The Late T.M. Mahalinga Iyer - A Tribute

(By V.R. Venkita Krishnan, Advocate, Cochin)

A distinguished lawyer and an intellectual of a rare order has left us forever. I have known the late Mr. T.M. Mahalinga Iyer for the last nearly 40 years ever since I came down to Kerala and I have not seen another brilliant lawyer with such scintillating eminence and versatility. As a Lawyer he was one, whose words always left a lasting impression on those who heard him and he was an intellectual with a rare sense of humility, a quality which is seldom present now-a-days. His arguments were unforgettable and piercing and the legal language that he displayed can be hardly excelled and seldom substituted. His utterances in court and outside displayed an aura of academic brilliance and he was a fair lawyer though a tough opponent. His capacity for analysing the finer aspects in law was almost a legend in this court and even his adversaries had a word of praise for his forensic eloquence. His knowledge of law would create and has always created an impression that he was a Professor with an academic bent and he can argue a case even when there are no facts to support a point. His depth of knowledge is unfathomable and he used to entertain the Judges of this Court for hours, without interruption, especiallywhen he argued a pure question of law. His analytical capacity was a marvel which will silence the opposite side.

He was a Musician on his own right and an uncompromising critic in the field of Carnatic Music because of his insistence on perfection. He has had his own concerts and even performed Harikathakalashepams and in fact he started his career with a minus budget. He was not born with a silver spoon; in fact he had no spoon at all. He built his career brick by brick and he moved forward, inch by inch by the sheer brilliance that he possessed and indefatigable industry that he pursued. I should say that he deserved many more things in life and he was not as lucky as he should have been. This is something for which there is no explanation in this world.

His knowledge in Sanskrit is amazingly diversified. He can quote chapter and verse from Sanskrit Literature and his quotations were handed down from generation to generation, since those quotes never found a place in any text book. The late Mahalinga Iyer was a man who could think on his legs and who can give a discourse on any subject with half an hour's notice. His dissertation on music was a rare treat for his audience and he arrested the attention of his listeners with his witty remarks and thought-provoking comments. Anyone who listened to him could not afford to forget him. His remarks and observations were deep and incisive and they were studded with sparkling diamonds.

He had a large family to support with 5 daughters and a son and he brought them up well in life beyond anybody's capacity. Having lost his wife early in life, he had to meet heavy-odds which he met with rare patience and resoluteness.

The present generation is not likely to know much of this multifaced personality. He was rare in may ways; he never made a display of his deep knowledge on various subjects including law and he did not suffer from intellectual arrogance but when you hear him, you will have every reason to say that he has a right to be aloof and arrogant but he was not and this quality marked him out as very different from others.

A person with variegated talents of an incredible diversity, with his deep knowledge, erudition and rare insight in human affairs he cannot be forgotten and will not be forgotten for generations to come. His humility was disarmingly singular and with all his knowledge, he never had any ego. A rare quality these days.

Forget him not.

Who is Competent to Contract?

(By Kauser Edappagath, Advocate, Kannur)

In a significant ruling with far reaching consequences, a single Bench of the High Court of Kerala in Sreedharan v. Chandrashekharan Nair (2001 (2) KLT 64) held that an agreement entered into by a co-tenant with another in respect of the possession of the lease hold premises without the consent of the landlord is void. It was further held that the co-tenants among themselves couldn't make any arrangement in respect of possession detrimental to the interest of the landlord and without his knowledge and consent. With due respect to the Hon'ble Judge who pronounced the judgment, I express my veritable doubt as to the correctness of the reasoning given by the Judge on the basis of which the verdict was delivered. To my mind, the judgment is based on wrong understanding of the related provisions of the Indian Contract Act and the Transfer of Property Act.

