Judgment :- Jagannadha Rao, CJ. The question referred to this Larger Bench is one of great importance in respect of the rights of inheritance to females governed by the Marumakkathayam law in Kerala. The question is whether S.17 of the Hindu Succession Act. 1956 which deals with succession to females continues to be in force and operative notwithstanding the commencement of the Kerala Joint Hindu Family System (Abolition) Act. 1975 (hereinafter referred to as 'the Joint Family Abolition Act. 1975). A learned single judge of tins Court in Madhavi Amma v. Kalliani Amma (1988(2) KLT 964) and a Division Bench of this Court in Bhaskaran v. Kalliani (1990 (2) KLT 749) have taken the view that the above said S.17 of the Hindu Succession Act. 1956 continues to be in force notwithstanding the Joint Family Abolition Act. 1975. It is the correctness of the said decisions that falls for consideration before us. 2. The basic facts are not in dispute and are as follows-The properly in question belongs to one Lakshmikutty Amma, who belonged to z Nair family and who died on 18-2-1982 leaving behind her. her husband (plaintiff) and her mother. one Chellamma. The dispute is in regard to the succession to the property he'd by Lakshmikutty Amma on the date of her death on 18-2-1982. Her husband is claiming as legal heir under S.15 of the Hindu Succession Act. 1956 on the basis that the effect of the Joint Family Abolition Act. 1975 was to make S.17 of the Hindu Succession Act. 1956 inopera. via. The contest on the other side is raised by defendants 1 to 8 who are the legal heirs of L;k: hmikultyAmma's mother. Chellamma, the said Chellamma having died on 8-9-1982 subsequent to Lakshmikutty Amma's death. Defendants 1 to 8 claim that their mother. Chcllamina became the legal heir to the property of her daughter by virtue of S.17 of the Hindu Succession Act. 1956. They contend that S.17 continues to be operative even after the passing of the Joint Family Abolition Act. 1975. There is no dispute that the plaintiff married Lakshmikutty Amma in April. 1973 and that defendants 1 to 8 are the brothers and sisters of Lakshmikutty Amma and children of Chellamma. 9th defendant is the paternal uncle; of Late Lakshmikulty Amma. 3. 1975. There is no dispute that the plaintiff married Lakshmikutty Amma in April. 1973 and that defendants 1 to 8 are the brothers and sisters of Lakshmikutty Amma and children of Chellamma. 9th defendant is the paternal uncle; of Late Lakshmikulty Amma. 3. The suit was filed for a declaration of title he plaintiff over plaint A schedule properties except in regard to the building in item 4 off-lain? A schedule and plaint B schedule amounts deposited in Bank by Lakshmikulty Amma. Admittedly. items 1.2.3 and 5 of plaint A schedule belong to said Lakshmikutty Amma while plaint B schedule were deposits in her name. Item 4 in the plaint A schedule is a building in Hern 3 alleged to have been put up by defendants subsequent to the death of Lakshmikutty Amma while item 2 is a building in item 1 of plaint A schedule. According to the plaintiff. item 1.3 and 5 were acquired by deceased Lakshmikully Amma with the funds supplied by him and the amounts mentioned in plaint B schedule are deposited by him in the State Bark of India. Changanacherry branch in the name of the deceased and that on her death. defendants 1 to 8 have trespassed into the plaint A schedule properties. It may be noted that Chellamma had filed O.P.71 of 1982 before the Sub Court. Kottayam for grant of a succession certificate in respect of plaint B schedule amounts. The plaintiff got himself impleaded therein and opposed the said application and the said O.P. was dismissed. Chellamma having subsequently died. defendants 1 to 8 got themselves impleaded as additional petitioners in the said application. While the O.P. was pending. the present suit had been filed by the plaintiff and it was because of the filing of the present suit that the O.P. was dismissed declaring that the said dismissal will be subject to the result of the it Though an appeal was filed before the Sub Court against the judgment in the O.P.. that was also dismissed reserving the rights of the parties to be governed by the judgment in the suit. As already stated. the plaintiff rellied on S.15 of the Hindu Succession Act. 1956 while the defendants relied upon S.17 of the Hindu Succession Act. 1956. 4. that was also dismissed reserving the rights of the parties to be governed by the judgment in the suit. As already stated. the plaintiff rellied on S.15 of the Hindu Succession Act. 1956 while the defendants relied upon S.17 of the Hindu Succession Act. 1956. 4. Defendants have filed a joint written statement contending that the plaint A schedule items were the self acquisition of late Lakshmikutty Amma and that plaintiff has not given any money for the acquisition of these properties. 5. The trial court held that plaint A schedule items 1, 2, 3 and 5 and the deposits shown plaint B schedule were the separate properties of Lakshmikutty Amma and that item 4 of plaint Aschedule was unauthorisedly put up in item 3 by the defendants after the death of Lakshmikutty Amma. The trial court also held that S.15 of the Hindu Succession Act. 1956 applied and that S.17 was no longer applicable after the passing of the Joint Family Abolition Act. 1975 and that. therefore. Chellamma could not have claimed any right to the property on the death of her daughter Lakshmikulty Amma and that it was the plaintiff who could claim the property. It was. therefore. held that the plaintiff had title to plaint A schedule item 1.23 and 5 and in regard to plaint B schedule amounts as the legal heir of his wife Lakshmikutty Amma and a decree for possession was granted for plaint A and B schedules. Defendants were directed to remove item 4 of plaint Aschedule within two months from the date of judgment and on failure the plaintiff was allowed to have it removed through the Execution Court at the expenses of the fourth defendant. It is against this judgment that the defendants have preferred this appeal. 6. In this appeal. it is not in dispute that plain! A schedule properties (except item 4) belong to Lakshmikutty Amma. It is on the basis that have to consider whether S.15 would help the plaintiff-respondents or whether S.17 would help the defendants-appellants. 7. Elaborate arguments have been addressed for the appellants by learned counsel. Sri. M. Krishnan Nair and by counsel for the respondent. Sri. C.K. Sivasankara Panicker. As the matter is of considerable importance affecting all those who had been governed by the Marumakkathayam law. we requested other senior members of the Bar to address us if they so desired. 7. Elaborate arguments have been addressed for the appellants by learned counsel. Sri. M. Krishnan Nair and by counsel for the respondent. Sri. C.K. Sivasankara Panicker. As the matter is of considerable importance affecting all those who had been governed by the Marumakkathayam law. we requested other senior members of the Bar to address us if they so desired. Pursuant to our request. Sri. Jagadeesachandran Nair. Sri. T.P. Kelu Nambiar and Sri. S. Wenkatasubramanya Iyer submitted elaborate arguments before us supporting the contention of the appellants that S.17 continues to operate even after the passing of the Joint Family Abolition Act. 1975. We are thankful to them as also to counsel who appeared in the case for the very valuable assistance given to us. 8. It will be noticed that the Marumakkathayam system of law was applicable in the South-western coast of India. in areas which have now become part of the State of Kerala and in some parts which are now within the State of Karnaiaka and the State of Tamil Nadu. What we decide in this case is meant to apply within the State of Kerala inasmuch as for the Joint Family Abolition Act. 1975 extends its operation only within the State of Kerala. We shall now set out the contentions of learned counsel on both sides. 9. It is the contention for the appellants-defendants that S.17 of the Hindu Succession Act. 1956. which relates to the succession to a female dying after the commencement of the Hindu Succession Act. 1956 and who would have been governed by the Marumakkathayam law had the Hindu Succession Act. 1956 not been passed. continues to be governed by S.17 and that the abolition of right by birth. right of survivalship. pious obligation etc. and the abolition of the Travancore Nair Act etc. by the Joint Family Abolition Act. 1975 has no bearing on S.17 of the Hindu Succession Act. It is also argued that the principle of Incorporation of Reference is not attracted to S.17 of the Hindu Succession Act. That Section merely refers to the person who are governed by the Marumakkathayam law on the date of the commencement of the Hindu Succession Act and once that group is identified. they will be governed by S.17 of the Hindu Succession Act and the Joint Family Abolition Act. 1975 cannot indirectly make S.17 inoperative. That Section merely refers to the person who are governed by the Marumakkathayam law on the date of the commencement of the Hindu Succession Act and once that group is identified. they will be governed by S.17 of the Hindu Succession Act and the Joint Family Abolition Act. 1975 cannot indirectly make S.17 inoperative. Their contention further is that the Statement of Objects and Reasons and the reports of the State Law Commission which proceeded the enactment indicate clearly that the State Legislature while passing the Joint Family Abolition Act. 1975 did not intend to disturb the continued operation of S.17 of the Hindu Succession Act. 10. On the other hand. it is contended by learned counsel for the respondent-plaintiff that S.17 of the Hindu Succession Act must be treated as an express amendment to the Travancore Nair Act and other State enactments dealing with succession and on the repeal of the Travancore Nair Act by S.7(2) of the Joint Family Abolition Act. 1975. S.17 gets expressly repealed even otherwise iLgelsimplicdiy repealed on the passing of the Joint Family Abolition Act. 1975. Alternatively. the principle of Incorporation or Reference applies to S.17 of the Hindu Succession Act and that the Marumakkathayam law mentioned in S.17 must be treated as changing from time to time depending upon whatever changes were brought in the said law by the State Legislature and that once the Joint Family Abolition Act. 1975 was passed. the said Marumakkathayam law came to be totally abolished both under S.7 (1) and S.7 (2) of the said Act. and therefore. Section became inoperative. It is also contended that the Hindu Succession Act and (for example) the Travancore Nair Act (in so far as it relates to succession) are in pari materia or arc supplemental to each other and. therefore. the effect of the repeal of the Travancore Nair Act (and other laws) has to be carried into S.17 of the Hindu Succession Act. Once that is done. S.17 becomes inoperative inasmuch as there is no person. after the passing of the Joint Family Abolition Act. 1975. governed by the Marumakkathayam law. That would make S.17 of the Hindu Succession Act inoperative. 11. On the basis of the above contentions. the following points arise for consideration: (i) what are the changes. relevant to the present case. S.17 becomes inoperative inasmuch as there is no person. after the passing of the Joint Family Abolition Act. 1975. governed by the Marumakkathayam law. That would make S.17 of the Hindu Succession Act inoperative. 11. On the basis of the above contentions. the following points arise for consideration: (i) what are the changes. relevant to the present case. made in the marumakkathayam law from time to time by the Parliament or by the Kerala State Legislature. (ii) Whether the Kerala State Legislature. when it made a legislation under Entry 5 of List III to the Seventh Schedule of the Constitution of India by passing the Joint Family Abolition Act. 1975. intended to trench upon S.17 of the Hindu Succession Act. 1956 which was a law passed by the Parliament under the same Entry in relation to testamentary and intestate matters? (iii) Whether S.17 of the Hindu Succession Act. 1956 incorporates an amendment into the Travancore Nair Act and other Statutes and whether subsequent to the repeal of the Travancore Nair Act and other State laws by the State Legislature and by virtue of S.7(2) of the Joint Family Abolition Act. 1975. S.17 of the Hindu Succession Act stands repealed by virtue of the operation of Article 254(2) of the constitution of India? (iv) Whether S.17 of the Hindu Succession Act. 1956 becomes inoperative after the passing of the joint Family Abolition Act. 1975 and if so. it what categories of persons it applies and to what categories of persons it does not apply? (v) What is the position of those persons who were born on or after 1-12-1976 when the Joint Family Abolition Act. 1975 came into force? 12. Point No.l:-Under this Point. we shall make a brief survey of the changes made in the 13. Marumakkathayam system of inheritance and with particular reference to the facts of this case. We shall. however. extract the relevant statutory provisions while dealing with Point No.2. 12(A). It has to be noticed that the Marumakkathayam system of inheritance means a common acomnion ancestress. It is called a matrilineal system of inheritance and is some what different from the patrilineal system of inheritance in the various branches of Hindu law. Various principles of succession were being applied both when a male died or a female died. 12(A). It has to be noticed that the Marumakkathayam system of inheritance means a common acomnion ancestress. It is called a matrilineal system of inheritance and is some what different from the patrilineal system of inheritance in the various branches of Hindu law. Various principles of succession were being applied both when a male died or a female died. in the South-western parts of this country and these principles of succession were generally treated as Marumakkathayam system of inheritance. Before the States Reorganisation Act of 1956 was passed. several legislations had been made by the Provisional Legislatures both in the former State of Travancore and Cochin and former State of Madras to amend the pristine Marumakkathayam law not only in regard to succession but also in regard to marriage. divorce. joint family management etc. The said Statutes were. therefore. governing the law relating to testamentary and intestate succession among Nairs. Ezhavas and other communities. The Nairs were governed by the Travancore Nair Act li of 1100 while the Ezhavas were governed by the-Travancore Ezhava Act III of HOOandsoon. 