The Differed Woes

(T.M. Rajasekharan, Advocate, Calicut)

Lawyer I am, tired by evening

More by the ordeal of convincing

The Judge, than the friend opposing.

Sat on the chair, no time for relaxing

For the clients wait for briefing

With their woes baffling.

Cry, my wife and children aloud,

"Throw Your records around

And come to the beach for a round".

How charming my better half was

With promises on her playful eyes

Years ago, when rang the wedding bells.

Music to the ears, the kids' first sounds,

The young wife learning mother's rounds

While I probed the practising grounds.

Choice to the bench I declined

'Cause it is one for the dejected

And life's challenges rejected.

Bring I home amounts plentiful,

Loose I home's charms bountiful,

Immersed in stories woeful.

Burn I the oil at midnight

For the judgments I can't digest

The wordings therein disgust.

Dawn I wake up and prepare

For you can't seek to repair

A bad pleading in despair.

Illness and Ill health I brave

For you can't avail leave

On grounds flimsy, feint or naive.

Donations big and small,

Collections galore full,

Never a moment dull.

Taxmen, they don't leave my door

For tax at source they adore

Than truthful disclose bear.

Bad or wrong comments I forebear

For 'am not a judge but a lawyer

Of a class not mediocre.

Clamour my household for an hour

Of joy, freedom and leisure

That I can't afford as a lawyer.

Quo Vadis Legal Profession *

(By T.P. Kelu Nambiar, B.A.M.L.)

I am sincerely apologetic, contrite and honest when I say: "Advocacy is dead". I hasten to add: ‘Long live advocacy'.

Let me make an honest statement of an obvious fact. A lawyer now-a-days sees 'a stranger in the mirror'. We cannot gloss over the palsy that has gripped the profession. We hear noises about the failure of the profession. We should be rattled by the developments in the profession. The legal profession is in distress, self-made though. The profession is caught in the throes of recession and retrogradation. The anaemic profession's woes are many. There is a grave crisis in the profession. The lawyers' house is on fire. The profession has lost its shirt. I am not making obiter dicta. It is time to count the losses. We have to rescue the profession without waiting for others who follow us to do it, unlike the king waiting for his diver's arrival to rescue his drowning son. We have to choose any God from the many and swear in His name, without bargaining with Him, that we shall try to redeem the profession, which is perilously close to paralysis and bankruptcy.

Let us make a positive assessment of the professional fall-out of the recent setback, in the background of the polluted corridor of the profession. The legal profession is now used only as an accessory, not the ultimate. This aspect seems to be ominous to the profession's future. Law practice is a dynamic profession. But it has now reached the stage of the dead digging its own grave. The noblest of the professions has now become the sorriest of trades, going fast-forward, from zero to zero. Instead of being on the right side of the profession, we are now on its wrong side. It is a familiar homily now-a-days that lawyers are becoming expendable; they allow themselves maintained on a 'daily wage' basis, selling the profession for a bundle, ignoring that one of their duties is to provide voice to the voiceless. They act as worried investors in the profession. A lawyer is neither a vendor nor a less or of arguments. Absolutely genuine, deep, unfathomable, steadfast and firm devotion to the profession is sadly lacking. The will to learn is missing. Lawyers are defaulting on personal matters, without keeping character, going even for brief hunting. We have to guard against 'advocacy misadventure'. We have to safeguard reputation. Even as a fledging that comes out of an egg cannot get back into the pierced shell, one who has lost his reputation can never hope to get back his fair name. The situation warrants panic reaction. The profession is on the verge of facing an impeachment. True lawyers are becoming endangered species. We should attempt at exercises in damage control. It is high time that such attempt is started, avoiding 'wag the dog' policy.

I am only compiling a catalogue of situations in the profession, after waiting and watching in helpless anxiety. I am not making a declaration of defeatism. We should not un-learn what we have learnt from experience. I am not expressing an exaggerated expectation when I say that we should try our best, both horizontally and vertically, to save the profession from the grip of the crisis; to pull back the profession from the brink; to diffuse the gathering crisis in the profession, by taking positive, candid and constructive steps, identifying the fragile areas of the profession. It is not possible to announce a bonus for the promotion of the profession.

