Judgement RAJAGOPALA AYYANGAR, J. :- This is a reference under S. 113 Civil P.C. by the learned Subordinate Judge of Mangalore. 2. Three suits O.S. Nos. 23 of 1951, 177 and 182 of 1952 were filed in the Court of the Subordinate Judge of Mangalore for partition of the properties belonging to three Aliyasanthana families under the provisions of S. 36, Madras Aliyasanthana Act, 1949. The immovable properties which were the subject-matter of the suits are situated in th3 district of South Kanara. Most of the defendants in the several suits reside in the State of Madras except that some of the defendants in O.S. No. 182 of 1952 are said to have settled down in Coorg long before the Act came into force. A detailed written statement was filed, in O.S. No. 182 of 1952 by defendant 177 who was the Manager of the family in dispute which was treated by the Subordinate Judge as the main statement in the cases, and in this the plea was raised that the Madras Aliyasanthana Act, 1949 was beyond the competence of the Provincial Legislature under the Government of India Act, 1935. It was also urged that the enactment was subject to the vice of extra-territoriality. Article 14 of the Constitution was also relied upon impugning the validity of the provision regarding the shares assigned by the enactment to the several members in a partition. As the Subordinate Judge was in agreement with the points set out as regards the validity of the enactment, he has submitted a statement of the case raising the following points for the opinion of this Court : (1) Whether Chapter 6, Madras Aliyasanthana Act 9 of 1949, which was passed by the Madras Legislative Assembly and which received the assent of His Excellency the Governor General on 13-4-1949 is repugnant to Cl. (3) of S. 100, Government of India Act, 1935 and ultra vires ? (2) Are the subjects of joint family and partition in respect of which parties in judicial proceedings were governed by their customary personal law before the enactment of the Madras Aliyasanthana Act 9 of 1949 included in any of the lists 2 and 3 of Schedule 7 Government of India Act, 1935 ? (2) Are the subjects of joint family and partition in respect of which parties in judicial proceedings were governed by their customary personal law before the enactment of the Madras Aliyasanthana Act 9 of 1949 included in any of the lists 2 and 3 of Schedule 7 Government of India Act, 1935 ? (3) Is the scheme of fixation of shares at a partition in an Aliasanthana family as provided by S. 35, Aliyasanthana Act 9 of 1949 arbitrary in its application, discriminatory and unreasonable in its operation and confiscatory in effect and therefore offends the fundamental rights secured by the Constitution of India ? 3. The Madras Aliyasanthana Act, 1949 enacted by the Legislature of this Province deals with various topics pertaining to the followers of the Aliyasanthana system of inheritance but as the suits out of which this reference arises are for partition, we are concerned only with the validity of the provisions relating to this topic contained in Chapter 6 of the Act. 4. The challenge to the validity of this Chapter was, before us, rested on three grounds : 1. The Provincial Legislature constituted under the Government of India Act 1935 was not legally competent to enact the measure, for the reason that "the pith and substance" of the legislation or the subject-matter of the enactment was not comprehended within any of the items in Lists 2 or 3 of the Legislative Lists in Sch. 7. 2. The provisions were subject to the vice of extra territoriality and that the portions thus vitiated and those which related to the territory with in the jurisdiction of the Legislature were so inextricably interwoven that the entire chapter should be pronounced invalid. 3. The provisions of this Chapter contravene the fundamental rights guaranteed by Arts. 14, 19 and 31 of the Constitution of India and therefore the chapter should be struck down under Art. 13 as unconstitutional, after the coming into force of the Constitution of India. We shall consider these three objections in that order. 5. Legislative competence to enact Chapter 6 : The argument under this head is founded upon a law relating to partition in a Mitakshara family, in a Marumkkathayam tarwad or an Aliyasanthana Kutumba, being in pith and substance a law relating to status and civil rights. The argument as formulated by Mr. 5. Legislative competence to enact Chapter 6 : The argument under this head is founded upon a law relating to partition in a Mitakshara family, in a Marumkkathayam tarwad or an Aliyasanthana Kutumba, being in pith and substance a law relating to status and civil rights. The argument as formulated by Mr. Nambiar was this : The right on foot of which persons who are members of such families hold their interests in the family properties is wholly dependent upon the status of the family and it is that status which is crucial and determinative of the nature of those rights. If the status is one of union, the rights, which the members of that family are entitled to enjoy fall under one category. If on the other hand the status of the family or the status of the members quoad the others undergoes any alteration by way of disruption of that joint status, this is reflected in the manner in which the members of the erstwhile undivided family hold and enjoy their interests in the property. In the first case where the status of the family and of its members is one of union or non-division, the eldest member of the family and in any abnormal case some other selected by the consensus of the group is in possession and management of the entire property and regulates and looks after the enjoyment by the component members of the income received by him on behalf of the family. Such a head of the family a kartha or a manager, by whatever description known, is invested with certain powers and is under certain obligations. He alone could effect alienations, though these might be only for the benefit of the family or for its necessity. The component members are each entitled to be maintained by the family and its head, in such, status and condition as the income of the family will permit. When a disruption takes place in the family, a radical change occurs in the manner in which the members enjoy their properties and manage their affairs. The quasi-corporation owing the property, with incidents flowing from this condition is broken up, and in its place emerge the several individual components each having rights over their separated shares; the common managership disappearing. The latter is the condition which is brought about by a disruption of that joint status. The quasi-corporation owing the property, with incidents flowing from this condition is broken up, and in its place emerge the several individual components each having rights over their separated shares; the common managership disappearing. The latter is the condition which is brought about by a disruption of that joint status. The critical thing therefore in these matters is this "status" of this quasi-corporation. This entity might be designated differently in the several sister-systems, a joint family by the Mitakshara, a tarwad in the Marumakkathayam system or a kutumba in Aliyasanthana Law. In all these systems, it is the change in the status of the group that causes an alteration in the rights and obligations of the members and which changes the relationship in which, quoad the property of the group, the several members stand to each other. In this connection we were referred to the passage at pages 326 to 329 in the dissenting judgment of Scot, L.J. In re Lucks Settlement Trusts 1940-3 All E.R. 307 (A) as authority for the position that "status" was the central concept-in-law the source and origin from which legal rights flowed, and from this it was argued that unless a Legislature was specially clothed with authority to legislate on the particular status, it could have no competence to enact laws dealing with the incidents which arose out of that status. 6. We shall deal with the argument of Mr. Nambiar on the merits, but having carefully read the passage referred to, we are utterly unable to see any relevance in it to the present context. The learned Lord Justice is there dealing with "status" in Private International Law and it is not as if the status of a joint Hindu family forms one of these categories. Even otherwise we fail to see the bearing of that discussion on the questions arising in the present reference. 7. The argument further ran that the entries in the Legislative lists have followed this principle and have been patterned on this basis. While there was specific provision for legislation on the topic of "status and civil rights" in the lists under the Government of India Act, 1919, this head of legislative power was omitted when the items were enumerated in the lists in Sch. While there was specific provision for legislation on the topic of "status and civil rights" in the lists under the Government of India Act, 1919, this head of legislative power was omitted when the items were enumerated in the lists in Sch. 7 Government of India Act, 1935, with the result that the Legislatures constituted under the latter statute, one of which enacted the impugned Act, were not endowed with the requisite capacity to legislatively bring about disruption of joint status in a family or to provide for the consequences arising from such disruption. The detailed argument on this branch was broadly on these lines. Under the Government of India Act, 1915, as amended by the Act of 1919 the position was this. Section 45(A)(1) Government of India Act, 1915, provided for a classification of subjects in relation to the functions of the Government as Central and Provincial, i.e. for the purpose of distinguishing the functions of Local Governments and Local Legislatures from the functions of the Governor-General-in-Council and the Indian Legislature. The Rules made under the powers thus conferred were known as the Devolution Rules. Rule 3 of these rules made the classification and set it out in Sch. I thereof. Sch. I Part I enumerated the Central subjects and Entry 16 of this list ran in these terms : "Civil law including laws regarding status property, civil rights and liabilities and civil Procedure." Even though the subject of status fell under the head "Central Subjects". S. 80(a)(3) enabled the Provincial Legislature to regulate Central subjects with the previous sanction of the Governor-General, so that under the Government of India Act, 1915, as amended by the Act of 1919, it was competent to the Provincial Legislature to enact laws relating to "status and Civil rights". It was under this head of legislative power that pieces of legislation analogous to the impugned Aliyasanthana Act, viz., the Nambudri Act (Act 21 of 1933), Marumkkattayam Act (Act 22 of 1933) and the Mapilla Marumakkattayam Act (17 of 1939) were all passed. When the Government of India Act of 1915 was repealed and replaced by the Government of India Act, 1935, the powers of the Provincial Legislatures were expressly confined to the subjects enumerated in Lists 2 and 3 to Sch. 7 by reason of the provisions contained in S. 100 of the Act. When the Government of India Act of 1915 was repealed and replaced by the Government of India Act, 1935, the powers of the Provincial Legislatures were expressly confined to the subjects enumerated in Lists 2 and 3 to Sch. 7 by reason of the provisions contained in S. 100 of the Act. The scheme of the Government of India Act 1935, was federal in its nature and the competence of the Legislatures, both central as well as provincial, was limited to the subjects enumerated in the respective lists with S. 104 empowering the Governor-General by public Notification to enable either the Federal or the Provincial Legislature to enact a law with reference to any matter not enumerated in any of the lists in Sch. 7. Though an attempt was made to make the three Lists Federal, Provincial and the Concurrent as exhaustive as possible so as to leave little or nothing to the residuary field, yet if on a reasonable construction of the entries in the lists any particular topic of legislation were left uncovered, neither the Federal nor the Provincial Legislature would have power to enact legislation on that topic, but resort should be had to the power of the Governor-General under S. 104. Partition is a resultant of a change in status from a corporate or a quasi-corporate to individual ownership. Unless the Legislature is competent to legislate on "status", it would not have power to deal with the incidents of a family corporation and provide for its break up. "Status" is not one of the subjects enumerated in any of the lists in Sch. 7 8. The only entry in the Provincial Lists which might be argued as having any bearing upon the present topic was, it was urged, Item 21, the relevant portion of which is in these terms : "Land, that is to say, rights in or over land, transfer, alienation and devolution of agriculture land .......... But it was contended that the adjustment of rights involved in a partition in a family, could not properly be termed "a transfer or an alienation," nor is there any devolution of title to land involved in a partition. But it was contended that the adjustment of rights involved in a partition in a family, could not properly be termed "a transfer or an alienation," nor is there any devolution of title to land involved in a partition. Central entries, in List 3 were also referred to as supporting the construction of the learned counsel that the law relating to partition is a law with respect to "status." We were referred to Item 6 of List 3 dealing with "Marriage and divorce; infants and minors; adoption, and Item 12 "Bankruptcy and insolvency", as indicating that several species of "status" were recognised by the framers and dealt with under separate headings; the argument being that the legislative power included under the term status as used in Item No. 16 of the Central Lists under the Devolution Rules had now been split up into several component parts and assigned to the respective Legislatures, but that as partition was not separately enumerated, and there being no general head entitled "status", the subject of partition which is the resultant from an alteration in status was not within the legislative lists. It was further contended that Item No. 7 in List III dealing with "wills, intestacy and succession" was not apt to include partition since there is no succession involved in a partition. 