Mary Roy Vs State of Kerala

Supreme Court Verdict

After her divorce, Mary Roy alongwith her two daughters came to live in a cottage at

Udhagamandalam(Ooty). The cottage belonged to her father. Her father died intestate and his

property passed on to his male children as was the custom in Syrian Catholic families in those

days. As per the prevailing laws of the Travancore Successionn Act, 1916 and Cochin

Succession Act of 1921-

 A widow who returned to her parental home could enjoy the ancestral property until she

died or remarried.

 If a man did not leave behind a will specifying a share of his personal property for a

daughter, the daughter wouldn’t be entitled to a share of that property. She would,

however, be entitled to one-fourth of the value of the share of the son or Rs 5,000,

whichever was less.

Mary Roy was the daughter of P. V. Isaac, an entomologist and Susy Isaac. They

belonged to Syrian Catholic community. Mary Roy was born in 1933 and was the youngest

among four siblings in the family. She grew up in Delhi where she completed her schooling

before going to Madras (present day Chennai) to obtain a degree. She later moved to Calcutta

and worked as a company secretary. She married Rajeeb Roy, a Bengali Hindu tea plantation

manager in Shillong. They had two children. The marriage was said to have been an abusive

relationship, which ended in a divorce

Succession Act, 1916. Under the Travancore Christian Succession Act, male heirs were entitled

to the whole of the (a person who had died without making a will) property. The claims of the

daughters can be brushed aside after paying streedhanam(dowry). Mary had a complicated

relationship with her brother George Isaac. After the death of their father, George Issac asked

Mary to vacate the cottage at Ooty alongwith her two children. Mary refused to do so. Then she

was harassed, insulted and humiliated. Her brother had hired some goons who threatened her

to evacuate the place or else they would use brute and physical force against her. Mary Roy

blatantly refused to do as she did not have any other place to go to reside in. But her brothers

were persistent and kept on insisting for her to evacuate the place as they claimed that the

property belonged to them under the Travancore Succession Act of 1916 and that she was

illegally residing and claiming the property as hers.

Mary Roy felt that that her constitutional right to equality was being violated and hence

she decided to take this matter to the court so as to restore her right.
 Reason for Dispute-

The main reason for the dispute between Mary and her Brother was the Travancore

Succession Act,1916 and the provisions laid in it which governed the division of property of a

person who died intestate. These provisions did not give any entitlement in the property of the

parents, to the daughters (especially widows/mothers) in the family. This law did not recognize

coparcenary rights of descendants in the property, it only recognized acquisition of the property

through inheritance.

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. Three

different legislations prevailed in the three different regions- Travancore, Cochin, and Malabar

guiding the succession right of Christians in the state. 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. The 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. Before 1949, the State of Travancore

was a princely state, and the law as per the Travancore Christian Succession Act, 1925 applied

to the territory of this area, was regarded in Intestate Succession to the property of the member

of the Indian Christian community.

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.

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. 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. 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.

With regards to Mary Roy, the Travancore Succession Act, 1916 was depriving her

of her constitutional right and so she decided to sue her brother for her rights in her

father’s property. Mary Roy first filed a case against her brother George Isaac in order to

get equal rights in succession but her request was dismissed by the lower court. She then

filed an application in the Kerala High court against the judgment given to her in the lower
 court. The Hon’ble Kerala High Court passed a judgement in her favour. Even then her

brother did not give Mary her share in the family property. It is in such a situation that Mary

showed courage and filed a writ petition in the Hon’ble Supreme Court invoking

constitutional remedies under Article 32 of the Indian Constitution. The contention in her

writ petition was that Sections 24, 28, and 29 of the Travancore Christian Act, 1092 should

be made unconstitutional and void.

ISSUES 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.

 If the decision of Kerala high court was apt and valid and would therefore be applied

retrospectively.

Contentions Raised:
Petitioner

1.The contention of the petitioners was that these rules discriminated against women by

presenting that inter alia that as far as succession to the immovable property of the intestate is

concerned, a widow or mother becoming responsible under sections 16,17,21 and 22 will have

only life interest terminable at the death or on remarriage.

