Some Belated Thoughts on Kerala Joint 

Hindu Family (System) Abolition Act !

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

It is unfair, quite unfair, I feel, as a lawyer, as a minuscule member of “We, The People”. I had felt that gender equality was serious business in Hindu law, that social equality was more serious business in Indian polity. I feel let down, because the 2005 amendment to Hindu Succession Act (HSA) raises more questions. For example, if you can create mixed coparcenaries from hitherto exclusively male coparcenaries, should you not also have coparcenaries as regards property hitherto inherited from a common ancestress?

I had propounded, some time back, that coparcenary stood revived in God’s own country because of the amendment to S. 6 H.S.A.

Section 4 H.S.A.: Overriding effect of Act:

(1) Save as otherwise expressly provided in this Act-

         (a)    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;

         (b)    any other law in force immediately before the commencement of this Act shall cease to apply to Hindus so far as it is inconsistent with any of the provisions contained in this Act.

New Section 6: Devolution of interest in coparcenary property:

         (1)    On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

         (a)    by birth become a coparcener in her own right in the same manner as the son;

         (b)    have the same rights in the coparcenary property as she would have had if she had been a son;

         (c)    be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2)  Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (Sub-sections 3, 4, omitted for the present)

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation: For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

Kerala Joint Hindu Family System (Abolition) Act, 1976 (Abolition Act): 

Section 3:  Birth in family not to give rise to rights in property:

On and after the commencement of this Act, no right to claim any interest in any property of an ancestor during his or her life-time which is founded on the mere fact that the claimant was born in the family of the ancestor shall be recognised in any court.

Section 4:  Joint tenancy to be replaced by tenancy in common:

(1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary 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 had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof:

(Proviso omitted, for the present)

(2) 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.

Mind you, the new Section 6 H.S.A. may not take in a partition by operation of law, like the one imposed by Section 4 Abolition Act.

The larger question is, whether new Section 6 upsets the scheme of the Abolition Act, a scheme we have hitherto almost unanimously accepted. The point I moot is that the Abolition Act does not really efface coparcenary or marumakkathayam system, but only temporarily arrests enforcement of those rights.

The Law Commission, being aware of the situation in Kerala and some other States, opined that:“The subject matter of the laws of succession fall in Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution.  Therefore, Parliament as well as the State Legislatures are competent to enact laws in this area.   In case another State brings some third model of legislation in this field, there is a likelihood of having still more diversity in the law. This would result in the directive principles of State policy not being adhered to which require the State to endeavour to secure a uniform civil code throughout the territory of India. If we cannot have that for the present we should at least haveuniformity amongst Hindus.  Accordingly, there is need to have a central law enacted by Parliament under Article 246 of the Constitution.  In such a situation the law made by these five States would stand repealed to the extent of repugnancy, unless expressly repealed”.

It was laid down in 1984 KLT 685 that “the provisions of Kerala Act 30 of 1975 are clear. The Act is enacted to put an end to the joint Hindu family in Kerala and the consequence is that from that date onwards there will be no joint Hindu family in the State. ——————. If by force of the statutory enactment there will be no joint Hindu family in the State from 1.12.1976,it follows that there can be no entity assessable as Hindu undivided family ——————."

In 1988(1) KLT 814 it was declared that “Thus by operation of law the property held by an individual member on and after 1.12.1976 has lost its character of ancestral property and that character cannot be revived as no undivided family could come into existence or revive within the State where the System has been statutorily put an end to”.

In 1993 (1) KLT 174, it is observed that “Section 3 abolishes the right by birth in the joint family, while Section (4) replaces tenancy in common in respect of joint tenancy rights of the members of the undivided Hindu family with effect from the day of commencement of the Act” and that “———— the statutory laws mentioned in the Schedule to the Joint Family Abolition Act, 1975 stood repealed. So far as the pristine law which was not covered by those Acts is concerned, it stood repealed by S.7 (1) to the extent provision is made in the Joint Family Abolition Act, 1975. Of course, once all this is gone, almost nothing is left under the pristine marumakkathayam law ————”.

In 1998(1) KLT 634, it was held that “The preamble of the Act itself would show that the main object sought to be achieved by the statute isabolishing of the joint family system among Hindus in the State of Kerala. S. 3 provides that on and after the commencement of the Actno one is to get any right in property by the mere fact of his birth in the family of the ancestor”.

