A Critical Note to "Legal Profession — Some Restrictions" –

1991 (1) KLT Journal Page 29

(By P.S. Ramalingam, Advocate, Calicut)

The following criticism is highly warranted especially because of the unconstitutional suggestions put forth by the learned writer. Of course the over crowding of advocates is one of the problem which beset she legal profession and there are effective and viable measures for lessening the same, which I beg to suggest hereunder. But inducing measures to lessen the crowd as suggested by the learned writer cannot be entertained at all for the reason that they are violative of the provisions of Indian Constitution.

It is true that the legal profession which is NOBLE in all sense, as it is used to be addressed in comparison to other professions, is a prestigious one for upholding the principles of democracy and legal rights of a human being as enunciated under the Indian Constitution and the laws framed thereunder.

The suggestions Nos.2 to 5 posed by the learned writer are totally unconstitutional, arbitrary and illegal thereby curbing an individual's freedom of right to practice a profession of his own choice as envisaged under Act 19(1)(g) of the Indian Constitution.

It is true that the legal profession is one which requires total commitment and dedication by oneself apart from perseverance and intellectual acumen. But the suggestion that only those with at least a second class LL.B. degree should be allowed to be enrolled as Advocates cannot be countenanced at all. The minimum qualification prescribed for competing to judicial service is also an LL.B. degree coupled with a prescribed period of practice. No where a class minimum is prescribed. Apart from that securing an academic distinction has nothing to do with practising profession. What is required initially is only a basic knowledge in law coupled with complete dedication and commitment to profession which is a sine qua non. What is contemplated by the legal education in law colleges is only to impart basic knowledge in law before one takes to the profession. There are so many young lawyers who have no academic distinctions coming up in the profession and at the same time, most of the academic distinction holders are unable to represent properly before courts and utter a syllable when any queries arc put from the bench regarding the file which they represent. So there is no merit in suggesting that only person with atleast a second class LL.B. degree should be allowed to be enrolled as Advocates.

Likewise it is totally unconstitutional to suggest prescribed limit to the number of Advocates to be enrolled in a year, increasing the enrolment fee from Rs.250/- to Rs.1,000/-, fixing age limit etc. because that will be placing unnecessary fetters in ones freedom of right to practice a profession of his choice which will be further manifested from the reported ruling in Abdul Azeez v. Alappuzha Bar Association - 1992 (2) KLT 443).

It was a case wherein petitioners who are retired government personnel started practising the profession in Alappuzha Bar getting themselves enrolled subsequently. A resolution was passed by the Alappuzha Bar Association expelling the petitioners from the membership in Bar Association which was brought to challenge by the aggrieved persons.

In that case His Lordship Justice P. Balanarayana Marar had observed that "Members of the legal profession occupy a high status and carry high responsibilities. From them a much higher standard of conduct and caution is expected. They are not only the agents of the persons who engaged them in a case but are also officers of the court expected to assist the court in the administration of Justice by all means in their power." The learned Judge had further observed that "Petitioner may have been called to the profession after service of the State Government or the Central Government or other authorities. That should not have been taken as a disqualification to practice the profession nor can their right be denied for the reason that the professional prospects of other advocates are adversely affected by their entry."

Now 5th and the last suggestion made by the learned writer is regarding placing restrictions in accepting number of briefs, is something ridiculous. Accumulation of briefs is something which relates to the ability, experience and intellectual capacity of a person. It is not that much easy to accumulate briefs as is stated by the learned writer. The litigant is not a fool to approach every Tom, Dick and Harry to conduct his case. It is the client who decides as to whom he should approach with his cause and nobody can place any fetter with regard to acceptance of brief. It is purely a matter exclusively with in the discretion of the lawyer and his clientele.

Of course there are some corrupt practices such as touting are prevailing as regards certain type of cases like Motor accidents Claims, Land Acquisition cases and Electricity O.Ps. where no too serious questions of law is evolved where in certain newly sprout up "independent lawyers" are stooping to habits which militate against professional values, standards and prestige, as stated in the words of learned writer. As far as those 'persons' are concerned effective steps have to be taken by the State Bar Council for curbing the corrupt practice.