13. In 1955 and 1956 Parliament came forward with four important Statutes governing Hindus. namely. the Hindu Marriage Act. 1955; the Hindu Succession Act. 1956; the Hindu Minority and Guardianship Act. 1956 and the Hindu Adoption and Maintenance Act. 1956. These Acts were passed after considerable debate over severe! years. So far as the Hindu Succession Act 1956 was concerned. it contained certain provisions amending or modifying the existing law relating to testamentary and intestate successions which were till then governed by the Travancore Nair Act or the Travancore Ezhava Act etc For the aforesaid purposes. the Hindu Succession Act introduced a definition of nsMarumakkathayam law" in S3(h) and modified the law of succession in certain respects in S.7.17 and 30 of the said Act. While S.7 related to the devolution in respect of the undivided interest of a person in the property of a trwad. tavezhee.kutumba.kavaru or illom. S.17 made a separate provision in relation to succession to property of males or females who would have been governed by the Marumakkathayam law if the Hindu Succession Act had not been passed. So far as succession to females. with which we are concerned. S.17 staled that provisions of S.15 relating to succession to a female will have to be applied in the manner mentioned in S.17 (ii). So far as succession to females. with which we are concerned. S.17 staled that provisions of S.15 relating to succession to a female will have to be applied in the manner mentioned in S.17 (ii). S.30 of the Act contains an Explanation permitting interest of a member of a tar wad. tavazhi. illom. kutumba or kavaru to be capable of being disposed of by male or female in accordance with the provisions of Indian Succession Act. 1925 or any other law for the time being in force and applicable to Hindus. 14. Taking the example of the present rase. it will be noticed that if Lakshmikutty Amma. on her death. was governed by the Hindu Succession Act. her mother would be her legal heir under S.17(ii)(a) inasmuch as under that clause. the legal heirs of the properties of the females are only the sons and daughters. and the mother. in the present case. since Lakshmikutty Amma did not have sons or daughters. the properly would go under S. I7(ii)(a) to her mother. Chcllamma. Succession to a female on her death under the Travancore Nair Act in a case where the deceased had no male or female children. would have been governed by S.18 of the Travancore Nair Act. Thai Section stated that on the death of a Nair female leaving no lineal descendants surviving her. the whole of the self-acquired and separate property left undisposed of by herat her death shall devolve on her mothernss tavazhee. S.2 (3) of the Travancore Nair Act had defined "Thavazhee of a female" as "a group of persons consisting of that female and her issue how-low-sq-ever in the female line. or such of that group as are alive". in other words. before the passing of the Hindu Succession Act. 1956. if a Nair female died without Raving any male or female lineal descendants surviving her. her property would have gone to her mother and the mothernss issues how-low-so-ever in the female line. or such of that group as are alive. This succession was altered under S.17 of the Hindu Succession Act to the extent that instead of the property devolving on the mothernss Thavazhee. It would devolve on the mother alone. 15. her property would have gone to her mother and the mothernss issues how-low-so-ever in the female line. or such of that group as are alive. This succession was altered under S.17 of the Hindu Succession Act to the extent that instead of the property devolving on the mothernss Thavazhee. It would devolve on the mother alone. 15. We can notice that the other sub-section of S.17 brought about similar changes in the law of succession mentioned in the Travancore Nair Act and there laws in relation to succession !o males or females who died after the commencement of the Hindu Succession Act and who were. before the said Act. governed by the Marumakkathayam law of succession as specified in the Travancore Nair Act. The question before us is whether upon the passing of the Joint Family Abolition Act. 1975. S.17 of I he Hindu Succession Act stood either repealed expressly or on account of repugnancy or on account of its becoming inoperative. We think that the aforesaid discussion of the general changes made in the Marumakkathayam system of inheritance will be sufficient to understand our discussion under Point 2 to 5. Point No.1 is decided accordingly. 16. Point No.2:- As stated earlier. Lakshrnikutty Amma. in the present case. belonged to a Nair family. The dispute is in relation to succession to her property on her death on 18-2-1982. The question depends upon whether S.17 of the Hindu Succession Act applies or whether the said Section has become repugnant on the passing of the Kerala Joint Hindu Family System (Abolition) Act. 1975. in view of Article 254(2) of the Constitution of India. For the purpose of deciding that question. it is necessary to refer to the relevant statutory provisions contained in the Travancore Nair Act (Regulation 11 of 1100). the relevant provisions of the Hindu Succession Act. 1956 and the relevant provisions of the Kerala Joint Hindu Family System (Abolition) Act. 1975. 17. As stated in Point No.1. at one point of lime. the succession was governed by pristine Marumakkathayam law. Subsequently. the succession came to be governed by the Travancore Nair Act (Regulation II of 1100). That Act dealt with the following subjects: marriage and its dissolution (Chapter II). maintenance and guardianship (Chapter III). intestate succession (Chapter IV). testamentary succession (Chapter V). the tar wad and its management (Chapter VI). the succession was governed by pristine Marumakkathayam law. Subsequently. the succession came to be governed by the Travancore Nair Act (Regulation II of 1100). That Act dealt with the following subjects: marriage and its dissolution (Chapter II). maintenance and guardianship (Chapter III). intestate succession (Chapter IV). testamentary succession (Chapter V). the tar wad and its management (Chapter VI). partition of tar wad properly (Chapter VII) and impartible tarwads (Chapter VIII). Chapter I dealt with definitions. S.1(2) staled that the Travancore Nair Act would apply to all Nairs domiciled in Travancore. and to such Nairs not so domiciled and non- Nairs. whether so domiciled or not. as have. or shall have. marital relation with Nairs domiciled in Travancorc. S.2(2) defines marumakkathayam as the system of inheritance in which descent is traced in the female line. Chapter IV that dealt with intestate succession contained S.11 to 22. Intestate succession on the death of a Nair male was governed by S.11 to 16. Intestate succession on the death of a female member of a Nair family was governed by S.17 to 20. S.21 to 23 dealt with certain other connected matters relating to succession. Testamentary succession in Chapter V was governed by a sing!'. Section that is S.24. There was a saving provision in Section 44 in Chapter IX dealing with supplemental provisions. which reads as follows; "44. Nothing in this Regulation shall - (a) Affect the existing rules of marumakkathayam law. custom or usage except to the extent herinbefore expressly provided for; or From the provisions of the above Travancore Nair Act. it is clear that the said Act made provisions in regard to marriage and its dissolution. maintenance and guardianship. intestate succession. testamentary succession. tarwad and its management. partition of tarwad property and impartible tarwads. It uLo provided in S.44 that the rule of Marumakkathayam law. custom. usage ijxcept to the extent herinbefore expressly provided for. would be saved. 18. After the commencement of the Constitution of India. provisions were made in the Concurrent List (List III) permitting Parliament or the State Legislatures to make various laws in regard to intestate succession and also certain other matters. It is necessary to refer to Entry 5 of List III of the 7th Schedule to the Constitution of India. which reads as follows: "Marriage and divorce; infants and minors; adoption; wills. It is necessary to refer to Entry 5 of List III of the 7th Schedule to the Constitution of India. which reads as follows: "Marriage and divorce; infants and minors; adoption; wills. itestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." So far as "Wills. intestacy and succession" are concerned. Parliament passed the Hindu Succession Act. 1956. The said Act came in to force with effect from 18-6-1956. S.2 of the said Act stated that the said Act would apply to any person. who is a Hindu by religions in any of its forms or developments. including a Virashaiva. a Lingayal or a follower of the Brahmo. Prarthana or Arya Samaj. and to any person who is a Buddhist. Jaina or Sikh By religion. and to any other person who is not a Muslim. Christian. Parsior Jew by religion. unless it was proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. S.3(h) defines nsMarumakkathayam lawns as follows: "3(h): nsMarumakkathayam lawns means the system of law applicable to persons - (a) who. if this Act had not been passed. would have been governed by the Madras Marumakkathayam Act. 1932 (Madras Aet XXII of 1933); the Travancore Nair Act (II) of 1100 K); she Travancore Ezhava Act (III of HOOK); the Travancore Nanjinad Vellala Act (V! of 1101 K); the Travancore Kshutriya Act (VII of 1108 K); the Travancore Krishnanaka Maru-makkathayee Act (VII of 1115 K); the Cochin Marumakkathayam Act (XXXIII of 1113 K); or the Cochin Nair Act (XXIX of 1113 K) with respect to the matters for which provision is made in this Act. or (b) Who belong to any community. she members of which arc largely domiciled in the State of Travancore-Cochin or Madras. as it existed immediately before the 1st November 1956 and who. if this Act had not been passed. or (b) Who belong to any community. she members of which arc largely domiciled in the State of Travancore-Cochin or Madras. as it existed immediately before the 1st November 1956 and who. if this Act had not been passed. would have been governed with respect to the matters for which provision is made in this Act by any system of inheritance in which descent is traced through the female line; but does not include the aliyasanthana law." Section 4 of the Hindu Succession Act has an overriding effect of the said Act and reads as follows: "4. Overriding effect of Act: (1) Save as otherwise expressly provided in this Act (a) Any text. rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) Any other law in force immediately before the commencement of this Act shall cease to apply to Hindus so far as it is inconsistent with any of the provisions contained in this Act." Section 7 deals with devolution of interest in the property of a tarwad. tavazhi. kutumba. kavaruorillom. It is necessary to extract S.7(1). which reads as follows: 7. Devolution of interest in the property of a tarwad. tava/ Jii. kutumba. kavaru or illom:- (1) When a Hindu. to whom the marumakkathayam or nambudiri law would have applied if this Act had not been passed. dies after the commencement of this Act. having at the time of his or her death an interest in the property of a tarwad. tawazhi or illom. as the case may be. his or her interest in the property shall devolve by testamentary or intestate succession. as the case may be. under this Act and not according to the marumakkatayam or nambudiri law. Section 15 of the Hindu Succession Act deals with general rules of succession in the case of female Hindus. and it reads as follows: 15. Genera] rules of succession in the case of female Hindus:- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in S.16 - (a) Firstly. upon the sons and daughters (Including the children of any predeceased son or daughter) and the husband; (b) Secondly. upon the heirs of the husband; (c) Thirdly. Genera] rules of succession in the case of female Hindus:- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in S.16 - (a) Firstly. upon the sons and daughters (Including the children of any predeceased son or daughter) and the husband; (b) Secondly. upon the heirs of the husband; (c) Thirdly. upon the mother and father; (d) Fourthly. upon the heirs of the father; (e) Lastly. upon the heirs of the mother; Section 17 with which we are concerned now reads as follows: "17. Special provisions respecting persons governed by maru-makkathayam and aliyasantana laws.--The provisions of Ss.8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by uk marumakkathayam law or aliyasantana law if this Act had not been passed as if (i) For sub-clauses (c) and (d) of S.8. the following had been substituted. namely: ns(c) Thirdly. if there is no heir of the two classes then upon his relatives. whether agnates or cognatesns. (ii) For clauses (a) to (e) of sub-section (i) 01 S.15. the following had been substituted. namely:--ns(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 lather; and (e) Lastly. upon the heirs of the husband; (iii) Clause (a) of sub-section (2) of S.15 had been omitted. (iv) Section 23 had been omitted." So far as testamentary succession is concerned. the same is governed by S.3Q of the Hindu Succession Act. which reads as follows: "30. Testamentary succcssion-Any Hindu may dispose of by will or other testamentary disposition any properly. which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act. 1925 (39 of 1925) or any other law for the time being in force and applicable to Hindus. Explanation.--! He interest of a male Hindu in a Mitakshara Coparcenary property or the interest of a member of a tarwad. tawazhi. iilom. kutumba or kavaru in the property of the tarwad. tawazhi. illom. kutumba or kavaru shall notwithstanding anything contained in this Act. or in any other le for the lime being in force. Explanation.--! He interest of a male Hindu in a Mitakshara Coparcenary property or the interest of a member of a tarwad. tawazhi. iilom. kutumba or kavaru in the property of the tarwad. tawazhi. illom. kutumba or kavaru shall notwithstanding anything contained in this Act. or in any other le for the lime being in force. be deemed to be property capable of being disposed of by him or by her within the meaning of this Section/ns Therefore Parliament passed the Hindu Succession Act under the heading "wills. intestacy. and succession in Entry 5 of List III to the 7th Schedule to the Constitution of India. It made the above provisions so far as the marumakathayam law was concerned. In view of Art.254(1) of the Constitution of India to the extent of provisions made in the Hindu Succession Act in relation to wills. intestacy and successions. the same shall necessarily override to that extent the corresponding provisions in relation to the said subject matter as contained in the Travancore Nair Act. etc This is clear from Art.254 of the Constitution of India. Art.254 (1) reads as follows: "Art.254:- Inconsistency between laws made by Parliament and laws made by the Legislatures of Slaivi.