Rappai v. Anthappai

(By Varghese T. Abraham, Presiding Officer, Labour Court, Ernakulam)

Giant Anthappai was in the business field

Clients he had all over the world

Collapsed all on a sudden he in trade and business

Empty was his purse and disappeared his friends

                      "Squandered he money like a prodigal son;

                       Didn't he bother about future": commented his dear ones

                       Debts he had to repay and suits to defend

                       Dejected was he and neglected by all.

Rappai-his neighbour, a teacher retired

Sent he his daughters, except one, with suitable grooms

Sons are well placed and lead they a happy life

Deposited he money for the daughter and ornaments in the locker

                        Attended he church early in the dawn

                       Offered he prayers with family in the dusk

                       Referred he gospels and also psalms

                       Loved his neighours and gave poor alms.

To the downtrodden and needy "love" was his verb"

“Good Samariten": said all and sundry in the village

Lamented he always towards the needy and orphans

Helped he a lot the widows and destitutes

                        Shedding tears came Anthappai and said

                        "Wife is of frail health, debts to repay

                        Life is at peril; lend me some money

                        Rappai, my friend, I promise to repay"

"Love Thy neighbour" provoked, simplicity stirred up

Sympathy weighed and Christianity awakened

So, he loaned not a paltry amount of twenty

But Rupees thousand in fifty

                        Blessings he showered and prayers he promised

                        Issued Anthappai a cheque, (Rappai not insisted)

                        Promised to repay with interest at twelve

                        Didn't he break usurious laws, never he was a Shylockian-lender

Flourished Anthappai in trade and business

Exported he frogs, prawns and fish

Encircled him friends and showered laurels on him

Clasped they hands on hearing him at Lions and Rotary

                        Played he ducks and drakes with money

                        Put up he buildings in the town like Babel's tower

                        Purchased he vehicles - heavy and light

                        Plots he bought and boats he owned.

Demanded Rappai his money without interest

To send his daughter with a handsome groom

Hard hearted Anthappai unfolded his hands

Hard pressed Rappai appealed for his money

                        Mediators intervened and business tycoon refused

                        Met Rappai a lawyer and sent him a notice

                        Reply he sent and disowned the cheque

                        Presented the cheque; returned it with "refer to drawyer"

Filed he a complaint under the N.I. Act

Swore he before the Magistrate truth and nothing but truth

Sent summons the Court: all returned "accused not in station"

Never Anthappai appeared; but Rappai was present

A year and more expired, Rappai was tired

To avert a dismissal he must be present

                       "One year expired; service is not completed

                         Your case is closed" said his lawyer

                        "Am I at fault?" a sobbing query to the lawyer

                        "Am I at fault?" Piercing was the retort.

Got back the cheque and thought for a while

Rushed he to the station to square up the problem

Made he a yowl and stood there with tremble

Explained he the grievance with folding hands

                         "Bring him here soon" and the jeep took its start

                          Brought him there and stood he with culprits and cut throats

                         "Give him soon whatever is due", Inspector shouted

                          In bundles he brought currency without demur

Principal and interest Rappai got

Returned he home with confucius' words

"I give credit; you no pay

I get mad

You ask credit; I no pay

You get mad

BETTER YOU GET MAD"!

A Comment on 1995 (2) KLT 386

(By P. Rajan, Advocate, Thalassery)

A Division Bench of our High Court recently held that offence under Section 138 of the Negotiable Instruments Act, 1881, cannot be compounded by invoking Section 482 Cr. P.C since the Act does not expressly permit composition and Section 320 (9) Cr. P.C. also prohibits; according to the learned Judges. The point to ponder is though the enactment in question is silent On this aspect, can't the High Court permit composition of the offences being under a special statute, considering the scope, ambit and purpose of it?

The newly inserted provisions in the Negotiable Instruments Act 1881, Sections 138 to 142 (Amendment Act 66/88) speak of the offence, mode of trial and punishment. It is pertinent to note that these provisions have been introduced to check the menace of issuing cheques indiscriminately by persons knowing about the consequences on presentment to the banks and afterwards, causing embarrassment to many, including bankers. Civil suits often and rarely complaints under Section 420 I.P.C. were the remedies of the aggrieved, till then. Since Act 66/88 has came into effect from 1.4.1989, effective remedy is extended to the drawee or holder in due course of a cheque even dishonoured by the drawer's bank to achieve desired legislative intent, General law regarding period of limitation, jurisdiction of trial court to award sentence etc. have been specially mentioned in the statute itself, by passing the general provisions contained in the Code of Criminal Procedure. It is expressly made clear that the provisions in the Act alone need be looked into, while trying a complaint under Section 138 of the Negotiable Instruments Act for several purposes. Time to launch a complaint is minimised to 45 days only, on issuance of the statutory notice contemplated under Section 138(b) of the Act and a First Class Magistrate is empowered under the Act to award fine amount exceeding Rs.5,000/-. These special features are strikingly different to Section 468 and Section 29 of the Code of Criminal Procedure. This has gained approval of our High Court (1993 (2) KLT 769), also.”

