Increment and Penalty

 

(By O. V. Radhakrishnan, Advocate, Ernakulam)

 

The word increment' the Latin term of which is 'incrementum' means 'an ascending towards a climax'. It is not defined either in the Fundamental Rules or in the State Service Rules. Fundamental Rules 24 provides that an increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by the Central Government or by any authority to whom the Central Government may delegate this power under R.6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments. R.31 Part-I of the KSR is pari material with FR 24 Note 1 under R.31 provides that an official shall not be eligible for an increment unless he has acquired the obligatory departmental test qualification, if any, prescribed by Government from time to time to earn the increment. Note 2 thereunder provides that a competent authority may order the deferring of the increment of an officer pending investigation into his conduct or performance of work in disciplinary cases. Such deferring of increment will not be construed as 'withholding of increments' under the Kerala Civil Services (Classification, Control & Appeals) Rules, 1960. FR 25 which is in pari materia with R.32 Part I of KSR also empowers the competent authority to withhold increments next above an efficiency bar prescribed in a time-scale. Withholding of increments simpliciter is also a prejudicial order in the sense it deprives earning of increments by the Government servant which is a statutory right and 'Acting fairly' doctrine is applicable to such cases.

 

The provisions regarding withholding of increments in the Fundamental Rules and other Service Rules are made as terms of service and cannot be construed as a penalty. However, withholding of increments is also prescribed as a penalty. Thus in certain cases, withholding of increments can be enforced as a term of service and in other cases as a penalty. In both the cases, 'withholding of increments with cumulative effect' when imposed, the employee is reduced in his time-scale and it is in perpetuity during the rest of the tenure of his service. The legal effect of it is as contemplated under R.11 (v) of the CCA (CC & A) Rules and R.1 l(iii) of the KCS (CC & A) Rules. The seminal issue of general importance that arises is whether withholding of increments with cumulative effect can be imposed without holding a full dressed enquiry as contemplated by the Rules for imposing any of the major penalties.

 

The question posed above is no longer res integra. A three Judge Bench of the Hon'ble Supreme Court in Kulwant Singh Gill v. State of Punjab reported in 1991 Supp. (1) SCC 504 has emphatically held that the insidious effect of an order imposing the penalty of withholding of increments with cumulative effect is as envisaged under R. 5(v) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 which is identically worded as R. 1 l(v) of the CCS (CC & A) Rules and R. 1 l(iii) of KCS (CC & A) Rules. A penalty of withholding of increment with cumulative effect imposed without holding an enquiry is without jurisdiction or authority of law and it is per se illegal. The decision in Kulwant Singh Gill's case has been followed in Mohinder Singh v. State of Punjab andOrs., reported in 1995 Supp. (4) SCC 433. The law thus declared in the above two decisions hold the field.

 

Be that as it may, the above decision was distinguished by a two Judge Bench of the Hon'ble Supreme Court in the decision in Executive Director Syndicate Bank and Ors. v. K. C. Arya and Ann, reported in 1996 (II) LLJ 727, solely on the ground that Regulation 4(b) of the Syndicate Bank Officer-Employees (Discipline and Appeal) Regulations, 1976 expressly prescribes that withholding of increment with cumulative effect is a minor penalty which was not so in R.5(iv) as emphasized in Kulwant Singh Gill's case. It went on to hold that in so far as the Regulations are considered, withholding of an increment with cumulative effect is to be treated as a minor penalty and the imposition of the said penalty by following the procedure prescribed for imposition of minor penalties cannot be held to be in violation of the regulations. In that decision the Hon'ble Supreme Court did not correctly approach the issue and failed to consider the blighting effect of withholding of increments with cumulative effect on pay, pension and other retiral benefits as expounded in Kulwant Singh Gill's case. No declaration of law is made in that decision. The inescapable conclusion is that withholding of increments with cumulative effect by way of enforcing a term of service or by imposing the same as a penalty, whether classified as a minor or a major penalty, has the characteristic and consequences of a major penalty.

 

In the decision in M. Devaki v. State, reported in 1994 (2) KLJ 808, while dealing with R. 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, it has been held that the Note under R. 1 l(l)(iii) added by GO/(MS) 70/PD as amended by SRO No. 378/80 is absent in the Punjab Rules and by that Note it is made clear that withholding of increments, even on a permanent basis would fall within the category prescribed in No. (iii) of R. 11(1) (Minor Penalty). The decision proceeded on the basis that under the Kerala Rules, formal enquiry is contemplated only in regard to the penalties specified under Item (v) onwards and that the penalty imposed on the petitioner therein fell under Item (iii) and hence there is no scope for contending that a formal enquiry was sine qua non before the penalty was imposed. The above decision was rendered overlooking the 'insidious effect' of withholding of increments with cumulative effect, construed by the Apex Court in Kulwant Singh Gill's case and does not lay down the correct law on the point.

 

The judgment of S. Sankarasubban, J. in Sahadevan v. State of Kerala reported in 1997 (2) KLT 150 rendered following 1991 Supp. (1) SCC 504 is clearly right. In the decision in State of Kerala v. Ranganathan reported in 1997 (2) KLT 121, the penalty that was imposed on the respondent was withholding of increment for a period of one year without cumulative effect and a Division Bench of the Honourable High Court did not accept the contention that though the withholding of increment imposed on the respondent was without cumulative effect, it operated in the circumstances as a major penalty resulting in reduction of the last pay drawn by him and affecting marginally his pension. The above Bench decision did not strike a different note on the point.

 

The recent decision in Pushkaran v. State of Kerala reported in 2002 (1) KLT 384 is hit by the ratio of the decision in Kulwant Singh Gill's case to the extent of holding that withholding of two increments with cumulative effect is not a major penalty and that the procedure prescribed in R.17(l)(b) which applies only to imposition of major penalty is inapplicable. The decision of the Apex Court in Kulwant Singh Gill's case was not directly brought to the notice of the Learned Judge and no arguments seem to have been advanced on the basis of the 'insidious effect' of withholding of increment with cumulative effect, based on which the Apex Court concluded that it amounted to a major penalty, imposition of which without enquiry is perse illegal.

 

The article titled 'Comment on 2002 (1) KLT 384' does not appear to have been written after an assiduous research on the case law for, the later decision of the Apex Court and the decisions of the Hon'ble High Court of Kerala distinguishing the decision in Kulwant Singh Gill's case were not referred to or commented upon.

