On the other hand, Order XXIII Rule 3 (A) provides for the direct settlement of suits by an oath-agreement written and signed by the parties and accepted by the Court. The quintessential condition or cause sine qua non of such an agreement is that, its object should be and it should provide for, settlement or adjustment of the suit wholly or in part. To a case of that nature the Indian Oaths Act has no application at all. The distinction, though subtle, is none the less perceptible. The Indian Oaths Act applies only where the parties to a suit seek to bring in evidence by mutual consent or agreement in the form envisaged by Section 8 of the Act, that is to say, by means of a special oath. The object there is the admission of evidence rendered conclusive by the special oath and not settlement of suit.

Under Order XXIII Rule 3(A) a party to the oath-agreement may withdraw there from only with the leave of the Court and on ‘lawful excuse’. The discretion conferred on the Court here is no doubt to be exercised judicially and with due regard for the sanctity of contracts and the solemnity of oaths (See T.L.J. Vol.XI (1921) p 282; TL.J. Vol.XII P449; Select Decisions of Cochin, Vol. I p.113).

It is also clear from the above discussion that there is no conflict or inconsistency between the provisions of the Indian Oaths Act and those contained in Order XXIII Rule 3(A) as the objects of and the procedure laid down in the two enactments are different and mutually exclusive.

The Kekala Education Act, 1958 and Minority Schools

(A.V. Moothedan, Advocate, S.C.)

The Kerala Education Act, VI of 1958 received the assent of the President on 19th February 1959 and it is published in the Kerala Gazette extraordinary dated 24th February 1959.

The Kerala Education Bill 1957 was one of the most controversial measures introduced by the present Kerala State Government. After considerable agitation and protest the Bill was finally passed by the Kerala State Legislative Assembly on 2nd September 1957 and under Article 200 of the Constitution the Governor reserved the Bill for the consideration of the President. The President enter lined some doubts regarding the validity of certain provisions in the Bill and under Article 143 of the Constitution referred some questions to the opinion of the Supreme Court of India. The matter was heard by a full bench of the Supreme Court consisting of seven Judges. After hearing elaborate arguments on behalf of parties interested the Supreme Court reported to the President and the report is published in 1958 K.L.T. 465. The Bill was returned by the President for making suitable amendments in the light of the opinion expressed by the Supreme Court. Accordingly some amendments were made by the State Assembly and the Bill thus amended received the assent of the President The respective dates for the commencement of the different provisions in the Act are not yet announced.

An important change made in the Bill after reference to the Supreme Court, is that a new term “Minority Schools” has been introduced as clause 5 of S.2 of the Act. Such a term was not in the Bill as passed by the State Assembly on 2 -9-1957. It is interesting to examine the effect of the introduction of the term “minority schools.” The term “minority schools” has been defined in the Act as follows:

“Minority schools” means schools of their choice established and administered, or administered, by such minorities as have the right to do so under clause (1) of Article 30 of the Constitution.

For determining who are the minorities contemplated in the above definition, we may refer to the (pinion of the Supreme Court reported in 1958 K.L.T. 465 at 491. In the opinion of the Supreme Court Christians, Muslims and Anglo Indians are certainly minorities in the Kerala State. Therefore for all practical purposes minority schools means schools of their choice established and administered by Christians, Muslims and Anglo-Indians.

Next we shall consider what are the provisions of the Kerala Education Act that will apply to minority schools. S 33 of the Act lays down that “nothing in this Act shall apply to any school which is not a Government school or a private school” It is clear that minority schools will not come within the category of Government schools. But will they come in the category of private ‘schools. That is a ‘difficult matter to determine In clause 7 of Section 2‘private school’ is defined as aided or recognized school and in clause 8 recognized school is defined as a private school recognized by the Government under this Act. Obviously these definitions do not give any guidance in the matter. In clause (l)of the same Section, Aided School is defined as a private school which is recognized by and is receiving aid from the Government. So in the definition of private schools or aided school, it is not stated that the minority schools will be included in the category of private schools or aided schools. But in Section 14 providing for taking over management of schools under certain circumstances and in Section 15 conferring power on the Government to acquire any category of schools it is expressly stated that Sections 14 and 15 will not apply to minority schools.

