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CaseMinister › Judgments › Supreme Court › 1996 › Smt. Parayankandiyal Eravathkanapravan Kalliani Amma & Ors.

Smt. Parayankandiyal Eravathkanapravan Kalliani Amma & Ors. v. K. Devi & Ors.

Supreme Court of India · 26 April 1996 · [1996] SUPP. 2 S.C.R. 1

Court
Supreme Court of India
Decided
26 April 1996
Reported as
[1996] SUPP. 2 S.C.R. 1
Result
Appeal(s) allowed
Bench
Ahmad Saghir S. (J)
Length
23 pages
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PETITIONER:
SMT. PARAYANKANDIYAL ERAVATHKANAPRAVAN KALLIANI AMMA & ORS .
Vs.
RESPONDENT:
K. DEVI & ORS.
DATE OF JUDGMENT: 26/04/1996
BENCH:
AHMAD SAGHIR S. (J)
KULDIP SINGH (J)
CITATION:
1996 AIR 1963 1996 SCC (4) 76
JT 1996 (4) 656 1996 SCALE (4)131

ACT

HEADNOTE

JUDGMENT

JUDGMENTS. SAGHIR AHMAD, J.

"A million million spermatozoa

All of them alive :

Out of their cataclysm but one poor

Noah

Dare hope to survive.

And among that billion minus one

Might have chanced to be

Shakespeare, another Newton, a new

Donne

But the one was me "

So said Aldous Huxley, perhaps, in desperation and despondency. And, that is how a person would feel on being bastardized by a court verdict. disentitling him from inheriting the properties left by his father. This is the theme of the present judgement which we are required to write in view of the following facts :- 2. Parayankandiyil Kanhirakunnath Kurungodan Raman Nair was the proud father of 14 children from two wives, the first being Ammu Amma, who is the mother of the respondents 1 to 9, and the second being a lady of equally long name, namely, Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma (appellant No. l), who is the mother of appellants 2 to 6. He had a flair for two; two wives, two sets of children, two sets of properties, in two different States. P.K.K. Raman Nair died on 9th January, 1975, and since he left behind considerable movable and immovable properties in the States of Kerala and Tamil Nadu, litigation was the usual and destined calamity to befall the children for settling the question of inheritance. 3. The litigation started with the filing of O.S. No. 38 of 1976 and O.S. No. 39 of 1976 in the court of Subordinate Judge at Badagara, Kerala, by the respondents for a decree for possession over certain properties, which allegedly were in the possession of the appellants, and for half share by partition in the tenancy land held in common by late P.K.K. Raman Nair with his second wife, namely, appellant No.1. The appellants did not lag behind and they filed a suit (O.S. No. 99 of 1977) for partition of the properties of late P.K.K. Raman Nair, which were said to be in the possession of the respondents. 4. Respondents had instituted the suits on the basis of their title, with the allegations that the appellant Nos. 2 to 6 and their mother, namely, appellant No. 1, were not the legal heirs of Raman Nair, while the appellants had instituted their suit (O.S.No. 99 of 1977 ) for partition of the properties indicated in schedules A,B & C to the plaint, on the ground that they being the legal heirs of Raman Nair were entitled to a share in the properties left by him along with the respondents. 5. All the three suits were tried together by the trial court and were dismissed with the finding that the second marriage of Raman Nair with appellant No. 1 had taken place at a time when his first wife, Ammu Amma, was alive and, therefore, it was invalid, with the result that the appellant nos. 2 to 6, who were the children born of the second marriage would not inherit any share in properties left by Raman Nair. 6. Three appeals were consequently filed in the High Court and the only question urged before the High Court was that the second wife and children were also the legal heirs of Raman Nair, but the High Court by its impugned judgment and order dated 22.6.1989 dismissed the appeals with littled modification that the house in the plaint schedule property in O.S. No. 39 of 1976 was directed to be allotted. as far as possible. to appellant No. 1 as she was living in that house with her children. Hence these appeals. 7. Mr. P. S . Poti, Sr. Advocate. appearing on behalf of the appellants. has contended that the trial court as also the High Court were in error in dismissing the suit of the appellants for partition of their share in the properly as the appellants were the legal heirs of Raman Nair and the inheritance could not be denied to them merely on the ground of his second marriage with appellant No.1. particularly as Section 16 of the Hindu Marriage Act, 1955 specifically provides that, notwithstanding that a marriage is null and void, any child of such marriage, who would have been legitimate if the marriage had been valid, shall be legitimate and get an interest in the property of his parents, but not in the property of any other person. 8. The contention of the learned counsel for the respondents, on the contrary, is that benefit of Section 16 can be given only to such marriages as are null and void under Section 11 of the Hindu marriage Act. 1955 and not to any other marriage. His contention further is that a marriage would be null and void under Section ll only If it is performed after the coming into force of the Act and. therefore, all other marriages which were performed prior to the Hindu Marriage Act, 1955, would not be covered by Section 16 and children born of such marriage would not be entitled to the benefit of statutory legitimacy or inheritance. 9. It may be mentioned that one of the contentions raised before the High Court was that if the benefit of legitimacy contemplated by Section 16 of the Act is not extended to children born of the second or invalid marriages held prior to the Act, the provisions would have to be struck down as violative of Article 14 of the Constitution, inasmuch as they purport to create two classes of illegitimate children, namely. those born of the invalid marriages prior to the Act and those born of the void marriages performed after the enforcement of the Act. This was not accepted by the High Court which was of the opinion that the provisions of Section 16 were not violative of Article 14 of the Constitution. 10. Marriage, according to Hindu Law, is a holy union. It is not a contract but a Sanskara or sacrament. 11. The religious rites solemnizing a marriage include certain vows and prayers by the parties

"In the three mantras of Laja

(parched paddy) Hawan, the bride

says :-

"I give oblation to the Fire

God, the destroyer of enemies.

With the grace of the said

destroyer of enemies, may I never

be separated from my husband’s

house.

Other unmarried girls have

worshipped the Fire God, the

sustainer of the earth, for the

fulfillment of their desire.