 

The Rules have not been amended or altered in the light of the declaration of law made by the Hon'ble Supreme Court in Kulwant Singh Gill's case even after a decade. The Rules that are found to be retrograde and against developing concepts, necessarily have to undergo swift changes as otherwise, the law would be failing in its task of enforcing the standard of the operative principle of Rule of Law.

 

Fine and Compensation

 

The Law declared by the Supreme Court

 

(By V.K. Sathyavan Nair, Kottayam)

 

No doubt the High Court cannot sit in judgment over what the Supreme Court said. It is also impermissible, as observed in Suganthi v. Jagadeeshan, 2002 (1) KLT 581 (SC), for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. The Apex Court was expressing its disapproval of the course adopted by the Kerala High Court in Rajendran v. Jose (2001 (3) KLT431). In that case the High Court set aside partly an order passed by the Sessions Court directing an accused to undergo simple imprisonment for a period of six months in case of committing default in payment of compensation awarded. The High Court did not follow the observations made in Hari Kishan and State ofHaryana v. Sukhbir Singh, AIR 1988 SC 2127. Now the moot question is what is the law declared by the Supreme Court in Hari Kishan's case. Did the Apex Court interpret S. 431 of the Code of Criminal Procedure and declare the law?

 

Hari Kishan's case

 

One of the points considered by the Supreme Court in Hari Kishan's case is the correctness of the sentence passed by the High Court. The relevant portion of the sentence reads as follows:-

 

"I suspend their sentence under Ss.325/149, 323/149 and S.148 IPC and order that the appellants namely Sukhbir Singh, Dhanpal, Mannu, Sirichand and Ompal be released on probation on their entering into bonds of Rs.3000/- each with one surety in the like amount for a period of one year, to the satisfaction of the trial court, undertaking to appear in the Court to receive the sentence during the said period whenever called upon to do so and in the meantime to keep peace and be of good behaviour. However, each one of the appellant would pay Rs.2,500/- as compensation payable to Joginder, injured. Compensation if not paid within two months, the appellants, namely Sukhbir Singh, Dhanpal, Mannu, Sirichand and Ompal would be called upon to serve their sentence".

 

The expression 'instead of sentencing him' used in the provisions governing release on probation indicates that the order of probation can be passed after conviction, but before awarding the sentence and in substitution of it. If the sentence is once awarded, no order for probation can be passed thereafter. Where an offender is released on probation the imposition of fine is illegal. So the direction to pay compensation to the injured was one of the conditions for release on probation.

 

The Supreme Court upheld the correctness of the order, but enhanced the quantum of compensation and the counsel for the appellants expressed his willingness to pay any amount as determined by the Court. The compensation was enhanced to Rs. 50,000/-. The Supreme Court modified the order only to the extent of compensation and in all other respects the order of the High Court is kept undisturbed.

 

While discussing the question of compensation the Supreme Court has recommended to all the courts that the power to award compensation may be liberally exercised to meet the ends of justice in a better way and to make the criminal justice system meaningful. The Supreme Court has also laid down some guidelines to fix the compensation fairly and reasonably. These observations are contained in paragraphs 10 and 11 of the judgment in Hari Kishan's case. The last sentence in paragraph 11 reads: 'The court may enforce the order by imposing sentence in default'. This passing observation has to be understood with reference to the context and reading the judgment as a whole.

 

Fine and Compensation

 

It cannot be disputed that there is a distinction between fine and compensation. The two concepts have entirely different connotations. Fine is a mode of punishment prescribed under S.53 IPC that can be imposed on the offender on conviction. In some cases it is the only punishment. Sentencing an offender to pay fine is governed by Ss. 63-70 of the Indian Penal Code.

 

Awarding compensation is not a punishment envisaged by Indian Penal Code. Compensation to victim is exclusively governed by Ss.357, 358, 359 and 431 Crl.P.C. Under S.357(1) an order to pay Compensation out of the fine recovered can be passed by the Court.

 

(a)     to the complainant for meeting expenses properly incurred in the prosecution.

 

(b)     to any person who has suffered loss or injury by the offence when he can recover compensation in a civil court.

 

(c)     to a person entitled to recover damages under the Fatal Accidents Act; and

 

(d)     to a bonafide purchaser of property which has become the subject of theft, criminal misappropriation, criminal breach of trust, cheating etc.

 

Sub-s.(3) of S.357 enables the court to order payment of compensation even in cases where substantive sentence of imprisonment only is awarded.

 

Compensation to persons groundlessly arrested

 

S.358 Cr.P.C. provides for compensation to persons groundlessly arrested. It is expressly provided under sub-s.(3) that compensation awarded under S.358 may be recovered as if it were a fine and if it cannot be so recovered the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days.

 

Costs in non-cognizable cases

 

S.359(1) empowers the court to order payment of the entire cost that may have been incurred by the complainant. The said section governs payment of cost in non-cognizable cases. It is also expressly provided under S. 359(1) that in default of payment the accused shall suffer simple imprisonment for thirty days. There is no such default clause in the case of sub-s. (3) of S. 357 where the Court is empowered to order payment of compensation.

 

Warrant for levy of fine

 

S.421 Cr.P.C. applies when the offender is sentenced to pay a fine. Fine should be recovered by distress and sale of both moveable and immovable properties. Generally an offender ought not to be required both to pay the fine and to serve the sentence in default. Some exceptions are given in proviso to sub-s. (1) of S.421 and one such exception is where there is an order for the payment of expenses or compensation out of the fine under S.357. Under S.431 any money other than a fine can be recovered as if it were a fine. Proviso to S. 431 says that an order for payment of costs under S. 359 is also an exception to the general rule that an offender shall not be required to pay the fine and to serve the sentence in default. Even if the offender has undergone the whole of such imprisonment in default, amount may be recovered from him, in the case of an order for the payment of expenses or compensation out of the fine under S. 357 or in the case of an order for payment of costs under S. 359.

 

S.431 Cr.P.C.

 

A close reading of these relevant Sections would indicate clearly that the Code of Criminal Procedure does not envisage imposition of imprisonment in default of payment of compensation ordered under sub-s.(3) of S.357. S.431 regulates the execution of the orders relating to payment of any money other than fine. This is the long standing and consistently affirmed legal position.

 

What is 'the law declared?'

