advocate-General of Uttar Pradesh to the effect that, as
the petitioner had an adequate legal remedy by way
of appeal, this Court should not grant any writ in the
nature of the prerogative writ of Mandamus or Certiorari and observed :
"There can be no question that the existence of
an adequate legal remedy is a thing to be taken into
consideration in the matter of granting writs, but the
powers given to this Court under Art. 32 are much
wider and are not confined to issuing prerogative
writs only."
Further, even if the existence of other adequate legal
remedy may be taken into consideration by the High
Court in deciding whether it should issue any of the
prerogative writs on an application under Art. 226 of
the Constitution, as to which we say nothing nowthis Court cannot, on a similar ground, decline to
entertain a petition under Art. 32, for the right to
move this Court by appropriate proceedings for the
enforcement of the rights conferred by Part III of the
Constitution is itself a guaranteed right.
It has
accordingly been held by this Court in Ramesh
Thappar v. The State of Madras (2) that under the
Constitution this Court is constituted the protector
and guarantor of fundamental rights and it cannot,
consistently with the responsibility so laid upon it,
(1) [1950] S.C.R. 566.
(2) [1950] S.C.R. 594·
1959
K avalappara
K ottarathil
Kochunni
M oopil Nayar
v.
The State of
Madras & Others
Das C. ].
1959
Kavalappara
Kottarathil
J(ovhunni
Moopil Nayar
v.
The State of
Madras & Others
Das C. ].
326
SUPREME COURT REPORTS [1959) Supp.
refuse to entertain applications seeking the protection
of this Court against infringement of such rights,
although such applications are made to this Court in
the first instance without resort to a High Court
having concurrent jurisdiction in the matter. The
mere existence of an adequate alternative legal remedy cannot per se be a good and sufficient ground for
throwing out a petition under Art. 32, if the existence
of a fundamental right and a breach, actual or ·
threatened, of such right is alleged and is prima f acie
established on the petition.
The second line of argument advanced by learned
counsel is that the violation of the right to property
by private individuals is not within the purview of
Art. 19(l)(f) or Art. 31(1) and that a person whose
right to property is infringed by a private individual
must, therefore, seek his remedy under the ordinary
law and not by way of an application under Art. 32.
In support of this part of his argument, learned counsel relies on the decision of this Court in P. D. Shamdasani v. Central Bank of India Ltd. (1).
In that case
the respondent Bank had, in exercise of its right of
lien under its articles of association, sold certain
shares belonging to the petitioner and then the latter
started a series of proceedings in the High Court
challenging the right of the Bank to do so.
After a
long lapse of time, after all those proceedings had
been dismissed, the petitioner instituted a suit against
the Bank challenging the validity of the sale of his
shares by the Bank. The plaint was rejected by the
court under 0. 7, r. ll(d) of the Code of Civil Procedure as barred by limitation. Thereupon the petitio·-
ner filed an application under Art. 32 of the Constitution praying that all the adverse orders made in the
previous proceedings he quashed and the High Court
be directed to have " the above suit set down to be
heard as undefended and pronounce judgment against
the respondent or to make such orders as it thinks fit
in relation to the said suit". It will be noticed that
' the petitioner had no grievance against the State as
defined in Art. 12 of the Constitution and his petition
(1) [1952] S.C.R. 391.
(2) S.C.R.
SUPREME COURT REPORTS
327
was not founded on the allegation that his fundamental right under Art. 19(l)(f) or Art. 31(1) had been
infringed by any action of the State as so defined or
by anybody deriving authority from the State. The
present position is, however, entirely different, for the
gravamen of the complaint of the sthanee petitioner
and the other petitioners, who claim title from him, is
directly against the impugned Act passed by the
Madras Legislature, which is within the expression
" State " as defined in Art. 12. Therefore in the cases
now before us the petitions are primarily against the
action of the State and respondents 2 to 17 have been
impleaded because they are interested in denying the
petitioner's rights created in their favour by the impugned Act.
