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PETITIONER: THE PALACE ADMINISTRATION BOARD

       Vs.

RESPONDENT: RAMA VERMA BHARATHAN THAMPURAN & ORS.

DATE OF JUDGMENT27/03/1980

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. KOSHAL, A.D.

CITATION:  1980 AIR 1187            1980 SCR  (3) 187

ACT:      Review-when  the   Court  would   review  its   earlier judgment-earlier judgement clarified.      PER KRISHNA IYER AND DESAI JJ.

HEADNOTE:      In a  petition for  review, once  a clear  error in the judgment is  revealed no  sense of  shame  or  infallibility complex absesses or dissuades this Court from the anxiety to be ultimately right, not consistently wrong. [189 H]      Three points  were raised  for review  of  the  earlier judgment.      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 modified.      2. The  observations of  the Court  that the  Board  is composed of  the heads  or seniormost  members of  the  four branches of the family is not wholly correct.      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-C]      1. (a)  The second  point arising  out of three reliefs mentioned above was an inconsequential 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 ...... " was not correct because the Board was constituted by  the Royal Proclamation of 1124 and continued by later Acts. [193 D]      (b) 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  comply with was the directive 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  for 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. [193 G]

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    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  service.  A retired judge of the High Court has been playing the role of a mentor  and a  small committee of members has democratised and legitimated  the 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 should be liquidated cannot be acceded to. The valuation the Board has  carried out,  the alienations it has effected and provisional allotments it 188 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) It  is not  necessary to  demolish the work done by the Board upto now. The Boards decision cannot be arbitrary. 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. If the Board had 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  parties from the  office of  the Board.  The Board 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-C]      3. The  1976 Act  leaves in  tact, 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  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  Maharaja 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 and, 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 omission from the  Schedule of  the Acts  repealed has one effect and that is  that the  Board alone  has the  power to divide 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  1961 Act  also leads to the conclusion that child in the womb  is entitled  to a  share, whatever  the meaning of

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section 4(2) of the 1976 Act may be. Thus a close up 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 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. [200 B-G]      Koshal, 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. 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, they 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-G]      After the promulgation of the 1978 Act the Proclamation has to  govern the  Cochin royal family subject to section 3 of the 1961 Act as amended 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 Estate, and the Palace Fund under section 4 of the Kerala Joint Hindu 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-E]

JUDGMENT:      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 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.      KRISHNA 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

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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 190 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 necessary 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 royal family of the Maharajah of Cochin, if we may avoid the jaw-breaking description used in one of the relevant legislations  viz. The Valiamma Thampuran Kovilakam Estate and  Palace Fund  belonging  to  the  family  of  the Maharajah of  Cochin. A  capsulated survey  of the  landmark legislations will  help locate the controversy and liquidate the  error,   if  any.  This  family,  to  begin  with,  was impartible and  its administration  was  statutorised  by  a Royal  Proclamation   of  1124   (hereinafter   called   the Proclamation) which  constituted  a  Board  in  this  behalf consisting of five trustees to be nominated by the Maharajah with an  equitable eye  on representation  for  each  branch (tavazhi) of  the family. Sec. 2 (a) read with Sec. 4 of the Proclamation defines  the Board’s  composition which shows a slight oversight  on our  part in  the  earlier  order.  And thereafter, came  the Great Divide in the story of the royal family and  began its  slow integration into the commonalty, retaining in  some measure,  its peculiar  individuality. By Act 16  of 1961 (The Valiamma Thampuran Kovilakam Estate and Palace Fund  (Partition) Act,  1961 (for short the 1961 Act) 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 Malayalam,  and a  copy of  the notification shall be  affixed in  conspicuous place at the office of the Board. Of course,  partibility reflected  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 Amendment)  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- 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

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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 present review petition, 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  (1) Each member shall be entitled to an equal share of the Estate and the Palace Fund.      (2) The  share obtained  by a member on partition shall be the separate property of the member.      (3) A  child who  is in  the womb  on the  date of  the publication of  the decision  under Section  3  and  who  is subsequently born  alive shall  have the  some right  for  a share in  the Estate  and Palace Fund as any other member as if he  or she  had been  born on  or before the date of such publication.      We may state even here that the Maharaja never made the statutory declaration  under Sec.  3 and  so no  division in status took  place. The  next statutory  milestone which has relevance to  our legal  journey is  the Kerala  Joint Hindu Family System  (Abolition) Act,  1975 (Act  30 of 1976) (for short 1976  Act). By  this measure,  the joint family system among Hindus  in the  state of  Kerala was extinguished. All Marumakkathayam families  were embraced  by the  Act and the right by  birth in  ancestral properties was also put an end to. By force of s. 4 of that Act, joint family ownership 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. 192      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 partition  of such property per capita had taken place among all the members of the family living 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