Considering these patent deviations from the general rules of law, it is reasonable to opine and prudent to think that the purport of the enactment is to give rapid remedy to the complainants' by avoiding the normal and cumbersome procedures under general law, which occasionally occur. If so, can composition be refused, even if the statue is silent? The learned Judges have refused permission mainly holding that Section 320(9) Cr. P.C. is an express bar for compounding other offences, if not detailed in Section 320(1) and (2) of the Code. In effect sub-section (9) speaks about the process of composition and the same could be done in the manner Section 320 Cr. P.C. permits. For example, persons who are competent to compound the offences under the Indian Penal Code are detailed in sub-sections (a) and (b) of Section 320(4) and only such persons can compound those offences. Section 320 does not say that if a special enactment does not favour compounding of offences under that statute, this provision under the Code cannot be pressed into service. In short, if circumstances warrant, courts can permit composition in the manner in which Section 320 prescribes, for procedural formalities. Even if Section 320 is in applicable, as held by our High Court, will it curtail the inherent powers of the Hon'ble High Court to allow settlement of complaints by invoking Section 482 Cr. P.C. Section 482 with its wide scope, permits the High Court to act in order to secure the ends of justice. Considering the purpose of the enactment, coupled with the relief and remedy that could be given to the concerned parties the High Court can permit compounding of complaints by resorting to Section 482 Cr. P.C, at least by over-looking Section 320 Cr. P.C. Otherwise, sometimes, the complainants also would be placed in a disadvantageous position; say for example, if a trial Court does not award, after the conclusion of the trial, the entire cheque amount as fine to the accused, and chose to tack on a short term of jail sentence as part of the sentence, complainant's grievance remain not redressed. Even though the accused is liable to pay the whole cheque amount, and the complainant could not appeal for enhancement of sentence, or his attempt before the appellate forum became futile, the desired result remain unachieved. If the accused in such circumstances if attempt to settle the complaint before the appellate forum in his appeal, by offering the entire cheque amount, probably to avoid the jail term, the present ruling put both the parties in peril. Relating to an offence under Section 138 of the Negotiable Instruments Act, dishonour of the cheque by the bank itself does not give cause of action to the drawer. This is an advantage given to an accused to make payment after dishonour of the cheque and on intimation from the payee. This seems to be avoid litigations at the first instance itself, without giving any time to settle the disputes out of Court. In grievous offences which are non-compoundable, the Apex Court has granted permission after considering certain reasons advanced by the parties, in appeals filed under Article 136 of the Constitution. (AIR 1988 S.C. 2111). If so, the High Court also can extend the relief of composition under Section 482 Cr. P.C. Since complaint under Section 138 of the Negotiable Instruments Act are on escallation. Genuine attempts for settlement by payment of the amount, though belated due to varying reasons, will remain unanswered otherwise. Thus a larger Bench's intervention is needed to resolve the issue, in order to express desired motto of the law makers.

*The Importance of being a Lawyer

By T.P. Kelu Nambiar, B.A., M.L., Senior Advocate, High Court, Ernakulam)

The topic, namely 'The Importance of being a Lawyer', is abounding. Therefore I propose to deliver this address with style and substance; not as ramble reflections. I shall endeavour to designate the locus of the problems facing the profession of law. Remember, we are all far more capable than we ever imagine. I shall today tell you what you want to know, not only what you want to hear, about the role of lawyers, their duties, manner of functions, advocacy and accountability of the Bar and the Bench.

The legal profession is admirable. Ours is said to be a learned profession. We learn the law from books but we cannot learn men from books or briefs. It is said that silence is learnt from the talkative; toleration from the intolerant; kindness from the unkind. And learning is most requisite which unlearns evil. The learning and knowledge which we have are, at the most, but little compared with that of which we are ignorant. Therefore, a lawyer of today should learn a lot, apart from law books. He should be a man of multiple excellences. It is said dial a lawyer who has not studied economics and sociology is apt to become a public enemy. Leadership and learning are indispensable to each other. My idea in skirting in this strain is to impress upon you the importance of the role of really learned lawyers in public life. We should disabuse the feeling, inveterate though, that the trouble with law and society is lawyers. Benjamin Franklin had to say that a countryman between two lawyers is like a fish between two cats.

Our profession, said Daniel Webster, is good if practised in the spirit of it; it is damnable fraud and inequity, when its true spirit is supplied by a spirit of mischief-making and money getting; the love of fame is extinguished; every ardent wish for knowledge repressed; conscience put in jeopardy; and the best feelings of the heart indurated by the mean, money-catching, abominable practices which cover with disgrace some of the modem practitioners of law. The Preamble to Standards of Professional Conduct and Etiquette' in the Bar Council of India Rules, exhorts:"An Advocate shall, at all times, comport himself in a manner benefitting his status as an officer of court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate". It is the duty of the lawyers to give voice to silences, clarification to ambiguities and content to omissions. While carrying on the duties of our profession, we should ever remember that law is made for man, and not man for law. The State today exercises a degree of control over the individual far exceeding in scope and intensity, that of any other period of history, as noted and discussed by W. Friedmann. There is an interlocking of the State functions and the human factor. It is the duty of the lawyers to stand guard for the essential foundation of liberty, namely 'rule of law' or 'rule under law', and bid challenge to 'rule by law' which can be the most efficient instrument in the enforcement of tyrannical rule. And it is here that the lawyer should emerge as a protector. And it is here that a lawyer's responsibility lies. And it is here that the legal profession has to play its role with courage and conscience. Responsibility walks hand in hand with capacity and courage. And courage consists in seeing and conquering danger. Faith is courage. And faith knows no disappointment, said Gandhiji. We would strive for a brave, bold, intrepid, daughty and confident bar. We should never indulge in competitive servility and sycophancy. Hardwork will always emerge triumphant. You should start moving and performing, not merely surviving. You will have to make stepping stones out of stumbling blocks, and show your relevance. Throw your hat over the fence; then you will sure climb the fence.

Just as child is the father of man, the lawyer is the father of the judiciary. An independent bar is the essential pre-requisite of an enlightened judicial set up, and the word 'independence' is united to the ideas of dignity and virtue, says Jeramy Bentham.

The law, as a vocation, is something altogether more dynamic and specialised. Education in the law must be the achievement of a skill, and, with it, the development of brain and personality, the total enrichment of the mind. The legal mind can only grow through legal thinking, just as the art of swimming is developed through plunging into water. One who plunges in medias res, is at the heart of the subject. The best legal history is the case law, and great jurists and legal historians have adopted that approach.

According to Disraeli, himself a master of argument, an Advocate is one who is able to "illustrate the obvious, elaborate the self-evident, expatriate on the common place". The aim of advocacy is the persuading or convincing of an audience to agreement with a contention about facts or with a programme of conduct. This calls for perception, and clarity, patience and determination in the presentation of the essential details with emphasis, order and significance, using common sense especially, remembering the African Proverb: "There are 40 kinds of lunacy, but only one kind of common sense". An orator convinces his followers, not his opponents. A lawyer, by forensic casuistry, convinces his opponents, not his followers.

The Advocate, in order to be successful in his plea, has himself to convince. Argument ,is secondary to facts. Evidence is the mass of fact out of which argument is framed, and without which advocacy is an empty appeal for sympathy. Advocacy is not a sermon on the battlefield.

