1993 (1) KLT 174 (F.B.)

(R. Kumaran, Advocate, Thiruvananthapuram)

In this case, Chellamma Kamalamma v. Narayana Pillai, both the Majority and Minority views are in favour of doing away with S.17 of the Hindu Succession Act. The only difference is the point of time. While the majority view holds that those who are born on or after 1-12-1976 will be governed by S.15 of the Hindu Succession Act, the minority view holds that all those Marumakkathayee Females who expire on or after 1-12-76 will be governed by S.15 of the Hindu Succession Act.

Under Hindu Law, excepting those governed by Marumakkathayam Law, female after marriage becomes member of the Husband's family. Even in the husband's family she does not get an independent right as a sharer in the family property. Her position is only as wife of her husband in that family. This appears to be the reason why the, heirs of the husband take precedence over 'mother' under S.15 of the Hindu Succession Act. But in the case of Marumakkathayee females, they retained their position as members in the family/Tarawad of their birth. They had an independent position by themselves without depending on any male member. This necessitated S.17of the Hindu Succession Act wherein wife's heirs take precedence over the heirs of her husband.

The Marumakkathayam law is defined in S.3(1)(h) of the Hindu Succession Act. In the Nair Act and analogous acts governing the Marumakkathayees the definition given is "Marumakkathaya m means the system of inheritance in which descent is traced in the female line". The various enactments only recognize Marumakkathayam System.

Succession under Marumakkathayam law is replaced by the provisions of the Hindu Succession Act. Reference to Marumakkathayam Law in S.17 is only to clarify the position that these special provisions are applicable to persons who at the time of coming in to force of the Hindu Succession Act were governed by the Marumakkathayam Law as held in Madhavi Amma v. Kalliani Amma, 1988 (2) KLT 964 and Bhaskaran v. Kalliani, 1990 (2) KLT 749. Any other interpretation will cause injury to female Marumakkathayees who enjoyed greater right before the introduction of the Hindu Succession Act. That could never have been the intention of the legislature. After the four enactments, namely Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoption and Maintenance Act, what remained in the Marumakkathayam Law was the right by birth and unity (joint tenancy) of the tarawad property. With the coming into force of the "Kerala Hindu Family System (Abolition) Act 1975", there is no practical application of the Marumakkathayam law. But by a strained interpretation, it can be said that Marumakkathayam Law still continues. The saving of S.44of the 'Nair Act' indicates that the Act does not completely replace the Marumakkathayam Law. The repealing S.7(1) under the Joint Hindu Family System (Abolition) Act, 1975 states "Save as otherwise expressly provided in this 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 this Act shall cease to have effect with respect to any matter for which provision is made in this Act". The words "Hindu Law" by definition take in the Marumakkathayam Law also. But the repeal is only ‘with respect to any matter for which provision is made in this Act'. Marumakkathayam Law as such is not repealed. In this sense it can be said that Marumakkathayam Law still continues.

When S.15 of the Hindu Succession Act is made applicable to Marumakkathayee females, there will be an anomaly in their social status as well. Hindu Succession Act is an attempt to belter the condition of females under the Hindu Law. Even after the enactment, it was found but possible to bring them on par with the male-'members. Otherwise there would not have been any necessity for a separate section as S.15 under the Hindu Succession Act. S.8 with suitable changes would have been sufficient. In the case of Marumakkathayee females, they had greater rights than those governed by the Hindu Law. It is because of this, a separate Section as S.17 was found necessary in the Hindu Succession Act. Now by doing away with S.17 and bringing the Marumakkathayee females also under S.15, the rights they enjoyed hitherto would be curtailed and they will be made to occupy an inferior position to that of men.

There is therefore a case for retaining S.17 of the Hindu Succession Act.

Section 249 of the Kerala Panchayat Raj Act, 1994 (Act 13 of 1994) -

Whether it is Constitutional?