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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  time-consuming task  and an  operation  involving legal know-how,  valuers’ skills  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. 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 of  the heads  or senior  most  members  of  the  4 branches of the family is not wholly correct.      (3) The  Order of this Court dated 30-7-1979 should not have the intent and effect of nullifying the enormous amount of work and considerable steps taken by the Board so far for partitioning the properties of the family.      The 2nd  point may  readily be  conceded as  it  is  an inconsequential error  which has crept in by oversight which may be  corrected  straightway.  It  is  true  that  in  the judgment earlier  delivered in this case, it has been stated in passing  that "the  Board, being  an old  institution  in plenary management  since 1949  and wisely  composed of  the seniormost  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 Trustees 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 comply with was the directive in sec. 4  to secure representation 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 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 194 of the  Board on  the score  that it  did not consist of the

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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  pecadillo  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 because we have already clarified the position. The Board was rightly constituted and validly continues. The grievance of  the Board  is different  and is based upon its plea that,  not being a party to the special leave petition, it  should   not  be   hit  adversely  without  being  heard adequately. Indeed,  it is  for this  reason  that  we  have afforded  a   full  length  hearing.  Actus  curiae  nomihem gravabit is a wholesome admonition to the court itself.      There are  two substantial controversies implied in the third relief.  In essence,  the first relief telescopes into the third and may well be considered in a composite manner.      A partition  by metes  and bounds becomes possible only if the number of sharers is clearly settled. The first point over which  the parties have fought before us in this review proceeding relates  to the number of sharers which, in turn, follows from  the date  of division 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  forward by  the opposite 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 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 wording.      The other  essential factor  in making  a  satisfactory partition is  the valuation of the numerous assets and their allocation to  the plurality  of  sharers.  Each  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 Board. An Advisory

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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 196 been born or dead; but shares have to be precisely accounted and no  person can  be deprived  of his  property if the law confers on him a right thereto. Therefore, we will presently proceed to  decide this  issue, but  before that, we 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  done 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

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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 but 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 197 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 de 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,  if   that  were practical. Mr.  Govind an  Nair,  appearing  for  the  first respondent, stated that Shri Justice Mathew, a distinguished retired Judge  of the Supreme Court, was available in Cochin and his  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 because  many of  the sharers  are not  before us. We must however, observe that taking advantage of the fact that the group represented by 198

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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 think 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 199 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 pertinent provisions. Section 8 inserts 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  section           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

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         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           Valiammal  Thampuran   Kovilakam  Estate  and  the           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 Proclamation."      Section 9 also is significant and runs thus:      "9.  Repeal  and  Saving:-(1)  The  Valiamma  Thampuran           Kovilakam Estate  and the  Palace Fund (Partition)           and  the   Kerala  Joint   Hindu   Family   System           (Abolition) Amendment Ordinance, 1978 (1 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." 200 There is  a sharp  divergence between counsel on the role of the various  provisions we have briefly referred to above in determining the  date on  which division  in status  of  the Cochin royal  family took  palace. The  1976 Act, as we have indicated  earlier,   leaves  intact,  in  large  part,  the Proclamation as  well as the 1961 Act. Section 7 of the 1976 Act expressly  repeals the  scheduled Acts.  It also renders texts of  Hindu Law,  customs and  usages, contrary  to  the provisions of  the 1976 Act, ineffective. The consequence of the omission  of the  Proclamation and the 1961 Act from the schedule is  that they  survive and  co-exist with  the 1976 Act. The crucial point on which 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 consequence can be obviated only if there 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 one  of the joint Hindu Families which subsisted at the time of  the 1976  Act was  the Cochin royal family and sec. 4(2) could,  and, therefore,  did operated 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

