Living Will and Euthanasia

 Living Will

 

A “Living Will” is a legal document which detailed the medical care needed by the person, who wrote that Will. Because he may be unable to make conscious decisions or communication when medical attention needed.

 

In India - Living Will have legal since March 2018, when the Supreme Court created a process to allow terminally ill patients, with no hope of cure, to withhold or withdraw medical treatment and to die with dignity.

 

Living Will can be made by writing and attested by two witnesses and further attested by a Notary Public Lawyer or a Gazetted officer.

 

Voluntary euthanasia 

Euthanasia is a Greek word, and it means good-death or dying well.

 

Voluntary euthanasia is the ending of a person’s life at their request in order to relieve them of suffering. In some of the countries, this voluntary euthanasia is legal.

 

In India, since March 2018 passive euthanasia is legal under strict guidelines. Patients must consent through a ‘living will’, and must be either terminally ill, or in a vegetative state.

 

Euthanasia brings many ethical issues. Some believe that the terminally ill patient should have the right to choose death or refuse life-saving treatment. Some physicians state that it is in violation of Hippocratic oath.

**

Will or Settlement Notes

 Will or Settlement

How should you leave your assets behind?

A person can leave his assets to his/her blood relative or anyone either by a deed of Will or by a deed of Settlement or by forming family trust.

Deed of Will is a Testamentary document i.e. it will take effect only after the lifetime of the maker of that Will, called Testator.

Whereas a Deed of Settlement (to the family members) is instant document to take effect immediately on the execution of that deed. 

Whereas a Deed of Settlement (outside the family members), which is otherwise called a ‘Gift deed’ and it is also a kind of settlement.

Deed of Will

Will is a testamentary document (i.e. it will take effect only after the lifetime of the maker of that Will).

Privileged Will is a kind of Will, applicable to members of the Army, Airforce, and Naval forces, while they are in the warfare.

Unprivileged Will is a kind of Will, applicable to all others, i.e. the general public.

Only a Hindu, or a Christian can make his Will and bequeath (dispose) his properties (either movable or immovable or any other transferable assets).

A Muslim cannot make a Will and bequeath his entire property, but only his 1/3^rd share, that too, with the consent of all the other sharers, as per the Shariat law (Muslim law).

Will with Executor:

A Hindu, or a Christian can make his/her Will and thereby bequeathing his/ her properties to the legatees (beneficiaries) through his/her named Executor. The said Executor, after the death of the Testator (maker of that Will), would disburse / distribute the properties as per the terms of the said Will.

If there is no Executor appointed in the Will, the legatees (beneficiaries of the said Will) can themselves disburse the properties as per the terms of the said Will.

Will Executed in Madras City:

The Indian Succession Act 1925 is applicable to the Indian Christians regarding succession of the property of a Christian, who died intestate (i.e. died without any Will).

The Indian Succession Act 1925 provides certain provisions in case of an Indian Christian or a Hindu who had executed his Will within the City of Madras (i.e. if the Will related property situate within the original jurisdiction of the Madras High Court. That is, the old 100 divisions of the Chennai Corporation area).

Probate of a Will:

If an Indian Christian or a Hindu executed his/her Will and thereby appointed an Executor or many Executors, and such property situate within the old Madras City, then such Will should be produced before the Madras High Court and get it proved and to get a Probate order of that Will. Probate means to prove the execution of the Will and to prove the competency of the maker of that Will (called Testator).

If the Will does not contain any Executor, but that property situate within the old Madras City, then any one of the Beneficiaries of that Will, shall make an application before the Madras High Court, to get a “Letters of Administration of the Will”. It is also the same as in probate, by proving the said Will before the Court.

Mufassil Will:

If the property situate outside the old Madras City area, such Will need not be produced before any Court for any probate or letters of administration. But if any dispute arises, then such Will is to be produced before the concerned District Court and get it proved, through the witnesses of that Will.

Settlement deed:

Sec.126 of the Transfer of Property Act 1882 provides Gift of any property to anyone. 

This section applicable only to Hindus, and Christians. It will not apply to Mohammadens. Mohammadan gifts are called Hiba. Hiba is a Urdu word, and it means gift. As per Mohammedan law, i.e. Shariat law, the gift of property should be immediate one, i.e. the title of the property should transferred in the deed itself and possession also should be handed over on the day of gift itself. 

