Kerala High Court
Sreedharan Nair vs State Of Kerala on 22 July, 2002
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT M. Ramachandran, J.
1. By Notification No. 1598/45, the Secretary to the Travancore Government on 9.7.1945 had brought into force a set of rules defining the conditions of Viruthi service and the duties of the Viruthi holders with the sanction of His Highness Maharaja. Changes were so brought about in the rules, which held the field till then having been brought into force on 19.10.1898. The Viruthis retained were those for rowing Royal Cabin boats and for the performance of Velakali and certain other personal services. The Rules provided for the eventuality of succession as well. For the purpose of this case, Rule 10 might be relevant, which could be extracted herein below:
"10. If aregistered holder dies, the holding may with the sanction of the Assistant Peishkar be transferred to his heir, viz., the next senior male member in the family. In the event of the registered holder dying heirless, the holding may be transferred to any other competent person willing to perform the services, provided that if such aregistered holder is a Marumakkathayee and has sons the holding shall be transferred to such of his sons as may be willing to perform the services, preference being given to the senior one among them. If the land so transferred is found to be in the possession of any person other than the one in whose name transfer of registry is ordered and if the latter applies for delivery of possession, surrendering his rightsover the land in favour of Government to enable them to proceed under the Land Conservancy Act against the occupant, he may, under the orders of the Assistant Peishkar, be proceeded against under the Land Conservancy Act and evicted and the land handed over to the person in whose name Viruthi is transfered by the Assistant Peishkar and the land shall thereafter become a viruthi holding as before."
2. The lands so assigned were known as Erayili. In respect of Patta No. 23, pertaining to Ullur Village, the Erayili was originally assigned during the settlement, in the name of Kumaran Velayudhan of Arakkal Veedu, Ulloor Village. They were in respect of services to be made available to Sri Padmanabha Swami Temple and Subramanya Swami Temple. He had died in 1954, but no transfer of registry was effected. A dispute had arisen as about the person who was entitled to hold the land and it had been resolved by proceedings of the Revenue Divisional Officer, Trivandrum on 31.12.1959. One Parameswaran Pillai Krishna Pillai had been assigned the Erayili Patta taking note of the circumstance that he was the eligible member of Arakkal family for whom the viruthi stood assigned.
3. It is not disputed that such rights were inalienable and on the death of the Pattadhar was to go over to the senior most family member, as had been suggested by Rule 10, extracted earlier, Sri. Krishna Piliai, who was known as Viruthicar, passed away on 2.1.1981. On a claim that he was the most eligible person who was to be assigned the patta, one Sreedharan Nair, the petitioner herein, had made an application to the Revenue Department for transfer. He staked a claim, though he was second in rank in the Marumakkathayam tarwad which was the family to which Viruthi was assigned, since his elder brother Ramakrishna Pillai, due to personal reasons was not interested in getting such rights. It had been submitted that in view of relinquishment made by the elder brother Ramakrishna Pillai in his favour, he had a rightful claim. Simultaneously, claims had been agitated by one Vasudevan Pillai, who claimed to be the senior most member of the family of Viruthicar Krishna Pillai. It appears that on later stages Vasudevan Pillai had withdrawn all his claims. Therefore, it may not be necessary to refer his claim in detail in these proceedings. Sri. K. Chandrasekharan Nair, the 9th respondent herein, also had agitated claims for assignment of the properties, he being the eldest son of deceased Krishna Pillai.
4. The property in question comprised of 15 cents of land in Sy. No. 1026, 34 cents in Sy. No. 1342 and 42 cents in Sy. No. 1421 of Ulloor Village, totalling 91 cents. It is thus found that immediately after the death of Krishna Pillai, claims had been raised by the above referred parties. In view of the law and order situation apprehended and consequential directions issued by the Revenue Divisional Officer on 17.1.1981, the Village Officer (7th respondent) had, by Ext. P3 dated 17.1.1981, prevented the entry of Vasudevan Pillai, referred to earlier and respondents 8 and 9 (the wife and son of Krishna Pillai) and persons claiming through them. The report thereafter submitted by the 7th respondent indicates that on 16.2.1981 the properties concerned had been taken possession of on behalf of the Government. Ext. P4 showed that the properties had been taken possession of from Sreedharan Nair, who was holding it.
