WOMAN HIGH COURT JUDGE

“Judicial appointments to the Bench of the High Court or for the matter of that, to the Supreme Court provokes interest amongst lawyers. There is a tendency to probe into the character and integrity of the man, his past record , of service, reputation, and standing in the Bar. We have it from a learned wag that while two lawyers were on a mountaineering hiking, they discussed blizzards, avalanche, the qualities of those who try to climb the Himalayan peaks, & then rounded up their talks, at 14000 feet, by discussing the merits and demerits of the next appointment on the High Court Bench.

The appointment of Sm. Anna Chandy as the India’s” first woman High Court Judge is certainly an event and breaks a tradition. Male species of human beings have so long ruled the world in different capacities. Women were not allowed, consciously or unconsciously, into those positions in which men desired 10 be supreme. The result of this supremacy of male species has been that the world is on the brink of a cataclysm. George Bernard Shaw was certainly conscious of it. He dedicated one of his most celebrated works not to any of his distinguished contemporary male friends, but to the Intelligent Woman with the hope that women may bring order in the midst of the chaos of the modern civilization.

Women as lawyers have so long played an indifferent part. But Portia showed considerable legal acumen by saying that the Jew was, under the terms of agreement, entitled only to a pound of flesh but not to any drop of blood. In advancing that argument she was really arguing on the basis of the legal principle that charges must be construed, in all cases, very strictly. That principle still holds good and when lawyers enunciate that principle they are really arguing what Portia argued.

In England we have no parallel of a woman being appointed a judge of the High Court. But there are instances in America of women being appointed members of tribunals. The following passage from Megarry (Miscellany-at-Law) would be read with interest: ‘‘The Governor appointed a Special Supreme Court consisting of three women, Mrs. Hortense Ward, Special Chief Justice and Miss Ruth Virginia Brazzil and Miss Hatty L. Henenberg, Special Associate Justices, to hear and determine the issues. There is no English parallel. There does indeed seem to have been one instance of woman sitting as a Commissioner ofassize in the reign of Henry VIII, Lady Anne Berkeley complainedto the King of a riotous company which had entered her park at Yate killing deer and firing hayricks. Despite of personal interest in the matter, the King is said to have issued a special Commission authorizing her and others to enquire into and determine the riots; and as one of the quorum, she opened the Commission, sat on the Bench, impaneled a jury, and heard the charge and on a verdict of guilty, pronounced sentence accordingly.” Such a procedure would be unheard of at the present times.

We would have been happier if Sm. Anna Chandy has been directly recruited from the Bar, which is the testing ground of a lawyer’s diverse qualities.Sm Anna Chandy started her judicial career in 1937, when she was appointed a District Munsiff in the former Travancore State. She became a District Judge in 1948. Lawyers would be discussing as to how to address Sm Anna Chandy when she presides over the court. They are likely to follow the example of English County Courts, and address her as “Your Lordship.” We-wish Smt. Anna Chandy a distinguished judicial career.”      (From Calcutta Weekly Notes)

UNDUE INFLUENCE

(T.G. John, Advocate, Trichur)

One more rich man dies. A man who has worked hard all his life to amass a fortune leaves this life and goes to the place where fortunes are neither enjoyable nor useful, nor even remotely of importance. But to his heirs the money is extremely important and scarcely is the family home from the funeral before a row breaks out over who is going to get what. Scarcely a rich man can die without sparking of some kind of family argument. With money at stake, tempers rise, greed takes hold, differences of opinion widen into enmity, old family quarrels are raked up. When he was alive it was not lawful for anyone to interfere with the making of his will; but once he has passed from this contentious world, the disappointed survivors can charge into court and try to upset his plans and desires the covetousness and greed that despoils the memory of lifetime’s love turns bereavement into a bargain sale. The sweet affectionate kindred who had hung around his bedside assuring him of their love and respect, rush to court smearing his memory by trying to prove that when he made his last will he was an irresponsible, incestuous lunatic and was only ‘wax’ in the hands of the beneficiaries one more test suit to upset the will on the ground of ‘undue influence’. 