But in the case of Gift/ Settlement by a Hindu, or a Christian, handing over possession may be postponed to a later date or even after the lifetime of the Settlor/donor.

Settlement and Gift difference:

If the gift of property to the family members, it is called Settlement or Family Settlement. If the gift of property to any other third parties (apart from family members), it is a Gift. Therefore, gift and settlement are synonymous. 

Who are all Family members?

As per the Indian Stamp Act, 1899, the following persons are considered as ‘family members’ to the Settlor, viz, father, mother, husband, wife, son, daughter, grandchildren, brother, and sister. But all the other blood relations are not considered as family members.

Settlement in-presenti

The Settlement called as “in-presenti settlement” which means the Settlor (or the owner of the property) settled and passed on the title of the property to the Settlee on that Settlement deed itself. It is like that of a sale deed, in which the title passes to the buyer immediately.

Conditional Settlement:

Per contra, some Settlement deeds, though the title of the property (ownership of the property) is transferred to the Settlee in that Settlement deed itself, the possession of the settled property is retained by the Settlor himself for his lifetime or for the lifetime of his/her spouse. Here, the title alone is passed on the day of Settlement, but the delivery of possession is postponed to a future event.

Muslim Settlement or Hiba:

Whereas in a Muslim settlement, it is called a Hiba, both title of the property and the delivery of the possession of the property shall take effect in the settlement deed itself. It cannot be spitted as in the case of Hindu settlement. 

That is only difference between a Muslim Settlement or a Hindu/Christian settlement.

Difference between Settlement and Will:

Generally, in Settlement, title and possession would pass on the deed itself. In some case, though title passes immediately, possession would take after some event (i.e. after the lifetime of the Settlor).

But in the case of a Will, both title of the property and the possession of the property would take effect, only after the death of the maker of the Will, called Testator.

Suppose, in a Settlement deed, the Settlor postponed the title as well as the possession to take effect after his/her lifetime, then it is called a Will, though the name given to the document is ‘as if a Settlement deed’. The nomenclature (the name) does not define the deed, but only the contents (recitals) decide it.

**

Minor's contract Part 3

 Minor's contract Part 3

Sec.10 of the Contract Act provides that all agreements contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

Sec.11 of the Contract Act which lays down that every person is competent to contract who is of the age of majority. It follows that a person who is not the age of majority is not a person competent to contract and make a lawful contract within the meaning of Sec.10 of the Contract Act.

Under the English law a minor’s contract was only voidable at his option. Even under the Indian Contract Act was also to be regarded as such.

Under the Common Law of England a minor’s contract is not generally void but voidable at this option and if it appeared to the English Court to be for his benefit it should even be binding specially if the contract was for necessaries.

But in 1903 the Privy Council in Mohori Bibee vs. Dharmodas Ghose emphasizes the difference between the Indian law and the English law and clearly lays down that the Indian Contract Act makes it essential that all contracting parties should be competent to make a contract and a person who by reason of infancy is incompetent to contract, cannot make a contract within the meaning of the Act. 

While minor could not enter into a contract, the natural guardian who was representing the minor, could do so and that there is nothing either in the Contract Act or in the Partnership Act which prevents a natural guardian to enter into a contract of partnership for and on behalf of the minor. 

A guardian’s capacity to act for and on behalf of the minor within the two limits expressed by the Privy Council that he must do so within the scope of his authority and for the benefit of the minor, is unquestioned.

But even a guardian while he can supply the deficiency suffered by the minor in age in law cannot supply the defects which the law prohibits. 

If the law, as Sec.30 of the Partnership Act prohibits a minor to become a partner in a firm, then no guardian acting on his behalf can over-reach that law and argue that as the guardian is a major, the minor becomes a partner of the firm which the law expressly prohibits because his guardian did it for him. Such a contract will be hit by Sec.23 of the Contract Act on the ground that it is forbidden by law. Therefore in such a case the guardian’s contract on behalf of minor resulting in making the minor a partner in a firm will be void ab initio and not voidable.

**

Minor’s Contract Part 2

 Minor’s Contract Part 2

The promise of infants should never have been held to be promises in law or to constitute a consideration for another promise.