The sudden overcrowding in the profession has been since the past 5 or 6 years by simultaneous starting of five year law courses along with the existing three year law courses besides the evening courses. In order to lessen the overcrowding it is essential that there should be only one type of law course instead of the present system of creating two types of personalities. As already quoted above the words of His Lordship Justice Marar "The members of the Legal profession occupy a high status and carry high responsibilities from whom much higher standard of conduct and caution is expected." So the persons who takes to the profession should be a matured, well reasoned personalities. Comparatively a lawyer who come out by completing the traditional 3 year law degree seems much more reasonable and matured personality than those who complete 5 year course. The reason is obvious. As I have already stated legal profession cannot be compared to that of Medical or Engineering regarding the high standard of conduct and caution it requires being a truly democratic profession guarding the principles of democracy and human rights. Further a screening test can be conducted for 2 year course also for the candidates before seeking admission. More over compulsory chamber work and court practice for a year with a senior lawyer can be prescribed after the completion of law degree followed by an examination by State Bar Council at the end of training before getting themselves qualified for enrolling as advocates as it was prevailing in olden days in which period our country had seen eminent legal luminaries. So that persons who are committed alone will take to the profession and others will leave for other fields having got a basic degree.

To conclude I may quote the quote of His Lordship Hidayatullah, retired Chief Justice, Supreme Court of India, as referred to by His Lordship Justice Marar in the above cited ruling. "A lawyer is a kind of person who may be born but a lot of making goes into a real lawyer and in the end is rather made than born."

Kerala Joint Hindu Family System (Abolition) Act, 1976 :

Women and Society the Beneficiaries

(By Lucy Carroll, M.A., Ph.D., University of California, Berkeley)

'Let Act 30 of 1976 be scrapped; it appears superfluous and contributive to an improper outlook on life.' Thus proclaimed Dr. W.F. Menski in an article (1986 KLT J. 63 at 65) which has belatedly come to my attention. (See also 1986 KLT 17).

It is more than a little surprising that anyone could possibly talk about the Kerala Act without mentioning the position of the Mitakshara daughter, who even after the Hindu Succession Act, 1956, is in a grossly inferior position vis-a-vis a son in regard to rights in or to family property. There are only two ways of dealing with the problem: giving daughters birthrights comparable to those of sons, or abolishing male birthrights. Kerala boldly opted for the latter alternative; this step should be applauded.

Dr. Menski draws attention to what he considers a 'glaring oversight' and 'the most pernicious side effect of Act 30 of 1976.' (1986 KLT, pp. 18, 19). Postulating a family consisting of father, mother, and two sons on the day the Act came into force, he compares the shares taken by these two sons with that taken by a third subsequently born son. On the father's death, each of the three sons will take (under the Hindu Succession Act) one-fourth of the father's share (assuming his widow is present). By virtue of the partition occasioned by the coming into force of the 1976 Act, the father's share is one-fourth; thus each son takes 1/16. However, the two elder sons who were alive at the time the Act came into force and participated in the partition already have shares of one-fourth each. Thus, while the son born subsequent to the partition takes only 1/16, the two elder sons end up with a total of 5/16 each. This result is neither surprising nor unprecedented; nor is it grounds for scrapping the Act.

Firstly, let it be remembered that the Mitakshara daughter, is under the Hindu Succession Act, 1956 in exactly the same position of the son born after the 1976 Act on whom Menski expends such sympathy. While her brothers take from birth a share equal to that of their father, the daughter has no birthright and can only claim, after 1956, a share (with her brothers and mother, if alive) of her lather's share.

Secondly, the situation to which Menski draws attention can only happen once; it will only occur in the present generation. The existing sons retain the share they acquired through the birthright; subsequently-born sons, whether of the transitional generation or later generations, do not take shares by right of birth. Only in the transitional generation is it possible that sons in existence on the coming into force of the Act and subsequently born sons might co-exist together. If the subsequently-born son of the transitional generation takes a share less than he would if he had been lucky enough to be born a generation later, so also docs the existing daughter.