2. They stated that a daughter is not entitled to acquire the property of the deceased in the same

share as the son.

3. They will only be entitled to 1/4th the value of the son or Rs 5000 or whatever is less and

sometimes even this amount is not entitled to her.

4. They stated that it violated Article 14 of the Indian constitution

5. They also stated that had her gender been that of a male then she could have been able to

possess her deceased father’s property.

Respondent

1. The respondent had duly stated that the law was something that had been created in the olden

times and so to do away with it would be like a kick to the traditions and the norms followed by

many people.

2. They also stated that the laws that had been created in the past are important as a part of

legacy and therefore not much can be done about it.

3. They also upheld that since the laws were created and added in the olden times, they cannot

be at fault for it.

was on the way of becoming too ‘independent and modern’. They felt that the conservative

nature of the society was deliberately being challenged by her.

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-B States
(Laws) Act, 1951 the Travancore Christian Succession Act, 1092 stood repealed in its entirety.

When section 6 of Part-B 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.

1.1 On the coming into force of Part-B States (Laws) Act, 1951 the Travancore &

succession Act, 1092 stood repealed and Chapter II of Part V of the Indian Succession Act,

1925 became 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. [382 D-E]

1.2 The Indian Succession Act, 1925 was enacted by Parliament with a view to

consolidating the law applicable to intestate and testate succession. This Act being a

consolidating Act replaced many enactments which were in force at that time dealing with

intestate and testate succession including the Indian Succession Act, 1865. So far as Indian

Christians are concerned, Chapter II of Part V contains rules relating to intestate succession

and a fortiori on the extension of the Indian & Succession Act, 1925 to Part State of

Travancore Cochin, the rules relating to intestate succession enacted in Chapter II of Part V

would be applicable equally to Indian Christians in the territories of the former State of

Travancore.

1.3 Sub-section 2 of section 29 of the Indian Succession Act, 1925 did not save the

provisions of the Travancore Christian Succession Act, 1092 and therefore, it cannot be said

that despite the extension of the Indian Succession Act, 1925 to Part State of Travancore-
Cochin, the Travancore Christian Succession Act, 1092 continued to apply to Indian

Christians in the territories of the erstwhile State of Travancore. When the Indian

Succession Act, 1925 was extended to Part-B State of Travancore-Cochin every Part of that

Act was so extended including 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. me fact that Travancore Christian Succession Act, 1092 confined only to laying down

rules of intestate succession among the Indian Christians while Indian Succession Act 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-B States (Laws) Act, 1951 the Travancore Christian Succession Act, 1092 stood

repealed in its entirety. When section 6 of Part-B States (Laws) Act, 1951 provided in clear

and 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.

2. The legislative device of incorporation by reference is a well known device where the

legislature instead of repeating the provisions of a particular statute in another statute

incorporates such provisions in the latter statute by reference to the earlier statute. It is a

legislative device adopted for the sake of convenience in order to avoid verbatim

reproduction of the provisions of an earlier statute in a later statute. But when the legislature

intends to adopt this legislative device the language used by it is entirely distinct and

different from the one employed in section 29 sub-section (2) of the Indian Succession Act,
1925. The opening part of section 29 sub-section (2) is intended to be a qualificatory or

excepting provision and not a provision for incorporation by reference.

These Writ Petitions raise an interesting question as to 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. This question is of great importance because it affects the property rights of

women belonging to the Indian Christian Community in the territories of the former State of

Travancore. It is not necessary for the purpose of deciding this question to refer to the facts

of any particular Writ Petition. It will be sufficient to trace the history of the legislation in

regard to intestate succession to the property of members of the Indian Christian Community

in the territories forming part of the erstwhile State of Travancore. Prior to July 1949 the

State of Travancore was a prince b state and the law in force in the territories of that state in

regard to intestate succession to the property of members of the Indian Christian community

was the Travancore Christian Succession Act 1092 is Act was promulgated by His Highness

the Maharaja of Travancore with a view to consolidating and amending the rules of law

applicable to intestate succession among Indian Christians in Travancore.

