Kavalappara Kottarathil

Kochuni & Ors V. The State

Of Madras & Ors
(AIR 1960 SC 1080)

 Court Judgment Information

 Year: 1960
 Date: 4 May 1960
 Court: Supreme Court of India
 INSC: [1960] INSC 101
 Bench : Sinha, Bhuvneshwar P.(Cj), Imam, Syed Jaffer, Sarkar, A.K., Subbarao, K., Shah, J.C.

 Citation: 1960 AIR 1080

 Act: Marumakkathayam Law-Enactment for removal of doubts-.Constitutional validity -Madras

Marumakkathayam (Removal of Doubts) Act, 1955 (32 of 1955) -Constitution of India, Arts.19(1)
(f), 31, 31A.
 FACTS
1. The petitioner in Petition No. 443 of 1955 is Kavalappara Kottarathil Kochunni Moopil Nair.
He is the holder of the Kavalappara sthanam to which is attached Kavalappara estate situate
in Walluvanad Taluk in the district of South Malabar.
2. In pre-British times the Kavalappara Moopil Nair, who was the senior most male member of
Kavalappara Swaroopam (dynasty), was the ruler of Kavalappara territory. He had sovereign
rights over his territory. Besides the Rajasthanam, the Kavalappara Moopil Nair held five
other sthanams granted by the Raja of Palghat for rendering military services and two other
sthanams granted to his ancestors by the Raja of Cochin for rendering similar services.
Properties are attached to each of these sthanams.
3. The petitioner's immediate predecessor died in 1925 and the petitioner became the Moopil
Nair of Kavalappara estate and as such the sthanee of the properties attached to the various
sthanams held by him. The petitioner in will hereafter be referred to as " the sthanee ".
Respondents 2 to 17 are the junior members of the Kavalappara tarwad, and, according to the
sthanee, they have no interest in the said properties.
4. In 1932, the Madras Marumakkathayam Act (Mad. Act XXII of 1932) came into force where
under the members of a Malabar tarwad were given a right to enforce partition of tarwad
properties or to have them registered as impartable.
5. After some infructuous proceedings under the provisions of the said Act, respondents 10 to
17, who then constituted the entire Kavalappara tarwad, filed O.S. No. 46 of 1934 in the court
of the Subordinate Judge of Ottapalam for a declaration that all the properties under the
management of the sthanee were tarwad properties belonging equally and jointly to the
sthanee and the members of the tarwad. The Subordinate Judge dismissed the suit.
6. On appeal, the High Court of Madras on April 9, 1943, allowed the appeal and reversed the
decision of the Subordinate Judge and decreed the suit,. On farther appeal to the Privy
Council, the Board by its judgment dated July 29, 1947, restored the judgment of the
Subordinate Judge. The Privy Council found that the Kavalappara estate in Walluvanad Taluk
was an impartible estate and that nothing had happened to alter the original character of the
property in its relation to the members of the family. On that finding, the Privy Council held
that respondents 10 to 17 were not entitled to the declaration they sought in that case.
7. The result of that litigation was that all the properties in the possession of the sthanee were
declared to be sthanam properties and that the members of the tarwad had no interest therein.
 After the title of the sthanee was thus established, the Madras Legislature passed the
impugned Act in 1955.
8. Under the impugned Act, every sthanam possessing one or other of the three characteristics
mentioned therein it is common case that the impugned Act applies to the petitioner's sthanam
shall be deemed and shall be deemed always to have been properties belonging to the tarwad.
The sthanee states that the impugned Act is ultra vires the Madras Legislature, void and
inoperative and that the said Act cannot affect the rights of the sthanee or his estate to any
extent.
9. On August 3, 1955, the sthanee executed a gift deed in favour of the petitioners in the said
petition in respect of properties granted to his predecessor by the Raja of Palghat. This
petition raised the same questions as Petition No. 443 of 1955 and seeks for the same reliefs.
Petition No. 41 of 1956 is filed by Ravunniarath Rajan Menon, who is the son of the sthanee.
The first respondent therein is the State of Madras and respondents 2 to 17 are the members
of the tarwad and respondent 18 is the stanee. This petitioner alleges that on August 3, 1955,
the sthanee executed a gift deed in his favour in respect of the properties granted to the
sthanee's predecessor by the Raja of Cochin. This petition contains similar allegations as the
other two petitions and asks for similar reliefs.
 ISSUES

Following were issues concerned:

1) That the impugned Act is constitutionally void because it offends against Art. 14 of the
Constitution.

