Man's  Relentless  Pursuit  of  Happiness

(By V.K. Babu Prakash, Judge, M.A.C.T., Thalassery)

Now a days, mind is wandering into spiritual thoughts. Perhaps, illness of the body might have led into it. There was an egoistic youth time which made the mind to the proposition that everything can be questioned and answered with the help of sheer logic. Now, when the garb of youth has withered, the logical strength of youth has also waned. During the cocoon time to regain body health, two books were read with much relish. One was SriM’s ‘Jewel in the lotus’ and the other Ramachandra Guha’s latest one ‘A corner in a foreign field’. SriM’s book tells about what is Hinduism with its vast, ancient literature and deep metaphysics like the lotus that grows in water, whose leaves and petals remain dry, the spiritual seeker derives nourishment from the material world, but remains undefiled and untouched by its seductions. In this way, one who wishes to lead a spiritual life can simultaneously perform the role of a responsible member of society without compromising his spiritual searching, SriM tells in a most attractive format in the book. Ramachandra Guha’s book is the Indian history of the British Sport Cricket which came to India as a British pastime and later dominated the native in a gripping manner. It is a pioneering work, essentially for any one interested in either of those vast themes, Cricket and India. A corner of a foreign field is also a beautifully written meditation on the ramification of sport in society at large.

Man is the highest living being on the earth among the species that evolved in the process of natural selection. The word ‘intelligent’ is used upon the mankind only. The world across, mankind is savagely aiming at to becoming developed in all spheres. India is also on its hooves to leap forward to achieving mega development. When African countries and its women and children are crushing in poverty, illness, malnourisment and all sorts of maladies, it really is an irony, that developed countries are stealthily flaunting their economic pomp and posh, lavishness and ostentation-like an impatient horse which wanted to runoff far, India is also turning and twisting on its tether to attain unbridled material development. But the big question is, will physical and material development bring the mankind internal happiness and contentment? Is he in inner equilibrium with the material achievement? Are we not losing humanity and humaneness in its true sense? When all is checked on the basis of material wealth and development, we tend to annex the Nature by doing atrocious developmental activities on it in a mindless callous manner. Will it render us good or bad in the ultimate? Is the nature and its environment only for mankind, the highest evolved species and its sustenance? The scientific community of the world around, began to think about it skeptically. Do not the other species like animals, birds, insects, reptiles, plants and vegetations have rights to live on this earth other than mankind? Does not the wild life and its bio diversity have relevance at all? By cutting and felling the trees and forest, handing over the earth to the industrial and commercial world to bring up huge concrete forest in the form of mammoth flats, townships and industrial parks instead, will the mankind be able to find solution to the eternal problem of his life? Will our next generation in the near future have to look at the Google map and Internet to see and understand what really is nature and its bio diversity?

Dinosaur ruled the earth with its unmatched might for about fifteen million years. That species did not become extinct due to any behavioral fault of its own. One huge meteor hit the earth and due to its impact the atmosphere became crude and thick which led to the gradual extinction of Dinosaur. Ants, honey bees and cockroaches have come to the earth much prior to the evolution of mankind crores and crores of years ago. Mankind evolved about twenty orso million years ago only. The modern man has been evolved about two to ten million years only. But to be sure, within this period, how much had he been able to destroy the Nature and its environment? Not satisfied with it, he has even started to destroy the beautiful habitat of earth and its supply source of Oxygen. It is a paradox that the other species are not destroying the Nature like the mankind. On the other hand, they are living in accordance with the rules of Nature. Man alone is acting against the Nature and its rules and trying to impose his own society and rules of law on it. Look around, what one sees is a modern man with material wealth, arrogant, brash and egoistic, but with a face that is not happy, blissful and contented but greedy and disgustful. Life has become a competition between one man and man. Even the sacrament of marriage between a man and woman has become an extravagant event filled with melodrama, wealth exhibition and distribution. After marriage, man and woman struggle to compete with each other to satiate their egoistic needs. Look at the house constructed by one. Every man strives to construct a house which should be an item of envy to others. As Emerson lamented,

“House is a hearth where one lives to become happy,

not mere a structure, made of wood and mortar alone”

Modern man constructs his house as a concrete giant not to make it a hearth, but to exhibit one’s social status before others.

Whether mankind is able to achieve salvation and happiness in the material giant alter world which he built in the Natural world? Is material wealth and its accumulation, his ultimate aim and essence?  When the society loses its core ethos and moral values, can mankind embrace the outer shell for escape? Too many questions and too little answers! The question gazes every mankind like a riddle wrapped in a mystery inside an enigma. May be, mankind would be the only species which would become extinct in the future due to its own behavioral default and intellectual pride. William Shakesphere’s words in Macbeth are more prophetic about the plight of modern man.

