LATE SRI. JOSEPH THALIATH

It is with profound sorrow that we have to record here the passing away of Sri. Joseph Thaliath on 14th January 1959. As a Judge of the Cochin Chief Court and later as Judge and Chief Justice of the Travancore High Court, Mr. Joseph Thaliath has earned a name for integrity, independence and impartiality. Endowed with the most affable manners and a most equable temperament he has been discharging his onerous duties to the admiration and satisfaction of all. Throughout his long tenure of office he has never been known at any time to have either lost his temper or said anything harsh to anybody. In his personal manners he was most unassuming and simple. The bar had universal esteem and regard for him and his respect for the Bar was very high. We tender to the members of his bereaved family our heartfelt sympathies and condolences in their distress. May God bless his Soul?

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.

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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.

Retirement of Mr. K. T. Koshi, Chief Justice

Mr. K. T. Koshi, Chief Justice has retired from service after a continued and valuable service as a great Judge. His work as a Judge of the High Courts of Cochin & Travancore-Cochin and as the Chief Justice of Travancore-Cochin and Kerala High Courts, has produced absolute satisfaction and unstinted appreciation to the legal profession and the public and has brought for him a reputation as one of the most brilliant, learned and erudite Judges. The Law Reports bear ample testimony for his-deep learning and thoroughness. He has built up a body of case-law which has enriched our jurisprudence.

He started practice in 1921 at Ernakulum and within a short time he rose to eminence in the galaxy of legal luminaries of the erstwhile Cochin State, by dint of his industry, intellect and advocacy. He continued his hard work and perseverance in a greater degree after he became a Judge. In the midst of his studying the cases and scrutinizing the various files he was having his detailed researches in the Law Reports making himself thorough and up-to-date. He possessed judicial talents of a high order. He brought to bear on every question a strong common sense and a generous humanity which won for him the respect and confidence of the profession and the general public. His alertness of mind, his quick grasp of points, his intolerance of verbiage, his love of precision and his anxiety to do justice are his admirable personal qualities. His judgments besides evincing wealth of legal learning and scholarship have a refreshing originality about them, born no doubt of his unique mastery of the classics. He was as much at ease in the intricacies of the constitutional law, toughness of commercial law, dry details of an account suit, bewildering uncertainties of the boundaries of a cherikal, the peculiar principles of Marumakkathayam Law, or the anxious aspects of a criminal case as in the facts of an ordinary promissory note suit.

In bidding you respectful farewell, we convey to you our best wishes for a long life, prosperity and happiness. May God bless you with health and energy enough to enable you to render still more useful services?

Hon’ble The Chief Justice Mr. K. Sankaran

It gives us great pleasure to offer our sincere and respectful felicitations and, good wishes to Mr. Justice Sankaran on his appointment as the, Chief Justice of the Kerala High Court. We are sure he is eminently qualified for this high office by reason of his long experience as a Judge of fearless independence, exceptional integrity and absolute impartiality.

He was born on 18-8-1075 M.E. After a brilliant academic career he set up practice at Quilon and later on at Trivandrum. He was appointed as an Additional District Judge on 2-12-1111. For a short period he had his services as. a Government Secretary. On 13-11-1116 he was appointed as a District Judge and on 31-12-1121 he was elevated to the High Court of Travancore. He was continuing as a High Court Judge from that date on words in the midst of the vast changes the State had undergone. In 1958 he had his services as the Acting Chief Justice of Kerala.

We have absolutely no doubt that his elevation to a higher office of responsibility will be hailed with complete satisfaction by the Bar and the public. His work as a Judge has always been distinguished. His judgments dealing with many a difficult and intricate questions have been remarkable for their clarity of expression and lucidity of thought. Unswayed by personalities and unaffected by public opinion he was discharging his duties conscientiously to the appreciation of all. In his personal manners he was most unassuming, simple and humble.

He richly deserves the high office that has been conferred on him and we are sure in discharging his duties as Chief Justice of the Kerala High Court he will uphold the high traditions of the High Court and maintain the independence and supremacy of the judiciary and the res­pect for the Bar. We express our sincere and best wishes to him for a long and healthy life and a glorious career in his new office.