A man cannot see his back, and so also he will not be able to detect his own faults. This is true of Judges as of lawyers. We require Judges and lawyers with audited mind. According to J.A. Strahan (in his book 'The Bench and Bar of England'): "To the lawman every judge is equally a judge; but to the lawyer there are judges and judges. There are some judges whose rulings on any moot point of law is taken as settling it forever; there are others who, to use Lord Ellenborough's phrase, are fit only to rule copybooks.....Owen Meredith once said that the King could accomplish things beyond the power of Heaven itself; and, when asked for example, he stated that the King, by making her husband a knight, had made a certain woman a lady. In the same way the King, by making him a judge, can make "an unlearned lawyer an authority on law .... Lord Westbury, in his sardonic way, once said that persons bearing a certain name well known in the legal world, succeeded to places on the Bench per stirpes and not per capita. To a certain extent that was true, since few of that name ever won much reputation at the Bar. The qualities required to gain success as a judge and as an advocate are essentially different". The attempt should be to upgrade the quality of persons connected with the legal profession and the judiciary.

Justice Pandian, in the decision of the Supreme Court relating to appointment and ttmsfer on Judges (Supreme Court Advocates-on-Record Association v. Union of India - 1993 (4) SCC 441) posed questions on 'Solomon's throne', 'Solomon's House' and 'Kingdom of Solomon' and answered the questions in favour of Solomon's sovereignty.

Let us pose the question: Is Solomon accountable to anybody. If accountable to whom.

Let me answer the question first: Solomon is accountable; and the accountability is to the people of India.

I read the Constitutional Oath to be made by the Indian Solomon:

"I, A.B., having been appointed a Judge of the High Court of (X) do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws".

Therefore the Judge swears to bear true faith and allegiance to the Constitution of India, and to uphold the Constitution. The Constitution was adopted, enacted and given unto themselves by the people of India. The Preamble to the Constitution of India reads:

"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all;

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT ENACT AND GIVE TO OURSELVES THIS CONSTITUTION'.

Therefore, judicial power, though not accountable to the Executive or to the Parliament, must be answerable to the People. As Justice V.R. Krishnalyer said: "The judiciary derives its power under the Constitution, not over it".

Horold Laski had to say: "Obviously, therefore, the men who are to make justice in the courts, the way in which they are to perform their function, the methods by which they are to be chosen, the terms upon which they shall hold power, these, and their related problems, lie at the heart of political philosophy. When we know how a nation-State dispenses justice we know with some exactness the moral character to which it can pretend".

The justicing system is too serious a business; and it is better not to leave it to the Judges alone. The Bench and the Bar must be mutually accountable to the dispensation of the system.

The judgment of justices should be the judgment of the Constitution. I say with the belief that I am not committing indiscretion that a judge is not a bestower of knowledge. He is only one presiding over a cause, and lawyers unravel the factual and legal aspects of the cause for him to render decision. And mutual respect is the order of the right relationship between a judge and a lawyer. It is not the master-servant relationship. And remember, the invisible and intangible law is not the exclusive preserve of judges. Dignity of position adds to dignity of character. This is true of judges and lawyers alike.

The legal profession today is on the hit list of the public. Therefore lawyers should avoid even the appearance of professional impropriety; and conduct themselves so as to reflect credit on the legal profession and to inspire the confidence, respect and trust of their clients and of the public. A lawyer should be as a clean as the whistle.

Advocacy exists for nobler uses than to construct fictions or scatter calumnies. An Advocate should first tame his mind, as an untamed mind is dangerous to advocacy. An insolvent mind is an insolvent mind. You cannot win a cause by taking a dose of ephedrine; you can possibly win a race or game. That winning and persuasive faculty, said Bishop Sanderson (in Ad Magistratum) is an excellent gift of God; and the good blessing of God be upon the heads of all those that use their eloquence aright, and employ their talent in that kind for advancement of justice. Ours is a profession which ought to be above suspicion and reproach. Each member of the profession ought not only to be impressed with patient devotion in the study of the first of human sciences, - the law, but dwell upon the thought that he belongs to an order in which have been enrolled the names of some of not only most eloquent, but the wisest and most virtuous of men. Try to plunder the past glory of the profession.

The categorisation of lawyers as senior and junior can at best be trade marks. That has nothing to do with professional capacity and purity. Be respectful of seniority, but be not be overwhelmed by it. Mind your profession; you will win the jackpot. Once you join the bar, you will be nobody' s case; you will have to look after yourself, unless you enter with an impressive inheritance. You cannot look upon the judge as your care-taker. You do not constantly contemplate the form of a judge as you do of God.

Sir Edward Clarke, K.C., a famous member of the English Bar, once said that success in the profession depended on three factors. The first was to have an infinite capacity for hard work; the second was to have no money; and the third was to be very much in love; not, of course, carnal, but professional. A capacity for hard work combined with such powerful incentives will no doubt carry one far towards success, of course, with other qualifications necessary to attain it. In his Foreword to the second edition of Rao Bahadur K.V. Krishnaswami Aiyar' s book of Professional Conduct and Advocacy, Sir Maurice Gwyer, Chief Justice of India, (at that time, the Federal Court) deplored the lowering of standards of the profession. Even in those days (in 1945), it was considered that one cause for the fall in standards was the great over-crowding of the profession and the, struggle for existence among its less fortunate members, since the weaker brethren are thereby exposed to temptations which they are not always able to resist. This, the learned Chief Justice said, is a matter which affects the public as well as the profession itself, for any diminution in the respect felt for lawyers as a whole must affect prejudicially the whole administration of justice. The learned Chief Justice ventured the following suggestion; "It is therefore worthwhile to consider whether there is any effective means of preventing these excessive numbers. I think that all would regret any artificial restriction on entry into the profession which might have the effect of making it a preserve for the well-to-do and shut out young men of small means but great promise. I have, however, often thought that it is too easy at the present time to become a lawyer and that the standards of law examinations are in many cases far too low. To raise those standards and thus to ensure that only properly equipped young men are able to enter the profession would, as it seems to me, be not only a legitimate but an extremely beneficial step. Nor do I think the teaching of law in India is all that it might be, and I should like to see some united effort among the different law schools with a view to its improvement generally". This remains the situation even after more than fifty years since Sir. Maurice Gwyer had expressed his views.

Let me make a re-run of a passage in a recent address delivered by me:

"An Advocate has myriad duties towards his clients. A client engages a lawyer for his advocacy, not for his judgment. A lawyer is to do for his client all that his client might fairly do for himself, if he could. This is what Dr. Johnson said. According to Cockburn C.J., an Advocate ought to uphold the interests of his clients per fas, but not per nefas. Dr. Johnson was right when he said that the justice or injustice of the cause is to be decided by the Judge. Charles I was wrong when he said he would not have become a lawyer, because "I cannot defend a bad, nor yield in a good cause". An Advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he professes to practise at a fee consistent with his standing at the B at and the nature of the case. Special circumstances may justify his refusal to accept a particular brief. It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. The duty of an Advocate to keep accounts of the client's money, is a duty of high order, breach of which would entail proceedings for professional misconduct".

