"The Tall V.R.V."

(By Hon'ble Mr. Justice V. Chitambaresh, Judge,  High Court of Kerala)

Those were the days when Original Suits had to be filed in the High Court during summer recess for interim reliefs. The then Vacation Court presided by Mr.Justice M.M.Pareed Pillai was flooded with cases. An application for temporary injunction in a suit came up for hearing after service of  notice. Mr.V.R.Venkitakrishnan, Advocate entered appearance for the respondent and sought time to file a counter statement. The learned Judge adjourned the case after passing the  following order:

“Respondent appears. Seeks time for counter. Interim injunction in the meanwhile."

The interim injunction was to prohibit the defendant from conducting the  finals of a foot ball tournament !

2. Mr.V.R.Venkitakrishnan was taken aback since the interim order was the least expected in the circumstances. The suit itself was for a declaration that a goal reckoned in the semi finals of the tournament was bad for ‘off side’. Mr.V.R.Venkitakrishnan sent his client to me for drafting a counter statement to the application for injunction. The counter statement was duly filed and the application for injunction brought up for further hearing. Mr.Justice S.Padmanabhan who succeeded as the vacation Judge vacated the interim injunction and allowed the finals of the tournament to go on.

3.  I was doubly happy at the whole episode for the following two reasons:-  Firstly, I was entrusted with a brief in relation to a case outside Palakkad District. Secondly, a favourable verdict could be obtained though after an initial set back. This is a classic example of Mr.V.R.Venkitakrishnan giving opportunities to the junior members of the bar. Mr.Justice KT.Sankaran would not have been of what he is but for such opportunities. Mr.V.R.Venkitakrishnan very much discouraged the junior advocates sporting a beard. He would often say that a lawyer should maintain his chin like an ‘egg shell’ for a pleasant appearance. Mr.V.R.Venkitakrishnan was ‘Mr.Clean’ not only in his looks but also in his dealings with his clients. His bold assertions at the bar laced with rhetorics still   lingers  in my mind.

4.  I would often kindle Mr.V.R.Venkitakrishnan for his mischievous remarks in the otherwise sleepy senior advocates' room. The room has become silent and the bar has lost one of its tall members on the death of Mr.Venkitakrishnan. He was the last link in the chain of lawyers who migrated from Madras on the formation of the Kerala State.The juniors of Mr.V.R.Venkitakrishnan celebrated his 61st year of legal practice. I however confess that celebration of events was a weakness for him. Mr.V.R.Venkitakrishnan lived a good innings of 90 years and has left behind a legacy. I really miss him.

Recollections of A Sishya

   (By N.K. Subramanian, Advocate, High Court of Kerala)

The huge banyan tree stood before the Temple of Justice has succumbed to the Time. After six and half decades as a lawyer Senior Advocate Sri.V.R.Veniatakrishnan has left this world.

He grew along with the Country’s growth in Judiciary in the post-independent era. He lived through the best period of Judicial History. I feel fortunate to be a junior to him, who has marched with the progress of Judiciary and thus I could inherit the wealth of his rich experience in the profession.

He was friendly with every member of the Bar of all ages and greeted all with a smiling face. As one of the senior most lawyers, Hon’ble Chief Justice Smt.Manjula Chellur aptly called him as ‘Bishma Pithaamaha’ of the Bar.

He was a ‘cosmopolitan’ lawyer rather a ‘cosmopolitan’ personality in every sense. He was never selective in mingling with people as he clubbed with everybody irrespective of age and avocation and he was respected by every member of the fraternity.

His timely advices with a paternal affection always drove me in the right path not only in the profession but also in all departments of life. I always felt as if sitting under a huge banyan tree. His knowledge and erudition in oriental philosophy, in the Holy Scriptures and in the Vedas nurtured my limited knowledge I had in my association with Sri Ramakrishna Movement, in my childhood. It helped me to withstand the onslaught of temporal miseries. One of my lawyer friends used to tell me, enviously, that my senior is protecting me like a mother-bird would do to her chicks, under her wings.

He depicted himself thus: *“In the courts, I had a reputation of being bold, to the extent that it could have affected my career as a lawyer. But to me it was natural to be daring because of the training that I was fortunate to have and the enviable company I could keep. You could be bold in life and break a lot of pots. But my thought went in the direction of being myself and holding my head straight without having to pay a price; to stand for the legitimate and just causes without turning myself into a martyr; that was my idea". He did just that. And he left a legacy for lawyers to cherish and to be emulated. 