We have to show positive commitment to the profession. Law practice is a profession, not a mission like genuine politics. Therefore, concentrate on the profession, playing by fair rules in the legal super-market; without allowing the profession to sink; but allowing it to float. Do not allow the profession to be processed by the death-wish. Look to the future with hope and faith, instead of despair.

We should not forget the profession's excellences. The Swedish discoverer of dynamite, Alfred Bernhard Nobel, or the Nobel Foundation, did not institute a prize for advocacy. Let a prize be instituted for advocacy in the name of Hortensius, who, according to Cicero, was the greatest of advocates. We should strive to maintain the culture of professional responsibility. Advocates, please roll-on; do not roll-back. We should try to be part of the solution, not part of the problem. Let us discover ourselves. A radical revamping is required. Otherwise, we might feel deserted. The situation calls for a thorough recycling. Let us go the extra mile to improve the situation.

We should have total concentration on the brief: Be a Karmayogi lawyer: good results will follow. The legal tiger certainly distinguishes between honest and dishonest rider. There is total need for change of the shape of the Bar and structure of the profession.

Both hardwork and neat arguments are essential, to enjoy professional eminence in peace. When two things are essential, they are not alternatives, just like comparisons being possible only when there are options available. Achieve good results, without being over-anxious to 'show-case' your achievements. Accept the result with poise-, without attachment to the result. Advocacy is a difficult terrain. Therefore, ride carefully. You cannot win a case by inspiration, but only by preparation.

We are living in a world full of labels. We have to play our professional game with dexterity, without minding the nature of the courts, whether it be the concrete hard Court, rubberized surface, sappy grass or red clay. Do not indulge in bread and butter argument. Remember, advocacy is the dynamic aspect of law practice.

Sometimes, Judges resting on their cushion of safety in box-seat, show anger, revulsion and disgust, when hearing cases; and sent sharply worded judicial missive, seeming deriving an unstated satisfaction in affording only second language status to the Bar, forgetting that it is not easy to compound a hurt. They seem to be far away in stratospheric heights, putting so much distinguished distance between themselves and the rest, showing distinct displeasure, heaping discourtesies on the members of the Bar to their utter distress; and sometimes trying to remove the goal posts in the midst of the game. The judiciary should be disciplined; and should not try to subdue or subjugate the lawyers. The Court is not a clearing-house of ego-related issues. The tensions should dissipate in a hurry. Bilateral restraint is needed. And, respect is an aspect which is reciprocal. The Judiciary should shake hands with the Bar on reciprocity. The Bench and the Bar should be held together by the adhesive of 'mutual respect'. I emphasise the adjective rather than the noun in the term 'mutual respect'. It is well to remember that a court-house is not a trade-house for nagging questions and unprecise answers. The judges, also, without going after the fleeting pleasures of the judicial world by exhibiting authority, should show capacity; the judiciary has also to be judged; because lawyers and judges form and constitute the judicature. The game would be over if the King is sacrificed.

A case has to be argued with precision, without indulging in unlimited arguments. A court-house is not the theatre of the absurd. Lord Reid said, in Rondel's case, that far more cases have been lost by going on too long than by stopping too soon. Lord Templeman considered torrents of words by Advocates, oppressive. Oral marathon by loquacious lawyers goes unappreciated. Do not frontload your case with untensable contentions. Remember, in these days, judges order 'cut' when lawyers are performing, because they expect 'quick-fixes' in cases. Therefore, we should not use professional videos as just raw tapes - they should be produced, directed and edited; and, remember, some judges are laid-back with immobile countenance; some are disciplinarians with the reserve of a school master. Be respectful, for respect unlimited is expected. But, be bold; it is said, lawyers are heartless, spineless and gutless, and their heads and rear ends are interchangeable. A lawyer is no bezonian. A lawyer's loyalty is to the law; and by worshipping law, chanting law and meditating on law, he becomes a true lawyer.

