A Critical Note on S.5 of the Kerala Buildings (Lease & Rent Control) Act, 1965

(E.K. Ramakrishnan, Advocate, Payyannur)

Section 5 of the Kerala Buildings (Lease & Rent Control) Act 1965 empowers the Rent Control Court to fix the fair rent of the tenanted building. It is vividly stated in the latter portion of S.5(i) that "the fixation of the fair rent shall be after holding such enquiry as the rent control court thinks fit". But at the same time S.5(2) confines the role of the rent controller by saying that "in fixing the fair rent, the court shall take into consideration the property or house tax register of the local authority within whose area the building is situated". Since clear guidelines are laid down in S.5(2), what is the scope of the enquiry contemplated in S.5(i)?

True, the Kerala Buildings (Lease & Rent Control) Act, 1965 is a legislation intended for the benefit of the tenants i.e. regulation of allotment of houses, fixation of fair rent, prevention of unreasonable eviction of tenants etc. So while exercising the powers under this Act, the paramount consideration should be the interests of the tenants, based on the principle of social justice.

Fair rent is not defined in the Act. But S.5(2) and (3) are the guidelines to determine the fair rent of a building. Is it fair to determine the fair rent wholly relying on the property tax or house tax fixed by the local authority?

Being a judicial body, the finding/order of the rent control court should be based on merits, by relying on the cogent and concrete evidence available before it. But while fixing the fair rent of a building, the rent control court is prevented from applying its judicial conscience due to the restrictions imposed by S.5(2) of the Act. In short it has been constrained to do some arithmetical calculations. Is it wrong to consider the investment made by the building owner for constructing the building for fixing fair rent? No doubt, the location of the building, the condition of the building, the access to it, the amenities provided in it etc. are very important for fixing the rent of a building. In Arunachalam Pillai v. Natarajan (1968 KLJ 614), the importance of the above factors are dealt with.

Similarly in Devassy v. Joseph (1969 KLT 541) also, his lordship Justice V.R. Krishna Iyer (as he then was) held that, "among other relevant facts the court may have due regard to the cost of construction and maintenance, the taxes and rates payable by the landlord and so on" for fixing fair rent. But in the same ruling it was held that the fair rent should not exceed by more than 15% the monthly rental forming the basis of house tax computation. The concept behind this ruling was that rents are liable to be enhanced not due to the scarcity of rented buildings, but because of natural causes affecting rents. But the 15% enhancement suggested in the section is not always sufficient to cover" those natural causes affecting rents".

Rule 4 of the Kerala Panchayat (Building Tax) Rules, 1963 deals with the determination of annual rental value of a building and R.5 of the above rules empowers the executive authority to summon the owner or occupier of the building to furnish returns of the rent payable for the building, the cost of erecting the building and measurement of the land etc. in order to assess the building tax. Similar provisions (S.100 and corresponding rules) are incorporated in the Kerala Municipalities Act, 1960 also. Unfortunately our local authorities are based on imaginary figures somehow estimated by technically unqualified staffs. Even if the provisions are strictly complied with, in order to evade excess tax burden, some fabricated returns will be submitted by the building owners. The ultimate result would be the preparation of a wrong building tax register. By virtue of S.5 of the Kerala Buildings (L & R) Act, the rent control court has been constrained to rely wholly on this illogic and fallacious building tax registers being maintained by local authorities, without applying its independent judicial mind. So the "failure of the system" affects the judiciary also.

The rent of a building as well as the judicial proceeding for fixation of rent should be fair. In a pending petition under S.5, the parties to the petition can easily speculate the maximum extent of rent to be fixed by the rent control court as fair rent. This is against the very spirit of judicial system.

Being a judicial proceeding, the fixation of fair rent should be based on the merits of each case. The investment made for constructing the building should be a vital factor for determining fair rent. This can be assessed by invoking the powers under Order 26 Rule 9 of CPC.

The precious time of judiciary is not intended for doing some arithmetical calculations based on the illogic building tax register. So it is better either to relieve the rent control court from the duty of fixing rent or to suitably amend S.5, thereby empowering the rent control court to fix the fair rent in a reasonable and effective manner.