Minority schools form a different category of schools different from aided schools or private schools and standing isolated from the scheme of the Act. Minority schools are schools of choice established and administered by Christians Muslims and Anglo-Indians, recognized and receiving aid from the Government and continuing as such till the commencement of the Act. Whether the term ‘private schools” or’’ aided schools” as defined in the Act include “minority schools”, is a question to be carefully considered by the authorities responsible for the administration of the Act. If ‘‘private schools” or “aided schools” do not take in minority schools established and administered by Christians, Muslims and Anglo-Indians, ipso facto such schools will not be bound by the Education Act and such schools have the right to continue as minority schools after the commencement of the Act.

Amendment to S. 446, Criminal Procedure Code - A Note

(P.K. Surendranatha Panicker, Judicial First Class Magistrate Badagara)

Every provision requiring the realisation of a certain sum of money shall contain an alternative provision what the Court has to do in the event of non-realisation. If any provision does not contain the letter part, that defect has to be got cured by appropriate amendment.

Such a defective provision is now contained in the Code of Crl. Procedure, 1973 in S. 446, which deals with the procedure on forfeiture of bonds. Sub-s. (1) of S. 446 deals with the issue of a notice to the person or persons bound by the bond to pay the penalty thereof or to show cause why it should not be paid. And Sub-s, (2) of that section reads:

'If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code".

S. 421 deals with the procedure for realisation of fine (a) by issue of a warrant to levy the amount by attachment and sale of any movable property belonging to the offender, and (b) by issue of a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both of the defaulter. The proviso to subsection (1) of S. 421 says that if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant etc. Sub-s. (3) of S. 421 directs the Collector to realise the amount in accordance with the Jaw relating to recovery of arrears of land revenue and it contains the proviso "Provided that no such warrant shall be executed by the arrest and detention in prison of the offender."

The above provisions clearly show that if the defaulter in a forfeiture of bond case failed to pay the penalty or if the penalty cannot be realised as per S. 421, the defaulter can go free without the fear of any punishment for the default in view of the absence of such a provision in S. 446.

In this connection it may be noted that the corresponding section in the old Code viz. S.514 (4) of the old Code provides imprisonment in case of non-realisation of the penalty. The relevant section reads as follows:

"If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment in the Civil Jail for a term which may extend to six months".

The Law Commission while recommending to revise the section observed in its report thus:

"S. 42.5. S. 514 (4) provides that if the penalty is not paid and cannot be recovered by attachment and sale of property, the Court may order the person who is bound under the bond, to imprisonment in Civil Jail for six months We feel that imprisonment in Civil Jail in these circumstances is out of accord with modern thinking and propose to omit sub-s. (4)".

But at the same time in the case of non-payment of compensation under S. 250, provision has been made in Sub-s. (3) to order the defaulter to undergo simple imprisonment for a period not exceeding thirty days. Similarly provision for passing an order of imprisonment for non-payment of maintenance allowance is contained in S. 125 also.

The Law Commission might have thought it fit to omit the provision regarding imprisonment for non-realisation of penalty on the presumption that every accused and every surety in a criminal case might be having sufficient movable or immovable properties for the purpose of realisation of the penalties under the bond incase of its forfeiture.

The present trend of judicial pronouncements are to the effect that a liberal policy of accepting sureties without any monetary considerations has to be adopted by the Courts and also of considering the feasibility of releasing accused persons on their own recognizances. The release of an accused on self bond can be ordered only in exceptional cases and that too after making an enquiry into the conditions and background of the accused that he has his roots to the community and is not likely to abscond. In other cases the release of an accused person on self bond will be risky in the sense that his subsequent non-appearance will delay the trial and disposal of the case. Though it is often said that the hands of law are long enough to apprehend bail jumpers by issue of coercive steps, experience teaches that the executing machinary is always sluggish in this respect. In such cases the guarantee of a surety is the best safeguard to procure his attendance. As long as the Code prescribes that the bond should be for a sum of money, a violation of the bond and its forfeiture requires that the penalty stipulated in the bond or the net amount after remission by the Court has to be realised. If that amount cannot be realised the defaulter has to suffer the consequences of his default. Liability incurred by the surety under the bond on account of non-appearance of accused must be enforced against the surety, otherwise any relaxation in this behalf has the effect of inducing people to execute surety bonds without due sense of responsibility. The same is the case with the accused also.