9. In support of the argument that the expression "status" has been used by the Courts to designate the condition of the family while in its state of union as well as to indicate the change effected by disruption, Mr. Nambiar referred us to several decisions in which such expressions were used. Dealing with the question as to what constitutes separation in the Mitakshara joint family and the effect of a unilateral declaration by one of the members communicated to others to get divided, Mr. Ameer Ali in Girja Bai v. Sadashiv Dhundiraj, 43 Cal 1031 at p. 1045 : (AIR 1916 PC 104 at p. 107) (B) said : "But as the question of the effect on the joint status of such an intention has been raised in this case in a direct and concrete form, their Lordships think it fit to discuss the principle somewhat more fully .... In the Hindu Law, Partition does not mean simply division of property into specific shares .... In the Hindu Law, Partition does not mean simply division of property into specific shares .... In the Mitakshara, Vijnaneswara defines the word vibhaga which is usually rendered into English by the word partition as the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate." .... In fact later writers leave no room for doubt that separation which means the severance of the status of jointness is a matter of individual volition." In a later passage at 1047 (of 43 Cal) (at p. 108 of AIR) he said : "They propose to refer shortly to the cases which establish clearly that separation from the joint family involving the severance of the joint status so far as the separating member is concerned with all the legal consequences resulting therefrom, is quite distinct from the de facto division into specific shares of the property held until then jointly. We were also referred to similar passages occurring in the judgment of Venkataramana Rao, J. in Adam Haji Peer Muhammad Issac Salt v. P. Kunkan AIR 1938 Mad 242 at p. 244 : 46 Mad LW 772 at p. 774 (C) where the learned Judge drawing an analogy between a Mitakshara family and Malabar Tarwad said : "A Malabar tarwad or tavazhi is a corporate unit just like the Mitakshara joint Hindu family. The members are joint in food, worship and estate but the property held by them is impartible except with the consent of all the members. No individual member has any definite share therein nor can he enforce a right to a share by partition. The mode in which the proprietary right is enjoyed is by participating in the enjoyment of the family property, and provision is made sometimes for maintenance and other expenses which in law are strictly in exercise of a proprietary right. The right of management is vested in the senior male member called karnavan who has got certain rights of alienation analogous to the powers possessed by a manager of a joint Hindu family. His right to management is unrestricted except in cases where he is guilty of waste or makes some alienations not for the benefit of the family when the junior members of the family have got a right to interdict by taking appropriate proceedings in a Court of law. His right to management is unrestricted except in cases where he is guilty of waste or makes some alienations not for the benefit of the family when the junior members of the family have got a right to interdict by taking appropriate proceedings in a Court of law. The right possessed by an individual member enures only for his life. Neither the principle of the right of representation nor the principle of survivorship as known to Mitakshara law exists but the birth or the death of a member may affect the other members in the extent of beneficial enjoyment of the tarwad property or the death of a member leaving property which lapses to the tarwad may enable the other members to share in the enjoyment thereof also with the rest of the tarwad property", as also to a further passage in the same judgment where the learned Judge quotes the observations of the Judicial Committee in Charlotte Abraham v. Francis Abraham 9 Moo Ind App 195 at p 237 (PC) (D). "Parcenership, understood in the sense in which their Lordships here use the term, as expressing the rights and obligations growing out of the status of an undivided family, is the creature of, and must be governed by, the Hindu Law..........Parcenership may be put an end to by a severance effected by partition; it must, as their Lordships think equally be put an end to by severance which the Hindu law recognises and creates." And after referring to the disruption which takes place by the conversion by one of the members of the family, the learned Judge says : "Their rights and obligations incident to their status as members of the tavazhi must therefore cease". 10. Reliance was placed by Mr. Nambiar on these and other like passages in other decisions as supporting his contention that partition was a matter of "status" and therefore that a Legislature would not have power to deal with the subject unless "Partition" was specifically enumerated or there was a general entry like "status", as under the devolution rules, conferring legislative power. 11. Finally reliance was placed on the observations to be found in the dissenting judgment of Sulaiman, J. in Subrahmanyan Chettiar v. Mathuswami Goundan, 1940 FCR 188 at p. 208 : (AIR 1941 FC 47 at p. 54) (E), where dealing with the lists in Sen. 11. Finally reliance was placed on the observations to be found in the dissenting judgment of Sulaiman, J. in Subrahmanyan Chettiar v. Mathuswami Goundan, 1940 FCR 188 at p. 208 : (AIR 1941 FC 47 at p. 54) (E), where dealing with the lists in Sen. 7, Government of India Act, 1935, his Lordship said : "No doubt every effort appears to have been made to make the three lists as comprehensive and extensive as possible; and it may well be that barring personal or customary laws, it would only be extremely rare cases which would not come in any one of these three lists so as to fall within the residual powers of legislation dealt with by S. 104 of the Act." Considerable emphasis was laid on the words we have underlined (here in ) as supporting the position that the subject of partition which is a breach of personal or customary law was not within, the lists as fairly construed. 12. Before dealing with this argument and the entries in the Provincial and Concurrent Lists which, are relied upon by Mr. Venkatasubramania Ayyar who appeared for the plaintiffs in the suit and the Advocate General who appeared on behalf] of the State, both supporting the impugned legislation, it is necessary to refer to an argument of Mr. Venkatasubramania Ayyar that the enactment would be valid as within the Provincial Legislative competence notwithstanding that there was no entry in the Provincial or Concurrent Lists dealing with the subject-matter of the impugned legislation. The contention was that S. 99, Government of India Act, 1935, determined not merely the territorial ambit of the laws enacted by the Legislatures Federal and Provincial, but was designed to confer legislative powers of the widest amplitude embracing all and every topic of legislation on the Indian law-making bodies and that the mere fact that a particular subject was not enumerated within the lists in Sch 7 referred to in S. 100 did not by itself deprive the Legislature of the powers conferred by S. 99. In support of this line of argument reliance was also placed upon the fact that though in respect of the subjects enumerated in the Lists, the Federal Legislature is forbidden to legislate in respect of matters contained, in List 21 and the Provincial Legislature likewise is debarred from legislating on matters in the Federal Legislative List, with a positive provision enabling the respective Legislatures to enact laws on the topics enumerated in the permitted Lists, there is no corresponding prohibition against either Legislature enacting laws with respect to matters not in the Lists. 13. This argument was further sought to be sustained on the strength of a passage in the judgment of the Privy Council in Wallace Brothers and W Ltd v. Commissioner of Income-tax, Bombay, 1948 FLJ 32 at p 35 : (AIR 1948 PC 118 at p 120) (F) "There is no rule of law that the territorial limits of a Subordinate Legislature define the possible scope of its legislative enactments or mark the field open to its vision. The ambit of the powers possessed by a subordinate Legislature depends upon the proper construction of the Statute conferring those powers. No doubt the enabling statute has to be read against the background that only a defined territory has been committed to the charge of the Legislature. Concern by a subordinate Legislature with affairs or persons outside its own territory may therefore suggest a query whether the Legislature is in truth minding its own business. It does not compel the conclusion that it is not. The enabling statute has to be fairly construed." The submission was that the only creterion for legislative competency is whether the Legislature is minding its own business. If it is, the resulting legislation must, it was contended, be held valid. 14. The only questions which were raised for the consideration of the Board in the Wallace Brothers case (F) were whether the provisions of the Income-tax Act had extraterritorial operation, and whether if so, the Central Legislature had the power to enact them. It was held that there was a sufficient nexus or territorial connection between the person sought to be charged and India to sustain the validity of the tax on the foreign income of such person. We find ourselves unable to discern any basis for the very novel argument of counsel founded on this decision and the passage extracted above. 15. It was held that there was a sufficient nexus or territorial connection between the person sought to be charged and India to sustain the validity of the tax on the foreign income of such person. We find ourselves unable to discern any basis for the very novel argument of counsel founded on this decision and the passage extracted above. 15. If we understand learned counsel aright, the argument was that S. 59 referred not merely to the territorial extent over which the laws enacted by the Legislatures set up by the Government of India Act, 1935, could operate, but that it also conferred upon them unrestricted powers in respect of all and every subject of legislation and that the width of this content was not cut up by the enumeration of the items in three Lists. It is impossible to uphold this construction of S. 99 regarding the relative scope and function of this provision and of S. 100. The argument assumes two things for both of which there is no foundation, viz., (1) that S. 99 is a power conferring provision - conferring an unrestricted power to deal with all subjects of legislation, and not merely one delineating or defining the territorial operation of laws, and (2) that S. 99 is not subject to the provisions in the rest of the Act particularly S. 100 notwithstanding the opening words of S. 99. The argument is not merely not borne out by the language of the section but would contradict the very basis of the scheme of federation embodied in the Government of India Act, 1935. The purpose of this Parliamentary Statute was to set up Legislatures, Central and Provincial, with enumerated powers - the Governor-General "in his discretion" being vested by S. 104 with authority to deal with the residuary field in the event of there being any such residue after the very full enumeration attempted in the entries in the three Lists. The argument of learned counsel would render otiose and absolutely unmeaning the provisions contained in S. 104 of the Act. 16. The second line of approach attempted by learned counsel in this part of the case was based upon the interpretation, which counsel invited us to place on Ss. 104 and 109 of the Act. Section 109 enacts : "109(1) .............. 16. The second line of approach attempted by learned counsel in this part of the case was based upon the interpretation, which counsel invited us to place on Ss. 104 and 109 of the Act. Section 109 enacts : "109(1) .............. (2) No act of the Federal Legislature or a Provincial Legislature, and no provision in any such Act, shall be invalid by reason only that some previous sanction or recommendation was not given, if assent to that Act was given. (a) where the previous sanction or recommendation required was that of the Governor, either by the Governor, by the Governor-General, or by His Majesty." The contention was that when S. 104 refers to a public notification empowering the Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists of Sch. 7 it is merely a prescription of a requirement of previous sanction or recommendation of the Governor-General within S. 109 and therefore as the Madras Aliyasanthana Act of 1949 had received the assent of the Governor-General, the "want of previous sanction" by way of "public notification" under S. 104 was cured by his subsequent assent. In our opinion, neither the language of S. 104 or S. 109, nor the scheme of the Government of India Act, 1935, permits this construction of these provisions. In fact, learned counsel did not conceal from us, that the contention he was putting forward was directly in the teeth of the decision of the Federal Court in the Estates Duty Reference as well as of the Supreme Court in Rajahmundry Electric Supply Corporation Ltd. v. State of Andhra, 1954-1 Mad LJ 493 : ( AIR 1954 SC 251 ) (G). We are clearly of the opinion that the Central and Provincial Legislatures constituted under the Govt. of India Act, 1935, though sovereign bodies possessing wide and plenary powers when legislating on subjects assigned to them by entries in the appropriate lists, were, however Legislatures with strictly enumerated powers and that when any of their enactments is challenged on the ground of want of legislative competence, their competency could be established only on proof that the same was covered by some entry in the Legislative Lists committed to their Jurisdiction. We have therefore necessarily to examine whether a law providing for partition in an Aliyasanthana family was within any of the entries of the Provincial or Concurrent Lists. 