1993 (1) KLT 174 (F.B.)

(R. Kumaran, Advocate, Thiruvananthapuram)

In this case, Chellamma Kamalamma v. Narayana Pillai, both the Majority and Minority views are in favour of doing away with S.17 of the Hindu Succession Act. The only difference is the point of time. While the majority view holds that those who are born on or after 1-12-1976 will be governed by S.15 of the Hindu Succession Act, the minority view holds that all those Marumakkathayee Females who expire on or after 1-12-76 will be governed by S.15 of the Hindu Succession Act.

Under Hindu Law, excepting those governed by Marumakkathayam Law, female after marriage becomes member of the Husband's family. Even in the husband's family she does not get an independent right as a sharer in the family property. Her position is only as wife of her husband in that family. This appears to be the reason why the, heirs of the husband take precedence over 'mother' under S.15 of the Hindu Succession Act. But in the case of Marumakkathayee females, they retained their position as members in the family/Tarawad of their birth. They had an independent position by themselves without depending on any male member. This necessitated S.17of the Hindu Succession Act wherein wife's heirs take precedence over the heirs of her husband.

The Marumakkathayam law is defined in S.3(1)(h) of the Hindu Succession Act. In the Nair Act and analogous acts governing the Marumakkathayees the definition given is "Marumakkathaya m means the system of inheritance in which descent is traced in the female line". The various enactments only recognize Marumakkathayam System.

Succession under Marumakkathayam law is replaced by the provisions of the Hindu Succession Act. Reference to Marumakkathayam Law in S.17 is only to clarify the position that these special provisions are applicable to persons who at the time of coming in to force of the Hindu Succession Act were governed by the Marumakkathayam Law as held in Madhavi Amma v. Kalliani Amma, 1988 (2) KLT 964 and Bhaskaran v. Kalliani, 1990 (2) KLT 749. Any other interpretation will cause injury to female Marumakkathayees who enjoyed greater right before the introduction of the Hindu Succession Act. That could never have been the intention of the legislature. After the four enactments, namely Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoption and Maintenance Act, what remained in the Marumakkathayam Law was the right by birth and unity (joint tenancy) of the tarawad property. With the coming into force of the "Kerala Hindu Family System (Abolition) Act 1975", there is no practical application of the Marumakkathayam law. But by a strained interpretation, it can be said that Marumakkathayam Law still continues. The saving of S.44of the 'Nair Act' indicates that the Act does not completely replace the Marumakkathayam Law. The repealing S.7(1) under the Joint Hindu Family System (Abolition) Act, 1975 states "Save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act". The words "Hindu Law" by definition take in the Marumakkathayam Law also. But the repeal is only ‘with respect to any matter for which provision is made in this Act'. Marumakkathayam Law as such is not repealed. In this sense it can be said that Marumakkathayam Law still continues.

When S.15 of the Hindu Succession Act is made applicable to Marumakkathayee females, there will be an anomaly in their social status as well. Hindu Succession Act is an attempt to belter the condition of females under the Hindu Law. Even after the enactment, it was found but possible to bring them on par with the male-'members. Otherwise there would not have been any necessity for a separate section as S.15 under the Hindu Succession Act. S.8 with suitable changes would have been sufficient. In the case of Marumakkathayee females, they had greater rights than those governed by the Hindu Law. It is because of this, a separate Section as S.17 was found necessary in the Hindu Succession Act. Now by doing away with S.17 and bringing the Marumakkathayee females also under S.15, the rights they enjoyed hitherto would be curtailed and they will be made to occupy an inferior position to that of men.

There is therefore a case for retaining S.17 of the Hindu Succession Act.

Section 249 of the Kerala Panchayat Raj Act, 1994 (Act 13 of 1994) -

Whether it is Constitutional?

(By S.H. Panchapakesan, I Additional Munsiff, Neyyattinkara)

A careful reading of S.249 of the Kerala Panchayat Raj Act, 1994 (Act 13 of 1994), (hereinafter called the "Act') would invite our attention to a question of general public importance involving the constitutional validity of it, to a considerable extent. S.249 of the Act deals with institution of suits against authorities of Panchayats, their officers, etc. S.249(1) says that "no suit, or other civil proceedings against a Panchayat or against the President, the Vice President or any other member, or employee thereof or against any oilier person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under this Act in its or his official capacity,-

(a) shall be instituted until the expiration of one month after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been, in the case of a Panchayat delivered or left at the office of the Panchayat and in the case of a member, employee or person as aforesaid delivered to him or left at his office or at his usual place of abode and the plaint shall in each case contain a statement that such notice has been so delivered or left; or

(b) shall be instituted, unless it is a suit for the recovery of immovable property or for the declaration of title thereto, otherwise than within six months next after the accrual of the alleged cause of action.

(2) The notice referred to in sub-s. (1), when it is intended for a Panchayat, shall be addressed to the Secretary.

(3) If any Panchayat or person to whom notice is given under sub-s. (1) tenders to the plaintiff before the proceedings is commenced and if the plaintiff does not in such proceedings require more than the amounts so tendered he shall not recover any costs incurred by him after such tender; and the plaintiff shall also pay all costs incurred by the Panchayat after such tender".