The Parliament has in its wisdom realised this aspect and inserted Form Nos. 47 to 51 to the Code by S. 35 of The Code of Criminal Procedure (Amendment) Act, 1978. Form No. 51 contains the following words viz. "and an order has been made for his imprisonment in the Civil Jail for (specify the period)" and Forms Nos. 54 and 56 contain the following words viz. "and an order has been passed for the imprisonment of the said (name) in the Civil Jail for the period of (term of imprisonment)". This would clearly show the intention of the Parliament to send defaulters to the Civil Jail. While prescribing the above forms the Parliament has omitted to amend S. 446 to enable the Courts to pass order of imprisonment for non-realisation of penalty. Without a specific provision in the body of the Code no court will get jurisdiction to pass an order of imprisonment. Hence it is humbly suggested that it is high time for the Parliament to amend S. 446 Cr. PC. suitably.

A Note on
Neelakantan Sreedhhran v. Subha Bhakthan Narayana Bhakthan
(1975 K.L.T. 128)

(V. Rama Shenoi, Advocate (Supreme Court), Ernakulam)

The headnote in the case reads as follows:

"The rent deed is executed by the lessee alone. It is also not registered and therefore it is inadmissible to prove the creation of a lease by an instrument. But, it is admissible to prove the creation of a lease by oral agreement accompanied by delivery of possession as mentioned in S. 107 of the Transfer of Property Act The rent deed can be relied on to establish the jural relationship between the parties. It contains an admission or an acknowledgement by the defendant who is sought to be made liable that he is a tenant and that is the best evidence that one can possibly have as to the oral agreement of a lease. It is well known that documents relating to sales, leases and mortgages come into existence only after agreements are arrived at between the parties to these transactions. The less or and lessee generally agree to the terms of the tenancy beforehand and then reduce to writing what has been agreed upon. In such cases oral agreement of lease can be spelt out of the rent deed executed by the lessee and there can be no bar for a court from looking into such a document for such purpose."

The question that arose for decision was whether a lease deed compulsorily registrable but not registered can be used for proving the jural relationship of landlord and tenant and the terms of the tenancy. The question has been answered in the affirmative.

The learned judge who decided the case relied upon a decision of the Lahore High Court in support of the proposition laid down in the judgment. It is submitted, with the utmost respect, that the proposition of law enunciated is not correct, opposed to statutory provisions and a catena of decisions and requires reconsideration at the earliest opportunity.

The statutory provisions bearing on the point decided in the case are S. 107 of the Transfer of Property Act, S. 49 of the Registration Act and S. 91 of the Evidence Act. They are extracted below:

S. 107 of the Transfer of Property Act:

"A lease of immovable property, from year to year, or for a term exceding one year, or reserving a yearly rent, can be made only by a registered instrument.

All other leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession.

Where a lease of immovable property is made by registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the less or and the lessee.

x      x      x      x

S. 49 of the Registration Act:

"No document required by S. 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall—

(a) affect any immovable property comprised therein,

x      x       x       x

(c) be received as evidence of any transaction affecting such property x x x x x x unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 2 of the Specific Relief Act, 1887, or as evidence of part performance of a contract for the purposes of S. 53-A of the Transfer of Property Act, 1882 or as evidence of any collateral transaction not required to be effected by a registered instrument.''

S. 91 of the Evidence Act:

'Evidence of terms of contracts, grants and other dispositions of property reduced to the form of a document: —When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."

X      X      X      X      X

The provisions are clear and may not require any commentary at all to understand their import. However, a few important points emerging from them may, with advantage, be stated. Although it is clear from S 107 of the Transfer of Property Act that an oral lease, accompanied by delivery of possession, may be validly made in cases which do not fall within the ambit of the 1st clause of the section, it is eqally clear that whenever parties reduce a transaction of lease to the form of a document such document is compulsorily registrable; and that a deed evidencing a lease shall be executed by both the less or and the lessee. The provisions of the Registration Act interdict proof of a transaction embodied in a document compulsorily registrable unless it is registered subject, however, to the exceptions provided in the proviso to S. 49 of that Act. The last alternative in the proviso enabling an unregistered document to be used as evidence of any collateral transaction not required to be effected by a registered instrument is a statutory recognition of the law laid down by Sir Barnes Peacock C.J. of the Calcutta High Court in Luchmeeput Singh Doogar v. Mirza Khysat Ali.(1869—12 Sutherlands Weekly Report (Full Bench Rulings), page 11 at 13) The provisions of S. 49 of the Registration Act are backed by an important public purpose, viz. affording information to the public concerning dealings with immovable properties. These provisions are also intended for the prevention of fraud. However these aspects are, very often, ignored or not remembered.