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the Board alone has the power 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 Schedule  thereto. The  non-repeal of  the 1961 Act also leads to  the conclusion  that child 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 ended here. But sections 8 and 9 of the 1978 Act have left a trail of seemingly  queer consequences, or, at any rate, scope for plausible, yet contra- 201 dictory interpretations.  We will,  therefore, examine these two provisions  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 irrelevance in fixing the shares and the sharers. Sec. 8  contains a  non-obstante clause  and so must prevail over other  provisions. The  substantive directive in sec. 8 of the 1978. Act is that the proclamation, as amended by the 1961 Act, as further amended by the 1978 Act, shall continue to be  in force, and shall apply is the assets of the Cochin royal family.  Of course,  the Section has been drafted in a jaw-breaking fashion  and its cumbersomeness could have been simplified had  a different  type  of  legislative  drafting skill been  brought to bear upon the subject. Sec. 8 reminds one of the old British Jingle:           I’m the parliamentary draftsman           I compose the country’s laws           And of half the litigation           I’am undoubtedly the cause. Why only  half the  litigation half the frustration too ! Be that as  it may, stripped of the complexities, sec. 8 merely means that  the Proclamation,  as amended  by the subsequent legislation, shall  continue to  apply to the Estate and the Fund of  the royal family. Shri Krishnamurthy Iyer construes this provision  to mean  that the  processual  part  of  the Proclamation, as amended by the 1961 Act, which, in turn had been  amended   by  the   1978  Act  was  preserved  by  the legislature with  a deliberate  design, namely,  to speed up the partition without getting clogged up in the formal coils of court proceedings with inevitable delays and interminable appeals the  legislature know  that handing up the partition litigation to  the civil  courts would be denying for a life time any  share to  any member of the royal family in effect and would  also mean undoing the considerable work which had already been  done in  the direction of division. Therefore, the anxiety  of the  legislature to preserve and consolidate what had  been done  and to  accelerate the actual partition persuaded it to enact s. 8. The intent and achievement of s. 8 was  to keep  out the  civil court  and  to  continue  the Board’s jurisdiction  to partition.  Nothing  more,  nothing less. Sec.  9 merely  gives retrospectively  to the Act and,

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more importantly, preserves as 14-189 SCI/80 202 valid all  acts done under the Proclamation and the 1976 Act as amended  by the  1978 Act.  This  is  meaningful  because anything done  or any  section taken  under the  1976 Act is also preserved.  In our  view only  purpose of  this  saving clause is  the quantum  of shares, the number of shares, the particular shares  having been  decided by the 1976 Act, the Board’s proceedings on that footing are left unaffected.      There is  force in  Sri Krishnamurthy Iyer’s contention that the goal of ss. 8 and 9 of the 1978 Act was to continue the Board  intact to  keep as valid all that it had done and to preserve the shares as settled by the 1976 Act. There was no intent,  nor effect,  of upsetting  every thing  that had been done  uptil then  by a  process of  statutory reversal. Such an  interpretation would be letting a statutory bull in a china shop demolishing the concrete work already done.      Let us,  for a moment, examine the rival plea, which is to the  effect that the Proclamation and the 1961 Act having been brought back to life the shares had to be determined on that basis updated to 1978, having special regard to s. 3 of the 1978 Act. For convenience, we may re-read that section:      3.   Partition of  the Estate  and the Palace Fund :(1)           The senior  most male  member of the family shall,           within sixty days from the date of commencement of           the Valiamma  Thampuran Kovilakam  Estate and  the           Palace Fund (Partition) and the Kerala Joint Hindu           Family  System  (Abolition)  Amendment  ordinance,           1978 direct  the Board  to effect Partition of the           Estate and  the Palace  Fund among all the members           entitled to  a Share  of the Estate and the Palace           Fund under  section 4  of the  Kerala, Joint Hindu           Family System  (Abolition) Act, 1975 (30 of 1976),           and such direction shall be published by the Board           in the Gazette.      (2)  If the senior-most male member fails to direct the           Board as  required by  sub-section (1),  the Board           shall on  the expiry  of the  period specified  in           that sub-section  proceed to  effect the partition           of the  Estate  and  the  Palace  Fund  among  the           members referred  to in  sub-section (1)  and  the           Partition   so    affected    shall    be    valid           notwithstanding anything  contained in  section 17           of the Proclamation. The  plausible   inference  is   that  in   tune  with   the Proclamation (which  survives) the  senior-most male member- the Maharaja  system having   ended  is to give direction to the Board  to effect  a partition of the Estate and the fund among the members "entitled to a share of the Estate and the Palace Fund under section 4 of the Kerala Joint Hindu 203 Family System  (Abolition) Act,  1975 (30  of  1976)".  Sub- section (2)  of section  3 says that if the senior-most male member fails  to make  such a  direction within 60 days, the Board shall  proceed to  effect the  Partition. According to Shri Govindan Nair, the total effect is the resuscitation of the Proclamation and the direction for Partition willy nilly by virtue  of s.  3 of the 1978 Act and, therefore, the date of division-in-status  has to be reckoned as that date which falls on  the expiry  of the  60 days of the promulgation of the 1978  Act.  There  is  a  meritorious  appeal  for  this interpretation provided  we overlook  the vital direction in s. 3  (1) that  the division is to be among "all the members entitled to  a share  under s. 4" of the 1976 Act. None born later can  claim, none  dying later  can lose.  Thus, in our