Hence, issuance of one month's prior notice is a mandatory requirement for institution of suits against authorities of Panchayats and their officers. Courts are bound to reject plaint in case, a statement with regard to the statutory notice is absent in it.

Now, the important question to be looked into is whether the Panchayat Raj Institutions are having a better immunity than that of the Central/State Government in litigations and judicial proceedings.

Part IV of the Code of Civil Procedure (Act V of 1908), hereinafter called the Code deals with suits by or against the Government or public officers in their official capacity. S.80(1) of the Code bars suits and other judicial proceedings against the Government or against a public office in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of-

But, sub-s. (2) of S.80 of the Code says that in a suit to obtain an urgent or immediate relief against the Government or any public officer, in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court, without serving any notice as required by sub-s. (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.

Sub-s. (2) of S.80 of the Code was inserted by way of the amendment (Act No.104 of 1976). For such an amendment in the code, the then Joint Committee on Legislation felt that some relaxation of the provisions of S. 80 is necessary, so that a person may not be deprived of the opportunity of obtaining an urgent or immediate relief, where such relief is essential. In the above circumstances, the joint committee felt that S, 80 of the Code should provide to the institution of a suit for obtaining an urgent or immediate relief against the Government or any public officer in respect of any act purporting to have been done by such public officer in his official capacity without serving any statutory notice. However, it has been specified that the Court should not grant any relief except after giving to the Government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. (The reasonable time, as above, has been held as 30 days (1996 (1) KLT 190)).

But under the Panchayat Raj Act, there is a total bar with regard to maintainability of suits, in case of want of statutory notice. The courts shall get jurisdiction to take cognizance on such suits only after expiry of the statutory period of 30 days from the date of delivery of notice. There is no provision in the Act for institution of a suit for obtaining an urgent or immediate relief against the Panchayats. But there are innumerable instances, which would necessitate interference of judiciary in our day-today life.

The Act confers ever so many powers on the Panchayats and their officers as enumerated under Chapter XV. S.166 of the Act deals with the mandatory functions of village panchayats. There are 32 items of mandatory functions and some other items of functions attended by Village Panchayats included in the 3rd Schedule of the Act. The item Nos.4 and 5 in the 3rd Schedule deal with maintenance of village roads and construction and maintenance of new village roads. It includes organising voluntary surrender of lands for new roads and for widening of the existing roads.

All our Panchayat committees have been constituted on the basis of party politics. From our experience, we cannot reasonably believe that such committees would always take legal or proper decisions alone. On the other hand, there would always be political and other considerations beneath such decisions that they may take. If a panchayat committee resolves to construct a new road leading to the house of the President or one of its members by raping 2 cents of another (it may be his only one immovable property in which his house is situated) without his knowledge or consent, how could he get justice, if doors of the Courts are closed towards him merely on the ground that he did not issue a notice to the Panchayat as per the statute"? If he sends notice and thereby waits for the statutory period, indeed in the meanwhile, his house would be wiped out from the scene, and the property be macadamised for plying vehicles, if it is held that such an aggrieved person is not end tied to get an order of temporary injunction, at least against the evil acts of vested interests acting under the veil of panchayats, for want of notice, what would be his redressal.

Section 123 of the old Panchayats Act, (Act 32 of 1960) deals with notice of action against Panchayat etc. Though there was also statutory bar in initiating legal proceedings against Panchayats without notice, a relief of injunction was exempted from statutory notice. In other words, as far as a suit for injunction simplicitor is concerned, prior notice was not mandatory. But in the new Act, such an exemption with regard to injunction suits is not found provided with.

In cases of Revenue Recovery proceedings under the Kerala Revenue Recovery Act (Act 15 of 1968), there is a general bar to jurisdiction of civil courts. But, as per the proviso to S.72 of the Revenue Recovery Act, it is stipulated that a suit may be brought in a civil court in respect of any such question on the ground of fraud. In other words, proceedings under the Revenue Recovery Act can be challenged before Civil Courts, in case, fraud is specifically alleged. Likewise, at least such an exemption ought to have been provided with in the new Panchayat Raj Act, with regard to general bar of jurisdiction of civil courts in cases wherein fraud is specifically alleged by a litigant against the decisions or acts of Panchayats or its officials. (At least it can be at the risk of such litigants).

Suppose, a person conducted a grocery after obtaining licence from the local authority. But, a successor in the office of the executive authority of that Panchayat held that the licence issued by his predecessor in office would not bind on him. He issued a notice (after affixing his office seal) to the owner of the shop and thereby directed him to close down his trade. In such a case, if the owner of the shop has no access to a court of law for safeguarding his valuable right of carrying on business merely on a technical ground of notice, what would be the quantum of injustice that is meted out to him!