(2) That the impugned Act is constitutionally void because it deprives the sthanee of his
fundamental right to hold and dispose of property and thereby offends against Art. 19(1) (f) of
the Constitution and is not saved by cl. (5) of Art. 19.

(3) That the impugned Act is further bad because it has been made by the Legislature not in
exercise of its legislative power but in exercise of judicial power.

(4) That the petitioner's sthanam is an " estate " within the meaning of Art. 31A of the
Constitution and therefore the Act extinguishing or modifying the rights pertaining to the said
sthanam cannot be questioned on the ground that it infringes Arts. 14, 19 and 31 of the
Constitution;

(5) That the impugned Act purports to deprive the petitioner of his sthanam properties by
authority of law within the meaning of Art. 31(1) of the Constitution and, as he is legally
deprived of his properties, Art. 19(1) (f) of the Constitution has no application, for, it is said, Art.
19(1)(f) pre-supposes the existence of the petitioner's title to the sthanam and its properties, and,
as he is deprived of his title therein by the impugned Act, he can no longer rely upon his
fundamental right under Art. 19(1) (f). Further that the gifts of the sthanam properties by the
sthanee in favour of the petitioners in the other two petitions were void and that, therefore, they
have no fundamental right to enable them to come to this Court under Art. 32 of the Constitution.
 JUDGEMENT
1. Article 31A has been amended by the Constitution (Fourth Amendment) Act, 1955.The
object of the amendment relevant to the present enquiry was only to enable the State to
implement its next objective in the land reform, namely, the fixing of limits to the extent
of agricultural lands that may be owned or occupied by any person, the disposal of any
land held in excess of the prescribed maximum and the further modification of the rights
of land owners and tenants in agricultural holdings. The object was, therefore, to bring
about a change in the agricultural economy but not to recognize or confer any title in the
whole or a part of an estate on junior members of a family. This Court has held in Aswini
Kumar Ghose v. Arabinda Bose1 that the statement of objects and reasons is not
admissible as an aid to the construction of a statute. But we are referring to it only for the
limited purpose of ascertaining the conditions prevailing at the time the bill was
introduced, and the purpose for which the amendment was made.

2. Unhampered by any judicial decision, the court scrutinized the express terms of the
Article to ascertain its scope and limitations. Sub-el. (a) of Art. 31A(1) enables the State
to acquire any estate or of any rights therein or to extinguish or modify any such rights. "
Estate " is defined in el. (2)(a) to have the same meaning as that expression or its local
equivalent has in the existing law relating to land tenures in force in that area, and by
inclusive definition it takes in any jagir, inam, or muafi or other similar grants and in the
States of Madras and Kerala any janmam right. Clause (2)(b) defines the expression "
rights ", in relation to an estate, to include any rights vesting in a proprietor, sub-
proprietor, under-proprietor, tenure- holder, raiyat, under-raiyat or other intermediary and
any rights or privileges in respect of land revenue.

3. If an estate so defined is acquired by the State, no law enabling the State to acquire any
such estate can be questioned as inconsistent with the rights conferred by Arts. 14, 19 or
31 of the Constitution. So too, any law extinguishing or modifying any such rights
mentioned in cl. (1)(a) and defined in el. (2)(b) cannot be questioned on the said grounds.
The broad contention that a law regulating inter se the rights of a proprietor in his estate
and the junior members of his family is also covered by the wide phraseology used in cl.
(2)(b), may appear to be plausible but that argument cannot be sustained if that clause is
read along with the other provisions of Art. 31 A. The definition of " estate" refers to an
existing law relating to land tenures in a particular area indicating thereby that the Article
is concerned only with the land tenure described as an "estate". The inclusive definition
of the rights of such an estate also enumerates the rights vested in the proprietor and his
subordinate tenure-holders. The last clause in that definition, viz., that those rights also
include the rights or privileges in respect of land revenue, emphasizes the fact that the
Article is concerned with land- tenure. It is, therefore, manifest that the said Article deals
with a tenure called "estate" and provides for its acquisition or the extinguishment or

1
AIR 1953 SC 75
 modification of the rights of the land-holder or the various subordinate tenure- holders in
respect of their rights in relation to the estate.

