Taxation And Muslim Marumakkattayam Families

(Prof. J. Duncan M. Derrett, University of London)

I need only refer to the series of articles on this subject which deals with the cases on the problem: 1962 KLT., J., 18; 1964 KLT., J., 69-74, 1966 KLT., J., 71-3; and finally 1968 KLT., J., 15-16. The upshot of the thing was that Parliament, having long forgotten that there were Muslim joint families, had discriminated against Hindus by taxing joint Hindu families as distinct units, and by leaving Muslim joint families to be taxed as individuals. Therefore though Muslims should go free, the taxing of Hindu families- could obtain constitutional validity only because the number of Muslims was so very small as to make it absurd to cut down the provision relative to Hindus.

Then there arose the question whether Jain families were Hindu undivided families, and it had been held, correctly, in Calcutta that they were not. An Indian writer in a recent article sought to object to this on the ground that since Jains are counted as Hindus for purposes of the personal law they should be counted as Hindus within the meaning of a taxing statute. I stick to my former view that the taxing statutes were not relying upon the definitions of the personal law, and that the Calcutta decision was right. But even though it may be right, the whole question has now been looked at, in connection with the Expenditure Tax Act, 1957, by the Supreme Court in V. Venugopala Ravi Varma Rajah v. Union of India (1969) 1 S. C. W. R. 739 (J. C. Shah, V. Ramaswami and A. N. Grover, JJ.).

Briefly, valiant attempts were made to show that Art. 14 was broken by taxing Hindu undivided families differently from Muslim undivided families. The Supreme Court approved the practice of assessing the latter as “individuals”. They repudiated the suggestion that Parliament had, since 1869 (Indian Income Tax Act, No. 9 of that year), consistently discriminated against Hindus in favour of Muslims. What had occurred, they said, was that Parliament had set up a different scheme of assessment, and a classification as between Hindus and Muslims was reasonable because the Muslim marumakkattayam family was not legally identical with the Hindu marumakkattayam family. Their Lordships point out the numerous differences which have grown up, especially since 1933.

I do not believe for one moment that the differences between the two regimes was taken into account by Parliament at any time. It did not exist in 1869 nor up to the Income Tax Act of 1922. Nor are the differences which emerged between 1933 and 1939 relevant ones: so long as the unit remains a joint undivided unit enjoying property the similarities are great, though not exhaus­tive. But the real argument which weighed with their Lordships was the small number of Muslims concerned (paras. 13, 17). Their decision is practical, and must be accepted, though the arguments are none of the strongest. Parliament should set the matter straight and eliminate the anomaly.

Meanwhile the decision in Abdul Kader Haji v. Agricultural I.T. Off. 1966 KLT. 731 appears to have been overruled by implication.

Decision in 1969 KLT 15

(N.K. Sreedharan, Advocate, Ernakulam)

In the above decision (Pathrose v. Kuttan alias Sankaran Nair) His Lordship Justice P.T. Raman Nayar (as he then was) held that “subsequent binding authority” is a good ground for review. His Lordship has equated subsequent decision with subsequent legislation and has treated it as discovery e of a new and important matter and in any case, an error apparent on the face of the record. His Lordship has not overlooked the authorities to the contrary. The aforesaid decision has considerably enlarged the scope of Order 47. It is not my intention to state that the decision is not correct. My object is to point out the logical consequences this decision will lead us to. Of Course, a Judge should not bother about the consequences of his interpretation of any provision of law.