The crux of the dispute in the case centered on an agreement executed between the plaintiff and the first defendant, both of them are tenants under the second defendant, marked as Ext. Xl(b). Admittedly the landlady, the second defendant, was not a party to the said agreement. The Hon'ble Judge was of the opinion that the tenants are not the 'competent person' to contract and that the landlady was the 'competent person' to contract as provided in S.10 of the Indian Contract Act. Consequently the agreement executed by the tenants inter se without the juncture of the landlord was declared as void. According to me the Hon'ble Judge did not interpret the term 'competent to contract' embodied in S.10 in its correct perspective. S.10 sets out the various elements that may affect the validity of a contract and thus prevent it from legally binding or enforceable. As per S.10 one of the ingredients to make a contract valid is that person who is competent to contract should make it. S.10 has to be read along with S.11 which says that every person is competent to contract-who is of the age of majority according to the law to which he is subject, and who is sound mind, and is not disqualified from contracting by any law to which he is subject. In other words, this section is laying down the rules as to competency mentions three kinds of disqualification, namely those arising from 1) minority 2) insanity 3) statutory disqualification, like contracting with alien enemy. Here, in the instant case, the contracting parties were not suffering from any of those disqualifications. As such they were fully competent to contract. Void contracts are described under Ss.20, 25, 26, 27, 28, 29, 30 and 56 respectively due to mistake of fact, lack of consideration, restraint of marriage, restraint of trade, absolute restraint of judicial proceedings, uncertainty, wager and impossibility of performance. None of the above were also not attracted in the instant case.

The other sections relied on by the Hon'ble Judge to come to the conclusion that the Ext. X1 (b) agreement is void were Ss.42 and 44 of the Contract Act. The Sections 42 and 44 only stipulate that where there are joint promisors there is an implied contract amongst them, interse, to contribute equally towards the performance of the joint promise. That implied contract of contribution is independent of the contract as between the joint promisors and promisee. In such circumstances the promisee cannot in any way absolve a joint promissor from his liability to contribution so far as his other joint promissors are concerned who may have performed the promise. These sections only deal with the obligation to perform the discharge of joint promise and also contribution. It does not deal with the voidance of the contract.

As per S.108(j) of the Transfer of Property Act a lessee has got every right to transfer absolutely or by way of mortgage or sublease whole or part of his interest in the property. But only thing is that if the said transfer or sublease attracts the objectionable sublease as defined under S.11(4)(1) of the Kerala Buildings (Lease and Rent Control) Act, the lessor gets a cause of action to initiate legal proceedings for eviction against the lessee. Thus the plaintiff and the first defendant were well-justified under S.108(j) of the T.P. Act to enter into a contract transferring the interest of the former in favour of the latter.

The above judgment that wrongly interpreted Ss. 10,11,42 and 44 of the Indian Contract Act requires re-examination by a larger Bench.

The 'Mundu' (Not Mundane) Controversy

(By S. Parameswaran, Advocate, Ernakulum)

I. The issue of the Principal of Vazhichal Immanuel College, prohibiting the male students of the institution from attending classes wearing mundu (dhoti) is not to be brushed under the carpet with a compromise formula hatched out and adopted by the College authorities and the Parent-Teachers Association. It raises an issue of much larger significance, than meets the eye and sends a potentially dangerous and wrong signal to Keralites.

II. Apart from being a cloth worn by Keraiites in particular and Indians, especially, South Indian, in general the mundu is symbolic of a culture of the Malayalee who is fast losing his ethnic identity and cultural individuality through a consumer culture fast invading and enveloping this State of nature's beauty and man's brilliance. Even the women folk in rural Kerala, and orthodox Hindu, Christian and Muslim woman in different parts of interior Kerala, not to speak of men, wear mundu, which may carry the appellation, mundu, set mundu, kylee (lungi) etc. While wearing dresses according to one's own likes and notions of fashion is permissible as long as this does not border on obscenity, many industrial concerns, business establishments and professions like the legal profession prescribe - and legitimately too - a dress code. But, to prohibit students from attending college wearing mundu and to insist on wearing of pants and trousers reminds one of the sordid incidents of denial of admission to the great painter Hussain to a place as he did not wear chappals and to eminent Judge Justice V.R Krishna Iyer by a Madras Club for wearing mundu. which are fossilised vestiges of a purblind social system of the Victorian era.