4. Article 31A deprives citizens of their fundamental rights and such an Article cannot be
extended by interpretation to overreach the object implicit in the Article. The unsoundness
of the wider interpretation will be made clear if the Article is construed with reference to
the janmam right. Under the definition, any janmam right in Kerala is an " estate ". A
janmam right is the freehold interest in a property situated in Kerala. Moor in his "
Malabar Law and Custom " describes it as a hereditary proprietorship. A janmam interest
may, therefore, be described as " proprietary interest of a landlord in lands " and such a
janmam right is described as "estate" in the Constitution. Substituting janmam right " in
place of "estate " in cl. 2 (b), the rights " in Art. 31 A(1)(a) will include the rights of a
proprietor and subordinate tenure-holders in respect of a janmam right. It follows that the
extinguishment or modification of a right refers to the rights of a proprietor or a
subordinate tenure-holder in the janmam right. Land-tenures in Malabar are established
by precedents or immemorial usage.

5. Janmam right is a freehold interest in property and the landlord is called " janmi ". He can
create many subordinate interests or tenures therein.These rights may be extinguished or
modified. A law may regulate the rights between a janmi and his subordinate tenure-
holders; but it may also affect his rights unconnected with the tenure. To illustrate: A
janmi holds 10 acres of land in janmam right, out of which he may sell 2 acres each to
five persons; the land is divided into 5 plots held by different holders, but each one
continues to have full rights of a janmi ; the janmam right is not extinguished or modified,
though the land is divided between 5 persons. That is what the impugned Act purports to
do. It does not modify any of the rights appertaining to " janmam right ", but only confers
shares in the property on other members of the tarwad. It is said that the inclusive
definition of the expression " rights " in cl. (2) (b) takes in such a case as it extinguishes
or modifies the proprietor's right in the land. This is a superficial reading of the Article.
We have already explained how such a modification is not a modification of a right
pertaining to a "janmam right", but only a deprivation of a particular janmi of his right in
his property or a curtailment of his right therein, leaving all the characteristics of a
janmam right intact.

6. It is said that a contrary construction has been accepted by this Court in two decisions.
The first is that in Sri Ram Ram Narain v. State of Bombay2. In that case, the
constitutional validity of the Bombay Tenancy and Agricultural Lands (Amendment) Act,
1956 (Bom. XIII of 1956), was canvassed. Under that Act the title to the land which
vested originally in the landlord passes to the tenant on the tiller's day or within the
alternative period prescribed in that behalf. This title is defeasible only in the event of the
tenant failing to appear or making a statement that he is not willing to purchase the land
or committing default in payment of the price thereof as determined by the Tribunal
constituted for that purpose. This Act was, therefore, enacted to implement the agrarian
reform in that part of the country and it expressly confers certain rights on tenants in

2
[1959] SUPP. 1 S.C.R. 489.
 respect of their tenements which they did not have before. The Act creates absolute rights
in a tenant which was either by the extinguishment or by modification of a landlord's
rights and conferment of the same on the tenant. This law is, therefore, one pertaining to
the land- tenure of the State.