“Tomorrow and tomorrow and tomorrow

Creeps in the petty pace from day to day

of the last syllable of recorded time.

And all our yesterdays have lighted fools

The way to dusty death.

Out, out brief candle

Life’s but a walking shadow

a poor player.

That struts and frets

his hour upon the stage.

And then is heard no more

it is a tale

told by an idiot

full of sound and fury

signifying nothing”.

Rights  and  Fundamental  Rights  for  Animals

(By Dr. E.R. Jayaram, Associate Professor, Co-operative School of Law, Thodupuzha &

Albin Anto, Ist Year BB.A LL.B. Student, Co-operative School of Law)

In Animal Welfare Board v. Nagaraja1 the division bench2 of the Supreme Court held that Jallikattu (Jallikkettu is traditional sports in Tamil Nadu involving confining of bulls)3 was violative of several provisions of The Prevention of Cruelty to Animals Act, 1960. Therefore the court held that Tamil Nadu Regulation of Jallikattu (TNRJ) Act, 2009, which allowed Jallikattu, as invalid. The P.C.A. Act, 1960 is a Central Act in the concurrent field and the Ministry of Environment & Forests (MoEF) notification dated 11.7.2011 had also banned the bulls as performing animals. So the Tamil Nadu Act became repugnant to Central legislation. This was also made a ground for invalidating Tamil Nadu Act.

In the reasoning for the above decision, the judgment elaborately discuses “the rights of animals in India”. It refers to the protection to animals in international environmental law and the laws of some countries. It also refers to Indian cultural tradition which forbids cruelty to animals. And also to Article 51 A (g) of the Fundamental Duties in the Constitution of India, “to protect and to improve natural environment including forest, lakes, rivers and wild life and to have compassion for living creatures”. This provision is noted as the Magna Carta of “animal rights” and it is observed that there is need to raise statutory rights under sections 3 and 11 of P.C.A. Act to be elevated to the status of fundamental rights. The judgement ends with a series of directions to the Animal Welfare Board of India and the government for the better protection of the animals guaranteed under the P.C.A. Act. Direction 9 says “Parliament, it is expected, would elevate rights of animal to that of constitutional right, as done by many of the countries around the world, so as to protect their dignity and honour”.

For deciding the issue before the Supreme Court, namely, the validity of the Tamil Nadu Act, a very clear legal ground, namely, the invalidity of a State Act being repugnant to the Union Law, was available and was relied upon by the Supreme Court. It seems to be generally accepted principle that judiciary will not decide what is more than necessary for the disposal of the case before it. However if the Court chooses, in its wisdom, to rely on additional grounds they cannot be found fault with; for, in due course, it may help the future development of the law.

In the article “Animal Rights and Compassion for Other Living Beings: Growing Dimensions of Right to Life Concept Under the Constitution,” P. Leelakrishnan4, Emeritus Fellow, Cochin University of Science and Technology, commenting on the Supreme Court’s decision, notes that the decision is in keeping with the developments of international environmental law, where there has been a shift from ‘anthropocentric’ approach to ‘ecocetric’ approach. The learned writer concludes that the freedoms of animals protected under P.C.A. Act by Nagaraja decision “Stand elevated to the status of Fundamental Rights of animals.”5

Rights of Animals; Legal Rights or Moral Rights?

While there is need to protect “animal rights” more efficiently, it would appear that even after this judgement animal rights would only be moral rights. Only a legal person can have legal rights. The owner of a legal right can insist the enforcement of it with the help of law. The interest recognised as the interest of the owner of the right can be the basis of corresponding duty in relation to that interest. The legal person owning the right can enforce the duty either by his own will or by the intermediary of some other human will which can enforce the duty. Since animals have no legal personality they cannot also have legal rights.

In this connection it is relevant to refer to what Salmond says:

A beast is as incapable of legal rights as of legal duties, for its interest receives no recognition from the law, Hominum causa omnejus constitutum. The law is made for men, and allows no fellowship or bonds of obligation between them and the lower animals. If these last possess moral rights - as utilitarian ethics at least need not scruple to admit- those rights are not recognised by any legal system.6 “Interest and rights of beasts are moral not legal rights.”7

In a similar vein, Paton also says:

“So far as duties towards animals are concerned, I have no legal duty towards them. If the law prohibits cruelty, then I may owe a duty to the State; so far as the law of tort is concerned, I may owe a duty to the owner of the dog. But I cannot owe a legal duty to something that is not a legal person”.8

Though the Judgement and the article refer to increasing recognition of animal right in several Countries and in International Law, it is not clear if such increasing recognition has been the result of conferring legal personality on animals. It would be interesting to refer to a five Judge bench Judgment of the New York State Supreme Court rendered in December, 2014. In that case an animal rights group sought a writ of Habeas Corpus for a chimpanzee. Refusing the writ on the ground that the chimpanzee has no legal personality, the court observed:

“Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer up on chimpanzees the legal rights - such as the fundamental rights to liberty protected by the writ of habeas corpus - that have been afforded to human beings”.9

Do all rights recognised in the context of a fundamental rights become the general fundamental rights?