17. The entries on which reliance was placed by the learned counsel for the respondents were Item 21 of the Provincial Legislative List and Items 4, 7, 8 and 15 of the Concurrent Legislative List, which we shall proceed to examine. The relevant portion of Item 21 of the Provincial List refers to "land, transfer, alienation and devolution of agricultural land" while the corresponding entries dealing with the non-agricultural property in List 3 (Concurrent Legislative List) are Items 7 and 8 "wills, intestacy and succession in respect of property other than agricultural land and transfer of property other than agricultural land". The combined effect of these two sets of entries is that the Provincial Legislature, which, has power to enact laws in respect of all these matters, is competent to pass enactments over the entire field of wills, intestacy, succession, transfer and devolution of all properties - agricultural and non-agricultural - which between them exhaust every species of property. The whole question, therefore, is whether a, law relating to partition in a Hindu family, be it a Mitakshara family, a Marumakkathayam tarwad or on Aliyasanthana Kutumba could be brought within the caption of "transfer" or "wills, intestacy, succession or devolution". In this connection it has to be remembered that the Court is now concerned with the interpretation of Lists conferring power upon a sovereign body and not with the interpretation of words used in a Municipal enactment. 18. In the first place, there is a presumption in favour of the legality of a statute and the Court will not declare an Act unconstitutional or ultra vires unless the repugnancy to the Constitution is clear and beyond doubt. As stated in Clements Canadian Constitution (p. 347). "The Privy Council has indeed laid down that Courts of law must treat the provisions of the British North American Act by the same methods of construction and exposition which they applied to the other statutes. As stated in Clements Canadian Constitution (p. 347). "The Privy Council has indeed laid down that Courts of law must treat the provisions of the British North American Act by the same methods of construction and exposition which they applied to the other statutes. But there are statutes and statutes and the strict construction deemed proper in the case for example of a penal or taxing statute or one passed to regulate affairs of a English Parish would often be subversive of Parliaments real intent if applied to an Act passed to ensure the peace, order and good government of a British Colony". Lord Wright expressed the same idea in slightly different words while delivering the judgment of the Privy Council in James v. Commonwealth of Australia (No. 2) 1936 AC 578 at p. 614 (H), where the learned Lord had to deal with the Constitution of Australia. He said : "A Constitution must not be construed in any narrow or pedantic sense. The words used are necessarily general and therefore full import and true meaning can often only be appreciated when construed as the years go on in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes but the changing circumstances illustrate and illumine the full import of that meaning". Similarly in the British Coal Corporation v. The King, 1935 AC 500 at p. 518 : (AIR 1935 PC 153 at p. 162) (I) it was stated : "In interpreting the constituent and organic statute such as the Act (the British North American Act that construction most beneficial to the widest possible amplitude of the powers of the Legislature must be adopted". Finally it has to be borne in mind that where powers are conferred by entries as in the Lists "one sentence, one phrase or even one word might deal with a whole Code or a system of law of politics" (Clements Canadian Constitution, page 348). 19. The approach of our own Courts has been on similar lines. Finally it has to be borne in mind that where powers are conferred by entries as in the Lists "one sentence, one phrase or even one word might deal with a whole Code or a system of law of politics" (Clements Canadian Constitution, page 348). 19. The approach of our own Courts has been on similar lines. For instance, Chief Justice Gwyer said : "I think that none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary and subsidiary matters which can be fairly and reasonably be said to be comprehended in it": United Provinces v. Mt. Atiqa Begum, 1940 FCR 110 at p. 134 : (AIR 1941 FC 16 at p. 25) (J). 20. In addition we might note the fact that the Joint Select Committee of Parliament, which finalised the Lists, which were subsequently enacted as the entries in Sch. 7, intended the three Lists to completely exhaust the whole field of law such as they were then able to visualise, though they foresaw a remote possibility of some omissions and with a view to provide for such an exceptional case devised the machinery under S. 104. Dealing with this aspect of the framing of the Lists, they said in para 54 : "These Lists are so widely drawn that they might seem at first sight to cover the whole field of possible legislative activity, and to leave no residue of Legislative power unallocated. It would, however, be beyond the skill of any draftsman to guarantee that no potential subject of legislation has been overlooked nor can it be assumed that new subjects of legislation unknown and unsuspected at the present time, may not hereafter arise; and, therefore, however carefully the lists are drawn, a residue of subjects must remain, however small it may be which it is necessary to allocate either to the Central or to the provincial Legislatures. The plan adopted in the White Paper is that the allocation of this residue should be left to the discretion of the Governor-General and settled by him ad hoc on each occasion when the need for the legislation arises". The plan adopted in the White Paper is that the allocation of this residue should be left to the discretion of the Governor-General and settled by him ad hoc on each occasion when the need for the legislation arises". Again at para 232, they said dealing with the Lists as revised under their direction subsequent to the White Paper draft : "We are convinced that the laborious and careful enumeration of both sets of subjects has secured, that in fact no material and unforeseen accretion of power, either to the Centre or Provinces would result from the elimination of one list or the other; and we are satisfied that the process has reduced the residue to proportions so negligible that the apprehensions which have been felt on the one side or the other are without foundation". The conclusion, therefore, that a subject of legislation which is of normal and ordinary occurrence has been omitted to be included in the lists is not to be lightly reached. To hold that a topic, falls within S. 104 should be the last resort of a Court of construction. 21. It is in the contest of these considerations that the meaning to be attached to the words in the entries has to be gathered. Mr. Venkatasubramania Ayyar, learned counsel for the respondents, urged that the subject of "partition" might be comprehended principally within "succession" or "transfer" He particularly relied upon the fact that in the vocabulary of the framers of Indian enactments from the earliest times and long before the Government of India Act, 1935, the topic of partition and the rights inter se between the members of a joint Hindu family have always been considered as falling within the head of "succession". The language employed by S. 27 the Bengal Regulation of 1780 which contained a direction to the Courts set up by the East India Company ran : "In all suits relating to inheritance, marriage and caste and other religious usages and institutions the laws of the Koran with respect to Muhammadans and those of the Sastra with respect to Gentoos shall be invariably adhered to". This section was subsequently re-enacted in a revised Bengal Code with the addition of the word "succession after - inheritance. The text of this Regulation was reproduced in the Pitts India Act, 1781 (21 Geo. III. This section was subsequently re-enacted in a revised Bengal Code with the addition of the word "succession after - inheritance. The text of this Regulation was reproduced in the Pitts India Act, 1781 (21 Geo. III. C. 17 S. 17) where under the Supreme Court was directed to apply the personal law of Hindus and Muslims "in matters of inheritance and succession to lands, rents and goods and in matters of contract and dealing between party and party", the expression inheritance and succession being intended as comprehending the entirety of the personal or family law of the parties. Subsequent parliamentary Statutes such as 37 Geo. III Ch. 142, S. 13 re-enacted the same provisions, and so did several provincial Acts. Of these latter it is sufficient to refer to the Madras Civil Courts Act, 1873, S. 18 of which provides : "Where in any suit or proceeding it is necessary for any Court to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution etc., etc.," the Court is enjoined in such cases to apply Muhammadan Law where the parties are Muhammadans and the Hindu Law in cases where the parties are the Hindus and, subject to any change by the Legislature and in cases where no specific rule exists, according to justice, equity and good conscience. A provision in these terms continued in the Government of India Act, 1915, S. 108 and this was repealed by the Government of India Act, 1935. 22. In a case reported in Ponnappa Pillai v. Pappuvayyangar, 4 Mad 1 (FB) (K) a Full Bench of this Court had to consider the liability under the Mitakshara Law of a son to discharge a debt of his father net contracted for illegal or immoral purposes with a related question whether this was part of the law relating to inheritance and succession in regard to which the Court had to apply the Hindu Law. The majority of the Court held : "The question as to the extent of the sons liability is not one of contract but the duty is an incident of Inheritance". The majority of the Court held : "The question as to the extent of the sons liability is not one of contract but the duty is an incident of Inheritance". This idea was expressed by Kindersley, J. - one of the majority - in these terms : "This (contention of the son) appears to me to be part of the law of inheritance and not of contract" though in the case before the Court the father was alive and was a party to the suit for partition in which the right of the creditor was impugned. 23. This decision and the passage extracted above show that the expression "inheritance" or "succession" as used in the Regulations and the other Parliamentary and Indian Enactments is not to be understood as confined to cases of a "devolution" in the strict sense of a passing of interest in property from the dead to the living but as comprehending also the adjustment of the rights and obligations that subsist between the parties governed by Hindu Law. This aspect of the matter was referred to in the opinion of the Federal Court on the special reference in In re Hindu Womens Rights to Property Act, 1937, 1941 PCR 12 : (AIR 1941 PC 72) (L) Dealing with the exact connotation of the expression "devolution" and succession" which occur in entry No. 7 of List III and entry 21 of List II, their Lordships said at p. 33 (of 1941 FCR) at p. 78, of AIR) : "It is equally important to remember that neither in their ordinary grammatical significance nor by a long continued use in a technical sense have the words devolution and succession acquired a connotation that would preclude their application to describe the operation of the rule of survivorship as above explained.... Many enactments of Parliament and of the Indian Legislature have used the words inheritance and succession in juxta-position, justifying the inference that succession is either another category from or a wider category than inheritance...... If in these enactments succession should be held not to include the principle of survivorship, it would be difficult to say what else that word is meant to refer to and in any other view the continued administration of that part of the Hindu Law by the British Indian Courts could not have been provided for, because there are no other appropriate words in those provisions. Such being the position as to the meaning of the words, it is permissible to add that it is difficult to conceive of any reason why in framing Lists II and III Parliament should have thought fit to take away the law of survivorship from the jurisdiction of the Indian Legislatures, and there is no justification for attributing oversight either, when, as above explained, the language employed may properly be held to comprehend the law of survivorship as well." 24. We might add that we do not also see any sufficient reason why in framing these Lists the Parliament should have thought fit to take away the law relating to partition in joint families from the jurisdiction of the Indian Legislatures. We, therefore, consider this argument of Mr. Venkatasubramania Ayyar regarding the wide import of the expressions "devolution" and "succession" and as to the words being apt to cover partition in a Hindu family, well founded. This conclusion, is, in our opinion, reinforced by the use of the expression "succession" after "will and intestacy". "Wills and intestacy" between themselves would exhaust the entire content of the law relating to the sequence of ownership occurring on a persons death. What then is intended to be conveyed by the entry "succession" ? In the context it could not be taken to cover merely "succession" on death or the accession of rights which flow from the death of the owner. In the Hindu Law texts Daya Vibhaga is a part of the law relating to Daya, which has been translated as "inheritance". It is therefore not unreasonable to hold that rights flowing from the corporate ownership of property, which is involved in the concept of joint family and coparcenary property has been connoted by the expression "inheritance" and "succession" which occur in the earlier Government of India Acts, which we have referred to and in the Lists in Sch. 7, Government of India Act, 1935. The expression "devolution" used in Item 21 of List II is really a compound of the entries "wills, intestacy and succession" in Entry 7 of List 3. 