His journey to the Heavenly Abode is after completing the ‘full course’ of life or the journey of soul dwelled in him has left in search of another body, as said by Lord Krishna in the Holy Gita thus:

“Dehinosmin yatha dehe kaumaram youvanam jara

Thatha dehantharprapthi: dheerasthathra na muhyathi"

Just as the dweller in this body passes through childhood, youth and old age, so at death he merely passes into another kind of body. The wise are not deluded by that.

“Vaasamsi jeernani yatha vihaya navaani gruhnaathi naroparaani 

Thatha shareerani vihaya jeernani anyaani samyaathi navaani dehi”

Worn out garments are shed by the body:

Worn out bodies are shed by the dweller within the body:

New bodies are donned

By the dweller, like garments is, of course, after accomplishment.

                            (Translation by Swami Prabhavananda and Chirstopher Isherwood)

He was a great lawyer and pride of the Bar of the Kerala High Court. The chasm formed in the Judiciary by his death  will remain......

To me, the loss is irrecoverable. 

Human  Rights  Between  the  Dying  and  the  Living

(By  M.E. Aliyar, J. F. C. M.,   Ramankary)

Salmond in his work on Jurisprudence says that dead men have no rights. We have no doubt or objection to it, but we come across certain cases in certain hospitals where the patients who are on the verge of death and struggling to breath but who still have fitness of mind, and sense are not allowed to be visited by their dear and near ones at that time by the hospital authorities. We presume that a doctor worth that appellation will be aware of the signs of the approaching of death of the patient and it is only fair and proper that the relatives and friends of such a dying patient be allowed to visit him before the life of such a patient flies out. It may be noted that the relatives and friends of a dying patient desire and are anxious to be near him at the sinking stage. It is felt that medical men and hospital authorities should not forbid or prevent them from being near him where the very doctor attending the patient is helpless with all his arts as an alienist to prevent death. It is felt that preventing of such dear & near ones of the dying patient is blatant violation of human right concept as known to jurisprudence and civilized society. An English poet and dramatist William Shakespeare had sensibly written that a dying person desires that his dear & near must be near to him at that moment which is believed to enable the dying person to have a peaceful death. Coming to the importance of permitting the dear & near ones of the dying patient to be near him, it may be noted that the patient may be in a position to communicate by words or signs any kind of information to his relatives or dear friends regarding the disposition of property and other matters which he desires to convey. It may be pertinent to note in this connection that S.32, clause-1 of the Indian Evidence Act speaks about dying declaration and courts have held that such declaration can be made by spoken or written words and also by signs regarding the cause of death, circumstances and the transaction in which the declarant was injured. 

The law is that a Dying Declaration can be made to any person and it is valid and admissible in evidence. It also to note that a dying declaration under this S.32 is admissible in evidence when the matter in dispute relating to civil or criminal in which it should be clearly understood that a disclosure in a dying declaration when it is made before the death of the patient takes place. The law is to this effect that, if such person chances to live then such a statement is not dying declaration. From the practical point of view all of us know that when death takes place no communication can be made by the deceased by either sign or mouth. This would make us to understand the importance of permitting the dear and near ones of the dying patient to visit such a patient in hospital at that stage. The question arises where any hospital authorities or doctors have a legal right to prevent the dear and near ones of the dying patient to visit such patient. The simple and classic answer is that such hospital authority or doctor has no such right. So much so, the hospital authorities or doctors prevents such dear and near ones of the dying patient, such hospital authority or doctor violates human rights. 

It is suggested that such a hospital authority or doctor shall be made liable to pay damages to the dear and near ones if the patient dies in hospital without the dear and near being allowed to visit the patient. It is also noted that according to the authors of Forensic Medicine the subject also known as Medical Jurisprudence is basically concerned about the cause of death. The expression ‘Forensic Medicine’ means knowledge of medical science used for the purpose of law and nothing more. It is not a matter exclusively meant for police and medical men. It is a matter in which courts are concerned in rendering a judicial decision.

The fact remains that there is divergence of medical opinion as to the signs of approaching death and one cannot understand as to what is the sense in preventing the dear and near of the dying patient from visiting him at such a time. Regarding death John Milton an English poet in his famous book’ Paradise Lost’ mentioned, “ ‘If shape it might be called it had none distinguishable in member, joint or limb substance might be called that shadow seemed'. This statement by Milton is sufficiently significant in the context under consideration. In Medical Jurisprudence and Toxicology by Mr. H.W.V. Cox at page no. 92 we read ‘Death is not a fixed simple event. In fact a definition of death is very difficult to attain’. The World Medical Association in August 1968 stated about the determination of death ‘The determination will be based on clinical judgment supplemented if necessary by a number of diagnostic aids of which the ECG is currently used by most hospitals, however no single technological criterion is entirely satisfactory in the present state of medicine, nor can any one procedure be substituted for the overall judgment for the physician’. We are aware of the intensive care unit (ICU) in hospitals meant for special attention bestowed upon the patient and for which special amounts are charged by the hospital authorities. Death may enter even in ICU, but the painful situation is that the dear and near ones of such a patient are not allowed to visit him even in his dying stage in that room. This is done in the pretext that permitting such visitors to such a patient would interfere with the work of doctors attending such patients.