7. The second decision is that in Atma Ram v. State of Punjab3. There, this Court was
concerned with the provisions of the Punjab Security of Land Tenure Act-(IO of 1953)
(as amended by Act 11 of 1955). Under that Act, the substantive rights of a landowner
were modified in three respects, namely, (1) it modified his rights of settling his lands on
any terms and to any one he chooses; (2) it modified, if it did not altogether extinguish,
his right to cultivate the surplus area as understood under the Act; and (3) it modified his
right of transfer in so far as it obliged him to sell lands not at his own price but at a price
fixed under the statute, and not to any one but to specified persons, in accordance with
the provisions of the Act. It is clear from the said Act that the provisions thereof purport
to regulate the rights in respect of lands which are estates within the meaning of the law
relating to land- tenures in Punjab. It was contended therein that in the purview of Art.
31A, only the entire estates were included but not portions thereof, but that contention
was negatived. Sinha, J. (as he then was), who delivered the judgment of the Court,
observed at p. 526 thus:
"Keeping in view the fact that Art. 31A was enacted by two successive
amendments-one in 1951 (First Amendment), and the second in 1955 (Fourth
Amendment)-with retrospective effect, in order to save legislation effecting
agrarian reforms, we have every reason to hold that those expressions have been
used in their widest amplitude, consistent with the purpose behind those
amendments. "

8. This Court has, therefore, recognised that the amendments inserting Art. 31A in the
Constitution and subsequently amending it were to facilitate agrarian reforms and in that
case it was held that the impugned Act affected the rights of the landlords and tenants.
Neither of the two decisions, therefore, supports the contention that Art.
31A comprehends modification of the rights of an owner of land without reference to the
law of land-tenures.

9. Thus, the impugned Act does not purport to modify or extinguish any right in an estate.
The avowed object of it is only to declare particular sthanams to be Marumakkathayam
tarwads and the property pertaining to such sthanams as the property of the said tarwads.
It declares particular sthanams to have always been tarwads and their property to have
always been tarwad property. The result is that the sole title of the sthanee is not
recognised and the members of the tarwad are given rights therein. The impugned Act
does not effectuate any agrarian reform and regulate the rights inter se between landlords
and tenants. We, therefore, hold that the respondents cannot rely upon Art. 31A to deprive
the petitioner of his fundamental rights.

3
[1959] Supp. 1 S.C.R. 748.
 10. Now whether the impugned Act deprives the petitioner of his fundamental right to hold
and dispose of property and is not protected by cl. (5) of Art. 19 of the Constitution. This
question is inextricably connected with the contention raised by the respondents that Art.
31(1) excludes the operation of Art. 19(1)(f) of the Constitution.

11. The argument of the learned counsel for the respondents is that Art. 19(1)(f) must give
place to Art. 31(1) of the Constitution. In other words, a person's fundamental right to
acquire, hold and dispose of property is conditioned by the existence of property and if
he is deprived of that property by authority of law under Art. 31(1), his fundamental right
under Art. 19(1)(f) disappears with it.The views of the learned Judges may be broadly
summarized under three heads, viz., (1) to invoke Art. 19(1), a law shall be made directly
infringing that right; (2) Arts. 21 and 22 constitute a self-contained code; and (3) the
freedoms in Art. 19 postulate a free man.

12. The learned Judge has drawn upon the principle laid down in A. K. Gopalan's Case4.
These observations prima facie appear to be against the contentions of the petitioner
herein. But a further scrutiny reveals that they have no bearing on the construction of Art.
31(1) of the Constitution after cl. (2) of Art. 31 has been amended and el. (2A) has been
inserted in that Article by the Constitution (Fourth Amendment) Act, 1955. Before the
amendment, this Court, as we have already noticed, held by a majority in The State of
West Bengal v. Subodh Gopal Bose 5 that cls. (1) and (2) of Art. 31 were not mutually
exclusive in scope and content, but should be read together and understood as dealing
with the same subject, namely, the acquisition or taking possession of property referred
to in cl. (2) of Art. 31. In that view, Art. 31, before the amendment, was a self-contained
Article providing for a subject different from that dealt with in Art. 19.