According to me, with due respect, the Abolition Act deserves a different look. True, going by its title, the Abolition Act was enacted to put an end to joint Hindu family system. That intention, which I feel is not reflected in the statute, was readily accepted.

While interpreting statutes, one cannot overlook the law reiterated by the Apex Court in AIR 2004 SC 3625 that “In case of conflict between the plain language of the provision and the meaning of the Heading or Title, the Heading or Title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder”.

It is relevant to note that some of the repealed enactments restrained partition during lifetime of ancestor/ancestress. (Section 34 Travancore Nair Act, Section 35 Madras Aliyasanthana Act, Section 34 Travancore Krishnavaka Marumakkathayees Act, Section 43 Cochin Marumakkathayam Act, Section 29 Travancore Ezhava Act). At the same time, Travancore Nair Act, Kshathriya Act, Cochin Nair Act & Krishnavaka Marumakkathayees Act obliged a female member to claim and take her minor children’s shares also during partition. These enactments were axed by the Abolition Act. Interestingly, the Abolition Act does not - no, it does not - say that joint family system is abolished, in ever so many words. The title of the Act and heading to Section 3 are deceptive, because neither the title to an enactment nor a heading to a section therein can furnish what the body of the enactment does not provide for. And it was almost unanimously accepted that joint family system has been put to rest.

I would dissect Section 3 Abolition Act as under:

Birth in family not to give rise to rights in property:

         i)       On and after the commencement of this Act,

         ii)      no right to claim any interest in any property of an ancestor,

         iii)     during his or her lifetime,

         iv)    which is founded on the mere fact that the claimant was born in the family of the ancestor,

         v)     shall be recognised in any court.

It is only on situations (i) to (iv) coalescing, on facts, that the bar under (v) comes into play. Plainly understood, the bar is only on courts to recognise a right to claim partition during the lifetime of an ancestor. Of course, after the lifetime of an ancestor, the matter will be governed by H.S.A. Here, one has to note also that the bar is only on descendants, not ascendants. In other words, the bar applies only to a suit by a son, grandson and great grandson in the case of Mitakshara partition and to a suit by a daughter, granddaughter, great granddaughter and so on in the case of marumakkathayam partition. It cannot apply to a suit by the grandfather against those three persons or to a suit by a grandmother against her daughter, granddaughter, great granddaughter and so on. I wonder whether any such litigious soul survives now!

Section 3 does not contain what the heading thereto predicates. Though the heading speaks of the situation “Birth in family not to give rise to rights in property”, the section does not speak of that at all. On the contrary, the section only reproduces, in part, certain sections in some of the repealed enactments. Section 4 speaks only of division in status. The 2 sections do not prohibit, in any manner, to my notice, accrual of right by birth or practice of Mitakshara or Marumakkathayam principles. Section 3 only reiterates an age old restriction on recognition by court of a right to claim any interest in property of an ancestor during his or her lifetime.

This leads to an incongruous situation. A family can be joint anywhere else in the country. The moment it settles down in God’s own country, they are divided. How does the law operate in the matter of their ancestral properties situated in Kerala and say, Tamil Nadu? Divided in Kerala, united in Tamil Nadu? That is against the concept of federalism.

Take another situation. The property obtained by a member in a Section 4 situation cannot be said to be his/her self acquisition. The phraseology “as if each one of the members is holding his or her share separately as full owner thereof” cannot be understood to mean that such property cannot be ancestral property at all times. True, it confers full ownership on the share identified by it. Incidents of ancestral property are not taken away. Mitakshara recognises the principle of sole surviving coparcener and a coparcenary springing into existence on the birth of a male member to that sole surviving coparcener. (AIR 1953 SC 495) holds the field, whereby “—— the son can assert this equal right with the father only when the grandfather’s property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfather’s property comes to the father by virtue of the latter’s legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. ——————— To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner”. Likewise, Marumakkathayam law - 1967 KLT 430. In so far as Sections 3 and 4 do not abolish right by birth, it cannot be said that a coparcenary or thavazhi cannot come into being after 1.12.1976. All the more so now, in the situation generated by new Section 6 H.S.A., which applies to the whole of India.