Mitakshara daughters benefit not at all in the transitional generation. It might have been more satisfactory if all Mitakshara property could have been distributed per capita to all members of the family, but this was avoided, obviously because such a course would have involved divesting sons who had already acquired rights by birth, a step which would certainly have raised protests and would probably have involved constitutional issues.

Once the partition consequent upon the coming into force of the 1976 Act has taken place, all property passes by succession and sons and daughters will inherit equally on an intestacy. Again Menski's comment that as regards Mitakshara Hindus, 'the..........daughter, as in the rest of India gets no share in the family property unless she becomes an heiress under the provisions of the Hindu Succession Act, 1956 (1986 KLT p. 18), is unenlightening. The implied criticism or comparison (with Mitakshara sons? with non-Mitakshara daughters?) only applies in the transitional generation. After that, all property will pass by succession. A son, no less than a daughter, will get no share in the family property unless he becomes an heir under the provisions of the Hindu Succession Act, 1956.

Thirdly, the situation to which Menski calls attention is far from unique or unusual. It is analogous to what occurs when there is a partition among father and sons during the lifetime of the father and other sons are conceived and born subsequent to the partition. The subsequently-born sons will take considerably less than the sons born before the partition. The result in this case, no less than in the case which so disturbs Menski, might be termed 'a most inequitable form of distribution of the former joint family property.....between male siblings, the criterion being merely the date of birth of the respective individual' with respect to the partition. (1986 KLT p. 19). The possibility that an 'inequitable' share of the former joint family property might go to sons conceived subsequent to a voluntary partition could only be prevented by barring all Mitakshara partitions during the lifetime of the father. I wonder that Menski has not (at least as far as I am aware) suggested such a 'reform.'

From the perspective of the Mitakshara daughter, the distribution of joint family property has always been 'inequitable.' The Kerala Act of 1976 remedied this basic defect; that some individuals might suffer a similar transient 'inequity' in the transitional generation is the cost of the kind of fundamental reform to which Kerala has courageously committed itself.

Having said all this, it might be worth considering an amendment to the 1976 Kerala Act detailing a special rule of succession to the properly of a Mitakshara male who was a coparcener with sons at the time the 1976 Act came into force and who died leaving either daughters or after-born sons. This special rule should give preference to the children (daughters and after-born sons) who did not participate in the partition occasioned by the 1976 Act as heirs to the share the father took on that partition and to his self-acquired property, provided that the preferential entitlement would not exceed an amount equivalent to the share that the existing sons had taken on the partition. It should be remembered that according to Mitakshara law prior to the MSA, the son born after a partition was heir to the father's self-acquired property in preference to the separated sons.)

I doubt very much that the 1976 Kerala Statute was enacted simply or even mainly because 'there were some abuses of the joint family system among Hindus by unscrupulous individuals who took advantage of their positions of power.' (1986 KLT p. 20.) Surely a major thrust behind the legislation was that there was simply no other effective way of guaranteeing the right of the Mitakshara daughter to an equitable share of the patrimony. The ouster of daughters was something that happened routinely, in every Mitakshara family; it was not a matter affecting only "a few' such families; the Hindu Succession Act had done little to redress the situation. By 1976 the virtual exclusion of the Mitakshara daughter could simply no longer be justified. This is a question that Mitakshara Hindus in other parts of India arc going to have to deal with sooner rather than later. As befitting a progressive State with a highly literate populace, Kerala has shown the way.

Dr. Menski professes concern for the daughter whose 'egoistic' brother may not be willing to contribute toward her marriage expenses. (1986 KLT pp. 18, 65.) To a large extent this is again a problem confined to the transitional generation, involving the daughter who did not get a share when the property was partitioned among the coparceners upon the coming into force of the 1976 Act; S.4(1) of the Act expressly attempts to protect her.

As for future generations, as long as her father is alive, the girl's brothers have no claim on his property; if her father is dead, she will have inherited a share equivalent to that taken by her brother. Hopefully, she will be more practical and more far-sighted than to waste money on frivolous and extravagant celebrations designed more to glorify her kinsmen than to contribute to the welfare of the bride, the matrimonial couple, or their children.