It is interesting to note how this very ordinary word ‘influence’ achieves and accumulates overwhelming ramifications as it joins company with the word ‘undue’ and enters the parlor of the legal enclave Undue influence is a sort of coercion produced by importunity or by a silent resistless power which a strong will often exercises over the weak and infirm We have yet to hear a judicial pronouncement as to whether the ‘mousing’ of husbands by shrewish wives would ever come under this legal phenomenon. Once moused, the husband could only be under a perennial state of ‘undue influence’ and we with great respect call him in ordinary parlance ‘henpecked’-the shrew rising in status to that of a she-man. 

Turning away from the lighter side of things and taking a cursory glance through the English authorities that have attempted to define the term ‘undue influence’, the first decision that crosses our path is Smith v. Kay That was a case of general control obtained by an older man over a younger one during his minority without any spiritual influence other fiduciary relation. Lord Kingsdown stated that’ ‘the principle applies to every case where influence is acquired and abused, where confidence is reposed and betrayed.” In Hugenuin v Beasely Sir Samuel Romilly held that the term applies to all the variety of relations in which dominion may be exercised by one person over another. Lord Lindley in Allcard v. Skinner states ‘The equitable doctrine of undue influence has grown out of and been developed by the necessity of grappling with insidious forms of spiritual tyranny and within finite varieties of fraud. As no court has attempted to “define fraud, so no court has attempted to define undue influence, which includes one of its many varieties.” The same authority has divided cases of undue influence into two groups ‘‘First, there are the cases in which there has been some unfair and improper conduct, some coercion from outside, some over-reaching, some form of cheating and generally though not always, some personal advantage obtained by a done placed in some close and confidential relation to the donor. The second group consists of cases in which the position of the donor to the done has been such that it has been the duty of the done to advise the donor or even manage the property for him. In this class of cases it has been considered necessary to show that the donor had independent advice and was removed from the influence of the done when the gift to him was made.” 

The Indian Law is neatly elucidated in S.16 of the Indian Contract Act., The first paragraph of the Section lays down the principle in general terms; the second and third define the presumptions by which the court is enabled to apply the principles. The first paragraph gives the elements of undue influence; a dominant position and the use of it to obtain an unfair advantage. The second paragraph of the present section makes a division of the subject matter on a different principle, according to the origin of the relation of dependence, continuing or transitory, which makes undue influence possible. Such a relation may arise from a special authority or confidence committed to the donee, or from the feebleness of the mind or body of the donor. “Practically the most important thing to bear in mind is that persons in authority or holding confidential employments such as that of a spiritual, medical or legal adviser are called on to act with good faith and more than good faith in the matter of accepting any benefit (beyond ordinary professional remuneration for professional work done) from those who are under their authority or guidance.” 

SETTLEMENT BY OATH

(K.V. Kuriakose, B.A. M.L., Advocate, Ernakulam)

Order XXIII Rule 3(A) of the Code of Civil Procedure as amended by the High Court of Travancore-Cochin provides for the settlement of a suit or any part thereof by what may be called an oath-agreement written and signed by the parties concerned and accepted by the Court. The agreement should set forth the terms of the oath and the place where it is to be taken. After the oath has been taken in the manner proposed, the court shall decide the case in terms of the agreement. After the agreement has been accepted by the court, it shall not be competent to any of the parties to withdraw there from without the leave of the Court. If any party withdraws or refuses to take the oath without lawful excuse, the court may decide the case against him or pass such other order as it deems proper. Order XXIII exclusively deals with withdrawal and adjustment of suits by parties and provides three modes of bringing litigation to an end. These are: (i) withdrawal of suit or abandonment of part of claim; (ii) compromise of suit; and (iii) settlement by oath. In all these, although the court is to be satisfied of the legality of the action of the parties and is conferred a discretion, the decision primarily rests with the parties concerned and the court’s discretion is necessarily limited in scope. The principle underlying the said provision is, indeed, a wholesome one, for, in civil disputes, subject to the court’s approval, the party or parties concerned should have the freedom to decide whether to prosecute, withdraw or abandon a suit or to compromise or otherwise settle it, notwithstanding the general rule that when the Court is ‘seized’ of a case it has jurisdiction to decide in the manner prescribed by law and that parties have no right to interfere with its authority to do so. Where the parties have come to a clear agreement composing their dispute the Court’s function assuredly is to give effect to it as far as possible.