 

Arts.141 and 142 are designedly made comprehensive to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do complete justice. But it is the law declared by the Supreme Court that binds the courts and not judgment. A decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.

 

In the course of judgment the court may advert to various observations not precisely relevant to the issue. The fundamental motion is that the law should result from being applied to live issues and argued on both sides. It is not unlikely that dicta of Judges who are masters of their fields enjoy greater acceptance and prestige than the ratioes of lesser Judges.

 

True that principles of 'obiter', 'per incuriam' and 'distinguishable on facts' which may perhaps apply to the decisions of courts of co-ordinate jurisdiction cannot be applied to a declaration of law made by the Supreme Court and such principles cannot restrict the scope of Art.141. Nonetheless the Apex Court itself has stated that the observations of the Supreme Court should not be read as statutory enactments. No doubt the law declared by the Supreme Court binds courts in India but it has to be remembered that the Supreme Court does not enact (AIR 1965 SC 1887). When a question was never required to be decided an observation thereon cannot be held to declare the law binding on all courts in India (AIR 1961 SC 915). However a passing casual observation is not entitled to same weight as even obiter dictum.

 

'Declared' means made clear or manifest. Interpretation, ascertainment and evaluation are parts of the process of declaration. With the deliberate intention of settling the law the Supreme Court shall pronounce upon the question. Then only the process of declaration is completed.

 

The law declared in Hari Kishan 's case

 

In Hari Kishan's case, the Supreme Court did not consider the scope of S.431 Cr.P.C. That question was never required to be decided in that case. The construction of S.431 Cr.P.C. was not strictly necessary for the disposal of the case. There is not even a reference to S.431 Cr.P.C. The High Court released the accused on probation and one of the conditions was that compensation if not paid within two months the accused would be called upon to serve their sentence. The Supreme Court upheld the order modifying the quantum of compensation and the court had no occasion to consider the interpretation of S.431 Cr.P.C. True that there are some guidelines to quantify the compensation and also a recommendation to the Courts to use the power to award compensation to victims liberally. The Courts are bound to follow them scrupulously. But there is no declaration of law regarding the interpretation and scope of S.431 Cr.P.C. on a reading of the judgment in Hari Kishan's case as a whole it can be seen that the last sentence in paragraph 11 is only a passing casual observation and not a declaration of law that the court can order imprisonment in default of payment of compensation in every case.

 

It is an observation made without adverting to well-accepted principles and the plain and literal interpretation of S.431 Cr.P.C. The clear language of the Section is capable of only one meaning, namely that any money other than fine can be recovered in the manner provided in the Section. It cannot be said that Hari Kishan's case is an authority binding on courts in construing and applying S.431 and allied provisions of Cr.P.C. and ordering imprisonment in default of payment of compensation in all cases.

 

The decision in 2002 (1) KLT 581 (SC)

 

The decision rendered by Supreme Court in Suganthi v. Jagadeeshan has not considered the above material aspects. It seems 2001 (3) KLT 431 is overruled mainly inspired by judicial discipline. It is submitted that the legal proposition that the court may enforce an order to pay compensation by imposing sentence in default as laid down in 2002 (1) KLT 581 (SC) requires reconsideration.

 

Is There Room for an Indian Legal Theory?

 

(By Dr. Werner F. Menski, SOAS, London)

 

The troubling observation that Indian legal reality and Indian legal teaching do not match - and in fact seem to have grown further apart since Independence - has engendered a sense of crisis and sparked off important self-reflections among some law teachers in India. There appears to be an urgent need to be vigilant and radical in developing suitable methodologies for teaching law at Indian law schools. There is definitely a need for critical rethinking of the entire field of legal pedagogics, which has to be comprehensive and deep, otherwise it will remain another token gesture that fizzles out in empty rhetoric.

 

As market leader in the field of legal education in India, the NLSIU has certainly an important role in promoting critical thinking about law itself and methods of legal education, and it has taken up the challenge through internal processes of consultation and deliberation under its inspiring new leader, Professor Mohan Gopal. I share his intense interest in these methodological questions, because at SOAS in London, another market leader in the same field, we pursue comparative legal education and have been engaged in fierce debates over the direction in which our research and teaching should be going. In London, we seem to have divided into 'comparative lawyers' and 'international lawyers', two labels which imply quite different approaches to law and are based on different legal theories.

 

If I was at Cambridge or Nottingham, or even next door at University College in London, my understanding of law would certainly be much more focussed on English law. But at SOAS, in addition to South Asian laws, I have been teaching a course on English Law which concerns the legal position of ethnic minorities in England, especially of South Asians. That course has always been extremely popular, and it has recently taken on a new methodological slant involving detailed pluralist legal analysis. This approach requires critical reflections on the nature of law itself, before studying any legal rules and their application in detail. This method, as well as the substantive subject matters we study together, really excite many students, who at SOAS are expected to study Asian and African laws as well as English law.

 

But teaching law in India is a different matter, isn't it? India is not England or the USA, and never will be, despite modernisation and globalisation. Does this mean, therefore, that legal education and the approach to law in India also have to be different from the methods employed in Europe or North America? Can law just be taught as though it was a universal global phenomenon to be subsumed under 'rule of law' and 'good governance'?

 

The real question is therefore whether we can treat Indian law (because that is what Indian law schools purport to teach) as though it was simply a version of common law. Or do we teach it as Indian law, as an entity in its own right? In either case, what are the implications? Why is Indian law always seen as an inferior cousin in the common law family? Is there no other way to conceive of Indian law? Apart from the link with English law and common law principles, can one teach Indian law as though there was a global vision and an agreed international definition of law, against which the domestic law is then to be measured? We are asking, therefore, whether there is an Indian legal identity and a linked legal theory, seeking to explore what the Indian vision of various understandings of law might be.

 

Most Indian law teachers and lawyers will be tempted to say that law is a universal phenomenon, and there is no need for a specifically Indian legal theory. In fact, 'going back' to indigenous legal theory is often per se seen as an undesirable backward step, which helps to explain the miserable situation of Indian family law teaching. However, if we know that law may be a universal phenomenon, but there is simply no uniform manifestation of law, since law is everywhere culture-specific, why are we steadfastly refusing to adopt such theoretical acceptance of pluralism into our teaching methodologies and practices? Thus, if English law is not the same as French law or German law, let alone Saudi law or Iranian law, we did not need September 11 to remind us of conflicts of laws and world views. However, we do need to be reminded, apparently with more persuasion than hitherto, that there are not just Muslims and Christians in this world, and that the reality of legal pluralism is much more plural than even so-called comparative lawyers generally assume. There is a clear need for radical pluralism, not as a destructive exercise in protest, but as a constructive educational method and as a tool to help lawyers of the next generations understand their various multiple roles and functions. As law teachers, we have a professional obligation to think about such matters, unless we want to be reduced to teaching the mechanics of legal plumbing.