Indeed by means of suits and public
notices, those respondents have in fact been asserting
the rights conferred upon them by the impugned Act.
In these circumstances, the petitioners' grievance is
certainly against the action of the State which, by
virtue of the definition of that term given in Art. 12
of the Constitution, includes the Madras Legislature
and it cannot certainly be said that the .subject
matters of the present petitions comprise disputes
between two sets of private individuals unconnected
with any State action. Clearly disputes are between
the petitioners on the one hand and the State and
persons claiming under the State or under a, law made
by the State on the other hand. The common case
of the petitioners and the respondents, therefore, is
that the impugned Act does affect the right of the
petitioners to hold and enjoy the properties as sthanam properties; but, while the petitioners contend
that the law is void, the respondents maintain the
opposite view. In our opinion these petitions under
Art. 32 are not governed by our decision in P. D. Shamdasani's case (1) and we see no reason why, in the
circumstances, the petitioners should be debarred
from availing themselves of their constitutional right
to invoke the jurisdiction of this Court for obtaining
redress against infringement of their fundamental
rights.
(r) [1952] S.C.R. 391,
1959
Kavalappara
Kottarathil
Kochunni
M oopil Nayar
v.
The Slate of
Madras & Others
Das C. ].
I959
Kavalappara
Kottarathil
Kochunni
M oopil Nayar
v.
The State of
Madras &- Others
Das C. ].
.
328
SUPREM:lli COURT REPORTS [1959) Supp.
The third argument in support of the preliminary
point is that au application under Art. 32 cannot be
maintained until the State has taken or threatens to
take any action under the impugned law which action,
if permitted to be taken, will infringe the petitioners'
fundamental rights. It is true that the enactments
abolishing estates contemplated some action to be
taken by the State, after the enactments came into
force, by way of issuing notifications, so as to vest
the estates in the State and thereby to deprive the
proprietors of their fundamental right to hold and
egjoy their estates. Therefore, under those enactments some overt act had to be done by the State
before the proprietors were actually deprived of their
right, title and interest in their estates. In cases'
arising under those enactments the proprietors could
invoke the jurisdiction of this Court under Art. 32
when the State did or threatened to do the overt act.
But quite conceivably an enactment may immediately
on its coming into force take away or abridge the
fundamental rights of a person by its very terms and
without any further overt act being done.
The impugned Act is said to be an instance of such enactment. In such a case the infringement of the fundamental right is complete eo instanti the passing of the
enactment and, therefore, there can be no reason why
the person so prejudicially affected by the law should
not be entitled immediately to avail himself of the
constitutional remedy under Art. 32.
To say that a
person, whose fundamental right has been infringed
by the mere operation of an enactment, is not entitled
to invoke the jurisdiction of this Court under Art. 32,
for the enforcement of his right, will be to deny him
the benefit of a salutary constitutional remedy which
is itself his fundamental right. The decisions of this
Court do not compel us to do so. In the State of Bombay v. United Motors (India) Limited (1) the petitioners
applied to the High Court on November 3, 1952,
under Art. 226 of the Constitution challenging the
validity of the Bombay Sales Tax Act, 1952, which
came into force on November 1, 1952.
No notice had
(1) (1953] S.C.R. 1069.
(2) s.c.R.
St1PR~M~ COUR'r R~PORTS
329
been issued, no assessment proceeding had been started and no demand had been made on the petitioners
for the payment of any tax under the impugned Act.
It should be noted that in that petition one of the
grounds of attack was that the Act required the
dealers, on pain of penalty, to apply for registration in
some cases and to obtain a license in some other cases
as a condition for the carrying on of their business,
which requirement, without anything more, was said
to have infringed the fundamental rights of the petitioners under Art. 19(1)(g) of the Constitution and no
objection could, therefore, be taken to the maintainability of the application. Reference may also be
made to the decision of this Court in Himmatlal Harilal Mehta v. The State of Madhya Pradesh (1).