Whether because her father has access to a smaller purse and/or because the girl herself has more to say about precisely how the money is spent and/or because her brothers are less willing to dip into their own pockets, the Kerala Act may be expected to mitigate wasteful and extravagant expenditure in marriages and dowries. I have previously argued (Eg. in a paper presented at the University of Texas, Austin, 2 April 1986) that the problem of dowry cannot and will not be resolved until the question of equalising the daughter's rights in the patrimony is directly addressed. In the absence of such fundamental reform, the attempt to render illegal dowry transactions is to negate even further the daughter's rights in her family of birth. While it would be a gross over-simplification to suggest that exclusion from inheritance is the single cause of the dowry system as it presently exists in India, the problem of dowry must be seen in the context of other property rights of the daughter, and criticism and condemnation of the dowry system must be coupled with advocacy of reform of the daughter's rights as an heir to the property other natal family. Again, Kerala's dramatic step in abolishing male birthrights in Mitakshara joint family properly can only be applauded.

To the extent that the Kerala Statute recognises daughters as equal, and equally important and valuable, members of the family as sons; and to the extent that it discourages extravagant and wasteful expenditure and mitigates the dowry evil, it certainly cannot be said to be either 'superfluous' or 'contributive to an improper outlook on life.' (1986 KLT p.65.) Precisely the opposite!

The matter that concerns me about the 1976 Act is that henceforth, there being no birthrights, all of the father's property will pass on his death under the Hindu Succession Act. This means that daughters and sons inherit equally — if the father dies intestate. But there is no restriction on the power of a Hindu to will away his property as he pleases. By disposing of his entire property by will in favour of his son, a father could effectively disinherit his daughter.

Here Muslim law offers a solution — and in evolving a Uniform Civil Code, the potential contributions on offer from this impressive corpus of legal thought and jurisprudence should not be under-estimated. (An example already incorporated into law is the 'option of puberty' clause added to the Hindu Marriage Act in 1976. See Lucy Carroll, 'Muslim Family Law in South Asia : The Right to Avoid an Arranged Marriage Contracted During Minority,' Journal of the Indian Law Institute, 23 (1981) : 149-180). In Muslim law an individual may not dispose of more than one-third of his estate by means of a will without the concurrence of his heirs. Sunnis take the matter a step further and ban all bequests in favour of an heir (even within the one-third limit) without the concurrence of the other heirs.

The Kerala legislators would do well to consider amending the Hindu Succession Act so as to impose limits on the testate power of Hindus in order to ensure that the rights given to the daughter by one hand are not taken away by another.

Neither Accommodation nor Control

(By Sajan Mannali, Advocate, Ernakulam)

Well, that was my first experience with the 'Accommodation Controller'. Naturally, deceived by the name, I expected atleast some control, and a little accommodation too. However at the end of my 'tryst' with the Accommodation Controller, to my dismay, I found none.

My client, a lady dentist, was residing in a rented house. She was also running a dental clinic, in the same. Her landlord, like any other 'lords' around demanded an increase in rent. She in turn requested for the long pending repair works and maintenance, before the increase of rent. Suddenly the drinking water stops, the switch to the motor removed, the gate at the outer entrance disappears arid to peak it all, her entry to the terrace brought to a stop, by locking up the gate leading to the terrace.

She walked into my office and narrated her grievances. With the assurances and promises showered by the "Kerala Buildings Lease and Rent Control Act "I confidently drafted a petition before the Accommodation Controller. There in starts my unending misery; and my client's too.

After a number of 'No Sittings', finally we - the Accommodation Controller and myself-face, face to face. I pray for an interim order, atleast in the case of drinking water. She flatly denies. I point out to the Section. She is unmoved. She tells me she is not in the habit of passing interim orders, whatever the section may say. I approach the High Court, and atleast atlast, the drinking water once again flows through the taps.

Now begins the second chapter of my unending misery. I foolishly pursue the other reliefs before the Controller of Accommodation. Once again, after a series of 'no sittings', at the end of which l am told that the Accommodation Controller is transferred. 'He' comes to take the place of 'She'. Hoping against hope, I hope for a change in attitude. But I find the boat still at Thirunakkara, as goes the old saying.