 

It should strike Indians that your country and your legal systems do not figure prominently in debates about law and legal theory. There are a variety of reasons for this, one major focal point at present is offered by the events in and around Ayodhya, as though law and religion were irreconcilable poles.  So the outside world feeds on stereotypical debates that portray India as a background religious country, a place where modern law is threatened by Sannyasi rule, where people just kill each other and the State looks on, a huge but lawless country that does not deserve serious attention from outsiders because it is in a mess and nothing seems to improve. Many Indians have adopted such defeatist attitudes as well; they seem to have given up the will to improve anything, including themselves.

 

Western legal positivists have of course other hegemonic agenda when the) denigrate India. They clearly have no interest in explaining and highlighting the other side of Indian law, your Constitution and its fascinatingly complex interpretations, and your attempts to construct a viable legal system for over a billion people out of suitable fragments from many constitutions of the world. Seen from this perspective, England is just like Bihar, a fairly small place with lots of unresolved legal problems. While the challenges for Indian law are manifestly much larger than for other legal systems, the simplistic assumption that Western laws somehow function well, and Indian laws do not, need to be challenged and analysed afresh. So far, only rather superficial work has been done on such issues. Thus, Upendra Baxi has talked about the massification phenomenon, but there is simply no proper analysis as yet of what this should mean for Indian law and for the training of future lawyers.

 

In view of the above, then, is there a need and some conceptual room for an Indian legal theory? To explore this question further, it is imperative to go back to the basics of what we mean by law. Law is what lawyers teach, study and practise, isn't it? Of course, that is hardly a serious definition or a suitable basis for a global legal theory. Since law can be described as a universal phenomenon that appears in many different manifestations, the first difficult question is where we draw the line between law and other phenomena. Can and should religious rules be treated as law? Is custom law? So we are always thrown back to the most basic definitional issues about our understanding of law itself to construct any particular legal theory. All these are ancient, familiar questions, but we continue to struggle with them.

 

So let us take a fresh look at existing legal theory in the light of our project. Legal theory seems to be a most complex field, with many big names and complicated, intricate reasonings that students struggle to remember in exams of the wrong kind. However, it can actually be reduced to some basic legal principles of universal validity, which appear thereafter in many different combinations and permutations. It is a fact that there are really only three basic sources of law, namely the State, society and religion, and not by coincidence they are matched by only three major basic theories of law. Historically they appear as natural law, legal positivism and the historical/sociological school of jurisprudence.

 

Since law as it manifests itself in reality is based on a variety of sources in different combinations, it is only natural and logical that we should require composite theoretical approaches to understanding law itself as well as any one legal system. For Indian legal theory, this means that law is never just State law, or just religious law, or only local customs and norms, it always appears as an intricate combination of different manifestations of law. But do we have an Indian legal methodology to match this culture-specific pluralistic intricacy? The answer is negative, for reasons that we know only too well. Indian legal education is still mired in doctrinal, largely colonial, black letter modes, and so is Indian legal research and writing. Modernity, and especially legal modernity, had the effect of further privileging legal positivism, as seen in the law and development debates.

 

Globalisation continues those state-centered hegemonic agenda and has now transposed positivism into a global force with powerful claims, for the alleged good of human civilisation, as evidenced by lots of pious talk about international human rights and basic norms that should be obeyed by all. However, because there is not one understanding of globalisation, but there are in fact competing processes of different culture-specific globalisations, as Patrick Glenn (2000) has emphasised in an excellent, helpful study on legal theory, global conflict is the inevitable result. So we are again beginning to see wars fought over ultimate control of the world, when it should be more than clear that such uniformising ambitions have always been doomed to failure, because social realities will never fall completely in line with top-down prescriptions of some powerful law-making body. While this is a bitter pill to swallow for most Western lawyers, given the way they have been indoctrinated about the power of law, Muslim claims to ultimate world rule suffer a rather similar fate, engendering caged disbelief rather than openly expressed reservations about the feasibility of universal Muslim rule. It must be highlighted that all this modernist discourse in its various manifestations is busily trying to hide the critical fact that laws and those who make them cannot ultimately control the world, not because of religion, but because of the nature of humanity.

 

Postmodernity and its many facets offer the potential to recognise that law by itself does not have the ability to regulate everything. Even in a phrase such as this, we use the word 'law' simply in its positivist sense. Otherwise it is a fact that laws, everywhere, appear to regulate everything under the sun, but are these laws necessarily made by the State? So what we recognise in postmodern approaches is not only that law has limits, but that law is much more than State law. Once we recognise in principle that the ambit and realm of law extends far beyond State law, we move away from positivism and end up questioning the traditional modernist critique of law as inefficient and ineffective. We become ready to see and analyse how the law works in its plural social reality. Having recognised that this manifest socio-legal reality is not what we teach about in law schools, we have opened a window to deeper reflections about new methodologies of Indian law teaching.

 

How will this work in reality? Postmodern legal theory, it seems to me, has to be based on socio-legal analysis rather than positivism or pure natural law theories, because both are too idealistic and tend to ignore the pressures of social reality. Understanding legal pluralism is not a question of either/or, but a matter of combination of different theoretical approaches to capture a complex phenomenon. Having gone that far, we therefore become prepared to recognise that the State is only one agent in the production of law, that positivism by itself is not sufficient.

 

Law teachers are, in theory, familiar with such arguments and will readily accept the constitutional argument that guaranteeing a right to life in a Constitution may remain a pure

some impressive arguments about the limits of law, which are simply not coming from English or European laws. These arguments are not liked by most Western lawyers because they question and challenge comfortable positivist axioms. The result is that Indian legal developments and Indian legal thinking are given very little credit abroad. All we want to hear in the West is how inefficient and deficient Indian law is, we do not want to be reminded of the limits of law itself, nor of the specific achievements of Indian law.