The rights which are guaranteed by Arts. 19 & 21 of our Constitution are guaranteed rights against State action. In case of violation of such rights by private individuals, the person aggrieved has legal right to seek remedies under the general law. But, where the claim of such an infringer is supported by a Slate Act, executive or legislature, the person aggrieved may challenge the constitutionality of the Act which supports the private claim. While a right created by Statute may be taken away by, another statute, a fundamental eight guaranteed by the Constitution cannot be taken away by statute (Pannalal v. Union of India AIR 1957 SC 397). Art.13(2) directs that the State shall not make any law which takes away or abridges the rights conferred by the Part III of our Constitution and any law made in contravention of the above clause shall, to the extent of such inconsistency, be void. The Kerala Panchayat Raj Act, 1994, is a law as defined under Art.13(3)(a). Imposing unreasonable restrictions on an aggrieved person's right to approach Court of law, especially in instances of flagrant injustice done by the Panchayats and its officials with mala fide intentions, appears to be unconstitutional and void. Hope that the kind attention of the concerned would reflect upon this issue.

Judicial Sympathy or Benevolent Despotism [1]

   (By Salim Kambisseri, Asst. Public Prosecutor, Changanacherry)

Scene is Fort Kochi the Queen of Arabian Sea. It was a peaceful town during the British Rule. Gradually, Commerce and Industry developed. This over populated city witnessed crimes of theft, robbery, dacoity and smugglers and habitual offenders. Even professional killers marred its peace and tranquility. Many crimes are reported as undetected. Despite, police hand cuffed a few criminals. Recently, a lady Magistrate was quietly engaged in Roll Call. An accused who is alleged to have committed theft was produced from jail before her. He, as of right, sought for bail on personal bond. The Magistrate allowed bail subject to the condition that he should produce two sureties. Accused got angry. To the dismay of all - Court Staff, Police, Witnesses and clients -he jumped on the dias. He throttled the Magistrate, attacked her and broke her neck chain. At last, a Constable came to her rescue, hand cuffed him and registered a case of attempt to commit murder. If my memory is correct, an accused, pelted stone against a Magistrate two decades ago. The new flashed and all the public lamented in favour of the Magistrate and asked a poignant question".....If a Magistrate has to suffer such attack, do we get protection?". Incidents which I narrated above are likely to occur in future in view of the recent Supreme Court decision in Common Cause: A Registered Society v. Union of India & Orders [2].

Crimes on the enhance

Yester year's India is not today's India and it will not be in future. Crimes of various types are on the enhance. Modus operandi is scientifically and technically changed by clever up criminals. Now it is a herculean task of the Investigating Agency to book the criminals. Many charge sheeted cases end in acquittal. Accused persons are on the safer side. Criminals, antisocial elements and law breaking persons can freely walk.

Learned Palkivala in his book "We The People" says [3] "Our legal system has made life too easy for criminals and too difficult for law abiding citizens". He is cent per cent correct. He continues [4] "We forget that crime is not a problem for the police only but for the whole society".

TO DISSECT "COMMON CAUSE"

The guidelines given by the Supreme Court are capsulated in a tabular column :

Exceptions

The above guidelines are not applicable to offences under the following offences (a) Corruption, misappropriation of public funds, cheating whether under IPC, Prevention of Corruption Act, or any other statute, (b) Smuggling, Foreign Exchange violation, offences under Narcotic Drugs and Psychotropic Substances Act. (c) E.C. Act, PFA Act, Acts dealing with Environment or other economic offences (d) Anus Act, Explosive Substances Act, Terrorists and Disruptive Activities Act. (e) Army, Navy and Air Force Act. (f) Offences against public tranquility (g) Relating to public servants (h) Relating to coins and Govt., stamp (i) Elections (j) Relating to giving false evidence and against Public Justice (k) Against the State (1) under taxing statutes (m) Defamation under S. 499 IPC.

Calculation of pendency

As per the decision pendency of criminal cases shall be calculated from the date the accused are summoned to appear. This will create another problem. A complainant in a cheque case presented the complaint, his sworn statement is recorded and the court issued summons to the accused to appear on a particular day. Pendency has to be calculated from that date onwards. If he avoids summons the accused will be discharged on the expiry of one year. A dishonest accused can borrow ten lakhs and reside in an unknown place for one year and then he can seek for discharge. He can continue the same behaviour in future.

The decision opens Pandora's box [5]

(i) Sections 379,384,385,376 A, 353 etc will come under category No.1. If a thief is released on bond without sureties will it not saddle additional burden on Police to re-arrest him provided he is absconding.

(ii) Sections 365, 363, 369 etc will come under items 2 and 3. What will be the consequence if they are released on self bond.

(iii) If the accused charged under Ss. 279, 337, 338 and 304 A IPC evades summons and the prosecution is incapable of effecting summons for two years or if the charge witnesses and investigating officers could not be procured for reasons beyond its control and the case is pending for two years the accused has to be acquitted. Will it sound to justifiable reason or is it logically sustainable?

(iv) In India, at least 90% cases pending before criminal courts accused persons having long purses by winning over police can get acquitted or discharged or cases closed.

(v) In private complaints coming under Ss.323, 341,447.448 accused persons can easily and freely go out of the clutches of law.

(vi) A clever Police Officer can ward off the decision of the Supreme Court if he charges five or more accused persons tor offences under Ss.323, 341, 447 etc in case lie incorporates Ss.143, 145, 147, 148 r/w 149 IPC because these incorporated offences deal with public tranquility and these offences come under exempted classes.

