The curious case of Mary Roy

A version of this article was posted on May 18, 2020 on the author’s LinkedIn page, and can be accessed here

People who have read Arundhati Roy's iconic Booker winning book "The God of Small Things" will be familiar with the story of her mother Mary Roy, on whom the character of Ammu was very loosely based. In an interview, she clarified that while most of the story is a loose autobiography by Roy of her Kottayam (in Kerala) based family, in reality Mary never had any affair with a worker employed in the family's pickle business.

But this article is not concerned with the personal history of the Roy family (although it is very interesting and even has a connection with NDTV's Prannoy Roy). I wish to talk about a property dispute between Mary Roy and her brother George Issac (on whom the character of Chacko from the book is based) which indirectly resulted in a landmark case where the Supreme Court repealed the Travancore Christian Succession Act, 1916 ("Travancore Act") and paved the way for intestate succession to property by Syrian Christian Women in the State of Kerala.

A Brief History

Prior to Independence, the modern state of Kerala then comprised of three major administrative units- the erstwhile State of Travancore, the erstwhile State of Cochin and the Malabar area under British Indian rule. At the time of Independence, three separate laws existed in the region with respect to intestate succession between Christians living in the area, the Travancore Act, the Cochin Christian Succession Act, 1921("Cochin Act") and the Indian Succession Act, 1925("Indian Succession Act").

While under the State Reorganisation Act, 1956, these three regions were integrated to form Kerala, the above mentioned legislations continued to guide intestate succession in the respective regions for which they were originally promulgated. The problem arose with respect to the treatment of female heirs vis-a-vis the male heirs; the Travancore Act did not treat the female heir as a sharer at all, and Cochin Act considered them sharers subject to them not being given Streedhan. Further, the Travancore Act only entitled the female heir to 1/4th the value of the share of the son, or Rs. 5,000 whichever was lower.

In the early 1960s, when Mary left her husband and sought refuge with her two children in her deceased father's cottage in Ooty, her family asked her to vacate the property. While eventually she was not thrown out of the property, the humiliation remained. It was as a result of this that she filed a Public Interest Litigation in the Apex Court challenging the constitutionality of the Travancore Act.

The Case

Two questions were posed to the Supreme Court in this case-

• Whether with the coming of the Part B State (Laws) Act, 1951, intestate succession in the territory forming part of the erstwhile State of Travancore is governed under the Travancore Act or the Indian Succession Act, 1951?

• Whether, if the Travancore Act applies, certain sections of the Act were violative of Article 14 of the Constitution and therefore unconstitutional and void?

The case was heard by a division bench comprising Chief Justice of India (as he was then) Justice PN Bhagwati and Justice RS Pathak.

Indian Succession Act will apply on all States

After Independence, the use of "states" was replaced with "India" throughout the Indian Succession Act, with a new definition clause Section 2(cc) defining "India" to mean the "territory of India". The court reasoned that this makes the Act applicable over the territory of the erstwhile State of Travancore as well.

Travancore Act and Cochin Act stand repealed

Next, the court addressed what impact will the extension of Indian Succession Act have on the continuance of the Travancore Act on the territory of the erstwhile State of Travancore. Specifically, whether the Travancore stand repealed with the coming of the Part State (Laws) Act, 1951 on 1st April, 1951 and post this date all intestate succession to property be governed by the Indian Succession Act or not.

As per Section 29(1) of the Indian Succession Act, the act was not to apply on any intestate succession that took place before 1st of January, 1866 or to the properties of Hindus, Muslims, Buddhists, Jains and Sikhs. As per S. 29(2) the Act is to apply on other cases of intestacy, "Save as provided in sub-section (1) or by any other law for the time being in force".

The respondents sought to resist the application of the Act on grounds that Section 29(2) saved the provisions of the Travancore Act as a "law being in force" and despite the application of the Indian Succession Act on the territory, Travancore Act's application will not be affected.