Well, I say that Abolition Act does not prohibit the practice and observance of various schools of Hindu law. Article 19 guarantees freedom of religion and its practice. Nothing prevents a family from being joint in estate and worship, a concept basic in Hindu law. What can be said of Section 3 Abolition Act, at best or worst, is that a court will not recognize a claim only for partition of right, at the instance of a descendant coparcener, on the basis of mere fact of birth in a joint family holding ancestral property as on 1.12.1976. Doubtless, a coparcenary springs into existence only because of birth. Is there any other form for formation of a coparcenary? Use of the word mere appears, to me, to be more for form than for sense. I am at a loss to understand the public interest warranting enactment of the Abolition Act, as distinguished from public interest compelling other States to follow a diametrically opposite track, now followed by the Parliament.

The scope of repeal u/S.7 is “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 Act does not, but for misconstrued Section 3, provide for cessation of right by birth. Granted, Section 4 devastates joint family system; but for that operation to be prospective, Section 3 ought to have been more lucid and specific, somewhat like “No claim, suit, action or defence shall lie in any court to enforce a right to or in any ancestral property on and after the commence- ment of this Act”. As of now, the section does not abolish, except by imagined reasons, assum- ptions and misinterpretation, the concept of right by birth. Is it not quite right to contend that repeal  under  Section  7  does  not  have  the  effect  of effacing Mitakshara, Marumakkathayam etc?

We have to bear in mind that the repealed enactments did not, by themselves, create the concept of right by birth. The concept of right by birth goes back centuries beyond legislation thereon. That concept was the very basis and essence, if not the artery, of various schools of Hindu law. These enactments provided for marriage, maintenance, management and partition of joint family property, succession etc. They did not herald the principle of right by birth, they only affirmed it, as an indefeasible attribute of community living, modulated by regional changes. Section 3, though intended to do away with that principle, stopped short and instead of abolishing right by birth, rested happy with enjoining courts from recognizing that right during the life time of the ancestor. In other words, Section 3 contains nothing new, it conveys nothing new and it annuls not the old school. It is only old wine in new bottle. That section is inconsequential. It neither creates a new right nor denies an old right. Section 4 is, for all intent, effect and effort, good only for one day, 1.12.1976. Not for a day thereafter. It is limited only to disintegration of joint families holding joint family property as on 1.12.1976. It cannot apply to joint families and joint family property coming into being after that date.

The Abolition Act falls, in my opinion, in the rare category of spent statutes, efficacious only in annulling the then scenario. It does not prohibit, either explicitly or by necessary implication, right by birth and/or formation of joint families.

I am reminded of Lord Denning’s famous dislike for “intention seekers”. Without seeking intention, it can be seen that new Section 6 H.S.A. regenerates what Abolition Act is said to have degenerated, if really Section 3 had the effect of destroying coparcenaries and tharwads.

Should we not ask the poltergeist of abolition to disappear? To get ablution, like Pilate!

Shri  V.G. Govindan Nair -- In Memoriam

(By Jayakrishnan D., Advocate, Vanchiyoor, Thiruvananthapuram)

There is a certain uniqueness to the first and last. And I had the uniqueness and fortune to be the junior most junior to Sri.V.G.Govindan Nair. And that is something I will treasure all my life. He was the one who initiated me into advocacy, encouraged me, forgave my mistakes and guided me in the profession. And even now he inspires me.

When he died on June 15, 2010, many newspapers and other media showered glowing tributes on his professional achievements. My endeavour however is to reminisce the short but blessed time I spent in my erstwhile senior’s presence during the time he was in his office at Vanchiyoor before he left for Kochi on his appointment as the Director General of Prosecutions, Kerala.

His  Chambers,  His  Life  and  His  Legacy

I always remember V.G. Sir (as he was fondly called by almost everyone) with a smiling face. Yes indeed he was always smiling. It is a very very rare quality. He was always pleasant and welcomed all and everyone into his presence. And I do not think that anyone ever felt awkward when they were with him. He made everyone comfortable. And he enlightened everyone. He had a unique charm and charisma. Wherever he went he was the centre of attraction. People gathered around him to listen to him. And he, with his clear logic sharpened by long experience and intensive study, piercing insight and a smooth voice made the listening worthwhile.