Christians and the Family Courts

(Sebastian Champappilly, Advocate, Ernakulam)

The Law Commission of India, in its 59th Report (at Page 13) suggested that the States should think of establishing Family Courts which will give more emphasis on the settlement of matrimonial disputes by way of conciliation rather than the normal mode of trial. It may be pertinent to note at this juncture that the Law Commission was not mainly concerned with the proposal of institution of Family Courts. It was mainly examining the need for amendments required under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. Obviously the 59th Report was not concerned with the Indian Divorce Act or the marriage and divorce laws applicable to Muslims and Parsis. Nor, in the circumstances can one consider this Report, a comprehensive study about the need, relevance, nature etc. of Family Courts in India. But the Government of India thought it necessary to bring in a legislation for the establishment of Family Courts, on the representations made by various Women's Organisations and individuals and the Parliament enacted the Family Courts Act, 1984. It was brought into force in Kerala from 21-10-1989 and Family Courts at Thiruvananthapuram, (for Thiruvananthapuram and Kollam Districts), Ernakulam (for Ernakulam and Thrissur Districts) and Kozhikode (for Kozhikode and Wayanad Districts) have been established on 6-6-1992.

The Family Court exercises all the jurisdiction exercisable by any District Court or any subordinate court under any law for the time being in force in respect of suits and proceedings in the nature of suits for declaration of nullity of marriages, restitution of conjugal rights, judicial separation or dissolution of marriage and such other reliefs as provided under S.7 of the Act. It also exercises powers under Chapter IX of the Code of Criminal Procedure. Therefore it can be said that the Family Court is a Civil Court of District Courts' stature when exercising jurisdiction under S.7(1) of the Act and a Criminal Court of Judicial 1st Class Magistrate's Stature when exercising jurisdiction under Chap. IX of Cr. P.C. (Munna Lal v. State of U.P. AIR 1991 All. 189).

The Act was indeed enacted with the object of promoting conciliation in, and securing speedy settlement of disputes, relating to marriage and family affairs and matters connected therewith. This Act supposedly covers the whole area of matrimonial jurisdiction. S.20 of the Act starts with a non-obstante clause, whereby provisions of the Act are given over-riding effect on all other laws for the time being in force.

But it appears that these provisions may not have any impact on the provisions contained under the Indian Divorce Act, which regulate divorce among Christians. The Family Courts are invested with only the powers of the District Courts and Courts subordinate (hereto as is clear from S.7. Therefore, it does not affect the jurisdiction of the High Courts in matters of matrimonial jurisdiction. And under the Indian Divorce Act, it is the District Courts and the High Court which have concurrent jurisdiction to deal with questions of marriage and divorce among Christians. In other words, the High Court's jurisdiction to deal with matrimonial causes of Christians is not at all affected by the provisions of the Family Courts Act. The Bombay High Court's decision in Kamal V.M. Allaudin v. Raja Shaikh (AIR 1990 Bom. 299) wherein the court which also exercises Letters Patent jurisdiction, expressed no final opinion as regards the High Court's jurisdiction in matters matrimonial to which the Indian Divorce Act and the Parsi Marriage and Divorce Act are applicable. The Court has however hastened to add that, such matter will continue to be cognisable by the High Court until jurisdiction in that respect is conferred by express statutory provision upon the Family Court. Further the Act does not contemplate transfer of proceedings instituted or entertained by the High Court itself to the Family Court. It will mean that as far as Christians are concerned a different court in the shape of Original side of the High Court will be there within the limits of its territorial jurisdiction. The Bombay High Court is therefore correct when it observes that it may seemingly appear to be incongruent after the advent of the Constitution that Communities of different religious persuasions should be required to approach different forums for obtaining similar matrimonial reliefs and that position is the result of existing laws which have not so far been consolidated. As the law stands now, the invoking of the jurisdiction either of the High Court or the District Court (Family Court) is left to the petitioner though. Since the provisions of the Family Courts Act do not take away the jurisdiction of the High Courts, in matters matrimonial, the persons professing the Christian religion are left free to choose the forum either the High Court or the Family Court for rederessal of their grievances. If one chooses the High Court, the application of the Family Courts Act could be excluded. The position emerging out of the present situation can be summed up as follows. A petition for divorce under S.10 of the Indian Divorce Act, and petitions under Ss.l8 and 19 for declaration of nullity of marriage and petition under S.23 for judicial separation and petition under S.32 for restitution of conjugal rights etc. can be filed before the High Court, inspite of the Family Courts Act, 1984.

