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Kanakambal Vs. Lakshmikutty Amma - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 679 of 1960
Judge
Reported inAIR1965Ker219
ActsMadras Marumakkathayam Act, 1932 - Sections 1(2) and 30
AppellantKanakambal
RespondentLakshmikutty Amma
Appellant Advocate K.V. Suryanarayana Iyer,; C.M. Devan and; T.L. Vishwanat
Respondent Advocate T. Chandrasekhara Menon, Adv.
DispositionAppeal dismissed
Cases ReferredJefferys v. Boosey
Excerpt:
- - there was no question, that the marriage of her mother was valid under section 4 of the act, and the failure, if any, to notify the marriage under sub-section (3) of section 4 was of no consequence, firstly because the marriage was before the date on which the act came into force and secondly because, such failure did not concern or affect the validity of the marriage. so the plaintiff's claim to a half share of the properties is well-founded......situated in palghat district which formed part of the former presidencyof madras, and later of the state of madras as it was before the reorganisation of states. subramanya pottar's marriage with kalliani amma was dissolved in the year 1087 and afterwards he married the first defendant, a woman of his own caste. he died in the year 1129.the plaintiff's claim to a half share is based on section 30 of the madras marumakkathyam act, 1932, the relevant part of which reads as follows :'30. (1) on the death intestate of a male not being a marumakkattayi (i) who- (a) has, before the date on which this act comesinto force, contracted a marriage with a marumakkathai female which is valid under section 4; or , * * * * and (ii) who has left surviving him by such marriage or marriages one or more.....
Judgment:

S. Velu Pillai, J.

1. This second appeal is directed against a preliminary decree for partition of a half share of the suit properties for the plaintiff, passed bythe District Judge, Palghat, reversing the decree of the Munsiff, Alathur, dismissing her suit. The properties belonged to one Subramanya Pattar, a brah-min, a non-marumakkathayee. In the year 1082, he married the plaintiff's mother Kalliani Amma, a marumakkathayi woman who lived in Trichur in the former Cochin State, and the plaintiff was born in the year 1084. The properties are situated in Palghat district which formed part of the former Presidencyof Madras, and later of the State of Madras as it was before the reorganisation of States. Subramanya Pottar's marriage with Kalliani Amma was dissolved in the year 1087 and afterwards he married the first defendant, a woman of his own caste. He died in the year 1129.

The plaintiff's claim to a half share is based on Section 30 of the Madras Marumakkathyam Act, 1932, the relevant part of which reads as follows :

'30. (1) On the death intestate of a male not being a marumakkattayi

(i) who-

(a) has, before the date on which this Act comesinto force, contracted a marriage with a marumakkathai female which is valid under section 4; or ,

* * * * and (ii) who has left surviving him by such marriage or marriages one or more of the following relations, namely : --

(a) a widow or widows,

(b) children,

(c) lineal descendants in the female line through deceased daughters

such relation or relations shall be entitled if the intestate has also left relations who are heirs according to the personal law by which he is governed, to one-half of his property which is separate or self-acquired and if the intestate has left no such heirs, to the whole of such property :

Provided that the reasonable funeral expenses of the intestate shall first be deducted from such separate or self-acquired property. (2) The property devolving on the relations referred to in Sub-clauses (a), (b) and (c) of Clause (ii) of Sub-section (1) shall be distributed among them in accordance with the rules contained in Clauses (i), (iii), (iv) and (v) of Section 20 and Explns. I and II to that section.'

Under Section 20, where the deceased has left a widow and a child, each is entitled to a half, share of his properties. The question for decision depends on whether the Act, particularly Section 30, is applicable.

2. Section 30 was contended to be inapplicable, for the reason that at the time the succession opened, the plaintiff was not a marumakkathayi, because she was then governed, not by the Marumakkathayam Law but by the Cochin Nair Act which was in force at the time, and that she was not in the State of Madras. The contention is palpably unsound. The Act has by Section 3 (e) defined, marumakkathayam as 'the system of inheritance in which descent is traced in the female line' and by Section 3 (f), a marumakkattayi as ''a person governed by the Marumakkathayam law of inheritance.'' The plaintiff fulfils this condition. The Cochin Nair Act of 1095 has, as the Madras Marumakkathayam Act also has done, only defined and amended in certain respects the law relating to marriage, intestate succession, partition etc., applicable to persons governed by the Marumakkathayam Law of inheritance and for that reason alone, it is tutile to contend, that the plaintitf was not a marumakkathayi. The Cochin Nair Act of 1113 was enacted only to consolidate and amend the earlier enactment. There is nothing in Section 30 which makes it necessary, that the marumakkathayi should also belong to the State of Madras and it is on Section 1 (2) of the Act, that the decision of this part of the case depends.

3. Section 1 (2) is in the following terms :

'(2) It (the Act) shall apply -

(a) to all Hindus in the Presidency of Madras who are governed by the Marumakkattayam law of inheritance ;

(b) to all Hindus outside the said Presidencygoverned by the said law) in respect of propertieswithin it ; and

(c) to all Hindu males, whether governed by the said law or not, who have contracted or may contract marital alliances with Hindu females governed by the said law.'

Clause (a) is irrelevant, but in my view, Clauses (b) and (c) are both applicable. Clause (b) renders the Act applicable to a marumakkathayi outside the Presidency of Madras, so far as his or her properties within it are concerned, and Clause (c) makes the Act applicable to a non-marumakkathayi male who has contracted marital alliance with a marumakknthayi woman wherever the latter is.

Thus, by reason of Clause (b), the plaintill's rights to properties within the State of Madras are regulated by the Act and by reason of Clause (c), Section 30 of the Act is , made a part of the law by which the plaintiff's father is governed. The combined effect of Clauses (h) and (c) is, that Section 30 is applicable to the plaintiff's right to inherit the properties of her father which are situated within the Madras Slate. On the terms of Section 30, it is not open to doubt, that the plaintiff is so entitled. There was no question, that the marriage of her mother was valid under Section 4 of the Act, and the failure, if any, to notify the marriage under Sub-section (3) of Section 4 was of no consequence, firstly because the marriage was before the date on which the Act came into force and secondly because, such failure did not concern or affect the validity of the marriage.

4. Learned counsel relied on Jefferys v. Boosey, (1854) 4 H L C 815 for the presumption against extraterritorial operation of legislative enactments. As Lord Brougham said in the case just cited.

'generally we must assume that the Legislature confines its enactments to its own subjects over whom it has authority, and to whom it owes a duty in return for their obedience. Nothing more clear than that it may also extend its provisions to fereigners in certain cases and may, without express words, make it appear that such is the intendment of those provisions. But the presumption is rather against the extension, and the proof of it is rather upon those who would maintain such to be the meaning of the enactments.'

This is only a presumption and where the legislature has enacted to the contrary, as by Clause (b) of Section 1 (2), the presumption has to yield.

'A sovereign is supreme within his own territory, and, according to the universal maxim of jurisprudence, he has exclusive jurisdiction over everybody and everything within that territory and over every transaction that is there effected.'

(Cheshire on Private International Law, Sixth Edn., p. 1). Learned counsel also relied on certain provisions in the Act, which according to their terms could not apply to those who are outside the State of Madras, but these have nothing to do with the provisions discussed above. So the plaintiff's claim to a half share of the properties is well-founded.

5. This second appeal is groundless and is dis.missed with costs.


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