13. On that basis it was possible to hold, as this Court held in The State of Bombay v. Bhanji
Munji6 on the analogy drawn from Art. 21, that when the property therein was
requisitioned within the meaning of Art. 31, the operation of Art. 19 was excluded. But
there is no scope for drawing such an analogy after the Constitution (Fourth Amendment)
Act, 1955, as thereafter they dealt with two different subjects: Art. 31(2) and (2A) with
acquisition and requisition and Art. 31(1) with deprivation of property by authority of
law. The decision of this Court in Bhanji Munji's Case no longer holds the field after the
Constitution (Fourth Amendment) Act, 1955. Strong reliance is placed upon the
observations of Das, J. (as he then was), in Subodh Gopal Bose's Case. Therein the learned
Judge dissented from the view of the majority on the interpretation of Art.
31(1) and (2) of the Constitution. In the course of his dissenting judgment, the learned
Judge made certain observations on the effect of his interpretation of Art. 31 on Art.
19. The learned Judge said at p. 632 thus:
" Such being the correct correlation between article 19(1), sub-clauses (a) to (e)
and (g) on the one hand and article 21 on the other, the question necessarily arises

4
1950 SCR 88
5
1954 SCR 587
6
[1955] 1 S.C.R. 777
 as to the correlation between article 19(1) (f) and article 31. Article
19(1)(f) guarantees to a citizen, as one of his freedoms, the right to acquire, hold
and dispose of property but reasonable restrictions may be imposed on the exercise
of that right to the extent indicated in clause (5). Article 31, as its heading shows,
guarantees to all persons, citizens and non-citizens, the ' right to property' as a
fundamental right to the extent therein mentioned. What, I ask myself, is the
correlation between article 19(1)(f) read with article 19(5) and article 31 ? If, as
held by my Lord in A. K. Gopalan's Case(1) at p. 191, subclauses (a) to(e)and (g)
of article 19(1) read with the relevant clauses (2) to (6) ' presuppose that the citizen
to whom the possession of these fundamental rights is secured retains the
substratum of personal freedom on which alone the enjoyment of these rights
necessarily rests', it must follow logically that article 19(1)(f) read with article
19(5) must likewise presuppose that the person to whom that fundamental right is
guaranteed retains his property over or with respect to which alone that right may
be exercised. I found myself unable to escape from this logical conclusion."

14. The learned Judge earlier expressed the same opinion in Chiranjit Lal Chowdhuri v.
The Union of India7. When it was pointed out to the learned Judge that, if his view was
correct, the legislature while it cannot restrict a person's right to property unless the
restriction is reasonable and for a public purpose, it can deprive him of his property
without any such limitations. Further, the learned Judge was of the view that unless Art.
3 l(l) was construed in the manner he did, it would not be possible for the State to bring
about a welfare State which our Constitution directs it to do. Elaborating this point, the
learned Judge observed, at p.655, thus: We must reconcile ourselves to the plain truth that
emphasis has now unmistakably shifted from the individual to the community. We cannot
overlook that the avowed purpose of our Constitution is to set up a welfare State by
subordinating the social interest in individual liberty or property to the larger social
interest in the rights of the community. As already observed, the police power of the State
is the most essential of powers, at times most insistent, and always one of the least
limitable powers of the government'......... In the matter of deprivation of property
otherwise than by the taking of posession or by the acquisition of it within the meanings
of article 31(2) our Constitution has trusted our legislature and has not thought fit to
impose any limitation on the legislature's exercise of the State's police power over private
property ".

15. Relying upon the said observations, learned counsel for the respondents pressed on us the
following three points: (1) After the Constitution (Fourth Amendment) Act, 1955, cl. (1)
of Art. 31 must be read independently of el. (2) thereof and, if so read, cl. (1) must be
held to deal with police power. (2) Without such power the State cannot usher in a welfare
State which the Constitution enjoins it to do. (3) The fact that there is no limitation on the
power of the legislature to make law depriving a citizen of his property need not deter us
from recognising such power, as we can trust our legislatures and Parliament as the people
of Great Britain have trusted their Parliament. We cannot agree with the contention of the

7 [1950] S.C.R. 869.

 learned counsel that Art. 31(1) deals with " police power ". In the view expressed by Das,
J. (as he then was), the legislature can make any law depriving a person of his property
and the only limitation on such power is its good sense. But " police power ", as it is
understood in American Law, can never be an arbitrary power.

16. If the interpretation sought to be placed on Art. 31(1) was accepted, it would compel the
importation of the entire doctrine of police power and grafting it in Art. 31(1) or the
recognition of arbitrary power in the legislature with the hope or consolation suggested
that our Parliament and legislatures may be trusted not to act arbitrarily. The first
suggestion is not legally permissible and the second does not stand to reason, for the
Constitution thought fit to impose limitations on the power of the legislatures even in the
case of lesser infringements of the rights of a citizen.