-(1) If any provision of law made by the Legislature of a State is repugnant so any provision of a law made by Parliament which Parliament is competent to enact. or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List. then. subject to the provisions of clause (2). the law made by Parliament. whether passed before or afl.cr she law made by Hie Legislature of such State. or as the case may be. the existing lav shall prevail and the law made by the Legislature of the State shall. to the extent of -.hs repugnancy. be void." It. will be noticed that the provisions relating to testamentary and intestate succession as contained in chapters IV and V of the Travancore Nair Act. in so far as they are repugnant to any provisions made in the Hindu Succession Act. 1956 would be void. to the extent of repugnancy. la fact. there is no dispute is insofar as his aspect Oi the matter is concerned. 19. The dispute arises in to the position after the passing of the Joint Family Abolition Act. 1975 which came into force with effect from 112-1976. 1956 would be void. to the extent of repugnancy. la fact. there is no dispute is insofar as his aspect Oi the matter is concerned. 19. The dispute arises in to the position after the passing of the Joint Family Abolition Act. 1975 which came into force with effect from 112-1976. The preamble of the said Act says that it is an Act to abolish the joint family system among Hindus in the State of Kerala. Sec; ion 1(2) extends the Act to the whole State of Kcraui. S.2 defines Joint Hindu family follow.;. "Joint Hindu family means any Hindu family with community of property and Includes-- (!) a tarwad or thava/hy governed by the Madras Maru-makkathayam /V-i. 1932. the Travancore Nair Act. 11 of 1100. the Travancore Ezhava Act 111 of 1100. the Nanjinnd vd;.iia Act of 1101. the Travancore Kshatriya Act of 1108. the Travancorenavaka Marumakkathayam Act. VII of 1115. the Cochin Nair Act; XXIX of "1113. the Cochin Marumakkathayam Act. XXXIII of 1113; (2) a kutumba or kavaru governed by the Madras Aliyasanthan? Act. 1949; (3) ansium governed by the Kerala Nambudiri Act. 1958; and (4) an undivided Hindu family governed by the Mitakshara law." Section 3 abolishes the right by birth in the joint family. while Section (4) replaces tenancy in common in respect of joint tenancy rights of the members of the undivided Hindu family with effect from the day of commencement of the Act. In other words. those who were holding property as undivided Hindu family as defined in S.2(1) of the said Act. immediately on the passing of the Act become tenants in common. as if partition had taken place. Sections abrogated the rule of pious obligation of Hindu son. and S.6 dealt with the hability of members of joint Hindu family for debts contracted before the Act and stated that the said hability was not affected. S.7 is a repeal provision and is important. it reads as follows: 7. repeal:- (1) Save as otherwise expressly provided in this Act. any text. rule or interpretation of Hindu Ixiw or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. 2) The Acts mentioned in the Schedule. any text. rule or interpretation of Hindu Ixiw or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. 2) The Acts mentioned in the Schedule. in so far as they apply to the whole or any part of the State of Kerala are hereby repealed." We are of the view that the Kerala Legislature. when it passed the Joint Family Abolition Act. 1975 did not intend to occupy the field relating to "Wills. intestacy and succession" in Entry 5. of List III of the Constitution of India Unless the State Legislature enters upon the said field relating to "Wills. Intestacy and Succession". it cannot be said that State Legislature intended to create any repugnancy between the provisions oft S.17 of the Indian Succession Act and the Joint Family Abolition Act. 1975. 20. This is clear not only from the body of the provisions in the Joint Family Abolition Act. 1975 but is also made clear from the Statement of Objects and Reasons. It is stated as follows: "Parliament has enacted the following Acts for the whole of India: i) The Hindu Marriage Act. 1955; ii) The Hindu Succession Act. 1956; iii) The Hindu Minority & Guardianship Act. 1956; and iv) The Hindu Adoption and Maintenance Act. 1956. As regards matters for which provision has been made in the above Acts. the provisions therein prevail over those in the State enactments. The only topic that has not been dealt with in the above. Acts is "Tarred and its management and partition"." (emphasis supplied) The Statement of Objects and Reasons also refers to two reports of the Kerala Law Commission. The first report of 1966 related to the changes proposed to be made in the Personal Laws of Hindu Marumakkathayees of Kerala while the second report of 1972 related to the changes proposed to be made in the Kerala Namboodiri Act and in the Mitakshara law. In paragraph 40 of the first report. it is stated as follows: "40. Section 17 of the Hindu Succession Act. contains special provisions regarding succession among all those governed by Marumakkathayam and Aliyasanthana laws. In paragraph 40 of the first report. it is stated as follows: "40. Section 17 of the Hindu Succession Act. contains special provisions regarding succession among all those governed by Marumakkathayam and Aliyasanthana laws. Since the provision is applicable alike to all the Marumakkathayis and Aliyasanthanis there is no need to suggest any change to this provision now." It i:. therefore. clear that the Kerala State Legislature. when it passed the Joint Family Abolition Act. 1975 under Entry 5 of List III of the Constitution of India. did not intend to trench upon S.17 of the Hindu Succession Act. 1956. Therefore. there is neither any repugnancy nor implied repeal of S.17 of the Hindu Succession Act by reason of the passing of the Joint Family Abolition Act. 1975. Point No.2 is found accordingly. 21. Point No.3:-- A contention was raised by learned counsel for the respondent-plaintiff that S.17 of the Hindu Succession Act. 1956 was in the nature of an amendment to the Travantore Nair Act and other State Statutes and that the subsequent repeal of the State laws by S.7(2) of the Joint Family Abolition Act. 1975 resulted in the express repeal of S.17 of the Hindu Succession Act. It was pointed out that the latter Act had received the assent of the President of India and. therefore. Art.254(2) of the Constitution of India was attracted and the State Legislation could repeal S.17 of the Central legislation. 22. We are unable to agree with this contention. It is true that S.17 of the Hindu Succession Act creates certain changes in the Travancore Nair Act in relation to intestate succession. That is because of the provisions of Article 254(1) of the Constitution of India. But that does not mean that the provisions of S.17 of the Hindu Succession Act become engrafted into the Travancore Nair Act or other Kerala State Statutes so as to suffer a repeal by virtue of S.7(2) of the Joint Family Abolition Act. 1975. We accordingly hold that there is no express repeal of S.17 of the Hindu Succession Act by the provisions ofS.7(2) of the Joint Family Abolition Act.1975. Point No3 is decided accordingly. 23. Point Nok-This is the central question. We have already held under Point No.2 that S.17 of the Hindu Succession Act. 1956 has not become repugnant to the provisions of the Joint Family Act. 1975 because the State Legislature. Point No3 is decided accordingly. 23. Point Nok-This is the central question. We have already held under Point No.2 that S.17 of the Hindu Succession Act. 1956 has not become repugnant to the provisions of the Joint Family Act. 1975 because the State Legislature. while passing the latter Act. did not intend to trench upon the former. We have also held under point No.3 that there is no express repeal of S.17 of the Hindu Succession Act on account of the passing of the Joint Family Abolition Act. 1975. The only other question would. therefore. be whether on the passing of the Joint Family Abolition Act. 1975. S.17 of the Hindu Succession Act. 1956 has become inoperative or otiose. The submission on behalf of the respondent. in this connection. is that for S.17 of the Hindu Succession Act is to operate. the continued existence of the Marumakkathayam law is necessary so as to identify the females who would have been governed by that law before the passing of the Hindu Succession Act. It is contended that once under S.7(2) of the Joint Family Abolition Act. 1975. the Travancore Nair Act and other analogous State laws are repealed and when under S.7(1). the residuary customary laws are repealed. there is no Marumakkathayam law in existence so that it can be said that the female who died after the commencement of the Joint Family Abolition Act. 1975 was governed by Marumakkaihayam law. Reliance in this connection is made for the respondent on the principles relating to Incorporation and Reference of one Statute into another. Strong reliance is placed in this connection on two decisions of the Supreme Court in Ram Sarup v. Munshi (AIR 1963 SC 553) para.12) and Bajya v.Gopika Bai (AIR 1978 SC 793). Reference is also made by the respondent to the Exceptions referred to in State of Madhya Pradesh v. Narasimhan (AIR 1975 SC 1835). It is stated that the two earlier decisions are directly in point and that so far as the third case is concerned. theexeptions mentioned in para.16 of that judgment would apply inasmuch as S.17 of the Hindu Succession Act is either supplemental to the provisions of the Travancore Nair Act and the other analogous laws in relation to intestate succession; or the two Statutes. namely. the Hindu Succession Act and the Travancore Nair Act and other analogous laws are atleast in pari materia. namely. the Hindu Succession Act and the Travancore Nair Act and other analogous laws are atleast in pari materia. The subsequent changes made to the Marumakkathayam law including its entire repeal by Ss.7(1) and 7(2) of the Joint Family Abolition Act. 1975 should be read into S.17 of the Hindu Succession Act and if so read. there could be no female. after the commencement of the Joint Family Abolition Act. 1975 who could be said to be governed on the date of her death by the Marumakkathayam law. It is also argued for the respondent that once the Marumakkaihayam law has been repealed. a person who is born after the commencement of the joint Family Abolition Act. 1975 will never be considered as being governed by the Marumakkaihayam law any more. If that be so. persons who were governed by that law and who were alive on the passing of the Hindu Succession Act but who died on a date subsequent to the passing of the Joint Family Act. 1975 would also be in the same position. What matters in cases relating to succession is the date of death. On the date of death if a particular system of marumakkathayam law was not in existence. the person could not be said to be governed by that law. That is the contention. 24. On the other hand. it is submitted by the appellants that S.17 of the Hindu Succession Act identifies a group of persons. as on the date of the commencement of the Hindu Succession Act who were governed by a particular marumakkathayam law and that once the said group of persons is fixed. S.17 will continue to operate even assuming that the entire marumakkathayam law is repealed on the passing of the Joint Family Abolition Act. 1975. It is. therefore. argued that the principle of Incorporation or Reference as mentioned in the above said three decisions of the Supreme Court cannot be applied. It is pointed out that this is not a case where S.17 states that a particular marumakkathayam law will govern the succession. On the other hand. S.17 ha<< itself fixed the method of devolution. When S.17 refers to persons who would have been governed by marumakkathayam law on the date of commencement of the Hindu Succession Act. 1956. the Section. it is argued. On the other hand. S.17 ha<< itself fixed the method of devolution. When S.17 refers to persons who would have been governed by marumakkathayam law on the date of commencement of the Hindu Succession Act. 1956. the Section. it is argued. is only referring to a group of persons governed by that law on the date of the commencement of the Hindu Succession Act. 25. It will be noticed that When Parliament passed the Hindu Succession Act. it made certain inroads into the law of succession governing Hindus belonging to various schools of law. So far as females are concerned. it made certain provisions in S.15 of the Hindu Succession Act. 1956. While doing so. the Parliament thought it fit to make a special provision for females who upto the date of passing of the Hindu Succession Act were governed by the marumakkathayam law. and this was done as per S.17. The provisions of S.17 would reveal that the law of succession as contained in the Kerala Statutes. such as those contained in Chapter IV of theTravancore Nair Act were altered. While the materilineal system of succession is the main basis for the marumakkathayam system under the Travancore Nair Act or under other corresponding laws. S.17 of the Hindu Succession Act cut down the rigour of that system of female line of succession. at the same lime maintaining a limited part of the said system For example in the case before us where the deceased female died without any children. but leaving her husband and her mother at the time of her death. her property would have gone under S.18 of the Travancorc Nair Act to the mothernss avazhi which includes the mother and the mothernss issue how-low-so-ever in the female line or such of that group as are alive. while under S.17(ii)(a) of the Hindu Succession Ad. the property of the female would goto the mother of the deceased. Parliament. therefore. intended that group of persons who would have been governed by the marumakkathayam law as on the date of commencement of the Hindu Succession Act. 1956 should be governed by S.17. Those persons could be identified by virtue of the provisions of S.3(h) of the Hindu Succession Act. which defined the marumakkathayam law as the system of law applicable to persons who. 1956 should be governed by S.17. Those persons could be identified by virtue of the provisions of S.3(h) of the Hindu Succession Act. which defined the marumakkathayam law as the system of law applicable to persons who. if the Hindu Succession Act had not been passed would have been governed by the Travancore Nair Act. etc.. with respect to the matters for which provisions were made in the Hindu Succession Act 26. For the purpose of understanding the scope of the words "persons who would have been governed by the marumakkathayam law if the Act had not been passed" occurring in S.17 of the Hindu Succession Act. 1956. we have to find out whether on the passing of the Joint Family Abolition Act. 1975. the marumakkathayam law -both statutory and customary-come to be totally repealed. 