An Advocate has a prior, primary, perpetual and paramount retainer on behalf of truth and justice. A bad law can be set right by amendment; but the defect of a weak character cannot be cured by amendment. The profession of law is a great profession. A lawyer should avoid even the appearance of professional impropriety.

It would be tedious to enumerate the duties, rights, privileges and obligations of Advocates. It will be sufficient to state generally that the Advocates Act and the Bar Council of India Rules lay down provisions to regulate the duties and preserve the privileges of the order of Advocates, such as admission and enrolment of Advocates, right to practise, conduct of Advocates, standards of legal education, standards of professional conduct and etiquette, disciplinary proceedings against Advocates, duty to court, duty to clients, duty to colleagues, duty to render legal aid, restrictions on other employment etc.

Lord Hailsham, in his 'Sparrow's Flight', says that he has never ceased his sense of loyalty to the profession to which he belonged and that he has never ceased, to the best of his ability, to maintain its traditions and promote its interests; and adds that he believed sincerely that we are insufficiently aware of the extent that our own professionals, whether Judges or Advocates, show a shining example to the rest of the world.

In the admirable work of Meyer, (Esprit, Origin, et Progress des Institutions Judiciaries), in which he has investigated the origin and progress of judicial institutions in Europe, he strongly enforces the following view of the relation subsisting between the Advocate and the public: "He who has devoted himself to that profession which is as difficult as it is honourable; who receives in his chamber the most confidential communications; who directs by his counsel those who come to ask his advice and listen to him as though he were an oracle; who has the conduct of causes of the most important; who constitutes himself the organ of those who claim the most sacred rights, or the defender of those who find themselves attacked in their persons, their honour, or their fortune; who brings forward and gives efficacy to their demand, or repels the charges brought against them, (disencumbering the load of learning); he, I say, who does all these, must necessarily require the support of the public. By his knowledge, his talents, his morality, he ought to endeavour to win the confidence and good will of his fellow citizens". The great feature of the legal profession is that it is a republic open to all where the promise of reward is held out without fear or favour to such as have industry and ability; and, as the prizes that await the successful are magnificent, no class or rank disdains to compete for them. Nor can it be unimportant to the State to inform itself what are the principles of a body of men, without whose aid the laws of their country cannot be properly administered or enforced. That is the importance of being a lawyer.

Let us never forget our high vocation as ministers of justice and interpreters of the law. The lawyer holds a prominent place. Every lawyer should try to be a Hortensius, who of all the Advocates of antiquity, said Cicero, had given himself up most exclusively to that profession. Try to become an able lawyer. But do not carry negative baggage. Adjust your performance before the different courts, as you do with grass court, hard court, or clay court.

I stop here; and leave you to ponder over the great profession on the lines of bringing credit to law and credibility to the legal profession, remembering 'justice is never deaf, though blind'.

I am thankful to the providers of this opportunity and the tolerance of this evening's listeners.

___________________________________________________________________

Foot Note

* Address delivered on 21.8.1995, at the High Court, to Junior Lawyers participating in the Legal Workshop, sponsored by the Indian Law Institute and the Kerala High Court Advocates Association.

Maintenance for Divorced Muslim Wives

(By Dr. Werner Menski, SO AS, London)

Two recent decisions of the Kerala High Court, reported as Mytheen v. Saphiya at 1993 (2) KLT 322 and Hassainar v. Raziya at 1993 (2) KLT 805, are of considerable interest for the development of the law and prompt me to make some more general comments about maintenance for divorced wives in India. The subject is of immense importance and is in urgent need of detailed analysis. At the University of London, we are presently preparing two major studies on this topic; they will hopefully be available in print during 1995. Our research shows that maintenance, because it concerns money, is one of the central areas of South Asian family law in which tempers run high and confusion reigns supreme.

Maintenance for divorced wives is not only an Indian or a Muslim problem, it is a universal predicament. Once a marriage breaks up, does either spouse have any continuing obligation towards the other? If so, for how long? Should the end of a marriage not signify the end of financial liabilities, at least for the ex-spouse, if not for any children from this marriage? Various legal systems have handled this problem in quite different ways.

As for children, the argument that their parents must have a moral and legal duty to maintain them till they can look after themselves may sound correct. But when is that? The law may stipulate certain norms, but these are not matched with actions in so many cases. Here, we are not concerned with maintenance for children from marriages that break up and focus on divorced spouses.

In India, modern Hindu law lays down that a divorced woman may have to provide maintenance for the husband under Ss. 24 and 25 of the Hindu Marriage Act, 1955. Few other legal systems in the world go along that extreme path of gender equality. Most laws rely on patriarchal notions and place an obligation oh the divorcing man to provide for the woman and to maintain any children from the marriage, too. Obviously, if a wife's continuing liability from a broken marriage is to look after the children, that should be reflected in her own maintenance arrangements. Our research in London shows that, to some extent, Indian law has been ready to recognise this basic principle. But what about maintaining the divorced woman herself?

The duly to maintain an ex-wife is, in a sense, the flip side of patriarchal chauvinism. A wife may have spent many years producing, bringing up and looking after children and after the husband himself, who acquired not only a wife, but multiple benefits arising from unpaid women's work, which is so little recognised in this male-focused world. Does all this give any divorced wife an inherent claim to financial support beyond the duration of the marriage? What about the rights of the man, who may find it attractive to remarry and who may need his resources for that purpose? Should he be allowed to lavish attention on the new arrangement only and simply forget about the past?

Few societies will find it agreeable that a spouse should be able to simply throw the other spouse out of the home at his or her whim and fancy. At the same time, it remains reality that marital breakdown happens more often than official statistics record, in all societies, not only among Muslims, and not always because the man has behaved in such a way as to make continued marital relations possible. Rightly or wrongly, attention has focused on male action to terminate marriages; in the extreme, we come across every shade of human depravity. Atrocity takes different forms; but mainly targets women: in Britain, as elsewhere, wives find themselves locked out of the home and thrown onto the street, or they have to escape from unbearable domestic violence. A growing number of such women are assisted by a network of women's refuges. In North India and the Pakistani Punjab, so-called dowry murders are sometimes used to get rid of unwanted wives. In a recent field study in Lahore, we found that men in certain neighbourhoods used 'accidental' fires fuelled by kerosene as the cheapest possible method of an instant divorce. The rationale is convincing: A dead wife can make no claims to maintenance.