There is nothing in the Contract Act which prevents an infant from being the promisee. The Indian Law recognized the capacity of the minor to accept a promise.

Sec.7 of the Transfer of Property Act makes capacity to contract, the limit of the capacity to transfer. The Section applies to property in general.

This Section does not in terms declare that a transfer by a person incapable of contracting is wholly void; nor does it prohibit it. The persons who are incapable of contracting are capable of transferring.

A transfer by an incompetent person is wholly void,

The Transfer of Property Act 1882 when enacted came into force only in limited areas though now it has been extended to nearly the whole India.

Even a gift of money by an infant was held good in Taylor vs Johnson (1898) 171. In the case of money in which not merely possession but title passes by delivery, a payment or delivery of money, even by an infant should be held sufficient to pass property.

As regards transfers of immovable property in all cases where the transfer can only be made by an instrument in writing registered, a minor may not be able to make a transfer at all; for an instrument executed by a minor cannot be admitted to registration. Sec. 35 of the Registration Act.

Sec.26 of the Negotiable Instruments Act. In a vast majority of cases promissory notes are made in consideration of a loan of money and if a minor were incompetent to pass property in money and cannot therefore be a payee, it would have been so enacted in the Act. A minor can evidently draw a bill or issue a cheque on his banker (a cheque is only a species of bill). No doubt he cannot be made liable on the bill, but his banker evidently can honour his cheque.

Sec.22 of the English Bills of Exchange Act which is quite similar to Sec.26 of the Indian Negotiable Instruments Act.

If a minor can pay by a cheque, it would be absurd to hold that he cannot pay cash so as to pass title to it. 

A minor partner can apparently transact the business of a partnership and if the partnership was a money lending business, he can make loans. (Sec.253 Clause (3) of the Contract Act).

Sec.7 of the Transfer of Property Act is in consonance with the principles laid down in England and America in respect of transfers by persons of deficient or limited contractual capacity. 

In Sections 35 and 38 of the Specific Relief Act ‘contract’ is used in the sense of both executed contract and executory contract, i.e. transfers and promises.

A promise by a minor may be void as it is not a contract, but a conveyance by a minor was not void.

Whether a minor can be a transferee of property?

The provisions of the Transfer of Property Act and the Trusts Act make it clear that an infant can be a grantee though he cannot ordinarily be a grantor.

Infants cannot make grants, they may accept them. (Palmer vs Low).

According to the Indian Contract Act, a minor is incompetent to make a contract. According to the Contract Act, a contract by a minor must be regarded as void and not merely voidable.

The contract should be for the benefit of the minor.

Even the Judges in England came to the conclusion that marriage was for the benefit of the minor. There is no question that in India it would be considered to be for the benefit of the minor.

Specific performance is merely a relief and not the cause of action; the cause of action is the breach of contract.

A contract of apprenticeship is held to be good because it is considered to be for the benefit if the minor. In the same way a contract of marriage is for the benefit of the minor.

Neither a contract of personal service nor a contract of marriage can be ordered to be specifically performed so that in either case the apprentice or the girl cannot be compelled to carry out his or her part of the contract against his or her wishes. However, if it is an enforceable contract, the other result, namely, the liability in damages of the party making the breach of the contract, would follow.

Doctrine of mutuality

The doctrine of mutuality in the matter of contracts entered into on behalf of the minor by the guardian can arise where the subject-matter is minor’s separate estate and all the cases which have refused performance of executory contracts relate to properties belonging separately to the minor.

A minor is not personally bound by any contract made on his behalf by his guardian.

A contract for sale of immovable property does not of itself create an interest in or charge on such property. (Sec.54 of the Transfer of Property Act).

If it is a contract of purely personal nature and no personal liability can be imposed on the minor, it must logically follow that the minor cannot be compelled to perform the contract; for the same reason he cannot take advantage of the contract and ask for specific performance. The purchaser therefore can only claim compensation against the guardian and not against the minor or his property, except in the case where the guardian uses the money obtained from the purchaser for the improvement of the minor’s estate, a case which stands on a separate footing.

Sec.24A of the Specific Relief Act debars the purchaser from claiming the relief of specific performance against the minor.

Under the Mohomedan law, a guardian has no authority to deal with the estate of a minor. As such, a contract to sell or purchase entered into by such guardian was held to be void and not binding on the minor. 

