JUDGMENT

KRISHNA IYER, J. (for himself and on behalf of D.A. Desai, J.:—Horace wrote "But if Homer, who is good, nods for a moment, I think it a shame". We, in the SC, do nod despite great care to be correct, and once a clear error in our judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this court from the anxiety to be ultimately right, not consistently wrong. The present petition for review is one such and we have listened, at unusual length, to counsels oral submissions having felt that an error in the judgment under review, likely to injure and unsettle, needed to be mended.

2. We may narrate, very briefly, the necessary facts and catena of statutes so that the flaw may be identified and rectified. The subject-matter is the partition of the assets of the erstwhile royal family of the Maharajah of cochin, if we may avoid the jaw-breaking description used in one of the relevant legislations viz. The Valiamma Thampuran Kovilakam Estate and Palace Fund belonging to the family of the Maharajah of Cochin. A capsulated survey of the landmark legislations will help locate the controversy and liquidate the error, if any. This family, to begin with, was impartible and its administration was statutorised by a Royal Proclamation of 1124 (hereinafter called the Proclamation) which constituted a Board in this behalf consisting of five trustees to be nominated by the Maharaja with an equitable eye on representation for each branch (tavashi) of the family. Section 2 (a) read with Section 4 of the Proclamation defines the Boards composition which shows a slight overshight on our part in the earlier order. And thereafter, came the Great Divide in the story of the royal family and began its slow integration into the commonalty retaining, in some measure, its peculiar individuality. By Act 16 of 1961 (The Valiamma Thampuran Kovilakam Fstate and Palace Fund (Partition) Act 1961) (for short the 1961 Act) impartibility was abolished conditionally as it were, Section 3 therein laid down:

3.(1) Notwithstanding anything contained in Section 22 of the Proclamation, if a request in writing is made by the majority of the major members and the Maharaja of Cochin is satisfied that in the interests of the family it would be desirable to partition the Estate and the Palace Fund, among all the members he may declare his decision to effect a partition under his supervision and control, and direct the Board to proceed with the partition.

(2) The decision of the Maharaja of Cochin under sub-section (1) shall be published by the Board in the Gazette in English and Malayalam, and a copy of the notification shall be affixed in conspicuous place at the office of the Board. Of course, partibility reflected the spirit of the time both in Kerala and in the Hindu fold of India and royalty lost its regalia, including the privy purse. With the enactment of the Constitution (26th Amendment) Act. Even though royalty had become fossilised and Maharajas family had become partible the latter retained its legislative distinctiveness in important features, because of its unique history, unwieldy membership and statutory singularity since 1949. The legislature took pragmatic note of these legitimate factors while enacting Act. 16 of 1961. Thus partibility was not automatic but dependent on the Maharajas decision. The division was not to be effected by the civil courts as in ordinary cases but by Board only.

3. The structure and identity of the Board created under the earlier Proclamation was preserved even for the purpose of effecting partition of the family assets. Once the majoritys request was made and the Maharaja was satisfied about the desirability of partitioning was the responsibility of the Board, although under the supervision and control of the Maharaja himself. A ticklish question, which is one of the aspects involved in the present review petition, turns on the division among the members and, more particularly. The fixation of