In a high-level conference in Bangladesh in autumn 1992, it was significant that women's groups argued against a right to maintenance for divorced wives, of any community, 'till death or remarriage'. The preferred wording was a telling comment on human perversion: such a right should extend to her 'as long as she lives and remains unmarried'. Such subtleties of drafting disclose very perceptive nuances of the problem from a victim perspective and should be taken seriously. Getting rid of the woman by murder even saves on any form of mahr money or iddat payment and can now perhaps be seen as another form of the dreaded talaq-al-bida. But let us make no communalistic mistake: whether Hindu, Muslim, Sikh, Jain or Christian - there is evidence of a despicable uniformity of cruelly and meanness accompanying marital breakdown. At the same time, it remains a remarkable but not unsurprising feature of Indian raw that the leading cases assisting wives in securing maintenance have come from South India rather than the more chauvinistic North. Anybody with doubts should re-read Soundarammal (AIR 1980 Mad. 294) and a whole row of cases in the KLT under the Muslim Women (Protection of Rights on Divorce') Act. 1986 (see below). It is probably also no accident of history that the infamous Shah Bano case (Mohammed Ahmed Khan, AIR 1985 SC 945) does not come from Southern India.

Modern Western legal systems have shifted the burden of maintaining divorced women to the welfare state. The notion that Muslim Waqf Boards should take care of such women has been floated in India and has led to anguished litigation (see e.g. Syed Fazal Pookoya Thangal at 1993 (1) KLT 860). The verdict in that case is clear, but the case itself shows that public policy in India is confused about whether payment of maintenance for ex-spouses should be a matter for the state, some other agency, or rather for the families concerned. I have begun to argue against a welfare state approach (see now 1993 (2) KLT J.57-58). Much more remains to be said about that issue, but not in the present article.

First of all, we must draw attention to a remarkable legal development in Indian maintenance law which has been covered up and misunderstood far too long. Virtually unnoticed in India, and certainly abroad, where an outmoded image of Indian family law as medieval is being cultivated even by some professed 'experts', a quiet revolution has followed India's hasty promulgation of the Muslim Women (Protection of Rights on Divorce) Act. 1986. A remarkable line of progressive cases has come mainly from Kerala.- Ali 1988 (2) KLT 94; Aliyar 1988 (2) KLT 446; Shamsudeen 1988 (2) KLT 392; Ahammed 1990(1) KLT 172; Abdul Sathar 1991 (1) KLT SN No.22; Alavi 1992 (1) KLT 649; Hyderkhan 1992 (2) KLT 330; Syed Fazal Pookoya Thangal 1993 (1) KLT 860 and now also Hassainar 1993 (2) KLT 805. Other High Courts, too, have given divorced Muslim wives surprisingly generous treatment, based on an entirely correct and solid interpretation of the letter and spirit of the 1986 Act (see e.g. Arab AIR 1988 Guj.141).

There have been a few indignant murmurs of dissent, as in Usman Khan AIR 1990 AP 225 FB and Raja Mohammed 1992 (2) KLT SN 1. The latter is a Madras case, explicitly opposing the Kerala High Court's interpretations. More recently, Mytheen 1993 (2) KLT 322 tests the strength of Kerala's concern for divorced women's maintenance and seems to favour the man's position. It must be emphasised that there is no authoritative all-India decision on the point, but the Kerala High Court's detailed interpretations of the 1986 Act make sense in legal as well as social terms. Thus, Muslim men. like all other Indian men, have been held accountable to pay maintenance for ex-wives and children. I am certainly not saying that the law is perfect in its application , but the state's strategy to have the costs of broken marriages paid by the spouses themselves has worked out for the benefit of many women. That women continue to bear the brunt of the costs of marital breakdown, in financial as well as emotional terms, is so obviously clear that it need not be emphasised in many words.

It is, of course, entirely right that the courts have concluded from the 1986 Act that a divorcing husband has, in law and in principle, some responsibility towards the woman he divorces. What is disputed, in fact, is no longer the factum of this responsibility, but the extent of provision to be made by the man. The high-profile dispute in modern Indian law has been mainly about the obligation of Muslim husbands to pay maintenance to divorced wives which extends beyond the traditionally stipulated limit of the iddat period. Our current research in London, based first of all on Arabic sources, has shown that Quranic law put a definite moral obligation on the husband to maintain an ex-wife decently; yet the Quran does not say for how long this should be done. The dilemma for Muslim jurisprudence, as we can now see so clearly, is that this general rule in the Quran raises all the basic issues of interpretation in Muslim law and distracts from any policy discussion about the maintenance for divorced wives by reference to inter-communal and intra-communal politics. At the end of the day, the Shah Bano decision, confirming the general principle that a divorcing wife, gave a correct interpretation of the basic ground rule of Islamic law on this point, despite the fact that it was reached by five Hindu judges.

It will be general knowledge that Muslim jurisprudence has gradually defined away and whittled down the original Quranic obligation of the divorcing husband to be kind to the woman he sends away. This is what led, as every lawyer in India, must be presumed to know, to the famous Shah Bano situation, faced by lakhs of women in India from any community. After the Muslim Women (Protection of Rights on Divorce) Act of 1986, the Kerala High Court has courageously taken the lead in showing that the 1986 Act was not a retrograde step taken by an intimidated government but a firmly pro-women statute which does not violate the basic Quranic principles but contradicts subsequent juristic interpretations. Inevitably, this has again raised the perennial question about the primary source of Islamic Law. If the clear answer ought to be that it is Allah's law of the Quran, rather than man-made interpretations of it, the 1986 Act cannot be faulted. Conversely, juristic definitions of what constitutes adequate maintenance for divorced Muslim wives cannot be entitled to judicial recognition in any modern state if they violate the basic Quranic requirement of being considerate. Again, thus what one argues about is the extent of this considerable behaviour. This, I would suggest,, can only be determined by reference to the facts and circumstances of each individual case. At least with regard to maintenance, Islamic law never purported to establish a rule of law model in which everybody was to be treated equally. Reported cases in modern Indian law also tell us that if both spouses are poor, they have to starve together, whether Hindu or Muslim, or anybody else. Not untypically, the cases that go to court involve spouses who have money but cannot agree on how to allocate it.