The fundamental rights represent the basic interests recognised as a part of human dignity and worth. These receive protection against State action. Sometimes while giving meaning to one such fundamental right, it may be necessary to consider some ancillary interests, which may also have to be recognised against State action, for the fuller protection of the fundamental right. Thus, right to privacy, to health, to education (before it has been recognised as a fundamental right), some rights to environment development etc., have been interpreted as fundamental rights in particular cases. But it would appear that such recognition given in particular cases do not make such interest a general part of the hard core of fundamental rights. The recognition would seem to be contextual.

Conclusion

In the light of the above discussion it is respectfully submitted that until the personality of animal is legally recognised and legal provisions are made for the enforcement of the rights, the “animal rights” in India would seem to be only moral rights and not legal rights, much less a fundamental right.

Foot Note:

1.   Animal Welfare Board v. Nagaraja (2014 (2) KLT 717 (SC)).

2.   K.S. Radhakrishnan and Pinaki Chandra Ghose JJ, Judgement by K.S. Radhakrishnan, J.

3.   Ibid para. 16.

4.   P. Leelakrishnan “Animal Rights and Compassion for Other Living Beings: Growing Dimensions of Right to Life Concept Under the Constitution” (2014(4) KLT Journal P.85-88).

5.   Ibid., at p. 88.

6.   P.J. Fitzgerald “Salmond on Jurisprudence" 12th Edition, Indian Economy reprint, Universal Publishing Co. Pvt. Ltd, New Delhi, p.300.

7.   lbid at p. 218

8.   G.W. Paton, “Text Book of Jurisprudence” 4th Edition, Oxford University Press, New Delhi p.294

9.  THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE HUMAN RIGHTS PROJECT INC. On behalf of Tommy v. Patrick C. Lavery, et,al p.6 available at http://www.nonhumanrightsproiect.org/wp-content/uploads/2014/12/Appellate-Decision-in-Tommy-Case-12.4.14.pdf last accessed on 24.2.

Unregistered  Agreement  for  Sale  and 

Proviso  to  Section 49 of the Registration Act

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

Notwithstanding the amendment (Kerala Amendment Act 31 of 2013) enjoining Compulsory Registration of Agreement for sale of immovable property such unregistered agreements can be received in evidence in a suit for specific performance, so long as the proviso to Section 49 of the Registration Act stands unamended. In other words the object of the Registration (Kerala Amendment)Act, 2013 remains enigmatic.

Section 2 of the Amendment Act inserts clause (f) and it reads:

“Instrument purporting or operating to effect a contract for the sale of immovable property of the value of one hundred rupees and upwards”.

As per Clause (ii) of Section 2 of the Amendment Act; in sub-section (2) of the Registration Act the Explanation is omitted. The Explanation says that a document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such documents contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. The consequence of insertion of clause (f) and omission of Explanation in sub-section (2) of  Section 17 of the Registration Act is that all agreements for the sale of immovable property are compulsorily registrable whether or not the agreement contains recital of the payment of purchase money or earnest money.

But it is highly significant to note that there is a proviso to Section 49 which deals with the effect of non-registration of documents required to be registered. The proviso to Section 49 of the Registration Act is given below:

“Provided that an unregistered document effecting immovable property by the Act or Transfer of Property Act 1882 (4 of 1882) to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument”. There can be no doubt that an unregistered document purporting or operating to effect a contract for the sale of immovable property can be received in evidence in a suit for specific performance so long as the Proviso is in force. There is no provision in the Amended Act 31 of 2013 which says the proviso to Section 49 shall be omitted and hence the proviso is still in force."

In this context it is pertinent to examine the law laid down by our High Court in Bhaskaran v. George Joseph (1988 (1) KLT 107) while interpreting the scope of S. 17(2)(v) and the proviso to S.49 of the Registration Act. The court found that in view of  S.17(2)(v) and the proviso to S.49 of the Registration Act it has to be held that an agreement for sale of immovable property eventhough not registered can form the basis for specific  performance”. The said decision even after the Amendment Act 31 of 2013 holds good. The omission of Explanation to Section 17(2) is not enough to warrant a conclusion that unregistered contract for sale of immovable property cannot form the basis of Specific Performance. Then the question, regarding the object of Amendment Act 31 of 2003, remains unanswered. Is it an accidental omission, in drafting the legislation amending the Registration Act ?