(By S.H. Panchapakesan, I Additional Munsiff, Neyyattinkara)

A careful reading of S.249 of the Kerala Panchayat Raj Act, 1994 (Act 13 of 1994), (hereinafter called the "Act') would invite our attention to a question of general public importance involving the constitutional validity of it, to a considerable extent. S.249 of the Act deals with institution of suits against authorities of Panchayats, their officers, etc. S.249(1) says that "no suit, or other civil proceedings against a Panchayat or against the President, the Vice President or any other member, or employee thereof or against any oilier person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under this Act in its or his official capacity,-

(a) shall be instituted until the expiration of one month after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been, in the case of a Panchayat delivered or left at the office of the Panchayat and in the case of a member, employee or person as aforesaid delivered to him or left at his office or at his usual place of abode and the plaint shall in each case contain a statement that such notice has been so delivered or left; or

(b) shall be instituted, unless it is a suit for the recovery of immovable property or for the declaration of title thereto, otherwise than within six months next after the accrual of the alleged cause of action.

(2) The notice referred to in sub-s. (1), when it is intended for a Panchayat, shall be addressed to the Secretary.

(3) If any Panchayat or person to whom notice is given under sub-s. (1) tenders to the plaintiff before the proceedings is commenced and if the plaintiff does not in such proceedings require more than the amounts so tendered he shall not recover any costs incurred by him after such tender; and the plaintiff shall also pay all costs incurred by the Panchayat after such tender".

Hence, issuance of one month's prior notice is a mandatory requirement for institution of suits against authorities of Panchayats and their officers. Courts are bound to reject plaint in case, a statement with regard to the statutory notice is absent in it.

Now, the important question to be looked into is whether the Panchayat Raj Institutions are having a better immunity than that of the Central/State Government in litigations and judicial proceedings.

Part IV of the Code of Civil Procedure (Act V of 1908), hereinafter called the Code deals with suits by or against the Government or public officers in their official capacity. S.80(1) of the Code bars suits and other judicial proceedings against the Government or against a public office in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of-

But, sub-s. (2) of S.80 of the Code says that in a suit to obtain an urgent or immediate relief against the Government or any public officer, in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court, without serving any notice as required by sub-s. (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.

Sub-s. (2) of S.80 of the Code was inserted by way of the amendment (Act No.104 of 1976). For such an amendment in the code, the then Joint Committee on Legislation felt that some relaxation of the provisions of S. 80 is necessary, so that a person may not be deprived of the opportunity of obtaining an urgent or immediate relief, where such relief is essential. In the above circumstances, the joint committee felt that S, 80 of the Code should provide to the institution of a suit for obtaining an urgent or immediate relief against the Government or any public officer in respect of any act purporting to have been done by such public officer in his official capacity without serving any statutory notice. However, it has been specified that the Court should not grant any relief except after giving to the Government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. (The reasonable time, as above, has been held as 30 days (1996 (1) KLT 190)).

But under the Panchayat Raj Act, there is a total bar with regard to maintainability of suits, in case of want of statutory notice. The courts shall get jurisdiction to take cognizance on such suits only after expiry of the statutory period of 30 days from the date of delivery of notice. There is no provision in the Act for institution of a suit for obtaining an urgent or immediate relief against the Panchayats. But there are innumerable instances, which would necessitate interference of judiciary in our day-today life.

The Act confers ever so many powers on the Panchayats and their officers as enumerated under Chapter XV. S.166 of the Act deals with the mandatory functions of village panchayats. There are 32 items of mandatory functions and some other items of functions attended by Village Panchayats included in the 3rd Schedule of the Act. The item Nos.4 and 5 in the 3rd Schedule deal with maintenance of village roads and construction and maintenance of new village roads. It includes organising voluntary surrender of lands for new roads and for widening of the existing roads.