Suppose a Munsiff had taken in a case before him the view that the suit must be stayed under S. 8 of Act 12/66 on the representation of the defendant that he is a tenant and that record of rights has not been prepared and stayed the suit. The order is not challenged. But one Single Judge of the High Court holds in another case that upon a mere claim of tenancy without proof thereof, a suit for ejectment should not be stayed. Thereupon a review application is put in by the plaintiff and allowed and the stay is vacated and the suit taken up and proceeded with. Let us again suppose that a Division Bench in a case referred to it takes a different view from that taken by the Single Judge and holds that only a prima facie tenancy has to be established for the purpose of stay. That may give an occasion to the defendant in the Munsiff Court, whose case has been proceeded with, to apply for review. Then the Munsiff has to allow the review application and embark upon an enquiry into the question whether there is evidence of prima facie tenancy. While that enquiry is going on, if the Supreme Court has in another case taken there, decided that a bare claim of tenancy is sufficient to stay the suit in ejectment under S. 8 of the Kerala Act 12/66, the Munsiff will again have to stay the suit upon a further review appli­cation by the defendant. Afterwards suppose the Supreme Court itself in another case overrules the above decision, which is not uncommon or unknown and holds that S. 8 of the Kerala Prevention of Eviction Act 1966 will apply only in cases of admitted or proved tenancy. Then what will happen to the stayed suit, when a review application is filed by the plaintiff? That will have to be allowed and the suit again proceeded with. So this becomes an endless and interminable affair and will be a formidable threat to the principle of finality sought to be given by the rules of res-judicata and limitation.

I gave above for illustration the case of stay under S.8 of Act 12/66. But the complication will arise in the case of decrees in other actions also.

Judicial Carelessness

(N.K. Sreedharan, Advocate, Ernakulam)

To err is human. Judges, being human, are no exception. They are not infallible. Nevertheless by virtue of Article 141 of the Constitution of India, law declared by the Supreme Court, though obviously wrong, prevails and binds all courts in the country until, of course, it is subsequently discovered and de­clared to be wrong or obiter by the Supreme Court itself.

Judges may take different views on a point. Judges may decide a point according to their understanding of the question involved and their conviction. So we have instances of the Supreme Court reviewing and overruling its own decisions. Classical illustration is afforded by Golak Nath’s case (AIR. 1967 SC. 1643). Such difference or progress of views, as inevitable in the nature of things, can be appreciated.

But if by some carelessness a wrong view is made to hold the field and influence many a decision and affect several litigants, that is a grievous matter.

Even after the Fourth Amendment of the Constitution in 1955 whereby adequacy of compensation was made non justiciable, a Constitutional Bench of the Supreme Court, in AIR. 1965 SC. 1017 held that the compensation must be just equivalent. This decision was followed in AIR. 1967 SC. 637 (Union of India v. Metal Corporation of India Ltd.)

Now another Constitutional Bench of the Supreme Court in AIR. 1969 SC. 634 (State of Gujarat v. Shantital) has held that the observations in AIR. 1965 SC. 1017 are only obiter and not binding and overruled AIR. 1967 SC. 637. The Supreme Court has now in unambiguous terms stated that principle for determination of compensation or adequacy of compensation is not justiciable.

In an explanatory judgment, Chief Justice Hidayatulla says:-”It is certainly out of the question that the adequacy of compensation (apart from compensation which is illusory or proceeds upon principles irrelevant to its determination) should be questioned after the Amendment (Fourth) of the Con­stitution. The Amendment was expressly made to get over the effect of the earlier cases which had defined compensation as just equivalent. Such a question could not arise after the Amendment”. But His Lordship gives a frank expla­nation for the observation in AIR 1965 SC 1017 which misled the courts in the country all these years in the following words:-

“However it is proper for me to say a few words in explanation since I was a party to P.Vajravelu Mudaliar’s case (AIR, 1965 SC. 1017) and the obiter pronouncement of some opinions there. That case was heard with N.B. Jeejeebhoy’s case (AIR. 1965 SC. 1096). One was a post-constitution (Fourth Amendment) case and the other a pre-constitution case. The Judgments in the two cases were delivered on the same day. It appears the reasoning in the two cases was not kept separate and the whole of the matter was discussed in a case in which it was not necessary for the ultimate condition. Because of the close proximity of the decisions it escaped me that the discussion was io the wrong case and the other merely followed it”.