Some  Thoughts  on  Specific  Performance  of  Contracts
Vis-a-Vis  Articles 14 & 142

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

“Land is the only real wealth”, our forefathers had proclaimed. In modern times, purchasing immovable property, being fulfilment of a dream in many cases, is also a venture to make profit in many others.

Specific Relief Act (Preamble: An Act to define and amend the law relating to certain kinds of specific relief) lays down the contours of specific relief. As the name indicates, “specific” is specific. No substitute can take its place. It admits of no exclusion.

“Delay defeats equity” is a pre-suit situation because of various reasons. That situation is amply provided for by Specific Relief Act, Limitation Act and many other enactments with exactitude. Principles of English equity were insufficient to cater to the legal needs and realities in India. Our legal pundits developed the principle that courts in India are courts of law and equity.

Causes for delay in our courts are legion. They cannot be itemised exhaustively. Judicial system is a behemoth carriage with 4 wheels: Judges, Advocates, Clerks and Court staff. The passengers are “We, the People” with neither seat/berth nor ac/non-ac classification, though experience has shown that there have to be exceptions, as perfect “wheel balancing” is utopian.

2001 (3) KLT SN 15 (C.No.21) SC = AIR 2001 SC 3173: 2001 (7) SCC 318  (Anil Rai v. State of Bihar)  reminded us that “Delay in disposal of the cases facilitates the people to raise eyebrows, sometime genuinely which, if not checked, may shake the confidence of the people in the judicial system. A time has come when the judiciary itself has to assert for preserving its stature, respect and regards for the attainment of the Rule of Law. ……… It is the policy and purpose of law, to have speedy justice for which efforts are required to be made to come to the expectation of the society of ensuring speedy, untainted and unpolluted justice”.

My attempt is to come to grips with conflicting concepts of delay and equity in suits for decree for specific performance of contracts for sale of immovable property and ensuing confusion. This article is limited to “post-suit” delay in courts. I am sure the more discerning reader will examine the issue in more depth. Suffice to say that the legislature recognized and provided for the situation of increase in market value and law’s delays by incorporating two Explanations to Section 20(2).

Section 10:  Cases  in  which  specific  performance  of  contract  enforceable.—

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced—

(a) when there ………….. (Omitted)

(b) when the act ………….. (Omitted)

Explanation.—Unless and until the contrary is proved, the court shall presume—

(i) That the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) That …………..(Omitted)

       (a)  Where ………. (Omitted)

       (b)  Where ………. (Omitted)

Section 12:  Specific  performance  of  part  of  contract.--

(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either—

(a) forms a considerable part of the whole, though admitting of compensation in
money; or

(b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party—

(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b), pays or had paid the consideration for the whole of the contract without any abatement; and

(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

(4) When a part of a contract which, taken by itself, call and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.

Explanation.—For the purposes of this section………….. (Omitted)

Section 20:  Discretion  as  to  decreeing  specific  performance.—

(1) The jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:—

      (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

      (b)  where the ………………….. (Omitted)

      (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation 1:Mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation 2: The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion …………. (Omitted)

(4) The court shall not refuse to any party specific performance …………. (Omitted)

Section 21: Power to award compensation in certain cases.—

(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in Section 73 of the Indian Contract Act,1872 (9 of 1872).

(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:

Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.

Explanation:…………….. (Omitted)

A bench of three judges laid down in AIR 1975 SC 1409: (1975) 1 SCC 770
( P. Venkateswarlu v. Motor and General Traders (a rent control matter) that “It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. ……………..Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. ……………”.

This was referred to in AIR 1976 SC 49: (1976) 1 SCC 194 ( Rameshwar & Ors. v. Jot Ram & Ors. (dealing with Punjab Security of Land Tenures Act) which declared in unmistakable terms that: “The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact situations or LEGAL POSITIONS and drive parties to fresh litigation whereas relief can be given right here. …………where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. ……..

Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot deny rights (?) - to make them justly relevant in the updated circumstances. ……………… All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise such change in cause of action or relief.……………The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine.

K. Ramaswamy and R. M. Sahai JJ. had held in (1994) 1 SCC 92: AIR 1994 SC 169 ( Gauri Shankar Gaur & Ors. v. State of U. P. (arising under Land Acquisition Act) that: “It would thus be clear that in construing a statute equity will not relieve against a public statute of general policy in cases admitted to fall within the statute and it is the duty of the Court to give effect to the legislative intent”. Dealing with “equity of the statute”, the court struck a note of caution that “……….. there is always danger in giving effect to what is called the equity of the statute, and thatit is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to them”.