Evidence begins with great pomp and show. There, then once again interrupted by number of 'no sittings'. We are repeatedly told that the Accommodation Controller has again gone out to act out of his dual role as the Revenue Officer, in the field. Meanwhile two years pass by. I see the same suffering faces, with the same miserable cases, flitting in and out of the court.

Meanwhile, I witness bench clerks ordering Counsels. Counsels complaining to the Accommodation Controller. Accommodation Controller expressing his helplessness, indicating the 'Trade Union Mafia' and its (mal) practices. I listen to telephone calls attended amidst 'sittings' by the Controller, as well as the bench clerk, (for that matter even the peon), unbothered and unconcerned, right in front of the numbed clients and poor counsels. Evidence 'once upon a time' started continues, side by side, never to come to a close or finale.

Once again I am told that the Accommodation Controller is about to be transferred. Before I could think whether I should weep or mourn, I am told that there is an amendment in legislation, and that the churches, mosques etc. are brought outside the purview of the 'Kerala Building Lease and Rent Control Act'. Now for a change I decide to laugh, atleast to celebrate the end of the long pending - never ending tyranny. Amenities or not, my client beams and heaves a sigh of relief.

I am now told that six months have passed by; However orders are yet to be passed, dismissing the petition; based on the new amendments.

Well, it is high time that something is done in this regard, atleast by somebody. Why this waste of energy, time and money before a Controller, who never accommodates nor ever sits. And if at all 'sits* has neither learned, preaches nor practices LAW.

Inadequacy of Provision on Bouncing of Cheque

(P. Sreedharan, Dy. Director of Prosecution and Senior A.P.P., Kollam (Retd.))

It is fortunate to apprehend that the Legislature is pleaded to incorporate the new Section 138 of "The Negotiable Instruments Act, 1881" and the ancillary provisions in Chapter XVII of the Act. Prior to the commencement of this new section the only remedy on a post dated cheque was to approach Civil Courts and had no redressal of grievances through Criminal Courts. Really this section and this new chapter is a gift for the legal practitioners and to the public at large.

It is obvious that the ultimate object of this section and it's magnitude is averted with large omissions and anomalies which is hard to say as harmless or meagre. A legal practitioner who thinks about the pros and cons of this section can point out several precarious legal fictions, requests additional provisos to this section to fill the loopholes.

Points for consideration

Whether the second presentation of cheque is valid?

In a dictum of his Lordship Justice Balakrishnan reported in Sunil Kumar v. Bhadran (1991 (1) KLT 651 = 1991 (1) KLJ 335) it is enlightened that "The Payee or holder in due course can make a second presentation of the cheque and he can launch a complaint on this second presentation as the cheque would remain valid for a period of six months".

A Madras High Court decision reported in 1993 (1) KLT 1 (Sivasankar v. Santhakumari) came in support of the above decision which states as a cheque can be presented on different occasions constituting separate cause of actions and hence a complaint on second presentation of cheque if made within the period of its validity is maintainable.

This was negatived by a Division Bench of the Kerala High Court, reported in 1991 (1) KLT 893 (Kumaresan v. Ameerappa). The gist is that more than one cause of action on the same cheque is not contemplated. Cause of action arises on issue of notice after the first presentation of cheque. So a prosecution on second presentation and second notice is not tenable.

This question of law is now under the active consideration of the Supreme Court on an appeal pending. The section is ambiguous in this position.

Insufficient funds: It is offence if cheque is dishonoured on ground that the amount of money standing in that account is insufficient.

Stop Memo: When cheque is dishonoured on "Stop Memo" given to the Bank by the drawer while having sufficient funds in his credit to honour the cheque is not an offence as laid down by High Court of Punjab and Haryana reported in 1992 (1) KLT 765. (Rama Gupta v. Bakeman's Home Products).

Account Closed: In a case where the cheque is dishonoured on ground of "ACCOUNT CLOSED" is held no offence by Madras High Court reported in 1992 (2) KLT 417 (Prasanna v. Vijayalakshmi).

Refer to drawer: Cheque returned with an endorsement "REFER TO DRAWER" cannot be inferred that the cheque was returned on account of insufficiency of funds in account and hence no offence as per decision of High Court of Andhra Pradesh reported in 1992 (1) KLT 684 (Union Roadways (P) Ltd. v. Shah Ramanlal).