25. Learned counsel for the respondents also relied upon Item 8 of List 3 "transfer of property" as in a sense there is a transfer of property or rights in property consequent upon and involved in a partition. 25. Learned counsel for the respondents also relied upon Item 8 of List 3 "transfer of property" as in a sense there is a transfer of property or rights in property consequent upon and involved in a partition. For instance, it has been held by this Court in Rasa Goundan v. Arunachala Goundan, 44 Mad LJ 513 : (AIR 1923 Mad 577) (M), that a partition is a "transfer" of property within the meaning of S. 53, Transfer of Property Act. A partition signifies a surrender of a portion of a joint right in exchange for a similar right from the co-sharer; Vide Atra Bannassa, Bibi v. Safatulla Mia, 43 Cal 504 at p. 509 : (AIR 1916 Cal 645 at p 646) (N). We are not very much concerned whether these rulings are correct as regards the proper interpretation of S. 53, Transfer of Property Act - a point as regards which we express no opinion whatever - but as to Whether the expression "transfer" when it occurs in a Legislative List is not capable of being given a meaning to cover the transfer involved in a partition. A transfer involved in a partition would in our, judgment be a "transfer" within the scope of the entry No. 8. in List 3. We have no hesitation in saying that the subject of partition in a joint family including an Aliyasanthana Kuthumba would fall within the entry "transfer" in Item 21 of the Provincial and Item 8 of the Concurrent Lists even if it does not fall within the entries "succession" and "devolution" already discussed. We therefore hold that Chapter 6, Madras Aliyansanthana Act was within the legislative competence of the Provincial Legislature under the Government of India Act, 1935. 26. We are not inclined to attach much importance to the alteration in the language of the Lists in Sch. 7 as compared to Item 16 of the Central subject under the Devolution Rules. Our discussion of the topic clearly demonstrates that "status" was not thought of as the head of Legislative power to enact laws in relation to joint families and Mr. Nambiar is not right in his contention in that regard. 7 as compared to Item 16 of the Central subject under the Devolution Rules. Our discussion of the topic clearly demonstrates that "status" was not thought of as the head of Legislative power to enact laws in relation to joint families and Mr. Nambiar is not right in his contention in that regard. It is possible that the expression "Civil Rights" which occurred in Item 16 of the Central List under the Devolution Rules was omitted by the draftsmen of the Government of India Act, 1935 either because it was unnecessary having regard to the other entries which exhaustively defined that type of right or because it was thought that such a residuary general subject might conflict with their other allocation of powers and might result in overlapping. Anyway, as the language of the entries in the list are in our opinion sufficient to sustain the legislation, it is unnecessary to enquire whether other terminology might not have better expressed the intention of the framers. 27. The next head of argument relates to the attack on the ground that the enactment is intended to have an extra-territorial operation beyond the limits of the Province and that Chapter 6 is in valid on that account. Mr. Nambiar had to concede that even assuming the existence of this vice of extra-territoriality, it would not affect the validity of the law so far as it operates within the territory of the Province, and that the suit for partition in the present case did not embrace any property beyond the limits of the Province. 28. One of the questions mooted before the Judicial Committee in Jogendra Narayan v. Debendra Narayan, AIR 1942 PC 44 (O) was whether the Bijni Succession Act passed by the Provincial Legislature of Assam was invalid on the ground that it would nave effect outside Assam. Some of the properties pertaining to Bijni Raj were situated outside Assam. The question, whether by reason of the preamble and the operative portion of the Act applying to the entirety of the properties of the Raj, the whole enactment was invalid. Their Lordships held on a construction of the Act that the expression "estate" in the enactment was not intended to apply to land in other provinces. The question, whether by reason of the preamble and the operative portion of the Act applying to the entirety of the properties of the Raj, the whole enactment was invalid. Their Lordships held on a construction of the Act that the expression "estate" in the enactment was not intended to apply to land in other provinces. Applying the principle of this decision, the Aliyasanthana Act may be construed as applying to land and properties situate within the province of Madras and so construed it must be and is conceded that the Act is valid and operative to govern the title in respect of the properties included in the suits now before us. The fact that the individuals who are entitled to shares in the properties belonging to these families happen to reside outside the province is wholly irrelevant for considering the validity of the enactment. 29. Further, though certain of the defendants to the suit reside outside the State, they have filed written statements agreeing to the partition so that even if the residence of a party were a relevant factor for determining the validity of a legislation in relation to property whose locus is within the province, and in our opinion it is not, the non-resident defendants do not raise any such issue and the point does not arise for consideration in these suits, and therefore, need not be discussed any further. 30. The last point that was urged against the validity of Chap. 6 was, that it offended Arts. 14, 19 and 31 of the Constitution and therefore the entire chapter ought to be struck down under Art. 13. Though Mr. Nambiar started by referring to Art. 19 also as among the article which the impugned enactment violated, he recognised early in his argument that as the complaint in the present case was not that the challenged Act imposed any restraint on the holding of property which could be characterised as unreasonable, the case must rest on the argument regarding the violation of Arts. 14 and 31 alone and therefore he confined his submissions to these two articles. 31. To appreciate the contentions raised on this part of the case it would be necessary to set out the three sections which constitute Chap. 6 and contain the law relating to partition in an Aliyasanthana family as enacted by the impugned Act. 14 and 31 alone and therefore he confined his submissions to these two articles. 31. To appreciate the contentions raised on this part of the case it would be necessary to set out the three sections which constitute Chap. 6 and contain the law relating to partition in an Aliyasanthana family as enacted by the impugned Act. "35 (1) Any Kavaru represented by the majority of its major members may claim to take its share of all the properties of the kutumba over which the kutumba has power of disposal and separate from the kutumba : Provided that - (i) where a kavaru consists of only two persons, such a claim may be made by either of them; (ii) no kavaru shall make such a claim during the lifetime of any ancestress common to such kavaru and to any other kavaru or kavarus of the kutumba, who has not completed fifty years of age, unless - (a) she has signified her consent in writing, or (b) two-thirds of the major members of the kavaru join in making the claim for partition; (iii) the common ancestress may on her own volition claim a partition. (2) The share obtained by the kavaru shall be taken by it with all the incidents of kutumba property. Explanation- For the purposes of this Chapter - (a) A male member of a kutumba, or a female member thereof who has no living descendant in the female line, shall be deemed to be a kavaru if he or she has no living female ascendant who is a member of the kutumba; (b) Such male member, or such female member if she has completed toe age o: fifty years, shall be deemed to be a nissanthathi kavaru. "36. (1) Any kavaru entitled to partition under S. 35 shall be allotted a share of the kutumba properties in accordance with the provisions of sub-r. (2). (2) (a) If, on the date on which a partition is claimed, any of the members of the kutumba who are nearest in degree to their common ancestress is removed four degrees or more from such ancestress, then, the division shall be effected in the following manner :- (i) In three-fourths of the kutumba properties, the Kavaru shall be allotted such share as would fall to it, if a division thereof were made per capita among all the members of the kutumba then living. (ii) In the other one-fourth of the kutumba properties, the kavaru shall be allotted such snare as would fall to it, if a division thereof were made among the kavarus per stirpes. (b) In other cases, the division shall be effected in the following manner :- (i) In one-half of the kutumba properties, the kavaru shall be allotted such share as would fall to if it a division thereof were made per capita among all the members of the kutumba then living. (ii) In the other half of the kutumba properties, the kavaru shall be allotted such share as would fall to it if a division thereof were made per stirpes among the kavarus. (c) In a stirpital division under Cl. (a)(ii) or (b)(ii), the common ancestress if alive shall be entitled to the same share as a child of hers. (d) Where the kavaru seeking a partition, is not main kavaru of the kutumba, the share of the main kavaru shall first be ascertained in accordance with the provisions of the foregoing clauses, and the share so ascertained shall thereafter be divided and sub-divided according to the provisions of Cl. (b) until the kavaru seeking partition is reached. (e) The provisions of Cls. (a) to (d) shall apply only to partitions claimed before the expiry of a period of fifteen years from the commencement of this Act. (i) In a partition of a kutumba claimed after the expiry of the period aforesaid, a kavaru shall be allotted such share as would fall to it if a division of the kutumba properties were made per stirpes among all the kavarus. (g) In a partition under Cl. (f), where the kavaru seeking partition is not a main kavaru of the kutumba, the share of the main kavaru shall first be ascertained with that clause and the share so ascertained shall thereafter be divided and subdivided in the same manner until the kavaru seeking partition is reached. (h) The share of a kavaru at a partition shall be ascertained as on the date on which it makes a claim for partition. (h) The share of a kavaru at a partition shall be ascertained as on the date on which it makes a claim for partition. Explanation - For the purposes of this Sub-Section, the date on which a partition is claimed shall be - (a) where the claim is made by a suit for partition, the date of the institution of the suit (whether the suit is prosecuted or not); and (b) where the claim is made otherwise than by a suit, the date on which such a claim is made. (3) If, at the time of the partition, any kavaru taking a share is a nissanthathi kavaru, it shall have only a life-interest in the properties allotted to it, if the kutumba from which it separates has at least one female member who has not completed the age of fifty years, or where the Kutumba breaks up into a number of kavarus at the partition, if at least one of such Kavarus is a santhathi kavaru and if there is no such female member or santhathi kavam, the kavaru shall have an absolute interest in the properties allotted to it. 4. In the case referred to in Sub-S. (3), the life-interest of the nissanthathi kavaru in the properties allotted to it at the partition shall become absolute, if the kutumba concerned censes to have among its members a female who has hot completed the age of fifty years or if all the kavarus into which the kutumba broke up, whether at the same or at a subsequent partition, become nissanthathi kavarus. 5. The properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, shall devolve upon the kutumba, or where the kutumba has broken up, at the same or at a subsequent partition, into a number of kavarus, upon the nearest santhathi kavaru or kavarus. 6. 6. A registered family settlement (by whatever name called) or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purport to have been distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties notwithstanding any terms to the contrary in such settlement or award. "37. The provisions of this Chapter shall apply to every kavaru possessing separate properties as if it were a kutumba." 