In Hindi there is a proverb with reference to issue-less person “ Uske peeche kon Royega” which simply means that when a issue-less man dies, there is nobody in the world to cry for him. Quite opposite of this notion takes place in certain hospitals where a dying person gasping the last and the very doctor is totally helpless to save the dying man, the life of the patient with its human right struggles between life and death and the dear and near ones are not permitted even to express sorrow and grief and this event makes a mockery of the proverb referred to above. May note that the hospital authorities I would say vernacular “Uske aage kon Royega”. In this circumstance, I am constrained to observe that it would be better to construct a separate unit called sinking unit or some other apt name very proximate to the Intensive Care Unit (ICU) for transferring the sinking patient to it so that the dear and near ones can see him without interfering with the clinical work of the medical men. 

In the same strain I would suggest that a duty doctor may be posted with necessary infrastructure to re-transfer the sinking patient to ICU, if there is any prospect of improvement by indication which a medical man can understand, even though the actual entering of death into the human body is not visible. Before parting with the matter in hand, it is suggested that no relatives want a Post-Mortem of the body of their near relatives. Last but not the least aspect is that, if a patient dies in ICU, and his body remains kept there and thereby delaying even the sight of body to the relatives till another life patient is admitted in ICU, the total charges levied and paid by the relatives of the dead patient mentioned above for the body being kept there shall be repaid to such relatives by the hospital authorities since ICU is not a mortuary.

Flouting and evading the law, the human right is cruelly denied to both the dying patient and his relations. This is a sad situation created by senseless authorities or doctors who have no such right known to law and hence should be liable to pay damages for the agony caused to the dear and near relatives in this context..

A Gentle Soul Remembered 

(By G. Shrikumar, Senior Advocate, High Court of Kerala)

A.P.Chandrasekaran, Senior Advocate, fondly known among friends as A.P.C., is no more.  Seldom do we come across such noble souls who mean no harm to any one by words or deeds.  

One among the last few members of a dwindling tribe of traditional Civil Lawyers, A.P.C. addressed death, the inevitable guest, in a style befitting his arguments in courts, brief and to the point.  

Following the legacy of late Kuttikrishna Menon, the former Advocate General of Madras, as his junior, he carved out a distinct space for himself among the veteran civil lawyers of the High Court of Kerala. When he welcomed me to his chambers as his first junior, little did I realise that it was the beginning of a long journey together.   In the long seventeen years of Senior-Junior relationship, he taught me, rather I imbibed from him many a fascinating aspect of life.  Our relationship grew beyond the world of law. He could discuss and deliberate on any topic under the sun from quantum physics to mystic poetry.   A man of wide reading and an ardent follower of the philosophy and teachings of Sri Aurobindo, he was a true spiritual being who had transcended human ego to a great extent.  He was always unruffled and maintained his poise and calm.  It was almost impossible to provoke or make him angry.  

As a lawyer, he always believed that a case is to be built on first principles and fundamentals of law.  To him, first principles are the foundation of a case and the precedents are only support structures.  According to him, if the case is strong on fundamentals, one can afford to dispense with the precedents. His arguments were always brief, matter of fact and lucid and presented in fine legal language and perfect diction.  His style of preparation of cases was unique.  He believed that every case should undergo a minimum period of incubation in the mind of the lawyer before it transforms into written pleadings.  The butterfly must undergo the silent confinement in the cocoon before it spreads its beautiful wings. Instant justice delivery system has its own pit falls.  

He always believed in the innate goodness of all human beings.  The so called wrong doers, according to him, are mostly victims of circumstances.  He accepted all situations and events in life as they presented and always considered it as part of a larger design and scheme of things which often remained beyond our comprehension and yet to unfold.  

Like a gentle breeze he glided past me

leaving the freshness of the morning dew

reflecting in all its splendour

the glory of the unknown, the un-explored 

May his soul continue its journey into higher spiritual planes until it merges with ultimate in eternal bliss and peace.