The position of a guardian of a Hindu minor is slightly different. The guardiain under the Hindu Law has the authority to charge the property of a minor or to sell it on grounds of necessity or benefit to the minor. Even so, it was not within the competence of the guardian of a minor to bind the minor’s estate by contract for purchase of immovable property. 

A distinction was also made between ‘executed contracts’ and ‘executory contracts’. In the case of executed contract, it was held even though it was for the benefit of the minor, it could not be specifically enforced.

Thus, upto 1948 it was firmly settled that a Hindu guardian could alienate infant’s property only in case of necessity and for the benefit of the estate and that he had no authority to enter into a contract to purchase property for the minor and that such contract could not be specifically enforced.

In the case of ‘executed contracts’, it was, however, held that the transaction could be set aside only on proof that the guardian had no authority to enter into a contract or that it was not for the benefit of the minor.

Whatever might be the case with regard to the position of minors belonging to other regions even with regard to contracts for sale of property which are governed by the provisions of the Guardians and Wards Act, so far as Hindu minors are concerned, there is no difficulty in holding that the guardian of a Hindu minor is competent to enter into a contract of sale of the minor’s property if it is for the necessity of the minor or the minor’s estate.

**

 

 

Minor’s contracts Part 1

 Minor’s contracts Part 1

The Judicial Committee held that a guardian had no power to bind the minor and the minor was not entitled to specific performance of the contract. (Mir Sarwarajan vs Fakirudding Mahamed, 39 Cal. 232: 39 IA 1 PC).

A guardian’s contract for sale, though supported by necessity or benefit, cannot be specifically enforced against the minor. (Ramakrishna Reddiar* vs Chidambra Swamigal, 54 MLJ 412: AIR (15) 1928 Mad 407 & Raghunathan vs Ravuth Kanni, ILR (1938) Mad 928: AIR (25) 1938 Mad 765).

A minor, who had attained majority, could specifically enforce a contract of sale entered into by his guardian when the purchaser had entered into possession of the property under the contract, but had not paid the consideration. (Adinarayana vs Venkasubbiah, AIR (27) 1940 Mad 625).

But Courts in India enforced a guardian’s contract for sale of the ward’s property if the transaction was supported by necessity or was beneficial to the minor. (Innatunnissa Bibi vs Janakinath, 22 CWN 477: AIR (5) 1918 Cal 877).

The Judicial Committee held that a contract for sale of the ward’s property concluded by a guardian competent to act and being for the ward’s benefit is enforceable against the minor. (Subramaniam vs Subba Rao, ILE (1949) Mad 141: AIR (35) 1948 PC 95).

Therefore the decision in Ramakrishna Reddiar* (AIR (15) 1928 Mad 407) cannot be accepted as correct statement of law.

Under the Hindu law (Old Hindu law) a guardian has the power to sell or mortgage the estate of his minor ward for the necessities or benefit of the minor, is too well established to require any citation of authority.

A guardian cannot do indirectly what the minor cannot do directly by entering into a contract.

That except in the case of necessaries supplied to a minor within the meaning of Sec.68 of the Contract Act, the creditor cannot obtain the estate of a minor on the basis of a contract entered into by the guardian and could only avail himself of the right of subrogation. 

If the guardian’s contract is unsupported by necessity or benefit to the minor, it would be in excess of his powers as guardian and the contract would be unenforceable against the estate of the minor on that ground.

Both in British India and in England, many contracts for marriage are made while one of the parties is a minor. In England, the question arose that whether the minor could claim damages for breach of such a contract. The question was decided in Holt vs Ward (1732) 2 Stra. 937, and held that in England the contracts of minors at that date were held under common law to be voidable or void, that is to say, the minor could enforce performance of the contract as against the other adult party, but the adult party could not enforce it against the minor.

Therefore the Infants Relief Act of 1874 was passed which made certain contracts by minors mentioned therein void. That Act, however, left contracts of marriage untouched.

In India, upto the decision of the Privy Council in Mohori Bibee vs Dharmadas Ghose (1903) 30 Cal. 539, that the contracts of minors were voidable.