32. The expression "kutumba" is defined in S. 3 to mean "the group of persons forming a joint family with community of property governed by the Aliyasanthana Law of inheritance"; and "kavaru" is denned "when used in relation to a female as meaning the group of persons consisting of that female, her children and all her descendants in the female line", while "when used in relation to a male it meant the kavaru of the mother of that male." Santhathi kavaru is defined as meaning "a kavaru of which at least one member is a female who has not completed the age of fifty years", while by nissanthathi kavaru is meant "a kavaru which is not a santhathi kavaru" (vide Ss. 3(f) and (g)). 33. The argument as presented on this head was on these lines. The impugned enactment has effected radical changes in the property rights of the members of an Aliyasanthana family. In order to judge of the validity of these changes and to see whether these are in accordance with the constitutional guarantees regarding property rights, one must first examine the law as it stood prior to the enactment and ascertain the quantum and nature of the rights which inhered in any particular member of the family at that date. The next step would be to determine whether any changes had been introduced as regards the quantum and nature of these rights, and if as a result of such enquiry it were found that any member had been adversely affected by the enactment, to that extent it should be held that there is "deprivation" of property and as admittedly no-compensation has been provided for such "deprivation" the statute should be pronounced void as offending Art. 31 of the Constitution. This is how Art. 31 is sought to be invoked. It is further urged that assuming the changes in the law are otherwise in order, persons and groups who stand in identically the same position have been dealt with differently and unequally by Ss. 35 and 36 of the Act without any rational or reasonable justification therefor, and this, it is urged, violates the equal protection of the laws guaranteed by Art. 14. 34. We shall first consider the argument regarding Chap. 6 violating Art. 31 of the Constitution. The Aliyasanthana Act, 9 of 1949, though a pre-Constitution law is not it is true saved from the operation of Art. 31(2) (vide Cl. (5) of Art. 31) because it was enacted not more than 18 months before 26-1-1950 and it was not submitted to the President for certification under Cl. (6) of that article. Consequently the enactment is subject to the provisions of Art. 31 and if the changes effected by the Act amount to "taking" or "acquisition" of property without compensation, the Act should be deemed invalid to that extent. The contention that was urged was that in view of two recent decisions of the Supreme Court in Dwarakadas Srinivas v. Sholapur Spg. and Wvg. Co., Ltd. 1954 SCJ 175 : ( AIR 1954 SC 119 (P) (second Sholapur case) and State of West Bengal v. Subodh Gopal, 1954 SCJ 127 : ( AIR 1954 SC 92 ) (Q) (West Bengal case), there need be no acquisition by the State in order to constitute a "taking" within Art. 31(2) and that if the right to property or to its enjoyment were substantially interfered with by the, legislation there would be a "deprivation" of property and when this was compassed without provision for fair compensation for the interest "taken" as thus understood there would be a violation of Art. 31(2). Particular reliance was, in this connection, placed on two passages in the judgment of Mahajan, J. as he then was, for this construction of the article. His Lordship observed at 187 (of 1954 SCJ) (at p. 127 of AIR) in the Sholapur case : ".....all forms of deprivation of property by the State without payment of compensation have been included within the ambit of the exception clause, while other forms of deprivation of property which are outside the ambit of the exception clause are inevitably within the mischief of cl. (2) of the article. From the language employed in the different sub-clauses of Art. 31 it is difficult to escape the conclusion that the words "acquisition" and taking possession used in Art. 31(2) have the same meaning as the word deprivation in Art. 31(1)". And at P. 189 (of 1954 SCJ) (at p. 128 of AIR) in the same judgment : "The next contention of the learned counsel that the word acquisition in Art. 31(2) means the acquisition of title by the State and that unless the State becomes vested with the property there can be no acquisition within the meaning of the clause and that the expansion taking possession connoted the idea of requisition cannot be sustained and does not, to my mind, affect the decision of the case. As above pointed, both these expressions used in Cl. (2) convey the same meaning that is conveyed to Cl. (1) by the expression deprivation. As I read Art. 31, it gives complete protection to private property as against executive action, no matter by what process a person is deprived of possession of it. In other words, the Constitution declares that no person, shall be deprived of possession of private property without payment of compensation and that too under the authority of law, provided there was a public purpose behind that law. It is immaterial to the person who is deprived of property as to what use the State makes of his property or what title it acquires in it. The protection is against loss of property to the owner and there is no protection given to the State by the Article. It has no fundamental right as against the individual citizen. Art. 31 states the limitation on the power of the State in the field of taking property and those limitations are in the interests of the person to be deprived of his property. The question whether acquisition has a larger concept than is conveyed by the expression taking possession is really of academic interest in view of the comprehensive phraseology employed by Cl. (2) of Art. 31." 35. Reference was also made to a passage in the judgment of Bose, J. at p. 207 (of 1954 SCJ) (at p 138 of AIR) where His Lordship said : "Next, have these interests been taken possession of or acquired ? Here again I have ho doubt. (2) of Art. 31." 35. Reference was also made to a passage in the judgment of Bose, J. at p. 207 (of 1954 SCJ) (at p 138 of AIR) where His Lordship said : "Next, have these interests been taken possession of or acquired ? Here again I have ho doubt. In my judgment, the provisions in the Constitution touching fundamental rights must be construed broadly and liberally in favour of those on whom the rights have been conferred. But in any case, in this instance, these words have to be read along with the word deprived in Cl. (1) In my opinion, the possession and acquisition referred to in Cl. (2) mean the sort of possession and acquisition that amounts to deprivation within the meaning of Cl. (1). No hard and fast rule can be laid down. Each case must depend on its own facts. But if there is substantial deprivation, then Cl. (2) is, in my judgment, attracted. By substantial deprivation I mean the sort of deprivation that substantially robs a man of these attributes of enjoyment which normally accompany rights to, or an interest in property. The form is unessential. It is the substance that we must seek." 36. Referring to the West Bengal case (Q), Mr. Nambiar invited our attention to what the learned Chief Justice of the Supreme Court said at p. 140 (of 1954 SCJ) (at p. 99 of AIR) : "....the additional words taking possession of or requisitioning are used in Art. 31(2) .... not in contradistinction with but in amplification of the term "acquisition" so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued existence of the property after it is acquired .... It is however unnecessary here to express any concluded opinion on the precise scope and the meaning of the expression shall be taken possession of or acquired" in Cl. It is however unnecessary here to express any concluded opinion on the precise scope and the meaning of the expression shall be taken possession of or acquired" in Cl. (2) except to say that it does not admit of being construed in the same wide sense as the word taken used in the Fifth Amendment of the American Constitution, but implies such an appropriation of property or abridgement of the incidents of its ownership as would amount to a deprivation of the owner." And to a passage lower down at 143 (of 1954 SCJ) (at p. 101 of AIR) : "Under the Constitution of India, however, such questions must be determined with reference to the expression taken possession of or acquired as interpreted above, namely, that it must be read along with the word "deprived" in Cl. (1) and understood as having reference to such substantial abridgement of the rights of ownership as would amount to deprivation of the owner of his property. No cut and dried test can be formulated as to whether in a given case the owner is deprived of his property within the meaning of Art. 31; each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgment would be so substantial as to amount to a deprivation within the meaning of Art. 31, if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him, or materially reduced its value." 37. But this statement of the law has to be understood in the light of the principles formulated and explained at p. 144 (of 1954 SCJ) (at p. 102 of AIR) of the report where dealing with the particular case before the Court, the learned Chief Justice said : "A comparison of the scope and effect of the old S. 37 with S. 37 which is substituted in its place by S. 4 of the Amending Act and which S. 7 shows to be clearly retrospective, discloses that, although the rights of a purchaser to annual under-tenures and evict under-tenants is curtailed by the new S. 37 by enlarging the scope of the exception in the old section, it entitles the purchaser, as a countervailing advantage, to enhance the rent payable by the tenure-holders and tenants newly brought within the exception. The purchaser is left free in other respects to continue in enjoyment of the property as before. In other words, what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section, as it was found to be inadequate, while conferring certain compensating benefits on the purchaser. This amendment is in line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to changing conditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgment sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of Art. 31(1) and (2)." These decisions to some extent support the contention of the learned counsel that the expression "taking" in Art. 31(2) is not confined to esses of acquisition of property or interests in property by the State but should be held to cover cases also of substantial deprivation of property even where there is no corresponding accession of rights to the State. In the light of the principles established by these decisions we shall have to consider : (a) whether the adjustment of or variation in the rights of co-proprietors consequent on a partition constitutes a deprivation so as to amount to a "taking" within Art. 31(2) and (b) whether the deprivation if any is substantial so as to offend the guarantee conferred by the article ? To these questions we shall advert after dealing with the exact degree of variation in the rights of the members of an Aliyasanthana family effected by the impugned enactment. 38. The argument of Mr. Nambiar was that an Aliyasanthana kutumba was like a Mitakshara joint family, a quasi-corporation with however two points of fundamental difference from it : (1) whereas in the Mitakshara family it is the male-members who were recognised as the sole corporators and stocks of descent, in an Aliyasanthana kutumba it was the female members that formed the stock of descent, and (2) as contrasted with a Mitakshara family, no member of an Aliyasanthana kutumba had a right to demand partition, though partition could be brought about by consent among the members of the family. Till division the affairs of the Kutumba were managed by the eldest of its members, male or female, and not by the elder male alone though as regards the power of the manager there was similarity to the kartha in a Mitakshara family. 39. It was urged that before the passing of the impugned enactment, the decisions of this Court had crystallised the rights of the members of an Aliyasanthana family quoad the kutumba properties and the resultant position was (1) the eldest member of the family, male or female, had a right to be in management and administration of the family properties and regulate its internal economy; (2) all the members of the family were co-proprietors of the family assets but no member of the family nor any majority of members was entitled to enforce a right to partition against the wishes of the other members; (3) as incidental to this co-proprietorship and equal rights in family property (a) all the members of the family were entitled to be maintained out of the family income, (b) as each member was equally entitled to this right of maintenance and the payment of other necessary expenses, each was entitled roughly to an aliquot share of the family-income subject to the right of the ejaman to a slightly large share on account of his or her position as manager as well as on account of need of the manager to meet common family-burdens like entertaining family guests, etc., (c) though a partition of family properties could not be enforced at the instance of any member, it could be brought about by common consent and when thus a division took place the normal rule in the absence of a specific agreement to the contrary among the members was that the division should be per capita, this being in accordance with the equal proprietary interest of the members in the family-property and the manner in which the quantum of maintenance payable while in a state of non-division was computed, (d) a right to object to and interdict alienations of family property by the ejaman which were not for either necessary or beneficial family purposes, and (e) a contingent right to become an ejaman in his or her order or turn. 40. 