The statement of objects and reasons for enactment of this Act provided that "the usages of

the various sections of the Christian community do not agree in all respects. Separate

legislation for the various sections of Christians is neither desirable nor practicable and is

likely to lead to much litigation and trouble. It is therefore thought necessary to enact a
common law for all the various sections of Indian Christians." Section 2 of the Act

accordingly provided:

"Except as provided in this Act, or by any other law for the time being in force, the rules

herein contained shall constitute the law of Travancore applicable to all cases of intestate

succession among the members of the Indian Christian community".

Sections 16 to 19 laid dawn the rules of law applicable to intestate succession among Indian

Christians. The contention of the petitioners was that these rules discriminated against

women by providing inter-alia that so far as succession to the immovable property of the

intestate is concerned, a widow or mother becoming entitled under secs.16, 17, 21 and 22

shall have only life interest terminable at death or on remarriage and that a daughter shall

not be entitled to succeed to the property of the intestate in the same share as the son but that

she will be entitled to one-fourth the value of the share of the son or Rs. 5,000 whichever is

less and even to this amount she will not be entitled on intestacy, if Streedhanom was

provided or promised to her by the intestate or in the life time of the intestate, either by his

wife or husband or after the death of such wife or husband, by his or her heirs and on

account of such discrimination these rules were unconstitutional and void as being violative

of article 14 of the Constitution.

On the view we are taking as regards the consequential effect of the extension of the Indian

Succession Act, 1925 to the territories of the former State of Travancore by virtue of Part-B

States (Laws) Act, 1951, it is not necessary to examine this challenge to the constitutional

validity of the rules laid down in the Travancore Christian Succession Act, 1092 and we do

not therefore propose to refer to them in detail, as that would be a futile exercise and would

unnecessarily burden the judgment. But it is relevant to point out that sec. 30 of the

Travancore Christian Succession Act, 1092 specifically excluded the applicability of the
rules laid down in secs. 24, 28 and 29 to certain classes of Roman Catholic Christians of the

Latin Rite and also to certain Protestant Christians living in certain specified Taluks,

according to the customary usage among whom, the male and female heirs of an intestate

share equally in the property of the intestate and proceeded to add ex majori cautela that so

far as these Christians are concerned, nothing in secs. 24, 28 and 29 shall be deemed to

affect the said custom obtaining among them. This was the law which governed intestate

succession to the property of members of the Indian Christian community in the territories

of the former State of Travancore.

In or about July 1949 the former State of Travancore merged with the former State of

Cochin to form Part-B State of Travancore - Cochin. There were also other Part-B States

formed out of erstwhile princely States and they were Hyderabad, Jammu & Kashmir,

Madhya Bharat, Mysore, Pepsu,Rajasthan and Saurashtra. With a view to bringing about

uniformity of legislation in the whole of India including Part-B States, Parliament enacted

Part-B States (Laws) Act, 1951 providing for extension to Part-B States of certain

Parliamentary Statutes prevailing in rest of India. Two sections of this Act are material,

namely, sec.3 and 6 and they provide inter-alia as follows :

"3. Extension and Ordinances of certain Acts -

The Acts and Ordinances specified in the Schedule shall be amended in the manner and to

the extent therein specified, and the territorial extent of each of the said Acts and Ordinances

shall, as from the appointed day and in so far as any of the said Acts or Ordinances or any of

the provisions contained therein relates to matters with respect to which Parliament has

power to make laws, be as stated in the extent clause thereof as so amended.

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.