An infant is capable of acquiring property by gift which the law requires must be accepted. Sec.127 of the Transfer of Property Act shows that a donee who is not competent to contract, an infant is within the category, can accept a gift even of property burdened with an obligation though he will not be bound by the acceptance and can repudiate it when he becomes competent to contract. (Subramania Iyer vs Sitha Lakshmi, ILR (1903) AC 6).

An infant may be admitted to the benefits of a partnership though he cannot be made personally liable for any obligation of the firm. (Sec.247 of the Contract Act).

Similarly a minor may accept a trust and can be a trustee though he cannot execute a trust involving the exercise of discretion. (Sec.10 of the Indian Trust Act).

All these indicate that what is meant by the proposition that an infant is incompetent to contract or that his contract is void if that the law will not enforce any contractual obligation of an infant.

As for the infant’s legal position with reference to transfers of property, he is undoubtedly capable of holding property and can acquire property not only by inheritance or bequest but also by gift. 

Sec.7 of the Transfer of Property Act lays down generally that a person competent to contract may make a transfer but that Act nowhere says that a person cannot be a transferee of property unless he is competent to contract.

There is a substantial distinction between a ‘contract for a sale’ and ‘a sale’. A sale effects a transfer the property, while a mere contract for a sale does not.

The English law on the point as summarized in Halsbury’s Laws of England (Vol. XVII, pages 75 and 76. The acquisition of property being generally beneficial, an infant can take property, both real and personal in manner whatever, either by descent, intestacy or will, or by purchase or gift or other assurance inter vivos except where it is necessarily prejudicial to do so.

A purchase of property, or the acceptance of a gift of property, by an infant is voidable by him. But in the meantime the property is vested in him.

Among writers of textbooks Dr Rash Behari Ghosh, the learned author in India, states the law correctly when he say (page 195) that an infant being a person capable of holding property can well be a mortgagee and that the disabilities which attend the creation of a mortgage do not attach to the acceptance of a security.

In America also the law seems to be that an infant can take a mortgage (see Jones on Mortgages, Article 131).

A mortgage transaction according to the definition of the Transfer of Property Act imports the existence of a loan or debt or an engagement which may give rise to a pecuniary liability and a transfer of an interest in specific immovable property to secure the repayment of the debt or the performance of the engagement.

Unless there is a binding promise to pay money either personally or out of the property of the person bound, there cannot be any mortgage at all.

A debt has been defined as a sum of money due by certain and express agreement. (Bouvier’s Law Dictonary, Vol-I, page 786; Blackstone, page 154).

Different modes of enforcing the security are prescribed by the Transfer of Property Act and the only mode by which a simple mortgagee can enforce the security is by bringing the property to sale through Court.

It is settled law that an infant cannot bind himself by a promise. But whether the converse follows is the question. 

A promise in law or an enforceable promise is a contract as defined by the Contract Act. A contract should be supported by lawful consideration. If the promise is an enforceable promise, it becomes a contract.

Even in unilateral contracts, there must be two parties, and there must be an assent or agreement of the minds of both the parties. In unilateral contracts, only one of the parties is under a legal obligation. The contract is therefore one sided, though the consent of both the parties is essential. (Street’s Foundation of Liability, Vol. II, p.53).

**

 

 

Marumakkathayam marriage

 Marumakkathayam marriage 

PS Venkataraman vs AC Janaki (1939) 1 MLJ 520, AIR 1939 Madaras 595.

Madras High Court Judgment

In this case the validity of the alleged marriage between PS Venkataraman and AC Janaki was in question.

PS Venkataraman, the plaintiff, is a Brahmin by birth and follows the Hindu religion. He was the Managing Director of a Film company in Madras.

AC Janaki, the defendant, is a Nair lady belonging to a respectable Nair tarward of Malabar. She was employed in the said Film company in Madras.

PS Venkataraman alleged in his plaint that he and AC Janaki went through a form of marriage according to Hindu rites and ceremonies at a village called Tiruneermalai, a few miles away from Madras, on 21^st December 1934.

From the day of marriage on 21^st Dec 1934 the day up to 4^th April 1935 (for about 4 months), they lived together as husband and wife in Madras.

Thereafter, she left Madras and went to her parents’ home at Malabar and refused to return and live with PS Venkataraman. Hence he filed the suit for restitution of conjugal rights (to come and live with him).