Knowing that their desire were

fulfilled, I have also made an

oblation, may the same Fire God,

sustainer of the earth, be pleased

and with his grace may I never be

separated from my husband’s house.

I worship Shankar in the form

of Fire God, the god of good repute

and the protector of husband. May

by the grace of Shankar, the Fire

God, I and my husband be freed from

death as the ripe melon is freed

from its knot in the creeper. With

His grace may I never be separated

from my husband’s house.

May this oblation be

acceptable to the Fire God. May

sacred fire separate me from this

(my father’s) house but never from

my husband’s.

May my husband live long and

my kinsmen be prosperous. May this

oblation be acceptable to the Fire

God.

I cast this parched paddy in

fire. May it make you (the husband)

and me prosperous. The boon be

granted by agni."

Similarly, bridgroom, says to

the bride:-

"O bride ! trace your first

step, by this may our foodstuffs

increase. May God let me keep your

company till I live.

O bride ! trace your second

step. by this may our strength

grow, may God let me keep your

company till I live.

O bride ! trace your third

step, by this may our wealth

increase. May God let me keep your

company till I live.

O bride ! trace your fourth

step, by this may our comforts and

pleasures increase. May God let me

keep your company till I live.

O bride ! trace your fifth

step. May our progeny increase. May

God let me keep your company till I

live.

O bride ! trace your sixth

step. May we always get the fruits

and flowers of the six seasons. May

God let me keep your company till I

live.

O bride ! trace your seventh

step. By this may we live long and

our relations be loving. may God

let me Keep your company till I

live." 12. The effect of these promises and prayers is that the marriage becomes indissoluble and each party becomes the complementary half of the other so that separation becomes unthinkable. 13. The terms prescribed by the Dharam Shastras, Secure to the wife a high and strong position. as is indicated, by the dialogue between the bride and the bridegroom during Saptapadi which again have been quoted in his book by Mr. K.P. Saksena on being supplied to him by Sahityacharya Shri Pandit Rameshwar Dwivedi. They are as under:-

"The bridegroom says:-

"Madhupark has destroyed sins

in the fire of Laja Hawan, so long

as the girl does not sit on the

left side she is unmarried.

Madhupark have been performed

first and oblation of parched paddy

having been offered to the fire, so

long as the girl does not sit on

the left side she is unmarried.

The bridegroom says to the

bride:" Do not go without my

permission, to a park to one who is

drunk, to king’s court and to your

father’s house."

"The bride says "Perform along

with me the Bajpeya, Ashwamedha and

Rajsuya Yagas,tuladan and

marriage."

"With my consent and long with

me consecrate Beoli,well and tank

etc.,and God’s temples and take

bath during the months of Magh,

Kartik, and Baisakh."

Select a friend or enemy, a

place worth a visit or not, go on

pilgrimage, and perform a marriage

and engage in framing and commerce

after obtaining my consent and

along with me.

Render unto my hands what you

earn by the grace of God whether it

be hundred, a thousand, a hundred

thousand, a thousand million, and

ten billion.

After obtaining may consent

purchase, sell or exchange a cow, a

bull or a buffalo, a goat, an

elephant a horse or camel.

My Lord, you should be my

friend in the same way as Krishna

is of Arjun, Brahaspati is of Indra

and as Swati is of Chatak." 14. Once "Saptapadi" is completed the marriage tie becomes unbreakable. 15. The legal position of a second marriage under the original Hindu Law is described in ’Principles of Hindu law’ by Jogendra Chunder Ghose, 1903 Edition, as under:

"Polyagamy was not allowable

according to the spirit of the law,

but it was very generally

practised, though the second wife

could not be associated in

religious sacrifices, and was

styled a wife not for duty but for

lust." 16. Sir Gooroodas Banerjee in his book Hindu Law of Marriage and Stridhana, 4th Edition (re-Printed in India in 1984)" lays down as under :

"A Hindu husband is always

permitted to marry again during the

lifetime of his wife, though such

marriage, if contracted without

just cause, is strongly

disapproved. "The first is the wife

married from a sense of duty," and

the others are regarded as married

from sensual motives. "With

sorrow," says Daksha feelingly,

"does he eat who has two

contentious wives; dissension,

mutual enmity, meanness, and pain

distract his mind; but his

commentator, Jagannath, who lived

at a time when kulinism and

polygamy were widely prevalent,

tries to soften the effect of the

text, by showing that if the wives

be complacent, none of the evil

consequences would follow. The

causes which justify supersession

of the wife and re-marriage during

her lifetime, are barrenness, ill-

health, ill-temper, and misconduct

of the wife.

It should be observed that

supersession (which is adhivedana

in sanskrit) here means, as

explained in the Mitakshara and the

Subodhini, merely the contracting

of a second marriage while the

first wife lives; and it does not

imply that the first wife is

actually forsaken, or that her

place is taken by the second, in

respect of any matter except

perhaps the husband’s affection. It

is true that Vijnaneswara in one

place uses supersession and

desertion as synonymous, but

Sulpani, another high authority,

uses the term in the sense given

above, and Jagannatha appears to

follow the latter. This view is

further confirmed by the rules

regarding precedence among wives,

which is settled by law with a view

to prevent disputes." 17. Mr. K.P. Saksena, in his Commentary on Hindu Marriage Act. 1955, 3rd Edition (1964), writes as under

"According to the Hindu

Jurisprudence, a husband is always

permitted to marry again during the

lifetime of the first wife but such

marriage, if contracted without

just cause, is strongly

disapproved. Manu has justified the

supersession of the wife and

remarriage during her lifetime on

the following grounds, viz.(i)

barrenness, (ii) ill-health, (iii)

ill-temper and misconduct of the

wife, vide, manu (IX, 80-81).

He further maintains that (1)

the first wife is married from a

sense of duty and (2) the others

are regarded as married from sexual

motives, vide, Manu (III, 12-13).

Supersession has been

explained in Mitakshara and

Subodhini as a contract of second

marriage while the first wife is

alive and not the desertion of the

wife, for in desertion she is

deprived of her rights such as

association in performance of

religious rites, religious duties,

adoption, etc. In Ranjit Las V.