An Addendum to Mary v. Issac (2014 (1) KLT 923)

(By K. Radhakrishnan Nair, Advocate, Vanchiyoor, Thiruvananthapuram)

The question that arose in this case was whether an order of temporary injunction restraining alienation could be communicated by the Civil Courts to the Sub Registrars concerned in exercise of inherent jurisdiction. While issuing a judgment in the affirmative the Hon’ble High Court referred to the decision of the Hon’ble Supreme Court in K.K.Velusamy v. N.Palanisamy (2011 (2) KLT SN 19 (C.No.27) = (2011) 11 SCC 275). In this decision the Apex Court held in paragraph 12(a) that “Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts”. It was further held in paragraph 12(e) that “while exercising inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case”.

From this it could be made clear that the power under S.151 can and need be exercised only if there is no legislative guidance. In Mary v. Issac, S.89 of the Registration Act, 1908 was not brought to the notice of the Hon’ble High Court. Section 89 of the Registration Act, 1908 was amended vide Kerala Act 7 of 1968, which came into effect on 22.2.1968, inserting sub-section (5). This sub section reads as follows:-

“(5) Every court passing -

(a) any decree or order creating, declaring, transferring, limiting or extinguishing any right, title and interest to or in immovable property in favour of or of any person, or 

(b) an order for attachment of immovable property or for the release of any immovable property from attachment,

shall send a copy of such decree or order together with a memorandum describing the property, as far as may be practicable, in the manner required by Section 21, to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such decree or order is situate, and such officer shall file the copy of memorandum in his Book No. 1".

This is a substantive provision which casts certain duties on any court to send a copy of decree/order creating, declaring, transferring, limiting, extinguishing any right, title and interest to or in immovable property in favour of or of any person, or an order for attachment of immovable property or for the release of any immovable property over attachment. In relation to an order of injunction the following portions of S.89(5) are relevant.

(5) Every court passing -

(a) any ............order............limiting any right, title and interest to or..........in immovable property...........of any person.

It is beyond doubt that that an order of injunction against alienating or executing documents, obviously, would put a cap on the right of a person to transfer his absolute right or possession. The Hon’ble Supreme Court in Surjit Singh & others v. Harbans Singh & others ((1995) 6 SCC 50) held that alienation/assignment made in defiance of the court’s order irrespective of whether it was of the property per se or of the decree pertaining to the property shall be treated as non est. So, it cannot be contended by any stretch of imagination that an order of injunction would not come under the purview of S.89 of the Registration Act as amended by Kerala Act 7 of 1968.

The object of this provision is only to see that an order of injunction which affects immovable property should not go unnoticed when a stranger enters into a transaction in relation to a property with a person who claims right, title or interest over a property. It is intended to restrain fraudulent transfers ignoring court orders. When the order is forwarded to the Registering Officer, he shall file the copy of memorandum in his Book No.1. This book is one of the Register books to be kept in the several offices constituted under the Registration Act. S.51 of the Registration Act requires certain books to be kept in the several offices established under the provisions of the Registration Act. Among the registers the most important one is Book No.1, “Register of Non-testamentary documents relating to immovable property”. All registration offices shall keep Book No.1 without fail. As per sub-section (2) of S.51 of the Registration Act, 1908 inserting vide Kerala Act 7 of 1968 true copies of all documents and all memoranda registered under Ss.17, 18 & 19 which relate to immovable property and are not wills, shall be filed in Book No.1. Under S.89 the Court shall send a copy of the order together with a memorandum describing the property to the registering officer. As required under S.51 this memorandum along with copy of the order shall be filed in Book No.1.

The Registering Officer shall furnish on request a certificate of encumbrance in respect of any immovable property after making a search of encumbrances, belonging to a single individual or family or a list of documents executed by or in favour of a single individual or family. R.169 of the Kerala Registration Rules, 1958 provides that in an encumbrance certificate the description of properties affected by the documents shall be given. An encumbrance certificate issued under Rules 168 & 169 of the Kerala Registration Rules is in the form which is given in Appendix VII of the said Rules. In the form it is stated that a search has been made in Book 1 before issuing an encumbrance certificate. In the certificate the description of property, date of execution of the documents, nature and value of the document, names of parties, reference to document etc. are given. So the injunction order of the court that is communicated to the Registering Officer and entered in Book No.1 would also find a place in the encumbrance certificate; which would help anyone who proposes to enter into any transaction in relation to the property with a person, against whom the court issued an order, to know that the property is the subject matter of a suit or that an application is pending for an order of injunction and that he cannot avoid ascertaining the right, title and interest of that person against whom an order is passed restraining alienation or assignment of the property. In view of the substantive provision in the Registration Act, the inherent power of the court cannot and need not be exercised by the court to communicate an injunction order to the Sub-registry.