The public discussion of this legal problem in India has remained overshadowed and confused by communal politics. In turn, Western audiences and readers have been misled, mainly by the media, into believing that Muslim women's struggles for maintenance rights are a matter of communal politics, when in fact they are a question, first and foremost, of financial liability and the rights of women. Far too many writers, whether in law journals, newspapers like the Indian Express or India Today, have continued to repeat politicised nonsense about the 1986 Act, showing their ignorance of the legal facts which it undauntedly created. This has only served to increase confusion. In view of this, the Kerala High Court's clear sighted position on the letter and spirit of the 1986 Act is a remarkable example of judicial independence and of skilful application of a controversial statute. This is not judicial law making, it is, I humbly submit, evidence of the best of judicial craftsmanship.

For years, we were told that highly charged and politically motivated petitions, challenging the constitutional vires of the 1986 Act, have been pending before the Supreme Court of India. The apex court may be too busy, or have its own reasons for seeking to delay a decision. But what about Syed Fuzul Pookoya Thangal at 1993 (1) KLT 860? Here a learned single Judge, Mr. Justice Viswanatha Iyer, held that the 1986 Act was not violative of Arts.25 and 26 of the Constitution. That case did not answer some of the questions carried to the Supreme Court, but it strengthens the entirely reasonable and logical stance taken by the Kerala High Court so far, standing up to male chauvinism and seeking to protect disadvantaged women as far as possible.

Indian law had imposed, in Ss. 125-127 of the Criminal Procedure Code of 1973, a uniform rule system that studiously avoids placing a burden on the state in terms of maintaining divorced persons and their offspring. Following the high drama of the Shah Buna case, that uniform regime was only formally broken up by the 1986 Act, which continues in effect the same ground rules as the 1973 Code. If anything, Muslim ex-husbands in India today are worse off: even though the wife may be rich herself, she can still ask for more (see Ahammed 1990 (1) KLT 172).

Given that a Muslim husband in India, after divorce in any form, now has few excuses left not to pay some form of permanent maintenance to his divorced wife, it was inevitable that a test case on the legal strength of mutual agreements about non-payment of maintenance would be brought. To what extent would the modern, professedly secular law uphold private agreements made under the personal law? This is precisely what Mytheen v. Saphiya at 1993 (2) KLT 322 is about. I see it as a test case in this regard, perhaps a victory for common sense and flexibility at this stage, but an ambivalent precedent which can easily be overturned. In Mytheen, the man appears to win, but his gain is not a victory for Muslim chauvinism; it puts the onus on Indian Muslims to come up with an acceptable solution to an age-old problem. If this is what Tahir Mahmood and other spokesmen of Muslim interests have been asking for, here is their opportunity to become creative: The case offers a good change for South Asian Muslims to develop an extra-legal Islamic rule system regarding maintenance of divorced wives which satisfies both the Quranic requirement of being considerate and the modern state's expectation that the breakdown of a marriage should not impose any costs on the public purse and still allow the divorced woman to survive in dignity.

Mytheen establishes, for Kerala at any rate, that if a Muslim woman has signed away her entitlement to maintenance, she cannot later go to court and seek to use the 1986 Act to fill her pockets or make her life easier. Some Muslim strategists will have been jubilant: all a husband has to do now is count on his wife's ignorance about the law and get an agreement out of her that she renounces any expectation of permanent maintenance after divorce. If the 1986 Act cannot be challenged in a court of law, can it be circumvented by social engineering in the community itself?

My view is that simple social facts will foil such facile ploys: I venture to predict, that Muslim families will learn very fast that what helps a husband to save maintenance cannot help the wife, who is, after all, somebody else's daughter, sister or niece. Thus, in the negotiations prior to a marriage, there will be some social pressure to ensure that women get a fair deal. As stipulated by Shahdeen Malik in 'Saga of divorced women: Once again Shah Bano, maintenance, and the scope for marriage contracts', published at 42 Dhaka Law Reports (1990), Journal Section 34-40, Muslim families in South Asia can make good use of the old-established institution of pre-nuptial contracts to safeguard the position of their female members at the point of entry into a marriage. This may sound like planning the break-up of a marriage before it has even started, but good marital planning these days may mean precisely what the Islamic law has always advised: Putting contentious matters down in writing eases problems of evidence and can be used by a petitioner to have one's right upheld in a court of law, if necessary. It is an insurance policy; emotional barriers may work against making such arrangements, but the interests of the women concerned should be paramount.

Mytheen helps the husband to assert his position that he is not liable to pay more maintenance to his wife than was originally agreed. But, given inflation and other changes in circumstances, we will inevitably come across situations of the Bai Tahira type (AIR 1979 SC 362), in which the learned V.R. Krishna Iyer very appropriately ruled that a meaningful maintenance settlement that expects to be upheld by modern state law has to be such that it enables the wife to keep body and soul together. In Mytheen, it does not appear that the wife desperately needed the extra money. Rather, she embarked on a fishing trip and perhaps wanted to achieve what Tahir Mahmood has castigated as abuse of divorced Muslim men's rights: in such situations, the woman (as Saphiya here did) remains unburdened by a further marriage but expects her former husband to pay for that privilege.

The critical question in Mytheen was whether a court should reopen an existing maintenance agreement and how this could be harmonised with public policy. The facts in the reported case are not detailed enough to allow much comment on this particular issue, but the principle itself is important: a court will not re-open an existing settlement if the wife simply wants more money. The decision might have been different if the wife, in Bai Tahira style, had justified her claim by reference to inflation or changed circumstances. Of this, there is no evidence in the reported case, where we merely find an indication of the wife's expedient move to ask for more because the law changed in her favour. It should at least be noted that in Shamsudeen, reported at 1988 (2) KLT 392, a Muslim husband's misguided attempt to play a similar trick misfired: he trusted political gossip and thought the law had changed in his favour!

We can be quite sure that Indian Courts have not spoken the last word about this kind of situation. Mytheen gives a clear message to Muslim women and their male protectors that it is wise to anticipate marital trouble and to ensure that a premarital contractual agreement or any other agreement made during the marriage (especially if its purpose is to terminate that marriage, as in this case) allows for adequate post-divorce maintenance for the woman. The kind of financial vetting that South Asian marriage often involves should help to give substance to such agreements.

