This was a landmark judgment that persuaded the right of Christian women to enjoy equal property rights. In this particular case, the Supreme Court held that Christian women are entitled to have an equal share in their father’s property. This path-breaking judgment sent shock waves throughout the country. Till then, Christian women in Kerala were governed by the provisions under the 1916 Travancore-Kochi Christian Succession Act. Under this Act, a Christian daughter can inherit only one-fourth of the share of the sons in her father’s property.
In Mary Roy v. the State of Kerala, the petitioner woman filed a case against her brother; the case was filed because she wanted equal rights in her father’s property. Her contention before the court was to claim equal shares in her father’s property.
Keywords: Travancore Christian Succession Act, 1916, Cochin Christian Succession Act, 1921, Indian Succession Act, 1925, Sec.213 of Indian Succession Act, 1925, Indian Succession Act, 1865
APPLICABILITY OF INDIAN SUCCESSION ACT, 1925 TO CHRISTAIN
Neither the Indian Succession Act of 1865, nor the Act of 1925 was to apply to all Christians in the whole of India. The adjective “Indian” had to be used since certain rules applicable to Christians coming from outside India were not to apply to Indian Christian defined under Act. As State Government is empowered to exempt any race, sect or tribe or any part of such race, sect or tribe from the application of the Act, it notified the exemption of Native Christians in the province of Coorg, Tribal’s of North-East including Khasis and Jaintias in Khasi Hills and Jaintia Hills, and Mundas and Orans in Bihar and Orissa. Certain classes of the Roman Catholic Christians of the Latin rite and certain Protestant Christians living in Karunagappally, Quilon, Chirayinkil, Trivandrum, and Neyyattinkara were also not governed by the Indian Succession Act 1925.
Thus the analysis concerning the applicability of that law to Indian Christian shows great diversity. It is only when Indian Christians are not subject to any of the above customary or statutory laws; they are governed by the general scheme of inheritance laid down under the Indian Succession Act of 1925.
APPLICABILITY OF INDIAN SUCCESSION ACT, 1925 TO CHRISTAIN IN KERALA
The State of Kerala was formed under the State Reorganization Act, 1956 by integrating the Travancore- Cochin State and certain parts of Malabar. Before the reorganization in 1956, rights over property were based on customs that varied with denominations and regions. Uncertainty in the determination of property rights led to the passing of the Travancore Christian Succession Act (Regulation II of 1092) in 1916 for the State of Travancore and Cochin Christian Succession Act (Regulation VI of 1097) in 1921 State of Cochin.
Malabar area was to be governed by the Indian Succession Act, 1865, which was later amended by the Indian Succession Act, 1925. Indian Succession Act, 1925 was not made applicable to Travancore because the power of legislation over Travancore had never been conceded to the British. Parliament enacted the Indian Independence Act, 1947 under which existing laws were to continue and Travancore was declared to be independent for which Travancore Interim Constitution was framed which did not affect the continuance of marriage and succession laws among the Christians. Later Travancore and Cochin were merged with India and on the passing of the Constitution of India, all laws in force in the territory of Travancore-Cochin became subject to the Constitution of India under which it became Part B State. Then Part B States (Laws) Act, 1951 (Central Act III of 1951) was enacted to provide for the extension of certain enactments mentioned in the Schedule including the Indian Succession Act of 1925 to the Part B States and also for repealing the corresponding Acts and Ordinances then in force in the Part B States. Travancore Cochin among others was Part B state. When the Kerala State was formed by merging Travancore- Cochin State and certain parts of Malabar, specific provisions were made to save the “existing laws” and the “law in force” by Section 119 of the States Re-organisation Act, 1956.
Three different legislations prevailed in the three different regions- Travancore, Cochin, and Malabar guiding the succession right of Christians in the state.
FACT OF THE CASE
Before 1949, the State of Travancore which was a princely state, and the law applied to the territory of this area was regarded in Intestate Succession to the property of the member of the Indian Christian community was the Travancore Christian Succession Act, 1925.
Under this act there was a provision that a widow or mother becomes entitled under Section 16,17,21,&22, shall have only life interest terminable at death or on remarriage and a daughter shall not be entitled to succeed to the property of the intestate in the same share as the son but she will be entitled to one-fourth the value of the share of the son or Rs.5000 whichever is less and even this amount she will not be entitled on intestacy, if Streedharnom was provided or promised to her by the intestate or in the lifetime of the intestate, either by his wife or husband or after the death of such wife or husband by her or his heirs.
In 1949, the State of Travancore merged with the former state of Cochin to form a Travancore Cochin. The reason behind such a merger was that the government wanted to bring uniformity in legislations in the whole part of India including this Part-B state, therefore the parliament enacted State Act in 1951, providing 372 for an extension to another part of the states including the implementation of Indian Succession Act, 1925.
In 1983 Mary Roy, a Syrian Christian woman, daughter of wealthy parents, went to a court to challenge the Travancore Christian Act, under which daughter inherit only one-fourth of the shares of the sons, subject to a maximum of Rs.5000 after the death of his property.
The petitioner, therefore, challenged it with filling a writ petition to Supreme Court and in which the contention was that Sections 24, 28, and 29 of the Travancore Christian Act, 1092 should be made unconstitutional and void.
ISSUE BEFORE THE COURT
- The first question that arose before the Hon’ble Supreme Court, for consideration was whether the provisions of the Travancore Christian Succession Act were ultra vires the Constitution.