Bijoy Krishna, it has been held

that adoption by a senior widow

though lat in time is valid

notwithstanding an earlier adoption

by a junior widow without the

consent of the senior widow whose

adoption was declared to go

invalid, though both wire

authorized to adopt by the

deceased. The Rishis do not approve

of unrestricted polyagamy. They

permit men to take a second wife in

the lifetime of the first only

under special circumstances. Thus

Manu says; "A wife, who drinks any

spurious liquors, who acts

immorally, who shows hatred to her

lord, who is incurably disease who

is mischievous, who wastes his

property, may at all times be

superseded by another wife. A

barren wife may be superseded by

another in the 8th year; she who

brings forth still born children or

whose children all infants die in

the tenth; she who brings forth

only daughters, in the eleventh and

she who speaks unkindly, without

delay," It is, therefore, incorrect

of suppose that the Hindu Law

permits a man to espouse a second

wife during the life of the first

except under particular

circumstances. Manu appears to

present the perfect ideal of

conjugal fidelity by requiring both

the husband and the wife to be

faithful to each other. thus in

conclusion on the subject of mutual

duties of husband and wife, the

sage ordains: Let mutual fidelity

continue till death: this, in few

words, may be considered as the

supreme law between husband and

wife; let a man and a woman united

by marriage, constantly beware,

lest at any time being disunited

they violate their mutual

fidelity." (Manu IX, 101-102; V,

162-168). This passage clearly

implies monogamy to be essential

condition of the supreme law of

conjugal duties. But it should be

observed that the sages did not

prohibit polygamy which was

prevalent at the time by the

tendency of their legislation was

to discourage that practice by

investing the first marriage with a

religious character, and by

permitting the marriage for

religious purposes of a second wife

in the lifetime of the first, only

in certain contingencies when there

was a failure of the object of

marriage. 18. From the above, it would be seen that though polygamy was not permitted, a second marriage was allowed in a restricted sense, and that too, under stringent circumstances, as for example, when there was a total failure of the object of marriage. Monogamy was the Rule and Ethos of the Hindu society which derided a second marriage and rejected it altogether. The touch of religion in all marriages did not allow polygamy to become part of Hindu culture. This was the effort of community. Otherwise, this Court in Bhaurao V. State of Maharashtra AIR 1965 SC 1564 observed:-

"Apart from these

considerations, there is nothing in

the Hindu Law, as applicable to

marriages till the enactment of the

Hindu Marriage Act, 1955, which

made a second marriage of a male

Hindu, during the lifetime of his

previous wife, void." 19. Therefore, if a second marriage did take place, children born of such marriage, provided it was not otherwise invalid, were not illegitimate and in the matter of inheritance, they had equal rights. 20. In every community, unfortunately, there are people who exploit even the smallest of liberties available under Law and it is at this stage that the law intervenes to discipline behaviour. Various states, therefore, passed their separate, though almost similar, laws relating to marriages by Hindus restricting the number of wives to only one by providing specifically that any marriage during the lifetime of the first wife would be void. 21. There is no dispute that Mr. Raman was a ’Nair’ and belonged to Malabar Tarwad family. The personal law by which he was governed was the Marumakattayam Law of Malabar comprising of a body of judicially recognized customs and usages, which prevailed among a considerable section of the people inhabiting the West Coast of south India. The essential difference between Marumakattayam and other schools of Hindu Law was that the Marumakattayam school was founded on the matriarchate while others are founded upon the agnatic family. In the Mitakshara joint family the members claim through descent from a common ancestor, but in a Marumakattayam family, which is known as the Tarwad, the descent is from a common ancestress. Mr. Sundara Ayyar, who was a Judge of the Madras High Court, has already written an excellent treatise on the customary laws of Malabar which has been recognized as an authoritative word by the Privy Council in Kochunni Vs. Kuttanunni AIR 1948 PC 47. This Court had also had an occasion to refer to broad aspects of this law in a few decision (see : Balakrishna Menon vs. Asstt. Controller of Estate Duty AIR 1971 SC 2390; Venugopala Ravi Varma vs. Union of India AIR 1969 SC 1094; Achuttan Nair vs. C. Amma AIR 1966 SC 411). In A recent decision in Padmavathy Amma vs. Ammunni Panicket AIR 1995 SC 2154 = 1995 (Supp.) 3 SCC 352, it was indicated that:

"In the Marumakkathayam system

of law succession to property is

traced through females, though the

expression Marumakkathayam strictly

means inheritance by sister’s

children. It is because of this

that a man’s heirs are not his sons

and daughters, but his sisters and

their children the mother forming

the stock of descent and

inheritance being traced through

mother to daughter, daughter’s

daughter and so on. A

Marumakkathayam family is known as

a Tarwad and consists of a group of

persons, males and females, all

tracing descent from a common

ancestress. An ordinary Tarwad

consists of the mother, her

children, male and female, the

children of such females and their

descendants in the female line,

how-low-soever, living under the

control and direction of the

Karnavan, who is the eldest male

member. The junior male members are

also proprietors and have equal

rights. The Tarwad is thus a

typical matriarchal family." 22. Marumakattayam law was modified and altered by madras Marumukattayam Act, 1932 (XXII of 1933). This Act was on force when Raman Nair married his first wife, Ammu Amma, in 1938. Section 5 of the Act provides as under:

"5(1) During the continuance of a

prior marriage which is valid under

section 4, any marriage contracted

by either of the parties thereto on

of after the date, on which this

Act comes into force shall be void.