But AC Janaki, the defendant, denied the factum of marriage and her living with him. She stated that she resigned her post in the said Film company and left Madras in April itself. Even assuming the marriage to be true, she denied the validity of the said marriage and questioned the jurisdiction of the Court to entertain the suit.

Her written statements are: “The defendant (AC Janaki) is a Hindu, permanently resident in the Kadirur village, Kottayam Taluk, North Malabar, governed by the Marumakkathayam Law of Inheritance. Under Sec.11 of the Madras Marumakkathayam Act, the present suit is not maintainable.”.

She further alleged that on the alleged date of marriage, i.e. 21^st December 1934, the plaintiff PS Venkatraman, has been a married man (i.e. he married another lady) having married in his own community and the said earlier marriage was subsisting on the date.

She, AC Janaki further stated that under Sec.5 of the Madras Marumakkathayam Act, the plaintiff (PC Venkataraman) was legally incompetent to marry AC Janaki, on account of the continuance of his prior marriage. Hence the alleged marriage between PC Venkataraman and AC Janaki is a void one.

PS Venkataraman said “AC Janaki has openly and willingly married me with all the religious ceremonies according to Hindu Shastras. She was fully aware before and at the time of my marriage with her that I had already a wife. She expressed her willingness and relinquished her rights under the customary of law of Marumakkathyam, which prohibited a Nair female to marry a married man. I have got respectable witnesses to prove all these facts.”

The question here was whether such marriage a valid one or not.

As per the Hindu custom (prior to 1949 Hindu Marriage Act) a Hindu can marry another lady, during his first wife is living, and such second marriage is a valid one.

But as per the Nair custom, a Nair girl married a man, who had already married another lady, is not a valid marriage.

The Trial Court (Madras City Civil Court) dismissed the suit filed by PC Venkataraman on the ground that the marriage is not a valid one.

He filed appeal before the Madras High Court.

In the High Court, the question was whether AC Janaki was a Marumakkathayee, on the date of her alleged marriage on 21^st Dec 1934, and whether the said marriage is valid one.

The defendant, AC Janaki was a Nair female governed by Marumakkathayee law. The Marumakkathayee law is a customary law followed and observed by the Nairs of Malabar. It cannot be denied that Nairs are Hindus and in the religious and social life they are governed by the same Shastras that govern the rest of the Hindus, who inhibit the Presidency of Madras, of which Malabar is a part. 

The Marumakkathayee law, whether it is a school of Hindu law, or a customary law, is a law which is prevailing in the Madras Presidency followed and observed by a certain section of the Hindus. 

As observed by Mayne in his book on “Hindu Law” 10^th Edition, at page 97: “In India there is no lex loci, every person being governed by the law of his personal status.” That is, a Hindu carries his personal law with him wherever he goes. His personal law is applicable wherever he lives.

Mayne again observed - “The Hindu law is not merely a local law. It becomes the personal law and a part of the status of every family law which is governed by it.”

Again the question arises: What is the law by which a person is governed, regard should be had to the law of the class or family to which he belonged. Of course, if he did not belong to any particular class or family it would be the general doctrines of Hindu law prevalent in that province wherein he resided. Once it is determined what the personal law of a person is, it will continue to be obligatory force on him.

Venkatasubba Rao, J, in Morarji vs AG of Madras (1928) 55 MLJ 478 remarks thus: “While ordinarily a British Indian subject can change his domicile and acquire a new law along with a new domicile, this right is denied to a Hindu. It must be borne in mind that I am now dealing with the law to be administered by a British Indian Court. Under that system of law, a Hindu carries of along with him his personal law wherever he goes and he cannot, however, fixed his determination may be, get rid of that law. Is the person a Hindu? Then, wherever the law of British India admits the operation of a personal law, his rights and obligations are determined by the Hindu law, that is, the law of his religion, subject to the exception that by statute any part of that law may be abrogated. 

THUS once it is known that a person is a Nair and belongs to a Malabar Tarwad, it follows that the personal law by which he is governed is the Marumakkathayam law of Malabar except in so far as that law has been modified or altered by Statute. 

In this case, the law that will be applicable to the defendant (AC Janaki) will be the Marumakkathayam law as modified by the Madras Marumakkathayam Act of 1932. 

Under that Act, a Marumakkathayee is defined as “a person governed by the Marumakkathayam Law of Inheritance”.

