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1988 DIGILAW 523 (KER)

MADHAVI AMMA v. KALLIANI AMMA

1988-11-03

RADHAKRISHNA MENON

body1988
Judgment :- 1. The C. R. P. arises from a petition under S.372 of the Indian Succession Act, for a succession certificate. 2. Facts relevant and essential to decide the issue, briefly stated, are: Narayanan the son of the petitioner herein died on 2-9-1982. At the time of his death, his wife Pushpaja was alive. Pushpaja died on 9-9-1982 that is, within a week of Narayanan's death. The couple however, died issueless. On the death of Pushpaja therefore, according to the respondent herein, Pushpaja's half right devolved on her. She accordingly filed the above petition for succession certificate claiming one half of the insurance amount due to the insured Narayanan. In support of this case the respondent relied on S.17 of The Hindu Succession Act, 1956, for short The Succession Act. 3. On the other hand the petitioner herein who is the mother of deceased Narayanan, contended that she was the sole heir and hence she alone was entitled to get the entire insurance amount. The succession therefore, required to be determined under S.8,10,15 and 16 and not under S.17 of The Succession Act. 4. The trial court allowed the petition. On appeal the Appellate Court by judgment under attack, confirmed the said order. 5. The only question that survives for consideration is: Is the succession governed by S.15 or S.17 of The Succession Act. If on enquiry it is found that the succession is not governed by S.17 as contended for by the respondent, then it automatically follows that the devolution can be had only in accordance with S.15 read with S.8,10 and 16. So the answer to the question depends upon the construction of S.17 of The Succession Act. Relevant part of S.17 reads: "17. The provisions of S.8,10,15 and 23 shall have effect in relation to persons who would have been governed by the Marumakkattayam law or Aliyasantana law if this Act had not been passed as if (i) (ii) for clauses (a) to (e) of sub-s. (1) of S.15, the following had been substituted, namely:-"(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the mother; (b) secondly, upon the father and the husband; (c) thirdly, upon the heirs of the mother; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the husband". 6. 6. The learned counsel for the petitioner argues that but for S.17 which contains special provisions relating to succession to the property of persons governed by the Marumakkattayam law or Aliyasanthana law, the property in question ordinarily would have devolved according to the rules set out in S.16. It is clear from the words "persons who would have been governed by the Marumakkattayam law or Aliyasantana law if this Act had not been passed" in S.17, that the Parliament has incorporated in this Section both the Marumakkattayam and Aliyasanthana law by reference, the learned counsel argues. 7. Before we go further into the matter, we have to understand what is meant by legislation by referential incorporation. This mode of legislation falls into two categories; (1) where a statute by specific provision incorporates the provisions of another statute as it stood at the time of incorporation. In such cases the provisions so incorporated become part and parcel of that Act as if those provisions have been "bodily transposed into it"; (2) incorporation by mere reference or citation of the law concerning a particular subject, as a genus. There is a distinction between these two modes of incorporation. In the case of the latter, all subsequent amendments made from time in the general law on the subject would automatically stand included in the adopting statute. But in the case of incorporation adopting the first method the subsequent amendments in the referred statute, cannot automatically be read into the statute into which the unamended provisions had been incorporated. This position in law is well settled. (See Bajya v. Gopika Bai, A.I.R.1978 S.C. 793). 8. According to the learned counsel for the petitioner the incorporation stated in para 7 falls under that category of incorporation called incorporation by reference or citation and therefore on the repeal of the Marumakkattayam law by S.7 of The Kerala Joint Hindu Family System (Abolition) Act, 1975, S.17 would be without the incorporated law. That means, the section becomes otiose in so far as it relates to succession to property of persons governed by Marumakkattayam law and therefore the property of Pushpaja who died after the coming into force of The Kerala Joint Hindu Family System (Abolition) Act, 1975 devolves only on the heirs made mention of in S.15 of The Succession Act. 9. This argument is really attractive. 9. This argument is really attractive. But in the light of the ruling of the Supreme Court in Sundari v. Laxmi (A.I.R. 1980 SC. 198), the above argument is liable to be rejected. Considering the scope of S.4 of The Succession Act in a case which is governed by the Aliyasantana law, the Supreme Court has observed as follows: "The question that arises for consideration is how far the Aliyasanthana Act regarding partition and succession has been affected by the Hindu Succession Act. The Hindu Succession Act came into force on 17th June 1956. The preamble states that the Act' amends and codifies the law relating to intestate succession among Hindus. Though the preamble refers only to "Intestate succession" as the title 'Hindu Succession Act' indicates it relates to the law of succession among Hindus and not merely to intestate succession as mentioned in the preamble. The law has brought about radical changes in the law of succession. The law is applicable to all Hindus as provided in S.2 of the Act. It is made clear that the law is applicable not only to persons governed by Dayabhaga and Mitakshara law but also to persons governed by Aliyasanthana, Marumakkathayam and Nambudri systems of Hindu Law. S.4 of the Act gives overriding application to the provisions of the Act and lays down that in respect of any of the matters dealt with in the Act all existing laws whether in the shape of enactment or otherwise which are inconsistent with the Act are repealed. Any other law in force immediately before the commencement of this Act ceases to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. It is therefore clear that the provisions of Aliyasanthana law whether customary or statutory will cease to apply, in so far as they are inconsistent with the provisions of the Hindu Succession Act." (emphasis supplied) 10. It therefore follows that the Marumakkattayam law whether statutory or otherwise stands repealed by The Succession Act. The effect of repeal of a statute is that it ceases to be a part of the corpus juris or body of law. To put it differently the law was regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions past and closed. The effect of repeal of a statute is that it ceases to be a part of the corpus juris or body of law. To put it differently the law was regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions past and closed. It therefore follows that S.7 of The Kerala Joint Hindu Family System (Abolition) Act does not in any manner interfere with the mode of succession reflected under S.17 of The Succession Act. That means succession to the properties of a marumakathayi who dies intestate after the coming into force of The Succession Act, will be governed by S.17 of The Succession Act only. S.17 on a reading of it makes it clear that it contains special provisions respecting persons governed by Marumakkattayam and Aliyasantana law. Reference to Marumakkattayam and Aliyasantana laws in S.17 therefore is only to clarify the position that these special provisions are applicable only to persons, who at the time of the coming into force of The Succession Act, were governed by the Marumakkattayam law or Aliyasantana law as the case may be.. 11. From the discussion above it is clear that the repeal of the Marumakkattayam Act by S.7 of The Kerala Joint Hindu Family System (Abolition) Act, 1975 has no manner of impact on the order of succession prescribed under S.17 of The Succession Act. There is, therefore, little scope to interfere with the judgment recognising the right of the respondent for one half of the insurance amount due to deceased Narayanan. The C.R.P. fails. Accordingly the same is dismissed but in the circumstances no costs.