Apart from this, the Family Court is conferred with the jurisdiction and powers of a District Judge alone, confirmation by the High Court of the decrees passed by the District Courts is however mandatory under S.17and 20 of the Indian Divorce Act. Even if a Christian gets a decree of divorce from the present Family Court, he has to seek confirmation from the High Court. Thus, the Christians are being singled out in such matters. This position becomes all the more important when we appreciate another situation. Under the last proviso to S.17 of the Indian Divorce Act, "any person" is at liberty to file a petition before the High Court for transfer of the case from the District Court to the High Court on the ground that any of the parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce. In other words, even in a case where the parties did not elect to go to the High Court, a third party can drag them to go to the High Court, on the ground of collusion and thus defeat the avowed purpose of the Family Courts Act so far as Christians are concerned.

The Family Courts Act presents another question also in the Kerala context. A decree passed by a High Court in its original jurisdiction can be executed by the court of the lowest grade under R.275 of the Civil Rules of Practice. Under S.18(1) of the Family Courts Act, that court is given power only to execute its decrees or orders. S.18(3) makes it clear that the power of the ordinary Civil Court for execution of decrees is not excluded by the Act. Therefore, as far as execution proceedings are concerned, the powers of the ordinary Civil Courts would remain unaffected. Again, under S.45 of the Indian Divorce Act, the provisions of the Code of Civil Procedure is made applicable to the proceedings under that Act. Now another question that arises is whether the execution proceedings now pending before the ordinary civil courts would get transferred to the Family Courts. Under S.8(a), of the Family Courts Act, jurisdiction of other Courts are excluded only in respect of suits or proceedings of the nature referred to in Explanation under S.7(l). Since S.7(1) or the Explanation does not deal with execution proceedings and since S.18(3) makes its clear that the powers of the ordinary Civil Court for execution still prevail, the pending execution proceedings are to be dealt with by the ordinary civil courts and this is particularly so if they arise from decrees made by the High Court in its Original jurisdiction under the Indian Divorce Act.

In short, as far as Christians are concerned, the advent of the Family Court is not going to have any impact and they are still shackled by the provisions of the obsolete law on marriage and divorce. This is again a case signifying the crying need of reform of the personal law of Christians.

Appropriation of Payments under Decree

(V.K. Sathyavan Nair, Advocate, Kottayam)

1. This is to point out an erroneous practice followed by decree holders, especially, banks and other financing companies, in the matter of appropriation of payments under decree, totally disregarding the amended provisions of Order 21, R.1 C.P.C. More often than not, this practice bears the stamp of approval of the execution Courts.

Principal sum

2. Interest is the premium for the money used and is quite distinct from 'principal sum adjudged'. Section 34 C.P.C empowers Court to award interest pendente lite and for post decretal period on the 'principal sum adjudged'. In 1974 KLT 853 a Division Bench has held that if as per the agreement between the parties the interest that has accrued due at the end of the quarter is added on to the principal and becomes the principal the interest so added never thereafter ceases to be the principal. The Court was considering the mode of calculating principal amount at the time of filing the suit. But the principal sum referred to in S.34 does not include interest except in cases were interest accrued prior to the filing of the suit and added on to the principal in accordance with the agreement between the parties. It may also be noted that under the amendment of S.34 by Act 66 of 1956 post-decree interest can be allowed only on the principal and not on the aggregate amount adjudged.