(2) On of after the said date,

any marriage contracted by a male

with a marumuakkattayi female,

during the continuance of a prior

marriage of such male, shall be

void, notwithstanding that his

personal law permits of polygamy. It thus contained a specific prohibition that during the continuance of a prior marriage, any marriage contracted by either of the parties thereto shall be void. 23. But Heart has its own reasons. In spite of the statutory prohibition, Raman Nair contracted a second marriage with respondent no.1 in 1948. 24. The Marumakkattayam Act, 1932 was repealed by Section 7(2) (read with the schedule) of the Kerala joint Hindu Family system (Abolition) Act, 1975 (Act 30 of 1976) with effect from 1.12.1976. Obviously with the repeal of the Act in 1976, the prohibition in Section 5 that the second marriage would be void, ceased to be operative. 25. Learned counsel for the appellant, therefore, contended that Madras Act XXII of 1933 which contained a prohibition against second marriage having been repealed by the Kerala joint Hindu Family system (Abolition) Act, 1975, the original Hindu law, based on Shastras and scriptures, would revive and consequently Raman’s marriage with appellant No.1 would become valid particularly as the repeal would have the effect of obliterating the Madras Act XXII of 1933 from the statute Book from its inception as if it never existed. The contentions are without substance and deserve immediate rejection, on account of the reasons which we are setting out hereinbelow. 26. Section 7 of the Kerala Joint Hindu Family system (Abolition) Act, 1975 (Act No. 30 of 1976) is reproduced below:

"7. Repeal--(1) save as otherwise

expressly provided in this Act, 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 case 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." 27. In the schedule appended to the Act, the Madras Act is mentioned at serial No. 1. 28. Section 4 of the Kerala Interpretation and General Clauses Act provides, inter alia, as under:

"4. Effect of repeal --Where any

Act repeals any enactment hitherto

made or hereafter to be made, then,

unless a different intention

appears, the repeal shall not--

(a) revive anything not in force or

existing at the time at which the

repeal takes effect; or

(b) affect the previous operation

of any enactment so repealed or

anything duly done or suffered

thereunder, or

(c) affect any right, privilege,

obligation or liability acquired,

privilege, obligation or liability

acquired,accrued or incurred under

any enactment so repealed; or

(d).. ..

(e).. .. 29. In view of these provisions, it is necessary to examine Whether a different intention is expressed in the Kerala joint Hindu Family System (Abolition) Act, 1975 and what actually is the effect of repeal. 30. The provisions of Section 7(2), by which the Madras Act has been repealed, have been quoted above. The repealing Act does not indicate any intention contrary to the provisions contained in the Kerala Interpretation and General Clauses Act which, therefore, will apply with full vigor on the principle that whenever there is a repeal of any enactment, the consequences indicated in Section 4 would follow, unless there was any saving clause in the repealing enactment or any other intention was expressed therein. In the case of a simple repeal, there is hardly any room for the expression of a contrary view. 31. The instant case, as would appear from a perusal of Section 7(2) of the repealing enactment, is case of repeal simplicitor. In view of Section 4(b) of the Kerala interpretation and General Clauses Act, the previous operation of Madras Act XXII of 1933 will not be affected by the repeal nor will the repeal affect any thing duly done or suffered thereunder. So also, a liability incurred under that Act will remain unaffected and will not be obliterated by the repeal as indicated in clause (c) of Section 4. 32. Raman had contracted a second marriage, in the lifetime of his first wife, in 1948 when madras Act XXII OF 1933 was in force, which prohibited a second marriage and, therefore, the consequences indicated in the Act that such a marriage would be void would not be affected nor will the previous operation of the Act be affected nor will the previous operation of the Act be affected by the repeal of that Act. The repeal does not mean that Madras Act XXII of 1933 never existed on the statute Book nor will the repeal have the effect of validating Raman’s second marriage, if it already a void marriage under that Act. 33. Learned counsel for the appellant then contended that appellant nos. 2 to 6 shall, for purposes of inheritance, be treated legitimate sons under Section 16 of the Hindu Marriage Act, 1956 and, therefore, their suit ought to have been decreed. He also contended that if benefit of legitimacy cannot be given to the appellants on the ground that Section 16 does not apply to them and applies to those illegitimate children who were born of a void marriage performed after the Act came into force, the provisions will have to be struck down as discriminator and violative of the rule of equality before law contained in Article 14 of the Constitution. We shall examine both the contentions. 34. Whenever an enactment is attacked on the ground of discrimination, it becomes the duty of the Court to look to the legislation as a whole and to find out why class legislation was introduced and what was the nexus between the classification and the object sought to be achieved by it. In order to decipher this question we have to have a peep into the background. 35. Before the enactment of the Hindu Marriage Act, 1955, there existed general Hindu Law, based upon scriptures and Shastras, including their exposition by scholars, which regulated marriages amongst Hindus. There were different customs and usages prevalent in different parts of the country. 36. In the Malabar area with which we are concerned in the instant case and which now forms part of the Kerala State, there were different customs regarding marriage prevalent among different groups of people. Local laws were also made regulating marriages among people in the Malabar area there was the Madras Marumakkattayam Act (No. XXII of 1933). Section 5 of this Act prohibited a second marriage during the lifetime of a spouse and specifically provided that such a marriage would be void. It laid down as under:

"5. (1) During the continuance of a

prior marriage which is valid under

section 4, any marriage contracted

either or the parties thereto on or

after the date on which this Act

comes into force shall be void.

(2) On or after the said date,

any marriage contracted by a male

with a marumakkattyi female, during

the continuance of a prior marriage

of such male, shall be void,

notwithstanding that his personal

law permits of polygamy. 37. In the same area, there was the Madras Nomboodri Act (No.XXI of 1933) which was applicable to Namboodri Bragmans not governed by Marumakkattayam law of inheritance. This Act also prohibited bigamy but it was only partial prohibition as it was provided by Sections 11 and 12 of the Act as under:

"11. No Nombudri who has a Nambudri

wife living shall marry another

Nambudri woman except in the

following cases:-

(a) Where the wife is

afflicted with an incurable

disease for more than five

years,

(b) Where the wife has not

borne him any child within ten

years of her marriage,

(c) where the wife has become

an outcaste."

"12. (1) Any Nambudri male who

contracts a marriage in

contravention of section 11 shall

be punished with fine which may

extend to one thousand rupees, but

a marriage so contracted shall not

be deemed to be invalid.