III. In this context, I am reminded of the famous words of the illustrious American Supreme Court Judge, Justice William Brennon in the famous Book Burning Case (Board of Education v. Pico (45) 1982 US 853). "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, if there are any circumstances which permit an exception they do not now occur to us". One may add that if there is any bedrock principle underlying our constitution, it is that State may not prohibit the expression of an idea simply because it finds the idea itself offensive or disagreeable to it. This must extend and apply to institutions as well, One's Philosophy, one's experience, one's exposure to the raw edges of human existence, one's religious training, one's attitude towards life and faith and their values and the normal standards one established and seeks to observe the avocation one should take up, the hobbies one would pursue etc. are all likely to influence and to colour one's thinking and conclusion about the dress one should wear.

IV. It is true that the Indian Constitution like its American counterpart, does not specifically mention any right of privacy; but it cannot be gainsaid that the Constitution recognises a right of personal privacy or a guarantee of certain areas or zones of privacy, the roots of the right being traceable to Part III of our Constitution dealing with fundamental rights. The right of privacy, with respect, is broad enough to encompass a man's decision whether to wear mundu or pants. The detriment imposed on them by denying the choice is too important to be ignored by the statutory authorities. The utter concern of the Governmental authorities on this issue - a Government proclaiming from roof tops of its "Manaveeyam Programme" is indeed regrettable. It is, of course, true that there is a saying that it should never formulate a rule of constitutional law broader than is required by the particular fact on which it is to be applied. It is equally that the freedom the Constitution provides us is not against deprivation either, but deprivation without the due process of law. At the same time, one should realise that the prohibition of mundu does not have a rational relation to a valid objection of the college, nor is arty compelling interest unsolved. By virtue of die University Statute and other forms of Government control, the Colleges in Kerala cannot claim total autonomy and private character.

V. An interesting case arose a few decades ago before the Andhra Pradesh High Court having a bearing on wearing a dress. A nun, who was expelled from the convent, was wearing a nun's religious habitat while teaching in a convent school in Andhra Pradesh. The Mother General issued a direction that she should attend the school wearing saree and blouses like a lady woman teacher. The nun questioned this by a Writ Petition before the Andhra Pradesh High Court contending that 'lie Mother General's instruction was illegal and unenforceable at law and that it was still open to her to wear the religious dress of a nun. A Division Bench of the Andhra Pradesh High Court comprising Chief Justice P. Chandra Reddy and Justice Narasimham held in Puthola Chinnamma v. The Regional Deputy Director of Public Instructions. Guntur and Ann (AIR 1964 AP 377) that under Art.126 of the Constitution of India the Roman Catholic Mission could establish and maintain the churches and manage their affairs in matters of religion. Any religious body has a right to establish and maintain instructions for religious and charitable purposes and manage their affairs. The term 'administer' in Art.30 is wide enough to take in enforcement of discipline in regard to dress and other matters by the educational institution. Thus, the direction that the expelled nun should not wear the 'religious habitat' of a nun, could not be questioned when undisputedly nuns have a distinctive dress known as the 'Religious habitat' which only nuns could wear. There is nothing in the chapter on fundamental rights embodied in Part in of the Constitution, whereunder such a right is expressed or could be inferred. The wearing of a nun's religious habitat by an expelled nun could not be a right which could be recognised under the Chapter of fundamental rights and much more so, when she ceased to be a nun. The Roman Catholic Mission, the Division Bench held, was a private body and the petition under Art.266 complaining of an infringement of a fundamental right does not lie against such a body. Though the decision rendered by the Andhra Pradesh High Court could be distinguished on facts from the mundu Episode in Kerala certain principles can be culled therefrom and held applicable to the present case.

VI. One acknowledges one's awareness of the sensitive and emotional nature of the muck that is raised about mundu the opposing views and of the deep and seemingly absolute views that the subject inspires. The prescription and prohibition by the principal cannot be lightly dismissed as the product of a Victorian social concern to streamline the students and regiment their ideas and outfits. Only the court will be able to resolve the issue by the constitutional measurement free of emotion and predilection and prejudices. 