27. The question then is what is the effect of Section 7(1) and S.7(2) of the Joint Family Abolition Act. The discussion can be split into three parts: (a) effect of S.7(1) (b) Effect of repugnancy under Article 254(1) when S.17 was enacted. (c) Effect of S.7(2) (A). So far as S.7(1) is concerned. the words "Hindu Law" are used. In our view the words "Hindu Law" are used in the same sense as they are used in S.4(1)(a) of the Hindu Succession Act. In fact S.7(1) of the joint Family Abolition Act and S.4(1)(a) of the Hindu Succession Act. 1956 are identical in words. The marumakkathayam law was contained in the Travancore Nair Act and other analogous statutes made by the Kerala Legislature. and there were provisions in the said statutes such as S.44 of the Travancore Nair Act which saved the pristine Marumakkathayam Law to the extent to which provisions were not made in the Travancore Nair Act. By virtue of S.7(1)oit!ic Joint Family Abolition Act. 1975. there was a repeal of the residuary and customary principles of marumakkathayamlaw. if any. saved under S.44 of the Travancore Nair Act. No doubt. S.7(1) states that the repeal is to the extent provision is made in the Joint Family Abolition Act. 1975. (B) So far as Chapter relating to intestate succession in the Travancore Nair Act and analogous Acts is concerned. to the extent provisions were. made in the Hindu Succession Act. 1956. saved under S.44 of the Travancore Nair Act. No doubt. S.7(1) states that the repeal is to the extent provision is made in the Joint Family Abolition Act. 1975. (B) So far as Chapter relating to intestate succession in the Travancore Nair Act and analogous Acts is concerned. to the extent provisions were. made in the Hindu Succession Act. 1956. the said Sections became repugnant and void by virtue of the joint operation of Article 254(1) of the Constitution of India and S.4(1)(b) of the Hindu Succession Act. (C) Coming to the remaining statutory provisions of the Travancore Nair Act and analogous laws. they stood repealed by virtue of S.7(2) of the Joint Family Abolition Act. 1975. 27A. In other words. by the combined effect of Article 254(1). Hindu Succession Act. 1956 and S.7(2) of the Joint Family Abolition Act. 1975. the statutory laws mentioned in the Schedule to the Joint Family Abolition Act. 1975 stood repealed. So far as the pristine law which was not covered by those Acts is concerned. it stood repealed by S.7(1) to the extent provision is made in the Joint Family Abolition Act. 1975. Of course. onceall this is gone. almost nothing is left under the pristine marumakkathayam law. or the customary and statutory on 1-12-1976. Therefore. learned counsel for the respondent is right to this extent. namely. that the entire marumakkathayam law stood repealed after passing of the Joint Family Abolition Act. 1975. 27B. A contention was raised that the word "Hindu Law" used in S.7(1) is referrable to Hindu law other than the marumakkathayam and other laws and is meant to refer only to the Mitakshara law. We cannot accept this contention. We may here point out that the wordsns Hindu Laws in S.7(1) have to be understood in a broad sense. having regard to S.2 of the Hindu Succession Act. 1956. which dealt with the applicability of that Act to any person who is Hindu by religion. etc. This has been pointed out by Gajendragadkar C.J. in Ysgnapurushodasji v. Muldas. A.I.R 1966 S.C 1119 at 1131 (paragraphs; 40 to 42). It was there stated after referring to the Acts passed under the Hindu Law in 1955 and 1956 that in those Acts the words 'Hindu' was used in abroadns and comprehensive sensens. The marumakkathayam law was considered by Sundara Iyer J. in Krishnan Nair v. Damodaran. A.I.R 1966 S.C 1119 at 1131 (paragraphs; 40 to 42). It was there stated after referring to the Acts passed under the Hindu Law in 1955 and 1956 that in those Acts the words 'Hindu' was used in abroadns and comprehensive sensens. The marumakkathayam law was considered by Sundara Iyer J. in Krishnan Nair v. Damodaran. A.I.R 1916 mad.751 (F.B.) as a school of Hindu law. No doubt. Subba Rao, J. as he then was. in Kochunni V. State of Madras and Kerala. A.I.R. 1960 S.C.1080. at 1099. paragraph 43. made an observation that the above statement has not been accepted by others. The learned judge did not. however. categorically say that the observations of Sundara Iyer. J. were wrong. In any event. having regard to the broad and comprehensive meaning of the word and Hindus in the Hindu Succession Act. 1956. as pointed out by Gajendragadkar. C.J. in the "case already referred to. it must be held that the marumakkathayam law is a school of Hindu law. In fact. S.7 of the Hindu Succession Act itself states as follows: "any Hindu to whom the marumakkathayam or nambudiri law would have applied." Further. the Joint Family Abolition Act. 1975 also states in its preamble that it is an Act to abolish the joint family system among Hindus in the State of Kerala. We therefore hold that the words 'Hindu law' in S.7(1) arc used in a broad and comprehensive sense. so as to attract the residuary marumakkathayam law referable to S.44 of the Travancore Nair Act and other similar provisions of the Kerala Statutes and the said residuary marumakkathayam law stood repealed by S.7(1) of the Joint Family Abolition Act. 1975. So far as the statutory provisions relating to marumakkathayam law are concerned. such as the Travancore Nair Act. etc. they were repealed by S.7(2) of the Joint Family Abolition Act. 1975. Therefore. the entire Marumakkathayam law stood repealed after the Joint Family Abolition Act. 1975 and no part of it can be said to be in existence thereafter. On this. we accept the contention for the respondent-plaintiff. 28. Once we. therefore. come to the conclusion that the Marumakkathayam law stood totally abolished on the commencement of the Joint Family Abolition Act. 1975 the question arises as to the meaning of the words in S.17 "persons who would have been governed by the Marumakkathayam law. On this. we accept the contention for the respondent-plaintiff. 28. Once we. therefore. come to the conclusion that the Marumakkathayam law stood totally abolished on the commencement of the Joint Family Abolition Act. 1975 the question arises as to the meaning of the words in S.17 "persons who would have been governed by the Marumakkathayam law. if this Act had not been passed". In order to be clear. we shall divide the persons who were governed by the Marumakkathayam law into five grous: (i) those who were governed by the Marumakkathayam law and were living as on 18-6-1956 when the Hindu Succession Act, 1956 came into force and died before 1-12-1976 when the Joint Family Abolition Act. 1975 came into force. (ii) those who were so governed by the Marumakkathayam law and living as on 18-6-1956 when the Hindu Succession Act. 1956 came into force and who died on or after 1-12-1976 when the Joint Family Abolition Act. 1975 came into force. (iii) those who were governed by the Marumakkathayam law. i.e.. Travancore Nair Act etc. and were born on or after 18-6-1956 when the Hindu Succession Act. 1956 came into force and who died before 1-12-1976 when the Joint Family Abolition Act. 1975 came into force. (iv) those who were governed by the Marumakkathayam law. i.e.. Travancore Nair Act etc. and were born on or after 18-6-1956 when the Hindu Succession Act. 1956 came into force but before 1-12-1976 and who died after 1-12-1976 when the Joint Family Abolition Act. 1975 came into force. and (v) those who were born into families which were once governed by marumakkathayam law but were born on or after 1-12-1976 when the Joint Family Abolition Act. 1975 came into force and who died later. Though we are concerned with a case falling under category (ii) as the discussion of the legal principles is an integrated one. it has become necessary to deal with these five categories. 29. So far as category (i) and category (iii) are concerned. there is no dispute that S.17 of the Hindu Succession Act applies. The dispute is only in relation to category (ii). category (iv) and category (v) 30. We shall deal with category (ii) and category (iv) in the ensuing discussion. So far as category (v) is concerned. we shall deal with it under Point No.5. 31. We shall. therefore. take category (ii). i.e.. The dispute is only in relation to category (ii). category (iv) and category (v) 30. We shall deal with category (ii) and category (iv) in the ensuing discussion. So far as category (v) is concerned. we shall deal with it under Point No.5. 31. We shall. therefore. take category (ii). i.e.. persons who were governed by the Marumakkathayam system of law as on 18-6-1956 when the Hindu Succession Act. 1956 came into force and who died on or after 1-12-1976 when the Joint Family Abolition Act. 1975 came into force; and category (iv). i.e.. persons who were governed by the Marumakkathayam law. i.e.. Travancore Nair Act etc. and were born on or after 18-6-1956 when the Hindu Succession Act. 1956 came into force (but before 1-12-1976) and who died after 1-12-1976. The thing that is common to these two categories is that 'the persons died after 1-12-1976. 32. In or view. the words "persons who would have been governed by the Marumakkathayam law if this Act had not been passed" are sufficient to identify the category (ii). the group of persons who were living on 18-6-1956 and were governed by the Travancore Nair Act and other Kerala laws and who died on or after 1-12-1976. It is also not difficult to identify the group (iv). the group of persons who were born on or after 18-6-1956. who were governed by the Travancore Nair Act and other Kerala laws. but before 1-12-1976 and died after 30-11-1976. All these persons are. in our view. identifiable for purposes of S.17 of the Hindu Succession Act. 1956 and once they arc so identified. the changes in the Marumakkathayam law. whether by way of amendment or repeal. cannot affect such identification. The continuance of the Travancore Nair Act and other Kerala laws has no bearing on their status as "persons who would have been governed by the Marumakkathayam Law if this Act had not been passed". 33. It is true that in matters relating to succession. the dale of death of the persons is the criterion and it is the law of succession as on that date that will apply. But this principle is not offended for S.17 does not say that the Marumakkathayam law will apply for succession of males and females. On the other hand. S.17 fixes up the devolution. i.e.. the dale of death of the persons is the criterion and it is the law of succession as on that date that will apply. But this principle is not offended for S.17 does not say that the Marumakkathayam law will apply for succession of males and females. On the other hand. S.17 fixes up the devolution. i.e.. the legal heirs of persons who "would have been governed by the Marumakkathayam law as if this Act had not been passed". Now. the persons who were so governed either on 18-6-1956 and who were so governed till 13-6-1976 are anidenlinublc group and their succession is fixed according to the mode prescribed in S.17. Such persons once identified need not. in our view. continue to be governed by the Marumakkathayam law on their death. As already stated. Marumakkathayam law is referred to in S.17 not to govern succession but merely to identify a group of persons. who would be governed by the devolution fixed in S.17. Hence the general principle that the law applicable as on the date of death is relevant is not applicable. 34. It is however. argued for the respondents that the principle of Incorporation or Reference applies to the facts of the case. Reliance was placed on the three decisions of the Supreme Court in Ram Sarup v. Munshi (AIR 1963 SC 533). in Bajra v. Gopikabai (AIR 1978 SC 793) and in State of M.P. v. M.V. Narasimhan (AIR 1975 SC 1835) to say that S.17 does not apply once the marumakkathayam law is repealed. It is argued that these decisions would lead to the inference that the Marumakkathayam law referred to in S.17 of the Hindu Succession Act. 1956 would suffer a repeal on account of S.7 of the Joint Family Abolition Act. 1975 and would cease to apply to relation to persons who died after the commencement of the Joint Family Abolition Act. 1975. We shall. therefore. deal with these three decisions. 35. Ram sarup v. Munshi (AIR 1963 Sc55y) was concerned with the Punjab Preemption Act. 1913. That Act in S.14 gave certain rights of pre-emption in respect of agricultural land sold by a member of an agricultural tribens. Agricultural tribe referred to in S.14 was defined in S.3(4) of the Punjab Pre-emption Act. therefore. deal with these three decisions. 35. Ram sarup v. Munshi (AIR 1963 Sc55y) was concerned with the Punjab Preemption Act. 1913. That Act in S.14 gave certain rights of pre-emption in respect of agricultural land sold by a member of an agricultural tribens. Agricultural tribe referred to in S.14 was defined in S.3(4) of the Punjab Pre-emption Act. 1913 as follows: "member of an agricultural trite and group of agricultural tribes shall have the meanings assigned to them respectively under the Punjab Alienation of Land Act. 1900." The latter Act of 1900 was repealed by the Adaptation of Laws (Third Amendment) Order. 1951. The Supreme Court held that S.14 became inoperative after the repeal of the Punjab Alienation of Land Act. 1900. It was further held that with the repeal of the Punjab Alienation of Land Act. 1900 the restriction imposed by S.14 as regards the availability of the right of preemption to particular agricultural tribes would disappear. In other words. the effect of the removal of the limitation of S.14 would only be that the opening words of S.15 cease to operate. In such circumstances. S.14 would lose all significance because the post-Constitution law does not recognise membership of uib.es as conferring any special rights and consequently the elimination of S.14 would leave S.15 without the limitation originally imposed upon it. In our view. the said decision has no application to the facts of the case before us. Their Lordshis held that being a member of an 'agricultural tribe' was a necessary. condition for a right of pre-emption on the date of the actual sale. It was not a rase where the members of the agricultural tribe were to be identified as on an earlier date. We. therefore. hold that the said decision of the Supreme C burl is clearly distinguishable on facts. 