One of the first things I learnt in his chambers was that time spent with V.G. Sir was never wasted. Because he lived and breathed the law. Initially I used to wonder, does not Sir have a normal life beyond the law? Gradually my doubt cleared. And the truth sank in. Yes, V.G. Sir did not have any other life, but the life of the law. I remember long days, when he used to sit in his office and discuss legal questions late into the night. It was always interesting. But the truth be told; I in my twenties could not keep up with the enthusiasm that V.G. Sir showed towards law in his seventies. But that is the precise reason that he remains and will continue to remain an inspiration to me.

His life was an example. And the example he set was one of absolute professionalism. He was from head to toe an absolute professional. He was always concerned about the latest positions of the law as declared by the higher Courts. I remember that he was always keen that he stayed up to date. One clear instance I remember was in my first year in his chambers. He had raised a doubt regarding some aspect of bail and he posed the question to all the advocates in his chambers. I too among others looked up some journals, commentaries and stuff. But we did not find the answer. When it was time for lunch everyone including myself concentrated on the needs of the body. But Sir stayed in his room. And he found the answer. Only then did he leave for his lunch. I think he left for lunch by around 3 p.m. that day. And I also recollect that I felt a little ashamed that I had given up and concentrated on other matters when V.G. Sir had the tenacity to clear that legal question all on his own. But that was his mettle.

That was not the only instance of his tenacity. He always exuded a confidence that even if no other junior was around to help him, he will push the work through. Though he liked assistance from the advocates in his chambers, I do not think anyone ever had any doubt that Sir would leave the preparation of any case to his juniors alone. In every case without fail he was more prepared. He would see more questions than the other advocates in his office who had gone through the very same file. And he was prepared for those questions, with logical and legal answers.

So also V.G. Sir gave his everything to every case. Even when things did not work out at the Trial Court level and went to the Appellate Courts, he used to keep tabs on the developments. And he was always concerned that the point he saw and raised in the case, though not appreciated in the lower Courts would not miss the eye of the appellate ones. He was genuinely disappointed when Courts misread facts or the law.

As far as juniors were concerned V.G. Sir was the best senior anyone could get. He gave freedom to every advocate in his office to take up any case, prepare and even try the cases. That is so rare. And the very shocking characteristic that V.G. Sir displayed was that he was always willing to clear doubts, simple as well as complex. That also I found a rare quality as many seniors see juniors as a threat to their own practice and keep what they have learnt to themselves. But Thanks be to God, V.G. Sir was not at all like that.

In fact, one of the first things I missed when Sir left Thiruvananthapuram on his appointment as the Director General of Prosecutions was this easy way to clarify doubts. Without Sir, I had to work on my own and go through several books and decisions in journals before I got answers. Asking Sir was easy. Once Sir went away, my easy days were gone.

This unique quality that Sir had was widely known and several advocates many decades into practice would come to his chambers for advice on knotty problems. And Sir always had an answer. That will be missed. Terribly.

And he genuinely encouraged. I remember the first time I prepared to argue a Criminal Appeal before the Sessions Court. Sir said, “if all goes well you can take the credit, if not I will cover for you.” How gracious! The best possible encouragement a junior can get. The appeal was allowed. But I truly believe that it was V.G. Sir’s kind encouragement and heartfelt blessings that gave the result rather than my preparation.

Most importantly V.G. Sir was the one who taught me professional ethics. It is a lesson that one cannot learn in every chamber. But Sir with his advice and more importantly his life showed the way. He always advised his juniors as to the unique calling we had. How we should be of a high moral and ethical standard in all our dealings. I remember an instance when he refused a Vakalath from a wealthy client for the sole reason that it was brought signed. He would rather lose a client, a wealthy one at that, than crush professional ethics under foot. What an example!

And his Court-Craft was amazing. I, in my short experience at the Bar, had occasions in which I lost my temper because the Judge did not see things my way. How silly! But Sir who had seen more than 45 years of practice was so patient. He was tenacious and never sacrificed any point in Court, but he was always gracious, smiling and persuasive, but never rude. I am sure every Judge before whom V.G. Sir appeared would vouch for that fact. That is another great example that he has set not just for me but for everyone at the Bar. Be tenacious and bold, but always be a gentleman.