17. The correct approach to the question is, first to ascertain what is the fundamental right of
the petitioners; then to see, whether the law infringes that right. If the law ex facie
infringes that right, the State can support that law only by establishing that the law
imposes reasonable restrictions on the petitioner's fundamental right in the interests of the
general public. If so approached, the impugned Act by seeking to deprive the petitioner
of his property certainly infringes his fundamental right. There is absolutely nothing on
the record to sustain the validity of the law under the said clause (5) of Art. 19. The
apprehension that deprivation can never be a restriction and therefore every law depriving
a person of his property must necessarily be void, even if justifiable, cannot help the
respondents, for if it is not saved by cl. (5), that result must flow from the promises. But
that apprehension has no justification.

18. We, therefore, hold that a law made depriving a citizen of his property shall be void,
unless the law so made complies with the provisions of el. (5) of Art. 19 of the
Constitution.

19. This leads us to the question whether the provisions of the Act infringe Art. 19(1)(f) of
the Constitution. The impugned Act is The Madras Marumakkathayam (Removal of
Doubts) Act, 1955 (Madras Act No. XXXII of 1955). The Act, read with the preamble,
takes the sthanam, lays down certain tests and proceeds to say that if one or other of the
tests is satisfied in respect of any property claimed to be that of the sthanam, the sthanam
by statutory fiction is treated as the tarwad and its properties as tarwad properties. The
tests, as we will presently show, are arbitrary and not germane to the question whether
the properties belong to a sthanam or a tarwad. Whatever may be the phraseology used,
in effect and substance, the Act in the guise of applying certain tests seeks to convert
certain sthanams into tarwards and their properties into tarwad properties. The Act in the
guise of dispelling doubts abolishes a class of sthanams and deprives them of their
properties. The question is whether the said legislation can stand the test of Art. 19(5) of
the Constitution.

20. Under cl. (5), the State can make a law imposing reasonable restrictions on the
fundamental rights embodied in Art. 19(1)(f) in the interests of the general public. What
 is " reasonable restriction " has been succinctly stated by Patanjali Sastri, C. J., in State
Of -Madras v. V. G. Row8 thus at p. 607:

"It is important in this context to bear in mind that the test of reasonableness,
wherever prescribed, should be applied to each individual statute impugned,
and no abstract standard, or general pattern of reasonableness can be laid down
as applicable to all cases. The nature of the right alleged to have been infringed,
the underlying purpose of the restrictions imposed, the extent and urgency of the
evil sought to be remedied thereby, the disproportion of the imposition, the
prevailing conditions at the time, should all enter into the judicial verdict."

21. Before the court proceeded to consider whether the restrictions imposed by the impugned
Act are reasonable within the meaning of el. (5) of Art. 19, it would be necessary to
ascertain precisely the law on the following three matters: (1) What is a sthanam in
Marumakkathayam law?; (2) what is tarwad under the said law ? ; and (3) what is the
relationship between members of a tarwad and a sthanee?

22. Marumakkathayam law governs a large section of people inhabiting the West Coast of
South India. Marumakkathayam literally means descent through sisters' children. It is a
body of custom and usage which have received judicial recognition. The origin of the
sthanam is lost in antiquity. It primarily means a dignity and denotes the status of the
senior Raja in a Malabar Kovilagom or palace. It is surmised that sthaiiams were also
created by the Rajas by giving certain properties to military chieftains and public officers
and also by tarwads creating them and allocating certain properties for their maintenance.
Most of the the incidents of a sthanam are well settled. Usually the seniormost male
member of the family and occasionally a female member attains a sthanam. Properties
are attached to the sthanam for the maintenance of its dignity. The legal position of a
sthanee is equated to that of a Hindu widow in that he represents the estate for the time
being and he can alienate the properties for necessity or for the benefit of the estate.
Unlike a Hindu widow, the successor to a sthanee is always a life-estate-holder.