36. The case in Hajya v. Gopikabai (AIR 1978 SC 793) may appear at the first blush to support the case of the respondent. But a closer examination would. in our opinion. show that the said decision is also clearly distinguishable. In that case succession to certain rights of tenure holders was covered by S.151 of the M.P. Land Revenue Code. 1954 which came into force on 5-2-1955. The section read as follows: "Subject to his personal law. the interest of a tenure-holder shall on his death pass by inheritance. survivorship or bequest. In that case succession to certain rights of tenure holders was covered by S.151 of the M.P. Land Revenue Code. 1954 which came into force on 5-2-1955. The section read as follows: "Subject to his personal law. the interest of a tenure-holder shall on his death pass by inheritance. survivorship or bequest. as the case maybe." Subsequent to the said Code of 1954. the Hindu Succession Act. 1956 came into force. The appellant claimed that even though the widow. Surji died on 6-11-1956. subsequent to the commencement of the Hindu Successsion Act. 1956. her husband's reversioners - (her husband having died in 1936) were entitled to succeed to the property. This was on the basis that the succession would be governed by personal law applicable as on 5-2-1955 when the M.P. Land Revenue Code came into force. On the other hand. it was con tended for the respondents who were the sister's daughters of the last male member that if the provisions of the Hindu Succession Act applied. the widow of the last male member Surji had become the absolute owner of the property. and on her death in 1956. the legal heirs of the estate had to be identified on the basis of S.15(1)(b) of the Hindu Succession Act. the properly having been inherited by the husband of the widow. Thereafter 3.16. Rule 3 would apply and the devolution would benotto the reversioners but to the husband's heirs under the Hindu Succession Act who would have been entitled to the husband's property. if the husband had died intestate immediately after the death of Surji. In other words. the appellant contended that the law of succession which was in force on 5-2-1955 became incorporated into the M.P. Land Riven ue Code in S.151. The Supreme Court affirmed the view of the High Court att v- ' % ' the lavv that would be applicable was personal law as stated in S.151 and that as on the date of death of the widow Surji. namely. 6-11-1956. and not the law as <»n the date when the M.F. Land 1? veaue Code came into force. It is to be noted that t he Supreme Court made reference to the Corpus Juris Secundum. Vol.82. paragraph 370 at page 848 as follows: "A well-established exec lion to. or qualification of. namely. 6-11-1956. and not the law as <»n the date when the M.F. Land 1? veaue Code came into force. It is to be noted that t he Supreme Court made reference to the Corpus Juris Secundum. Vol.82. paragraph 370 at page 848 as follows: "A well-established exec lion to. or qualification of. the general rule exists where the reference in an adopting statute is to the law generally which governs the particular subject. ind not to any specific statute or part (hereof. in such case the reference will be held to include the law as it stands al the time it is sought to be applied with all the changes made from time to time at least as far as t he changes are consistent with the purpose of the adopting statute." I1 was pointed out by their Lordshis: that in view of the words 'personal law' used in S.151 of the M.P. Land Revenue Code. 1954. the personal law as obtaining from time to time would be the law applicable and viewed in that light the personal law would be the law applicable to Surji as on the date of her death. 37. In our opinion. the above said decision is c1 carry distinguishable. ln S.151 of the K1.P. Land Revenue Code. 1954. the statute did not specifically fix a particular mode of devolution On the other hand. it said that the devolution would be as per the personal law applicable to the parties. In such a case there could be no doubt that the personal law as on the date of death of a particular person would be the law applicable so far as the succession was concerned It would not be the personal law as on the date when S.151 itself was created. under the M.P. Land Revenue Code. 1954. In the present case. S.17 does not allow the mode of succession to be decided with reference to any personal law. The section itself fixes the mode of devolution in the case of males and females. In fact. S.17 mentions the persons on whom the property would devolve. The mode of devolution is not left indefinite to be governed by a personal law which would be changing from time to time. The section itself fixes the mode of devolution in the case of males and females. In fact. S.17 mentions the persons on whom the property would devolve. The mode of devolution is not left indefinite to be governed by a personal law which would be changing from time to time. The limited scope of applicability of the personal law in S.17 is in relation to iking of the group of people who would be governed by S.17 of the Hindu Succession Act. If. therefore. the mode of devolution is not referable to any personal law. which would change from time to lime. and what all was done under S.17 with reference to a personal law was to fix a group of persons. then the persons so identified would. in our view. be governed by S.17 of the Hindu Succession Act. even if they died after the total repeal of the marumakkathayam law. In our view. therefore. the above decision is clearly distinguishable. We are also not satisfied that there is a legislation by Incorporation or Reference involved in this case. In the aforesaid case. the Supreme Court observed: "..... Broadly speaking. legislation by referential incorporation falls in two categories: First. where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second. where a statute incorporates by general reference the law concerning a particular subject. as a genus. In the case of the former. the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of the latter category. it may be presumed that the legislative intent was to include all the subsequent amendments also. made from time to time in the generic law on the subject adopted by general reference." 38. We then come to the decision in State of M.P. V. M.V. Narasimhan (AIR 1975 SC 1835). In that case an employee of the Heavy Electricals India Limited was sought to be proceeded against under the Prevention of Corruption Act. 1947. The question arose whether the definition of 'public servant' in the Indian Penal Code. 1860 which was engrafted into the Prevention of Corruption Act would take-in the susequent amendments to the definition of 'public servant' in the Indian Penal Code by virtue of the Criminal Law (Amendment) Act. 1958 and the Anti-Corruption Laws (Amendment) Act. 1964. 1947. The question arose whether the definition of 'public servant' in the Indian Penal Code. 1860 which was engrafted into the Prevention of Corruption Act would take-in the susequent amendments to the definition of 'public servant' in the Indian Penal Code by virtue of the Criminal Law (Amendment) Act. 1958 and the Anti-Corruption Laws (Amendment) Act. 1964. There two amendment Acts had only amended the provisions of the Indian Penal Code. The Supreme Court dealt elaborately with the principle of incorporation by reference and advened to the leading cases in Clarke v. BradLaugh (1881) 8 QBD 63). Secretary of State for lndian Council v. Hindustan Cooperative Society Ltd. (AIR 1931 PC 149) and other cases. Their Lordshis pointed out that in the case of incorporation of a particular provision in a latter Act with reference to an earlier Act. the incorporated provision becomes an independent provision of the latter Act and is not affected by any changes in the earlier Act. However. there are four exceptions to such a rule. Adverting to the exceptions. the Supreme Court observed in paragraph 16 as follows: "On a consideration of these authorities. therefore. it seems that the following proposition emerges: Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle. however. will not apply in the following cases: - (a) Where the subsequent Act and the previous Act are supplemental to each other; (b) Where the two Acts are in pari materia; (c) Where the amendment in the previous Act if not imported into the subsequent Act also. would render the subsequent Act wholly unworkable and ineffectual; and. (d) Where the amendment of the previous Act. either expressly or by necessary intendment. applies the said provisions to the subsequent Act." The Supreme Court while holding that the definition of 'public servant' in the Indian Penal Code became incorporated into the Prevention of Corruption Act. 1947. proceeded to consider whether. notwithstanding the said incorporation. the subsequent amendment to the definition of 'public servant' in Indian Penal Code should be applied to the definition of 'public servant' in the Prevention of Corruption Act. 1947. 1947. proceeded to consider whether. notwithstanding the said incorporation. the subsequent amendment to the definition of 'public servant' in Indian Penal Code should be applied to the definition of 'public servant' in the Prevention of Corruption Act. 1947. A contention vas raised before their Lordshis that inasmuch as the Prevention of Corruption Act and the Indian Penal Code were pari materia. therefore. amendments to the Indian Penal Code would automatically apply to the definition of 'public servant' in the Prevention of Corruption Act. This contention was rejected on the basis that the two statutes were not in pari materia. It was then contended that the provisions of the Prevention of Corruption Act were supplemental to the provisions of the Indian Penal Code. and on that basis the amendment to the provisions of the Indian Penal Code would affect the definition of 'public servant' in the Prevention of Corruption Act. This contention was accepted and the case was treated as one falling within the first of the above exceptions. namely. where the subsequent Act (Prevention of Corruption act) and the previous Act (Indian Penal Code) were supplemental to each other. 39. The contention of the learned counsel for the respondents is that in the case before us the principle of incorporation applies and therefore it is necessary to test whether the exceptions laid down by the Supreme Court in the above said decision would apply to the facts of the case. It is pointed out that the Travancore Nair Act and the rnarumakkathayam law was the previous law. and the subsequent legislation was the Hindu Succession Act. Once the Travancore Nair Act is repealed by S.7(2) of the Joint Family Abolition Act. 1975. it is contended that S.17 will cease to apply any longer as there is no person who can be said to be governed by the Marumakkathayam law as defined in S.3(h) of the Hindu Succession Act. It is pointed out that the Travancore Nair Act in so far as succession is concerned and the Hindu Succession Act are either in pariamateriatoeach other or supplemental to each other. 40. In our view. the question as to whether the case will fall within the exceptions to the rule of incorporation will depend upon whether the principle of incorporation itself is applicable to the facts of the case. 40. In our view. the question as to whether the case will fall within the exceptions to the rule of incorporation will depend upon whether the principle of incorporation itself is applicable to the facts of the case. If the principle of incorporation is in itself not applicable the facts of the case. then. in our view. there is no question of the present case falling within any of the exceptions mentioned in the decision in State of M.P. v. M.V. Narasimhan (supra). 41. In our view. the principle of Incorporation is not at all applicable to the facts of the case. Here. we are not. as stated earlier. concerned with a situation where the very mode of devolution is on the basis of the personal law of Marumakkathayam. If S.17 stated that the mode of devolution would be according to the Marumakkathayam law. then it could be treated that the mode of succession was governed by the incorporated law. Then the question could arise whether the exceptions to the general principles of incorporation were attracted. In the present case. S.17 does riot lay down any principle of devolution generally applicable. On the other hand the Section itself fixes the mode of devolution in a particular manner. The Section only deals with the question of identification of a group of persons. who would have been governed by the Marumakkathayam law as mentioned in S.3(h) of the Hindu Succession Act. In our view, therefore. the principle of Incorporation itself does not apply to the facts of the case and. therefore. there is no question of considering whether any exception in relation to the said principle applies to the facts of this case. Therefore. State of M.P. v. Narasimhan (supra) is clearly not attracted to the facts of this case. 42. A contention was raised for the respondent that on the basis of the words "if this Act had not been passed" in S.3(h) and S.17 of the Hindu Succession Act. 1956. a legal fiction has been created and that fiction has to be carried to the logical limits irrespective of the consequences. It is contended that if such a fiction comes into play and the Hindu Succession Act is to be deemed as not passed for the purpose of identifying the group of persons. mentioned in S.17. 1956. a legal fiction has been created and that fiction has to be carried to the logical limits irrespective of the consequences. It is contended that if such a fiction comes into play and the Hindu Succession Act is to be deemed as not passed for the purpose of identifying the group of persons. mentioned in S.17. S.4 of the Hindu Succession Act also goes out of the picture and consequently the Chapter relating lointcstatc succession in theTravancore Nair Act and other Statutes would have to be treated as in existence (notwithstanding their having been otherwise repugnant to the provisions of the Hindu Succession act). and that S.7(2) of the Joint Family Abolition Act. 1975 has to be applied. It is then slated that the Chapter relating to intestate succession in the Travancore Nair Act also would then stand repealed expressly by S.7(2) of the Joint Family Abolition Act. 1975 and there would be no person who could be governed by the Travancore Nair Act or similar Acts for the purpose of being governed thereby. It is said that would result in no person being governed by the Marumakkathayam law after S.7(2) of the Joint Family Abolition Act. 1975 applied. 