KAVALAPPARA KOTTARATHIL KOCHUNNI MOOPIL NAYAR versus THE STATE OF MADRAS AND OTHERS

Citation: [1959] SUPP. 2 S.C.R. 316 · Decided: 04-03-1959 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Directions issued
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Judgment (excerpt)

I959 
iYJ arch 4. 
316 
SUPREME COURT REPORTS 
[1959] Supp. 
KAVALAPPARA KOTTARATHIL KOCHUNNI 
MOOPIL NAYAR 
v. 
THE STATE OF MADRAS AND OTHERS 
(and connected petition) 
(S. R. DAS, c. J., N. H. BHAGWA'l'I, B. P. SINHA, 
K. SumiA ltAo and K. N. WANCHoo, JJ.) 
Fundamental Rights, Enforcement 
of-Maintainability of 
petition-Powers a.11-d jurisdiction of Supreute Court-Extcnt-Con-
siiiution of India, Art. 32. 
The petitioner in Petition No. L!J was the Moopil Nair of 
the Kavalappara sthanam and, as the sthanee, claimed to be the 
sole proprietor of the sthanam properties. The respondents 
Nos. 2 to rJ, who were the junior members of the Kavalappara 
tarwad or family, resisted the claim on the ground that the pro-
perties were tarward properties and they had rights in them. 
There was litigation between the parties and ultimately the 
Privy Council held in favour of the petitioner. The petitioner 
transferred some of the properties to his wife and t\vo <laughters 
and son and they:were the petitioners in the t'vo other petitions. 
The parties were governed by the Marumakkathayam Law and 
in 1955 the l\1adras Legislature, purporting to remove certain 
misapprehensions evident in decisions of courts, passed the 
Madras Marumakkathayam (Removal of Doubts) Act, 1955 (Act 
32 of 1955), which bys. z provided as follows:-
" 2. 
Certain kinds of sthanam properties declared to be 
tarward properties :-Notwithstanding any decision of Court, 
any sthanam in respect of 'vhich-
(a) there is or had been at any time an intermingling 
of the properties of the sthanam and the properties of the 
tarwad, or 
(b) the members of the tarwad have been receiving main-
tenance from the properties purporting to be sthanan1 properties 
as of right, or in pursuance of a custom or otherwise, or 
(c) there had at any time been a vacancy caused by there 
being no male member of the· tarwad eligible to succeed to the 
sthanam, 
shall be deemed to be and shall be deemed always to have been 
a Marumakkathayam tarwad and the properties appertaining to 
such a sthanam shall be deemed to be and shall be deemed 
always to have been properties belonging to the tarwad to which 
the provisions of the Madras Marumakkathayam Act, 1932, 
(Madras Act XXJI of 1932), shall apply." 
(2) S.C.R. 
SUPREME COURT HEPORTS 
317 
Immediately after the publication of the Act, the respon-
dents Nos. 2 to lJ, published notices in the press that by reason 
of the passing of the Act, Kavalappara estate had become their 
tarwad property and that rents could be paid to the sthanee 
only· as the Karna van of the properties and not otherwise. The 
notices further stated that the done es under the i wo deeds of 
gift executed by the sthanee were not entitled to the properties 
conveyed to them and should not be paid any rents at all. One 
of the respondents filed a partition suit and others also contem-
plated doing the same. The petitioners sought for a writ of 
mandamus or any other writ or order directing the respondents 
to forbear from enforcing the impugned Act against the sthanee 
and the sthanam estate and declaring the Act to be unconsti tu-
tional and invalid. Preliminary objection was raised on behalf 
of some of the respondents as to the maintainability of the peti-
tions and it was contended that (1) the prayer for a writ 
of mandamus was not maintainable since there was an adequate 
remedy in the partition suit filed by one of the respondents; (2) 
that violation of right of property by private individuals was 
not within the purview of Art. 19(1)(£) or Art. 31(1) and the 
remedy was not by way of application under Art. 32; (3) that 
no application under Art. 32 could be maintained until the State 
had taken or threatened to take any action under the impugned 
law that would infringe fundamental rights; (4) that the proceed-
ing under Art. 32 could not be converted into or equated with a 
declaratory suit under s. 42 of the Specific Relief Act in and (5) 
that this court could not, on an application under Art. 32, embark 
upon an enquiry·into disputed questions of fact. 
Held (per Das, C. J., Bhagwati, Sinha and Subba Rao, JJ.), 
that all the contentions must be negatived and all the preliminary 
objections must fail. 
The right to enforce a fundamental right conferred by the 
Constitution was itself a fundamental right guaranteed by Art. 
32 of the Constitution and this court could not refuse to enter-
tain a petition under that Article simply because the petitioner
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