5. Steps were thereafter taken for hearing the claims of the contestants at the behest of the Revenue Divisional Officer (5th respondent). A report had been called for from the Village Officer and Ext. P6 is the report submitted by him. He reported that Sreedharan Nair had been in possession and he also had added that respondents 8 and 9 had left the properties in his favour voluntarily after the death of Krishna Pillai. The report was heavily in favour of the petitioner (Respondents 8 and 9 had in the course of hearing referred to his bias). It is also seen that by Ext. P7, the Tahsildar, Trivandrum had reported to the Sub Collector that Sreedharan Nair is the rightful claimant and this order came to be issued in a proceedings wherein Vasudevan Pillai, referred to earlier, had staked the claim. The pending proceedings did not however attain finality in spite of the matter being presented before the Revenue authorities, since in the meanwhile Act 17/1981, the Kerala Service Inam Land (Vesting and Enfranchisement) Act, 1981, Gazetted on 25th July, 1981 came into force. Section 3 of the said Act provided that notwithstanding anything contained in any law for the time being in force, or in any contract, or in any judgment, decree or order of any court, all right, title and interest of the land owners in Service Inam lands held by land holders shall vest in the Government free from all encumbrances. The 'land holder' was defined under Section 2(c) of the Act to mean a person holding Service Inam Land and by way of an explanation, it was provided as following:
"Explanation-Where any service inam land is in the possession of a person, other than the person to whom the land was granted for performing services or any of his successors-in-interest, the person in possession of the land shall be deemed to be the landholder for the purpose of this Act".
An enfranchisement also had been envisaged, Section 5 provided that the land holder will be entitled to assignment of such right, title and interest. Persons claiming such rights were to file, within the prescribed time, application to the Settlement Officer giving the details as were required to be given. The land holder was liable to pay the purchase price to the Government for the assignment of such rights. Applications were therefore mandatorily to be filed in view of the impact of the enactment and Sreedharan Nair had filed O.A. No. 650/82, Vasudevan Pillai had filed O.A. No. 929/82 and the 9th respondent had filed O.A. No. 1068/82. The matter was taken notice of by the Settlement Officer (6th respondent) under Section 7 of the Act. The applications were heard on 30th December, 1983. In the meanwhile, the 8th respondent also had filed an application as O.A. No. 412/83. The Settlement Officer, however, had not taken notice of the above and thereupon she had filed an Original Petition. An interim order had been passed staying all further proceedings by the Settlement Officer as the final order would have affected her claims as well. But by the time the stay order was communicated, Ext. P9 order had been passed by the said officer on 31.12.1983 (there is allegation that this was mala fide and about the stay order, information orally had been made available to him well before the order was passed). However, by Ext. P9 order the Settlement Officer held that Vasudevan Pillai or Chandrasekharan Nair had never come into possession of the Viruthi lands after the death of Krishna Pillai. Claims of the above persons were disallowed and it had been held that 91 cents of Erayili lands is to be assigned in favour of Sreedharan Pillai.
6. This order was subjected to challenge before the District Collector (4th respondent). In the meanwhile, the Original Petition filed by the 8th respondent herein (O.P. No. 3621 of 1984) had been disposed of directing that she also be heard by the District Collector when the appeals were taken up. The 4th respondent went into the issues in some details, and had observed that Ext. P9 has been passed hurriedly and claim had to be considered in some more detail. Thereupon she had directed that the matter be further looked into so as to determine actual possession. Setting aside Ext. P9 order the files were remitted back, for a reconsideration.