(2) Any person who conducts,

directs or abets the performance of

any marriage in contravention of

section 11 shall be punished with

fine which may extend to one

hundred rupees." 38. Thus, a second marriage was permissible under certain circumstances enumerated in Section 11. It was also indicated that the second marriage would not void. Thus, in the same region, in respect of different groups of people, different laws were made, although both consisted of people professing Hindu religion. This anomaly was removed by repealing Sections 11 and 12 of the Act by Section 8 of the Madras Hindu (Bigamy prevention and Divorce) Act, 1949 (Madras Act VI of 1949) with the result that Section 9 of the namboodari Act, which provide as under:

"9. Notwithstanding any custom or

usage to the contrary every major

male Nambudri shall, subject to the

provisions of section 5 of the

Madras Marumakkattayam Act, 1932,

and any other law for the time

being in force, be at liberty to

marry in his own community." became operative with full force and vigor. Since section 9 was to operate subject to the provisions of section 5 of the Tamil Nadu (Madras) Marumakkattayam Act, 1932, a Namboodari could not, after deletion of sections 11 and 12, marry a second wife during the lifetime of the first wife. 39. The evil of bigamy was sought to be prevented by regional laws made either prior to or after the Constitution of India. Since the attempt of these laws was to introduce social reforms in the community at regional levels, the High Courts, in which the validity of such laws was challenged, particularly after the enforcement of the Constitution. On the ground of violation Articles 14, 15 and 25, upheld those laws with the finding record in strong terms that the laws were neither discriminatory nor did they infringe Article 25 of the Constitution. 40. The Bombay High Court in state Vs. Narsu Appa Mali ILR (1951 ) Bocbay 775 = 55 Bombay Law Reporter 779= AIR 1952 Bombay 84, rejected the argument that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 discriminated between Hindus and Muslims by enforcing monogamies on Hindus and not on muslims as the Court was of the opinion that the state was free to embark upon social reforms in stages. It was pointed out by the Court that penalties provided in the Act, which were more stringent than those provide in the Indian Penal Code, were rightly prescribed and were justified on the ground that having regard to the outlook of the Hindus, it may have been considered necessary to impose severer penalties in order to implement the law effectively. 41. The Madras High Court in Srinivasa lyer Vs. Saraswathi Ammal ILR (1953) Madras 78 = AIR 1952 Madras 193, upheld the validity of the Madras Hindu (Bigamy prevention and Divorce) Act, 1949 and held that the Act did not violate Article 15 or 25 and there was no discrimination between Hindus and Mahammedans on the ground of religion. 42. The Full Bench of the Andhra Pradesh High Court in G. Sambireddy vs. G. Jayamma AIR 1972 A.P., considered both the Bombay and madras decisions referred to above and held that sections 11 and 17 of the Hindu Marriage Act, 1955 did not violate Article 15(1) as sections 5(1), 11 & 17 merely introduced a social reform for the class of persons to whom the Act applied. 43. Parliament consisting of the representatives of the people knew, and the Courts can legitimately presume that it knew, the situation prevailing all over India with regard to the different laws, customs and usages regulating marriages among Hindus and that it further knew their problems and their need for a uniform codified law concerning marriages. 44. It was in this background that Hindu Marriage Act, 1955 was enacted by Parliament to amend and codify the law relating to marriage among Hindus. The Act applies to every Person who is a Hindu by religion in any of its forms or developments, indicated in Section 2 thereof, including a person who is a Buddhist, Jain or Sikh by religion. Besides other categories of persons who are to be treated as "Hindus", the explanation appended to Section 2 provides that any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion, shall also be a Hindu. it also provides that any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain of Sikh and who is brought up as a member of the tribe, group, community or family to which such parent belongs, will be a Hindu. 45. Other relevant provisions of the Act also be noticed. 46. Section 4 of the Act provides that the Act shall have an overriding effect. It provides as under:

"4. Overriding effect of Act-- save

as otherwise expressly provide 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 have

effect in so far as it is

inconsistent with any of the

provisions contained in this Act." 47. Conditions for Hindu marriage are indicated in Section 5 which is quoted below:

"5. Conditions for a Hindu

marriage--A marriage may be

solemnized between any two Hindus,

if the following conditions are

fulfilled, namely----

(i) neither party has a spouse

living at the time of the marriage;

(ii) at the time of the marriage,

neither party--

(a) is incapable of giving a

valid consent to it in

consequence of unsoundness of

mind; or

(b) though capable of giving a

valid consent, has been

suffering from mental disorder

of such a kind or to such an

extent as to be unfit for

marriage and the procreation

of children; or

(c) has been subject to

recurrent attacks of insanity

or epilepsy;

(iii) the bridegroom has completed

the age of (twenty one years) and

the bride the age of (eighteen

years) at the time of the marriage;

(iv) the parties are not within the

degrees of prohibited relationship,

unless the custom or usage

governing each of them permits of

a marriage between the two."

(v) the parties are not sapindas of

each other, unless the custom or

usage governing each of them

permits of a marriage between the

two." 48.Section 16, as originally enacted, provides as follows:

"16. Legitimacy of children of void

and voidable marriages:

Where a decree of nullity is

granted in respect of any marriage

under Section 11 or Section 12, any

child begotten or conceived before

the decree is made who would have

been the legitimate child of the

parties to the marriage if it had

been dissolved instead of having

been declared null and void or

annulled by a decree of nullity

shall be deemed to be their

legitimate child be deemed to be

their legitimate child not with

standing the decree of nullity:

Provided that nothing

contained in this section shall be

construed as conferring upon any

child of a marriage which is

declared null and void or annulled

by a decree of nullity any rights

in or to the property of any person

other than the parents in any case

where, but for the passing of this

Act, such child would have been

incapable of possessing or

acquiring any such rights by reason

of his not being the legitimate

child of his parents." 49. Sections 11 and 12 which are referred to in section 16 above are also quoted below:

"11. Void marriages---- Any

marriage solemnized after the

commencement of this Act shall be

null and void and may, on a

petition presented by either party

thereto (against the other party),

be so declared by a decree of

nullity if it contravenes any one

of the conditions specified in

clauses (i), (iv) and (v) of

section 5."