Now imagine the havoc this obiter discussion in a wrong place will have played in the disposal of causes. We were obliged to accept and follow the view that the Fourth Amendment of the Constitution despite its clear meaning had not made any change in the law from that laid in State of West Bengal v. Bela Bannerjee (AIR. 1954 SC. 170).

Negligence of a driver causes an accident. Miscalculation on the part of a General may result in the defeat of an army. Carelessness on the part of judges is not in any way innocuous. The higher the Court the greater will be the extent of harm done by a careless and unnecessary discussion of a question. Opinion of the Supreme Court though obiter is normally binding on other Courts. In such a situation any slight judicial carelessness will result in grievous and perhaps irreparable injury.

Section 12 of the Kerala Buildings (Lease and rent Control) Act

(N. K. Sreedharan, Advocate, Ernakulam )

Sri. V.K. Sathyavan Nair, Advocate has posed 3 questions in his Article published in Part 26, Page 52, Journal Section of the Kerala Law Times assuming that S.12 of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965, creates an anomalous situation. The curious thing noticed by Sri. Nair is “that an order under S.12 (3) is not mentioned in S.14 which clearly enumerates the executable orders”. The learned writer concludes by saying that “the anomaly can be remedied only by necessary amendments”.

When I read through the learned treatise of Sri.Nair I feared that he had overlooked the amendment introduced to S.14 by the Kerala Buildings (Lease and Rent Control) Amendment Act 1966 (Act 7 of 1966). S.6 of the Amend­ment Act introduced an amendment to S. 14 of Act 2 of 1965 and made orders passed under S.12 also executable. So I took the liberty of pointing out this Amendment Act to Sri. Sathyavan Nair. He has taken exception to the manner and terms in which I wrote him. Further he has brought to my notice that the Amendment Act 7/66 has been virtually abrogated by the Kerala Re-enacting Act (Act 8 of 1968) and tried to convince me that at present an order passed

under S.12 is not executable as, according to him, we have now Act 2 of 1965 as it existed before the amendment by Act 7 of 1966 and has invited my attention to page 25 of 1968 KLT. Kerala Acts Volume. Thereupon I expressed regret.

But I will be untrue to myself and failing in my duty if I allow Sri. Nair and others influenced by the treatise, if any, to labour under the belief that what governs us today in the matter of Lease & Rent Control is “Act 2 of 1965 in its unamended form and that an order passed under S. 12 (3) is not an executable order.

Both the Acts namely the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965) and the Kerala Buildings (Lease & Rent Control) Amendment Act (Act 7 of 1966) were enacted by the President. So these Acts required re-enactment under Article 357 (2) of the Constitution of India lest these Acts should cease to have effect on the expiration of a period of one year after the Proclamation had ceased to operate. Therefore the State Legislature re-enacted, among other Acts, these two Acts also by the Kerala Re-enacting Act 1968 (Act & of 1968). The 4th Act thus re-enacted is the Kerala Buildings (Lease & Rent Control) Act 1965 (Act 2 of 1965) as amended by Act 7 of 1966. Vide page 23 of KLT. 1968 Kerala Acts Volume. So at the time of re-enacting, the amendments introduced by Act 7 of 1966 were in the body of the original Act 2 of 1965 and it is that amended Act in the amended form that has been re-enacted. Thus in effect by the re-enactment the Kerala State Legislature has passed a Bui!dings(Lease and Rent Control) Act in its amended form. It will be seen that Ss. 2 to 9 of Act 7 of 1966 introduced only amendments to the various sections of Act 2 of 1965. Because the Amended Act has been re-enacted it was unnecessary to retain these provisions while re-enacting the Kerala Buildings (Lease & Rent Control) Amendment Act 1966 (Act 7 of 1966). That is why Ss. 2 to 9 are seen to have been omitted while re-enacting Act 7 of 1966. The result and effect of the said re-enactment is not to leave the Kerala Buildings (Lease & Rent Control) Act 19o5 in its original form before amendment. So in the present state of the law an order passed under S. 12 is one of the executable orders enumerated in S. 14.