Justice Bhagwati, who authored the judgment, rejected this argument as "plainly unsustainable and unacceptable." The principal infirmity affecting this argument was that as per Section 6 of the Part B State (Laws) Act, 1951, if any Act was extended to a state for which a corresponding law existed, unless the same is expressly saved by the Part B State (Laws) Act, the same shall stand repealed. Since the Indian Succession Act was extended to the erstwhile territory of the State of Travancore under Section 3 of Part B State (Laws) Act, without expressly saving the Travancore Act, the court held that the same stands repealed under Section 6.

The respondents also tried to argue that the Travancore Act would not qualify as a law corresponding to the Indian Succession Act, and would not be affected by Section 6. This argument was hinged on the fact of the wider ambit that was bestowed on the latter act, which dealt with both testate and intestate rules and was not confined to Christians as the Travancore Act was.

Justice Bhagwati found this argument to be "fallacious" and held that the Travancore Act is a corresponding legislation since both the acts (the Indian Succession Act through its Chapter of Part V specifically dealt with intestate successions applicable to Christians) dealt with the same matter and covered the same field. Had Section 6 of Part B State (Laws) Act not expressly provided for repeal of such corresponding laws, and the Travancore Act was sought to be suppressed merely on the ground that Indian Succession Act was extended to the territory under Section 3 of Part B State (Laws) Act, then "... undoubtedly the Travancore Christian Succession Act would not have stood repealed and would have been saved" and "the continued operation of the Travancore Christian Succession Act saved by Section 29(2) of the Indian Succession Act." But even then Justice Bhagwati doubted whether such an argument would have been tenable. Regardless, the court expressed that there was no scope for such an argument in the present case since in the absence of being saved under the Part B State (Laws) Act, "it is difficult to resist the conclusion that by sec. 6 of the Part B State (Laws) Act, the Travancore Christian Succession Act stood repealed in its entirety."

Another argument from the respondents, that Section 29(2) of the Indian Succession Act must be read to have adopted "by reference" all laws for the time being in force relating to intestate succession including the Travancore Act, was rejected by the court by stating that while Doctrine of Incorporation by Reference was a common tool employed by the legislature, the same has not been done in the present case since "...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(2) of the Indian Succession Act. The opening part of the Section is intended to be a qualificatory or excepting provision and not a provision for incorporation by reference."

Hence, the court answered the first question by finding that the Travancore Act (and the Cochin Act) stood repealed, and Chapter II of Part V of the Indian Succession Act dealing with intestate succession amongst Christians will be the valid law. Having held that the entire act stood repealed, they did not deem it necessary to deal with the second questions relating to the constitutional validity of specific provisions of the Act.

Aftermath

It has been 34 years since the judgment was pronounced. It is interesting to note that despite the judgment, it was only a decade ago that Mary Roy was able to claim her rightful share of the property. But such goes the slow functioning of our lower courts.

Such Properties as Mortgage

What impact has it had? Well here is where my interest in the case will find expression. As a Banking Lawyer, one of my many jobs is to determine whether a property submitted by a potential borrower for the purpose of mortgage has a clear derivation, unencumbered by existing litigations or by future legal risks. This determination, in turn, is important to make since when we affect recovery, in case of a loan gone bad, we have to be able to get back amount due to us by selling off the mortgaged property; the same shouldn't come into doubt by virtue of the property in question having legal risks attached to it. Thus, whether a property is effected by the Mary Roy judgment or not plays an important role in carrying out the diligence process- If a property being submitted for mortgage was acquired by the potential borrower(especially male) through intestate succession and is effected by this judgment, it becomes important to determine whether any other siblings (especially female) have any existing rights over the same, and if they do, whether they are consenting to the property being mortgaged. While the Travancore Act stands repealed with effect from 1st April, 1951, with respect to the Limitation Act, a clear derivation for the past 12 years over the property should suffice.

Conclusion

So has this judgment had the intended impact of creating rightful property rights for women? As per the lead Petitioner in this iconic case of Mrs. Mary Roy Etc. Etc. v. State of Kerala & Ors., it hasn't.

In an interview, Mary Roy said that "There may have been others, but this judgment has not created any ripple effect on the Syrian Christian families in Kerala. What it may have done at the most is to make the male parent realise the absolute necessity of writing a valid will. And through the will, the lion's share of his property will still be bequeathed to his sons. That's the tradition."[Emphasis mine]