In that
case, after cotton was declared, on April 11, 1949, as
liable to sales tax under the Central Provinces and
Berar Sales T!J.x Act, 1'947, the appellant commenced
paying the tax in respect of the purchases made by
him and continued to pay it till December 31, 1950.
Having been advised that the transactions done by
him in Madhya Pradesh were not " sales" within that
State and that consequently he could not be made
liable to pay sales tax in that State, the appellant
declined to pay the tax in respect of the purchases
made during the quarter ending March 31, 1951.
Apprehending that he might be subjected to payment
of tax without the authority of law, the appellant presented an application to the High Court of Judicature
at Nagpur under Art. 226 praying for an appropriate
writ or writs for securing to him protection from the
impugned Act and its enforcement by the State.
The High Court declined to issue a writ and dismissed the petition on the ground that a mandamus could be issued only to compel an authority
to do or to abstain from doing some act and that
it was seldom anticipatory and was certainly never
issued where the action of the authority was depen:
dent on some action of the appellant and that in
that case the appellant had not even made his return
and no demand for the tax could be made from him.
(I) [1954] S.C.R. II22.
42
I959
Kavalappara
J( ottarathil
Kochunni
Moopil Nayar
v,
The State of
Madras b Others
Das C. ].
I959
Kavalappara
f(ottarathil
I<ochunni
/11 oopil Nayar
v.
Th~ State of
Madras & Others
Das C. ].
330
StJPREME COtJRT REPORTS [1!}591 Supp.
Being aggrieved by that decision of the High Court,
the petitioner in that case came up to this Court
on appeal and this Court held that a threat by
the State to realise the tax from the assessee without
the authority of law by using the coercive machinery
of the impugned Act was a sufficient iufringemcnt of
his fundamental right which gave him a right to seek
relief under Art. 226 of the Constitution. It will be
noticed that the Act impugned in that case had by its
terms made it incumbent on all dealers to submit
returns, etc., and thereby imposed restrictions on their
fundamental right to carry on their businesses under
Art. 19(1) (g).
The present case, however, stands on
a much stronger footing. The sthanee petitioner is the
Kavalappara Moopil Nair and as such holds certain
sthanams and the petitioners in Petitions Nos. 40 and
41 of 1956 derive their titles from him.
According to
the petitioners, the sthanee pet.itioner was absolutely
entitled to all the properties attached to all the sthanams and respondents 2 to 17 had no right, title or
interest in any of the sthanam properties. Immediately after the passing of the impugned Act, the Madras
Marumakkathayam Act, 1932, became applicable to
the petitioners' sthanams and the petitioners' properties became subject to the obligat.ions and liabilities
imposed by the last mentioned Act. On the passing
of the impugned Act, the sthanee petitioner immediately became relegated from the status of a sthanee to
the status of a Karna van and manager and the sthanam properties have become the tarwad properties
arid respondents 2 to 17 have automatically become
entitled to a share in those properties along with the
petitioners. The right, title or interest claimed by
petitioners in or to their sthanam properties is, by the
operation of the statute itself and without anything
further being done, automatically taken away or
abridged and the impugned Act has the effect of auto~
inatically vesting in respondents ·2 to 17 an interest in
those properties as members of the tarwad. Indeed
respondents 2 to 17 are asserting their rights and have
issued public notices on "the basis thereof and have
also instituted a suit on the strength of the rights
(2) S.C.R. SUPREME COURT REPORTS
331
created in them by the impugned Act.
Nothing further remains to be done to infringe the pe~itioners'
right to the properties as sthanam properties. It is
true that the sthanee petitioner or the other petitioners
deriving title from .him are still in possession of the
sthanam properties, but ·in the eye of law they no
loncrer possess the right of the sthanee and they cannot~ as the sthanee or persons deriving title from the
sthanee, lawfully claim any rent from the tenants. In
view of the language employed in s. 2 quoted above
and its effect the petitioners can legitimately complain
that their fundamental right to hold and dispose of
the sthanam properties has been injured by the action
of the Legislature which is "State" as defined in Art.