The 3 questions posed by Sri. Sathyavan Nair are:-

(i) What are the legal consequences which follow an order under S. 12 (3) of the Kerala Buildings (Lease and Rent Control) Act?

(ii) Is the order final (?) and executable under S. 14 of the Act? (iii) Do the provisions of S. 11 apply to cases covered by an order under S. 12 (3) -?

The answers would appear to be:- (i) The tenant will have to vacate.

(ii) The order is clearly executable. So no amendment as suggested is necessary.

(iii) Provisions of S. 11 cannot apply as the Sections, independent as they are, provide for different contingencies.

The object of the Act is not to enable tenants to remain in occupation of another man’s premises without payment of admitted arrears and rent. There is no injustice or infringement of any primary right, in imposing such a condition as in S 12 on the tenant. He should not be allowed to eat his cake and have it too. The tenant should not be allowed to resist an application for eviction for long and at the same time escape payment of undisputed rent and arrears The avowed object of the Act is only to regulate the leasing of buildings and to control the rent, and is certainly not to relieve defaulting tenants of their obli­gation to pay even the admitted rent.

Irresistible Impulse v. Provocation in Homicide

(M. Marcus B.A., M.L., Advocate, Kottayam)

The Law relating to Homicide in India looks at it from the subjective point of view while the English Law views it objectively. It is well known that every Homicide is Murder as per English L aw unless circumstances mitigating it to Manslaughter are proved, while the Indian Law treats the killing of human being by the accused when such killing is effected with certain mental conditions as prima facie Culpable Homicide which is akin to Manslaughter under English Law. To find a verdict of murder in Indian Law the killing of the human being should have been done under such circumstances so as to bring the case outside the ambit of the exceptions to S. 300 IPC.

Exception I to S. 300 IPC. makes provision for the cases in which an accused who has killed his victim under grave and sudden provocation, which is viewed with some leniency and the accused is found guilty of the offence of Culpable Homicide, not amounting to Murder and saves him from the extreme penalty of Law, ie. death sentence. This is done on the ground that when man is under the grip of grave and sudden provocation and consequently he loses his power of self control and kills his victim, the law should not attribute to him more mens rea than he had. This is an instance of the working of the principle that ‘Justice should be tempered with mercy’.

There is a Latin proverb ‘Ira Furor Brevis Est’ which means Anger is short Madness

We find in certain text books on Criminal Law of India this question of provocation treated at if it is a case of Irrestible Impulse.

It is true that irresistable impulse as a defence in Homicide is not admitted in India or in England. But in America there are courts which do admit such a plea even though it is a point on which the courts in America maintain difference of opinion The reason why irresistible impulse is not admitted as a defence in India and England is that it is difficult to distinguish between an impulse that is  irresistible’ and one that is ‘not resisted’. Literature on irresistible impulse informs us that the accused when he does his act under such impluse is fully conscious of what he is about but he is compelled to accomplish the deed against his real will by the force of ‘Irresistiable Impulse’. It is here that we should appreciate the distinction between a case of sudden provocation and that of irre¬sistible impulse.

The focus of our enquiry should be actually directed to this point. It is worthwhile to note the following observation by Oppenhiemer in his ‘Criminal Responsibility of Lunatcis’at page 175: ‘Impulse in truth is the outcome of a ‘ hidden delusion’. On page 176 he says: ‘If an impulse can be resisted it makes no difference whether it owes it to disease or not since the object of law is to control the evil impulse’. This brings forth the quality of the impulse. We are at once brought to the question whether the ‘impulse’ known to law as irresistible does admit of any control. This is the spot at which currents of judicial observations diverge. The learned author further explains on page 183 of the said work: Irresistible Impulse may co-exist with the full possession of reason’. He says, ‘It is true that his (accused’s) intellect being clear, he appreciates the nature and quality of his acts but only after it has been done’. The words’ ‘but only after brings forth the real situation of the offender The law on Insanity as far as IPC is concerned requires that the accused should not have known the nature and quality of the act or that it was wrong or contrary to law, “at the time of the act”.