Let it be emphasised again, lest there is any doubt: Maintenance law in India does not guarantee food for all people to an imaginary level of 'breadline', as the English law purported to do till this eyewash strategy of the benevolent welfare state ran into trouble because it became too costly. In English law, the state's direct financial involvement in maintenance arrangements has recently prompted a large-scale reopening of existing agreements between divorced couples. This has led to much enhanced demands on ex-husbands to pay more maintenance for their children from a former marriage. Purportedly, the recent reforms in English law were introduced for the benefit of the children, in an allegedly child-centred family law system. However, the fact that most such men had remarried and had new families to look after was quite brutally discounted, leading to several suicides and large-scale demonstrations against the new rules. Most obviously, at the end of the day, the divorced women concerned are no better off financially: the new rules simply effected a shifting of the financial burden for child maintenance from the state, desperate to save money, to the ex-husbands, who of course remain the fathers of the children they produced. The current shambles in Britain over the Child Support Agency and its disastrous trail of misery must be the subject of a separate article.

In my view, the current events in Britain show that Indian family law is wise to keep state interference in post-divorce maintenance arrangements to a minimum. Let the spouses work it out, in accordance with their means and expectations, let the increasingly operational family courts play a useful role in strengthening such settlements. If the people of India have to pay for post-divorce maintenance rather than the welfare state, then the state should keep its finger out of the maintenance pie. If we read Mytheen as a decision that seeks to strengthen the powers of individuals to make their own reasonable arrangements, I have little to quarrel with that decision. If we choose to read it as a victory for male irresponsibility, it will not carry much weight. At the same time, it gives a warning to Indian women that they cannot hope to abuse procedural loopholes to plead for more maintenance unless they can show real need. After Mytheen, one must wonder how courts will deal with the legitimate expectation, expressed in Bai Tahir at AIR 1979 SC 362 by Kerala's learned philosopher-judge Krishna Iyer, that maintenance payments must enable divorced women to live in dignity.

Male litigants will seek to ignore such basic principles with the same ease with which the Quranic stipulation about being considerate has been marginalised. Hassainar v. Raziya at 1993 (2) KLT805 provides further evidence that some divorcing men will seek to fight against reasonableness in order to save money. In this case, the 'ingenious contention' (p.806) that the wife's claim was barred by limitation had been produced. Mr. Justice K.T. Thomas gave short thrift to this argument, upholding - at least this is a possible interpretation - the right of a divorced woman to demand reasonable maintenance any time after the divorce. The case reported is appropriately technical, given the nature of the suit. I shall venture here to add some comments of a socio-legal nature about the important questions raised by this case, because it is bound to be misused in future cases.

It seems as though the process of learning about the 1986 Act and her rights under it took the divorced lady in Hassainar more than six years. Again, it is not an issue in the case whether she actually needed extra money; we also do not know whether she had to look after the two children from the marriage. The husband's reaction to her petition is significant: he searches for a procedural loophole rather than addressing the substance of the ex-wife's claim. We could expect him to do that, well and good, but is this what lawyers do, and are paid to do? In the process, the court was not given a full picture of the complex issues that this case raises.

Apart from technicalities about limitation, what about the nature of the ex-wife's claim? One issue in the case is at what point the ex-wife's claim actually arose. It seems that the ex-husband's ingenious contention is matched by a more ingenious answer from the court, basically telling the husband that, because he just slipped away from his responsibilities, he cannot now claim that his action gave rise to a cause at some point in the post which should now be covered by limitation. Thus, it seems, the husband got beaten at his own devious game.

But that does not answer the real question which lies at the root of this case. If a woman is unaware of a law beneficial to her for so many years, docs she lose the protection of that law because of limitation? In other words, could ignorance of the law be a valid defence here? There will be many Raziyas who are simply abandoned without sufficient arrangements for their maintenance, with nobody telling them about Kerala High Court cases which could mean a significant financial improvement for them. Hassainar should not be read to mean that such women lose their claim for ever.

When, however, does such a woman's claim arise? I would have thought that the right to claim under the 1986 Act arises when the husband has refused to make reasonable arrangements, as is his duty according to this Act. If the couple never discuss maintenance arrangements, for whatever reason, a woman may not know whether the man will make any reasonable provision till the iddat period has expired. Under the 1986 Act, according to the Kerala High Court cases of 1988 cited above, he is under an obligation to make proper arrangements for the time after the iddat period during this period. Unless he explicitly refuses to provide for the woman prior to the expiry of the iddat period, she could not really file a petition till after the end of her iddat. Contrary to the statement in Hassainar, thus, the divorced woman's right to apply for maintenance may arise precisely at the end of the iddat period.

But can she still claim this right many years after it actually arose? While Hassainar is, no doubt, an appropriate response to the skimpy husband in this case, it does not settle the law as fully as one would hope for. Given the nature of the subject, we can look forward to further test cases. In principle, though, it is now quite certain that divorced Muslim wives in India are entitled to reasonable maintenance beyond the iddat period. This not only gives food for thought to policy planners in other jurisdictions, but strengthens the claim of modern Indian law to be able to work out secular solutions that do not infringe on basic religious principles. Dissent there will be, anywhere, especially when money, power and male egos are involved. But it is long overdue that India as a whole and people abroad recognise the importance of the legal groundwork on maintenance for divorced Muslim wives under the 1986 Act, so painstakingly laid by the Kerala High Court. It is extremely unlikely that this pioneering position will be undermined by verdicts from other High Courts. Commonsense does not depend on any one religion, nor on state boundaries. In our present context, reasonableness and commonsense would seem to indicate that in a huge country without the resources to pay for the casualties of broken marriages, mos. divorcing men will need to face up to continuing responsibilities beyond the duration of the marriage, while women, at the same time, must be prevented from exploiting a law that is appropriately weighted in their favour. As always in family law, a gendered imbalance has to be harmonised with the need for achieving relative justice. There is no easy prescription for this, but judicial vigilance, such as evidenced in Kerala, is an essential precondition.

The Case of Indigent Firm

(V.K. Sathyavan Nair, Advocate, Kottayam)

The correctness of the proposition laid down in 1994 (2) KLT 697 that a firm as such cannot claim to be an indigent person under O.33 of the Code of Civil Procedure is doubted.

1. Firm - a collective name of all the partners

The reasoning of the High Court is that where a suit is filed in the name of a firm it is still a suit by all the partners of the firm and O.33 of the Code provides only a litigative convenience to the partners of the firm, for instituting the action in a Civil Court. The Division Bench also placed reliance on an observation contained in AIR 1961SC 325 to support the view. References are also made to 1910 -1 KB 868 and AIR 1955 SC 74.