12 of the Constitution. In the premises, the petitioners are prima f acie entitled to seek their fundamental
remedy under Art. 32.
The next argument in support of the objection as
to the maintainability of these petitions. is thus formulated: The impugned Act is merely a piece of a
declaratory legislation and does not contemplate or
require any action to be taken by the State or any
other person and, therefore, none of the well-known
prerogative writs can afford an adequate or appropriate remedy to a person whose fundamental right has
been infringed by the mere passing of the Act. If such
a person challenges the validity of such an enactment,
he must file a regular suit in a court of competent
jurisdiction for getting a declaration that the law is
void and, therefore, cannot and does not effect his right.
In such a suit he can also seek consequential ·reliefs by
way of injunction or the like, but he cannot avail
himself of the remedy under Art. 32.
In short, the
argument is that the proceeding under Art. 32 cannot
be converted into or equated with a declaratory suit
under s. 42 of the Specific Relief Act.
Reference is
made, in support of the aforesaid contention, to the
following passage in the,judgment of Mukherjea, J., as
he then was, in the case of Chiranjit Lal Chowdhuri v.
The Union of India (1) :-
" A.s regards the other point, it would appear from
(1) [1950] S.C.R. 869, goo.
1959
Ka"7ialappara
K ollarathil
Kochunni
Moopil Nayar
v.
The Slate of
Madras & Others
Das C. ].
I959
KavalapPara
Kottarathil
Kochunni
Moopil Nayar
v.
The State of
Madras &- Others
Das C. ].
-332
SUPREME' COUl'tT REPORTS [1959j Supp.
the language of article 32 of the Constitution that the
sole object of the article is the enforcement of fundamental rights guaranteed by the Constitution.
A
proceeding under this article cannot really have any
affinity to what is known as a de.claratory suit".
But further down on the same page his Lordship
said:-
" Any way, article 32 of the Constitution gives us
very wide discretion in the matter of framing our writs
to suit the exigencies of particular cases, and the
application of the petitioner cannot be thrown out
simply o.n the ground that the proper writ or direction
has not been prayed for".
It should be noted that though in that case the petitioner prayed, inter alia, for a declaration that the Act
complained of was void under Art. 13 of the Constitution it was not thrown out on that ground, The above
statement of the law made by Mukherjea, J., is in
accord with the decision of this Court in the earlier
case of Rashid Ahmed v. Municipal Board, Kairana (1).
The passage from our judgment in that case,
which has already been quoted above, also acknowledges that the powers given to this Court by Art. 32
are much wider and are not confined to the issuing of
prerogative writs only. The matter does not rest there.
In T. G. Basappa v. T. Nagappa (2) Mukherjea, J.,
again expressed the same view :-(Page 256).
"The language used in articles 32 and 226 of our
Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India
extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus,
quo warranto, prohibition and certiorari as may be
considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for
other purposes as well. In view of the express provisions of our Constitution we need not now look back
to the early history or the procedural technicalities of
these writs in English law, nor feel oppressed by any
difference or change of opinion expressed in particular
cases by English Judges".
(1) [1950) S.C.R. 566.
(2) [1955) I S.C.R. 250, 256.
(2) S.C.R.
SUPREME COURT REPORTS
333
In Ebrahim Vazir Mayat v. The State of Bombay (1)
the order made by the majority of this Court was
framed as follows:-
" As a result of the foregoing discussion we declare
section 7 to be void under Article 31(1) in so far as it
conflicts which the fundamental right of a citizen of
India under article 19(1) (e) of the Constitution and
set it aside.
The order will, however, operate only
upon proof of the fact that the appellants are citizens
of India.