43. In our opinion. this contention cannot be accepted. It is well settled that ctcb in cases where a Section is created. the Court must bear in mind the purpose for which the fiction is created. We need not quote any authority for this proposition. (per James Q. in Experts Walton In re Levy (1881) 17 Ch. D. (S.R. Das. J. in State of T.C. v. Shanmugha Wias Cashewnut Factory: AIR 1953 SC 333; Bengal Immunity Co. Ltd. v. State of Bihar: AIR 1955 SC 661 at 680). In fact. in M.K. Balakrishna Menon v. Asst. Controller of Estate Duly (AIR 1971 SC 2392 at 2395). it was held by the Supreme Court that the fiction created in SJ(3) of the Hindu Succession Act. 1956 by the words "as if the sthanam property had been divided per capita immediately before the death of sthanamdar among himself and all the memfceis off the family". was introduced for the purpose of determining the shares of the members of the family and heirs of the sthanambar on his death but not for creating a division during lite lifetime of the sthanamdar. was introduced for the purpose of determining the shares of the members of the family and heirs of the sthanambar on his death but not for creating a division during lite lifetime of the sthanamdar. It was held that the opening words of the Section made ft dear that during his lifetime. he holds the entire sthanam and there is no factual division will be was living and that on the death of the sthanamdar. the entire sthanam property devote! on. the members and heirs. and. therefore. the entire properly was held hable to payment of estate duty and for that purpose. the fiction in S.7(3) did not apply. 44. The fiction here in S.17 of the Hindu Succession Act. 1956 is. in our view. limited to ascertaining the group of persons who would have been governed by the Marumakkathayam law. had the Hindu Succession Act. 1956 not been passed. Obviously. there would be people governed by the Marumakkathayam law till 1-12-1976. when (bat few statutory and customary was repealed. The fiction stos there and does not extend to create a vacuum. The argument that the fiction extends for all purposes. that if the Hindu Succession Act. 1956 was to be forgotten altogether including S.4 thereof and thealhe Intestate Succession Chapter in (say) the Travancorc Nair Act comes back into it and then gets repealed by S.7(2) on 1-12-1976 and then there would be no Marumakkathayam taw and no person governed by i!. would lead us nowhere. If S.17 becomes in operative to such a wider fiction and the Chapter relating to Intestate succession in (say) the Travancorc Nair Act etc. also stand repealed by S.7(2) of the Joint Family Abolition Act. 1975. then we would be left with a situation where there is no law of succession. because one (S.17) is treated as inoperative and the other (the succession law in Travancore Nair Act) has got repealed. That is why we say. the fiction should not be used in a wider manner but should be confined within its purpose. namely. to identify the group of persons. as stated! above. We would. therefore. confine the fiction within the limits of its above said purpose. 45. In the result. That is why we say. the fiction should not be used in a wider manner but should be confined within its purpose. namely. to identify the group of persons. as stated! above. We would. therefore. confine the fiction within the limits of its above said purpose. 45. In the result. as Lakshmikutty Amma was in existence as on 18-6-1956 wfarnihe Hindu Succession Act caine into force and she belonged to an identified group of persons who were governed by the Marumakkathayam law as on 18-6-1956. the devolution upon her death will be governed by S.17 of the Hindu Succession Act and the abolition of Marumakkathayam system by the Joint Family Abolition Act. 1975 does not have any hearing on the applicability of S.17 of the Hindu Succession Act. 1956. 46. It is then argued for the respondent that when S.7 of the Hindu Succession Act. 1956 has become inoperative on the passing of the Joint Family Abolition Act. 1975. in like manner. S.17 must also be deemed to have become inoperative. We are unable to agree. The two Sections stand on a different footing. So far as S.7 is concerned. it deals with succession to an undivided interest in a terwad. tavezhee. kutumba. kavaru or illom. It may be that on account of the abolition c t right by birth in S.3 and the immediate conversion of joint tenancy into tenants-in-common by S.4. there is no undivided interest in the tarwad. tavazhee. kutumba. kavaru or illom. so far as the Maruntakkathayam law in Kerala State is concerned. That is because there is no longer any undivided interest in property in regard to which the law of succession stated in S.7 can apply. In other words. the type of property to which it can apply is no longer there. But. that analogy. in our view. cannot apply to S.17 of the Hindu Succession Act. Once the group of persons who would be governed by the Marumakkathayam law and who were living on 18-61956 when the Hindu Succession Act. 1956 came into force had been identified as on 18-6-1956. the feet that on the date of their death subsequent to the commencement of the Joint Family Abolition Act. 1975. the said Marumakkthayam law was not in force would not matter. A situation of a particular type of interest not existing as in the case of S.7. does not arise here. We have. the feet that on the date of their death subsequent to the commencement of the Joint Family Abolition Act. 1975. the said Marumakkthayam law was not in force would not matter. A situation of a particular type of interest not existing as in the case of S.7. does not arise here. We have. in fact. already given elaborate reasons as to why S.17 continued to be in force in respect of persons inspite of the repeal of the Marumakkathayam law. 47. We. therefore. hold that on the passing of the Joint Family Abolition Act. 1975. S.17 of the Hindu Succession Act. 1956 does not become inoperative in respect of group (ii). that is the group of person as who were living on 18-6-1956 when the Hindu Succession Act. 1956 came into force and who died on or after the commencement of the Joint Family Abolition Act. 1975. It also does not become inoperative in respect of the group (iv) that is the group of persons who were born on or after 18-6-1956 but before 1-12-1976 and who died on or after the commencement of the Joint Family Abolition Act. 1975. Point No.4 is held accordingly. 48. Point No.5:- It may be asked whether it is necessary to consider the cases of personborn on or after 1-12-1976. on which day the Joint Family Abolition Act. 1975 came into force and who died later. We may state that this issue has necessarily fallen for decision for the following reason. As stated earlier. the entire discussion is based on a logic and a reason and is an integrated one. For the purpose of deciding the meaning of the words "persons who would have been governed by the Marumakkathayam law as if this Act had not been passed". we have to lay down who are within these words and who are outside of it. 49. So far as this category of persons who were born on or after 1-12-1976 and who died later. there was no right by birth. survivorship or practically any vestige of the Marumakkathayam law. at their birth or death. Therefore. in our view. in the case of these persons. male or female. S.17 of the Hindu Succession Act. 1956 cannot apply. The principles applicable to other Hindus as stated in the Hindu Succession Act. 1956 would then apply. 50. there was no right by birth. survivorship or practically any vestige of the Marumakkathayam law. at their birth or death. Therefore. in our view. in the case of these persons. male or female. S.17 of the Hindu Succession Act. 1956 cannot apply. The principles applicable to other Hindus as stated in the Hindu Succession Act. 1956 would then apply. 50. We may finally summarise as follows: (1) S.17 of the Hindu Succession Act. W56 will govern the law of succession on the death of males or females who were governed by the Marumakkathayam system if such persons were - (1) living as on 18-6-1956 when the Hindu Succession Act. 1956 came into force and they died before 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act. 1975 came into force. (ii) living as on 18-6-1956 when the Hindu Succession Act. 1956 came into force and who dies on or after 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act. 1975 came into force. (iii) born on or after 18-6-1956 when the Hindu Succession Act. 1956 came into force and who died before 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act. 1975 came into force. and (iv) born on or after 18-6-1956 when the Hindu Succession Act. 1956 came into force but before 1-12-1976 and who died on or after 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act. 1975 came into force. (2) S.17 of the Hindu Succession Act. 1956 will not. however. govern the law of succession of males or females if such persons were born on or after 1-12-1976 and died thereafter. Succession to them would be governed by the provisions of the Hindu Succession Act. 1956 other than the provisions applicable to those governed by the Maru-makkathayam system. (3) We approve the decision of the learned single judge in Madhavi Amma v. Kalliani Amma (1988 (2) KLT 964) and of the Division Bench in Bhaskaran v. Kalliani (1990 (2) KLT 749). We over-rule the observations to the contrary in Saraswathy Amma v. Radhamma (1990 (2) KLT 183). 51. The case before us comes under principle 1 (ii) referred to above and. therefore. succession to Lakshimikutty Amma will be as provided in S.17 of the Hindu Succession Act. 1956. As she had no children. male or female. S.17(ii)(a) applies and Chellamma. her mother succeeded to her properties and not her husband. 51. The case before us comes under principle 1 (ii) referred to above and. therefore. succession to Lakshimikutty Amma will be as provided in S.17 of the Hindu Succession Act. 1956. As she had no children. male or female. S.17(ii)(a) applies and Chellamma. her mother succeeded to her properties and not her husband. S.15 of the Hindu Succession Act. 1956 does not apply. On the death of Chellamma the properties devolve on defendants 1 to 8. 52. In the result. the appeal is allowed and the suit is dismissed. but in the circumstances. there will be no costs. Krishnamoorthy, J. 53. In spite of the persuasive arguments by counsel for the appellants and other counsel who advanced arguments in the case and even after seeing the judgment prepared by My Lord the Chief Justice. I do not feel myself persuaded to agree with the decree passed by My Lord the Chief Justice in the case. Facts of the case and contentions raised by parties are set out in his judgment and it is not necessary to repeat the same. 54. In the light of the contentions raised. the following points arise for consideration: 1) Whether S.17 of the Hindu Succession Act is repealed by the provisions contained in the Kerala Joint Hindu Family System (Abolition) Act. 2) Whether the continued existence of the system of Marumakkathayam Law a necessary pre-condition for the operation of S.17. 3) Whether S.17 of the Hindu Succession Act applies to persons who were governed by the respective enactments. irrespective of the fact whether they are governed by Marumakkathayam law or not on the date when succession opens. 4) Whether the Marumakkathayam System of law survives after the coming into force of the Kerala Joint Hindu Family System (Abolition) Act. 5) Whether S.17 is operative after 1-12-1976 in the light of the findings on points 1 to 4. 55. Point No.l: In regard to intestate succession among marumakkalhayee before the coming into force of the Hindu Succession Act they were governed by the respective State enactments. and Nairs of Travancore. with whom we are concerned in this case. were governed by the Travancore Nair Act. S.4(1) (a) of the Hindu Succession Act provides that the provisions contained in the Act will have overriding effect over any text. and Nairs of Travancore. with whom we are concerned in this case. were governed by the Travancore Nair Act. S.4(1) (a) of the Hindu Succession Act provides that the provisions contained in the Act will have overriding effect over any text. rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act. Clause (b) provides that any other law in force immediately before the commencement of the Hindu Succession Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Hindu Succession Act. From the above Section it is clear that the provisions contained in the Travancore Nair Act in regard to intestate succession were given a go-by and were superseded by the provisions contained in the Hindu Succession Act. So far as maru-makkathayees arc concerned. a special provision was enacted in the Hindu Succession Act. namely S.17 which provided for intestate succession of both male and female maru-makkathayees. lt is thus a case of repeal of the Travancore Nair Act in so far as it related to intestate succession and re-enactment of the law. In the view of the matter. it is not possible to agree with the contention of counsel for the respondent-plaintiff that Hindu Succession Act is only an amending Act of the Travancore Nair Act or the other State enactments in regard to the law of intestate succession. but an independent enactment providing for intestate succession among the Hindus including marumakkathayces. The repeal of the Travancore Nair Act or other State enactments by S.7 of the Kerala Joint Hindu Family System (Abolition) Act will not by itself affect the operation of S.17 of the Hindu Succession Act Moreover. the Kerala Joint Hindu Family System (Abolition) Act is not intended to touch the topic of succession and in that view of the matter also it has to be held that S.17 cannot be said to bnc repealed by the provisions contained in the Joint Hindu Family System (Abolition) Act. I accordingly hold that S.17 of the Hindu Succession Act is not repealed by the provisions contained in the Kerala Joint Hindu Family System (Abolition) Act. I accordingly hold that S.17 of the Hindu Succession Act is not repealed by the provisions contained in the Kerala Joint Hindu Family System (Abolition) Act. But the question whether S.17 has become inoperative by virtue of the aforesaid Act is a different question which will be considered in the subsequent part of this judgment. 56. Points 2 and 3: these two points can be considered together. The question to be considered is as to whether S.17 of the Hindu Succession Act can have any operation after the coming into force of the joint Hindu Family System (Abolition) Act. 1975. A large population of Kerala belonging to certain communities were following a system of law alled 'Marumakkathayam law" the characteristic feature of which is that the descent is traced in the female line unlike the ordinary Hindu Mitakshara law. That system of law was a body of customs and usages which received judicial recognition. The joint family is called a tarwad. The customary Marumakkathayam has been materially altered by Statutes in Malabar (which was part of Madras State before 1-11-1956). in Travancore and in Cochin -the three component parts of the present Kerala State. Most of the enactments contain provisions regarding marriage and its dissolution. maintenance and guardianship. intestate succession. testamentary succession and tarwad and its management and partition. In pursuance to the directive principles contained in Art.44 of the Constitution of India. Parliament passed the following four enactments applicable for the whole of India: 1. The Hindu Marriage Act. 1955 2. The Hindu Succession Act. 1956 3. The Hindu Minority and Guardianship Act. 1956 4. The Hindu Adoptions and Maintenance Act. 1956 These Acts apply to all Hindus including the Marumakkathayees of Kerala and the Central Acts have overriding effect over the State enactments as regards the matters provided for by the Central Acts (S.4 of the Acts mentioned as items 1, 2 and 4 and S.5 of item 3). In this case we are concerned with Hindu Succession Act alone and so it is necessary to consider the provisions therein with special reference to marumakkalliayees and to the extent it is necessary for this case. The Act is a codifying Act dealing with intestate succession among Hindus throughout India. S.4 of the Hindu Succession Act is to the following effect: "4.