K.Ramaswamy; N. Venkatachala JJ. held, in (1994) 4 SCC 18: AIR 1995 SC 491 (Sardar Singh v. Krishna Devi & Anr.), that “The circumstances specified in S.20 are only illustrative and exhaustive. The Court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract”. This observation does not, according to me, lay down a precedent that the section 20 can be eschewed because of passage of judicial time.

K. Ramaswamy and B. L. Hansaria JJ. held in (1995) 4  SCC 15: AIR 1995 SC 1607 ( S. V. R. Mudaliar (dead) by LRs. & Ors. v.Mrs Rajabu S Buhari (dead) & Ors. that: “If merely because the prices have risen during the pendency of litigation, we were to deny the relief of specific performance if otherwise due, this relief could hardly be granted in any case, because by the time the litigation comes to an end sufficiently long period is likely to elapse in most of the cases. This factor, therefore, should not normally weigh against the suitor in exercise of discretion by a Court in a case of the present nature”.

K. Ramaswamy and G. B. Pattanaik JJ. also held in (1996) 4 SCC 593 ( Kanshi Ram v. Om Prakash Jawal)  that: "… rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. …………... Considered from this perspective, in view of the fact that the respondent himself had claimed alternative relief for damages, we think that the Courts would have been well justified in granting alternative decree for damages, instead of ordering specific performance which would be unrealistic and unfair.

A very curious situation arose in (2002) 5 SCC 481: AIR 2002 SC 2290  (Nirmala Anand v. Advent Corporation (P) Ltd.)  wherein one learned judge held that “Keeping in view, all these aspects, in my view, interests of justice would be better served, dictates of reason could be satisfied, and equities could, to some extent, be balanced only if as a condition for decreeing specific performance or allowing the plaintiff to avail of such relief, the appellant is directed to pay at least a sum of rupees forty lakhs to the respondents No. 1 and 2, in addition to the amount already paid”. The other learned judge held that “Requiring the appellant to pay further sum of ` 40 lakhs would/may amount of frustrating the agreement itself as the appellant may not be in a position to pay the sum of ` 40 lakhs. Respective counsel for the parties had quoted the figure of a particular sum which could be paid to the appellant in lieu of avoiding the decree of specific performance. The appellant had not made an offer to pay any additional sum over and above the quoted price to sell by way of compensation. It does not indicate the financial position of the appellant to pay the additional sum of ` 40 lakhs. With due respect, in my view, it would be unfair to grant the decree of specific performance by one hand and take it back by the other”.

(2000) 7 SCC 548: AIR 2000 SC 3106 (Gobind Ram v. Gian Chand)   was a case decided on concession by plaintiff to pay compensation – held that “In view of the above clear finding of the High Court that the appellant tried to wriggle out of the contract between the parties because of escalation in prices of real estate properties, we hold that the respondent is entitled to get a decree as he has not taken any undue or unfair advantage over the appellant. It will be inequitable and unjust at this point of time to deny the decree to the respondent after two courts below have decided in favour of the respondent. While coming to the above conclusion we have also taken note of the fact that the respondent deposited the balance of the consideration in the Trial Court and also the amount in the High Court, as directed.………”.

AIR 2013 SC 434: (2013) 8 SCC 131 (Satya Jain (D) Thr. Lrs. & Ors. v. Anis Ahmed Rushdie) was rendered by a bench of two judges, holding that: “From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court”.

2013 (3) KLT 1041 (Faizal Eroth & Anr. v. Venkalath Raveendran) settled that “It is well settled that merely because the prices have risen during the pendency of the litigation, it cannot be a ground for denying the relief of specific performance. We also bear in mind the decision of the Apex Court in (2006) 12 SCC 146 (Faquir Chand & Anr. v. Sudesh Kumari)   which would indicate that suit for specific performance would be decreed by granting additional compensation to the defendants”.

2014 (1) KLT Suppl. 83 (SC) = AIR 2014 SC 1155 (Rajinder Kumar & Ors. v. Kuldeep Singh & Ors.) is a case of post decree delay. The learned judges took the decree holder/purchaser to task for delaying execution of the decree for specific performance and directed him to pay current market value.