Let me attempt a crisp advice to the young wing of the profession. Your agenda should not begin and end with enrolment. You have miles to go. You enrol young; you die old; in the long meantime you have to carry on with your profession. Do not be a tinsel lawyer. Nor be a mere pipe-dreamer in the profession. Juniors should act as monitors of seniors, not as mere back-room boys of the profession's super-stars, who occasionally ignore and periodically disown their juniors. They should not allow themselves to be shunted to the side-lines or recesses of the court. Do not lead a purposeless existence. Prove that you are not redundant. Spin a golden thread between you and your senior. Show a credible interest in the profession; and sustain that interest day by day and year upon year. There is no substitute for experience. Scan your brief, create and perform. Your endeavour should not only be to become the man of the match, but also the man of the series. Legal profession is not the fifty-fifty hit-or-miss game. Your have to play a long innings. Do not remain totally and completely hostage to the seniors. Discharge your professional duty with unfailing regularity; you will certainly experience the inescapable results, whether you be a winner or a loser. Do not show either irrational exuberance or unjustified pessimism. Do not show peevish impatience. Never behave like a 'petulant errant' in the profession. And, remember, you are destined to replace the ageing fleet, sans eyes, sans ears. Therefore, explore the excellence of the profession by plumbing the depths, scaling the heights and treading the miles; and chase your desire. And discover the passion for the profession. Thus you will find yourselves seated in the best front seat row. A lawyer has to go about his profession, with a 'mind without fear' and 'the head held high', to use the music of Tagore.

At the end of the day, I should emphasise the urgency to repair the damage. There is no hurry; but there is certainly an urgency. Beware, you are going to inherit an impoverished profession. Try to revive and re-live the splendour of the profession.

I call upon every lawyer to give a robust response to this exhortation, which I make not a day too soon: Let us make an emphatic declaration that we shall not allow the profession of law lose its zing and zest, vitality and virtuousness, excellence and exuberance; we shall try to regain the glow and flash of the legal profession, like sparkling carbon. "Strong in will", let us "strive, seek and find", as Tennyson said in Ulysses.

The expression 'thank you', is too little payment for so great a debt I owe to The Kerala Law Times, the provider of this great and fine opportunity; and to the tolerance of this evening's listeners.

Long live Kerala Law Times.

Foot Note

*"K.L.T. Address", delivered on21-12-1998, on the occasion of the Golden Jubilee Celebration of the Kerala Law Times, at the Bar Council Auditorium, Ernakulam.

Conflicting Decisions of the Full Bench and the Single Judge

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

In a recent case, Scaria Varghese v. Varghese Marykutty (1991 (2) KLT 71) His Lordship Varghese Kalliath, J. held that a Christian father has legal obligation to maintain his children and a civil suit for such maintenance is maintainable. The decision is indeed innovative. The anxiety of the Court to protect the interest of destitute children and to do justice is discernible throughout the judgment. But, with great respect, it is submitted that the decision appears to be incorrect.

For all practical purposes the above decision has virtually set at naught the general rule of law laid down by the Full Bench in 1972 KLT 24 and the result is judicial inconsistency and conflict.

The Full Bench in 1972 KLT 24 was dealing with the question of the nature of the transaction evidenced by a document executed by a Christian father. The Income Tax Tribunal found that the document is for adequate consideration and observed that the document makes it clear that it was executed in pursuance of the legal duty and obligation cast upon the assessee to maintain and educate his minor children and in fulfilment of that duty and obligation. So the Tribunal held that it should follow that such a transaction has to be considered as one supported by consideration.

The Full Bench did not agree with the above finding of the Tribunal and the relevant passage reads:-

"There has not been any discussion in the case as to whether a father has any obligation enforceable in the civil courts to maintain his minor child. It is contended on behalf of the department that there is no such obligation on the part of a Christian father. This submission seems to be supported by the decision of the Travancore-Cochin High Court in Chacko Daniel v. Daniel Joshua and others (AIR 1953 Tra-Co. 61 : 1952 KLT 595). References have been made in that decision to Trevelayan's Law Relating to Minors (Fifth Edition), Simpson on the Law of Infants (Fourth Edition), Halsbury's Laws of England and to the decision in V.J. Walter v. M.J. Walter (AIR 1928 Cal. 600) and Philomena Mendoza v. Dara Nasserwanji (AIR 1943 Bom. 338), all of which go to show that there is no legal obligation on the part of the Christian father to maintain his minor child (Emphasis supplied). We are in respectful agreement with this view expressed in Chacko Daniel v. Daniel Joshua and others (AIR1953 Tra.Co. 61 : 1952 KLT 595). If this be so the transfer can only be in the nature of a gift for, the son has not conferred any benefit on the father in return and what is more important, has not suffered any detriment. With due respect we consider that the assumption made in S. Viswasom v. Commissioner of Income Tax, Kerala (1963) 50 ITR 503) that there is a legal obligation on the part of the Christian father to support his minor son is wrong. (Emphasis supplied)."