40. If this were the position before the enactment, the first change introduced by the Act was to enable partitions to be effected against the will of the ejaman and if the jointness of the family was disrupted, it necessarily resulted in the elimination of the ejaman from the managership of the family properties. The argument was that the right to manage the assets of the family and regulate its internal economy was a right of property analogous to that of the head of a mutt whose right to manage the properties of the mutt was recognised by the Supreme Court in the Sirur Mutt Case, Commissioner of Hindu Religious Endowments, Madras v. Sirur Mutt, 1954 SCJ 335 : ( AIR 1954 SC 282 ) (B) as a right "to hold property" protected by Art. 19(1)(f) against the imposition by law of unreasonable restrictions. The submission was that though no doubt this right of the ejaman would under the law even prior to the enactment have lasted only so long as the family remained joint, yet since no individual member or a group or even a majority of members had a right to demand partition or claim a division, the joint status of the family, and therefore the right of management by the ejaman would never have been broken and the ejaman could not have been deprived of this right of management except with his consent. He could have been removed for misconduct but for the consideration of the present question, this is wholly irrelevant. The Act however, has made a change, in that it has conferred a right on a majority of the members of any kavaru to demand partition of the kutumba properties and for the separation of the share of the property attributable to the kavaru and this has been done without providing for any compensation for the deprivation of the managers right. This, it is urged, is violative of the right to property guaranteed by Article 31. 41. We shall deal with the contention that the termination of jointness brought by the recognition of the right to partition constitutes a deprivation of the managers right to property after setting out the other matters which are urged also as contravening this constitutional guarantee under Art. 31. 42. 41. We shall deal with the contention that the termination of jointness brought by the recognition of the right to partition constitutes a deprivation of the managers right to property after setting out the other matters which are urged also as contravening this constitutional guarantee under Art. 31. 42. The next point pressed upon us relates to the deprivation said to have been suffered by individual members of the family who before the enactment were each one entitled to the same and equal degree of interest in the family properties but who under the impugned law were entitled, to large or smaller shares in its assets depending on the number of members of the kavaru to which he or they belong. This contention was based on S. 36 failing to provide for a pure per capita division and partition being effected under the Act. 43. It was stated that before the Act every member of the family had an equal right in the family properties and to an equal share in the family income and that this was reflected in the manner in which the maintenance to be alloted to any individual was determined. In this connection reliance was placed on the following observations in Maravadi v. Pamakkar, 36 Mad 203 (S) at p. 203 : "According to the Aliyasanthana system which is very similar in its incidents to the Manimakkathayam law - no member of the family is entitled to enforce partition of the family property which belongs to all the members. Every junior member is entitled to be maintained by the karnavan and has the right to object to any improper administration of the property of the tarwad and to see that it is duly conserved for the use of the tarwad. The income belongs to all, and all are entitled to participate in the benefit of it.... The right to maintenance is an individual right.... It has been held that a suit for maintenance by a junior member of a Marumakkathayam or Aliyasanthana family is one that falls under Art. 127, Limitation Act - a suit to enforce the right to chare in joint family property - Achuthan Nair v. Kunjunni Nair, 13 Mad LJ 499 (T).... In other words the right to maintenance in a Malabar tarwad is the mode in which the right of ownership is enforced." 44. In other words the right to maintenance in a Malabar tarwad is the mode in which the right of ownership is enforced." 44. Reference was also made to the decision in Ammani Ammal v. Padmanabha Menon, 41 Mad 1075 : (AIR 1919 Mad 677) (U) where dealing with a Marumakkathayam tarwad it was held it was the right of every member to be maintained out of the tarwad properties as the same was based on his or her right as co-proprietor, and that consequently separate maintenance could not be denied to any member except where the tarwad was not in a position to make a separate allowance. On this branch of the argument considerable stress was laid on Seshappa Chetty v. Devaraja, 49 Mad 407 : (AIR 1926 Mad 723) (V) - an Aliyasanthana case where the question for decision related to the right of a junior member to be married at the family expense - a position which was affirmed. In the course of the judgment the learned Judges observed : "The Aliyasanthana system is very similar in its incidents to the Marumakkathayam law......Large and absolute though his powers be over the administration of the tarwad property and its funds the regulation of the tarwads internal economy, and the protection, control and supervision of the junior members, it should never be forgotten that the tarwad property in his possession is not exclusively his own, but he owns it along with the other members only as a co-proprietor.... The right of ownership is of overwhelming importance to the junior members, as it clothes them with very valuable rights which they can enforce against the karnavan. The status of a member of a Malabar tarwad carries with it four distinct rights, viz., (1) a right to be maintained by the karnavan, (2) a right to see that the tarwad property is not alienated otherwise than in accordance with law, (3) a right to become tarwad karnavan when he becomes the senior male member, and (4) a right to a share if a partition were made and tarwad broken up by common consent.... To these might be added another right, viz., a right to bar an adoption. To these might be added another right, viz., a right to bar an adoption. "Of these rights, obviously the most substantial one is the right to maintenance as such a right is the mode in which the right of ownership in the tarwad property is most effectively enforced by the junior members." 45. All these, however, do not carry the learned counsel far enough to support the position that the co-proprietorship on which the right to maintenance is based necessarily implies that when a partition takes place in the family it was and should only be on a per capita basis. 46. In the first place the law relating to maintenance has not been static but has progressively grown and has been undergoing changes in its content. Though originally some doubt was entertained as to whether the male members of the family who were not stocks of descent under the Aliyasanthana system, could be treated as individuals who could count for purposes of maintenance, it was early recognised that they too were members of the family entitled to be maintained at family expense. At an early date the decisions required members to reside in the family house before they could claim that provision should be made for their maintenance. But when owing to exigencies of employment or profession the members of the family had to leave the family house, questions arose Whether they would be entitled to be maintained at the family expense and the later decisions were to the effect that if a member of the family went out of the family house for a proper purpose he would be entitled to receive his share of maintenance. There was a further extension of this principle that the members were permitted to draw their maintenance allowance wherever they lived and whatever be the reason why they remained outside the family house. All these changes were effected by Judge made law which followed somewhat tardily in the wake of the consciousness of the community. The position was thus summarised in 36 Mad 203 (S) to which we have already referred. "The law regulating the right of junior members to maintenance has been gradually developed in the decisions of this Court, and it is necessary to state the position in which it now stands. The position was thus summarised in 36 Mad 203 (S) to which we have already referred. "The law regulating the right of junior members to maintenance has been gradually developed in the decisions of this Court, and it is necessary to state the position in which it now stands. In the earlier cases it was sometimes stated that the right of a member is only to be maintained in the family house, and that he has no right to maintenance if he resided elsewhere. But it will be observed that in some of these cases at least this statement was made in denial of the right of any member to enforce the payment to him separately of a proportionate share of the income. Such a claim was regarded as an indirect attempt to enforce a right to partition which no member of a Marumakkathayam tarwad possesses. In Appeal No. 275 of 1858 etc. such a claim to an aliquot part of the family income was negatived by Holloway, J...... The statement that a definite share of the income cannot be claimed by a junior member is no doubt coupled, in one of these cases. Appeal No. 275 of 1858, with the statement that the junior members are not entitled to be supported out of the family house from the family property. But it is doubtful whether that learned Judge intended to lay down any such rigorous rule, for in another case where also a proportionate share of the income was claimed by some junior members of a family, after negativing such a right, be abstained from decisively laying down that any member had right to be maintained out of the family house. (See Moore, P. 125). 47. Again on the quantum of maintenance to be allowed to the members, several decisions have drawn a distinction between adults and minors, the minors being held entitled to an allotment roughly of one half of that allowed to the adults. For instance in Pemmakkas case itself (36 Mad 203) (S) the District Munsif had allotted an aliquot share of the net income from the family property to each member, adult as well as minor. For instance in Pemmakkas case itself (36 Mad 203) (S) the District Munsif had allotted an aliquot share of the net income from the family property to each member, adult as well as minor. Dealing with this the learned Judges of this Court said : "The District Munsif was certainly wrong in dividing the total income of the property into as many shares as there are members and in awarding a 15/40th share to the plaintiffs on the principle of an equal share to each member." The appeal was therefore remanded for fresh disposal. It is worthy of note that in the case of the very family concerned in O.S. No. 182 of 1952 which has given rise to Ref. No. 18 of 1953, there was a previous litigation between the members of the family as regards the maintenance and under the decree finally passed, the minor members of the family were allotted maintenance at half the rate that was allotted to the adults. This of course indicates that though in a general sense members, of the family are co-proprietors, the theory of equality cannot be applied logically and literally to determine the rights of the several members even while in a state of non-division. 48. In the next place even if it were established that each member of the family was entitled to the same amount by way of maintenance as every other, it does not follow that a partition when it takes place should be on a per capita basis. No decision has laid down as the rule under the Aliyasanthana law. In fact the position appears to have been the other way at least so far as the earlier ones are concerned. Sundara Ayyar in his Malabar and Aliyasanthana law says at page 10 : "In 1810, the Provincial Court of Western Division seems to have held : "If partition is made it must be per stripes and not per capita." See Moores Malabar Law, page 12. Mr. Strange in his Manual on Hindu Law, p. 389 says the same thing. See also Gradys Hindu Law page 310. In practice, the division is generally by branches. In Timma v. Daramma, "(an Aliyasanthana case) 10 Mad 362 (W) and Amma v. Kunhunni Menon 4 Mad LJ 43 (X) both cases of succession, it is assumed that division is to be per stripes. Dr. See also Gradys Hindu Law page 310. In practice, the division is generally by branches. In Timma v. Daramma, "(an Aliyasanthana case) 10 Mad 362 (W) and Amma v. Kunhunni Menon 4 Mad LJ 43 (X) both cases of succession, it is assumed that division is to be per stripes. Dr. Pandalal in his monograph on Succession and Partition at page 147 refers to a case in Travancore in which the point directly arose and was so decided. A number of other rulings are also referred to by him in which stirpital division was recognised as the rule. In a recent Privy Council case stirpital division is taken as the normal mode of division." The learned author continues : "It must also be conceded that equal right of enjoyment does not necessarily connote equality of interest...... Before the decision Munda Chetti v. Thimmaju Hensu 1 Mad HCR 380 (Y) which put an end to suits for partition under Aliyasanthana system, the practice seems to have been to allot a life-interest to males and females with possibility of issue extinct and to divide the property among the females. In Narayani Kutti Amma v. Achuthankutti 42 Mad 292 : (AIR 1919 Mad 573) (Z) it is laid down that partition cannot be set aside on the ground that the division is stirpital. In that very case, however, it will be noticed that a part of the property had been divided per capita and no objection was taken to it. Having regard to the state of authorities the only safe position that can be taken is that there is no definite rule either way and a division on either basis or a combination of both will not be set aside merely on that ground." 