 6. Repeals and Savings

 If immediately before the appointed day, there is in force in any Part State any

law corresponding to any of the Acts or Ordinances now extended to that State,

that law shall, save as otherwise expressly provided in the Act, stand repealed:"

 The Schedule to this Act referred to several statutes and one of these statutes was the

Indian Succession Act, 1925. The expression "the States", wherever occurring in

the Indian Succession Act, 1925. was substituted by the word 'India" and a new

definition was introduced in clause (cc) of sec. 2 of that Act defining "India" to mean

"the territory of India excluding the State of Jammu & Kashmir". The effect of sec. 3

read with the Schedule was to extend the provisions of the Indian Succession Act, 1925

to all Part-B States including the State of Travancore-Cochin with effect from 1st April,

1951 which was the appointed date under the Part –B States (Laws) Act, 1951. The

question is as to what was the impact of the extension of the Indian Succession Act,

1925 to the territories of the State of Travancore - Cochin on the continuance of

the Travancore Christian Succession Act, 1092 in the territories forming part of the

have the effect of repealing the Travancore Christian Succession Act, 1092 so that from

and after 1st April, 1951, intestate succession to the property of a member of the

Indian Christian community in the territories of the former State of Travancore was

governed by the Indian Succession Act, 1925 or did

the Travancore Christian Succession Act, 1092 continue to govern such

intestate succession despite the introduction of the Indian Succession Act, 1925. This

question has evoked divergence of judicial opinion, a single Judge of the Madras High

Court taking one view while a Division Bench of the Madras High Court as also the

former Travancore Cochin High Court taking other view. We shall proceed to consider

which view is correct .

 "29. Application of Part (1) This part shall not apply to any intestacy occurring

before the first day of January, 1866, or to the property of any Hindu,

Muhammadan, Buddhist, Sikh or Jaina.

 (2) Save as provided in sub-section (1) or by any other law for the time being in

force, the provisions of this Part shall constitute the law of India in all cases of

intestacy.

 Chapter II of Part V lays down the rules governing intestate succession in case of

persons other than Parsis and that is made clear by sec. 31 which declares that nothing in

Chapter II shall apply to Parsis. Chapter III enacts special rules for Parsi intestates and

lays down what shall be the principles relating to intestate succession among them. It

will thus be seen that so far as Indian Christians are concerned, Chapter II of Part V

contains rules relating to intesate succession and a fortiori on the extension of the Indian

Succession Act, 1925 to Part-B State of Travancore Cochin, the rules relating to

intestate succession enacted in Chapter II of Part V would be applicable equally to

Indian Christians in the territories of the former State of Travancore. But the respondents
 sought to resist the applicability of these rules on the ground that sec. 29 sub- sec.(2) of

the Indian Succession Act, 1925 saved the provisions of

the Travancore Christian Succession Act, 1092 and therefore despite the extension of

the Indian Succession Act,1925 to Part-B State of Travancore Cochin,

the Travancore Christian Succession Act, 1092 continued to apply to

Indian Christians in the territories of the erstwhile State of Travancore. This contention

urged on behalf of the respondents is plainly unsustainable and cannot be accepted.

 The principal infirmity affecting this contention is that it overlooks the repealing

provision enacted in sec. 6 of the Part-B State (Laws) Act, 1951. This section provides

that if immediately before the appointed day, that is, 1st April, 1951, there was in force

in any Part State any law corresponding to any of the Acts or Ordinances extended to

that State, that Law shall, save as otherwise expressly provided in Part-B State (Laws)

Act, 1951 stand repealed. Now the Indian Succession Act, 1925 was extended to Part

State of Travancore-Cochin by virtue of sec. 3 of Part-B State (Laws) Act, 1951 and if

therefore, there was in force in part State of Travancore-Cochin any law corresponding

to the Indian Succession Act, 1925 immediately prior to 1st April, 1951, such law would

stand wholly repealed. The petitioners contended that

the Travancore Christian Succession Act, 1092 which was admittedly in force in Part-B

State of Travancore Cochin immediately prior to 1st April, 1951, was a law

corresponding to Chapter II of Part V of the Indian Succession Act, 1925 and this law,

namely, the Travancore Christian Succession Act, 1092 must consequently be held to

have been repealed in its entirety on the extension of the provisions of Chapter II of Part

V to the Indian Succession Act, 1925 to the territories of the former State

of Travancore and if that be so, the continuance of

the Travancore Christian Succession Act, 1092 could not possibly be regarded as saved

by sec.29 sub-sec.(2) of the  Indian Succession Act,1925. The respondents made a faint
attempt to combat this argument by urging that the Travancore Christian & Succession