All our Panchayat committees have been constituted on the basis of party politics. From our experience, we cannot reasonably believe that such committees would always take legal or proper decisions alone. On the other hand, there would always be political and other considerations beneath such decisions that they may take. If a panchayat committee resolves to construct a new road leading to the house of the President or one of its members by raping 2 cents of another (it may be his only one immovable property in which his house is situated) without his knowledge or consent, how could he get justice, if doors of the Courts are closed towards him merely on the ground that he did not issue a notice to the Panchayat as per the statute"? If he sends notice and thereby waits for the statutory period, indeed in the meanwhile, his house would be wiped out from the scene, and the property be macadamised for plying vehicles, if it is held that such an aggrieved person is not end tied to get an order of temporary injunction, at least against the evil acts of vested interests acting under the veil of panchayats, for want of notice, what would be his redressal.

Section 123 of the old Panchayats Act, (Act 32 of 1960) deals with notice of action against Panchayat etc. Though there was also statutory bar in initiating legal proceedings against Panchayats without notice, a relief of injunction was exempted from statutory notice. In other words, as far as a suit for injunction simplicitor is concerned, prior notice was not mandatory. But in the new Act, such an exemption with regard to injunction suits is not found provided with.

In cases of Revenue Recovery proceedings under the Kerala Revenue Recovery Act (Act 15 of 1968), there is a general bar to jurisdiction of civil courts. But, as per the proviso to S.72 of the Revenue Recovery Act, it is stipulated that a suit may be brought in a civil court in respect of any such question on the ground of fraud. In other words, proceedings under the Revenue Recovery Act can be challenged before Civil Courts, in case, fraud is specifically alleged. Likewise, at least such an exemption ought to have been provided with in the new Panchayat Raj Act, with regard to general bar of jurisdiction of civil courts in cases wherein fraud is specifically alleged by a litigant against the decisions or acts of Panchayats or its officials. (At least it can be at the risk of such litigants).

Suppose, a person conducted a grocery after obtaining licence from the local authority. But, a successor in the office of the executive authority of that Panchayat held that the licence issued by his predecessor in office would not bind on him. He issued a notice (after affixing his office seal) to the owner of the shop and thereby directed him to close down his trade. In such a case, if the owner of the shop has no access to a court of law for safeguarding his valuable right of carrying on business merely on a technical ground of notice, what would be the quantum of injustice that is meted out to him!

The rights which are guaranteed by Arts. 19 & 21 of our Constitution are guaranteed rights against State action. In case of violation of such rights by private individuals, the person aggrieved has legal right to seek remedies under the general law. But, where the claim of such an infringer is supported by a Slate Act, executive or legislature, the person aggrieved may challenge the constitutionality of the Act which supports the private claim. While a right created by Statute may be taken away by, another statute, a fundamental eight guaranteed by the Constitution cannot be taken away by statute (Pannalal v. Union of India AIR 1957 SC 397). Art.13(2) directs that the State shall not make any law which takes away or abridges the rights conferred by the Part III of our Constitution and any law made in contravention of the above clause shall, to the extent of such inconsistency, be void. The Kerala Panchayat Raj Act, 1994, is a law as defined under Art.13(3)(a). Imposing unreasonable restrictions on an aggrieved person's right to approach Court of law, especially in instances of flagrant injustice done by the Panchayats and its officials with mala fide intentions, appears to be unconstitutional and void. Hope that the kind attention of the concerned would reflect upon this issue.

Necessity for Writ Rules

(Roy Chacko, Advocate, Ernakulam)

The Judgment reported in 1994 (2) KLT 759 (K.S.E.B. v. K.J. Joseph) delivered by K.G. Balakrishnan, J. touches upon certain salient features with regard to the procedural provisions under the writ jurisdiction. The case on hand related to the procedure to be applied for further prosecution in the case of death of the sole petitioner in an Original Petition filed under Art.226 of the Constitution of India. The sole petitioner was the Managing Partner of a firm running a hotel who died on 26-5-1993. As notice was served on the Managing Partner of the firm after his death by the K.S.E.B. application for impleading was filed by the successor-in-interest challenging the demand notice. The main contention advanced by the K.S.E.B. was that the Original Petition had abated consequent on the death of (he sole petitioner in the O.P., as the cause of action did not survive. It was also contended that provisions contained in Order XXII C.P.C. cannot be called to aid in the matter of setting aside abatement of the O.P. and consequential impleadment as the additional petitioner. Some reported decisions were cited by counsel on either side in support of their contentions. The learned Judge held that the cause of action did survive. It was also held that in the absence of adequate provisions in the Kerala High Court Rules, there was no legal bar in invoking the provisions of C.P.C. to the factual situation arising in the case.