Under that Act, a Marumakkathayam is defined as “the system of inheritance in which descent is traced in the female line but does not include the system of inheritance known as the Aliyasantana.”

It is not denied that the defendant (AC Janaki) was a Marumakkathayee within the meaning of the Act before the date of marriage. If she was Marumakkathayee, under Sec.5, Clause 2, any marriage contracted by a male with a Marumakkathayee female during the continuance of a prior marriage of such male, shall be void, notwithstanding that his personal law permits of polygamy.

Thus, if on the date of the marriage the defendant (AC Janaki) was a Marumakkathayee, there can be no doubt that her marriage with the Plaintiff (PC Venkataraman) is void. 

But it is contended that the defendant (AC Janaki) renounced the Marumakkathayam law and ceased to be a Marumakkathayee and therefore the marriage must be deemed to be valid. The question is, is this contention tenable? 

Whether a person by a mere declaration can renounce the personal law by which he is governed? Raja Iyer, the advocate for the plaintiff PS Venkataraman was not able to cite any direct authority on that point.

But OTG Nambiar, who appeared for the defendant (AC Janaki) stated that it is a well-established principle of law that no person can alter the devolution of his estate by his own will. The same principle would also apply to the laws of the family or what may be called the law relating to personal status. 

In effect, the personal law by which a person is governed can only be renounced or changed in one of the modes recognized by law. One such is a change of religion. The other is by migration from one province to another. So far as India is concerned or by going and settling oneself in another country. Excepting by those modes it is not open to a person to renounce by a mere declaration the personal law to which he is subject. 

Mayne in his book on Hindu law observes: “A man cannot alter the law applicable to himself by a mere declaration that he is not a Hindu. He can only alter his existing status by becoming a member of such a religion as would destroy that status and give him a new one.”

The dicta of the Judicial Committee as to the voluntary character of customs in Abraham vs Abraham (1863) 9 MIA 195 imply a multiplicity of persons as well as of acts, and though they allow a man to transfer himself from the class to which he has hitherto belonged to another class, do not in either class permit him to make a law for himself different from that which governs his fellows. Such a permission would, in fact, be inconsistent with any rational notion of a law.

Therefore the personal law in all matters will continue to govern him. He cannot get rid of it however fixed his determination is, as observed by Venkatasubba Rao J. It must only be done in a mode recognized by law.

Raja Iyer, Advocate for the plaintiff PS Venkataraman, cited the decision of the Privy Council in Abraham vs Abraham (1863) 9 MIA 195 that it is competent for one to be leave his caste and enter other caste and be governed by the rules and regulations of the latter and therefore it would be open to the defendant (AC Janaki) to leave the Nair community to which she belonged and enter into a marriage with the plaintiff.

The fallacy in this argument is that the defendant was not leaving any community to which she belonged and entering into any other community. It cannot be asserted with any degree of reason that the defendant can become a Brahmin by marrying the plaintiff and enter into the community to which the plaintiff belonged. All that is alleged in this case is that by declaration she renounced the benefit of the Marumakkathayam Act by going through the form of Hindu marriage alleged by the plaintiff.

By conversion, a man can renounce the law by which he is governed and continue to elect to abide by the old law or the law of the religion which he has adopted in cases where there is no statutory prohibition, but until he does so, the old law will govern.

If there was no change of religion, the personal law would have a continuing obligatory force upon him.

In the result, the High Court confirmed the Trial Court order (which held that the marriage is not a valid one) and dismissed the Appeal. 

**

 

 

Marumakkathayam Law of Malabar

 Marumakkathayam Law of Malabar

The coral islands in the Arabian sea adjoining the Malabar coast, now known as Lakshadweep and earlier as Lakkadives, Minikoy and Amindivi islands, were parts of Malabar and South Canara Districts prior to the State re-organisation in 1956.

Though the name suggests that there are one hundred thousand islands, the archipelago consists of 37 islands of which 10 alone are inhabited.

The islands lie directly on the trade route between Africa, Arabia and Malabar. 

These islands therefore were a landmark for the navigators. 

Probably that was the reason why the group of islands was called Lakshadweep, 'Laksha' meaning a mark or a direction.

The earlier colonisers were perhaps Hindus who migrated from Malabar and particularly Kolathunadu, parts of present Cannanore District. 