 

In my recent theoretical work (Menski 2001), I have tried to outline how a pluralist legal approach works in the postmodern context. But many lawyers insist that legal pluralism is not a good theoretical foundation for legal studies. For example, Brian Tamanaha (1993) pokes fun at the folly of a concept of legal pluralism which declares everything non-legal as legal. The hidden agenda here appears to be preservation of the cabbage patch of legal positivism. Assertions that law can be neatly identified as a separate force in social reality really just promote the claims of legal positivism as the central pillar of all legal theory.

 

I am not at all convinced that this is the right approach to legal study. I have been impressed by the writings of Masaji Chiba from Japan (1986; 1989) and his theoritical model of the 'three-level structure' of law. Without explicitly saying this, Chiba takes account of the complexity and interaction of different sources of law, namely the State, society and religion, thus combining in his theory the strands of positivism, natural law theory and socio-legal approaches. We cannot do better than that. Here is a theoritical model of global validity, encapsulated in Chiba's three interacting elements of official law, unofficial law and 'legal postulates.'

 

An important aspect of Chiba's theory is his critique of the Western claim to univeu lity. He clearly says that law is everywhere culture-specific, so English law is specifically English, while Japanese law, even if you translate it into English, remains Japanese. This means, then, that any form of Western law could never be the sole basis of all other countries' legal systems. So much for the favourite topic of some so-called comparative lawyers, the themes of 'migration of laws' and 'reception' of colonial laws, which are no more than bluntly positivistic assertions of the claimed role of the State in dictating rules to its subjects. These are colonial hangovers, from which also the Indian legal education system is suffering.

 

What implications does all this fussing over different theories have for Indian legal theory and for law teaching in India today and in the future? I have already said that Indian lawyers and law teachers have remained too focused on doctrinal black-letter approaches and now realise that they are themselves a central part of a deep crisis. Since Indian lawyers remain so strongly fixated on State law as the dominant element, while social reality is manifestly different, what is the way out? It is evident that their own legal training has not prepared them for facing this reality. We cannot expect, let alone demand, that law teachers should be retrained in subjects like antropology, since the various social sciences themselves are so deeply infused with positivist assumptions about law and its functioning. It is even a struggle to begin to think about where to begin. I do not have an easy answer either, but recommend that jurisprudence courses should be reworked to take specific account of postmodern legal pluralism theories. It is certainly important that jurisprudence is taught as early as possible during a student's legal education. Our experience from SOAS, where the very first question to new students is pointedly about the nature of 'law' itself, offers some useful pointers. Reflections about the nature of the thing cannot be introduced years after doctrinal legal education has done the damage we are now seeking to remedy. The fact remains that there is massive myopia when it comes to understanding legal reality and to discussing it in our classrooms.

 

I do not see much constructive effort in India to remedy such major omissions. Most Indian law teachers are simply too positivism-obsessed to offer their students anything else than text book wisdoms, not challenging them in the process to think for themselves and to digest what they see happening every day in front of their own eyes. Instead of deep thinking about legal theory, we get shallow politicised constructions about hindutva and Muslim fundamentalism. The systematic distortion of representations of the Indian legal field pleases the West no end, and now brings ample rewards for those law teachers who go a small step further and advocate replacing anything Indian with international norms. One could not go further than this in discarding one's own identity and disowning in the process everything that Indian law stands for in all its plurality.

 

Being ashamed of Indian law in international comparison has the further effect that many legal scholars try to argue that culture, Indian culture of course, is backward and irrelevant, and so is religion. Refusing to treat and discuss culture and religion as law-founding forces, Indian legal scholarship vainly attempts to focus only on positivist law-making processes, but has argu^ ' self into a deepening crisis of identity. Recognition that social reality is different from legal doctrine, and that the two do not match in daily life, is absolutely necessary, not only to rescue the floating benefits for lawyers as professionals (which might swim away if lawyers, in turn, do not learn to adjust to the new plural realities) but to bring about a more focused understanding of postmodern Indian laws.

 

Indian legal theory has to take explicit account of plural legal realities. It is amazing that various arguments about abolition of the personal law system are still being floated by Indian scholars today, when in virtually all Western jurisdictions the new pluralistic pressures of international migration operate towards greater recognition of ethnic plurality and more or less formal recognition of various ethnic minority rules and norms - or should we call them laws? It is evident that Indian legal scholarship has largely remained wedded to colonial models of thinking and analysis, despite what Krishna Iyer and others have told us since the late 1970s. Sudhir Chandra's Enslaved daughters (1998) confirms the colonial claim to universality and a fundamental suspicion among lawyers and administrators about human agency, in other words, an underlying hostility to accept socio-legal approaches. Under colonialism, uniformity became an axiomatic value, and hence we have all those debates about a Uniform Civil Code, while in England, for example, angrezi sliariat and angrezi dharma demand more and more official attention.

 

Those who propound adherence to international norms seem to overemphasise natural law approaches, supported by legal positivism, but still ignore other potentiai legal inputs,

namely the role of local societies and of individuals. In my view, this universalising pressure is based on totally misguided assumptions and a deficient methodology. Since proponents of international law more or less openly despise Indians and the Indian legal system, they see no value in thinking about any form of Indian legal theory. India, in common with Africa, China and many other places, has nothing to contribute to civilisation or to legal theory. The view is that Indians should modernise as fast as possible and should get over religious and cultural traditions to become world citizens. In such a climate, there is simply no room for Indian legal theory, but let me assure you that it exists and that those in charge of the Indian nation have been much more intelligent than outsiders (and many Indians) want to accept. There are indeed many problems in Indian law, and in India, but we must not forget that law is nowhere a perfect mechanism of control, and problems exist in all legal systems - only we may not hear about them, as news filters quite selectively. In other words, my observation is that Indian legal scholors seem too overwhelmed with the specific problems of India, and at the same time too impressed with foreign models.

 

It was not the aim of the present paper to outline what an Indian legal theory would involve. In a forthcoming book, Hindu law, between tradition and modernity, I demonstrate that talking about Hindu concepts as a dominant force in Indian laws is not the same as indulging in hindutva politics, but is a model exercise in developing postmodern understanding of the complexity and culture-specificity of all legal systems in the world. If we want to construct a culture-specific theory of Indian law - and the conceptual underpinnings of legal pluralism in line with Chiba's model suggest that this is feasible and highly desirable for all jurisdictions - Indian law teachers will have to deal with legal history and socio-legal issues, as well as with Hindu and Muslim laws, and much else, as integral elements of the legal subjects they are teaching. As long as law teachers anywhere refuse to recognize the complex nature of law and of legal realities, they will indeed nor be able to fully educate the next generation about the law they purport to teach. It is time to move away from much of the present narrow-minded and often ideologically motivated law teaching towards a broadening of approaches in the understanding and analysis of law. Thus, let the door be opened for discussions of the specifically Indian nature of Indian laws.