I feel that inadequacy of the various procedural provisions is writ large in Chapter XI of the Kerala High Court Rules under the heading "PROCEEDINGS UNDER ARTS. 226 AND 227 OF THE CONSTITUTION". For instance there is no provision for review of an order or judgment in a proceeding under Art.226 of the Constitution, there is no provision for impleading the legal representative of the deceased petitioner or respondent so as to continue the proceeding. So also there is no provision for setting aside of abatement of an O.P. and for condonation of delay in filing the petition to set aside abatement. It was held by the Hon'ble Supreme Court in the decision reported in AIR 1963SC 1909 (Shivdeo v. State of Punjab) that the High Court has under Art.226, an inherent power of review apart from statutory conditions.

"Which inhere in every court of plenary jurisdiction to prevent miscarriage of justice or to correct glaring and palpable errors committed by it". In the case of patent errors, they can be corrected by the High Court suo motu and even after expiry of the period of limitation, if any prescribed for an application for review. The law has been, laid down by the Apex Court only as regards the power of Review of a Constitutional Court, but not to other miscellaneous provisions which arc of frequent occurrence in a petition under Art.226 of the Constitution.

Therefore our High Court Rules must contain adequate provisions providing for withdrawal of an O.P., for issuing commissions for local investigation, for examination etc. for restoration of an O.P. dismissed for default, for representation of an O.P. after curing defect, over and above what is already mentioned. This list is not exhaustive of all the contingencies that may arise. So also the limitation period has to be prescribed for the aforesaid provisions. The framing of Writ Rules on these lines will also avoid unnecessary query from the office and nothing of defects in many writ petitions. This will also enable the court to get rid of an ambiguity or doubt regarding applicability of any of the provisions in Chap.XI of the High Court Rules or of those in the C.P.C.

Some of the High Courts in the country have framed writ rules, for various procedural matters in a writ proceeding. The Full Bench Judgment of the Punjab and Haryana High Court reported in AIR 1982 P & H 69 (Teja Singh v. Union Territory of Chandigarh) which was referred to by the learned Judge, has exhaustively dealt with this aspect. The issue that came up for consideration before the 5 Judge Bench was as to the applicability of the provisions of C.P.C to writ proceedings. In that context the Full Bench had to interpret R.32 of the Writ Rules applicable to the High Court which reads as under:—

"In all matters for which no provision is made by these rules, the provisions of C.P.C. 1908 shall apply mutatis mutandis in so far as they are not inconsistent with these rules".

Repelling the contention of the counsel for the petitioner that explanation inserted in S.141 C.P.C. by the 1976 amendment sought to exclude the applicability of the provisions of C.P.C. to writ proceedings. Justice P.C. Jain who delivered the judgment observes at para.10 as follows:—

"The explanation only provides that the word "proceedings" would not include any proceedings under Art.226 of the Constitution. There would have been some force in the contention of Mr. Anand Swarup if this court in exercise of its power under Art.225 had not framed any rules. But in die presence of the Writ Rules which have been validly passed by this court, the explanation loses its force".

The Full Bench agreed with the judgment of a learned single Judge of the Karnataka High Court reported in AIR 1980 Kant. 72 (M.R. Channarayappa v. Tahsildar) which interpreted R.39 of die Karnataka Writ Rules which was identical with R.32. The court therefore took the view that in matters which have not been specifically dealt with by die Writ Rules, the provisions of C.P.C. to the extent they are necessary would be applicable to proceedings under Art.226 of the Constitution.

Finally the court held that the explanation added to S. 141 C.P.C. does not in any way nullify die effect of R.32 of the Writ Rules.