The earlier inhabitants of Minikoy islands may be Singhalese.

Mr. R.H. Elly's I.C.S., who has prepared a short account of the Lakkadive islands and Minikoy is of the view that the islands supposed to have been peopled first are Amindivi, Kalpeni, Androth, Kavarathi and Agathi.

According to him the upper classes of the first four of these islands still claim to trace their descend from Nair or even Namboodiri families on the main land and these islands are known in consequence as tarwad islands in distinction to the other or Melacheri islands.

Sri N. Section Mannadiar who edited the Gazetteer of India on Lakshadweep observes that by no stretch of imagination could it be conceived that Namboodiris who were noted for their leisurely and pleasure seeking life had migrated to Lakshadweep.

There is every likelihood of those persons crossing the sea and inhabiting these islands. 

That appears to be the reason why many of the house names carry the word 'Illam'.

Mr. Ellis is of the opinion that the islanders under the influence of Arab traders were converted to Muhammadanism at sometime, probably in the 14th century.

Still the inhabitants of the island follow the maru-makkathayam system of inheritance which their forefathers had brought to the island at the time of migration.

On this aspect Sri Ellis says thus:

"The island law is a curious mixture of the ordinary Muhammadan Law with the Marumakkathayam Law of Malabar.

Property is regarded as either ancestral or self-acquired. 

Ancestral property is known as Velliaricha (literally Friday property), pronounced Belliaricha on the Amindivis.

Self acquired property is known as Tingalaricha (literally Monday property) on the Malabar islands and as Velliaricha on the South Kanara islands.

Velliyaricha properties (ancestral) are governed by the ordinary marumakhathayam law i.e. descend through sister's children and devolution on the descendants in the female line.

There is no codified law and the practices are governed by customs which differ from island to island. 

The tarwad properties can be partitioned only with the consent of all the members of the tarwad.

The editor further says that self-acquired or personal property is governed by Muhammadan law of succession. Here also there are variations in different islands.

In Androth island to which the parties to this suit belong succession to personal property is governed by marumakkathayam law unless it is specifically laid down in the Will of the deceased that it should go to his wife and children.

He further states that under the Muslim law followed in the islands the son is eligible for two shares in the property while the daughter gets only one share.

Mr. William Logan, Collector of Malabar District, in his Manual has stated that the inhabitants of Androth island compare favourably in physique with the people of the coast and in their customs and habits closely resemble the Mapillas of North Malabar.

He has no doubt mentioned about the complexities of the Muhammadan rules of inheritance and marriage and the existence side by side of the Makkatayam and Marumakkathayam rules which give rise to frequent litigation.

Anyway one thing is clear; Hindus and Mappillas of the Malabar and South Kanara coasts were the original inhabitants of the islands. 

They had carried with them their personal law. Muslims of North Malabar follow the marumakkathayam system of inheritance like Hindus.

That may be the reason why the original inhabitants followed that system even after conversion of the Hindus into Muhammadanism.

The division of tarwad properties can therefore be only in accordance with the marumakkathayam law as it stood before the Madras Marumakkathayam Act and the Aliyasanthana Act which were made applicable to the Malabar and South Kanara District of the erstwhile Madras Presidency.

W. E. Ormsby who had been the Chief Justice of the Travancore High Court in his book "Outlines of Marumakkathayam Law" says thus :

"Where division takes place it will usually be according to the Tai-varies or number of daughters of the original ancestress. Each Tai-vari may similarly be sub-divided should the members consent thereto, and so on until individual proprietorship is arrived at."

At page 719 of Raghavachariar's Hindu Law, 7th Edn. Vol. II. 

The learned author says that every member of the tarwad being equally interested in the property, any partition arrangement should not be on the stirpital but on the per capita basis.

The author gives an example of a tarwad (family) consisting of a brother and two sisters and the issue of the sisters. 

One sister has 9 children and the other has 14. According to the author the property has to be divided into 26 shares, one share being allotted to the brother, 10 shares to the tavazhi of the sister having 9 children and 15 shares to the tavazhi of the sister having 14 children.

The Madras High Court has relied on an article of Sundara Ayyar J. on Topics of Malabar Law which appeared in (1899) ILR 22 Mad 337. 

In that article the view propounded was that division is made not per stirpes but per capita.

**