Can there be any doubt that the decision taken by the Full Bench solely rested on the issue of legal obligation of a Christian father to maintain his child? If that be so the ratio decidendi of the case is that a Christian father has no legal obligation to maintain his minor child and no such obligation is enforceable in civil courts.

It is not seldom that difficult situations may arise in finding out tae ratio decidendi as opposed to obiter dicta. It is axiomatic that a decision is only an authority for what it actually decides. The essence in a decision is its ratio and not every observation made therein nor what logically follows from the various observations made in it. It is not proper to extract a sentence here and there from a judgment and to build upon it.

The ratio decidendi may be described roughly as the rule of law applied by and acted on by the court, or the rule which t he court regarded as governing the case. (Salmond on Jurisprudence, Twelfth Edition - page 177). The "reversal" test of Professor Wambaugh is one of the various methods of determining the ratio of a decision. We should take the proposition of law put forward by the Judge, reverse or negate it and then see if its reversal would have altered the actual decision (Salmond on Jurisprudence- page 180).

Applying the above test it can be seen that if the Full bench was of opinion that there is legal obligation on the part of a Christian father, the judges would have concurred with the finding-of the Tribunal and the decision would have been just the opposite. The ratio in the decision of the Full Bench is not obscure. On the contrary it is quite a plain and clear. The rule stated and applied by the judges is that a Christian father has no legal obligation to maintain the children.

In spite of the clear position the learned Judge has chosen to apply the doctrine of restrictive distinguishing. I may submit that the circumstances of this case do not warrant the application of the said doctrine. There are opposing views on the power of restrictive distinguishing which may sometimes lead to extra ordinary mental gymnatics and illogicalities. It is a practice suggested to rectify the errors of common law perpetuated by obnoxious precedent In the present case there is hardly any scope for applying the doctrine of restrictive distinguishing, which may have the effect of implied overruling of the decision of Full Bench reported in 1972 KLT 24.

His Lordship has placed reliance on AIR 1955 TC 255. The rule laid down in. that case has no direct application and there was no issue at all regarding the legal obligation of father to maintain his children under Christian law. In this context the considered opinion expressed in 1952 KLT 595 and followed by the Full Bench is very relevant. It was a decision arrived at by a Division Bench of Travancore-Cochin High Court after elaborately discussing the entire case law on the point. The Division Bench held that the personal law relating to Christians in Travancore does not make a father legally liable to maintain his children whether they be legitimate or illegitimate. The considered opinion of the Judges, Mr. Koshi, the then Chief Justice and Mr. Justice Govinda Pillai was that the minor plaintiffs have certainly a right to claim maintenance from the defendant under the provisions of the Criminal Procedure Code, but no civil Court could give them relief.

The plain language of 1952 KLT 595 and 1972 KLT 24 (F.B.) would reveal that the established proposition of law is that a father has no legal obligation to maintain a child under Christian Law. No doubt he is liable under S.125 of the criminal Procedure Code. The injustice, if any, arising out of this situation has to be remedied by the intervention of the legislature and not by court.

Now the two decisions, of the Full Bench and Single Judge, stand side by side conflicting each other. Now which is the rule to the followed by the lower Courts? The earlier decision of the Full Bench or the later decision of the Single Judge? The situation illustrates uncertainty of law or rather unpredictability of decisions. No two cases are based on the same set of facts and by hair splitting any case can be distinguished. Authoritative precedents are legal sources of law and they shall not be disturbed whether the judges approve them or not. The precedent may appear to be erroneous, but that does not weaken its authority. Scrutton, L.J., in Hill v. Aldershot Corporation observed:

"But in my view liberty to decide each case as you think right without any regard to principles laid down in previous similar cases would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what judge his case would come and could guess what view that judge would lake on a consideration of the matter without any regard to previous decisions".