Therefore the framing of writ rules under Art.225 of the Constitution of India read with S.122 of die Code of Civil Procedure with regard to Chap.XI is absolutely necessary keeping in view of die ever increasing number of writ petitions being filed in the High Court. Amendment may also become necessary to R.150 of die High Court Rules to enlarge die scope of interim orders to cover injunctions, extensions of interim orders, for urgent posting for admission in cases where effective interim relief is not required. Chapter XI of the Kerala High Court Rules as it now stands is quite inadequate so far as proceedings under Art.226 of the Constitution is concerned.

There is immediate and urgent need for framing writ Rules not inconsistent with the provisions of CPC to deal with various procedural matters in a writ proceeding. The attention of the Rules Committee of the High Court is invited to this inadequacy with a request for appropriate remedial action.

Towards a Better World?

(T.G. John, Advocate, Trichur)

There is a general impression that violence is more prevalent now than ever before. Statesmen are assasinated, planes hi-jacked, ambassadors kidnapped, university professors roughed up, piccadilly mansions invaded, post offices and Banks robbed and even religious abodes and Court of law desecrated by unruly mobs. Threats with fist, knives, and anatomical twists have become the fashion in the so called representative assemblies of the people. Little wonder that the worthy representative who had to stand jeers and brickbat's of the crowd at Die time of election campaign repeats the same in the house vindictively.

This sort of thing has happened, before. Plane hi-jackers are the modern version of pirates - or rather of buccaneers for they purport to operate for a country and a cause, not merely for personal gain. Political assassination has a history far older than Julius Caesar, and the London Eighteenth Century Mob was far more terrifying and destructive than our militant students. Highwaymen were more to be feared by the ordinary citizen than are bank robbers, and ambassadors have by no means always been treated with punctilio and courtesy. Yet there is something new and disquietening about the present day violence especially as seen by those who broadly speaking believe in and abide by the rule of law and the liberal democracy, which were in the ascendant over most of Europe from about 1918-1930, and in Britain and France a good deal longer, and in India that is Bharat, recently.

Skipping over the pages of English history we come across crucial events-the signing of the Magna Charla, the Mad Parliament- and a long list of fiery incidents, individuals, institutions and kings. But all these people fought for law and not against it. For nearly three hundred years from the end of the wars of religion to the beginning of the wars for political dictatorship the most powerful countries in the world that is to say the nation-States of Europe and North America-on the whole kept to self-imposed rules, in warfare and in their peaceful relationship. There were many transgressions but the kings and emperors did not resort to the method of Chaka of Genghis Khan. Governments which in both internal and external affairs, try to abide by the rules of the game arc constantly pained and surprised when others ignore them.

Most modern violence appears to be politically motivated. The street grangs of Negro hooligans who terrorise parts of many American cities, and some of the recent crimes in our own country are not mere thuggism but could be considered only as the militant arms of some Black Power Political party. Cubans and Arabs who hi-jkack planes risking the lives of hundreds of passengers do so in their imaginary or assumed role of revolutionary palriots-as do bank robbers in Brazil, bandits in Southern Africa and gunmen in Kenya. As ninety per cent of this violence is in aid of some wings of politics, it enjoys the tacit approval or atleast tolerance of the Government or the about to be formed Government.

There is nothing new in people unable to get their own way by other methods, turning as a last resort of violence. In the past, however, violence was generally the resort of popular movements unable to make headway against tyranny or bureaucratic obstruction. That is still the case in tolalitarian countries. But in countries where the most sweeping changes can be brought about peacefully by convincing the majority of the people that they are necessary, violence is the resort of those who can never win an election. It used to be hoped that the twentieth century would be an age of reason. It is not. A small but conspicuous minority of young people are the fanatics of the new world, so convinced of their righteousness and the wickedness and obduracy of those who deny it, that they are prepared to use any methods to force their views upon others-even to the extent of wrecking the whole legal system in the vague, naive hope that the new world which will emerge, more or less spontaneously from the ruins, cannot be worse and may well be better than the old. John Stuart Mill once wrote that unpopular minority opinions can only obtain a hearing by studied moderation and the most cautious avoidance of unnecessary offence. Now however the mass media and the political colouring of most of our leaders ensure that any left wing opinion, however bizarre its nature and few its adherents, receives ample publicity if only it displays enough spectacular violence.