7. Against this order Sreedharan Nair had filed a revision before the Board of Revenue (2nd respondent). In revisional order dated 29.7.1988, the second respondent concurred with the views of the District Collector and held that "fact of possession as well as other relevant issues require a re-check and consideration". Remand was upheld and the revision petition was therefore rejected. It seems a further petition by Sreedharan Nair had been filed before the Government challenging Ext. P10 order, apparently requesting the Government to invoke its inherent powers. The petition is Ext. P13. However, this was not taken up for consideration for quite some time and the documents produced in this Court would indicate that the basic files were missing in the Secretariat. Ultimately, seeking for a finality of the issue, parties had filed Original Petitions (O.P. Nos. 8243 and 8878 of 1992) and this Court by Ext. P21 judgment dated 13.10.1993 had directed the Government to dispose of the petition after giving the parties an opportunity to participate in the proceedings. This was understood as a direction to decide the matter on merits. Ext. P22 is the consequential order passed, dated 28.10.1995. Though the application was against the order of remand, the Government held that Erayili proper No. 23 of Ulloor Village was under the possession of the 8th respondent and her children as on the date of taking over it and it was therefore to be assumed to have been in their possession as on 6.8.1981, on which date Act 17/81 had come into force. They were held as the rightful claimants under Section 5 of the Act. While deciding the issue, the Government had also held as following, by way of paragraph 12:
"12. The different claimants involved in this case were governed by the Travancore Nair Act, II of 1100 M.E. This Act was repealed by the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) which came into force on 1.12.1976. Accordingly the marumakkathayam system in Nair family ceased to exist with effect from 1.12.1976. This had its effect in all the statutes existing as on that date. According to the present set up in Nair Tharavadu the right over the property devolved from father-mother to their children and not to nephew/niece. Hence as on the date of effect of the Kerala Service Inam Lands (Vesting & Enfranchisement) Act, 1981, ie., 6.8.1981 the Joint Hindu Family system was not in force. Therefore, the succession under the Viruthi Rules, 1945 will no more be under the Marumakkathayam system".
Thus, the impact of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) which came into force on 1.12.1976 also came into reckoning. The petitioner attacks the order as above, as one passed without application of mind and the relevant question of law, which were to be appropriately adjudicated.
8. It is also submitted that the findings on the legal question that were to be examined was in fact totally missed or misunderstood and this warrants interference of this Court.
9. Mr. Mayankutty Mather and Mr. V.V.N. Menon, counsel appearing for respondents 8 and 9 opposes the application and submits that the order does not require interference at all.
10. The questions have developed a complex character, in view of the impact of the two enactments, Act 30 of 1976 and Act 17 of 1981. As such a simple remand may further pose problems, and may result in unending litigation. The possession referred to in explanation to Section 2(c) of Act 17 of 1981 can normally be understood as legal possession and the actual possession may have little relevance for rendering a decision and an enquiry will always be inconclusive, due to passage of time and for paucity of reliable materials. Hence a remand is not recommendable, and a decision, one way or other, will be the better course that is to be followed. I may, therefore, briefly indicate the possible impact of the two enactments, (Act 30 of 1976 as also Act 17 of 1981) and the resulting positive vis-a-vis the claims of the parties.
11. Sri Mayankutty, learned counsel appearing for the 9th respondent had exhaustively dealt with the relevant aspects. His contention is that Act 30 of 1976 has changed the scenario completely and to the advantage of legal representatives of the Viruthiadhar, namely, his wife and son. He disputes that Krishnan Nair was a member of a Marumakkathayam tarwad, as according to him the Travancore Nair Act of 1100 ME and Act 30 of 1976 had already abolished the Marumakkathayam tarwards, though I am not as at present convinced that it may be an acceptable proposition. He canvasses for the position that in the resultant circumstances, the wife becomes the absolute claimant, though there was a basic disability for a woman to hold Viruthi lands under the Rules, The rights urged by 8th and 9th respondents vis-a-vis the claim " of the petitioner can be examined in the aforesaid back ground.
12. The Joint Hindu Family as per the definition in Act 30 of 1976 means "any Hindu family with community of property and includes a tarwad or thavazhi governed by the Travancore Nayar Act. Adjudication at earlier stages, as shown in Ext. P7 has lent light to those areas with reference to the present Tarwad and Thavazhy. A member of the Tarwad, Vasudevan Pillai had attempted to press his claims but it had been found on the basis of partition deeds that Krishna Pillai was the head of the one of the Thavazhy of Arakkal family and he had two nephews, elder of them being Ramakrishna Pillai and the other Sreedharan Nair. This was, as is found, bearing in mind the meaning of the terms tarwad and thavazhy. Tarwad denotes the family as a whole, but tavazhy is indicative of the branch claiming through the mother. If this position is borne in mind, the rest of the disputes could be tackled with precision and not drifting estray.