Part payment

3. The judgment debtor is bound to pay the decretal debt in one of the modes specified in R.1of Order 21. A payment into court towards the decree debt operates as a discharge of debt to that extent. The words "all money payable under a decree do not mean the entire amount payable under the decree. Even if a portion of the decretal amount is paid into court, it will be a valid payment. The question is whether such part payments shall be credited towards principal sum or interest.

Section 60 of the Contract Act

4. The normal rule is that, in the absence of any definite indication on the part of the debtor, when money is paid it is to be credited first towards interest and the balance if any, towards the principal. The Contract Act does not contain any express provision regarding appropriation towards interest. What S.60 says is that where the debtor has omitted to intimate and there are no other circumstances indicating to which debt the payment is to be applied the creditor may apply it at his discretion to any lawful debt actually due. Strictly S.60 contemplates distinct debts and the law of appropriation is not attracted to single debt. Nevertheless the principle underlying S.60 of the Contract Act was held to be applicable to interest as well. So in the case of a debt due with interest, any payment made by the debtor is in the first instance to be applied towards satisfaction of interest and thereafter to the principal. The apex Court held in AIR 1970 SC 161 that where  mortgagor-judgment debtor  made deposits in Court from time to time, the amounts so paid could be appropriated first towards interest and then towards the principal due in the absence of evidence of the mortgagee having accepted the amounts towards the principal. Unless the mortgagee was informed that payment was towards principal and not towards interest and the mortgagee agreed to the conditional deposit, normal rule of appropriation would apply to payments under decree. However in the light of the amended provisions of R.1 of Order 21, the above said principal can no longer be held applicable to payment of money under decree.

1976 Amendment

5. Order 21 Rule 1 was amended by C.P.C. (Amendment) Act No.104 of 1976. Before the amendment there was no express provision regarding appropriation of payments or cessation of interest. Sub-rule (2) of R.(1) provides that where any payment is made under Clause (a) of Sub-rule (1), notice of such payment shall be given to the decree holder. It is held in 1968 KLT 136 that the decree holder is entitled to interest till the date of notice.

Modes of payment

6. After the amendment there are significant changes in R.(1) of Order 21. By the amendment the judgment debtors have been given an opportunity to send money to the Court by money order or through a bank or by any other mode wherein payment is evidenced in writing. The modes of payment under decree has been enlarged and the present rule envisages the following modes.

1. By deposit in court.

2. By sending money to the Court by postal money order or through bank.

3. By paying to the decree holder out of Court by postal money order or through bank.

4. By paying to the decree holder out of Court by any other mode evidenced in writing.

5. Any other mode as the Court which passed the decree directs.

Notice of payment

7. It is also provided that where payments are made to the Court or by any other mode as the Court which passed the decree directs, the decree holder shall be given notice either through court or directly to him by registered post acknowledgment due. When payments are made to the decree holder himself no notice is necessary.

Statement of particulars

8. If money is sent to the court or to the decree holder by money order or through bank, the money order or the payment, as the case may be, shall contain an accurate statement of particulars specified in Sub-rule (3) of R.1. Clause (c) of Sub-rule (3) stipulates that it shall contain a statement regarding how the money remitted, is to be adjusted, that is to say, whether it is towards principal, interest or costs.

Cessation of interest

9. Sub-rule (4) and sub-rule (5) are introduced by the amendment. These rules provide that interest shall cease to run from the date of payment to the decree holder or date of service of notice on him, as the case maybe. The new provision regarding cessation of interest on the amount paid is very clear and specific and there is hardly any scope for conflicting views. If any amount is paid under decree interest shall cease to run on that amount, that is to say, the amount paid shall be credited towards principal sum. The meaning of the provision is quite plain and unambiguous and it is not capable of any other interpretation.

Objects and reasons

10. In this context the objects and reasons for the amendment may give added force to the above literal interpretation "The committee note that there is no provision in the code in relation to cessation of interest on the money paid under a decree out of court to a decree holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing. The committee are of the view that in such a case, the interest should cease to run from the date of such payment. In case the decree holder refuses to accept the postal money order or payment through a bank interest should cease to run from the date on which the money was tendered to him in ordinary-course of business of the postal authorities or bank sub-rule (5) in Rule 1 of Order XXI has been inserted accordingly."