Mcnaghten Rule, No Longer a Golden Scale Rule

(By V.K. Babu Prakash, Judicial First Class Magistrate, Karunagappally)

To bring home a charge for most of the offences of the Indian Penal Code, the prosecution has to bring about the fact that the accused had committed the act of offence which do not require the state of mens rea, nevertheless they are very few countable by the finger tips. The element of mens rea rhytmes through the latin Maxim “actus non facit reum, nisi mens sit rea” which is a running thread in the web of Indian Penal Code, in the sense that an act which would otherwise be a crime, if done without a criminal intention, the doer of the act cannot be held liable. Judicial interpretation of the element of mens rea has widened the scope of the expression which looms large now in the act of doing things voluntarily, knowingly, fraudulently, dishonestly and like wise negligently. In all these aspects, the element of mens rea or mental element can be seen or precipitated. Chapter IV of Indian Penal Code under the caption General Exceptions formulate various categories of exceptions which an accused can put forth as defence. Ss.76 to 106 are those kinds of exceptions which the accused gets to crack the wall of prosecution case. S.81 IPC touches upon the aspect of mens rea which makes out the rule that one cannot be held liable for an act which would otherwise be a crime, but for that alone he cannot hold liable if the act was done without any criminal intention. Among the other kinds of exceptions, this article wishes to think around S.84 of the Code which streamlines the exception of insanity. The plea of insanity or unsoundness of mind goes along with the wisdom of exception formulated under S. 81 regarding lack of mens rea as a madman does not know how his mind moves on.

S.84 of the Code says that nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. Plea of insanity sometimes may be used by the defence, though not often as a shield to ward off the prosecution attribution. The principal embodiment of S.84 goes hand in hand with S.81 in the sense that a close scanning of these sections ekes out the aspect that it does not contain mental element or criminal intention of the act done of. The four kinds of persons who can succeed to be non compos mentis (not of sound mind) in defending an offensive act area:- (1) An idiot (2) Unsound mindness by illness (3) lunatic (4) one who is drunk. When History rolls back to the Shakespherean's realm and gives a cue on the drama Hamlet, we see that prince Hamlet the delusive minded hero of Shakesphere was cornered with plea of insanity for his misdeeds. Hamlet being charged with his nocturnal activities termed it as coinage of the brain and Hamlet answers to the charge as "it is not madness, that I have uttered, bring me to the Test, and I the matter will re word, which madness would gambol from". So do the way of Hamletian tell tale the codification of insanity as a general defence of exception stems up from an 18th century incident happened. It was the murder of Mr. Edward Drummond, the Private Secretary to Sir Robert peel. Drummond was shot dead by a man called Mcnaghten, who was suffering from delusions of persecution and who killed Drummond in mistake for Sir Robert Peel himself. Mcnaghten was tried and after evidence as to his delusions had been heard, he was acquitted on the ground of insanity. The House of Lords had to accept the plea of defence of insanity and public reaction was so furious so that certain principles had to be formulated by the House of Lords on this score which are called the famous Mcnaghten Rules. The rule takes the following essentials in its periphery. In order to establish a defence on the grounds of insanity, it must be clearly proved that at the time of committing the act, the accused was labouring under such defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or if he did know what he was doing that he did not know that it was wrong. The second important element is that if the accused commits the act by reason of a delusion, the degree of responsibility which must be attached to him, and therefore, in law the degree of culpability which must be attributed is based upon the justification which the delusion would provide if it were true.

This rule ruled the roost of England for a considerable period and very much culprits escaped through the golden scale of rule either by clinical psychologist's report or by some stray behaviour of past delusions for which the accused had undergone some treatment or other. At last the Lord Chancellor's committee and the Royal Medico Psychological Association as a sequel decided to sweep away the golden wing of this rule and recommended that the legal criteria of responsibility expressed in the rule should be abrogated and the responsibility of an accused to shoulder the criminal liability or to make a plea of defence on the ground of insanity should be left as question of fact to be decided by the jury. The jury has to frame up questions as follows:- (1) Did the person commit the act. (2) If he did, was he at the time of insane. (3) If insane, the act of crime unrelated to his mental disorder?