 

References;

 

Chandra, Sudhir (1998): Enslaved daughters. Colonialism, law and women's rights.

Delhi et al.: Oxford University Press,

Chiba, Msasaji (ed.) (1986): Asian indigenous law, in interaction with received law.

London and New York : KPI

Chiba, Masaji (1989): Legal pluralism: Towards a general theory through Japanese legal culture.

Tokyo: Tokdi University Press

Glenn. Patrick (2000): Legal traditions of the world  Oxford et a!.: OUP.

Menski, Werner F, (2000): Comparative /era in a global context: The legal systems of Asia and

Africa. London: Platinium.

Tamanaha, Brian (1993): 'The folly of the 'social scientific' concept of legal pluralism'.

In VoI. 20 No. 2 (Summer) Journal of Law and Society, pp. 192-217.

 

The Choice of Law Rule in Matrimonial Reliefs Issues

Involving Private International Law

 

(By Sathyashree Priya, Advocate, High Court of Kerala)

 

Marriage is a commitment involving two individuals and the incidence of marriage is often complex involving various legal issues. According to some personal laws marriage is a 'sacrament' while others deem it as a contract. Whatever be its nature, the issues involved are multifarious since marriage confers a special 'status' upon the individuals concerned. Sometimes marriage results in change of domicile as well.

 

The preliminary issue involved in a marriage is regarding the capacity of the parties to enter into a marriage. The 'capacity to marry' varies with the legal norms as laid out by various countries and also according to the personal laws. All legal impediments to a marriage such as lack of age, prohibited degrees of consanguinity and affinity, previous marriage, physical incapacity etc. etc. are questions of 'essential validity* for the performance of a valid marriage.

 

Foreign Marriage Act (1969):

 

Let us, for a moment presume that a marriage is contracted between two Indian Citizens. Then they are governed either by their Personal Laws or under the Special Marriage Act under which they many. If one of the parties to the intended marriage is a foreigner then complexity arises. If such marriage is performed in India, then also the parties will be governed by the 'Special Marriage Act' or the personal laws of the parties under which they choose to marry. The Special Marriage Act does not impose any restriction on the parties to a marriage based on their nationality1. However the personal laws do impose certain restriction upon the parties to a marriage. These restrictions are not based on nationality but are purely based on religion. For example, a marriage between a foreigner following Christian faith and Indian citizen following Hindu faith cannot be solemnized under Hindu Marriage Act.2 Whereas under the Christian Marriage Act 1872 if one of the parties to a marriage is a Christian by faith then the marriage can be registered under the Indian Christian Marriage Act.3 Thus, the safest recourse for the parties to a proposed marriage of one of whom is a foreigner, is to get the Marriage solemnized under the Special Marriage Act under which the parties can contract a valid marriage irrespective of their nationalities or religion. There is no prohibition under the Special Marriage Act, 1954 read with Foreign Marriage Act, 1969 of a marriage between an Indian with a foreign national.4

 

"The Foreign Marriage Act, 19695 is primarily to provide for solemnization of marriages abroad between citizens of India or where the parties to a marriage is an Indian citizen. S.4 of the said Act imposes the following conditions for solemnization of foreign marriages:

 

(a)    neither party to the marriage should have a spouse living

 

(b)   neither party is an idiot or a lunatic

 

(c)   the bridegroom should have completed the age of twenty-one and the bride the age of eighteen at the time of the marriage, and

 

(d)   the parties should not be within the degree of prohibited relationship provided the custom of either one of the parties permit it.

 

The said Act provides for an enabling form of marriage more or less on the same lines as the Special Marriage Act which can be availed outside India, where one of the parties to the marriage is an Indian citizen6. Marriages can be registered under the said Act, provided the parties have the capacity to marry under S.4 of the Act quoted supra. The form of marriage thus provided is in addition to any other forms that may be permissible to the parties. Also, S.18 7 of the said Act provides for matrimonial relieves in respect of foreign marriages. It is pertinent to note here that for any marriage solemnized in a foreign country8 to which a citizen of India is a party whether registered under the Foreign Marriage Act or not, the provisions of the Special Marriage Act is applicable with regard to matrimonial relieves. Where a marriage solemnized under the British Marriage Act (1948) between a Hindu wife in 1966 the marriage was deemed to be governed by the Special Marriage Act (1954) and not by the personal law of the husband i.e. Muslim law. Husband cannot put an end to the marriage by pronouncing Talaq9.

 

A Critical Analysis of the Act:

 

A closer look at CI.(a) of S.4 of the Act clearly prohibits potentially polygamous marriages which means that a Muslim of any other nationality is prohibited from contracting a second marriage with an Indian citizen eventhough his personal law permits such a marriage! He/she may be punished for bigamy which is specifically provided for under S.19 of the Act 10 . While, certain countries like France permit the performance of marriage between individuals though under the age prescribed in S.4(c) of the Act, provided a parental consent is obtained. But, according to the Indian Act a French lady below the age of 18 years is prohibited from contracting a valid marriage with an Indian even if she had obtained the parental consent according to French law.

 

Also, the 'Prohibited Degree of Relationship' varies with countries and religious beliefs. Jurists often differ in deciding which law should govern the capacity to marry. While some favour the 'dual domicile' theory11. Some others favour the theory of 'intended matrimonial home' 12.

 

As far as the parties to the marriage wish to keep the marriage intact problems do not arise. However, when there is a martial discord and proceedings for divorce are initiated in a court of law then complexities arise. Though extra-judicial divorces are allowed under certain religious laws (for eg. under Islamic and Jewish laws) in India the tendency is to recognize divorces validly pronounced by a court of law.

 

The first problem for the parties to the dispute would be the choice of Forum 'Lex Fori' to initiate Legal Proceedings for Divorce. Laws relating to divorce varies between countries and in some countries the procedure is very minimal and more convenient. But the problem arises only when recognition has to be granted to such divorce decrees!