In the light of the said statutory provisions, it is undoubted that the nonregistration of a document compulsorily registrable renders the document ineffectual and void as against immovable property and prohibits its use as evidence in any proceeding by which the immovable property comprised in the document is affected. (Tilakdharial Vs. Khedanlal—ILR. 48 Calcutta at 11 at 19 (PC.)) It has no legal efficacy even as between parties thereto and is inoperative to create a title in the vendee or the lessee in the property purported to be sold or leased. It will be running into the teeth of the provisions of S. 49 of the Registration Act and S. 91 of the Evidence Act to admitoral or other evidence of a lease embodied in an unregistered document compulsorily registrable. However, as provided in the last alternative in the proviso, the document can be made use of for proving a collateral transaction.

This necessitates the consideration of what is a collateral transaction in respect of which the unregistered document may be used. The use of unregistered document compulsorily registrable for the very purpose of establishing the relationship of landlord and tenant embodied in the unregistered document or the terms of the lease cannot, by any stretch of imagination, be considered to be a use for establishing a collateral transaction. (AIR. 1936 Nagpur page 295) It is not a collateral purpose where the unregistered document which is compulsorily registrable is sought to be used for the express and direct purpose of creating or extinguishing rights in immovable property. [1] To be collateral, the fact must be independent or divisible from the purpose to effect which the law requires registration. [2] Of course, the document can be used for the purpose of showing the nature of the possession of the person holding under it. By nature of the possession is meant whether it is permissive or adverse and not the possession generated by the relationship of landlord and tenant.

Judged by the principles stated above, the proposition of law, enunciated by Kerala High Court in the case under reference concerning the use to which an unregistered document can be put, is erroneous and unsustainable. The decision does not refer to the statutory provisions bearing upon the case or the leading authorities on the question of law decided in the case.

Having found that the lease sued upon is inadmissible in evidence to prove the lease, the holding that it can be used to prove the creation of a lease by oral agreement accompanied by delivery of possession and to prove the jural relationship of landlord and tenant appears to be incorrect.

As already stated, the learned judge in support of the proposition laid down in the case relied upon the decision of the Lahore High Court in Mohanlal V. Ghanda Singh. (AIR. 1943 Lahore 127 (FB.)) The excerpt from that judgment made use of by the learned judge is extracted below:-

"The amended S. 107 T. P. Act, deals with the modes how a tenancy can be created so exhaustively that there is now no scope for the argument that a lease could be created in any manner other than what has been specified in that section. But, if a kabuliat is not, in accordance with the view taken in AIR. 1939 Lah 423. a lease within the meaning of S. 107, T. P. Act, and the definition of that word in the Registration Act cannot be, as held in that case, applied to such a document, (and I respectfully agree with the view taken in that case on these points) is there any reason whyin cases where registration is not necessary it should be omitted to be taken into consideration and why an oral agreement of lease not spelt out of it as long as the other condition in regard to delivery of possession is found to have been complied with? There seems to be no justification, in my opinion, for the view that a document like a kabuliyat cannot be looked at for that purpose. It contains an admission or an acknowledgement by the person attempted to be made liable and should be the very best evidence that one can possibly have as to the oral agreement of lease particularly when it is well known that these documents usually come into existence only after agreements between less or and lessees are arrived at and the terms of the tenancy are settled. In such cases oral agreements of lease could be easily spelt out of such kabuliats and I do not know of any bar that could prevent a Court from looking into such a document for this purpose."

It is clear, from the above extract from the judgment of the Lahore High Court, that the document relied upon in that case was not a compulsorily registrable document and not one falling within the prohibition of the statutory provisions already referred to. What was relied upon in that case was an admission of the person sought to be made liable contained in a document which is not compulsorily registrable. The admission contained in such a document was rightly used by the Full Bench of the Lahore High Court to prove the relationship of landlord and tenant and the observations in that judgment made use of by the learned judge of the Kerala High Court are confined to a document which is not compulsorily registrable. But what the learned judge of the Kerala High Court has done is to extend wrongly the observations made in respect of a document not compulsorily registrable to the contents of a document which is compulsorily registrable. Such use has been prohibited in unambiguous terms by the statutory provisions already referred to. The admission of the oral bargain preceding an oral lease accompanied by delivery of possession contained in a document which merely admits such a past transaction dealt with in the Lahore case has been pressed in aid by the learned judge is justification of the use of such bargains preceding the execution of a document compulsorily registrable. The last two sentences in the extract from the Lahore case, divorced from their context, have been wrongly used by the learned judge to support the proposition enunciated in the decision. The decision in question is likely to embarrass subordinate courts and tribunals and to trigger a spate of appeals and second appeals. I reiterate my submission that the decision has to be reconsidered by a division bench on the earliest occasion.