49. The entire argument in regard to this point really rests on two prepositions : (1) that except in regard to certain stated matters, the Marumakkathayam and the Aliyasanthana Systems are indentical and that the rule as to the mode of division is not one of those exceptional matters, (2) it is the settled rule under the MarumakKatha-yam law that the division is per capita. So far as the first proposition is concerned, the main reliance is on a passage at page 246 of Sundaram Ayyars Malabar and Aliyasanthana law where the learned author enumerates the points of distinction between the Marumakkathayam and Aliyasthana systems and points out that the two systems are indentical subject to these small variations. But the learned author adds a note : "These are the main points on which the two systems differ though there are other minor points of difference in detail due in large measure to differing social and economic conditions." 50. In view of this reservation we consider it unsafe to proceed upon the theory that on this topic as to the mode of division the two systems are identical. The second premise also is not in our opinion fully made out. The main reliance in this respect is on a decision of this court in Sreedevi Nethir v. Peruvunni Nair AIR 1935 Mad 71 (Z1). The parties were governed by the Marumakkathayam law and the contest raised in the case related to whether the division should be per capita as urged by the defendants. The District Munsif held that the division should be per stirpes. This was set aside by the learned Subordinate Judge on appeal who held in favour of the per capita view. On second appeal to this Court Curgenven, J. restored the decree of the District Munsif and there was a Letters Patent Appeal filed against the decision of Curgenven, J. and this decision was reversed. Madhavan Nair and Anantakrishna Ayyar JJ., holding that the preponderance of authority in this Court was in favour of the per capita rule. The wide divergence of opinion among the Judges who had to consider this case at least shows that the point is not free from doubt. We are not now sitting in appeal over the decision of this Court in AIR 1935 Mad 71 (Z1). But it would be sufficient to say that on the basis of this decision we are not convinced that a partition on any other basis than per capita would be a deprivation of the right of property vested in the members within the meaning of Art 31. 51. Before concluding it is only necessary to add two observations. But it would be sufficient to say that on the basis of this decision we are not convinced that a partition on any other basis than per capita would be a deprivation of the right of property vested in the members within the meaning of Art 31. 51. Before concluding it is only necessary to add two observations. The entire argument seeks to correlate equality between individual members in the right maintenance with a right to allotment of an equal amount of property to him or her in a division. This, however, does not logically or necessarily follow. For instance in a Mitakashara joint family there is equality among the members in the matter of maintenance. When however a division takes place, it is on a stirpital basis. No doubt the recognition of a right of representation may account for this feature. But this should at least show that there is no necessary inconsistency between equal rights to maintenance and a stirpital division on a break-up. The second point is that ever since Munda Chettys case (Y) in 1863 no compulsory partition through Courts has been possible in an Aliyasanthana family. We have, therefore, nothing on the basis of which it could be said that only a per capita division gives effect to the real rights of the parties and not a stirpital or a mixture of per capita and stirpital division. 52. We are clearly of the opinion that the termination of the ejamans right to manage family property and to regulate its internal economy by the provision for the disruption of the family by a demand for partition as enacted in S. 35 of the Act is not in violation of Art. 31(2) of the Constitution. In the first place, this legislation is not intended or designed with a view to deprive the manager of any right of property but the termination of the managership is consequential on, and incidental to the giving effect to the rights of the other members of the family by way of a separation of their shares. In the first place, this legislation is not intended or designed with a view to deprive the manager of any right of property but the termination of the managership is consequential on, and incidental to the giving effect to the rights of the other members of the family by way of a separation of their shares. We do not also consider the right of the ejaman to manage the family property as a right of property within the meaning either of Art. 19 or Art. 31 of the Constitution, it is but a right exercised on behalf of others and by reason of the necessity to have a single person to manage where there is a multiplicity of co-proprieters. It must be deemed to be based on a theory of implied consent on the part of the other members. If it is competent to the Legislature to pass a law enabling the individual members to assert their rights to possession of what is in reality their property, we do not see how there is any deprivation of any right of property in the ejaman or manager. Moreover even if one could conceive of this right of management as being in the nature of property, we are clearly of the view that an enactment enabling a change in the manner of enjoyment with a resultant termination of the managership is not a substantial deprivation so as to conflict with the constitutional guarantee embodied in Art. 31(2) of the Constitution. 53. There is one further reason for holding that neither the termination of the managership, nor the provision for the mode of division prescribed by S. 36 of the Act is in violation of Constitution. The Madras Aliyasanthana Act 1949, is in line with the series of the previous enactments like the Nambudri Act, the Marumakkathayam Act, 1933, the Malabar Marriage Act, the Mopla Marummkathayam Act, etc., by which the harshness or inconvenience of ancient customs which fettered the lives of the community by reason of the conservatism of the Courts were alleviated. These enactments were passed in response to the changes in the consciousness of the community and the insistent demands made by its members for a more equitable system of law than had been recognised and enforced by the Courts. These enactments were passed in response to the changes in the consciousness of the community and the insistent demands made by its members for a more equitable system of law than had been recognised and enforced by the Courts. Particularly in regard to the Aliyasanthana enactment, it arose out of the general dissatisfaction expressed by the members of the community as regards their customary law regarding marriage, inheritance and partition. The important features of this system as laid down and enforced by the Courts were impartibility, descent in the line of females and non-recognition of marriage as a legal institution, in all of which matters Judge-made-law in respect of both Marumakkathayam and Aliyasanthana systems were completely identical. When the Marumakkathayam Bill was introduced into the Madras Assembly in 1932, persons belonging to the Aliyasanthana system were included within the scope of that bill. The conservative sections of the Aliyasanthana community objected to this inclusion on the ground that it constituted much too great a departure from the prevailing customs. The result of this agitation was that the followers of the Aliyasantha system were excluded from the scope of the bill by the definition which was introduced into S. 3(e) of the Marumakkathayam Act. "Marumakkathayyam" was defined to mean "a system of inheritance in which descent is traced in the female line but so as not to include the system of inheritance known as Aliyasanthana". The agitation for reforms was still kept up by the bulk of the community. In 1933, a Bill was introduced in the Legislative Council for this purpose which was referred for eliciting public opinion and a large volume of opinion expressed was published by the Government. The general trend of the opinion was that a bill on the lines proposed was absolutely essential. But notwithstanding this, nothing much was done in respect of this bill in the Legislature until the Legislative Council Bill No. 1 of 1948 which was in terms identical with the earlier bill was referred to a Joint Select Committee. Mr. A.B. Shetty who was then a Minister of the Madras Government in moving the Bill for reference to the Select Committee said : "The Aliyasanthana family manager has to carry on a perpetual struggle between his duties to his heirs and their children and his natural affection towards his own wife and children. Mr. A.B. Shetty who was then a Minister of the Madras Government in moving the Bill for reference to the Select Committee said : "The Aliyasanthana family manager has to carry on a perpetual struggle between his duties to his heirs and their children and his natural affection towards his own wife and children. Naturally he prefers the interests of his own wife and children to the interests of his sisters and their children. The case becomes worse when he becomes the manager of a big family consisting of several branches. He finds it difficult to hold the scales even between these several branches. Naturally he becomes partial to the members of his own branch. Family lands are neglected and family funds are unjustly appropriated for the benefit of his own wife and children. The Aliyasanthana family manager or yajaman as he is called spends money on the education of his children and not on the education of the children of his sisters .... When distant relatives removed from each other by several degrees are huddled together in the same joint family house, home-life in the best sense of the word becomes impossible. The different branches of the family quarrel and fight among themselves and often criminal proceedings are being instituted against each other. Junior members of the family file maintenance suits against the yajaman and very often they seek to depose him. Voluntary division of family properties takes place in some cases but very often it is effected only after much ruinous litigation and creation of bad blood. The unnaturalness of this system has been often dwelt upon in judicial pronouncements. Travancore and Cochin have many years ago passed legislation for effecting reforms in this system." It was in these circumstances that this enactment was passed. 54. Before the establishment of Courts by the British Indian Government, the customary law in this country contained in itself the mechanism of change reflecting the principle of growth. Changing situations led to changes in customs, and variations in the law and practice were effected to keep pace with such changes. It was only the establishment of Courts by the British Government with the principle of stare decisis that arrested this process of natural growth, show though it might be. Changing situations led to changes in customs, and variations in the law and practice were effected to keep pace with such changes. It was only the establishment of Courts by the British Government with the principle of stare decisis that arrested this process of natural growth, show though it might be. To take an instance from the Aliyasanthana law itself, it would be noticed that in the early years of the administration of justice in the State, the right of partition among the members was recognised and in several cases the Courts decreed suits for partition on the footing that this was in conformity with the custom. But all these earlier decisions were overruled by this Court in 1 Mad HCR 380 (Y) relying on a passage in Boothalapandya (the authenticity of which authority has been doubted in some later cases) and it is only from then onwards that it was firmly established that there could be no partition except with the consent of the members of the family. Though the members of the community chafed under the ruling, nothing could be done by them. The decision of the Courts petrified the law and imposed barriers against change. This was obviously inconvenient to the community as could be seen from the extract from the speech of the Minister already quoted and this was particularly so in more recent times when individualism was expressing itself and replacing the earlier concept of group-life and family entity. When with increasing and rapid facilities in communications, members of such families got dispersed all over the country and even outside, the system of family ownership was found obviously ill-suited. The result of this was seen in the fact that in South Kanara, partition has been very common. Of course in a majority of cases this must have been brought about after a great deal of conflict and by the exercise of pressure on unwilling managers. In our opinion, to characterise a legislation which seeks to bring about division between the members in such circumstances as deprivation of property would be a clear misuse of language. 55. Of course in a majority of cases this must have been brought about after a great deal of conflict and by the exercise of pressure on unwilling managers. In our opinion, to characterise a legislation which seeks to bring about division between the members in such circumstances as deprivation of property would be a clear misuse of language. 