KUNHIKUTTAN UNNI Vs. SATHYANATHAN UNNI

JUDGEMENT

(1.) THIS is a motion under Article 228 of the Constitution to withdraw O.S.No.26 of 1965 on the file of the Subor­dinate Judge's Court,Ottapalam,wherein one of the issues raised is. "Is the section 7(3)of the Hindu Succession Act,1956 ultra vires of the Constitution? " ;.

(2.) ARTICLE 228 of the Constitution commands: "If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the inter­pretation of this Constitution the determination of which is necessary for the disposal of the case,it shall withdraw the case... ;. Obviously it leaves little scope for a discretion in the matter of withdrawal of the suit to this Court if a substan­tial question of law as to the interpretation of the Constitu­tion is raised therein and is necessary for its disposal.Counsel contends that on the expression of the issue No.19(quoted above)a substantial question of law does arise in the suit which is one for partition of properties of a Sthanam under sub -section(3)of section 7 of the Hindu Succession Act,1956,and has therefore to fail if the said sub -section is void.Counsel for the plaintiff -respondent opposes the motion on the ground that the vires of the sub -section has been considered by this Court in Moopil Nayar v. Union of India 1963 K.L.T.1089 and been held constitutional and valid and that on the dictum therein that an heir -apparent to a sthanam has only a spes successionis the present challenge to the sub­section as unconstitutional is palpably unsustainable and therefore the issue concerned does not involve a substantial question of law to attract Article 228 of the Constitution.The question therefore is whether the suit moved to be withdrawn involves a substantial question of law.

(3.) IN Chunilal Mehta v. C.S.and M.Co.Ltd ., A.I.R.1962 S.C.1314 the Supreme Court has defined a substantial question of law in these terms: "The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." Though this definition was delivered in relation to Article 133 of the Constitution,it applied well,in my view,to the identical expression occurring in Article 228 too.