(vii) Those who commit offences relating to weights and measures can cheat the public and wriggle out of punishment since sentence prescribed is imprisonment of one year or fine or with both.

(viii) Any one can commit offences against religions, which in turn will create hartals, destruction of properties and panic against the public by aggrieved person and can very easily go out since the punishment for such offences does not exceed three years.

(ix) One can easily commit adultery and avoid summons and warrants since it arises out of private complaint and law prescribes burdensome procedure. Whereas in those who face defamation trial takes a long time and this offence is exempted.

(x) Cases of hapless complainants in dud cheques under S.138 of the Negotiable Instruments Act are apparently pitiable. The maximum term of imprisonment is one year. Before taking cognizance complainant has to be examined. The accused can avoid summons or warrants before the trial is over within a year.

(xi) For the mounting up of pendency reasons are a many. Absence of accused, Avoidance of Summons, Evading of warrants, cumbersome Procedure prescribed by law, absence of Magistrates, Public Prosecutor or defence counsel are some of the instances. Cases on dishonoured cheques are spiralling up.

Commencement of trial: A legal Conundrum

Excepting traffic offences the guide lines issued by the Supreme Court will apply if trials have not commenced. The question is: when does trial commence? In the old code 'trial' was defined. In the Code of Criminal Procedure, 1974 Dr. Nand Lal says [6]:

"The Indian Legislature has always maintained a distinction between an enquiry and a trial. The 'trial' as used in the Code pre-supposes die commission of an offence but an inquiry may cover inquiries into matters other than offences.

............the proceedings before a magistrate in a warrant case........is only an inquiry until a charge is framed. It becomes a trial only after a charge is framed. Though the law dispenses with the necessity of framing charges in a summons case, it is incumbent upon the Magistrate to state to the accused the particulars of the offence....." [7]

His Lordship Justice K.T. Thomas of the Kerala High Court as he then was and now seated in the apex court of the country in Nagarajan v. Khader: [8] observed

"All steps which a criminal court adopts subsequent to the framing charge and until die pronouncement of judgment can be treated as trial proceedings".

The above view is seemingly correct. But the Hon'ble Supreme Court in Union of India and Others [9] speaking through a Bench of three Judges observed with respect to trial under the Code of Criminal Procedure as follows:

"It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused of his appearance etc. Equally at a sessions trial, the court considers the committal order under S.209 by the Magistrate and proceeds further......The trial begins with the taking of cognizance of the offence and taking further steps to conduct the trial" [10]. Eventhough the above decision was under the Army Act the fore-extracted observation was made after taking anxious consideration of Ss. 190 to 210, 225 to 235 of the Cr. P.C. The law declared by the Supreme Court is binding on the Courts below even if it is wrong or its correctness is doubtful. The decision under study is rendered by two Hon'ble Judges, but the just cited decision is given by a bench consisting of three Judges. Therefore, the author is of opinion that the guide lines given by the Supreme Court in Common Causes case is unworkable and no discharge, and acquittal can be made by criminal courts and cases cannot be closed if cognizance of the offence is taken and summons is issued for the appearance of the accused. If a cornucopia disposal of criminal cases is made on the basis of Common Cause decision that will be against the law declared by the Supreme Court in the Union of India's case just cited supra.

Traffic Offences

According to the guidelines, where criminal proceedings are pending regarding traffic offences for more than two years on account of non-serving of summons to the accused or for any other reasons what so ever, the court may discharge the accused and close the case. It is not made clear where the offences under Ss. 279,337,338 and 304A of IPC will come within the expression "traffic offences". If it is answered in the positive a lot of offenders can make their escape by winning over the police and see that service of summons is not completed. In such a case, culpable drivers who cause death of several persons can escape from the clutches of law. This point is not made clear in the decision under study.

Offences against the State:

Such offences come under the exempted classes. But what is the offences against the State? All crimes under the sun, except those exempted, are against the State. That is the reason why all cognizable offences are investigated and charge sheeted at the expense of the Slate. In most of the cases, the State is represented by either the Police Officer or by Public Prosecutors. If this concept is not over looked the guidelines issued by the Supreme Court are seemingly unworkable.

Robbing Peter to pay Paul

The decision under study will, it is respectfully submitted, surely release habitual offenders, open pathway for criminals to escape from the hands of law and afford opportunity to defraud bonafide creditors. On the other hand, it will cause pain and agony to the complainants and victims of crimes. Number of crimes will shoot up. The decision in effect, is robbing Peter to pay Paul.

"Delayed trial" is not a panacea

In the United States the right to a speedy trial is a constitutionally guaranteed right and the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment. Art.3 of the European Convention of Human Rights provides that every one arrested or denied shall be entitled to trial within a reasonable time or to release pending trial. In India it is implicit in Art.21 of the Constitution of India. [11]In State of Maharashtra v. Champalal [12]the Supreme Court repelled the contention that there was delayed trial and therefore, there is violation of fundamental right to life and liberty under Art.21 of the Constitution. In this case, it was found that the accused himself was responsible for the delay and he was not prejudiced by the delay.