----------------------------------------------------------------------------------------------------------------------------

Foot Note:-

1.Praap Singh Mohlal Bhai v. Kesavalal Hiralul-I. L. R. 59 Bombay 180 at page 189P.C.

2.Pir Bax V.M-T. Nanhebi—91 Indian Cases 1044; Peddha Venkata Jahanathan Raju v. Radhakrishnaiah-32 Indian Cases 941 at page 943

TOO MANY LAWS

(M.S. Kurian Advocate, Ernakulam)

Law is majestic. But it all depends. An unjust law is no law at all. It is a calamity to live there where the laws are indifferent, innumerable and ever changing in quick succession. Truly as St. Paul says where the spirit of the Lord is, there is liberty and freedom.

Said Cicero, who held the palm of forensic eloquence in his days, ‘‘Multiplicity of Laws is a sign of barbarism”. Mushroom legislation is the mark of an intoxicated Government. Prolific enactments will breed pettifogging casuistry in courts producing plumb dishonesty and complexity everywhere. The ignorant, the illiterate and the poor will be most easily duped owing to the inconstancy and uncertainty of the Laws. Nothing will remain sacred; every veil will be torn away.

Government is now laying its strong hands on anything arid everything, ruthlessly and promiscuously. It is now dictating thunderously that ambitious young man at the threshold of his all important marital career should not receive dowry. Will it also next declare, through its legislative anvil, that the bashful young mother should no more give suck and suckle the babies, but take to feeding bottles freely supplied by the enormous solicitude of the Government, its satellites, panels and panegyrists? We are now reminded of certain species in the animal kingdom who hug their young ones to death, or is it a case of the Walrus, the Carpenter and the little Oysters? 

 “A loaf of bread”, the Walrus said.

Is what we chiefly need

Pepper and vinegar besides

Are very good indeed.

Now, if you’re ready, Oysters dear.

We can begin to feed”.

“But not on us” the oysters cried.

Turning a little blue

“After such kindness that would be

A dismal thing to do”.

“The night is fine” the Walrus said “

‘Do you admire the view?”

‘I weep for you, the Walrus said

I deeply sympathize”

With sobs and tears he sorted out

Those of the largest size,

Holding his pocket hand-kerchief

Before his streaming eyes.

“Oysters” said the Carpenter “

You have had a pleasant run

Shall we be trotting home again”?

But answer came there none-

And this was scarcely odd, because

They ‘d eaten every one.

Let the state beware that it is only a green house for the tender plants to grow. It is only fence and not the crops themselves? Belthazar roughly handling golden vessels of the temple of Jerusalem was promptly punished. Will not at least a poetic justice overtake the tyrants who desecrate the human vessels themselves? Mark them when they say that giving a valuable nuptial present is a non-compoundable offence and the social evil which has to be, at once, met by a statute.

The question is asked, has not the society become complex and complicated? Yes. But every evil is not to be met by a fresh legislation. Encourage voluntary association, study circles, literary and debating club, reading rooms, Missions, Retreats, Social Institutes, Cultural centers, academies and what not. There is no question of our going back to the days of Adam and Eve. Let this state, like the mighty tree with large foliage giving shelter to birds of the air, nurse and nourish Bharat Seva Samajam, Bhoodan movements, Indian conference of social workers and other similar organizations in the field of service there is no rivalry as the Father of the Nation has taught us. Hence that state is best which governs least. To be let alone is one of our primary rights. We are not for Laissez Faire. We welcome laws calculated to obtain optimum advantage for maximum number of people. But when the goal can be attained as well by healthy private initiative don’t resort to legislation. It is only an octopus totalitarian state that will consider itself a mighty trader in relation to its citizens and also will try to stand in loco parentis in regard to the children, their cribs and cradles, their schools arid their vocations.

NEVER PUT A NEW RESTRICTION ON THE LIBERTY OF THE CITIZEN unless order and peace require this limitation imperatively. Natural sights are superior to positive Law. Shun depersonalization. Don’t convert the intelligent human jewels into an in- organic mass, an amorphous agglomera­tion. Individualities and personalities destroyed by the state are seldom rebuilt. Here the state never gives back what it swallows.