2010 (4) KLT 367 (Renga Swamy Chettiar v. Mari Chettiyar)  reminds us that “A document of sale, notwithstanding that it is executed pursuant to an agreement for sale and a decree for its specific performance ………….. is liable to stamp duty if presented for registration …………….in accordance with the fair value of the land fixed under that provision and in force on the date the document is presented for registration if consideration mentioned in the document is less than such fair value. It makes no difference that the litigation (for specific enforcement of the agreement for sale) was pending in Court for long and the statute was enacted in the meantime. The taxing statute has to be construed as it is. That the value of the property soared up in the meantime is also no reason not to apply the taxing statute”. Here, I would take the liberty of posing a dissent that a fiscal statute cannot normally be retrospective (to the date of filing of suit) and prospective as on date of registration of deed of conveyance through court and put a plaintiff in a suit for decree for specific performance at a disadvantage and make the ultimate relief less advantageous. This proposition deserves to be debated more seriously in view of the fact that the Government has recently proposed to enhance minimum market value of immovable property.

Needless to say, the amount of stamp duty may be many times more than the sale consideration by the time a suit is over (in many cases). Can the plaintiff realise the difference as compensation from the defendant who pleads that “this is my only property”? Think of another case where the victim executes a sale deed in favour of Shylock and sues for specific performance of an agreement to reconvey the property after the liability is discharged. We frequently find people offering to sell property and receiving advance with absolutely no intention of selling, but really only wanting some money “without 15% interest” to play around with. Think of the situation where the buyer offered a fancy price because of compulsion or sentiments. It is common knowledge that valuation notified by Government is haphazard in many cases. The seller and buyer having mutually agreed upon the consideration for the land they intended to transact, it does not appear equitable to direct the buyer (who is not guilty of breach) to pay higher market value because of law’s delays, foregoing the “willing seller - willing buyer” situation. Modern law, as embodied in enactments covering almost all situations human ingenuity can create, recognizes fairness that is permissible in a given situation.

There is another reason which causes discomfort. In trial courts, cases get disposed of earlier or later depending on distribution and volume of judicial business, ability and willingness of counsel and judge to take up cases etc. In High Court, we find that cases for final hearing are posted also on the basis of year-wise allotment. An appeal has to be given due attention. In the process, (Sorry, that is because of mere chance) some plaintiff/s may not be late and be lucky not to be caught up in post-suit delay situations while some unlucky others become the “late” plaintiff. At any rate, this delay was contemplated by legislature when it provided that “the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal”.  More so in cases where a trial court erroneously dismisses a suit for decree for specific performance. The wary approach adopted in 2014 (4) KLT 127  (Raveendran v. Gopi) is indeed heartening.

In 2011 (3) KLT SN 62 (C.No. 59) SC = (2011) 8 SCC 249  (Ramrameshwari Devi & Ors. v. Nirmala Devi & Ors.), it was noticed that “Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice”.

I will be failing if I do not refer to (2001) 7 SCC 617  (Pechimuthu v.Gowramma ) wherefrom the following emerge: “……… Where the Court is considering whether or not to grant a decree for specific performance for the first time, the rise in the price of the land agreed to be conveyed may be a relevant factor in denying the relief of specific performance. …… the decree for specific performance has already been passed by the trial Court and affirmed by the first appellate Court. The only question before us is whether the High Court in second appeal was correct in reversing the decree. Consequently the principle enunciated in K.S. Vidyanadam (supra) will not apply”.

The mandate of Specific Relief Act may not be absolute. It is not obsolete also. Judicial discretion envisaged by Section 20 Specific Relief Act is circumscribed by Sections 10 to 19, 21 to 24 thereof, Order II C.P.C., principles of consequence of breach of contract etc., which should not be avoided by the concept of doing “complete justice in any cause or matter” when all the right and equity a litigant can claim have been statutorily encapsulated and one is bound to uphold the Constitution and the laws?

As between a bona fideplaintiff and dishonest defendant, the court should lean in favour of the former and not the latter. The inadequacies in Specific Relief Act and Limitation Act were substantially reformed in 1963. We have had a number of amendments in law relating to stamp, court fee, registration, income tax, transfer of property and civil procedure thereafter. The legislature did not think it necessary to further amend Specific Relief Act to incorporate any new concepts of delay or newer consequences of equity. When “the laws” lay down the precise parameters of discretion, right and obligation including adequacy of consideration and delay, post-suit delay should not be weighed against an honest plaintiff. In a rare case where the seller sues for a decree for specific performance and the suit is dragged on for years, can the court direct the buyer/defendant to pay market value as on date of decree? In a converse situation can the buyer not claim that he is liable to pay only less consideration due to slump in market value? There is no equity in depriving a diligent plaintiff of his rights under a contract and burdening him with obligations he never bargained for, attributing “peculiar facts and circumstances”.