Valid tender

11. It is clear from a bare reading of the provisions that judgment debtor is entitled to cessation of interest on any amount paid under the decree whatever be the mode of payment. If that be the case, the stipulation contained in clause (c) of sub-rule (3) regarding the manner of appropriation appears to be unnecessary. The reason for such a requirement is not quite clear. But that is no ground to deviate from the literal interpretation to be given to sub-rule (4) and sub-rule (5). Clause (c) of sub-rule (3) cannot be said to govern and restrict the definite and unambiguous meaning of sub-rule (4) and sub-rule (5). Non-compliance with requirement contained in clause (c) of sub-rule (3) may affect the validity of the tender, but it has no significance in construing sub-rule (4) and (5).

Order 24 Rule 3

12. Even during the stage of trial if any amount is paid it has to be adjusted towards principal. Rule 3 of Order 24 provides that no interest shall be allowed to the plaintiff or any sum deposited by the defendant from the date of receipt of notice, whether the sum deposited is in full by the claim or falls short thereof. The same principle is applied to payment under decree also by substituting sub-rule (4) and sub-rule (5) in R.1 of Order 21.

AIR 1988 P& H 33

13. This question was considered by the High Court of Punjab and Haryana in the case of Punjab National Bank v. Prem Sagar the Court held that part payment under decree shall be credited towards principal (AIR 1988 P & H 33).

Conclusion

14. Unfortunately the mode of calculating balance amount due from a judgment debtor ignores the above said principle and often an incorrect method by appropriating payments towards the aggregate amount is followed. Quite obviously such wrong method of calculation works out inequitable results allowing realisation of interest on interest, penalising the judgment debtors denying them the benefits conferred by the express provisions contained in sub-rule (4) and sub-rule (5) of Rule 1 of Order 21.

Power of Court to Summon Records from Income-Tax Department

Siby Mathew, Chief Editor, KLT

As early as in 1976 Shri P.K. Ravindranatha Menon wrote in 1976 KLT (Journal) 45:

"With the omission of S.137 and amendment of S.138 of the Income-tax Act, 1961,by the Finance Act, 1964, the declaration of confidential nature of records, the embargo against a court requiring a public servant to produce such records or to give evidence before it in respect thereof and the prohibition against a public servant making a disclosure of any particulars in the said documents have all been totally omitted and the provisions of the Evidence Act came into play with effect from April 1,1964, and the courts trying a suit can call for such records from the income tax department, if it is satisfied that the circumstances of the case justify such summoning and if it is in accordance with the provisions of the Evidence Act".

The above view of Mr. Menon was against the view of Full Bench decision of the Delhi High Court, reported in (1974) 95 ITR 34. (Trilok Chand Jain v. Dagiram Pindi Lal).

In a recent decision rendered on 4-2-1992 and reported in (1992) 194 ITR 228, the Supreme Court, reversing the Full Bench decision of the Delhi High Court in Part, held:

"The repeal of S.137clearly disclosed the legislative intent that it was felt by the legislature that it was no more necessary to keep the records of assessment by the Income-tax Department relating to an assessee as confidential from the courts and the bar with regard to the production of any part of the record was removed in so far as courts were concerned. The finality which has been attached to the order of the Commissioner under S.138(1)(b) is, thus restricted to the cases where the information etc., as contemplated by the Section is called for by any person other than a court of law by a judicial order. Section 138(1)(b) does not affect the powers of courts to require production of documents filed by an assessee before the Income tax authorities after 1st April, 1964, relating to assessment proceedings for the assessment year 1964-65 onwards or the assessment records of such years or the disclosure of any information therefrom to them, in a case pending before the court when the court, by a judicial order, requires the production of the record considered relevant by it for decision of a case pending before it." (from the head note at page 230 of 194 ITR 228).