The decisions in 1972 KLT 24 (F.B.) and 1991 (2) KLT 71 arc irreconcilably in conflict. As suggested in the text' Salmond on Jurisprudence' page 153, the lower Court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority, which of these courses the Court adopts depends, or should depend, upon its own view of what the law ought to be.

Two Erroneous Propositions -

1998 (2) KLT 125 & 1998 (2) KLT 657

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

With respect, it is submitted that certain propositions of law laid down in 1998 (2) KLT 125 and in 1998 (2) KLT 657 do not appear to be correct. The two cases are given below:

I. 1998 (2) KLT 125 - Hubert Peyoli v. Santhavilasath Kesavan Sivadasan

The High Court was considering the question of registration of Memorandum accompanying mortgage by deposit of title deeds under Section 17 of the Registration Act (1908). The court has laid down the broad proposition that when the memorandum of letter was executed on the date of the deposit or delivery of the title deeds, that needs registration. The court has relied on AIR 1965 SC 1591 and lLR 1979 (1) Ker. 710. It is respectfully submitted that the above decision have not been correctly interpreted by the High Court in laying down the relevant principle. The execution of the Memorandum of letter on the same date assumes no significance at all. What is to be considered is whether the written document contains the bargain regarding security or not. If the parties intended to reduce their bargain regarding the deposit to the form a document, that document requires registration. So the relevant issue is whether the memorandum of letter accompanying deposit of title deeds is an integral part of the transaction or not. The court shall evaluate the circumstances which would show that the document operates to create a charge or an interest in immovable property. If it only records a concluded transaction it needs no registration irrespective of the fact that it is executed on the same date. It is quite clear from a close reading of the earlier decisions that the fact of execution of memorandum of letter on the same date is immaterial in deciding the question of registration. Unless this aspect is clarified there is every likelihood that 1998 (2) KLT 125 is misapplied by the Subordinate courts. So the decision requires reconsideration.

II. 1998 (2) KLT 657 - Coromandal Distributors v. Food Inspector

In the second case the High Court has overlooked the decision reported in AIR 1984 SC 80, Charanjilal Appellant v. State of Punjab. The Kerala High Court has construed the word 'damage' occurring in sub-section (2C) of Section 13 of Prevention of Food Adulteration Act, 1954, as not including 'decomposition'. True that there was a conflict of opinion between the High Courts and also within the same High Court as to the construction of the word 'damaged' used in the proviso to sub-section 2(C) of Section 13 of the Act. But the conflict has been set at right by the Supreme Court in AIR 1984 SC 80. The Court has clearly laid down that the word 'damaged' in the collocation of the words 'lost or damaged' appearing in the proviso to sub-section (2C) of Section 13 in relation to the part of the sample sent by the Court to the Director of the Central Food Laboratory must, in the context, mean 'damaged due to any cause including decomposition'. A sample can get damaged for a number of reasons including breakage, leakage and decomposition. The Supreme Court elaborately discussed all aspects and disagreed with the view that the loss or damage must occur after the sample is despatched for analysis to the Central Food Laboratory. It is now concluded that the word 'damage' takes in cases of decomposition also. It is a position now settled by the Supreme Court.

The said part of the judgment of the Kerala High Court dealing with the construction of loss or damage' is given per incuriam and not binding on any lower court.

I am not oblivious of the unmanageable and staggering growth of the bulk of case law and it is nearly impossible to take notice of all relevant cases and maintain rigidly the doctrine of stare decisis. Nevertheless it is respectfully submitted that the above two cases require reconsideration.

The Decision in 1990 (1) KLT 596

No Longer Good Law

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

According to Sri. Thomas P. Joseph who wrote in defence of 1990 (1) KLT 596, the foot-note given by the Editor to the decision of the Supreme Court, Unni v. Nirmala Industries, (1990(1) KLT 903) is incorrect. On a close examination of the propositions laid down in the various decisions referred to by the author in his article at Journal Section 29 it is explicitly clear that what the Editor has noted is not incorrect and that the decision in 1990 (1) KLT 596 is not good law in view of the decision of the Supreme Court.