There can hardly be any dispute regarding the established proposition that the word 'firm' or the 'firm name' is merely a compendious description of all the partners collectively and where a suit is filed in the name of the firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorised the suit. In other words the firm has no separate legal entity apart from the partners who constitute the firm.

2. Legal persons

A person is any being whom the law regards as capable of rights or duties. A legal person as opposed to natural person is any subject matter other than human being to which the law attributes personality and is a creation of law. Legal persons may be of as many kinds as the law pleases. A relevant portion of the discussion on the personality conception of the legal entity as contained in Salmond on Jurisprudence (12th Edition - Page 310) is given below:

"In all these respects a Corporation is essentially different from an unincorporated partnership. A firm is not a person in the eye of law; it is nothing else than the sum of its individual members. There is no legal entity, standing over against the partners, as a company stands over against its share holders".

Yet a partnership is an accounting unit and there are special rules with regard to the position of partners which give it the superficial appearance of a legal entity.

3. Limited Personality

Firm is an artificial or 'moral' person for business purposes, and in some systems of law this personality receives formal acknowledgment. The commentaries on Indian Partnership Act by Pollock and Mull a say that i n Scot! and, in particular, a firm is a legal person distinct from the partners of whom it is composed. This aspect was considered by the Privy Council in Bhagawanji Morarji, Goculdas v. Alembic Chemical Works Co. Ltd., AIR 1948 PC 100 and observed:

"The Indian Partnership Act goes further than the English Partnership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it, me law in India, in that respect being more in accordance with the law of Scotland man with that of England".

The above principle has been followed by the Kerala High Court in 1960 KLT 1087. In that case the question was whether a firm as such is a manufacturer entitled to the benefit of exemption granted by a notification issued under the Central Excise Rules. Some persons were common partners in more than one firm. It is held by the court that the firm (and not the individual partners) is the manufacturer entitled to me benefit of the notification.

In 1987 (2) KLT 314 U.L. Bhat, J. has observed that the concept of partnership law is that a firm is not an entity or a person in law but only a compendious mode of designating persons who have agreed to carry on the business of partnership. The law English as well as Indian, has for some specific purposes relexed its rigid notions and extended a limited personality to a firm. It is an independent and distinct juristic person for the purpose of Income-tax and Sales tax laws. This decision has been confirmed in 1987 (2) KLT 630. Though the question of limited personality was not involved in 1987 (2) KLT 630 the court has referred to AIR 1977 SC 489 and quoted the observation made by Krishna Iyer, J. - that a firm is a unit of assessment in Income Tax Law and other laws where it has been specifically so provided, and "that although for the purpose of those special litigation, the firm has certain attributes simulative of personality, the partnership is not a person, but a plurality of persons."

The significant point is that the court recognises certain limited purposes for which a firm can be deemed as a unit and legal entity. In this connection the observations made by the Supreme Court in AIR 1965 SC 1718 after referring to AIR 1956 SC 354, AIR 1961 SC 325, AIR 1963 SC 243, AIR 1948 PC 100 and other decisions and also to the authoritative opinion of Lindley L.J. are very pertinent. "0.30 of the Code permits a firm to sue or be sued in the firm name vas if it were a corporate body'. Consistently with this legal fictions R.3 permits service of summons on a partner or a person having control or management of the partnership business, R.4 permits the institution and continuance of the suit in the firm name in spite of the death of a partner before the institution or during the pendency of  the suit without joining the legal representative of the deceased partner as a party to the suit, and R.9 permits a suit between a firm and one or more of its partners and between firms having one or more common partners. But the legal fiction cannot be carried too far.

For some purposes the law has extended a limited personality to a firm". (emphasis supplied)

A reading of O.30 and also other provisions of the Code concerning partnership (R.49 and R.50 of O.21) would lead to the conclusion that for certain limited purposes procedural law recognises firm as a unit and legal entity. In such cases the appearance of a legal entity may be simulative or superficial, when compared to the permanent legal unity of a company or Corporation. But it cannot be gainsaid that to a limited extent procedural law and some special statutes like Income Tax Act and Sales Tax Act recognise firm as a unit and legal entity.

4. Property of Firm

Another important aspect also has to be considered. Property of a firm is different from the properties that exclusively belong to the individuals who are partners. S.14 of the Partnership Act deals with the concept of property of the firm. The effect of Ss.14 and 15 is that so long as partnership continues, no part of the assets of the partnership can be regarded as belonging to an individual partner and, conversely, the personal assets of a partner is not the property of the firm. A firm as such holds and deals with property. It is worthwhile to quote paragraph 5 of the decision of the Supreme Court reported in AIR 1966 SC 1300.

"It seems to us looking to the scheme of the Indian Act no other view can reasonably be taken. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in a capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not to be able to claim or exercise any exclusive right over any property which he has brought in much less over any other partnership property."

It follows that the property of a firm is distinct from the other assets of the individual partners.

5. 'Person' in Q.33 R.1

It is settled by our High Court that word 'person' occurring in O.33 R. 1 includes juridical persons like company and association of persons. The Division Bench in 1961 KLT 45 observed:

"There is no definition of person in the Civil Procedure Code. Therefore, the interpretation of the said term in the General Clauses Act would apply, according to which a "person' shall include any company or Association or body of individuals, whether incorporated or not. This shows that" person' would include both natural and legal person". This principle has been followed in 1992 (2) KLT 274 and held that "person' in O.33 R.1 C.P.C. should have the extended meaning given to it in law and is not limited to natural person.

6. Procedural indulgence

Pauperism is a personal matter and not the right to sue itself. 0.33is an indulgence granted to persons who sue in a court are unable to pay the fee prescribed by the court fees Act. It only postpones the payment of court foes for the sake of litigative convenience and does not affect the substantive rights of parties. Similarly it is only for the sake of litigative convenience, O.30 of the Code permits a firm to sue or be sued in the firm name. Moreover where the plaintiff sues in a representative capacity the question whether he is indigent person shall be determined with reference to the means possessed by him in such capacity (Explanation III to R.l of 0.33). The position is similar with respect to partnership also. In a suit by a firm the parties are the partners in their capacity as partners and not in their individual capacity. The question whether the partners have property in their individual capacity is immaterial in deciding the question whether the partnership is possessed of sufficient means to enable the firm to pay the fee prescribed by law.

To conclude, a firm may become indigent while its partners may remain rich. The legal fiction of limited personality incorporated in O.30 can be applied with equal appropriateness in the case of O.33 also.

It is respectfully submitted that 1994 (2) KLT 697 requires reconsideration.