Some Disturbing Thoughts on Property of Nair Females

(By Adv. K.G. Balasubramanian, High Court of Kerala)

I was waddling in the diminishing depths of Marumakkathayam Law, trying to explain to an agitated lady why she had lost in the courts below. A thought, repressed in my “CIVIL” mind since the day my senior had exposed the “tip-of-the-iceberg” of socio-legal vagaries unleashed by Kerala Joint Hindu Family System (Abolition) Act to me, suddenly resurfaced. In the course of my relaxed reflections, I had to grudgingly distance myself from a proposition sustained on the strength of illustrious precedents revered till now, unacceptable now because of a “To be or Not to be” situation (For who would bear the whips and scorns of time, The oppressor’s wrong, the proud man’s contumely, The pangs of despised love, the law’s delay …). Article 372 and “Pankajakshi” (2016 (1) KLT 851 (SC) embolden me. I ask myself: which is the more importune date in God’s own country - 17.6.1956 or 1.12.1976, when Hindu Succession Act (HSA) and Kerala Hindu Joint Family (Abolition) Act were respectively enforced? Has not the Kerala Act been superfluous vis-à-vis Section 14 of the former as regards Nair females?

Article 13provides that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of that Part, shall, to the extent of such inconsistency, be void. Article 372provides that all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

Section 4HSA provides that save as otherwise expressly provided in that Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act shall cease to have effect with respect to any matter for which provision is made in that Act and also that any other law in force immediately before the commencement of that Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in that Act.

Section 14(1)HSA provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Its explanation stipulates that the said “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. Vide sub-section (2), sub-section (1) shall not apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Section 6as originally enacted and Section 17 at all times recognized right by birth only within the sphere of intestate succession w.e.f. 17.6.1956. Amended Section 6 modifies (i) “right by birth”, (ii) excludes survivorship and (iii) devolution by intestate succession. In the context of right by birth, there is some difference between inheritance and succession. Right by birth in ancestral property is a legal incident stemming from ancient customs like Mitakshara, Dayabagha, Marumakkathayam etc. A coparcener or marumakkathayee cannot be denied that right whereas he/she can be denied the right to succeed to his/her predecessor’s property, by devise or deed. In other words, “right by birth” is an indefeasible mode of acquisition of right to immovable property. It is not by “succession” or “inheritance” as we normally understand.

Section 14 (1) was enacted to absolutely banish claims by anyone to any Hindu female’s any property. It created exclusivity, whether the holder follows Mitakshara or Marumakkathayam. This intention is clear when we look at Sections 6 and 7. “Property obtained by a Nair female towards her share on partition in her tarwad” comes under Section 14(1) and not under 14(2). While Section 6 as originally recognized exclusivity of coparcenary and Section 14 that of woman’s estate, the 2005 amendment roping in females as coparceners causes a very serious conundrum because it directly nullifies Section 14 vis-à-vis Mitakshara coparcenary. Needless to say, Section 14 is not otiose as regards Marumakkathayees.

The custom/usage that “property obtained by a Nair female towards her share on partition in her tarwad ceased to be her separate property on the birth of a child to her so as to destroy her absolute powers of disposal in respect of that property” is contrary to Section 14 read with Section 4. Going by the plain meaning of both Sections, the law that “property obtained by a Nair female towards her share on partition in her tarwad ceased to be her separate property on the birth of a child to her so as to destroy her absolute powers of disposal in respect of that property” ceased to be operative from 17.6.1956.

Precedents which hold to the contrary do not appear to have noticed the impact and effect of Sections 4 and 14 on absolute right of a Nair female.

1963 KLT 859- (overruled in 1967 KLT 430) - noticed that “ ………. it is a matter for serious consideration whether there is any compelling reason to hold that the share obtained on individual partition would not be the absolute property of the sharer” and that “In effect, S.39 of the Travancore Nayar Act of 1100 which corresponds to S.62 of the Cochin Nayar Act of 1113 has declared, that the share of a member, whether male or female allotted on tarwad partition, is alienable and heritable, and this is without any reservation, condition or limitation. In other words, such share constitutes his or her separate property descendible to the heirs on intestacy”. Doubtless, this principle had already found acceptance in Section 14.