V.G. Sir is gone. But his legacy lives on. His ability to lead and inspire is clearly borne out by the fact that many of his juniors went on to become respected Advocates with a good practice. Very few have left the profession for other jobs. How many Seniors can claim such an intangible wealth! And all of them without exception remember V.G. Sir with great respect and fond affection. V.G. Sir inspired and lighted a passion for the law in every one of our hearts. Working with him made us believe that Advocacy is the coolest profession on earth. Even Judgeship did not appeal when one was working with V.G. Sir. Even during his last days he was thinking about the profession. He in fact wrote a letter to the Union Law Minister (published in 2010 (2) KLT Journal 45) regarding the urgent need for notification of S. 29 of the Advocates’s Act, 1961 on which the Government is dragging its feet even after a specific direction by the Honourable Supreme Court. It was a fond topic of V.G. Sir’s. He always used to take it up with every politician he met. I sincerely hope that V.G. Sir’s long cherished dream will be fulfilled one day, that too soon. It would be a fitting tribute to a gentle soul who lived and breathed the law.

His  passing

It was at a very late stage that everyone except his family members came to know of his illness. And that it was terminal. The last time he visited his chambers at Vanchiyoor, he was his usual cheerful self. We all noticed that he looked very frail. Now we know that Sir knew even then that his illness was terminal. But he never discussed any such matter. He stuck to law.

The last time I saw V.G. Sir alive and well was when I visited his home in Kochi. I along with a colleague went there. He was lying in his bedroom. He was very frail and looked very tired. But seeing us he smiled. Very beautifully. And then started discussing. Law, what else.

We spent almost an hour or so there. The entire time V.G. Sir discussed the law. In fact he was actually discussing about the need for development of ‘Forgive Jurisdiction’. He had argued a matter concerning a reference under Criminal Rules of Practice, 1982 (Kerala) R.131 before a Full Bench of the Honourable High Court (decision published as State of Kerala v. Salini (2010 (2) KLT 117). He had also drafted an article to be published in the KLT (later published in 2010 (2) KLT Journal 29 titled ‘Forgive Jurisdiction’). He showed us a draft.  He discussed the origins of pardoning power of the State. All in all, an illuminating and mind expanding experience. All this when in fact Sir was not very well physically. But his mind was active, sharp as ever, thinking of law and its development.  What a man! What a lawyer!

After that day I saw him only once. But by that time he was already sinking. Seeing V.G. Sir who was always so full of life on his death bed was a painful experience. But what is to be will be. No man can stop that.

It is better to go to a house of mourning than to go to a house of feasting, for death is the destiny of every man; the living should take this to heart.         --  Ecclesiastes 7.2 (Bible)

His  kind  gesture  to  me

Lastly but most importantly I remember V.G. Sir for his mercy towards me. As described earlier Sir valued ethics and his reputation above everything in life. And I, in my carelessness and inexperience almost made a mess out of it. Right after he left for Kochi as Director General of Prosecutions, I made a terrible mistake which could have cost V.G. Sir his reputation which is without blemish.

When I realised the gross error I had made, and that because of my mistake Sir who was not at all to blame could lose his name, I could only muster enough courage to send an SMS asking forgiveness. I never called. That weekend when he came down to his chambers at Vanchiyoor, I ran up to his room and apologised profusely. V.G. Sir just smiled and said, “Do you realise the danger of what you did?”

That’s all! He did not utter even an unkind word to me. He was his usual smiling self. And he forgave me just like that! And he never once brought that issue up. How gracious and kind! Truly divine! I who deserved no mercy was shown mercy! That is the most precious moment I cherish of my dear Senior. When he later wrote about ‘Forgive Jurisdiction’, he was not preaching without practising it in the first place.

I remember as I was waiting for his body to be brought from Kochi to the Trivandrum Bar Association after his demise, thoughts of his act of mercy kept flooding my heart and I could not stop my tears.  Every tear drop that rolled off my cheek that day was a humble offering of thanks to my dear senior who had earned my love, respect and admiration. Above his professionalism, his integrity, his enthusiasm and every other quality he displayed, I value his tender act of mercy shown to one who never deserved any, above everything.

Thomas Carlyle, the Scottish writer once said,

‘A great man shows his greatness by the way he treats little men’.

How true!