The year 2000 is only live years away and the world of the future has already begun to take shape. It is being hammered out in a series of revolutions in science, technology, communications, education-revolutions so explosive that they are disrupting the structure of man's Society and changing the entire hierarchy of social and moral values. Alcohol is placed on a very high pedestal. And there is (lie very real problem of behavioural control involved in shaping coming generations physically and mentally through manipulation of the genetic code. Some of the experts gloomily predict a society run by a small elected elite presiding over a mindless multitude kept happy by drugs and circuses!

So long as mankind shreds his fear for law and legal systems, Society, will benefit little by such scientific boosters as landing in the Moon or Jupiter, fox-trotting round the sun, or even helicoptering straight into the lap of Jehovah Himself!

Christian Succession and Probate of Wills - Need for Change

(Sebastian Champappilly, Advocate, Ernakulam)

Christians in India constitute a distinct community in matters relating to their marriage, divorce and intestate succession. Their Personal Law in these areas are totally different from those that of the fellow citizens, belonging to the Hindu and Muslim religions. As a result of some progressive thinking and steps taken by the community and of late by the judiciary the issues relating to marriage and divorce arc being settled or attempted to be settled satisfactorily. However, matters relating to intestate succession remain unattended inspite of the crying need for their, updating. The importance of the matter can be gauged by the decision of the Hon'ble High Court of Kerala in Joseph v. Union of India (1978 KLT SN 116) wherein the Court pegged its decision for status quo on "historical reasons", better known to it. This decision was apparently not justified either on historical reasons or on statutory law. So far as Christians in Travancore -Cochin area of Kerala were concerned, statutorily speaking, the Indian Succession Act, 1925 was not applicable in 1978 in as much as the Travancore Christian Succession Act, 1916 and the Cochin Christian Succession Act, 1921 had not been deemed to be repealed by the Indian Succession Act, 1925, as was clearly laid down in Kurian Augusthy v. Devassy Aley (AIR 1957 TC 1). Therefore, obviously in 1978 S.213 could not apply to intestate succession among Christians of Travancore as the ratio of Kurian Augusthy was still holding sway. But the agonies caused by Joseph v. Union of India was, allowed to be further aggravated by the Supreme Court in Mary Roy v. State of Kerala (AIR 1986 SC 1011) which declared, apparently against legislative intention and Kurian Augusthy, the Indian Succession Act, 1925 to be applicable to them with effect from 1st April, 1951.[1]

So far as "historical reasons" referred to by the Court in Joseph, are concerned, it may be noted that it was the vacuum in Christian law with reference to intestate succession in comparison to their fellow citizens belonging to the Hindu and Muslim religions that had made the English to bring in their law for the purpose of Christian Succession. "Historical Reasons" do not have any other significance.[2]

Be that as it may, at present the Christians are at a disadvantage so far as intestate succession is concerned. Their woes arc more as explained below:—

1. If a Christian does not appoint an executor for his will before his death, the property has to wait to be administered till letters of administration is granted by a competent court. It is common knowledge that in India, in the above situation it takes years together for a Court to issue letters of administration and the causalities are the property and the legal heirs. The benefit might perhaps be reaped by undesirable persons. Further in some cases the Court may even refuse letters of administration on some technical grounds.

2. Even if an executor is appointed by the will, he has to pay Court fees on the market value of the property to get the will probated. This is indeed unnecessary.

3. If the application for letters of administration is made by one of the legatees, he must seek the entire relief in respect of the whole of the estate and has to pay court fee in respect of the value of the entire estate, though he may be entitled only to a small portion of the estate. (Chacko Varkey v. Sheela Peter (1991 (1) KLT 81).