13. Though the preamble of Act 30 of 1976 showed the intention of the legislation as to abolish the joint family system among Hindus, the Act however has confined itself towards laying down that (1) on and after the commencement of the 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 was to be recognised; and (2) all members of an undivided Hindu family holding any coparcenary property on the day of the Act will be deemed to hold it as tenants-in-common as if a partition had taken place. Thus, the right to property by birth hitherto available was no more to be enjoyed by a member of the family bom thereafter, and the joint family property stood as if partitioned as on the relevant date. But it has to be sated that the joint family in all other respects remained unaffected; but of course the right to succession was thereafter to be governed by Hindu Succession Act. At the most, it could be held that as envisaged the 'system' was abolished, but that did not thereby meant that the joint family as well stood abolished. Notwithstanding this vast change, the right to hold a Erayili property, which was transferable from the senior most male member to the next senior most member (comprising of 91 cents in this case) was unaffected and remained as such even after the impact of Act 30 of 1976 for the reason that it was not a tarwad property, and never intended to be affected by the new Act. Mr. Krishna Pillai, holding it on the basis of Ext. P1 order, had the right to exclusively hold the property as it was not liable to be partitioned. This position had continued even thereafter and on the date of his death, namely on 2.1.1981, it had to go in favour of the person who was entitled to hold it, as provided by Rule 10 of the Viruthi Rules. Rule 10 provided that on the death of a registered holder, it was to be transferred to his heir, who was specified as next senior male member in the family. The family and relationship could not have been considered, as disturbed by the Abolition Act, and the Act had authority to deal with properties of the joint family alone. Therefore, the contention of Sri. Mayankutty on the basis of Travancore Nair Act also has to fail for the same reason.
14. From the circumstances, it would be evident that though the viruthy property was to be transferred with the sanction of the Assistant Peishkar the circumstance shows that it was only a formality. The counsel in this juncture submits that because of the impact of Act 30/76 the expression 'male member in the family' denoted unambiguously the 9th respondent, the son of the deceased person. But, again we have to reconcile the above said viruthy rule with Act 30 of 1976. This is because the rules does not envisage the 9th respondent as the next senior male member of the family and it is specifically laid down that only in the event of the registered holder dying heirless the holding may be transferred to a person and if the holder was a marumakkathayi having sons the holdings were to be transferred to his sons. Thus, the rules drew a distinction between the heirs of marumakkathayi and another and the progeny he begot. Therefore, it cannot be understood that the expression 'senior male member in the family' was intended to denote the son, because such an interpretation even after Act 30 of 1976 would have resulted in violating the underlying objective of the rule and the nature of the right conferred. Therefore, as I find it, male member in the family, referred to in Rule 10, was the petitioner Sri, Sreedharan Nair and his application filed before the competent officer ought to have been taken notice of and a transfer made in his favour, as requested for. If this is the situation that emanates from an interpretation of the rule, a further adjudication about the rights that were to be derived from the impact of Act 17 of 1981 had to be subservient to such finding.
15. Counsel had referred to a decision of this Court reported in 1987 (2) KLT 1, K.M. Mathew v. Hamsa Haji. The Supreme Court while considering the Land Reforms Act, 1964 had held that the intention of the legislature was to grant protection only to persons whose possession had a lawful origin. It was further held that it was not within the contemplation of the legislature to confer the benefit of protection on persons who had wilfully trespassed upon the lands belonging to others and whose occupation was unlawful in its origin. Though observation came in a different context, the principle is unexceptionable. I find that the intention as seen from Act 17/1981 is almost similar. The Act came into force on 6.8.1981 and the possession referred to in Section 2(3) would have been only lawful possession.
16. This is for the reason that the Act could not have been totally oblivious to the existing Rules which governed viruthi service, and especially Rule 3(1) thereof which was as following:
"3(1) A viruthicar has no rights over his Viruthi holdings except its enjoyment during the regular performance of the service imposed on him, and he shall not alienate by sale, gift, mortgage, or otherwise or encumber the property in any manner without the sanction of Government. All such alienations shall be null and void."
Therefore, I find that Ext. P9 decision of the Settlement Officer ultimately has turned out to be one which is sustainable and to be upheld, of course for totally different reasons. Therefore, I need not dwell on the issue of bias that had been alleged as against the said officer.
17. I set aside Exts. P10 and P22. Appropriate steps are to be taken by the Settlement Officer to assign the lands in favour of the petitioner taking note of the observations, findings and directions as aforementioned.
The Original Petition is allowed. There shall be no order as to costs.