(1) Save as otherwise expressly provided in this Act; ATM (a) any text. The Act is a codifying Act dealing with intestate succession among Hindus throughout India. S.4 of the Hindu Succession Act is to the following effect: "4.(1) Save as otherwise expressly provided in this Act; ATM (a) any text. rule or interpretation of Hindu law or any custom or usage as pan of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in ibis Act: (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of-doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holding." S.6 of the Hindu Succession Act provides for devolution of interest in coparcenary property. General rules of succession in the case of males 'tire provided for in S.8. S.9 and 10 provide for the order of succession among heirs in the Schedule and the distribution of property among heirs in class I of the Sdied uic. S.15 of the Act contains the general rules of succession in the case of female Hindus and "treads: "15.(1) The property of a female Hindu dying iiuessate shall devolve according to the rules set out in S.16. (a) firstly. upon the sons and daughters (including the children of any pre-deceased son. or daughter) and the husband; (b) secondly. upon the heirs of the husband; (c) thirdly. upon the mother and father: (d) fourthly. upon the heirs of the father; and . (e) lastly. upon the heirs of the mother. (2) Notwithstanding anything contained in sub-s.(1). (a) any property inherited by a female Hindu from her father or mother shall devolve. in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-s.(1) in the order specified therein. but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve. in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-s.(1) in the order specified therein. but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve. in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-s.(1) in the order specified therein. but upon the heirs of the husband." S.16 of the Act provides for the order of succession and manner of distribution among heirs of a female Hindu. 57. In the matter of devolution of the interest of a Hindu to whom the Maru-makkathayam law would have applied if the Hindu Succession Act is not passed in the property of a tarwad. and in regard to succession of persons (both male and female) who would have been governed by the Marumakkathayam law if the Hindu Succession Act had not been passed. special provision is made in the act the former in S.7(1) and the latter in S.17. Those Sections read as follows: 7(1) When a Hindu to whom the marumakkathayam or Nambudri law would have applied if this Act had not been passed dies after the commencement of this Act. having at the time of his or her death an interest in the properly of a iarwad. tavazhi or illom. as the case may be. his or her interest in the property shall devolve by testamentary or intestate succession. as the case may be. under this Act and not according to the marumakkathayam or nambudri law." "17. The provisions of Ss.8, 10, 15 and 23 shall have effect in relation 10 persons who would have been governed by the marumakkathayam law or atyasantana law if this Act had not been passed as if (i) for sub-clauses (c) and (d) of S.8. the following had been substituted. namely: "(c) thirdly. if there is no heir of any of the two classes. then upon his relatives. whether agnates or cognates." (ii) for clauses (a) to (e) of sub-section (1) of S.15. the following had been substituted. namely: "(a) firstly. upon the sons and daughters (including the Children of any predeceased son of daughter) and the mother: (b) secondly. namely: "(c) thirdly. if there is no heir of any of the two classes. then upon his relatives. whether agnates or cognates." (ii) for clauses (a) to (e) of sub-section (1) of S.15. the following had been substituted. namely: "(a) firstly. upon the sons and daughters (including the Children of any predeceased son of 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 (c) Instly. upon the heirs of the husband"; (iii) clause (a) of sub-section (2) of S.15 had been omitted; (iv) S.23 had been omitted." . 58. In order 10 understand the applicability and scope of these two Sections. it is also necessary to note the definition of "Marumakkathayam law" contained in S.3(h) of the Hindu Succession Act to the following effect: "3(1) In this Act. unless the context otherwise requires TM XXX XXX XXX (h) "marumakkathayam law" means the system of law applicable to persons-fa) who. if this Act had not been passed. would have been governed by the Madras Marumakkathayam Act. 1932; the Travancore Nayar Act; the Travancore Ezhava Act; the Iravancore Nanjinad Vellala Act; the Travancore Kshatriya Act; the Travancore Krishnavaka Marumakkathayee Act; the Cochin Marumakkathayam Act; or the Cochin Nayar Act with respect to the matters for which provision is made in this Act; or (b) who belong to any community. the members of which are largely domiciled in the State of Travancore-Cochin or Madras as it existed immediately before the 1st November. 1956. and who. if this Act had not been passed. would have been governed with respect to the matters for which provision is made in this Act by any system of inheritance in which descent is traced through the female line; but does not include the aliyasantana law;" (In this judgment the enactments mentioned in the above section will hereinafter be referred to as State enactments). 59. Thus from the above provisions it is clear that intestate succession of Hindus is governed by Ss.8 and 15 of the Act. S.17 is a special provision in regard to succession among marumakkathayees and in effect it operates as a proviso to Ss.8.10 and 15. 60. In 1976 the Kerala Legislature enacted the Kerala Joint Hindu Family System (Abolition) Act. 1975 (Act 30 of 1976). S.17 is a special provision in regard to succession among marumakkathayees and in effect it operates as a proviso to Ss.8.10 and 15. 60. In 1976 the Kerala Legislature enacted the Kerala Joint Hindu Family System (Abolition) Act. 1975 (Act 30 of 1976). The Act received the assent of the President and came into force on 1-12-1976. The Act abolished the entire joint family system among Hindus governed by Mitakshara law as also marumakkathayees governed by the various State enactments. (See definition of 'Joint Hindu Family' in S.2 ). By S.3 right by birth which is inherent in every member of a joint family under Hindu law and every member of tarwad following Marumakkathayam law was abolished. By S.4 joint tenancy was abolished and instead the members of a coparcenary or tarwad holding joint family property on the date of coming into force of the Act were made tenants-in-common from that day holding his or her share separately as full owner. S.5 has done away with the rule of pious obligation of a Hindu son. with certain exceptions and S.6 saved the hability of members of joint family for the bets binding on it. S.7 is the repealing Section which has a bearing on the case and it is advantageous to reproduce the same:- 7. - (1) Save as otherwise expressly provided in this Act. any lexi. rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect 10 any matter for which provision is made in this Act. (2) The Acts mentioned in the Schedule. in so far as they apply to the whole or any part of the State of Kerala. are hereby repealed." j (The Schedule includes all the State enactments mentioned in S3 (h) of the Hindu Succession Act) 61. The question to be considered is as to whether for the application of the special provision contained in S.17 of the Hindu Succession Act it is necessary that the intestate should bea person governed by the 'Marumakkathayam law' on the date of his or her death or is it sufficient if he or she was a marumakkalhayee as on the date of the commencement of the Hindu Succession Act in 1956. 'Marumakkathayam law' is defined in S.31(1)(h) of the Hindu Succession Act as a system of law applicable to persons who. if the Hindu Succession Act had not been passed. would have been governed by the respective State enactments with respect to matters provided in the Act. So also. the special provision contained in S.17 applies to persons who would have been governed by the Marumakkathayam law if the Hindu Succession Act had not been passed. So it is clear that for finding out the persons referred to in S3(1)(h) as also in S.17 it has to be assumed that Hindu Succession Act had not * been passed. So we have to proceed on the basis that S.4 of the Hindu Succession Act is also not in force and in that view the words'-with respect to the matters for which provision is made in this Act' occurring in S3 (1)(h) has not much significance in the context In order to identify the persons who would have been governed by Marumakkathayam law. the provisions of the State enactments have to be looked into and the above law is defined as the system of law applicable to such persons. After identifying such persons when we come to S.17. it can been seen that the said provision apply to persons who would have been governed by the Maaimakkathayam law if the Hindu Succession Act is not passed. S.17 of the Act is applicable to a particular set of persons following a particular system of law. namely 'Marumakkathayam law' or 'Aliasantana law'. The words'-would have been governed by the Marumakkathayam law' are used because for identifying the persons we have to assume that the "Hindu Succession Act is not passed and not that it is sufficient that such persons were governed by Marumakkathayam law at any anterior time. 62. In this connection it is apposite to quote the observations of the Supreme Court in Bajya v. Gopikabai (AIR 1978 SC 793) in regard to legislation by referential incorporation: "27. Broadly speaking. legislation by referential incorporation falls in two categories: First. where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second. where a statute incorporates by general reference the law concerning a particular subject. as a genus. In the case of the former. Broadly speaking. legislation by referential incorporation falls in two categories: First. where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second. where a statute incorporates by general reference the law concerning a particular subject. as a genus. In the case of the former. the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category. it may be presumed that the legislative intent was to include all the subsequent amendments also. made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland. thus: " A statute which refers to the law of a subject genera!!)' adopts the law on the subject as of the time the law is invoked. Thus will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted." (vide. Sutherland's Statutory Construction. Third Edition. Art. 5208. p.5208). Corpus Juris Sccundum also enunciates the same principle in these terms: "Where the reference in an adopting statute is to the law generally which governs the particular subject. and not to any specific statute or part thereof. the reference will be held to include the law as it stands at the time it is sought to be applied. with all the changes made from time to time. at least as far as the changes are consistent with the purpose of the adopting statute." (Emphasis supplied) 63. In S.17 of the Hindu Succession Act the reference is to a general law on the subject viz. 'Marumakkathayam Law' and not to any particular statute. Any changes made in that general law from time to time have to be taken note of and the law as it stands on the- date when it is sought to be applied has to be adopted. It is elementary and fundamental that a provision like S.17 of the Hindu Succession Act regarding succession shall have application only on the death of a person and not before. If that be so. the changes made in the Marumakkathayam law by any other statute till the date of death of a person have to be taken note of and S.17 applied accordingly. If that be so. the changes made in the Marumakkathayam law by any other statute till the date of death of a person have to be taken note of and S.17 applied accordingly. S.17 of the Hindu Succession Act applies to persons governed by Marumakkathayam law and if on the date of death of a person that law is completely abrogated. S.17 can have no application. for he or she is not a person governed by Marumakkathayam law on the date of his or her death. 64. In Ram Samp v. Munshi (AIR 1963 SC 553) the question arose as to the effect of the repeal of the Punjab Alienation of Land Act. 1900 on S.14 and the definition of agricultural tribe in S.3(4) of the Punjab Pre-emption Act I of 1913 which was as follows: "member of an agricultural tribe and group of agricultural tribes shall have the meanings assigned to them respectively under the Punjab Alienation of Land Act. 1900". S.14 of the Pre-emption Act is to the following effect: "14. No person other than a person who was at the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor shall have a right of pre-emption in respect of agricultural land sold by a member of an agricultural tribe." It was held: "Wuh the repeal of the Punjab Alienation of Land Act. 1900 it is manifest that S.14 would lose all significance. but this does not help..in any manner. the contentions urged by learned counsel for the appellant. It would be seen that S.14 is restrictive. in that in the case of the alienations by persons referred to in that section the right of pre-emption is confers upon a limited group. With the repeal of the Punjab Alienation of Land Act. 1900 the reatriction imposed by 5.14 as regards the availability of the right of pre-emption to particular agricultural tribes would disappear." In the light of the above decision when the State enactments mentioned in S.3(1)(h) of the Hindu Succession Act ac repealed in 1976 by the Kerala Joint Hindu Family System (Abolition) Act. the Section Icses all its significance and it is not possible to identify the persons to whom the Maruniakkathyam law would have been applied. Moreover. the Section Icses all its significance and it is not possible to identify the persons to whom the Maruniakkathyam law would have been applied. Moreover. the State enactments and the Hindu Succession Act are supplemental to each other and are in part materia and the repeal of the former will affect the latter (See State of M.P. v. M.V. Narasimhan - AIR 1975 SC 1835). 