In 1967 KLT 430, we find a clear statement (minority judgement) that “I have not considered the inroads made into the Hindu Mithakshara Law by the Hindu Women’s Property Act or the Hindu Succession Act as it is not necessary for the purpose of this case”. In 1993 (1) KLT 174, their Lordships were concerned“with Hindu Succession Actalone and so it is necessary to consider the provisions therein with special reference to marumakkathayees and to the extent it is necessary for this case”. Going by that decision, the Kerala Act vaporized Mitakshara and Marumakkathayam systems. True, going by its title, the Abolition Act purported to put an end to Joint Hindu Family System. That intention – not seen reflected in its body - was readily accepted. According to me, with due respect, the Abolition Act deserved a different, if not opposite, look.

My point is, the precedents on the point are per incuriam. It is not clear that Section 14 and its implications were noticed therein. Inept legislation has created an impasse.

1976 103 ITR 661 PHdeclares in no uncertain terms that “The Hindu Succession Act --------repealed all previous law relating to intestate succession whether textual, customary or statutory ----------------”. AIR 1991 SC 1654 dealt with overriding effect of the Act and declared that “in respect of the matters dealt with by the Act it repeals all existing laws, whether in the form of enactments or otherwise, which are inconsistent with this Act. The result is that immediately on coming into operation of the Act the law of succession hitherto applicable to the parties, by virtue of any text, rule or interpretation of Hindu Law or any custom or usage having the force of law ceased to have effect in respect of the matters expressly dealt with by the Act ”.

While AIR 1957 SC 434 says that “There is no doubt that by reason of the use of the expression ‘whether acquired before or after the commencement of this Act’ the section is retrospective in effect”, AIR 2000 SC 434 says that “The Act of 1956, incidentally is prospective in its operation and no element of retrospectivity can be attributed therein” and that “Incidentally, be it noted that the Succession Act of 1956 obviously is prospective in operation”. If Section 14 is prospective, it will create two classes of Nair heirs - those born before and after 17.6.1956. The former can claim benefit of right by birth under Cochin Nair Act etc., whereas the latter will be denied that benefit because of Section 4 read with Section 14.

On Section 14, AIR 1985 SC 1695 held that “The above provision is further protected by the express provision contained in clause (3) of Art.15, since it is a special provision enacted for the benefit of Hindu women”. Please read that along with ((2000) 2 SCC 139) that “……… legislations having socio economic perspective ought to be interpreted with widest possible connotation ……… Gender equality is one of the basic principles of our Constitution. ……………… as such it is a bounden duty and an obligation to honour the mandate of the Constitution in every sphere and interpretation which would go in consonance therewith ought to be had without any departure therefrom”.

1967 KLT 430held that“to reaffirm the old well established right rule might have the result of upsetting titles acquired on the faith of the new wrong rule, whereas to follow the new wrong rule might not have the result of upsetting titles, is not, I think, a valid consideration. To follow the new wrong rule would be to deprive children born after partition of their due”. I am forced to submit that the converse is truer, that a female ought not to be deprived of her due.

Dear Indian, H.S.A. (as originally crafted and now distorted), discriminates more between Mitakshara and Marumakkathayam schools generally and genders inter se particularly than that is sought to be abolished. It cannot be due to unavoidable reasons. It could be casus omissus. In view of the all India reach and overriding effect of HSA, the 2005 amendment adds flavor to the bone of contention that what was supposedly taken away by Kerala Hindu Joint Family (Abolition) Act from Mitakshara and Marumakkathayee families stands restored to Mitakshara families. My research did not reveal that the vacuum is saved either by any subsequent legislation. Please enlighten me.

In this era of laws intended to confer liberty, equality and fraternity, there is no reason to be tied down by “divine” laws divined by few and defined by fewer. We are venturing to consider temple/mosque entry and divorce on the touchstone of gender equality; the fascinating vista of Article 14 commands that personal law of all communities be recast, however inconvenient that may appear and whatever consequence may ensue.