- The contention raised before the court was whether after the coming into force of the Part States (Laws) Act 1951, the Travancore Christian Succession Act 1092 continues to govern intestate succession to the property of a member of the Indian Christian Community in the territories originally forming part of the erstwhile state of Travancore or is such intestate succession governed by the Indian Succession Act 1925 and if it continues to be governed by the Travancore Christian Succession Act 1092, whether sections 24, 28 and 29 of that Act are unconstitutional and void as being violative of Article 14 of the Constitution.
- Another related question that was raised before the Court was as to the impact of the Part B States (Laws) Act, 1951, on the Travancore Act.
FINDING OF THE COURT
The first thing that was derived by the court was that after the coming of the Indian Succession Act in forces in 1951 the Travancore & Succession Act, 1092 should have been repealed because the Indian Succession Act was applicable in that particular area. The court also stated that all the interstate succession who was a member of the Indian Christian Community in that particular area should have to be done governed under chapter 2 Part 5 of the Indian Succession Act of 1925.
The second finding of the court was that Sub-section 2 of Section 29 of the Indian Succession Act, 1925 didn’t save the provision regarding the Travancore Christian Act, 1092 and it can be made out that the Indian Succession Act of 1925 when applied to Part-B of Travancore area of Cochin, the Travancore Christian Succession Act continued to apply to Indian Christian in that particular Christian territories in the state of Travancore. When the government by resolution passed that Indian Succession Act should be made applicable in that particular area where the Indian Christian resided and it had a contradicting view with the Chapter II of Part V and the Travancore Christian Succession Act, 1092 was a law corresponding to Chapter II of Part V, since both dealt with the same subject matter, namely, intestate succession among Indian Christians and covered the same field. The fact that the Travancore Christian Succession Act, 1092 confined only to laying down rules of intestate succession among the Indian Christians while the Indian Succession Act 1925 had a much wide coverage cannot lead to the conclusion that the Travancore Christian Succession Act, 1092 was not a law corresponding to the Indian Succession Act. Further by Section 6 of Part States (Laws) Act, 1951 the Travancore Christian Succession Act, 1092 stood repealed in its entirety. When section 6 of Part States (Laws) Act, 1951 provided in unequivocal terms that the Travancore Christian Succession Act, 1092 which was a law in force in part States of Travancore-Cochin corresponding to Chapter II of Part V of the Indian Succession Act, 1925 shall stand repealed, it would be nothing short of subversion of the legislative intent to hold that the Travancore Christian Succession Act, 1092 did not stand repealed but was saved by section 29 sub-section (2) of the Indian Succession Act, 1925.
The court concluded that the judgment delivered by High Court should be overruled and the contention of the appellant are all sustainable and the legislative device to incorporate by reference is a well-known device where the legislature instead repeating the provision of a particular statute in another statute incorporate such provision in the latter statue by reference to the earlier statue. When the legislature was adopting this legislative device the language used was completely different from the one employed in Section 29(2) of the Indian Succession Act, 1925. The court also stated that the opening part of Section 29(2) is intended to be accepting provision and not a provision for incorporation by reference. Therefore the court had no hesitation in rejecting this contention urged on behalf of the respondents.
The court stated that the coming into force of Part-B states law act in 1951, the Travancore Cochin Succession Act 1092 is to be repealed and Chapter 2 of Part 5 of the Indian Succession Act 1925 has come into applicable and intestate succession to the property of members of the Indian Christian community in the territories of the erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925. On this view, it becomes unnecessary to consider whether sections 24, 28, and 29 of the Travancore Christian Succession Act, 1092 are unconstitutional and void. The court, therefore, allows the writ petitions and declares that intestate succession to the property of Indian Christians in the territories of the former State of Travancore is governed by the provisions contained in Chapter II of Part V of the Indian Succession Act, 1925.
The Supreme Court declared that the relevant law superseding the Travancore Christian Succession Act was the Indian Succession Act of 1925, which gives equal rights to daughters and sons. The court avoided the question of whether this act is violating the constitutional validity of sex equality. The court also declared the change retroactive to 1951, thus bringing the property of many Christian males into dispute. Protest greeted the judgment.
CONCLUSIONS DERIVED AFTER MARY ROY CASE
The case only decided the limited question as to the applicability of the Indian Succession Act, 1925 to the Part B States but it did not go directly into the issue of discrimination in property rights between males and females as violative of the right of equality under the Constitution or as to the declaration that male and female heirs are equally entitled to or are co-sharers to the property of their intestate parents. But it also extended the application of the Indian Succession Act 1925 uniformly to the Part B States. By uniformly applying this on Part B of the state it had done away with all the discriminatory provisions present under the impugned Acts. The daughter was now able to inherit as the son used to get his shares in the property of his father.
In case of intestate succession, all partitions already made following that the Travancore Act became invalid, and the daughter who under the Travancore Act had no share in the property of her parents now got the right to claim her share and thus reopen all partitions and family arrangements. The decision also has led to a rise in the frequency of the father allotting all property to his sons via testamentary disposition during his lifetime so that no share goes to his daughter after his death to avoid division of his property into smaller units. The daughters are compelled to sign documents declaring that their claims have been settled. The need is to make changes in the Indian Succession Act, 1925 for placing a limit on the right of testamentary disposition of property.