23. Now, what is the relationship between the tarwad and the sthanee ? It is true that whatever
may be the origin of the sthanam, ordinarily, the senior most member of a tarwad succeeds
to that position, but once he succeeds, lie ceases to have any proprietary interest in the
tawad. So too, the members of the tarwad have absolutely no proprietary interest in the
sthanam property

24. What is the effect of the impugned Act ? It is not the form that matters but the substance
of it in its operation on the vested rights of citizens. The Act destroys the finality of
decrees of courts establishing the title of janmies to the sthanam properties. It affects the
undisputed title of sthanees in sthanam properties, though they may not have obtained
decrees in respect thereof. It statutorily confers title retrospectively on the members of
the tarwad who had none before.

8
[1952] S.C.R. 597.
25. The second characteristic mentioned in the impugned Act is that the members have been
receiving maintenance from properties purporting to be sthanam properties as of right or
in pursuance of custom or otherwise. This characteristic is foreign to the concept of
sthanam. No member of a tarwad is entitled as of right to any maintenance from out of
properties of the sthanam. Under this clause, if maintenance is so received, the sthanam
is deemed to be a tarwad on the basis that the receipt of maintenance from the sthanee out
of the sthanam property brings about the said result. If a sthanee creates any such right in
favour of a tarwad, it may bind him, but it cannot certainly be binding on the sthanam
properties or its successor.

26. Nor does the third characteristic embody an unimpeachable test of the extinction of a
sthanam or the conversion of the same into a tarwad. Under the impugned Act, if there
had been at any time a vacancy caused by there being no male member of the tarwad
eligible to succeed to the sthanam the sthanam would be deemed to be a tarwad. Not only
there is no justification for enacting that non-existence of such a male heir at any point of
time should put an end to the character of the sthanam, but the only decided case of the
Madras High Court on the point recognized the right of a subsequently born male member
in a tarwad to succeed to the sthanam and its properties.

27. Therefore, the three tests laid down by the impugned Act to enable the drawing of the
statutory fiction are not only not germane but extraneous to the object sought to be
achieved. What is more, the impugned Act is made retrospective so as to make the sthanee
liable to arrears of maintenance and past profits. The impugned Act is only a legislative
device to take the property of one and vest it in another without compensation, and,
therefore, on its face stamped with unreasonableness. In short, the impugned Act is
expropriatory in character and is directly hit by Art. 19(1) (f) and is not saved by cl.
(5)of Art. 19. Another condition for the application of cl. (5) of Art. 19 is that the
restrictions should be in the interests of the general public.

28. The Court declare that Madras Act 32 of 1955 is void and ultra vires the Constitution and
issue a writ of mandamus restraining the State of Kerala from enforcing the provisions of
the said Act against the petitioner and his sthanams.

29. In the result, Petition No. 443 of 1955 is allowed with costs; Petition No. 40 of 1956 is
allowed, but in the circumstances, without costs ; and Petition No. 41 of 1956 is dismissed,
but in the circumstances, without costs. SARKAR, J.-In our view these petitions fail. The
petitions challenge the validity of an Act passed by the Madras Legislature called the
Madras Marumakkathayam (Removal of Doubts) Act, 1955. The substantive provisions
of the Act are contained in s. 2 which is in these terms: "S. 2. Notwithstanding any
decision of Court, any sthanam in respect of which-

a) there is or had been at any time an intermingling of the properties of the sthanam and the
properties of the tarwad, or
b) the members of the tarwad have been receiving maintenance from the properties
purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise,
or
c) there had at any time been a vacancy caused by there being no male member of the tarwad
eligible to succeed to the sthanam, shall be deemed to be and shall be deemed always to
have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam
shall be deemed to be and shall be deemed always to have been properties belonging to
the tarwad to which the provisions of the Madras Marumakkathayam Act, 1932 (Madras
Act, XXII of 1933), shall apply."
 LAND LAWS
PSDA

CASE SUMMARY- Kavalappara

Kottarathil Kochuni & Ors V. The State
Of Madras & Ors

(AIR 1960 SC 1080)

- SUBMITTED BY
VANI GUPTA
23310303815
V-D