Conclusions and Suggestions

Courts must show sympathy to the criminals. The accused are summoned to appear. But too much sympathy is a negation of rule of law. Are not the complainants in cheque cases, adultery matters, assault, hurt, criminal trespass citizens of India? Can the Prosecuting Agency be held responsible for non-service of summons, non availability of doctors on account of their present employment abroad, and Investigator's transfer to distant places?

So, I make the following suggestions:

(i) The Hon'ble Supreme Court is respectfully invited to intervene and render the above decision otiose.

(ii) An appeal is made to Parliament to repeal S.138 of the Negotiable Instruments Act so as to reduce pendency of cases or to constitute adequate Special Courts to try these cases.

(iii) The State is requested to create a group of efficient and honest Police Constables of high integrity to serve summons and arrest the accused persons at the earliest.

(iv) Prevent doctors who issued wound Certificates and Post mortem certificates from going abroad till they are examined.

These suggestions are made and conclusion is reached so that public may not lose confidence in the Judiciary, which alone can protect them.

____________________________________________________________________

Footnotes:

1. In this article the author's attempt is to highlight practical difficulties which bona fide clients and Prosecuting agency have to face on account of the decision of the Hon'ble Supreme Court in Common Cause : A Regd. Society v. Union of India & Ors. (1996 (2) KLT SN 9 = 1996 (2) KLJ 110).

2. 1996 (2) KLT SN 9 = 1996 (2) KLJ 110.

3. Page 3.

4.Page 4.

5."Pandora's box" arises from the myth that the first woman Pandora came to a man with a box which was not to be opened, but she opened out of curiosity and thereby revealed all that is evil to mankind. In English it means a source of many unexpected troubles. The author means only unexpected troubles.

6.2nd Edn. Vol. 1 at page 89.

7.The learned author relied on T. Shriramalu v. K. Veeresalingam I.L.R. 38, Mad. 585.

8.1989(1) K LT 664. The Supreme Court in B.C.D. and CM. Union's case A.l.R. 1867 S.C. 389 the words "trial" and "tried" have no universal meaning and a meaning must be given according to the context.

9.A.I.R. 1996 S.C. 1340 (Union of India v. Madanlal Yadav).

10.Ibid. Para 27 P. 1349 (See also 1996 Crl. L.J. 2885 S.C).

11. For a detailed discussion see Khatoon v. State of Bihar A.I.R. 1979 S.C. 1360, Maneka Gandhi v. Union of India A.I.R. 1978 S.C. 597.

12. A.I.R. 1981 S.C. 1675.

Necessity for Writ Rules

(Roy Chacko, Advocate, Ernakulam)

The Judgment reported in 1994 (2) KLT 759 (K.S.E.B. v. K.J. Joseph) delivered by K.G. Balakrishnan, J. touches upon certain salient features with regard to the procedural provisions under the writ jurisdiction. The case on hand related to the procedure to be applied for further prosecution in the case of death of the sole petitioner in an Original Petition filed under Art.226 of the Constitution of India. The sole petitioner was the Managing Partner of a firm running a hotel who died on 26-5-1993. As notice was served on the Managing Partner of the firm after his death by the K.S.E.B. application for impleading was filed by the successor-in-interest challenging the demand notice. The main contention advanced by the K.S.E.B. was that the Original Petition had abated consequent on the death of (he sole petitioner in the O.P., as the cause of action did not survive. It was also contended that provisions contained in Order XXII C.P.C. cannot be called to aid in the matter of setting aside abatement of the O.P. and consequential impleadment as the additional petitioner. Some reported decisions were cited by counsel on either side in support of their contentions. The learned Judge held that the cause of action did survive. It was also held that in the absence of adequate provisions in the Kerala High Court Rules, there was no legal bar in invoking the provisions of C.P.C. to the factual situation arising in the case.

I feel that inadequacy of the various procedural provisions is writ large in Chapter XI of the Kerala High Court Rules under the heading "PROCEEDINGS UNDER ARTS. 226 AND 227 OF THE CONSTITUTION". For instance there is no provision for review of an order or judgment in a proceeding under Art.226 of the Constitution, there is no provision for impleading the legal representative of the deceased petitioner or respondent so as to continue the proceeding. So also there is no provision for setting aside of abatement of an O.P. and for condonation of delay in filing the petition to set aside abatement. It was held by the Hon'ble Supreme Court in the decision reported in AIR 1963SC 1909 (Shivdeo v. State of Punjab) that the High Court has under Art.226, an inherent power of review apart from statutory conditions.

"Which inhere in every court of plenary jurisdiction to prevent miscarriage of justice or to correct glaring and palpable errors committed by it". In the case of patent errors, they can be corrected by the High Court suo motu and even after expiry of the period of limitation, if any prescribed for an application for review. The law has been, laid down by the Apex Court only as regards the power of Review of a Constitutional Court, but not to other miscellaneous provisions which arc of frequent occurrence in a petition under Art.226 of the Constitution.