 

Normally, in Private International Law two theories are put forward regarding the laws that govern the Matrimonial Proceedings

 

(1)   Lex domicilii13

 

(2)   Lex loci celebrationis14

 

If a marriage is performed in a foreign country, it may be refused to be registered under the Foreign Marriage Act if it is in contravention of the local laws15. The Foreign Marriage Act provides for recognition in India of marriages solemnized under a law in force outside India, if that law provides for recognition of marriages solemnized under Indian law16.

 

The position is not yet settled in the sphere of Private International Law as to which theory is to be applied in problems of such nature.

 

Jurisdiction

 

Whenever a matrimonial proceeding is initiated in a court of law the initial issue would be of 'jurisdiction' and subsequently the case will be decided on merits. S.18(2) of the Foreign Marriage Act provides that every petition seeking matrimonial relief for marriages performed under this Act shall be presented to the District Court within the local limits of whose ordinary civil jurisdiction the respondent is residing at the time of the presentation of the petition or the husband and wife last resided together or the petitioner is residing at the time of presentation of the petition, provided that the respondent is at that time residing outside India. Thus to invoke jurisdiction, either one of the parties to a case must be a national of the state or ordinarily residing in the place where the case is filed or the parties must have intended to domicile there together i.e. to establish their matrimonial home in that country concerned (lex domicilii) or the marriage must have been performed in the soil of the country where the case is filed (lex loci celebrationis).

 

Two elements are necessary for the existence of domicile,

 

(i) a residence of a particular kind

 

(ii) an intention of a particular kind

 

The residence need not be continuous but it must be indefinite, not purely fleeing. The intention must be a permanent one to reside forever in the country where the residence has been taken up. Mere residence in a place is not sufficient to constitute domicile. It must be accompanied by the intention to make it his permanent home. Thus, there must be both the 'factum' and 'animus' to constitute the existence of domicile. The grounds on which Indian courts assume jurisdiction in 'nullity' proceedings are the same on which they entertain petitions for divorce i.e. mainly based on residence. However a petitioner may not lose his right to sue merely on the basis of temporary change of residence17. Continuous residence for three years immediately preceeding presentation of petition is not necessary. It is enough if the petitioner had resided in India for three years prior to presentation of petition18 . Where the respondent was residing outside India at the time of commencement of the proceedings, the court within whose territorial jurisdiction the petitioner was residing at the relevant time would have jurisdiction to entertain the proceeding and foreign nationality of a respondent, by itself, cannot prevent an Indian court from proceeding against such foreign national,19.

 

Thus, applying the above principles, once the issue of jurisdiction is settled, the court proceeds to hear the matter on merits of the case. The court may pronounce a marriage void, or it may render it voidable. When it is found that the parties to a marriage had no capacity to marry the marriage is declared void. But the capacity to marry is often a very complex question and differs from country to country and also is different in different personal laws.

 

Available Remedies

 

Once a matrimonial dispute is filed in a foreign court of whom at least one of the parties is an Indian, or the marriage had been celebrated in Indian soil the following remedies can be availed by the parties to the dispute.

 

Stay of Action under Indian Law

 

In the case of simultaneous proceedings in a foreign court, the explanation to S.10 of the Civil Procedure Code provides,

 

"The Pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action."

 

This explanation does not empower the Indian court to grant a stay of proceedings; it only lays down that the Indian courts can proceed with a suit although a foreign proceeding is pending with regard to the same cause of action.

 

In granting stay of action the Indian Courts would be guided by the principles enunciated in English cases. This jurisdiction, as in the case of jurisdiction exercised by English courts is discretionary and will be exercised with extreme caution.

 

The Indian courts have granted stay of actions pending Foreign Proceedings under the inherent jurisdiction by virtue of S.151 of the Code of Civil Procedure. The above Procedure can be invoked if a case is pending in a Foreign Court where the dispute involves Indian Nationals or where the marriage between the parties had been celebrated here. The choice of law rule will depend upon some 'connecting factor' such as domicile, place of celebration of marriage etc. for the Indian courts to exercise jurisdiction and for the parties to a dispute to choose a forum (lex fori).

 

Recognition and Enforcement

 

Once the case is heard and the judgment pronounced the next difficulty that arises is in the recognition and enforceability of such judgments. Indian courts are competent not to enforce a foreign judgment20, if it is not given on merits. According to S.13 of the Civil Procedure Code. The following defences are available against the enforcement of a foreign judgment in India.

 

(i)    That the judgment has not been pronounced by a court of competent jurisdiction.

 

(ii)   That it has not been on the merits of the case.

 

(iii) That it appears on the face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognize the law of India in cases where it is applicable.

 

(iv) That the proceedings in which it was obtained are opposed to natural justice

 

(v)   That it has been obtained by fraud

 

(vi) That it sustains a claim founded on a breach of any law in force in India.

 

Except in certain specified cases (Ss.44 and 44A of the CPC) foreign judgment cannot be enforced by direct execution in India. It can be enforced only by the institution of a suit upon the judgment, as in England.

 

Under S.44A decrees of the superior courts of the United Kingdom and other foreign countries with which India has reciprocal arrangements are enforceable in India as if they are decrees of Indian Courts. The foreign countries with which India has reciprocal arrangements for direct execution of decrees is called reciprocating territory. Foreign decrees can be directly executed under S.44A only in District Courts.

 

The defences to S.13 is available only when a case has not been heard on merits for it is a settled principle that foreign judgments cannot be re-opened on merits.

 

Marriage conferring Citizenship

 

As stated above the incidence of marriage is multifarious. It can confer citizenship alter the domicile and so on and so forth. As per S.5 of the Indian Citizenship Act 'Persons who are, or have been, married to citizens of India and are ordinarily resident in India and have been so resident for five years immediately before making an application for registration' can apply for citizenship by registration.

 

Thus an Indian Citizenship can be acquired by a foreigner married to an Indian citizen if the conditions cited supra are fulfilled, (either it be a male or female).

 

Though there is no gender discrimination in the Indian Citizenship Act, the Indian Succession Act is still outmoded. Ss.15 and 16 of the Indian Succession Act are based upon the old English rule. S.15 provides that "by marriage a woman acquires the domicile of her husband if she had not the same domicile before". Also S.16 lays down that "a wife's domicile during her marriage follows the domicile of her husband." But the Indian rule in S.16 is subject to two exceptions where the wife can acquire her own domicile.