Act 1092 was not a law corresponding to the Indian Succession Act, 1925 since the latter

Act had a much wider coverage in that it dealt not only with rules relating to

intestate succession among Indian Christian but also laid down rules of

intestate succession among Parsis as also rules relating to testate succession, while

the Travancore Christian Succession Act, 1092 was confined only to laying down rules

of intestate succession among Indian Christians. This plea urged on behalf of the

respondents is wholly fallacious. It ignores the basic fact that when the Indian

Succession Act, 1925 was extended to Part-B State of Travancore-Cochin every Part of

that Act was so extended including 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. We may point

out that Mr. Justice Ismail of the Madras High Court sitting as a Single Judge of the

Madras High Court recognised the validity of this position in  Solomon V. Muthiah;

[1974] 1 Madras Law Journal 53 and held that "the conclusion is irresistible that

the Travancore Christian Succession Regulation II of 1902 is a law corresponding to the

provisions contained in Part V of the Indian Succession Act, 1925 so far

as Christians are concerned". The learned Judge following upon this view held that

the Travancore Christian Succession Act, 1092 was wholly repealed by virtue of sec.6

of  Part B States (Laws) Act, 1951 and it could not be held to have been saved by sec.29

sub-sec. (2) of the  Indian Succession Act, 1925. This conclusion reached by the learned

Single Judge was overruled by the Division Bench of the Madras High Court in D

Chelliah v. G. Lalita Bai, A.I.R. 1978 (Mad.) 66, but even this decision of the Division

Bench while disagreeing with the conclusion reached by the learned Single Judge

accepted the position that the Travancore Christian Succession Act, 1092 was a law

difficult to resist the conclusion that by sec. 6 of Part-B States (Laws) Act, 1951

the Travancore Christian Succession Act, 1092 stood repealed in its entirety. When sec.6

of Part-B States (Laws) Act, 1951 provided in clear and unequivocal terms that

the Travancore Christian Succession Act, 1092 which was a law force in Part-B 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 sec.29 sub-sec.(2) of the Indian Succession

Act, 1925. Of course, if there were any provision in Part-B State (Laws) Act, 1951

expressly providing that the Travancore Christian Succession Act, 1092 shall not stand

repealed despite the extension of Chapter II of Part V of the Indian Succession Act 1925

to the territories of the former State of Travancore, then undoubtedly

the Travancore Christian Succession Act, 1092 would not have stood repealed and

would have been saved. But admittedly there is nothing in Part-B State (Laws) Act, 1951

expressly saving the Travancore Christian Succession Act, 1092. The only argument

urged on behalf of the respondents was that sec.29 sub-sec. (2) of the Indian Succession

Act, 1925 had the effect of saving the Travancore Christian Succession Act, 1092 and

the latter Act therefore continued to govern Indian Christians in the territories of the

former State of Travancore. Now this contention of the respondent might perhaps have

required some consideration if the Travancore Christian Succession Act, 1092 had not

been expressly repealed and an argument had been raised that by reason of the extension

of the  Indian Succession Act, 1925, there was implied repeal of

the Travancore Christian Succession Act, 1092. Then perhaps an argument could have

been advanced that though both Chapter II of Part V of the Indian Succession Act, 1925

and the Travancore Christian Succession Act, 1092 covered the same field and dealt

there was no implied repeal of the Travancore Christian Succession Act, 1092 by the

extension of Chapter II of Part V of the Indian Succession Act 1925 and the continued

operation of the Travancore Christian Succession Act 1092 was saved by sec.29 sub-sec.

(2) of the Indian Succession Act, 1925. We very much doubt whether such an argument

would have been tenable but in any event in the present case there is no scope for such

an argument, since the Travancore Christian Succession Act, 1092 stood expressly

repealed by virtue of sec.6 of Part-B States (Laws) Act, 1951.

We are, therefore, of the view that on the coming into force of Part-B States (Laws) Act, 1951

the Travancore Cochin Succession Act, 1092 stood repealed and Chapter II of Part V of the

Indian Succession Act, 1925 became 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. We, therefore, allow

the writ petitions and declare 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.

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.