KUNHIKUTTAN UNNI Vs. SATHYANATHAN UNNI
LAWS(KER)-1968-9-27
HIGH COURT OF KERALA
Decided on September 09,1968

Kunhikuttan Unni Appellant
VERSUS
Sathyanathan Unni Respondents

JUDGEMENT

M.MADHAVAN NAIR,J. - (1.) THIS is a motion under Article 228 of the Constitution to withdraw O.S.No.26 of 1965 on the file of the Subor­dinate Judge's Court,Ottapalam,wherein one of the issues raised is. "Is the section 7(3)of the Hindu Succession Act,1956 ultra vires of the Constitution? " ;.
(2.) ARTICLE 228 of the Constitution commands: "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 this Constitution the determination of which is necessary for the disposal of the case,it shall withdraw the case... ;. Obviously it leaves little scope for a discretion in the matter of withdrawal of the suit to this Court if a substan­tial question of law as to the interpretation of the Constitu­tion is raised therein and is necessary for its disposal.Counsel contends that on the expression of the issue No.19(quoted above)a substantial question of law does arise in the suit which is one for partition of properties of a Sthanam under sub -section(3)of section 7 of the Hindu Succession Act,1956,and has therefore to fail if the said sub -section is void.Counsel for the plaintiff -respondent opposes the motion on the ground that the vires of the sub -section has been considered by this Court in Moopil Nayar v. Union of India 1963 K.L.T.1089 and been held constitutional and valid and that on the dictum therein that an heir -apparent to a sthanam has only a spes successionis the present challenge to the sub­section as unconstitutional is palpably unsustainable and therefore the issue concerned does not involve a substantial question of law to attract Article 228 of the Constitution.The question therefore is whether the suit moved to be withdrawn involves a substantial question of law.
(3.) IN Chunilal Mehta v. C.S.and M.Co.Ltd ., A.I.R.1962 S.C.1314 the Supreme Court has defined a substantial question of law in these terms: "The proper test for determining whether a question of law raised in the case is substantial would be 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 this 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 or that the plea raised is palpably absurd the question would not be a substantial question of law." Though this definition was delivered in relation to Article 133 of the Constitution,it applied well,in my view,to the identical expression occurring in Article 228 too. Counsel for petitioner urges that the sub -section(3)of section 7 of the Hindu Succession Act deprives the petitioner,who is the senior male member of the family,of his birthright to assume the sthanam by survivorship and thereby affects a vested right of his and also violates his right "to acquire property "guaranteed under Article 19(1 )(f)of the Constitution and that on account of these features the sub -section is void and that is a substantial question of law. Citing Assistant Controller v. Balakrishna Menon 1967 K.L.T.148 counsel argues that the sub -section(3)comes to operation only when a Sthani dies;but the moment the Sthani breathes his last the right of the next senior male member of the family to take the estate by survivorship takes place and the sthanam vests in him and therefore the sub -section affects vested right.But,it has been held categorically by the Supreme Court in Kochunni v. States of Madras and Kerala A.I.R.1960 S.C.1080 which concerned the instant sthanam,that the right of an heir apparent to take the sthanam on the death of a Sthani is only a spes successionis and not a proprietary interest at all.Mr.Justice Subba Rao,who spoke for a majority of 4 in the Constitution Bench,observed: "It is true that whatever may by the origin of the sthanam,ordi­narily the senior -most member of a tarwad succeeds to that position;but once he succeed,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 " ;. Mr.Justice A.K.Sarkar,who delivered the minority judgment also observed. "When a member of the tarwad becomes the sthani he loses his interest in the tarwad properties ¦&hellip ;.The members of the tarwad in their turn have no interest in the sthanam lands ;.The important point to note.... is that the sthani for the time being is alone entitled to the lands of his sthanam and the members of his tarwad are not entitled to them ¦¦¦¦" ;. In the light of these dicta of their Lordships of the Supreme Court,it cannot be contended that the so called right of the heir apparent to the sthanam is a birthright or a vested right or anything more than a spes successionis.;


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