While going through the dicta laid down by the Apex Court in the decisions noted above (and many others), “rise in market value” does appear to have weighed with the court. But, the scope of Explanations 1 and 2 to Section 20(2) in juxtaposition with other provisions of law and unpleasant shortcomings in the justice delivery system have not been given due consideration. We note conflicting decisions on points of law, which cannot be justified by “peculiar facts and circumstances”.

True, law cannot fill every vacuum. The framing fathers wanted Article 142 in the infantile Holy Book as a safeguard against situations where no legislation may apply. They never intended Article 142 as an example of social steganography, to be understood and applied differently by different men at different times or on similar occasions in the future. It offends Articles 14 and 21 in the guise of “doing complete justice” due to inadvertent violation of parameters. If a law does not offend the Constitution, distending that law without overruling longstanding precedents – if otherwise warranted - by applying Article 142 is, is, according to me, inequitable.

The “most unkindest cut of all” was by the mediator magnanimously suggesting to the plaintiff (who had paid ` 3, 00,000.00 as court fee alone) to settle for less, after spending 8 years in court.

Strange are the ways of men,

And strange the ways of God!

We tread the mazy paths

That all our fathers trod

                                                                                 (Robert Louis Stevenson)

The Untilled Field of Justice - V

(By Dr. K.B. Mohamedkutty, Senior Advocate and Former Law Faculty Dean)

The cultivation of justice in the wide field of law is few and far between. In other words, the untilled area of law remains barren and dry. This is a reality to be reckoned with irrespective of geographical divisions and national boundaries. Mortal men and women of all countries live unattended and uncared by law and justice. The open road to justice is a closed one for them. It is not even a dream for them. About their course of life, Mathew Arnold reminds us;

“What is the course of life

Of mortal men on earth? –

Most men eddy about

Here and there - eat and drink,

Chatter and love and hate,

Striving blindly achieving

Nothing; and then they die -

Perish; — and no one asks

Who or what they have been”

Nevertheless, the most striking feature of the second half of twentieth century seems to be the vibrant enthusiasm of greater number of people to secure justice to satisfy their basic needs. There was much greater awareness of rights and duties during the period. The people began to develop a new consciousness. But this does not mean that people are culturally advanced. The young generation seeks to enjoy life with all its wonderful possibilities. As observed by Jawaharlal Nehru, “sometimes we read about the past periods of history which seem to be better than ours, more cultured and civilized even, and this makes us doubt if our world is going forward or backward”. However, one thing is certain: the people enjoy better umbrella of justice today than the leaky umbrella of the past. More Law courts and remedial forums sprang up in all parts of the country and they are at work, inadequacies notwithstanding.

When law is activated for securing justice in the new world, conflicts and disputes are bound to occur as competing interests prevail in the society. Erroneous application of law also gives rise to litigation beyond measure. In deciding cases coming up before it, can the judiciary be neutral? It is certainly led by the policy of the Constitution and the laws. But the question is when there is a gap in law, what shall be done? It is said that the darkest place in the hell is reserved for those who maintain neutrality between the right and the wrong. No rational man can remain impassioned or keep a stony silence in times of crisis. The judge navigates the vessel of justice through turbulent waters, facing sometimes hurricane, sometimes tempest. He has to filter justice not only according to the Constitution and the laws but also employing equity, which is the higher law. When the counsel is not helpful enough in this respect, the judge has an added burden of being a lone researcher to enhance justice. He may have to wade through legal morasses or ‘stagger from stone to stone’ to explore justice to the deserving. The Judge decides which way the balance of justice should tilt, be it ever so lightly.

Pendulum  of  Justice

The spontaneous growth of law by itself without conscious interference from the law-makers who represent the people may not solve numerous issues facing the common man. They must keep their eyes and ears wide open to the social and economic needs of the people. A judge can do so only when an issue comes up before him. It takes time, besides being indefinite. The judge cannot be a self-starter like the Legislature. He cannot formulate schemes or policies. When dispute reaches before a Judge, he looks into the aspect of justice to be extended. Here, of course, he can apply, if he so desires, the jurisprudence of compassion if the situation compels him. The field of justice, by and large, remains untapped in this respect. Compassion is not something akin to pity or charity. According to Budha, compassion is a much greater virtue as it is the supreme state of mind. It is indeed a superior virtue than kindness or love. According to Martin Luther King, Junior, “compassion is a promissory note on which the rulers have defaulted”. Shakespeare qualifies this as “Mercy" and declares: “Mercy droppeth as the gentle rain from Heaven: It blesseth him that gives and him that takes.” (Merchant of Venice).In order to exercise this jurisdiction effectively, oral hearing of the aggrieved has a role. For securing justice, persuasion through argument might be necessary, because the possibility of judicial mind reaching diametrically opposite conclusion on the same facts cannot be ruled out in its absence. Justice V.R. Krishna Iyer, eminent jurist and former judge of the Supreme Court of India, therefore observes that the power of Socratic process and the instant clarity of the Bar-Bench dialogue are too precious. It cannot be parted with. However, can a judge raise and decide on a question which is not raised or argued before him as he thinks that the question is of great importance? Lord Denning while sitting in the House of Lords did so in one case by raising a question on his own and writing a separate judgment with which the majority dissented as the court had not the benefit of the argument of counselor the judgment of the court below on that point.

