Muthanatt Thomas & Bindu Thomas v. Ivan M S alias Muthanatt George and others, Union of India and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943** **WA NO. 1610 OF 2021** **AGAINST THE ORDER IN I.A.1/21 IN WP(C) 12932/2021 OF HIGH COURT OF KERALA DATED 26.10.2021** ## **APPELLANTS/R1 & 2 IN I.A./PETITIONERS IN WP(C):** **1 MUTHANATT THOMAS AGED 57 YEARS, S/O LATE DEVASYA ALIAS SEBASTIAN MUTHANATT HOUSE, NEENDUNOKKI, KOTTIYUR P.O., IRITTY TALUK, PIN-670651** **2 BINDU AGED 47 YEARS W/O MUTHANATT THOMAS, MUTHANATT HOUSE, NEENDUNOKKI, KOTTIYUR P.O., IRITTY TALUK, PIN-670651** **BY ADVS. R.SURENDRAN S.MAYUKHA** ## **RESPONDENTS/PETITIONER & R3 TO 17 IN I.A/RESPONODENTS IN WPC:** **1 IVAN M S ALIAS MUTHANATT GEORGE AGED 44 YEARS S/O LATE DEVASYA ALIAS SEBASTIAN, PRIEST, RESIDING AT SANTHOME, IMPACT, V K C, THEVAKKAL P.O., PIN-682021, ERNAKULAM DISTRICT.** **2 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LAW AND JUSTICE, NEW DELHI-110001.** **3 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LAW AND JUSTICE, SECRETARIAT, THIRUVANANTHAPURAM-695001.** _**W.A.1610/2021**_ 2 ## **4 JOSEPH** - **AGED 68 YEARS** **S/O LATE DEVASYA ALIAS SEBASTIAN, FARMER, MUTHANATT HOUSE, NEENDUNOKKI, KOTTIYUR P.O., IRITTY TALUK, PIN-670651** - **5 THRESSIA ALIAS THANKAMMA AGED 66 YEARS** **D/O LATE DEVASYA ALIAS SEBASTIAN, FARMER, PAMPARA HOUSE, MANATHANA AMSOM DESOM, MANATHANA P.O, IRITTY TALUK, PIN-670674.** - **6 M S ELSY AGED 64 YEARS** - **D/O LATE DEVASYA ALIAS SEBASTIAN, KUDIPPARA HOUSE, AYYANKUNNU AMSOM, ANGADIKKADAVU, CHARAL P.O, IRITTY TALUK, PIN-670706.** - **7 SEBASTIAN MUTHANATT ALIAS PAPPICHI AGED 60 YEARS S/O LATE DEVASYA ALIAS SEBASTIAN, FARMER, MUTHANATT HOUSE, VALLITHODU, KILIYANTHARA P.O., IRITTY TALUK, PIN-670706** - **8 M S VALSALA AGED 56 YEARS** **D/O LATE DEVASIA ALIAS SEBASTIAN, PARAKKAL HOUSE, VALAYAMKODE DESOM, P.O.VELLIMANAM, IRITTY TALUK, PIN-670704** - **9 ANTONY MUTHANATT AGED 54 YEARS** **S/O LATE DEVASIA ALIAS SEBASTIAN, FARMER, MUNDAMATTOM HOUSE, KANICHAR AMSOM DESOM, P.O. KOLAKKAD, IRITTY TALUK, PIN-670673** **10 M S SALY AGED 51 YEARS, D/O LATE DEVASIA ALIAS SEBASTIAN, VALLIKKUNNEL HOUSE, MANATHANA DESOM, P.O.MANATHANA, IRITTY TALUK, PIN-670674** _**W.A.1610/2021**_ 3 - **11 M S SHYNI AGED 49 YEARS** **D/O LATE DEVASYA ALIAS SEBASTIAN, FARMER, VEETTIYANKAL HOUSE, ALAKKODE DESOM, KARTHIKAPURAM P.O., THALIPARAMBA TALUK, PIN-670571** - **12 M S SHOBHA AGED 47 YEARS** **D/O LATE DEVASIA ALIAS SEBASTIAN, FARMER, KELANKUNNEL HOUSE, P.O. KOZHANCHERY, KOZHIKODE DISTRICT, PIN-673503** - **13 M S SHEEBA AGED 49 YEARS** **D/O LATE DEVASIA ALIAS SEBASTIAN, T.C.6-217, JOS VILLA, PRASANTH VALLEY, PRASANTH NAGAR COLONY, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011** **14 JUDY AGED 58 YEARS W/O LATE MATHEW ALIA THANKACHAN, JUJA'S BEAUTY CLINIC, KADAPPAKKADA P.O., KOLLAM DISTRICT, PIN-691008** - **15 DONA AGED 29 YEARS** **D/O LATE MATHEW ALIAS THANKACHAN, RESIDING AT PARUVUMMEL HOUSE, NADAVAYAL, 670721, WAYANAD DISTRICT** **16 DIONA AGED 22 YEARS D/O LATE MATHEW ALIAS THANKACHAN, RESIDING AT PARUVUMMEL HOUSE, NADAVAYAL, 670721, WAYANAD DISTRICT** **SRI. S. MANU, ASST. SOLICITOR GENERAL-R2 SRI.AJITH VISWANATHAN-R1, SRI.K.P.HARISH, SR GOVT. PLEADER-R3 SRI.ABRAHAM K JOHN-R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**W.A.1610/2021**_ 4 ## J U D G M E N T Dated this the 1[st] day of December, 2021 ## S. Manikumar, CJ. Being aggrieved by the interim order passed in I.A. No.1 of 2021 in W.P(C). No.12932 of 2021 dated 26.10.2021, vacating the interim order dated 30.6.2021, by which trial in O.S. No.25/2016 and 26/2016 on the file of Munsiff's Court, Kuthuparamba was stayed, instant writ appeal is filed. 2. We have heard Mr. R. Surendran, learned counsel for the appellant on the grounds raised. 