Mooppil Nair v. Sathyanathan Unni Nair

1. The appellant filed a petition before the Subordinate Judge, Ottapalam under S.113 of the Code of Civil Procedure requesting him to slate a case and refer to the High Court the question of law whether S.7(3) of the Hindu Succession Act, 1956 was ultra vires the Constitution. The Subordinate Judge dismissed the petition; and thereafter, the appellant filed the petition which has given rise to this appeal before this Court under Art.228 of the Constitution to withdraw the original suit pending before the Subordinate Judge and determine the question of law stated above regarding the interpretation of the Constitution. Madhavan Nair J. dismissed the petition and hence the appeal.

2. The counsel of the contesting respondents has taken a preliminary objection [hat an appeal from such an order of a Single Judge to a Division Bench is not competent under S.5 of the Kerala High Court Act. The contention is that a petition under Art.228 of the Constitution to withdraw a suit or appeal pending before a subordinate court is not an original proceeding coming within S.5 of the High Court Act. The counsel of the appellant has brought to our notice two decisions of the Madras High Court. The first is Alia Subbareddi v. Lankireddi Narayanaswamireddi (AIR 1949 Mad. 283 [LQ/MadHC/1948/147] ) by Satyanarayana Rao J., who has held that an application under S.24 of the Code of Civil Procedure is an original proceeding within the meaning of S.141 of the Code and consequently the procedure provided under the Code in regard to suits becomes applicable and a receiver can be appointed ex parte in such a proceeding. The second decision is again of the Madras High Court, the Division Bench ruling in Srirangam Municipality v. R. V. Palaniswami Pillai (AIR 1951 Mad. 807 [LQ/MadHC/1950/325] ) by Rajamannar C. J. and Viswanatha Sastri J. Division Bench was considering against S.24 of the Code of Civil Procedure; and the Division Bench has opined that a proceeding under S.24 of the Code is in the nature of an original proceeding though it is not necessary to commence such proceeding on the Original Side of the High Court. The Division Bench has pointed out that S.24 of the Code applies not only to the Chartered High Court but to the other High Courts and the District Courts, and applies to the withdrawals of not only original suits but of appeals as well, so that the petition need not be on the Original Side of the High Court. There is a third decision of this Court by a Division Bench, to which one of us was a party, wherein the question decided was whether a petition under S.7 of Kerala Act 31 of 1958 filed in an appeal before the High Court was in the nature of an original proceeding so as to attract S.5 of the High Court Act for the p purpose of appeal before a Division Bench. The Division Bench has held that such a petition is an original proceeding and is consequently amenable to appeal under S.5 of the: vide Vasudaevan Namboodiri v. Narayanan Nambudiri (ILR 1969 (2) Ker. 387). In the light of the reasoning contained in these three rulings, we are of opinion that a petition under Art.228 of the Constitution for withdrawing a proceeding from a lower court to the file of the High Court is an original proceeding falling within S.5 of the High Court Act for purposes of appeal to a Division Bench. The preliminary objection is overruled.

3. Next we come to the point whether there is a substantial question of law as to the interpretation of the Constitution as contemplated by Art.228 of the Constitution so as to have the suit withdrawn to this Court for decision of the said question. The language of Art.228 is that, if the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case, the High Court shall withdraw the case, etc. What is a substantial question of law has been considered by the Supreme Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. (AIR 1962 SC 1314 [LQ/SC/1962/104] ). That was a case under Art.133 of the Constitution relating to appeals to the Supreme Court, where also the expression substantial question of law occurs. The test laid down by the Supreme Court in that case for determining whether a question raised is a substantial question of law is whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views: if the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles, then the question would not be a substantial question of law. The result is that, if the question is an open question in the sense that another view is possible even if there is a decision of the Privy Council, the Supreme Court or the Federal Court on the question, then it is a substantial question of law for the purpose of appeal under Art.133 of the Supreme Court.