Therefore our High Court Rules must contain adequate provisions providing for withdrawal of an O.P., for issuing commissions for local investigation, for examination etc. for restoration of an O.P. dismissed for default, for representation of an O.P. after curing defect, over and above what is already mentioned. This list is not exhaustive of all the contingencies that may arise. So also the limitation period has to be prescribed for the aforesaid provisions. The framing of Writ Rules on these lines will also avoid unnecessary query from the office and nothing of defects in many writ petitions. This will also enable the court to get rid of an ambiguity or doubt regarding applicability of any of the provisions in Chap.XI of the High Court Rules or of those in the C.P.C.

Some of the High Courts in the country have framed writ rules, for various procedural matters in a writ proceeding. The Full Bench Judgment of the Punjab and Haryana High Court reported in AIR 1982 P & H 69 (Teja Singh v. Union Territory of Chandigarh) which was referred to by the learned Judge, has exhaustively dealt with this aspect. The issue that came up for consideration before the 5 Judge Bench was as to the applicability of the provisions of C.P.C to writ proceedings. In that context the Full Bench had to interpret R.32 of the Writ Rules applicable to the High Court which reads as under:—

"In all matters for which no provision is made by these rules, the provisions of C.P.C. 1908 shall apply mutatis mutandis in so far as they are not inconsistent with these rules".

Repelling the contention of the counsel for the petitioner that explanation inserted in S.141 C.P.C. by the 1976 amendment sought to exclude the applicability of the provisions of C.P.C. to writ proceedings. Justice P.C. Jain who delivered the judgment observes at para.10 as follows:—

"The explanation only provides that the word "proceedings" would not include any proceedings under Art.226 of the Constitution. There would have been some force in the contention of Mr. Anand Swarup if this court in exercise of its power under Art.225 had not framed any rules. But in die presence of the Writ Rules which have been validly passed by this court, the explanation loses its force".

The Full Bench agreed with the judgment of a learned single Judge of the Karnataka High Court reported in AIR 1980 Kant. 72 (M.R. Channarayappa v. Tahsildar) which interpreted R.39 of die Karnataka Writ Rules which was identical with R.32. The court therefore took the view that in matters which have not been specifically dealt with by die Writ Rules, the provisions of C.P.C. to the extent they are necessary would be applicable to proceedings under Art.226 of the Constitution.

Finally the court held that the explanation added to S. 141 C.P.C. does not in any way nullify die effect of R.32 of the Writ Rules.

Therefore the framing of writ rules under Art.225 of the Constitution of India read with S.122 of die Code of Civil Procedure with regard to Chap.XI is absolutely necessary keeping in view of die ever increasing number of writ petitions being filed in the High Court. Amendment may also become necessary to R.150 of die High Court Rules to enlarge die scope of interim orders to cover injunctions, extensions of interim orders, for urgent posting for admission in cases where effective interim relief is not required. Chapter XI of the Kerala High Court Rules as it now stands is quite inadequate so far as proceedings under Art.226 of the Constitution is concerned.

There is immediate and urgent need for framing writ Rules not inconsistent with the provisions of CPC to deal with various procedural matters in a writ proceeding. The attention of the Rules Committee of the High Court is invited to this inadequacy with a request for appropriate remedial action.

Right of Redemption of Mortgage u/S.60 T.P Act and Order XXXIV of the Code of Civil Procedure - A Case Study

(By M.R. Parameswaran, Advocate, Ernakulam)

The right to redeem a mortgage until the same is extinguished either by act of the parties or by decree of the Court is a right of a mortgagor statutorily recognised, by S. 60 of the Transfer of Property Act (IV of 1882). The right is also referred to as the "equity" of redemption in English law but strictly not applicable in India-vide AIR 1959 Patna 153 (FB). In Pattabhiramier v. Venkatarow Naicken (71) 13 Moo. Ind. App 560 their Lordships of the Privy Council held that the English Doctrine of "The Equity of Redemption" was unknown to ancient law in India. In England an English Mortgagee became "at law" the "absolute owner" of the property after the lapse of the time fixed for payment of the mortgage amount. But the equity courts held that the transaction is to be treated merely as a loan borrowal and as such, time is not of the essence of the contract and allowed the mortgagor to redeem, even after the period stipulated. Since the mortgagor was allowed to redeem in equity it is called the "equity of redemption". Lord Haldane L.C. in Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd. (1914) 83 LJ Ch. 79, stated the history of the Equity of Redemption. The jurisdiction of the court of equity to set aside the legal title of a mortgagee and compel him to - reconvey the land on payment of the principal, interest and costs is a very old one owing its origin to the influence of the church in the courts of the early Chacellors. The famous assembly of Exclesistics condemned usurers and laid down that when a creditor has been paid his debt, he should restore his pledge and the courts of Chancery should at an early date exercise jurisdiction 'in personam' over mortgages. The power was only a special application of a general power of relieve against penalities and to mould them into mere securities. In a common law mortage, land was conveyed to the creditor on condition that if the money advanced was repaid on the date and place named the property will revert back to the mortgagor, but on breach of the condition he will lose it forever. This hardship was that the debt still remained unpaid and could be recovered. Thus to relieve against this virtual penalty, equity compelled the creditor to use his legal title as a mere security. The equity of redemption was thus treated as an 'estate in land' capable of being transferred and attached.