The position has undergone a sea-change now in England, where the right or wrong test of Mcnaghten rule no longer dominates this branch of criminal law to the exclusion of mental abnormality falling short of complete insanity as a limited defence establishing a claim of limited responsibility. Under the Homicide Act of 1957 if two psychiatrists certify that the Homicidal act of the accused was influenced by abnormal conditions of his mind, he cannot be convicted of murder but be held liable for manslaughter. In India, whereas he sets up such a plea of insanity and proves it, he gets a clean acquittal and not hold liable for culpable homicide not amounting to murder under the Indian Penal Code which is equivalent to manslaughter under the Homicide Act of England.

In India it is the burden of proof to establish legal insanity upon the accused himself. It is not insanity of every description that can be pleaded in defence, but it must be legal insanity which exhonerates the act of criminal liability. Medical insanity is not a ground of defence in India. By medical insanity is meant the prisoner's consciousness of the bearing of his act on those affected by it and legal insanity is meant the prisoner's consciousness in relation to himself. There can be no legal insanity unless the cognitive faculties of the accused are as a result of unsoundness of mind completely impaired. Likewise though drunkness is kept in par with insanity, mere drunkness is no excuse, but delirium tremens caused by drinking, if it produces such a degree of madness, even for a time as to render a person incapable of distinguishing right from wrong, relieves him from criminal liability. Thus to sum up, the defence of Mcnaghten rule or plea of insanity is not a golden scale rule which could precisely draw a sketch of effective defence at all the times.

A Dead Proviso

(By R. Rama Narayana Prabhu, Advocate, Ernakulam)

As we all know, all the tenants under the Kerala Buildings (Lease and Rent Control) Act, 1965 are entitled for protection against eviction under S.11(3) by the grace of 2nd proviso to S.11 (3) of the Act. it is also a well settled preposition that whoever claims protection under any proviso shall prove that he is entitled for the protection. When it comes in the case of 2nd proviso protection the burden to prove the same is heavy on the shoulders of tenants.

2. Before going in deep with regard to the various aspects of the 2nd proviso, it will not be out of context to mention about the background for the Rent Control Legislations. Act 2 of 1965 is a welfare legislation, intended to prevent illegal and arbitrary eviction of tenants by the landlords, under the ordinary law. In Nagindas v. Dalpathram (AIR 1974 SC 471) the Apex Court of India justified the Legislative intention behind the various Rent Control Legislations in the country.

3. It is also to be borne in mind that, in order to meet the socio-economic crisis which was the off shoot of the Second world war, the Legislatures enacted various Rent Control Legislations such as the Madras Buildings (Lease and Rent Control) Act, 1949, the Travancore-Cochin) Building Lease and Rent Control) Order 1950, the Kerala Buildings (Lease and Rent Control) Act, 1959 etc. in order to check illegal and arbitrary eviction and demand of higher and unconscienable rent by the landlords.

4. But, what about the present socio-economic condition prevailing in the State? If we are keeping a close eye, it can be seen that the socio-economic conditions are changing rapidly. Now, the tenants are no longer a weaker section as they were. They are affluent and strong enough to stand on their own legs, without any support from the landlords. The tenants 'now a days' are not dependent on their landlords for the building. Most of the tenants are having buildings of their own and the remainder is capable of putting up the buildings. They are making handsome profit out of their businesses, conducted in the tenanted buildings.

5. Now we return to 2nd proviso to S.11(3) which reads as follows:- 'Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business'.

There are two limbs for this proviso (i) if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on the such building and (ii) and there is no other suitable building available in the locality for such, person to carry on such trade or business.

