Supreme Court of India
MRS. MARY ROY ETC. ETC.versusSTATE OF KERALA & ORS.
- Citation
- 1986 INSC 22
- Decided
- 26 February 1986
- Disposal
- Case Allowed
- Bench
- P N BHAGWATI
Holding
The Travancore Christian Succession Act, 1092 was repealed by Section 6 of the Part B States (Laws) Act, 1951, and intestate succession for Indian Christians in the former Travancore territory is governed by Chapter II of Part V of the Indian Succession Act, 1925.
Summary
The Supreme Court examined whether the Travancore Christian Succession Act, 1092 continued to govern intestate succession for Indian Christians in the former State of Travancore after the Part B States (Laws) Act, 1951 extended the Indian Succession Act, 1925 to that territory. The petitioners challenged sections 24, 28 and 29 of the Travancore Act as violative of Article 14, but the Court first needed to decide the statutory hierarchy. It held that Section 6 of the Part B States (Laws) Act, 1951 expressly repealed any law in a Part B State that corresponded to an Act extended by that legislation; the Travancore Christian Succession Act, 1092 corresponded to Chapter II of Part V of the Indian Succession Act, 1925 and was therefore repealed. Consequently, intestate succession for Indian Christians in the former Travancore area is now governed by Chapter II of Part V of the Indian Succession Act, 1925, rendering the constitutional challenge unnecessary. The writ petitions were allowed.
Issues considered
- Whether the extension of the Indian Succession Act, 1925 to the Part B State of Travancore‑Cochin repealed the Travancore Christian Succession Act, 1092.
- Whether Section 29(2) of the Indian Succession Act, 1925 saved the Travancore Christian Succession Act, 1092 from repeal.
- Whether sections 24, 28 and 29 of the Travancore Christian Succession Act, 1092 are unconstitutional under Article 14 of the Constitution.
Legislation cited
- Constitution of Indias. Article 14, s. Article 32
- Indian Succession Act, 1865
- Indian Succession Act, 1925s. 29(2), s. 31, s. Chapter II of Part V
- Part B States (Laws) Act, 1951s. 3, s. 6
- Travancore Christian Succession Act, 1092s. 24, s. 28, s. 29, s. 30
Subjects
intestate successionIndian Christian communityPart B States (Laws) Actrepealincorporation by referenceArticle 14gender discriminationIndian Succession Act 1925Travancore Christian Succession Act 1092constitutional challenge
Judgment
371
A
MRS. MARY ROY K'l'C. ·:rm:.
Vo
STATE OF KFJIALA & ORS.
FEBRUARY 26, 1986
B
[P.N. BHAQ<'ATI, C.J. AND R.S. PATHAK, J.]
Intestate Succession to the property of a member of the
Indian christian Comnrunity in the territories originally
forming part of· the erstwhile State of Travancore - Merger of
State of Travancore with State of Cochin in July 1949 and
enactment of Part B States (Laws) Act, 1951 providing for c
extension of certain Parliamentary statutes to Part B St~tes -
Consequential effect of the extension of Indian Succession
Act, 1925 - Whether the Indian Succession Act, 1925 or the old
Travancore Cochin Succession Act 1092 (Kollan Era) will govern
the intestate succession from the date of extension - Indian
-~ Succession Act, section 29(2), scope of - Legislative device D
~ of incorporation by reference, explained.
Prior to July 1949, the State of Travancore waa a
princely State and the law in force in the territories of that
State in regard to intestate succession to the property of the
members of the Indian Christian Comml!lity waa the Travancore E
Christian Succession Act, 1092 (Kollan Era). Under the said
Act, a widow or mother becoming entitled under sections 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 aa
... I the son but she will be entitled to one-fourth the value of F
,. the share of the son or Rs. 5000 whichever is less and even
this amount she will not be entitled on intestacy, if
Streedhanom waa 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 her or
his heirs. · G
In or about July 1949, the former State of Travancore
merged with the former State of Cochin to form Part B State of
_ Travancore-<:ochin. With a view to bring!.ng about uniformity of
'llt1egislation in the whole of India, including Part-B States,
Parliament enacted Part B States (Laws) Act, 1951 providing H
372 SUPREME COURT REPORTS [1986] i s.c.R.
A
for extension to Part B States certain Parliamentary Statutes .>
prevailing in rest of India, including the Indian Succession
Act, 1925. As to the impact of the extension of the Indian
Succession Act, 1925, that is to say, whether it impliedly
repealed the Travancore-<:hristian Succession Act, 1092, diver-
gent judicial opinions were handed over one by a Single Judge
B of the Madras High Court and the contrary one by the Division
Bench of the Madras High Court and the former Travancore-
Cochin High Court. The petitioners therefore, have now
challenged, under Article 32 of the Constitution, Sections 24, r...,.