There are certain provisions in the Indian Oaths Act (X of 1873) which may appear to be in pari materia with those contained in Order XXIII Rule 3(A) referred to above and cause the impression of a legislative conflict or repugnancy However, a careful and comparative consideration of the relevant provisions in the Code and in the Act will show that this surface-view is incorrect. The material sections of the Oaths Act are the following:-

Section 8: Power of Court to tender certain oaths:-If any party to, witness in, any judicial proceeding offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of “the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect and third person, the court may, if it thinks fit, notwithstanding anything herein before contained tender such oath or affirmation to him.

Section .9: Court may ask party or witness whether he will make oath proposed by opposite party -If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in Section 8, if such oath or affirmation is made by the other party to, or by any witness in such proceeding, the court may if it thinks fit ask such party or witness, or cause him to be asked whether or not he will make the oath or affirmation:En passant it may be mentioned that Order XXIII Rule 3(A) is in identical terms with Order XXIII R.1 of the Travancore and that of the Cochin Civil Procedure CodesProvided that no party or witness shall be compelled to attend personally in court solely for the purpose of answering such question.

Section 10: Administration of oath if accepted-If such party or witness agrees to make such oath or affirmation, the court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of court, the court may issue a commission to any person to administer it and authorize him to take the evidence of the person to be sworn or affirmed and return it to the court.

Section 11- Evidence conclusive as against person offering to be bound. - The Evidence so given shall, as against the person who offered to be bound as afore-said, be conclusive proof of the matter stated.

Section 12. Procedure in case of refusal to make oath. If the party or witness refuses to make the oath or solemn affirmation referred to in S.8, he shall not be compelled to make it, but the court shall record, as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal”.

As is plain from a reading of the sections, the Oaths Act does not provide, unlike Order XXIII Rule 3(A), for the conclusion of an oath-agreement as such between the parties to a suit. S.8 speaks only of a proposal before Court by one party or witness to give evidence on special oath as provided therein. If the proposal offer, or challenge, is accepted in Court by the opposite party and the latter agrees to be bound by such oath, then the court administers or causes to administer the special oath (Ss. 9 & 10) The Court may ad­minister the special oath even if the other party does not accept the challenge and refuses to be bound by the oath. In such a case what is required of the Court is only that it should put on record the conduct of the recusant party (S.12). Under S.11 the statements covered by the special oath taken by a party or witness are to be deemed, as against the party who agreed to be bound by such oath, conclusive evidence of the matters stated. Thus it is patent that the Indian Oaths Act provides only for the tendering of evidence by consent of parties and in a particular form, namely, by means of a special oath as laid down in S. 8, which, when tendered accordingly, will be taken as conclusive against the party consenting to be bound by the oath. The Act neither contemplates an oath agreement reached inter parties independently of the Court, nor provides for a settlement or adjustment of the suit predicated thereon, although in cases where the testimony covered by the special oath embraces all the issues raised in the suit, and the whole range of evidence required for its decision, the result might be a settlement of the suit itself. Where the evidence so tendered is mad equate for the disposal of the suit, further evidence is to be adduced and the Court is to proceed in the usual manner (See 22 Mad.234) Another important thing to be noted here is that there is nothing in the provisions of the Oaths Act which allows a party to retract once he has agreed to the administration of an oath under S. 8. Either he has to abide by the agreement or by resiling from it expose himself to the likelihood of an adverse presumption being drawn against him by the Court (See 29 All 49; 22 Bom. 281 Etc.)