In the case of criminal activity under provocation the accused though is said to have lost his power of self control, does his act more or less on the lines which he had in his mind prior” to the provocation; that is why the law rightly observes that ‘ungovernable fury’ is not irresistible impulse. The core concept of provocation law is that the resentment by the accused ‘should bear a reasonable proportion to the provocation received’. This aspect of the law is historically traceable to the right of private defence. “History of Criminal Law of England by Stephen”. This statement means that the accused under provocation is att¬ributed the capacity to modulate his act, which presupposes reasonable mental faculty. This aspect is specifically hinted in Exception 1 to S. 300 IPC. when it speaks of the accused’s losing ‘power of self control’. Power of self control is not synonymous to reason. A man who loses self control may still be in possession of his reason and in a case where a man has lost his reason the question of ‘self control’ does not arise. The point is that in the case of provocation the intention of the accused does not travel to the entire area of consequences of his criminal act. It is in the area of these exceeded consequences that the law makes its condescension to punish the deed with less severity having regard to the frailty of human nature.

The case of irresistible impulse is really a different thing. Irresistible impulse in strict sense should be the product of an unsound mind whether the unsound¬ness of mind be patent or past and lying dormant. This is what Prof: Weihoffen has observed in his study of Mental Disease and Criminal Responsibility. Once we find that irresistible impulse can take its offshoot only from an unsound mind, it will be missing the mark if we treat H at par with act under grave and” sudden provocation. It may be further pointed out that in the case of irresistible impulse the question of ‘cooling of the mind’ is outside the consideration while the law relating to provocation reserves a place for it as a barometre to measure the mens rea of the accused. The aspect of ‘smarting under provocation’ is also in-applicable to the case of irresistible impulse in the strict sense In the case of R v. Alexander cited in Russel on Crimes Vol. 1, 1954 edition the learned judge observes ‘when a man is not insane but intellectually deficient the jury should consider what amount of provocation would justify i$i returning a verdict of Manslaughter...... There is no authority for such preposition and this court cannot make Laws. It is the function of the Parliament’. This statement by the learned judge is sufficiently indicative of the complexity which besets the law on provocation which difficulty is augmented by the lack of study and research in the medical field touching the aspect.

The present trend in Criminal Jurisprudence is towards ‘Individualisation of punishment’ and I think that Homicide under provocation offers a suitable ground to reach the goal, especially so when provocation and irresistible impulse may be intertwined in a case which is not improbable.

Individualisation of punishment does not mean the weakening of law but the shaping of punishment in such a way that the Criminal Law may not fall into disrepute. This is the opinion of Prof. Sallielas, a champion of the cause of ‘Individualisation of punishment,’ The same note is struck by Tarde in his ‘Penal Philosophy’ when he says ‘in former days Law bade men study justice but nowadays it is justice study man.’ The task of fitting the punishment to the crime has been an onerous one and criminologists are at work on this problem. Barnes and Teeters in their ‘New Horizons of Criminolgy’ observe that excessive and unwanted punishment of a convict arouses sympathy towards him from the public which cuts at the root of the concept of punishment. In People v. Caruso: 246 NY. 473 of New York we find a case in which provocation received which was subjected to sorrowful brooding resulting in the killing of the deceased by the accused where the learned judge in appeal reversed conviction and ordered retrial thinking that only second degree murder might have been committed: ‘In¬troduction to Criminal Justice by Orvill c. Synder’ P. 631. ‘Medical Jurisprudence for India’ by Dr. Waddell and Lyon informs us that an impulse is the terminal portion of a mental disturbance.

We are now on the threshold of a period when revision of IPC. is con¬templated and I feel that scholars in Law and medicine should work hand ia hand to effect a fractional crystallisation of Irresistible Impulse and provocation from the apparently inseperable mass of legal literature so that punishment shall have a real purpose, and law made certain lest it should over-tax the judicial brains resulting in hasty and disproportionate sentence which runs against individulisation of punishment.