"12. Voidable marriages---(1) Any

marriage solemnized, whether before

or after the commencement of this

Act, shall be voidable and may be

annulled by a decree of nullity on

any of the following grounds,

namely:

(a) that the marriage has not

been consummated owing to the

impotence of the respondent;

or

(b) that the marriage is in

contravention of the condition

specified in clause (ii) of

section 5; or

(c) that the consent of the

petitioner, or where the

consent of the guardian in

marriage of the petitioner was

required under section 5 as it

stood immediately before the

commencement of the Child

marriage Rastraint (Amendment)

Act, 1978 (2 of 1978) the

consent of such guardian was

obtained by force or by fraud

as to the nature of the

ceremony or as to any material

fact or circumstance

concerning the respondent; or

(d) that the respondent was at

the time of the marriage

pregnant by some person other

than the petitioner.

(2) Notwithstanding anything

contained in sub-section (1), no

petition for annulling a marriage--

(a) on the ground specified in

clause (c) of sub-section (1),

shall be entertained if---

(i) the petition presented

more than one year after the

force had ceased to operate

or, as the case may be, the

fraud had been discovered; or

(ii) the petitioner has, with

his or her full consent, lived

with the other party to the

marriage as husband or wife

after the force had ceased to

operate or, as the case may

be, the fraud had been

descovered;

(b) on the ground specified in

clause (d) of sub-section (1) shall

be entertained unless the court is

satisfied:

(i) that the petitioner was at

the time of the marriage

ignorant of the facts alleged;

(ii) that proceedings have

been instituted in the case of

a marriage solemnized before

the commencement of this Act

within one year of such

commencement and in the case

of marriages solemnized after

such commencement within one

year from the date of the

marriage; and

(iii) that marital intercourse

with the consent of the

petitioner has not taken place

since the discovery by the

petitioner of the existence of

the said ground." 50. the requirements for the applicability of section 16 (as originally enacted), which protected legitimacy, were that:

(i) there was a marriage;

(ii) the marriage was void under

section 11 or voidable under

section 12.

(iii) there was a decree annulling

such marriage either under Section

11 or under Section 12.

(iv) the child was begotten or

conceived before the decree was

made. 51. A marriage would be null and void if it was solemnized in contravention of clauses (i),(iv) and (v) of Section 5. clause (i) prohibits a marriage if either party has a spouse living at the time af marriage. Clause (iv) prohibits a marriage if the parties are not within the degrees of prohibited relationship while clause (v) prohibits a marriage between parties who are the ’sapindas’ of each other. A marriage it any of the above situations was liable to be declared null and void by a decree of nullity at the instance of either party to the marriage. Section 16 was intended to intervene at that stage to protect the legitimacy of children by providing that children begotten of conceived before the making of the decree would be treated to be legitimate and they would inherit the properties of their parents,though not of other relations. 52. Similarly, a marriage solemnized either before or after the commencement of the Hindu Marriage Act, 1955 was made statutorily voidable if it was found that the husband was impotent at the time of marriage and continued to be so till the institution of the proceedings or that a party to marriage was either idiot or a lunatic or that the consent of the party to the marriage or that the of the guardian required under section 5 of the Act, was obtained by force or fraud ori that the girl at the time of marriage was pregnant by some other person. In such a situation, the marriage was label to be annulled by a decree of nullity at the instance of either party to the marriage. The legitimacy of children of such a marriage was also protected by Section 16 by providing that for purposes of inheritance, the children would be treated to be legitimate and would inherit the properties of their parents. 53. Now, Legitimacy is a matter of status. In Ampthill Peerage case (1976) 2 All England Reports 411 (424), HL (Committee for privileges), Lord Simon of Glaisdale observed:

"Legitimacy is a status : it is the

condition of belonging to a class

in society the members of which are

regarded as having been begotten in

lawful matrimony by the men whom

the law regards as their fathers.

Motherhood, although also a legal

relationship, is based on a fact,

being proved demonstrably by

parturition. Fatherhood, by

contract, is a presumption. A woman

can have sexual intercourse with a

number of men any of whom may be

the father of her child; though it

is true that modern serology can

sometimes enable the presumption to

be rebutted as regards some of

these men. The status of legitimacy

gives the child certain rights both

against the man whom the law

regards as his father and generally

in society." 54. In an Australian case, Barwick, CJ in Salemi vs. Minister for Immigration and Ethnic Affairs (1977) 14 ALR 1(7). stated:

"I cannot attribute any other

meaning in the language of a lawyer

to the word "legitimate" than a

meaning which expresses the concept

of entitlement or recognition by

law." 55. Illegitimate children, on the contrary, are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate. Realising this situation, our parliament, and we must appreciate the wisdom of the legislators then adorning the seats in the august hall, made a law which protected the legitimacy of such innocent children. This was a bold, courageous and dynamic legislation which was adopted by other advanced countries. 56. The concept of illegitimacy was abolished in New Zealand by the status of Children Act 1969 (NZ). Under s.3 of this Act, for all purposes of the law of New Zealand, the relationship between every person and his father and mother is to be determined irrespective of whether the father and mother are or have been married to each other, and all other relationships are to be determined accordingly. 57. In England also, social reforms were introduced to supplement or improve upon the Matrimonial Clauses Act by enacting Family Law Reform Act, 1969 as also the Family Law Reform Act, 1987 to give limited right of succession to the illegitimate children in the property of their parents or allowing the parents to succeed to the property of their illegitimate children. 58. In spite of the foresightedness of the legislators, the intention of the parliament could not be fully reflected in the Act which unfortunately suffered at the hands of persons who drafted the Bill and the various provisions contained therein. The results were startling. Since the Rule of Legitimacy was made dependant upon the marriage (void or voidable) being annulled by a decree of annulment, the children born of such marriage, would continue to be illegitimate if the decree of annulment was not passed, which, incidentally, would always be the case, if the parties did not approach the Court. The other result was that the illegitimate children came to be divided in two groups; those born of marriage held prior to the Act and those born of marriage after the Act. There was no distinction between these two groups of illegitimate children, but they came to suffer hostile legislative discrimination on account of the language employed therein. Indeed, language is an imperfect instrument for the expression of human thought. 59. The object of Section 16 was to protect legitimacy of children born of void of voidable marriages. In leaving out one group of illegitimate children from being as legitimate, there did not appear to be any nexts between the object sought to be achieved by Section is and the classification made in respect of illegitimate children similarly situate or circumstanced. The provisions of Section 16 were, therefore, to that extent, clearly violative of Article 14 of the Constitution. 60. The legislature, as a matter of fact, committed the mistake of borrowing in this Section the language of Section 9 of the Matrimonial Clauses Act, 1850 made by the British parliament which dealt with the legitimacy of children of only voidable marriages did not the children of marriage void ipso jure. 61. The defect in the language employed in Section 16 was noticed by some High Courts also. The Madras high Court in T. Ramayammal vs. T.Mathummal AIR 1974 (Madras) 321, which was a decision rendered prior to the amendment of section 16, laid down that unless a decree of nullity was granted in respect of a marriage which was void, the legitimacy of the children born of such carriage would not be protected. The High Court further observed as under:

"The wording of Section 16 so

far as it is relevant to a marriage

void under Section 11 leads to an

anomalous and startling position

which could have hardly been

contemplated by the legislature.