55. We have up to now proceeded on the footing that Art. 31 of the Constitution would cover cases of adjustment of rights among the members of a family, the Article being so interpreted that, to effect any change whereby the rights of any member would be affected would amount to a deprivation of the right of property guaranteed by the Constitution, and have endeavoured to pursue the question as to whether such a deprivation would be substantial. There is, however, another aspect from which the problem might be viewed. The argument of Mr. Nambiar when finally analysed comes to this : Here is a manager of a family who had a right to manage the family property. No doubt other members of the family are co-proprietors along with him but under the law as laid down by the Courts, the family was indivisible so that the manager could not be ousted except with his consent or except on proof of his misconduct. This right of management is a right of property of which the yejaman cannot be deprived without compensation because under the law before the Act the Court would refuse to allow a partition, though in other systems of law a right to partition and separate possession is deemed an incident of the right of co-proprietorship vested in each individual member and custom as understood by the Courts deprived these co-proprietors of a necessary incident of co-proprietorship. This state of affairs might have become intolerable, and if a change has to be effected, it can only be by legislation. But if such a change were effected and the rights of parties readjusted departing in any manner from the pattern as determined by judicial decisions, it can only be effected after the payment of adequate compensation to the manager - of course at the cost of the general tax-payer. The other part of the argument is that each individual member had under the law an equal right to maintenance along with the others. The other part of the argument is that each individual member had under the law an equal right to maintenance along with the others. Therefore if a division were effected on that basis he would get some particular fraction of the family property. But under the Act, the scheme of division adopted under S. 36 is a mixture of the stirpital and per capita principles. In particular cases this might result in the members of one branch receiving a lesser extent of property than another branch which has fewer members. This might be incidental and accidental and not designed. But this difference in the quantum so far as any particular member is concerned is nevertheless a deprivation of his right of property for which compensation ought to be paid by the State. This argument is unsound and does not appeal to us. The branches or the kavarus were not the creations of the Legislature but were pre-existing units recognised by the law and by the community. If the Legislature took these existing facts into account and recognised the kavaru as a unit, there was nothing unreasonable and this could by no stretch of language be construed as a deprivation of property. If the argument advanced by Mr. Nambiar were accepted, there could be no change effected in any law, however outmoded and inconvenient its provisions might be and however much it might lead to discord among individuals without a payment of compensation. But Courts would and should certainly take notice of the fact that society has been progressing from the concept of the family as a unit to the recognition of the individual as distinct from the membership of his family. The Constitution has been designed as an instrument of progress and not to petrify the law and prevent all social change except on terms of the general tax-payer having to pay adequate compensation for the so-called deprivation of property. The acceptance of the argument would mean that the dead hand of the past in the form of outworn customs and inconvenient modes of life or of holding property has been endowed, so to speak, with perpetual life and that the particular group or community has to bear the burden of this old man of the sea on pain of the general tax-payer having to pay the price for its liberation. On this analogy, a law providing for maintenance for a married woman or for a widow would, if it were not the law before the Constitution, be violative of Art. 31 unless the general tax-payer was asked to pay the maintenance which was claimed against any individual. We refuse to regard Art. 31 as a barrier against progress against the readjustment of rights or against the scrapping up of outworn customs. We are clearly of the opinion that this legislation is in the language of American Constitutional Law an exercise of Police power - a power to regulate and determine the internal relationships that should subsist between the members of the family, and one passed to secure the contentment and well being of the community. What is involved in this legislation is not any eminent domain, any "taking" or "acquisition" of property to public use however widely the phrase "taking" is understood, but rather the exercise of the power "to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, which the legislature shall judge to be for the good and welfare of the State and of its subjects", per Shaw, C.J. in Common Wealth v. Alger 7 Cushing 53 (Z2). In our judgment the deprivation of property referred to in Art. 31 has nothing to do with the so called impairment of rights involved in a partition or with the allotment of shares to the divided groups. 56. The next head of argument is that Chap. 6 offends against Art. 14 of the Constitution. Before dealing with this, we might as well set out the manner in which the question should be approached. In this connection the following passage from the judgment of Van Devanter in the Supreme Court of United States of America in Stuart Lindsley v. Natural Carbonic Gas Co. (1911) 51 Law Ed 369 (Z3) which has been quoted with approval by our Supreme Court in Charanjit Lal Chowdhury v. Union of India 1951 SCJ 29 at p 65 : ( AIR 1951 SC 41 at p 63) (Z4) may usefully be referred to. (1911) 51 Law Ed 369 (Z3) which has been quoted with approval by our Supreme Court in Charanjit Lal Chowdhury v. Union of India 1951 SCJ 29 at p 65 : ( AIR 1951 SC 41 at p 63) (Z4) may usefully be referred to. Dealing with the question that the classification there made was arbitrary and consequently denied equal protection to those whom it affected, the learned Judge said at page 377 : "The equal protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary". Applying these tests, we shall examine these provisions which are said to involve an unequal protection of the law. 57. The first item that is referred to is that S. 35(1) of the Act singles out the kavaru as a unit which might effect a division of the kutumba properties, though individual members who are co-proprietors of the family properties are not given any such right. As we have had occasion to point out before, the kavaru was not a creation of the Legislature but was a unit recognised by custom. The framers of the Act did not desire to go the whole hog and give effect to the rights of individuals as such. They stopped short of this and conferred rights on the natural unit which the community itself recognised. There is no gainsaying that kavarus are more closely knit than kutumbas there is close relationship between the members of the kavaru. We do not see, therefore, any justification for regarding this treatment of the kavaru as anything unreasonable. 58. They stopped short of this and conferred rights on the natural unit which the community itself recognised. There is no gainsaying that kavarus are more closely knit than kutumbas there is close relationship between the members of the kavaru. We do not see, therefore, any justification for regarding this treatment of the kavaru as anything unreasonable. 58. It is next said that proviso (ii) to S. 35(1) under which a kavaru cannot make such a claim to partition during the lifetime of an ancestress common to such kavaru and to any other kavaru or kavarus who has not completed fifty years of age without the consent of such ancestress is discriminatory in favour of such common ancestress. This argument does not appeal to us because the position of the common ancestress is one which has been recognised by the community and the limit of 50 years has been put in to indicate that the common ancestress is past the child-bearing age as to preclude additions to the family. The third point of attack is the distinction between a santhanthi kavaru and nissanthathi kavaru. But this is forgetting that this distinction was not invented by the Act but only made provision for the two sets of cases, the distinction between them being that in the case of a nissanthathi kavaru there is no chance of any expansion of that kavaru. 59. Referring to the shares allotted to the several kavarus under the provisions of S. 36, it is argued that the distinction drawn in S.36(2)(a) and 2(b) by which the mode of division is made dependent upon the nearness of the degree of the kavaru to the common ancestress - whether it is removed by four degrees or more or less than, that - is arbitrary and not based on any reasonable classification. The manner in which this provision came to be effected would be a sufficient refutation of the argument in that regard. We have already extracted a portion of the speech of Mr. Shetty in moving the reference of the Aliyasanthana Bill to the Select Committee and have referred to the agitation in the community for a change in the law relating to partition and succession. We have already extracted a portion of the speech of Mr. Shetty in moving the reference of the Aliyasanthana Bill to the Select Committee and have referred to the agitation in the community for a change in the law relating to partition and succession. When the conservative elements in the community succeeded in getting the persons following the Aliyasanthana Law excluded from the operation of the Marumakkathayam Act of 1933, the demand for legislation on the part of the younger members of the community grew in volume. Several private members and also public men drafted several bills. In 1939 the Aliyasanthana Peoples Reforms Conference which consisted of the leading members of the community constituted a representative committee and they drafted a bill alter consulting the opinion all over the district and the bill as drafted by them had the support of the principal aliyasanthana communities in the district, namely, the Bunts, the Jains, the Mogaveeras and the Billavas. The bill sponsored by the Government in 1948 was on the same lines as that which had been drafted by this Peoples Committee. A select Committee to consider this bill was constituted of members from Malabar. At its first meeting it decided to call for the opinions of persons interested in the bill by a notification in the press and they met in S. Kanara and took oral evidence of persons who appeared before them. It was in the light of the opinions expressed before them that this Joint Select Committee amended the bill by providing for the shares at a partition in the manner in which it is now found there. In these circumstances we do not see how the provisions of the enactment could be challenged as unreasonable or irrational and as violative of the equal protection of the laws guaranteed by Art. 14. 60. We shall, however, out of regard to the counsel who argued the case elaborately, set out the particular provisions which he contended were not based on any reasonable classification. First it was stated that the difference between the four degrees and below introduced by Sub-S. 2(a) and (b) was not reasonable. That nearness of relationship is the criterion that could be taken into account in these matters cannot be disputed. In the light of this we fail to see how the fixation of the point at four degrees can be said to be arbitrary. That nearness of relationship is the criterion that could be taken into account in these matters cannot be disputed. In the light of this we fail to see how the fixation of the point at four degrees can be said to be arbitrary. Next it is urged that there is no logical or reasonable basis for the distinction between the provisions in Sub-S. (2)(a) and (b) on the one hand and Sub-S. (2)(e) and (f) on the other. The objection is that the period of 15 years which has been fixed under cl. (e) of Sub-S. (2) is arbitrary. The framers of the Act evidently desired to introduce a general rule which would operate after a particular period. Of course, there is no particular sanctity about this period of 15 years; it might have been 10 or it might have been 20. But the Legislature wished to give sufficient time to the members of the community to avail themselves of the rights, and the period of 15 years is as reasonable a period of time within which this could be effected as any other period. We do not therefore see any substance in this contention of the learned counsel. 61. It is next stated that the distinction drawn between the provision in Sub-Ss. (3) and (4) of S. 36 is not founded on any rational basis. This is however forgetting the sharp distinction which the enactment draws between a female who is a stock of discent under this system who is past the child-bearing age which is fixed at 50 and a female who is capable of bringing into existence new members. We do not see anything irrational either in fixing the critical age at 50, or in the provisions consequent upon the condition of such a female member. A similar attack is made on the distinction between the provisions in Sub-S. (4) and that in Sub-S. (5) and the devolution prescribed in the latter provision. But all these were part of the system which the enactment has merely adopted and rationalised. We do not see therefore any substance in this objection that S. 35 or S. 36 violates Art. 14 of the Constitution. 62. In the result, we are clearly of the opinion that the impugned provisions of the Madras Aliyasathana Act are valid in their entirety. We do not see therefore any substance in this objection that S. 35 or S. 36 violates Art. 14 of the Constitution. 62. In the result, we are clearly of the opinion that the impugned provisions of the Madras Aliyasathana Act are valid in their entirety. The records will be transmitted to the Subordinate Judge of South Kanara who will dispose of the suits in the light of our decision. Answer accordingly.