4. The difficulty will be further aggravated if somebody chooses to contest the prayer of the executor in which case it will be converted into a suit and the property remaining without any use to the rightful heirs, in most cases leading to the ruination of the family.

These are some of the difficulties of the Christians if the law is allowed to remain as it is, for the so called "historical reasons". Whatever might have been the historical reasons for the Legislature to enact S. 213 in 1925, the validity of the section must, now, be tested on the touch stone of the constitution. It appears that S.213 is hit by Art.13(1), in view of the provisions contained in Arts.14, 15 and 25(1) of the Constitution. Art.13(1) saves only those "laws in force" which are not inconsistant with the fundamental rights. Obviously S.213 is inconsistent with the rights conferred under Arts.14 and 15. Art.14 guarantees equality before law and equal protection of the laws. Art.15 guarantees prohibition of discrimination on grounds of religion. Though the State is given freedom to make special provision for the advancement of weaker sections, it is entitled to make only a reasonable classification for achieving certain objects. However, there must exist a reasonable nexus between the classification and the objects to be achieved. In the case on hand, no specific object can be seen for the classification of Christians into a special category in matters of intestate succession or in the case of probating of wills.

Viewed in this perspective, it may also appear that S.213 puts hindrance on Christians in the matter of free profession and practice of their religion and thus violates the mandate of Art.25(1) of the Constitution. At any rate, it can safely be concluded that "historical reasons" do not constitute any ground under Arts.14, 15 and 13(1) to allow a provision like S.213 to remain on the Statute Book.

Speaking in the context of the Indian Constitution, the problems can be solved at least in four ways:—

1. If one accepts the view of the Supreme Court in Mary Roy's case, the State Government can amend S.213 by invoking its legislative power under Entry 5 (intestacy and Succession) of List III of the 7th Schedule to the Constitution and reserve the Bill for the assent of the President. Art.254(2) of the Constitution does seem to permit such a course.

2. The State legislature can add "Indian Christians" after "mohammedans' in S.213(2) of the Act and thus avoid its applications to the Christians. [3]

3. Union Legislature can amend or repeal S.213 and thus abate the woes of Christians in matters of intestacy and succession.

4. If we accept the legal position in Mary Roy and Joseph under S .3 of the Indian Succession Act, the State Government is given the power to exempt any race, sect or tribe from the operation of various sections of the Act, including S.213, by a notification in the official gazette. A question may arise whether Christians can be treated as a sect for this purpose. Going by the lexicographical meaning of the word "Sect", there seems no objection for treating Christians as a sect. Then they could be exempted from the application of S.213 by way of a notification under S.3.

At any rate, in the absence of a Uniform Civil Code as envisaged under Art.44 of the Constitution it seems fair, proper and logical for the Christians to ask for deletion of S.213 of the Indian Succession Act, 1925 or atleast for exclusion from the application of the Section. Neither the State Legislature nor the Union Legislature has done anything to alleviate the sufferings of Christians in this respect.

It is hightime that atleast the Kerala Government/Legislature should strive to solve the problems by acting on any of the above proposals.

___________________________________________________________________

Foot Note

1. See Section 29 of Indian Succession Act, 1925 saving existing laws from its operation in areas where there were laws governing Succession. Thus the Succession Acts of 1916 and 1921 in force in Travancore-Cochin areas were to continue to be in force even after the bringing into force of the Indian Succession Act, 1925.

2. The research made by the present writer in this area embolden him to declare that there is no other historical reasons than the above for the enactment of S.213 of the Indian Succession Act, 1925. It is pertinent to mention in this context that 89% of the respondents, to a questionnaire issued by the present writer in connection with his Ph.D. Programme under the Law Department of the Cochin University of Science and Technology, expressed the view that S.213 should not be made applicable to Christians.

3. In this context it may be pertinent to point out that S.20 of the Indian Divorce Act, 1869, came to be deleted by the U.P. Legislature by Act XXX of 1957 vide its S.2 and schedule. If it can be done, there could be no objection for the State Legislature to effect minor changes suggested above.