Today people do not like to “sink themselves in the gloom” and suffer in the dust and heat in the same manner as their ancestors suffered in the past. Nevertheless, the bitter experience is that many laws have been made which the rich would break, but the poor would not. At present, however, the marginal people are more educated with an urge to react, rallying behind their political ideology. So long as inequality and discrimination in society continue, no one can expect that the atmosphere will be lightened. The solution for such issues does not flow from the head, but from the heart and soul of men. Because, as William James said; “If your heart does not want to, your head will assuredly never make you believe.”

Communion  with  People

As a path-finder towards the destination of nation building, judiciary must feel the pulse of the people. Great judges did so gathering knowledge and practical solution from the people. They believed that people are “Judges of Judges”. Mansfield of England gave us modern Mercantile Law. He was the Chief Justice of England (1756-1788). He took pains to study the customary law and practice prevalent among London merchants by contacting them. He personally interviewed them, gathered trade practices and analyzed the drawbacks and usefulness of such tradition. He incorporated what is good in them bodily into the Mercantile Law through judicial process. He sought the help of brilliant and effective juries from merchants for the purpose. The common law absorbed his fine judgments. The nice principles in our own Contract Law are his contribution. Today there is no such interaction between resourceful people and judges. The Judges live in too much seclusion. Moreover, current judicial trend shows that travelling through the existing route is the usual way. But one who finds a new route which nobody in the past was able to find becomes an outstanding Judge. To him judicial process is not an end in itself; it is only a way to justice. The “grand style” judges never sought after popularity. They shrank from it. Chief Justice Marshall never cared for his clothes and personal appearance. He walked through streets as an ordinary man. Justice Story, a contemporary of Justice Marshall led simple life and wrote poetry. He is remembered for his three volumes of commentary on Law. In India a line of great Judges led simple life with great wisdom and insight.

Fair criticism of the judicial output is peoples’ Fundamental Right. The people desire their judges to be dynamic, free from influence, resourceful enough to find justice and bold enough to declare it. If not, there is no difference between the judge and the bureaucrat. The people expect from judges removal of injustice. For this many attributes must concur in a judge. ‘Justice’ being the mother of all virtues, its measure needs to be expanded. The judge must resist the inflow of impurity into the stream of justice. If it becomes impure, it is not different from other organs of the State. Even the poorest man would not like to eat food, though delicious, from a dirty dish. Impure judiciary is like dirty dish or impure water flowing in a water-theme park.

Inter  disciplinary  approach

The judiciary must be able to harvest new ideas of justice and spread its fragrance all over, expanding the horizon of liberty, freedom and prosperity to the benefit of common man. For over a period of five decades, the judges in India, of course, have developed trends of social justice attempting to understand needs of the people unlike the conventionalist of the first decade of the Constitutional development. It is necessary in the changed circumstances of knowledge revolution, and the evolution of urban and industrial India, the judiciary needs to develop a new language of justice. The judiciary must embark upon constant debate with disciplines other than the Law, the technocrats and Social Service Providers in the field. The views arising out of such deliberations must herald a new dawn. The inter-disciplinary approach beautifies both the legal and the non-legal sectors as “Lotus is beautified by presence of water in the pond, and water is beautified by the presence of lotus in the pond”. Such mutuality must take place without ego-clash. Khalil Gibran tells us how the ego works:

“A fox looked at his shadow at sunrise and thought,

“I will have a camel for lunch today”

And all morning he went about looking for a camel.

But at noon he saw his shadow, then he said:

“A mouse will do”.

When the judiciary is stigmatized even slightly, peoples’ hope is derailed. The Indian Judiciary is undergoing a period of transition and experiment with a “genuine passion” to safeguard the interest of justice and to raise the national interest to the pinnacle and make it a ‘fine flower’. The judiciary thus faces a big trial. As Justice H.R.Khanne remarked “every trial is a trial of judicial system”. The same thing has been said in a different accent by Justice Michael Kirby (Australia) when he remarked that “every legal tradition needs heroes in different times."