3. Writ petition has been filed in the year 2021 to declare that Section that Section 67 read with Section 58 of Indian Succession Act, 1925, in its application to Wills executed by persons belonging to Indian Christian religion is discriminatory, void and inoperative as it infringes the fundamental rights guaranteed under Article 14 and 15(1) of the Constitution of India. ## 4. Though arguments have been advanced on merits of the writ appeal, we are not inclined to act on the same, for the reason that what is sought to be declared, is ultra vires of the provisions of Section 67 read with Section 58 of the Indian Succession Act, 1925. _**W.A.1610/2021**_ 5 5. It is trite law that presumption is in favour of constitutionality of the statutory provisions. ## 6. Reference can be made to few decisions of the Hon'ble Supreme Court: ## (i) In **Ram Krishna Dalmia v. Justice S.R. Tendolkar** reported in AIR 1958 SC 538, a Full Bench of the Hon'ble Supreme Court held as under: "(a)...... (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain _**W.A.1610/2021**_ 6 individuals or corporations to hostile or discriminating legislation." ## (ii) In **Mohd. Hanif Quareshi v. The State of Bihar** reported in AIR 1958 SC 731, the Hon'ble Supreme Court observed as under: "The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must presume that the legislature understands and, correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation." ## (iii) In **Mahant Moti Das v. S.P. Sahi, the Special Officer In Charge of Hindu Religious Trust & Ors.** reported in AIR 1959 SC 942, the Hon'ble Supreme Court, held as under: "The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and further that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases _**W.A.1610/2021**_ 7 ## where the need is deemed to be the clearest......" (iv) In **State of Uttar Pradesh v. Kartar Singh** reported in AIR 1964 SC 1135, the Constitution Bench of the Hon'ble Supreme Court held that where a party seeks to impeach the validity of a rule on the ground of such rule offending Article 14, the burden is on him to plead and prove infirmity. This Court said: ".........if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the Court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of Article 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration. If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification of the zones and the prescription of the minimum standards to each zone, and where we have a rule framed with the assistance of a committee containing experts such as the one constituted under Section 3 of the Act, that presumption is strong, if not overwhelming........." ## (v) In **A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Mst.** **Ram Kali** reported in AIR 1968 SC 1, the Constitution Bench of the Hon'ble Supreme Court held as under: "........The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and _**W.A.1610/2021**_ 8 correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds." ## (vi) In **Pathumma & Ors. v. State of Kerala** reported in AIR 1978 SC 771, a Constitutional Bench of the Hon'ble Supreme Court held as follows: "It is obvious that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weak or sections of the society and for the improvement of the lot of poor people. The Court will therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognised that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same." (vii) In **M. Karunanidhi v. Union of India** [(1979) 3 SCC 431], the Hon'ble Supreme Court as under: "24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied: 1. That there is a clear and direct inconsistency between the Central Act and the State Act. 2. That such an inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a _**W.A.1610/2021**_ 9 situation is reached where it is impossible to obey the one without disobeying the other." ## (viii) In **M. L. Kamra v. Chairman-Cum-Managing Director, New** **India Assurance Co. Ltd.** , reported in AIR 1992 SC 1072, the Hon'ble Supreme Court held as under: "It is settled law that there is a presumption of constitutionality of the rule. The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, Since the legislature of the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions. Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the Constitution." (ix) The Hon'ble Supreme Court, while referring to the principles of interpretation of Entries in the legislative Lists, expanded the application to all ancillary or subsidiary matters in **Jijubhai Nanabhai Kachar v. State of Gujarat** reported in AIR 1995 SC 142 and held as under: "7. It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related articles of the Constitution. therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution. The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most _**W.A.1610/2021**_ 10 liberal construction upon the legislative entry so that it may have the widest amplitude...." (x) In **Peoples Union for Civil Liberties v. Union of India** [(2004) 2 SCC 476], the Hon'ble Supreme Court held that a statute carries with it a presumption of constitutionality and such a presumption extends also to a law which has been enacted for imposing reasonable restrictions in the fundamental right. It is further held that a further presumption may also be drawn that the statutory authority would not exercise the power arbitrarily. ## (xi) In **Karnataka Bank Limited v. State of Andhra Pradesh** [(2008) 2 SCC 254], the Hon'ble Apex Court held as follows: "19. The rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; to doubt the constitutionality of a law is to resolve it in favour of its validity. Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. [See **State of Bombay v. F.N. Balsara** (AIR 1951 SC 318)].” ## (xii) In **Government of Andhra Pradesh & Ors. v. Smt. P. Laxmi** **Devi** reported in (2008) 4 SCC 720, the Hon'ble Supreme Court has considered few decisions, on the presumption in favour of the constitutionality, as under: "58. The U.S. Supreme Court enunciated the principle that there is a presumption in favour of the constitutionality of Statute, and the burden is always _**W.A.1610/2021**_ 11 upon the person who attacks it to show that there has been a clear transgression of a constitutional provision. This view was adopted by the Constitution Bench of this Court in **Charanjit Lal Chowdhury v. Union of India & Ors.** [AIR 1951 SC 41 (para 10)], which observed: "Prima facie, the argument appears to be a plausible one, but it requires a careful examination, and while examining it, two principles have to be borne in mind: (1) that a law may be constitutional even through it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American Courts, which I consider to be wellfounded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton v. Texas Power and L Company, (248 U.S. 152 and 157), in which the relevant passage runs as follows. "It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by expression and that its discriminations are based upon adequate grounds." This view has been consistently followed thereafter. ## 59. Thus in **M/s. B.R. Enterprises v. State of U.P.** **& Ors.** (AIR 1999 SC 1867) this Court observed: "Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are _**W.A.1610/2021**_ 12 directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment, vide **Charanjit Lal Chowdhury v. Union of India** , (AIR 1951 SC 41); **State of Bombay v. F.N. Bulsara** , (AIR 1951 SC 318), **Mahant Moti Das v. S.P. Sahi** (AIR 1959 SC 942)". The following passage in Seervai, Constitutional Law of India (3[rd] Edn.) page 119 found approval in **Delhi Transport Corporation v. D.T.C. Mazdoor Congress** , (AIR 1991 SC 101). The Court held: "Seervai in his book Constitutional Law of India (3[rd] Edn) has stated at page 119 that: "the courts are guided by the following rules in discharging their solemn duty to declare laws passed by a legislature unconstitutional: 1) There is a presumption in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; 'to doubt the constitutionality of a law is to resolve it in favour of its validity'. 2) A statute cannot be declared unconstitutional merely because in the opinion of the court it violates one or more of the principles of liberty, of the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution" (emphasis supplied) 60. Similarly, in **Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Another** , (AIR 2001 SC 724) (vide para 9), a Constitution Bench of this Court observed: "There is always a presumption that the legislature does not exceed its jurisdiction and _**W.A.1610/2021**_ 13 the burden of establishing that the legislature has transgressed constitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will Shell Company of Australia v. Federal Commissioner of Taxation, (1931 AC 275) (Privy Council). The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded his fundamental rights then the State must justify that the law is saved. It is also a cardinal rule of construction that if one construction being given the statute will become ultra vires the powers of the legislature whereas on another construction which may be open, the statute remains effective and operative, then the Court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction". (emphasis supplied) 61. In **State of Bihar & Ors. v. Bihar Distillery Ltd.