In 1958 KLJ 78, it was held that S. 60 T.P. Act confers a substantive right on the mortgagor to redeem the mortgage. In (11) 9 Ind. Cases 513 (FB) the Madras High Court took the view that it is a 'right' to be enforced and not a 'liability' which he may be compelled to be discharged. The right conferred by the section consists of three parts. On payment of the mortgage money after it has become clue, to require the mortgagee (a) To deliver to the mortgagor the mortgage deed and all documents relating to the property in his possession; (b) if the mortgagee is in possession to deliver to him, and (c) to retransfer in property at the cost of the mortgagor to him or such other person as directed by him and where the mortgage is registered, to get a registered acknowledgement that any right in derogation of his interest transferred to the mortgagee has been extinguished. On receipt of the mortgage money if the mortgagee does not perform any of the above said acts the mortgage will not continue but the mortgagor gets a new right to have his demands enforced through court (AIR 1963 SC 1041)

In places where T.P. Act is in force, the courts will apply the principle adumbrated under the S. 60 in accordance with justice, equity and good conscience. In other words, rules of English law are to be followed whenever found applicable to Indian conditions (AIR 1953 SC 1) & (ILR 1966 2 Kerala 388). In Travancore before the Act was extended the principle of this section was applied on that basis (AIR 1955T.C. 130).

Right to Redeem What is?

It means the right to buy back or set free by payment. (1963 AIR SC 1041). A suit to enforce this right is called a suit for redemption. The right arises when the Principal money becomes 'due'. Before the T.P. Amendment Act, 1929 the word used was 'Payable'. There was divergence of judicial opinion among the courts in India as to whether the right to redeem accrues before or only after the expiry of the period stipulated. Now by the decision of the Supreme Court in AIR 1958 SC 770 this controversy is set at rest and the position in law is that ordinarily, the right arises only after the period but parties can make provision for discharge of the debt and recovery of property before. The right to 'foreclose' and 'redeem' are held co-extensive and said to arise simultaneously ie., if the mortgagee has no right for the mortgage money neither was the mortgagor entitled to sue for redemption. (1964 KLT 153).

How Right of redemption is exercised?

On 'Payment' or 'tender' of mortgage money at the proper time and place the right is exercised. It is the right to pay and not actual payment that is the criterion.

The right of redemption when extinguished?

It is by act of parties or by a decree of court. By act of parties it means a 'release' of the right by the mortgagor. The act of parties must be an act independent-of the mortgage and not part and parcel of it. Otherwise, it will be a clog on redemption and as such void. A purchase by the mortgagee at a court sale of the property also will extinguish the right, (a) A mortgagee can obtain a decree on the mortgage and at the sale in execution thereof purchase the property with the leave of the court, (b) obtain a decree on a money claim unconnected with the mortgage at the sale in execution of such a decree purchase the property with the leave of the court, and (c) Purchase without such leave where the property is brought to sale in execution of a money decree by a third party against the mortgagor. In ILR 16 Cal 682 (Mahabir Prasad v. Macnaghten) their Lordships of the Privy Council held that the position" of a mortgagee purchaser at court sale is the same as that of a stranger and he gets an irredeemable title and that the equity of redemption is extinguished. The same view is taken by the Supreme Court in AIR 1961 SC 1353 also.

Extinguishment of the right to redeem by a decree of court is by a final decree in a foreclosure suit under O. XXXIV, R. 3 of theCivil Procedure Code, 1908 or by a final decree in a redemption suit under O. XXXIV R. 8 of the Code. O. XXXIV, R. 5 of the Code of Civil Procedure 1908 deals with the final decree in a suit for sale. The mortgagor has a right under this provision to pay the mortgage money interest and costs, plus five percent of the purchase money to be paid into court before confirmation of sale and redeem the mortgage. The said provision is admittedly available under the Central Act as amended by Act 104 of 1976.

The said provisions dealing with the substantive right of redemption of the mortgagor under S. 60 of the T.P. Act though in a procedural form as has been the subject of various decisions of our High Court and the Supreme Court. In AIR 1988 Supreme Court 1200 (Mahadagonda Ramgonda Patil and Ors. v. Shripai Balwant Ranade and Ors.) while considering (lie right of the mortgagor to tile a second suit for redemption the Hon'ble Court considered the scope and amplitude of O. XXXIV R. 5 CPC in detail. In (1995) 1 SCC 161 (New Kenilworth Hotels (P) Ltd. v. Ashoka Industries Ltd. & Ors.) the court considered and held that under S. 60 T.P. Act until confirmation of sale the mortgagor has a right to deposit the entire sale money and that the Court has a statutory duty to direct redemption of mortgage. (1989) 4 SCC 344 Maganlal v. Jalswal Industries Neemach was relied upon.