The position and status of children

of void marriage should obviously

be the same either the marriage is

declared a nullity under Section 11

or otherwise. It is seen that the

legislature has borrowed in this

section the language of section 9

of the Matrimonial Causes Act, 1950

which deals with the legitimacy of

children of only voidable marriages

and does not refer to children of

marriages void ipso jure and made

the section applicable to cases of

both voidable and void marriages

annulled by a decree of court.

Though the language of the section

is more appropriate to voidable

marriages, it has been applied to

void marriages as well, presumably

with the object of ensuring that

where a marriage was in fact

solemnized but was void for any of

the grounds mentioned in section

11, the children of such marriage

should not be bastardized whether a

decree of nullity is passed or not.

But the above obvious intention of

the Legislature has not been duly

carried out by a proper wording of

the section." 62. The High Court was of the opinion that:

"In view of the language of

the section being plain and

unambiguous, it is not possible for

the court to construe the same in a

different manner having in mind the

presumed intention of the

legislature even if it appears to

be obvious. I am therefore, of the

view that this is a casus omissions

which the Courts cannot reach for

no canon of construction will

permit the court to supply what is

clearly a lacuna in the statute and

it is for the legislature to set

right the matter by a suitable

amendment of the section." 63. It may also be pointed out at this stage that the Joint Committee which was constituted to look into the provisions of the Hindu Marriage Act, indicated in its Report that in no case should children be regarded as illegitimate and consequently it followed the principles contained in Section 26 of the special Marriage Act, 1954, to provide that children born of void or voidable marriages shall be treated to be legitimate unlike the English law which holds the child of a voidable marriage alone to be legitimate but not that of a void marriage (see: Section 9 of the Matrimonial Clauses Act, 1850). 64. In order, therefore, to give full effect to what was intended to be achieved by enacting Section 16 by Act No. LXVIII of 1976 pointing out in the Notes to the Clauses of the Bill and the Amending Act, 1976 that:

"this clause seeks to substitute

Section 16 so as to clarify the

intention and to remove the

difficulties in interpretation." 65. The Amended Section 16 is quoted below"

"16. Legitimacy of children of void

and voidable marriages.-(1)

Notwithstanding that a marriage is

null and void under section 11, any

child of such marriage who would

have been legitimate if the

marriage had been valid, shall be

legitimate, whether such child is

born before or after the

commencement of the marriage Laws

(Amendment) Act, 1976 (68 of 1976),

and whether or not a decree of

nullity is granted in respect of

that marriage under this Act and

whether or not the marriage is held

to be void otherwise than on a

petition under this Act.

(2) Where a decree of nullity

is granted in respect of a voidable

marriage under Section 12, any

child begotten or conceived before

the decree is made, who would have

been the legitimate child of the

parties to the marriage if at the

date of the decree it had been

dissolved instead of being

annulled, shall be deemed to their

legitimate child notwithstanding

the decree of nullity.

(3) Nothing contained in sub-

section (1) or sub-section (2)

shall be construed as conferring

upon any child of a marriage which

is null and void or which is

annulled by a decree of nullity

under Section 12, any rights in or

to the property of any person,

other than the parents, in any case

where, but for the passing of this

Act, such child would have been

incapable of possessing or

acquiring any such rights by reason

of his not being the legitimate

child of his parents." 66. The question now to be considered is the question relating to the ’vires’ of the Section its present from, or, to put it differently, if Section 16, as originally enacted, contravened, any way, Article 14, for the reason that it discriminated between two groups of illegitimate children similarly circumstanced, does the Section, after its amendment by Act No. LXVIII of 1976 continue to be still violative of Article 14. 67. There is always a presumption that an Act made by the parliament or the state Legislature is valid; so also there is a strong presumption in favour of the validity of legislative classification. It is for those who challenge the Act as constitutional to show and prove beyond all doubts that the legislature arbitrarily discriminated between different persons similarly circumstanced. this presumption, however, can be displaced by showing that the discrimination was so apparent and manifest that any proof was hardly required. Section 16, as originally enacted, fell under this category and we have already geld that to the extent it discriminated between two groups of illegitimate children in the matter of conferment of status of legitimacy, it was violative of Article 14. The vice or the mischief from which unamended Section 16 suffered has been removed or not is our next concern. 68. Hindu Marriage Act, 1955 is a beneficent legislation and, therefore, it has to be interpreted in such a manner as advances the object of the legislation. The Act intends to bring about social reforms. conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of Section 16. 69. Learned counsel for the appellant tried, at this stage, to invoke Heydon’s Rule which is a sound rule of construction of a statute firmly established in England as far back as in 1584 when Heydon’s case (1584) 3 Co Rep. 7a was decided that for the true interpretation of all statutes in general, four things are to be discerned and considered:

(1) What was the common law before

the making of the Act,

(2) What was the mischief and

defect for which the common law did

not provide,

(3) What remedy the parliament hath

resolved and appointed to cure the

disease of the commonwealth, and

(4) the true reason of the remedy;

and then the office of all the

judges is always to make such

construction as shall suppress the

mischief, and advance the

remedy.... 70. Heydon’s rule was approved in In re Mayfair Property Company (1898) 2 Ch 28 (CA), Wherein Lindly, M.R observed that the rule was "as necessary now as it was when Lord Coke reported Heydon’s case". This rule was also followed by the Earl of Halsbury in Eastman Photographic Material Company Ltd. vs. Comptroller General of Patents, Designs and Trade- Marks (1898) AC 571, 576 (HL) in the following words:-