28 and 29 of the Travancore Christian Act, 1092 as unconstitu-
tional and void.
c Allowing the petitions, the Court,
HKU>: 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
D Act, 1925 becllllll! applicable and intestate succession to the ,_,.-
property of members of the Indian Christian collllllility 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]
E · 1.2 The Indian Succession Act, 1925 was enacted by
Parliament with a view to consolidating the law applicable to
intestate and testamentary succession. This Act being a
consolidating Act replaced many enactments which were in force
at that time dealing with intestate and testant succession
including the Indian Succession Act, 1865. So far as Indian
F
~~~~~ans t:rein~::::d,suC:::st::Onll: P:rt f~r~~:~~1":nru!: 1 -
e~tension of the Indian Succession Act, f925 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
G State of Travancore. [377 H, 378 A-B, F-G]
1.3 Sub-sec~ion 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,.,-
H
1925 to Part B State of Travancore-<:ochin, the Travancore ,
Chriatian Succession Act, 1092 continued to apply to Indian
MARY ROY v. STATE 373
A
"1- Christians in the territories of the erstwh.ile State of
Travaocore. [378 H; 379 A-8)
When the lndiao Succession Act, 1925 was extended to
Part-B State of Travaocore-COchin every Part of that Act was
so extended including Chapter II of Part V and the Travaocore 8
Christiao Succession Act, 1092 was a law corresponding to
Chapter II of Part V, since both dealt with the same subject
matter, namely, intestate succession amng Indiao Christiaos
- ) and covered· the same field. The fact that Travaocore Christiao
Succession Act, 1092 confined only to laying down rules of
intestate succession amng the Indiao Christiaos while Indiao
Succession Act had a 1111ch wide coverage caonot lead to the C
conclusion that the Travaocore Christiao .Succession Act, 1092
was not a law corresponding to the Indiao Succession Act.
Further by Section 6 of Part B States (Laws) Act, 1951 the
Travaocore Christiao 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 Travaocore D
Christiao Succession Act, 1092 which was a law in force in
~. part B States of Travaocore-COchin corresponding to Chapter II
of Part V of the Indiao Succession Act , 1925 shall stand
repealed, it would be nothing short of subversion of the
legislative intent to hold that the Travaocore Christiao
Succession Act, 1092 did not stand repealed but was saved by E
section 29 sub-section (2) of the lndiao Succession Act, 1925.
[380 A-H; 381 A-BJ
Sol._.. v. lluth1ab [1974) l M,L,J, Page 53; D, CJielliah
v. G, Lal.its Bai, A.I.R. 1978 (Madras) 66 (DB) refer~ed to.
- F
2, 1be 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 G
reproduction of the provisions of ao 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
'')esub-section (2) of the Indiao Succession Act, 1925. 1be
opening part of section 29 sub-section (2) is intended to be a H
qualificatory or excepting provision and not a provision for
incorporation by reference. [381 H; 382 A-C)
374 SUPREME COURT REPORTS [19861 t s.c.R.
A
Kurian Augusty v. llevaasy Aley, A.I.R. 1957 Travancore :,-
Cochin Page 1 distinguished.
ORIGINAL JURISDICTION Writ Petition (Civil) No.8260 of
1983 etc.
B (Under Article 32 of the Constitution of India.)
Ms. Indira Jai Singh, Ms. Kamini Jaiswal for the
Petitioners. "
!"-
G. Viswanath Iyer, G.P. Pai, V.J. Francis, S.
c Sukumaran, D.N. Misra, P.K. Pillai, C.S. Vaidyanathan, O.P.
Sharma, Hemant Sharma, R.N. Poddar and Madhu Moolchandani for
the Respondents.
Mandita Pandey, Mrs. K. Hingorani and Mrs. Rekha Pandey
for the Intervener.
D
The Judgment of the Court was delivered by
>
BllAGWATI, C,J, These Writ Petitions raise an interesting
question as to whether after the coming into force of the Part
B States (Laws) Act 1951, the Travancore Christian Succession
E Act 1092 continues to govern intestate succession to the pro-
perty 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
F
by the Tranvacore 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 Travan-
-
core. It is not necessary ·for the purpose of deciding this
G 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 terri-
tories forming part of the erstwhile State of Travancore.
H ~ior to July 1949 the Sta~e of Travancore was .,r-
princely 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
MARY ROY v. STATE [BHA.GWATl C,J,] 375
A
.,_ Christian Succession Act 1092. This Act was pronrulgated by His
Highness the Maharaja of Travancore with a view to consolidat-
ing and amending the rules of law applicable to intestate
succession among Indian Christians in Travancore. The state-
ment of objects and reasons for enactment of this Act provided
that "the U3ages of the various sections of the Christian B
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 nruch litigation and
trouble. It is therefore thought necessary to enact a connnon
law for all the various sections of Indian Christians."
Section 2 of the Act accordingly provided:
c
"Except as provided in this Act, or by any other
law for the time being in force, the rules herein
contciined shall constitute the law of Travancore
applicable to all cases of intestate succession
among the members of the Indian Christian commu-
-. nity". D
.../ Sections 16 to 19 laid down 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
illllllovable property of the intestate is concerned, a widP" or E
mother becoming entitled under secs. 16, 17, 21 and 22 shall
have only' life interest terininable at death o~ 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 F
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 G
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 th.is challenge to the constitutional
validity of the rules laid down in the Travancore Christian H
376 ~UPREME COURT REPORTS (1986] 1 s.c.R.
A
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
B 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
c 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
collllllnity in the territories of the former State of Travan-
core.
D 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, Jallllll.I & Kashmir, Madhya Bharat, Mysore, Pepsu,
Rajasthan and Saurashtra. With a view to bringing about
E 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 :
F
"3. Extension and anendment of certain Acts and ..
Ordfnances
The Acts and Ordinances specified in the Schedule
shall be amended in the manner and to the extent
G 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 con-
tained therein relates to matters with respect to
which Parliament has power to make laws, be as J ,
H stated in the extent clause thereof as so amended. , ·
MARY ROY v. STATE [BHAGWATI C.J.] 377
A
xx xx xx
6. Repeals and savings
If immediately before the appointed day, there is
in force in any Part B State any law corresponding B
to any of the Acts or Ordinances now extended to
that State, that law shall, save as otherwise ex-
pressly provided in the Act, stand repealed:"
The Schedule to this Act ref erred to several statutes and
one of these statutes was the Indian Succession Act, .1925. The
expression "the States", whereever occurring in the Indian· c
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 D
State of Travancore-Cochin with effect from 1st April, 1951
-.i 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 terri-
tories of the State of Travancore - Cochin on the continuance
of the Travancore Christian Succession Act, 1092 in the terri- E
tories forming part of the erstwhile State of Travancore. Did
the introduction of the Indian Succession Act, 1925 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 F
1
was governed by the Indian Succession Act, 1925 or did the
't' Travancore ··Christian Successiori Act, 1092 continue to gov_em
such intestate succession despite the introduction of the
Indian Succession Act, 1925? This question has evoked diver-
gence of judicial opinion, a single Judge of the Madras High
Court taking one view while a Division Bench of the Madras G
High Court as also the former Travancore Cocliin High Court
taking other view. We shall proceed to consider which view is
correct.
• -\.. The Indian Succession Act, 1925 ~as enacted by Parliament
with a view to consolidating the law applicable to intestate H
378 SUPREME COURT REPORTS [1986] 1 s.c.R.
A
and testamentary succession. This Act being a consolidating
act replaced many enactments which were in force at that time
dealing with intestate and testant succession including the
Indian succession Act, 1865. Part V of the Act relates to
intestate succession and it consists of a fasciculus of sec-
tions beginning with sec. 29 and going upto sec.56. The rules
B relating to testate succession are to be found in Part VI of
the Act which comprised 23 Chapters comnencing from sec. 57
and ending with sec. 191, We are concerned here only with
intestate succession and hence we shall confine our attention
to Part V of the Act. Sec. 29 which is the first section in
Chapter I of Part V deals with the applicability of the rules
c contained in that Part. This section is material and hence it
would be desirable to set it out in extenso
"2 9. Application of Pan:
( 1) This part shall not apply to any intestacy
D occurring before the first day of January, 1866, or ~
to the property of any Hindu, Muhammadan, Buddhist,
Sikh or Jaine. />
(2) Save as provided in sub-section (1) or by any
other law for the time being in force, the
E 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 delcares that nothing in Chapter
F II s~all apply to Persis. 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,
G 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 gr~und that
sec. 29 sub-sec.(2) of the Indian Succession Act, 1925 save..,,~
H the provisions of the Travancore Christian Succession Act,
MARY ROY v. STATE [BHAGWATI C.J.] 379
A
1092 and therefore despite the extell!!ion 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. B
The principal infirmity affecting this contention ia 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 ia, 1st April,
1951, ,there was in force in .any Part B State any law corres-
ponding to any of the Acts or Ordinances extended to that c
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 B State of Travan-
core-<:ochin by virtue of sec. 3 Of Part B State (Laws) Act,
1951 and if therefore, there was in force in part B State of
Travancore-<:ochin any law corresponding to the Indian D
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 E
Act, 1925. and this law, namely, the Travancore Christian
Succession Act, 1092 1111St 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 cont~nuance of the Travancore Christian S4'ccession F
Act, 1092 could not possibly be regarded as saved by sec.29
sub--sec.(2) of the Indian Succession Act, 1925. The respon-
dents made a faint attempt to combat this argument by urging
that the Tuvancore Christian Succession Act, 1092 was not .a
law corresponding to the Indian Succession Act, 1925 since th~
latter Act had a 1m1ch wider coverage·in that it dealt not only G
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 con-
fined only to laying down rules of intestate succession among
Indian Christians. This plea urged on behalf of the respon- H
380 SUPREME COURT REPORTS [19861 1 s.c.R.
A
dents 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
Chiistian Succession Act, 1092 was a law corresponding to
Chapter II of Part V, since both dealt with the. same subject
B 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
c Christian Succession Regulation II of 1902 is a law corres-
ponding 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 Travan-
core Christian Succession Act, 1092 was wholly repealed by
virtue of sec.6 of Part B States (Laws) Act, 1951 and it could
D 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 Jugde was overruled by the Division Bench of
the Madras High Court in D. a.eJ.liah v. G. Lalil:a Bai, A. I.R.
1978 (Mad.) 66, but even this decision of the Division Bench
while disagreeing with the conclusion reached by the learned
E Slngle Judge accepted the position that the Travancore
Christian Succession Act, 1092 was a law corresponding to Part
V of the Indian Succession Act, 1925. And if that be so, it is
difficult to resist. tl!e 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
F States (Laws) Act, 1951 provided in clear and unequi~ocal
terms that the Travancore Christian Succession Act, 1092 which
was a law force in Part B States of Travancore-Cochin corres-
ponding 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
G 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 States (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
H Indian Succession Act, 1925 to the territories of the former
MARY ROY v, STATE [BllAQIATI C.J,) 381
A
State of Travancore, then undoubtedly the Travancore ChrisUan
Succession Act, 1092 would not have stood repealed and would
have been saved. But admittedly there is nothing in Part B
States (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 B
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 terri-
tories of the former State of Travancore. Now this contention
of the respondent might perhaps have required some consider-
ation if the Travancore Christian Succession Act, 1092 had not
been expressly repealed and an argument had been raised that c
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 with the same D
subject·matter, namely, intestate succession Bl!klng Indian
Christians, there was no implled 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, E
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.
F
It was then contended on behalf of · the respondents,
~ though faintly, that by reason of section 29 sub-sec.(2), the
Indian Succession Act, 1925 nrust be deemed to have adopted bY
reference all laws for the time being in force relating to
intestate succession . including the Travancore Christian
Succession Act, 1092 so far as Indian Christian in Travancore G
are concerned. This contention was sought to be supported by
reference to the decision of the Travancore-COchin High Court
in Iurian Auggsty v. Devasay Aley, A.I.R. 1957 Travancore-
Cochin l, We do not think this contention is at all
- II. sustainable. The legislative device of incorporation by
'T~
reference is a well-known device where the legislature instead H
382 SUPREME COURT REPORTS [1986] 1 s.c.R.
A
of repeating the provisions of a particular statute in another
statue incorporates such provision 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
latter statute. But when the legislature intends to adopt this
B legislative device the language used by it is entirely dis-
tinct and different from the one employed in section 29 sub-
sec. (2) of the Indian Succession Act, 1925. The opening part
of section 29 sub-sec.(2) is intended to be a qualificatory or
excepting provision and not a provision for incorporation by
._
,
.
reference. We have no hesitation in rejecting this contention
c urged on behalf of the respondents.
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
D inteatate succession to the property of members of the Indian
Christian community in the territories of the erstwhiie 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
E and void. We, therefore, allow the writ petitions and declare
that intestate succession to the property of Indian Chris-
tians 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. There will be no order as
to costs.
F
S.R. Petitions allowed.
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