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view, the inevitable consequence of Act IS of 1978 is not to throw out  of gear  everything done  so far  but to  clarify possible ambiguities  and to stabilies the work of Partition by the  Board. We read the meaning of the various provisions of the  1978 Act  in this sense only. The net result is that the division  among the  members is to be effected according to s.4  of 1976 Act. The Partition by metes and bounds is to be effected  by the  Board. The  work done  upto now  is  to retain its force.      While considering the constitutionality of the impugned Act in  our earlier  judgment we  had made it clear that the Board was not entitled to behave arbitrarily or unreasonably and had  to conform  to the  norm  of  natural  justice.  We maintain that  conclusion and, indeed, counsel for the Board has not  challenged it.  In fact,  we have strengthened that conclusion by  providing for  objections and  even an appeal against the  -decision by  the Board  to the  limited extent indicated above  to an  arbitral body  so that  the  hearing component may  not be sacrificed for the speedy component of justice.      In the  light of  the directions  we have  made and the elaborate  explanation  we  have  given,  the  petition  for review, in substantial part, is allowed.      KOSHAL, J.  I have  had the  advantage of going through the judgment  prepared by  my learned  brother Krishna Iyer, J., and  find myself  in agreement with him in regard to the conclusions arrived  at by  him on  the three  points around which the  petition for  review revolves but I regret that I am unable  to subscribe  to the  reasons listed  by  him  in relation to  the effect  of the  1976 and  1978 Acts.  I  am therefore recording  this short  note which  may be  read in continuation of that judgment. H      2. There  is no  dispute regarding the proposition that under the  Proclamation of  1124 the Cochin royal family was impartible and that 204 the concept of partition in relation to it was for the first time  introduced   by  the  1961  Act,  subject  to  certain conditions which  are contained in section 3 of that Act and are to the effect that the Estate would become partible only if-      (i)  a request  in writing  is made  to the Maharaja of           Cochin by  by the majority of the major members of           the family;      (ii) the Maharaja is satisfied that in the interests of           the family  it would be desirable to partition the           Estate and  the Palace  Fund among all the members           of the family; and       (iii) the  Maharaja declares his intention to effect a           partition under  his supervision  and control  and           directs the Board to proceed with the partition. All these  three conditions  had to  be satisfied before the Estate could  be considered  partible and  till it  acquired that character  the Proclamation  remained in  full force so that the  Estate remained  impartible and  no question could therefore arise  as to  the persons entitled to a share on a partition.      This  position   prevailed  till   the  1976   Act  was promulgated and,  in my  opinion, that Act also did not make the slightest  difference to  it, Section  7 of the 1976 Act effected  a  repeal  of  the  enactments  mentioned  in  the Schedule to  the Act. Those enactments were twelve in number and did  not include either the Proclamation or the 1961 Act which therefore,  as pointed  out by  Iyer, J., survived and continued to  co exist  with the  1976 Act.  In view  of the

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provisions of  section 3  of the  1961 Act  which were  left intact by  the 1976  Act the  Estate could  be come partible only if  all  the  three  conditions  above  specified  were fulfilled which  has never  been the case so far. 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,  the specification  of shares being incompatible with impartibility. In  this view of the matter, 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.      3. The  1978 Act  however brought  about certain  basic changes in the 1961 and the 1976 Acts. Section 8 of the 1978 Act added  a new  section 8 to the 1976 Act with effect from the date  on which  the 1976  Act had come into force, i.e., the 1st  of December, 1976 and that new section stated in no uncertain terms  that  the  Cochin  royal  family  would  be governed by-      (a)  the 1978 Act itself, and, 205      (b)  the Proclamation  as amended by the 1961 Act which           itself was  to be  read  as  obtaining  after  its           amendment by the 1978 Act.      It  is  therefore  necessary  to  examine  the  changes effected by  the 1978 Act in the 1961 Act. They are detailed in the following table: ------------------------------------------------------------ 1961 Act as prevailing before the 1978 1961 Act as obtaining amendment                              after the 1978                                        amendment ------------------------------------------------------------ 1                                         2 ------------------------------------------------------------ Section 2: In this Act....       Section 2 : In this Act.. (a) ’Board’ means the Board of   (a)‘Board’ means the Board      Trustees appointed under s.3    of Trustees appointed      of the Proclamation.            under s.3 of the Procl-                                      amation. (b) ’Estate’ means the valiamma  (b) ‘Estate’ means the      Thamapuram Kovilakam Estate      valiamma Kovilakam      and all properties belonging     Estate and all Proper-      to the said Estate.              ties belonging to the                                       said Estate. (c) ’Maharaja of Cochin’ means   (c)  ‘family’ means the      Ruler of former State of         Maraumakkathayam      Cochin within the meaning        joint family consist-      of Clause (22) of Article        ing of the four main      366 of the Constitution.         thavashies of the                                       Ruler of the former                                       State of Cochin                                       within the meaning of                                       Clause (22) of arti-                                       cle 366 of the                                       Constitution of                                       India. (d) "Member" means a member of   (d) ‘Member’ means a member      the  family of tho Maharaja     of the family.      of Cochin. (e) ’Palace Fund’ shall have the (e) ’Palace Fund’ shall      same meaning as in Clause        have the same meaning      (c) of  s.2 of  the Proclama-       as in Clause (c) of      tion.                            s.2 of the                                       Proclamation. (f)  ‘Proclamation’ means Proclam- (f) ‘Proclamtion’ means

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    ation (IX of 1124) dated         proclamation (IX of      29th June, 1949, promulgated     1124) dated 29th      by Maharaja of Cochin.           June, 1949,                                       promulgated by                                       Maharaja of Cochin. Section 3                        Section 3 Maharaja of Cochin to order      Partition of the Estate and Partition                        and Palace Fund Notwithstanding anything cont-   (1) The senior-most male ained in s. 22 of the Proclama-  member of the family shall tion, if request in   writing  within sixty days from the is made by the majority of the   date of commencement of the the major members and the        Valimma Thampuran Kovila- Maharaja of Cochin is satisfied  kam Estate and the Palace that in the interest of the      Fund (partition) and Kerala family it would be desirable to  Joint Hindu Family System partition the Estate and the     (Abolition) Amendment Palace Fund, among all members,  Ordinance 1978 direct the he may declare his               Board to effect partition                                  of the Estate and the                                  Palace Fund 206 ------------------------------------------------------------          1                                         2 ------------------------------------------------------------ decision to effect a partition   among all the members under his supervision and        entitled to a share of the control, direct the Board        Estate and the Palace Fund to proceed with the Partition    under Section 4 of the                                  Kerala Joint Hindu Family                                  System (Abolition) Act,                                  1975 (30 of 76) and such                                  direction shall be publis-                                  hed by the  Board in the                                  Gazette. (2) The decision of the Maharaja (2) If the senior-most male of Cochin under sub-section(1)   member failed to direct the shall be published by the Board  Board as required by sub- in the Gazette in English and    section (1), the Board Malyalam and a copy of the noti- shall, on the expiry of the fication shall be affixed in a   period specified in that conspicuous place at the office  sub-section proceed to of the Board.                    effect the partition of the                                  Estate and the palace Fund                                  among the members referred                                  to in sub-section (1) and                                  partition so effected shall                                  be valid notwithstanding                                  anything contained in                                  section 17 of the                                  proclamation.      After the  promulgation of  the 1978  Act therefore the Proclamation has  to govern  the Cochin royal family subject to section  3 of  the 1961  Act as  amended 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 Estate and the Palace Fund under section 4 of the Kerala Joint Hindu  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 19.61 Act by the 1978 Act; and if this  be so,  the crucial date for determining the number

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and identity  of the  members of  the family  entitled to  a share of  the Estate and the Palace Fund would be the 1st of December, 1976,  i.e., the  date on  which the 1976 Act came into force. P.B.R.                             Petition partly allowed. 207