After the amendment of Code of Civil Procedure, 1908 by the C.P.C. Amendment Act 104/1976 O.XXXIV of the Code governing suits relating to Mortgages of Immovable Property contained the provision O. XXXIV R. 5 as follows:-

"5. Final Decree in suit for sale:- (1) Where on or before the day fixed or at any time before die confirmation of a sale made in pursuance of a final decree passed under sub-r. (3) of this rule the defendant makes payment into court of all amounts due from him under sub-r.(1) of R.4, the Court.shall,onapplicationmadebythedefendantinthisbehalf,passafinaldecreeor,if such decree has been passed, an order-

(a) ordering die plaintiff to deliver up die documents referred to in and, if necessary,-

(b) ordering him to transfer the mortgaged property as directed in the said decree, and also if necessary,-

(c) ordering him to put the defendant in possession of die property.

(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-r.(3) of this rule. the Court shall not pass on order under sub-rule (1) of this rule, unless the defendant in addition to the amount mentioned in sub-r. (1), deposit in court for payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid into court by the purchaser.

Where such deposits have been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase money paid into court by him, together with a sum equal to five per cent thereof.

(3) Where payment in accordance with sub-r. (1) has not been made, the court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with in the manner provided in sub-r. (l) of R. 4".

But subsequently, by the Kerala Amendment published in K.G. No. 46 dated 20.11.1990 the whole of O. XXXIV has been substituted. Unlike in the Central Amendment which contains provisions, for Preliminary Decree and Final Decree under Rr. 4 & 5 now there is only R. 3 which provides for a composite decree. R. 5 of the Central Amendment has been completely omitted in the Kerala Amendment. Is it a cassus omissus which could be supplied in an appropriate case by invoking S. 60 of the T.P. Act itself was one of the questions mooted before the Division Bench in C.R.P. No. 2340/1995 (Philomina Jose v. The Federal Bank Ltd. & Anr.). The Division Bench consisting of Hon'ble Justice P.K. Balasubramanian & K.A. Abdul Gafoor, J. considered the question and held that in the absence of a provision in the Amended O.XXXIV of the Code the right of redemption cannot be permitted to the defendant/ Judgment Debtor (Mortgagor). In that case, the facts are as follows :

Federal Bank Ltd. filed a suit for realisation of money by sale of the mortgaged under the equitable mortgage created in favour of the Bank to secure the liability. The 1st defendant was the principal debtor and defendants 2 & 3 are the guarantors/ sureties. The property mortgaged belonged to the 3rd defendant. It is the residential property of defendants 2 & 3 having an extent of 12 3/4 cents in a very important area in Mattancherry. Kochi. The suit was decreed on admission for realisation of a sum of Rs.20,000/- with 14% interest and cost charged upon the property by sale of the same. In execution of the decree E.P. was filed for realisation of a sum of Rs.29, 755-22Ps for sale of property. Pending execution Rs.17,400 was paid by the Judgment debtors. For the balance property was proclaimed and sold on 26.10.1994 and the same was purchased by third party for Rs.30,200/- The 3rd Judgment debtor who is the owner of the property mortgaged (the mortgagor) filed E. A. on 9/1/1995 by depositing the entire sale amount and 5% commission payable to the auction purchaser and prayed for setting aside the sale invoking her right to redeem the mortgage before confirmation of sale and also the inherent powers of the Court. Thus, O.XXXIV and S. 151 CPC were invoked. The decree holder contended that after the Kerala Amendment, O.XXXIV R. 5 as in the Central Act is not available and only provisions for setting aside the sale are either O. XXI R. 89 or 90 C.P.C. Auction purchaser also contested. The Court dismissed the petition accepting the same. Against that the Revision was filed. The learned Single Judge Justice K. Sreedharan, as his Lordship then was, before whom the matter came up for admission referred it to a Division Bench which ultimately confirmed the order of the Court below.

The property is worth Rs.15 lakhs now. The serious and irreparable prejudice and injury caused to the mortgagor who has the right to redeem the mortgage under S. 60 of the T.P. Act and O. XXIV R. 5 CPC as per the Central Act is now denied because the Kerala Amendment has not provided for the same. This requires consideration. Assuming in the Kerala Amendment there is an omission, as there was no amendment by Act 104/1996 to O. XXXIV CPC and thereafter the Kerala Amendment was made which is inconsistent with the Central Act, the Central Act provision should prevail as per S. 97(3) of the CPC Amendment Act 1976. Assuming that there is no express provision, since S. 151 CPC was also invoked the court could have very well permitted the mortgagor to invoke S.60 T.P. Act and permitted redemption. The question whether a separate suit for redemption will lie is academic since once the sale is confirmed the mortgage will be deemed extinguished. Hence, to avoid unnecessary hardship to mortgagors necessary amendments have to be made at the earliest in O.XXXIV C.P.C. in Kerala in this regard. If not the court will have to invoke S. 151 CPC read with S.60 T.P. Act to render substantial justice to parties, ex debito justitiae. This is only in consonance with the dictum laid down by the Supreme Court in New Kenilworth Hotels (P) Ltd, v. Ashoka Industries Ltd. & Ors. (1995) 1 SCC 161 that until confirmation of sale mortgagor has right to deposit entire sale money and court has a statutory duty to direct redemption of mortgage.