These are interpretations of courts came very late and because of absence of inhibition in clear terms in the section so many prosecutions are defeated in the initial stages. The above are single Bench decisions which may come otherwise later.

Date of drawal of cheque: There are inconsistent decisions regarding the date on which it is drawn to calculate six months. In a decision of Punjab and Haryana High Court reported in 1992 (1) KLT 686 (Gulshan Rai v. Anil Kumar) it is held that the actual day on which the cheque was drawn and delivered is the date of draw and not the date shown in a post dated cheque.

But in a Kerala High Court Division Bench decision reported in 1991 (2) KLT 65 (Manoj K. Seth v. Fernandez), it is decided that "Post dated cheques for the purpose of Clause (a) of the proviso has to be considered to have been drawn on the date it bears and not on the date it is delivered."

This is repugnant to the first decision. The section is silent in this issue also.

Give notice in writing.

S.27 of "The General Clauses Act" gives the benefit of an assumption to the sender of a registered post as it is delivered to the addressee in the ordinary course if it is properly addressed and pre-paid. But this section is silent about the DATE of service of such letter to calculate the period of fifteen days next to.

No date of receipt in acknowledgment

From which date the payee should calculate the fifteen days from a postal acknowledgment received back without entry of date of delivery of notice?

Letter or acknowledgement not come back

In a case where neither notice nor the postal acknowledgement come back and in such an incident what is the basis for calculation of fifteen days from the date of service?

If these uncertainties and anomalies are left uninterfered and if S.138 is not made exhaustive with more provisos these inconsistencies will continue till it gets final verdicts from Supreme Court and to that extent of time it will facilitate to refute the section negatively while carrying out in the practical field.

Boycott of Court by Lawyers

(P.K. Jose, Advocate, Ernakulam)

1. I am of opinion that boycotting a court of law by lawyers cannot be justified legally and morally. I believe that boycotting the court, will amount to an illegal act, even contempt of court.

2. For the said reason, I believe that in no circumstances shall lawyers boycott the court.

3. Let us first analyse what is meant by boycott. Boycott means "abstention from buying, abstention from using, avoidance, ban, banning, black-listing, debarring, embargo, exclusion, ostracism, proscription, refusal to do business, rejection, shunning, strike, with holding of patronage".

4. We have adopted a constitution under which the institution of court or judiciary is independent and impartial. All disputes are ultimately decided by court, and nobody can disobey or violate a decree or decision of a court of law. If one does so, one is guilty of an offence.

5. Lawyers are part of this institution and our profession is noble and learned. We have joined this profession because we have faith in rule of law.

6. If we believe in rule of law and accept judiciary as the final arbiter of all disputes, what is the justification for boycotting the court.

7. When we boycott the court, we are breaking the promise with our client, and more important, expressing our lack of faith in court and rule of law.

8. Lawyers should not behave like industrial labourers or employees, or businessmen. When industrial employees boycott or strike work, observing the rules, they are doing an act which is permitted by Industrial Law. When public resort to strike or boycott they are protected under Art.19 of the constitution. The above said actions are not directed against an institution, nor can it be said that there is breach of contract in such cases. But in the case of lawyers, for the reasons mentioned above, boycotting the court will amount to an illegal act and even contempt of court.

9. Lawyers are not a weaker section in society. Lawyers are a powerful section of the society because they know law and they have learning and knowledge which are the source of their power. For this reason citizens seek advice and guidance from lawyers.

10. By boycotting the court, we are tarnishing the good image of judiciary and profession of law.

11. We have other methods and means to express our protest and make the concerned authorities act according to law. Lawyers know how to set law in motion and bring violators of law to justice.

12. It is time that we lawyers think about the issue of boycotting the court by lawyers, its legality and justification. What else, short of boycotting the court, can be done by Lawyers' Association to express their protest against injustice done to lawyers themselves or others in our society.

13. It is advisable to have a debate on this issue, to have an in-depth study in its legal, professional and social aspects. Bar Association can call for a meeting of lawyers for a debate on this issue, as has been done by Kerala High Court Bar Association in other cases.