 

They are

 

(1)  where the wife is living separate under a decree of a competent court and

 

(2) where the husband is undergoing a sentence of transportation.

 

This old English law rule is outmoded and has been abolished in England by the Domicil and Matrimonial Proceedings Act (1973). Also these provisions of the Indian Succession Act are contrary to the 'Convention on the Nationality of Married Women' (1957). It is high time that the Legislature strikes down such provisions of the statute as unconstitutional as contrary to the 'Equality Clause' guaranteed by our Constitution.

______________________________________________________________________

 

Foot Note:

 

1. Section 4 of the Special Marriage Act.

 

 2. Section 5 of the Hindu Marriage Act.  

            

3. Section 4 of the Indian Christian Act.

 

4. (1992) 24 Delhi Rep. J. 294.

 

5. The Act is modeled on the English and Australian legislations on the subject of Foreign marriages and is modified to suit the peculiar situations prevailing in our country as Foreign marriages are governed by principles of Private International law which are by no means well settled.

 

6. AIR 1994 Bom.120.

 

7. Sub-clause (1) of the Section 18 applies the provisions of Chapter IV to VII of the Special marriage Act so as to –

 

(i)    define the consequences of a marriage under the Act.

 

(ii) Provide for matrimonial relief.

 

 Read with sub-clause (4), it covers also foreign marriages under other laws for which matrimonial relief is not available in India under any other law. Sub-clause (2) is intended to define the District Court which will have jurisdiction for granting relief and sub-clause (3) embodied the recognized principles of private international law as to jurisdiction of Indian Courts to grant matrimonial relief.

 

While providing for matrimonial relief in respect of foreign marriage under other laws, has been taken to ensure that –

 

(a)    the validity of such marriages is not affected by the provisions of the Act; and

 

(b)   even where such marriage is registered under this law, its validity is not affected by the said provisions, the only relief available in such a case being cancellation of registration.

 

8. Foreign Country :- means a country or place outside India, and includes a ship which is for the time being in the territorial waters of such a country or place (as defined in the Act).

 

9. AIR 1982 Bom. 341(DB).

 

10. This follows Section 44 of the Special Marriage Act and in its application to a second

marriage taking place outside India, it is confined to citizens of India, following the principle

underline Section 4 of the Indian Penal Code.

 

11. This is the traditional and still prevalent view - According to this doctrine, a marriage is invalid unless according to the law of domicile of both contracting parties at the time of the marriage they each have the capacity to contract that particular marriage.

 

12. The basic presumption is that the capacity to marry is governed by the law of the husband's domicile at the time of marriage. This theory is outmoded. According to the current theory the capacity to marry is governed by the law of the country where the parties at the time of marriage intended and did actually establish their matrimonial home.

 

13. Law of the country is which the parties are domiciled at the time of marriage and in which the matrimonial residence is contemplated law of the place where the marriage was celebrated. The maxim is Locus Regii Actum i.e. the place governs the act.

 

14. Law of the place where the marriage was celebrated. The maxim is Locus Regii Actum i.e., the place governs the act.

 

15. Section 11 of the Foreign Marriage Act is indented to ensure that marriage prohibited by any law inforce in the foreign country or marriages appearing to be in contravention of international law or the comity of nations are not solemnized under the Act so that marriages solemnized thereunder have a high degree international validity.

 

16. Section 23 of the Act provides for recognition in India of marriages solemnized under a law in force outside India, if that law provides for recognition of marriages solemnized under Indian law and is based upon a similar provision in Australian Marriage (Overseas) Act, 1955.

 

17. 1980 KLT 530.

 

18. AIR 1993 Bom. 110 (DB).

 

19. (1990) 1 Cal.HN (HC).

 

20. Smt. Satya v. Teja Singh, AIR 1975 SC 105-A Hindu wife filed a petition for maintenance under the old section 488 of the Cr. P.C. against her husband. The husband contested the petition on the ground that the marriage had been validly dissolved by a court in Nevada where he was domiciled at the time of the decree of divorce. The Punjab High Court held the husband had acquired a domicile of choice at Nevada and since the divorce was given by the court of the husband's domicile, it would be recognized in India. The judgment was reversed by the Supreme Court on the factual finding that the husband did not acquire a domicile of choice in Nevada.

 

Title Without Title Deed

 

(By Gigi P. V., Advocate, Kotlayam)

 

Mortgage by depositing the title deed as security in notified areas is a common practice adopted in granting loans. This is a very simple and convenient form of creating mortgage. Unfortunately the decree holders of a partition deed are practically deprived of this facility due to the lapses in the existing law and procedure related to the issuance of the final decree.

 

S.237(1) of the Kerala Civil Rules of Practice states that "Decrees to be engrossed on stamp paper:- The decree in a partition deed shall be prepared on non-judicial stamp paper for requisite value and shall be retained by the court and shall form part of the record and copies of the same shall be furnished to the parties in case of other decrees". Here law provides the litigants the certified copies of the final decree, which is the only document to prove their title to the property. Usually the loan applications which relies on certified copies of the final decree as the title deeds are rejected on the ground that the certified copies cannot be treated as title deeds.

 

The Banks are of the view that any number of the certified copies can be obtained by the concerned parties and such certificates cannot be relied on. A person with intention to cheat the bank can create any number of mortgages by depositing the certified copies of the final decree to several banks at a time. Moreover the equitable mortgage by depositing the title deeds needs no registration. Hence a prior mortgage by the same party by depositing another certified copy may not be found out on the examination of the certificate of encumbrance. Naturally such loan amounts issued by several banks at a time may exceed the actual market value of the mortgaged property and the banks are unable to realise the debts on non-repayment. Moreover in Syndicate Bank v. Modern Tiles and Clay Works (1980 KLT 550) it is held that "A copy is not a document of title and its deposit cannot be an equitable title. It is only an evidence of title". Thus the apprehension of the Bank is justifiable.

 

In order to find a solution to this situation two methods can be adopted. First one is that issue duplicates of the final decree on stamp paper to the parties. The second is, make an endorsement over the certified copies of the final decree that the copy shall be considered as original and such copy with such endorsement shall not be issued to the parties subsequently.

 

To meet the end of justice necessary provisions of the procedural law should be amended. Otherwise the unfortunate litigants of a partition suit may be deprived of getting financial assistance from the Banks and it may affect their right to enjoy the property. It may cause enormous hardship to the parties and initiation should be taken to redress their grievances.