65. The learned Chief Justice has taken the view that if Manimakkathayam law has ceased to be in force from 1-12-1976. S17 of the Hindu Succession Act can have no application to persons who v ei e born after that date. for they were never governed by Marumakkathayam Act. I am in complete agreement with that view. If it cannot apply to such persons. I am unable to find any reason how it can apply to a person who died after 1-124976. though born before that uate. for the applicability of 3.17 could arise only on death. 66. In Madhavi Amma v. KaHiani Amma (1988 (2) KLT 964) a learned Single Judge of this Court considering the very same question held as follows: "Reference to Marumakkathayam and Aiiyasantana 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 Marumakkathayam law or Aiiyasantana law as the case may be." In Bhaskaran v. Kailiani (1990 (2) KLT 749). a Division Bench of this Court (in which the judgment was delivered by one of us. Ramakrishnan. J.) said at page 75 4: "The reference to 'Marumakkathayam law or Aiiyasantana Law' in S.17 of the Hindu Succession Act is only to clarify the position that the special provisions contained therein are applicable only to persons who at the time of coming into force of the Hindu Succession Act were governed by the Marumakkathayam Law or Aiiyasantana 1^awas the case may be." 67. With greatest respect. { find myself unable 10 subscribe to the above view. S.17 of the Hindu Succession Act applies to persons who would have been governed by marumakkathayam law 'if that Act had not been passed. With greatest respect. { find myself unable 10 subscribe to the above view. S.17 of the Hindu Succession Act applies to persons who would have been governed by marumakkathayam law 'if that Act had not been passed. I have already held that the words Who would have been governed by Marumakkathayam law' are used in the context that in order to identify the "persons" it has to be presumed that the Hindu Succession Act is not passed. It does not mean that it is enough that they were governed by Marumakkathayam law at any anterior point of time. They must be governed by that law at the time when succession opens. for S.17 shall have application only on the death of a person and not before. S.17 is only a modification of S.1.5 of the Hindu Succession Act and has to be read together. The opening words of S.15 "The property of a female Hindu dying intestate shall devolve.. " are very significant in this context. The above aspect was lost sight of in the above two decisions and accordingly I express my respectful dissent from the above view. 68. In the light of what is stated above. I hold that the continued operation of the system of Marumakkathayam law on the date of death of a person is a necessary precondition for the operation of S.17 of the Hindu Succession Act. The feet that persons were governed by the respective State enactments mentioned in S.3(1)(h) of the Hindu Succession Act and by Marumakkathayam Law when the Hindu Succession Act came into force is not sufficient for the applicability of S.17. but must be continued to be governed by Marumakkathayam law till succession opens on their death. Points 2 and 3 answered accordingly. 68 Point No.4: Certain communities in Kerala were following a system of law called the 'Marumakkathayam law'. It is a body of customs and usages which received judicial recognition. The main characteristic and distinguishing feature of this system of law is that the descent is traced in the female line. While under the Hindu Mitakshara law the members claim their descent from a common ancestor. the members of a marumakkathayam tarwad are descended from a common ancestress. The joint family is called the tarwad and the seniormost male member will be the manager who is called 'Karnavan'. While under the Hindu Mitakshara law the members claim their descent from a common ancestor. the members of a marumakkathayam tarwad are descended from a common ancestress. The joint family is called the tarwad and the seniormost male member will be the manager who is called 'Karnavan'. The interest of a member in tarwad property was neither heritable nor alienable and on his death it would devolve on the other members by survivorship. Under the pristine Marumakkathayam law. the separate property of a member also would devolve upon members of the tarwad and not on his wife and children. In the case of a female member her self- acquisitions descend to her thavazhi or sub tarwad constituted by her children and further descendants in the female line. A member had no right to demand partition of tarwad properties. Impartibility was the rule and there could be no partition without the concurrence of all the members of the tarwad. 69A The customary Marumakkathayam law had been very materially altered by Statutes in the three component parts of Kerala. namely Malabar. Travancore and Cochin and those enactments are mentioned in S.3(1)(h) of the Hindu Succession Act. They dealt with the law of marriage. succession. adoption and maintenance. and minority and guardianship. By these enactments the rule of succession in regard to self-acquired or separate property changed and separate rules of succession were prescribed for the property of a male and a female. Right to partition was also conferred on the members. Certain statutes permitted only thavazhi partition (partition into branches) and certain statutes allowed individual partition on certain conditions. Under the Mardas Marumakkathayam Act. 1933 only thavazhi partition was originally recognised. But by the 1958 amendment to the Madras Marumakkathayam Act by the Kerala Legislature. individual partition is allowed and the consent of the common ancestress was dispensed with. In 1956 the Parliament passed four enactments on marriage. succession. minority and guardianship and adoptions and maintenance. as mentioned earlier in this judgment. Succession was regulated by the Hindu Succession Act among the Hindus throughout the country. The Act contained two special provisions in regard to persons governed by the Marumakkathayam law which have already teen referred to by me. namely S.7 which deals with devolution of interest in the tarwad property and S.17 which makes a special provision in regard to intestate succession among Marumakkalhayees. 70. The Act contained two special provisions in regard to persons governed by the Marumakkathayam law which have already teen referred to by me. namely S.7 which deals with devolution of interest in the tarwad property and S.17 which makes a special provision in regard to intestate succession among Marumakkalhayees. 70. Though the Hindu Succession Act provides for devolution of interest in the tarwad property. the Act di' i H do away with the Marumakkathayam system or with tarwads. The marumakkathayam system or the joint family system continued in spite of the Act. As observed by Govindan Nair J. in Ammalu Amma v. Lakshmi Amma (1966 KLT 32): "The Hindu Succession Act does not do away with the Marumakkathayam system or with tarwads though that will doubtless be its ultimate result. and none of its provisions affects the way in which tho members of a tarwad hold the joint property during their life-time." 71. Thereafter. it was felt that it was necessary and desirable to have a uniform law for all Marumakkathayees in Kerala in regard to the right to obtain dissolution of marriage and tarwad and its management including partition. Accordingly a Law Commission was also appointed and on the basis of its report the Kerala Joint Hindu Family System (Abolition) Act was passed which came into force on 1-12-1976. 72. After the Parliament passed the four enactments mentioned above. the provisions therein prevailed over those in the State enactments. The only topic that was not dealt with in the above Acts is the tarwad and its management and partition. As staled earlier. by the provision contained in the Joint Hindu Family System (Abolition) Act (which is a composite legislation in regard to Marumakkathayees as also followers of Mitakshara law) in S.3. right by birth which is inherent in every member of a tarwad following Marumakkathayam law was abolished. By S.4 joint tenancy was abolished and instead the members of the tarwad holding tarwad property on the date of coming into force of the Act were made tenants-in-common from that day holding his or her share separately as full owner. S.5 deals with rule of pious obligation which has no relevance so far as Marumakkathayees are concerned and by S.7 any text. rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act were made inoperative. S.5 deals with rule of pious obligation which has no relevance so far as Marumakkathayees are concerned and by S.7 any text. rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act were made inoperative. By S.7(2) the enure State Act is mentioned in S.3(1)(h) of the Hindu Succession Act were also repealed. 73. From the above development of the law. it can be seen that the pristine Marumakkathayam law was interfered with by the various enactments and later by the four Central Acts in 1956. The only matter which was untouched by the Central Acts was the law relating to tarwad and its management. On that subject also a legislation was made by the Kerala Legislature. namely the Kerala Joint Hindu Family System (Abolition) Act. and the whole Joint family system was abolished. Community of interest. unity of possession. right by birth and survivorship are the incidents of joint family property. whether of a maru-makkathayam tarwad or a milakshara coparcenary. Descent through the female line is another distinguishing feature of the Marumakkathayam law. By the coming into force of the Kerala Joint Hindu Family System (Abolition) Act. 1975 there is no community of interest. unity of possession. right by birth and rule of survivorship. Descent through female line has also come to an end and property on death devolves upon the personal heirs as mentioned in the Hindu Succession Act. The essence of Marumakkathayam law which is that the women is the stock of descent. which is to be in the female line. is avoided by the Act. The changes effected are so drastic that none of the characteristic features and incidents of the Marumakkathayam law survive today. The provisions of the Act are clear that it does not envisage the emergence or contemplate the continuance of a Marumakkathayam tavazhior tarwad after its dale. It does not contemplate the possibility of the existence of a group of persons having community of interest in property on account of any personal law governing them. and the tarwad that existed before and al the date of the Act was liquidated by it. Novestige of the Marumakkathayam law remains after the passing of the Joint Hindu Family System (Abolition) Act and the system of Marumakkathayam law has come to an end. 74. and the tarwad that existed before and al the date of the Act was liquidated by it. Novestige of the Marumakkathayam law remains after the passing of the Joint Hindu Family System (Abolition) Act and the system of Marumakkathayam law has come to an end. 74. The repealing section in the Joint Hindu Family System (Abolition) Act also indicates that the system has come to an end. The Act deals with both. the Hindu joint family as also marumakkathayam tarwads. Under S.7(1) any text. rule or interpretation of Hindu law or any custom or usage as part of that law is abrogated. In M.K.B. Menon v. A.C.. Estate Duty (AIR 1971 SC 2392) it was held by the Supreme Court that Marumakkathayam law is only a branch of Hindu law. The setting and the provisions contained in i! at - Act also indicate that it decided to do away with the system of tarwad. By tilt ojfcraiiou of "S.7 as well the system of Marumakkathayam law has ceased to exist. Point No.4 is answered accordingly. 75. Point No.5:1 have already found that S.17 of the Hindu Succession Act is not repealed by the provisions contained in the Joint Hindu Family System (Abolition) Act nor is it in any way repugnant to the provisions of the Hindu Succession Act. Even if there is no repeal or repugnancy between the two enactments. in certain cases if the provision in a former enactment become unworkable or cannot be applied in the light of the latter enactment. the former provision become inoperative and ineffective. If the application of a provision in the earlier enactment is dependent on the existence of certain factors raid if those factors are effected by a latter enactment. such a provision becomes unworkable am? ceases to be operative. Tested in the light of the above principle. I have no hesitation to hold that S.17 of the Hindu Succession Act has become inoperative. S.7 and 17 are the two special provisions in regard to marumakkathayces contained in the Hindu Succession Act. It was agreed by all counsel appearing for the parties that after the coming into force of the Abolition Act. S.7 of the Hindu Succession Act which deals with devolution of interest in a tarwad property has become inoperative. S.7 and 17 are the two special provisions in regard to marumakkathayces contained in the Hindu Succession Act. It was agreed by all counsel appearing for the parties that after the coming into force of the Abolition Act. S.7 of the Hindu Succession Act which deals with devolution of interest in a tarwad property has become inoperative. for there is no interest in a tarwad property after the coming into force of the Joint Hindu Family System (Abolition) Act. So far as S.17 is concerned. by the abolition of the Marumakkathayam system of law. thcsubsiracum of S.17 is gone and the object for which the special provision in S.17 of the Act was made has ceased to exist The provisions contained in S.17 cannot be applied to any person as nobody will be governed by the Marumakkathayam law after 1-12-1976 which is a condition precedent for the applicability of that Section. According I hold that S.17 of the Hindu Succession Act has become inoperative and ineffective after the coming into force of the Kerala Joint Hindu Family System (Abolition) Act. 1975 from 1-12-1976 and no person dying after that date will be governed by S.17 but only by the general provision contained in S.15 of the Hindu Succession Act. Point No.5 answered accordingly. 76. In the view that I have taken in regard to succession of Lakshmikutty Amma it is S.15 of the Hindu Succession Act that is applicable and not S.17. If that be so. the plaintiff who is her husband alone will be her heir as admittedly she died issue-less. In that view of the matter. no interference is called for with the decree of the trial court and accordingly I dismiss the appeal. but. in the circumstances. without any order as to costs. ORDER OF THE COURT In view 01 the majority view. the appeal is allowed and the suit will stand dismissed. but in the circumstances. without costs. Allowed.