Article 127 of the Limitation Act, 1963, as it stood originally, prescribed 30 days time for filing an application to set aside a sale. Order 21 Rule 92(2) also provided 30 days time for making the deposit. So there was no anomaly before the amendment. Deposit as well as application has to be made within 30 days. The time for filing the application was extended to 60 days by Amending Act 104 of 1976. But the legislature did not amend Rule 92(2) of Order XXI in order to extend the time for deposit. So after the amendment of Article 127 of Limitation Act, a person need file an application to set aside the sale within 60 days, though he is required to deposit the amount within 30 days. Certainly this is an anomalous position due to the omission on the part of the Legislature.

A Division Bench of our High Court in Dakshayini v. Madhavan (1981 KLT 861, AIR 1982 Ker. 126) considered the above question and held that the deposit for the purpose of setting aside the sale has to be made within 30 days. In a case where application and deposit were made only within 60 days the application cannot be entertained as there is no deposit within time. It was a case decided before extending the period of deposit to 60 days by an amendment of Order 21 Rule 92(2) by the Kerala High Court. The Division Bench also took the view that deposit envisaged in R.89 is a condition precedent for filing an application to set aside the sale. The Court has categorically stated".............We cannot read the period of 30 days as 60 days on any approach". The Division bench also expressed its strong opinion on the desirability of an immediate amendment of R.92(2) by enlarging the period of deposit in conformity with the period prescribed for filing application. (See the last portion of the judgment).

Another Division Bench in 1990(1) KLT 596 held that the aforesaid decision in Dakshayini v. Madhavan (1981 KLT 861) is not good law. The later Bench relied on Basavantappa's case decided by the Supreme Court (AIR 1987 SC 53). In that case the Supreme Court held that deposit made within 60 days was within time in spite of the unamended provision of R.92(2) of Order XXI, stipulating 30 days time.

In the cases decided in 1990 (1) KLT 596, applications were made before the coming into force of High Court amendment of R.92(2). The deposits were made after 30 days against the provisions of R.92(2) as it then stood.

The Division Bench, differing with the decision of the earlier Division Bench, took the view that Article 127 will prevail over Order 21 R.92(2) and it is not possible to say that the said Rule provides for a period of limitation for making the deposit. The Court observed "Even without the said amendment to Order 21 Rule 92(2), as we found earlier, the deposit need be made only within 60 days. The amendment dated 8th October 1987 is only declaratory and therefore, the same would take effect retrospectively.........As has already noted the function of the amendment in the context of the decision of the Supreme Court in Basavantappa's case ("AIR 1987 SC 53) can only be to remove the ambiguity or inconsistency between Article 127 of the Limitation Act and Order 21 Rule 92(2) of the Code." It is significant to note that they are bound by the decision of Supreme Court, in Basavantappa's case.

There can be no doubt that the court in the above case held the view that a deposit made beyond 30 days and within 60 days is a valid deposit even in the absence of an amendment of Order XXI Rule 92(2) extending the period of deposit to 60 days. It is against the view taken in 1981 KLT 861.

Now the Full Bench of the Supreme Court has overruled Basavantappa's case. It has approved the decision of the earlier Division Bench of our High Court reported in 1981 KLT 861. Consequently the decision in 1990(1) KLT 596 cannot be held to be good law. The Supreme Court held "In the circumstances we hold that the correct construction of R.92(2) of Order XXI of the Civil Procedure Code. 1908 leads to the irresistible conclusion that the time for making a deposit in terms of Rule 89 of Order XXI is 30 days and Article 127 of the Limitation Act. 1963 prescribing the period for making an application under R.89 has no relevance to the prescribed time for making the deposit. Neither provision has any effect on the other as to time'. So any amendment to Order XXI Rule 92(2) is not merely declaratory, but amends the law itself.

The above Supreme Court decision may not have much practical significance as far as Kerala is concerned since there is the High Court amendment extending the period for deposit to 60 days. But it cannot be said that the decision in 1990 (1) KLT 5% is good law when viewed in the light of the clear propositions laid down by the Full Bench of Supreme Court. The editor has committed no error in adding the foot-note.