"My Lords, it appears to me

that to construe the statute now in

question, it is not only legitimate

but highly convenient to refer both

to the former Act and to the

ascertained evils to which the

format Act had given rise, and to

the latter Act which provided the

remedy. These thee things being

compared, I cannot doubt the

conclusion. 71. Heydon’s case has also been followed by this Court in a number of decisions, all of which need not be specified here except K.P. Verghese vs. Income-tax Officer, Ernakulam and Anr. 131 ITR 597 = 1982 (1) SCR 629 = 1981(4) SCC 173; Bengal Immunity Co. Ltd. vs. state of Bihar AIR 1955 SC 661 and m/s Goodyear India Ltd. vs state of Haryana AIR 1990 SC 781. Heydon’s Rule is generally invoked where the words in the statute are ambiguous and /or are capable of two meanings. In such a situation, the meaning which avoids the mischief and advances the remedy, specially in the case of a beneficial statute, is adopted. There is some controversy whether Heydon’s rule can be invoked in any other situation specially where the words of the statute are clear and unambiguous. In C.I.T., M.P.& Bhopal vs. Sodra Devi AIR 1957 SC 832, it was indicated that the rule in Heydon’s case is applicable only when the words in question are ambiguous and capable of more than one meaning. That is what was expressed by Gajendragadkar, J. in Kanailal Sur vs. Paramnidhi Sadhukhan AIR 1957 SC 907. In Maunsell vs. olins (1975) 1 All ER 16 (HL) P-29, Lord Simon explained this aspect by saying that the rule in Heydon’s case is available at two stages; first before ascertaining the plain and primary meaning of the statute and secondly at the stage when the court reaches the conclusion that there is no such plain meaning.

Be that as it may, we are not invoking the Rule but we have nevertheless to keep in mind the principles contained therein to examine and find out whether the mischief from which the earlier legislation suffered on account of use of certain words has since been removed and whether the subsequent legislation is constitutionally valid and, on account of use of new phraseology, implements effectively the intention of the legislature in conferring the status of legitimacy on children, who were, otherwise, illegitimate. 72. Keeping these principles in view, let us now proceed to examine the amended provisions of Section 16. 73. Section 16 was earlier linked with Sections 11 and 12. On account of the language employed in unamended Section 16 and its linkage with Sections 11 and 12, the provisions had the effect of dividing and classifying the illegitimate children into two groups without there being any nexus in the statutory provisions and the object sought to be achieved thereby. It is to be seen whether this mischief has been removed. 74. Section 16(1) begins with a non obstante clause. 75. "Non Obstante clause is sometimes appended to a Section in the beginning, with a view to give the enacting part of the Section, in case of conflict, an over-riding effect over the provision or Act mentioned in that clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it, will have its full operation of that the provision indicated in the non obstante clause will not be an impediment for the operation of the enactment." (See: Union of India vs. G. M. Kokil (1984) (Supp.) SCC 196 = AIR 1984 SC 1022; Chandavarkar Sita Ratna Rao vs. Ashalata S. Gurnam (1986) (4) SCC 447(477) R.S Raghunath vs. state of Karnataka (1992) 1 SCC 335; G.P. Singh’s Principles of statutory Interpretation). 76. The words "notwithstanding that a marriage is null and void under section 11" employed in Section 16(1) indicate undoubtedly the following :-

(a) Section 16 (1) stands delinked

from Section 11.

(b) Provisions of Section 16(1)

which intend to confer legitimacy

on children born of void marriages

will operate with full vigor in

spite of Section 11 which nullifies

only those marriages which are held

after the enforcement of the Act

and in the performance of which

Section 5 is contravened.

(c) Benefit of legitimacy has been

conferred upon the children born

either before or after the date on

which Section 16(1) was amended.

(d) Mischief or the vice which was

the basis of unconstitutionality of

unamended section 16 has been

effectively removed by amendment.

(e) Section 16(1) now stands on its

own strength and operates

independently of other Sections

with the result that it is

constitutionally valid as it does

not discriminate between

illegitimate children similarly

circumstanced and classifies them

as one group for conferment of

legitimacy.

Section 16, in its present from is. therefore, not ultra vires the Constitution. 77. Section 16 contains a legal fiction. It is by a rule of fictio juries that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable 78. When an Act of parliament or a state Legislature provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired or in existence but for the enactment, the Court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. (See: M/s JK Cotton Spg. & Wvg. Mills Lte. vs. Union of India AIR 1988 SC 191; American Home Products Corporation vs. Mac Laboratories (1986) 1 SCC 456= air 1986 SC 137).

Lord Asquith in Bast End Dwellings Co. LTD. V. Finsbury Borough Council, (1952) AC 109 B: (1951) 2 All ER 587 observed that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which inevitably have flowed from it-- one must not permit his imagination to boggle’ when it come to the inevitable corollaries of that state of affairs. (See also : M. Venugopal vs. Divisional Manager, LIC (1994) 2 SCC 323. 79. In view of the legal fiction contained in Section 16, the illegitimate Children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents. 80. Obviously, appellants 2 to 6 were born prior to the date on which amendments were introduced in Section 16(1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislation prohibition on the second marriage, be treated as legitimate, and would, therefore, inherit the properties of their father, Raman Nair, under Section 16(3) of the Act. 81. In the result, all the three appeals are allowed. Respondents’ suit No. 38 of 1976 for exclusive possession of certain items of property is dismissed. The other suit, namely, O.S. No 39 of 1976 for partition of half share in the tenancy land, filed by the respondents against appellant No. 1 alone, is also dismissed. It will, however, be open to them to seek such relief as may be available to them under law. O.S. No 99 of 1977 filed by the appellants is decreed with the finding that the appellant no.1 being widow and appellant no. 2 to 6 being sons of Raman nair, are entitled to their share in the properties left by him. It is on this basis that the trial court shall now proceed to complete the proceedings in this suit for partition. Appellants shall be entitled to their costs.

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