4. We feel that, for the purpose of Art.228 of the Constitution, this interpretation of expression substantial question of law requires a slight modification in the light of the purpose of Art.228. It is evident that, if the meaning attributed to the expression substantial question of law by the Supreme Court in the above case is accepted for the purpose of Art.228, the result will be that, even if there is a decision by the Supreme Court, the Federal Court or the Privy Council on a particular question of law, if it is possible to have an alternative view on the question, it will still be a substantial question of law for the High Court to consider under Art.228. Can it be so The obvious answer to the question, in our opinion, is in the negative. As pointed out by Madhavan Nair J., there is no method open to us to refer such a question to the Supreme Court for decision, nor can we discuss the correctness or otherwise of the decision of the Supreme Court even if, for the sake of argument, we are satisfied that the decision of the Supreme Court requires reconsideration. Therefore, for the purpose of Art.228, openness of the question in the above sense, the possibility of an alternative view, which is sufficient under Art.133, cannot be a valid criterion. The purpose of Art.228 is to deny the power of interpreting a provision of the Constitution to the subordinate courts and to leave that jurisdiction to the High Court. If so, the existence of a decision of the High Court, whether it be of a Single Judge or of a Division Bench or of a Full Bench, should be taken to have concluded the question of law and, even if the said decision requires reconsideration and is of doubtful correctness, the question cannot be considered as a substantial question of law so as to compel the High Court to withdraw a suit involving the same question to its file. The correctness of the decision of the High Court may be canvassed at the appropriate stage, not under Art.228 of the Constitution.

5. Now, bearing this principle in mind, let us examine the present case. There is a Division Bench ruling of this Court in Kunjunni Moopil Nayar v. Union of India (1963 KLT 1089), where the same question was considered with reference to another stanam. The question considered there was whether S.7(3) of the Hindu Succession Act, which laid down that, on the death of a stani-after the commencement of the, the stanam property held by him should devolve on the members of the family to which the stani belonged and the heirs of the stani, as if the property had been divided per capita immediately before the death of the stani among himself and all the members of his family then living, and that the shares falling to the members and the heirs should be held by them as their separate property, offended Art.14 of the Constitution. The Division Bench has held that S.7(3) was intra vires the Constitution - it did not offend Art.14. It is argued by the counsel of the appellant that this Division Bench did not consider the vires of S.7(3) vis-a-vis Art.19(1)(f) of the Constitution. The Division Bench ruling referred to above was given in an appeal against the decision of a Single Judge in O.P. No. 1121 of 1960; and that decision is also before us. Before the Single Judge objection was taken that S.7(3) was ultra vires the constitution as it offended Art.14 and 19(1)(f); and the learned I Judge held that it did not offend either of the Articles. Thus, both the objections that the section violated Art.14 and Art.19(1)(f) - were rejected by this Court, the former by both the Single Judge and the Division Bench and the latter by the Single Judge. Therefore, no substantial question of law relating to the interpretation of the Constitution is involved in the suit which compels us to withdraw the suit to this Court for considering the constitutional validity of S.7(3) of the Hindu Succession Act.

6. The counsel of the respondents has drawn our attention to a decision of the Judicial Commissioner of Bhopal in Mahmood-ul-Hussaini v. The State (AIR 1951 Bhopal 9). The Judicial Commissioner has drawn a distinction between interpretation of a provision of the Constitution and application of the provision to a particular case. And the Judicial Commissioner has observed that Art.228 applies only to the interpretation of the Constitution and not to the application thereof to a particular case. What was considered in that case was whether S.23 of the Bhopal Public Safety Act, 1947 and S.5 of the Bhopal (Administration) Order were hit by Art.13 and Art.19(1)(a) of the Constitution; and the Judicial Commissioner has observed that, since the question involved was not a question of the interpretation of the Constitution but only the application thereof the petition was incompetent. This, in our opinion, is not the correct approach. In applying a provision of the Constitution to a particular case, the interpretation of the provision also arises: without interpreting the provision it cannot applied to a particular case. Interpretation of a provision of the Constitution and the application thereof go together; and to a case which involves both the interpretation and the application, Art.228 of the Constitution applies and the High Court should withdraw the case to its file. We regret we are not able to agree with the view expressed by the Judicial Commissioner, Bhopal.

7. The counsel of the appellant has then argued that the approach of the Single Judge on the reasoning of Subba Rao J. in Kavalappara Kottarathil Kochunni alias Moopil Nayar v. The State of Madras and Kerala (AIR 1960 SC 1080 [LQ/SC/1960/152] ) is not correct. The majority Judgment in that case was pronounced by Subba Rao J; and His Lordship has observed -

"It is true that whatever may be the origin of the sthanam, ordinarily, the seniormost member of a tarwad succeeds to that position, but once he succeeds, he ceases to have any proprietary interest in the tarwad. So too, the members of the tarwad have absolutely no proprietary interest in the sthanam property. Thereafter, they continue to be only "blood relations" with perhaps a right of succession to the property of each other on the happening of some contingency. The said right is nothing more than a spes successionis; the tarwad may supply future sthanees." (Underlining is ours)

8. The counsel has drawn our attention to the following observation of the Privy Council Shibaprasad Singh v. Prayag Kumari Debee extracted at page 843 of Maynes Treatise on Hindu Law and Usage, 1953 Edn., in considering succession to an impartible estate:

"To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore, still remains, and this is what was held in Baijnaths case (48 IA 195) To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth - right of the senior member to take by surviorship still remains. Nor is this right a mere spes sucessionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husbands estate. It is a right which is capable of being renounced and surrendered." (Underlining is ours).