Here the tenant has to prove both these limbs then only he will be entitled to the protection, otherwise not. In order to prove the first limb, the tenant can produce books of accounts, balance sheet etc. of his business. If the tenant has other business apart from the business conducted in the tenanted premises, he has to produce relevant documents of that business before the Court for a comparison as to his main source. But the irony is that, if a tenant is conducting a 'multi crore' turnover business in the tenanted building and conducting a 'multylakh' turn over business in another building, is it a fit case to grant protection saying that the tenant is depending for his livelihood mainly on the income derived from the 'multi crore' turnover business carried on in the tenanted building? The answer is 'No'. Then how can the Court grant benefit to a tenant who is really depending for his livelihood mainly on the income derived from the trade or business carried on in the tenanted premises? The answer is very simple. He shall produce all the relevant documents of his business to prove the same before the court and also adduce oral evidence to that effect and here the court can adopt the 'test of comparative hardship' to ascertain whether the tenant is entitled for the protection of first limb of second proviso to S.11(3) of the Act.

6. The test of 'comparitive hardship' envisaged under S.11(10) suits to second proviso to S.11(3) rather than to S.11(8). The Court, on the evidence on record, can come to a conclusion by applying the said test. If the available evidence leads to a irresistible conclusion that the hardship which may be caused to the tenant by granting eviction will out weigh the advantage to the landlord, it may grant protection to the tenant as to first limb otherwise not. By this test of comparative hardship the Court can do justice to those tenants who would be on roads if the eviction is ordered. Hence word 'livelihood' assumes great importance in deciding the matter.

7. Then comes the second limb:- Here the tenant has to prove that no other suitable buildings are available in the locality. The tenant cannot escape from the burden saying that it is a negative proof. In landmark decision reported in 1976 KLT 1 (D.B.) our High Court held that 'it is capable of easy and positive proof by examination of Accommodation Controller or such other effective means'. One could see many practical difficulties in relying the 'vacancy register' maintained by the Accommodation Controller. Invariably the 'Vacancy Register' also will be 'Vacant' and to the contrary one could see numerous new building bearing 'to let' boards. Here the words 'such other effective means' employed in 1976 KLT 1 assumes great importance by which the tenant is duty bound to plead and prove by effective means that 'no other suitable buildings are available in the locality'. The 'suitability' of the building may vary with the size of the pocket of the tenants. But by means of the relevant documents that to be produced by the tenant to prove the 'main source' the court can also come to a conclusion that whether the tenant can afford the building available in the locality, in deciding the second limb to proviso (2) to S.11(3) of the Act.

8. The decision of our High Court (D.B.) reported in 1999 (3) KLT 373 in my opinion created some confusion with regard to the 'burden of proof under second proviso to S.11(3). But the Hon'ble High Court of Kerala in another decision reported in 2000 (3) KLT 809 explained 1999 (3) KLT 373 and held that 'we do not see anything in the decision of this Court in Krishnankunju Raveendran v. Sukumara Pillai, which compells us to take a different view' and further held that 'mere oral assertion without any supporting materials to show the income is not sufficient to prove that the tenants are mainly depending for their livelihood on the income derived by them from the business carried on in the petition schedule building'. 'The evidence regarding the income derived by them is peculiarity with in their knowledge and the best available evidence should be produced by them', and the Hon'ble High Court settled another controversy by further holding that', 'It cannot be expected that a tenant would now get a building on the rent that he originally agreed to pay to his landlord, in the same locality and in the same town. Rents have gone up. He will have to pay the prevalent rent in the locality consistent with the economic situation now obtaining'. 'The use of the expression 'suitable building' can only mean suitable for his needs'. 'Thus the Hon'ble High Court interpreted the word 'suitable building' also.

9. On the analysis of the second proviso, facts and the case laws discussed herein above, one could see that the burden to prove the second proviso to S.11(3) of the Act becomes heavier and heavier on the shoulders of the tenants. The tenants have to plead and prove by cogent evidence, oral as well as documentary both the limbs of second proviso which is practically impossible. Proving of only one limb will not entitle the tenant for such protection. Hence one cannot be blamed in saying that the second proviso to S.11(3) of the Act is 'a dead proviso'.