** , (AIR 1997 SC 1511) (vide para 18), a Constitution Bench of the Hon'ble Supreme Court observed: "The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less in-exactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality _**W.A.1610/2021**_ 14 of the enactment. After all, an Act made by the Legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void." 62. The same view has been taken by the Constitution Bench of this Court in **Hamdard Dawakhana & Anr. v. Union of India** , (AIR 1960 SC 554) (vide para 9) which observed: "Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people, that the laws it enacts are directed to problems which are made manifest by experience, and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment. Charanjit Lal v. Union of India, (1951 KLT OnLine 808 (SC) : 1950 SCR 869 : AIR 1951 SC 41); State of Bombay v. F.N. Baulsara, ( 1951 KLT OnLine 813 (SC) : 1951 SCR 682) at p. 708; AIR 1951 SC 318 at p. 326; AIR 1959 SC 942)." (xiii) In **Namit Sharma v. Union of India** reported in (2013) 1 SCC 745, the Hon'ble Supreme Court, held as under: "46. To examine constitutionality of a statute in its correct perspective, we have to bear in mind certain fundamental principles as afore-recorded. There is presumption of constitutionality in favour of legislation. The Legislature has the power to carve out a classification which is based upon intelligibledifferentia and has rational nexus to the object of the Act. The burden to prove that the enacted law offends any of the Articles under Part III of the Constitution is on the one who questions the constitutionality and _**W.A.1610/2021**_ 15 shows that despite such presumption in favour of the legislation, it is unfair, unjust and unreasonable." ## (xv) In **Jaishri Laxmanrao Patil v. The Chief Minister and Ors.** [(2021) 2 SCC 785], the Hon'ble Supreme Court observed as under: “11. It is no doubt true that the Act providing reservations has been upheld by the High Court and the interim relief sought by the Appellants would be contrary to the provisions of the Act. This Court in **Health for Millions v. Union of India** [(2014) 14 SCC 496] held that courts should be extremely loath to pass interim orders in matters involving challenge to the constitutionality of a legislation. However, if the Court is convinced that the statute is ex-facie unconstitutional and the factors like balance of convenience, irreparable injury and Public Interest are in favour of passing an interim order, the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation. Unless the provision is manifestly unjust or glaringly un-constitutional, the courts do show judicial restraint in staying the applicability of the same. It is evident from a perusal of the above judgment that normally an interim order is not passed to stultify statutory provisions. However, there is no absolute Rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this Court.” 7. Writ Court has not granted stay of the statutory provisions. When there is no stay of the provisions, sought to be declared as ultra vires or violative of the fundamental rights guaranteed under Article 14 and 15(1) of the Constitution of India, Courts in India, including trial courts are bound to take note of the existing statutory provisions and accordingly proceed with the cases pending on their file. _**W.A.1610/2021**_ 16 8. In the case on hand, writ court, while considering the application filed for vacating the interim order, by observing that trial of suit need not be stayed, has vacated the interim order dated 30.6.2021. 9. For the foregoing reasons and decisions stated supra, we are not inclined to interfere with the order in I.A. No.1 of 2021, vacating the interim order dated 30.6.2021. Accordingly, writ appeal is dismissed. Sd/S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou.