P.S. Viswanathan vs The Union of India (UOI) and Another

Srinivasan, J.—The petitioner appeared in person and submitted his arguments.

The prayer in this writ petition is to issue a mandamus striking down Sections 18 to 21 of the Hindu Adoptions and Maintenance Act, 1956 as

ultra vires of the Constitution of India and hence null and void or giving a ruling that sole surviving coparceners, who follow that Hindu Law have to

be maintained notwithstanding absence of such provisions in the aforesaid Act.

Even the prayer as framed in the writ petition cannot be granted by this Court. There is no question of issuing a mandamus striking down certain

sections of a legislation nor a mandamus declaring that certain persons will be entitled to maintenance even in the absence of a provision in a

legislation to that effect.

There is another obstacle to the maintainability of this writ petition, which is as follows: In this petition the two respondents are the Union of India

represented by the Secretary, Ministry of Law and Justice and the Secretary, Ministry of Parliamentary Affairs, Government of India, New Delhi.

The petitioner claims to be entitled to maintenance from his mother, but he has not chosen to implead her as a party to the writ petition. A writ

cannot be issued in the abstract or in the vacuum declaring any particular provision of law to be void or invalid. vide: Santlal v. State of Punjab AIR

1968 S.C. 485 The person who is interested and who would be opposing the petition with regard to the grant of relief in this writ petition is the

mother of the petitioner, but he has not impleaded her as a party. Hence this writ petition is not sustainable on the ground of non-joinder of

necessary party.

Apart from that the petitioner had filed earlier W.P.No.6835 of 1987. In that petition his prayer was to strike down Sections 18 to 20 of the

Hindu Adoptions and Maintenance Act, 1956 as null and void and ultra vires of the Constitution. That writ petition was dismissed by this Court on

11.4.1988 after hearing the petitioner. Without challenging the correctness of that order by way of an appeal, the petitioner has filed the present

writ petition for the very same relief. The writ petition is clearly barred by the principle of res judicata and it is not open to the petitioner to sustain

this writ petition, when the order rendered in the earlier writ petition holds the field. Even otherwise; on the merits of the case, the petitioner''s

contention cannot be accepted. It is the argument of the petitioner that in Kamalammal v. Venkatalakshmi AIR 1965 S.C. 1340 the right of the

sole surviving coparcener has been recognised and upheld by the Supreme Court. He placed reliance on paragraphs 7 and 8 of the judgment in

that case. The Supreme Court held in that case, after referring to the earlier text of Hindu Law, that a disqualified member of the joint Hindu family

is entitled to take and enjoy the whole estate, when he becomes the sole surviving member of the family. The Supreme Court referred to the

provisions of the Hindu Inheritance (Removal of Disabilities) Act 71 of 1928 and pointed out that prior to the said Act, a disqualified heir, who

was congenitally a deaf-mute, become by birth a coparcener with his father, so that the ancestral family properties vest in him as sole surviving

coparcener on the death of his father without other male issue. The Supreme Court also referred to Saraswati Vilasa written by Pratap arudradeva,

a recognised authority in Southern India and held that the liability to provide for maintenance of the disqualified heir under the Hindu Law fell into

two categories; one from, the existence of a particular relationship independent of the possession of any property and the other on possession of

property. According to the Supreme Court, a disqualified heir falls in both categories vis-a-vis the right to maintenance. The ruling of the Supreme

Court does not apply to the present case. As per the ruling of the Supreme Court, the petitioner is entitled to a share in the property and he may be

entitled to the entire estate as the sole surviving coparcener. But the present writ petition is to nullify certain sections of the Hindu Adoptions and

Maintenance Act on the ground of unconstitutionality. If the petitioner places reliance on the judgment of the Supreme Court his remedy is to file a

suit for recovery of possession of his properties, if according to him he is the only person entitled thereto, or to file a suit for partition, if according

to him other persons are also entitled to a share therein. He has already filed a suit for partition. Admittedly, the petitioner became blind only at the

age of 29 and he was not congenitally blind. After the Hindu Inheritance (Removal of Disabilities) Act, 1928, even congenitally blind person is not

disqualified under Hindu Law to inherit property. Hence, the petitioner cannot in any sense of the term call himself a disqualified heir and thus bring

himself within the ruling of the Supreme Court. Since according to him, he is a sharer in the property he cannot claim any maintenance from any

person. If at all, his right is only to proceed against the person in possession and recover his share of the property.

For the above reasons, this writ petition is without any merit and hence it is dismissed. There will be no order as to costs.