KRISHNA IYER,(for himself and on behalf of D.A. Desai, J. - (1.) HORACE wrote "But if Homer, who is good, nods for a moment, I think it a shame". We, in the Supreme Court, do 'nod' despite great care to be correct, and once a clear error in our judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this court from the anxiety to be ultimately right, not consistently wrong. The present petition for review is one such and we have listened, at unusual length, to counsel's oral submissions having felt that an error in the judgment under review, likely to injure and unsettle, needed to be mended.
(2.) WE may narrate, very briefly, the necessary facts and catena of statutes so that the flaw may be identified and rectified. The subject-matter is the partition of the assets of the erstwhile royal family of the Maharajah of cochin, if we may avoid the jaw-breaking description used in one of the relevant legislations viz. The Valiamma Thampuran Kovilakam Estate and Palace Fund belonging to the family of the Maharajah of Cochin. A capsulated survey of the landmark legislations will help locate the controversy and liquidate the error, if any. This family, to begin with, was impartible and its administration was statutorised by a Royal Proclamation of 1124 (hereinafter called the Proclamation) which constituted a Board in this behalf consisting of five trustees to be nominated by the Maharaja with an equitable eye on representation for each branch (tavashi) of the family. Section 2 (a) read with Section 4 of the Proclamation defines the Board's composition which shows a slight overshight on our part in the earlier order. And thereafter, came the Great Divide in the story of the royal family and began its slow integration into the commonalty retaining, in some measure, its peculiar individuality. By Act 16 of 1961 (The Valiamma Thampuran Kovilakam Fstate and Palace Fund (Partition) Act 1961) (for short the 1961 Act) impartibility was abolished conditionally as it were, Section 3 therein laid down: 3.(1) Notwithstanding anything contained in Section 22 of the Proclamation, if a request in writing is made by the majority of the major members and the Maharaja of Cochin is satisfied that in the interests of the family it would be desirable to partition the Estate and the Palace Fund, among all the members he may declare his decision to effect a partition under his supervision and control, and direct the Board to proceed with the partition. (2) The decision of the Maharaja of Cochin under sub-section (1) shall be published by the Board in the Gazette in English and Malayalam, and a copy of the notification shall be affixed in conspicuous place at the office of the Board. Of course, partibility reflected the spirit of the time both in Kerala and in the Hindu fold of India and royalty lost its regalia, including the privy purse. With the enactment of the Constitution (26th Amendment) Act. Even though royalty had become fossilised and Maharaja's family had become partible the latter retained its legislative distinctiveness in important features, because of its unique history, unwieldy membership and statutory singularity since 1949. The legislature took pragmatic note of these legitimate factors while enacting Act. 16 of 1961. Thus partibility was not automatic but dependent on the Maharaja's decision. The division was not to be effected by the civil courts as in ordinary cases but by Board only. The structure and identity of the Board created under the earlier Proclamation was preserved even for the purpose of effecting partition of the family assets. Once the majority's request was made and the Maharaja was satisfied about the desirability of partitioning was the responsibility of the Board, although under the supervision and control of the Maharaja himself. A ticklish question, which is one of the aspects involved in the present review petition, turns on the division among the members and, more particularly. The fixation of shares, depending, as it does, on the number of members. This number, in turn, is determined by the date of division in status of the family. Section 3 of the 1961 Act makes partition contingent on the Maharaja's declaration of his decision to effect a partition. Once he declares his decision, there is , eo instanti, a division in status. Thereafter, Sec. 4 of Act 16 of 1961 operates. That section states: '4. Share of Members (1) Each member shall be entitled to an equal share of the Estate and the Place Fund. (2) The share obtained by a member on partition shall be the separate property of the member. (3) A child who is in the womb on the date of the publication of the decision under S.3 and who is subsequently born alive shall have the same right for a share in the Estate and Palace Fund as any other member as if he or she had been born on or before the date of such publication. We may state even here that the Maharaja never made the statutory delcaration under Section 3 and so no division in status took place. The next statutory milestone which has relevance to our legal journey is the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) (for short 1976 Act). By this measure, the joint family system among Hindus in the State of Kerala was extinguished. All Marumakkathayam families were embraced by the Act and the right by birth in ancestral properties was also put an end to. By force of Section 4 of that Act, joint family ownership was converted into tenancy-in-common as if partition had taken place among all the members. We may read Section 4 (2) at this point: All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1) holding any point family property on the day this Act comes into force, shall. with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof. The emphasis, from the point of view of the date of transformation into tenancy-in-common, is on the date of coming into force of Act 30 of 1976. From that date (1-12-76) onwards a division in status and a quantification of shares per capita must be deemed to have occurred.
(3.) SECTION 7 of this Act repeals certain enactments mentioned in the schedule thereto; but what is of significance in that schedule is that the Proclamation of 1124 and Act 16 of 1961 (which are measures specially devoted to Cochin Royal Family) are not repealed. What the impact of this omission is, is a subject of debate between the parties and we will come presently to it. We then move on to Ordinance I of 1978 promulgated on 6-1-1978 which was replaced duly by Act 15 of 1978, published in the Gazette on 19-3-78. This Act (The Valiamma Thampuran Kovilkam Estate and the Palace Fund (Partition) and the Kerala Joint Family System (Abolition) Amendment Act. 1978), is an arendatory adventure affecting vitally the partitioning of the Cochin Royal family. The implication of the provisions of this legislation constitute the subject-matter of the reviewpetition on which the parties bitterly join issue. It cannot be denied that partition by metes and bounds of the Cochin Royal Family properties is a stupendous effort, a time-consuming task and an operation involving legal know-how, valuers' skills and adjudicatory steps. We must remember that the assets are immense and varied even as the members are numerous, being well over 700 in strength. Each member being entitled to a share, the partition is sure to be complicated and if in the shortrun of a human life the partition is to be completed and the properties are to be enjoyed by the sharers, innovative strategies of speedy justice must be resorted to. On this basis we have to appreciate the grounds raised for review by the petitioner herein who had substantially sueceeded in the first round when we pronounced a lengthy order on the special leave petition.;