V. Damodara Menon and Others vs P. Chathu Achan

Satyanarayana Rao, J.—The 18th defendant in the suit, O.S. No. 402 of 1938 on the file of the District Munsiff''s Court, Alatur, who is the

father of the petitioners in this civil revision petition died and these petitioners applied in the lower Court to get themselves impleaded as the legal

representatives of the deceased 18th defendant. Their mother also died sometime before 1932. The exact date of her death is not known. The

petition was rejected on the ground that as there was no valid marriage between the mother and the father of the petitioners they were not entitled

to come on record as the legal representatives of the deceased 18th defendant. This order was passed by the learned District Munsiff on 22nd

July, 1947. Under the Marumakatayam law before it was altered by the statute the children of a Marumakatayam marriage were not treated as

legitimate. To remedy this defect the Legislature intervened and finally the Madras Marumakatayam Act XXII of 1933 was passed. u/s 4 of that

Act the union between the parents governed by the Marumakatayam law was legalized subject to the conditions laid down in that section. One of

the requisites under that section is that the union should have been openly solemnized in accordance with the customary ceremonies if any,

prevailing in the community to which the parties belong or either of them belongs before the date on which the Act came into force and was

subsisting on such date. Under this limitation if on the date when the Act came into force one of the parties to the marriage died there being no

subsisting marriage on the date when the Act came into force the children of the union were treated as illegitimate for purposes of succession. This

was the interpretation placed upon the section by Horwill, J., in Deceased Thazhetheranjoli Kozhipro Achuthan Nayar''s heirs and children Vola

Veettil Kottapurath Janaki Amma and Another Vs. Tazhetheranjoli Kozhipro Raman Nayar and Others, which was affirmed on Letters Patent

Appeal by a Bench in V.K. Janaki Amma and Another Vs. Thazhetheranjoli Kozhipra Raman Nair and Others, .

This decision naturally created surprise among the people governed by that law and there was agitation by the public with the result, the

Government came forward with the amending Act called "" the Madras Act No. XXXII of 1947."" By Section 2 of the Amending Act the

expression ""and is subsisting on such date"" occurring in Section 4, Sub-section (1), Clauses (b)(i) and (b)(iii) were omitted. There were also other

amendments introduced in the Act which are not material for the purpose of this discussion. Section 6 of the Amending Act expressly made the

provisions of the Amending Act retrospective. It was expressly enacted that,

The amendments made by this Act shall be deemed to have been made in the said Act immediately before the passing thereof : Provided that

nothing contained in this Act shall affect-(a) any decree or order of a competent Court which became final before the commencement of this Act,

or (b) any sale which was held in execution of a decree or an order of a competent Court and which became final before the commencement of

this Act, or (c) any transfer or partition of property effected before the commencement of this Act.

In view of the clear language of Section 6 of the Amending Act it must now be held that the marriage between the petitioners'' father and mother

was valid notwithstanding the fact that their mother died before 1932 when the Madras Marumakatayam Act came into force and there was no

subsisting marriage on that date. The decision, therefore, in V.K. Janaki Amma and Another Vs. Thazhetheranjoli Kozhipra Raman Nair and

Others, is no longer good law. The petitioners, therefore, are the legitimate children of the deceased 18th defendant in the suit and they are the

persons entitled to come on record as the legal representatives of the deceased 18th defendant.

The civil revision petition is, therefore, allowed, the order of the learned District Munsiff is set aside and the lower Court is directed to add the

petitioners 1 to 4 herein as the legal representatives of the 18th defendant in suit O.S. No. 402 of 1938 on the file of the District Munsiff''s Court,

Alatur. The respondents, unfortunately, have not appeared in this Court and therefore no costs are allowed in this revision petition.