9. Basing on this observation of the Privy Council, the counsel has argued that the observation of Subba Rao J. in Kochunnis case that the right of a member of the tarwad of a stani to succeed to the stanam is nothing more than a spes successionis is only a casual observation and it has not minimised in any way the effect of the observation of the Privy Council that it was not a mere spes successionis. Of course, Subba Rao J. has not considered the observation of the Privy Council and dissented therefrom. In fact, His Lordship has not even referred to that observation. Therefore, it may probably be open to argue that the said observation of Subba Rao J. is only casual and has no effect of overruling the observation of the Privy Council. But then, from the sentence underlined in the extract quoted from the decision of Subba Rao J. it becomes clear that the members of the tarwad of a stani have absolutely no proprietary interest in the stanam properties. The same observation appears in minority judgment of Sarkar J. too. His Lordship has also made it clear that the members of the tarwad of a stani have no proprietary interest in the stanam properties. The same thing is indicated in the passage extracted from the decision of the Privy Council: the sentence underlined indicates that the members of the tarwad lose their right which they acquired by birth in the joint family property and the senior member retains only the right to take by survivorship", which can only mean that the senior member can succeed to the impartible estate on the death of the previous holder-in the language of Subba Rao J., the tarwad supplies future stanis. We have indicated in the passages extracted from both the decisions - the decision of the Privy Council and the decision of the Supreme Court - that the members of the stanis tarwad have no proprietary interest in the stanam properties. What the Privy Council has said is that, "though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth-right of the senior member to take by survirorship still remains", which only means that the senior member, by reason of his birth alone, has a right to succeed to the impartible estate: but that right is not the result of the senior member having any proprietary interest in the impartible estate. We may also remind that the observation of the Privy Council related to an impartible estate, while the observation of Subba Rao J. applied to a stanam. Thus, it is clear that until one stani dies, the members of his tarwad have no proprietary interest in the stanam properties: in other words, succession to the stanam opens only on the death of the stani and the members of the stanis tarwad have no proprietary interest in the stanam properties till then.

10. If this is the position in law, the argument of Sri D.A. Krishna Variyar, the counsel of the appellant, that every member born in the tarwad of a stani acquires right to the stanam properties by reason of his birth and the enjoyment of the properties alone is postponed till the death of the then-incumbent cannot hold water. The counsel has argued that all the members of the tarwad of a stani are life-estate holders and each of them acquires a vested interest in the stanam properties on his birth. This cannot be correct in view of the observations of the Supreme Court and the Privy Council we have already pointed out. The position is that, until a stani dies, the members of his tarwad have no proprietary interest in the stanam properties. If in the meantime, before the death of the stani, before the succession opens, the law relating to succession to the stanam is changed by a statute, the succeeding stani or the person who expects or is even entitled to succeed cannot have any complaint that his right under Art.19(1)(f) is violated by the change in law. Even if his right to succeed is not a mere spes successionis, he has no pre-existing proprietary interest in the stanam properties until the previous stani dies, and therefore, no question under Art.19(1)(f) of the Constitution can arise.

11. In this connection, it is interesting to refer to one more decision of the Supreme Court in Amar Singh v. Custodian, Evacuee Property, Punjab (AIR 1957 SC 599 [LQ/SC/1957/32] ), where Their Lordships have held that, for purposes of Art.19(1)(f) the property must be property capable of acquisition and disposal; the interest of a quasi permanent allottee arising under a statutory grant cannot be said to be property in that sense. Similarly, since the other members of the tarwad of a stani have no proprietary interest in the stanam properties when a stani is still alive, no question of violation of their proprietary rights by the change in law can arise. Again, the succession of a member of the stanis tarwad to the stanam on the death of a previous stani is not really acquisition of property; and in this view also, Art.19(1)(f) cannot apply to the case.

12. We make it clear that these conclusions of ours are only for the purpose of Art.228 - whether the case has to be withdrawn to this Court and the vires of S.7(3) of the Hindu Succession Act should be considered here at this stage.

13. We reiterate that, in view of the decision of a Single Judge in O. P. No. 1121 of 1960 on both Art.14 and 19(1)(f) and of Division Bench in Kunjunni Moopil Nayar v. Union of India (1963 KLT 1089) on Art.14, there is no substantial question of law in this case regarding the interpretation of the Constitution to be decided by us under Art.228 of the Constitution.

The appeal is dismissed, however, without costs."