Some Thoughts on First Appeals, Jurisdiction & Pendency

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

I am sure nobody is keen to retain decades-old appeals dozing off to the silent lullaby “Please wait. You are in queue” or to be subject of often seen “defect”. Much time is needed to render a logical judicial decision standing apart from “a decision for decision’s sake”. Contributories to mounting arrears are not clients alone, some with lone hope and many with forlorn hopes; not only all involved in the “dispute/decision” process, but also “reasons beyond control”.

Law has provided the remedy of appeal - of course, subject to conditions, Order XLI Rule 11 C.P.C. dominant among them. May be, Trial Court has taken a view, may be a reasonable one that one appellate Judge may not differ with, but yet another may. Neither of the holy Trinity is restricted by Article 14 in distributing human intellect. Lawyers and Judges need be loyal only to the law applicable to the cause they dissect, without being casuist. Lawyers argue either way, a professional compulsion. We find learned Judges having difference of opinion and distinguishing or overruling earlier decisions. What may appear to be correct today may turn out to be incorrect tomorrow and vice versa. When our system permits Judges to have different views on same set of facts, shutting out appeals - except in clear and unambiguous circumstances – does not appeal to me. Doubtless, some appeals do deserve to be dismissed mercilessly. True, some causes become casualties, second appeals more so. Every cause cannot be a cause célèbre. In as much as expecting uniform standards of adjudication in various courts is Utopian, I feel that mere dismissal of appeals is not a remedy to the malady of pendency. 

But, be it procedural law or substantive, it is essential to have uniformity in judicial process. Uniformity leads to homogeneity and accountability. Despite Civil Rules of Practice, we come across instances of difference in legal work, in pleadings and procedure, in erstwhile Malabar, Cochin and Travancore. May be, some of those can be excused as not being in the judicial realm. 

Lawyers thrive nowadays on software and Internet, with myriad of precedents available at the click of the mouse. The first sacrifices thereby have been inquisitiveness and razor-sharp memory, basic qualities of any lawyer. The traditional “on-his-finger-tips” guy belongs to the past, substituted by the “guy-with-the-mouse”. Gone are the days when we hefted heavy journals and digests, time and again, eager to journey for voluminous precedents, stumbling upon topics unseen and principles unheard of, saving them to savor leisurely. And the days when it took weeks to draft a fairly good plaint and much longer to draft a masterly written statement? Gone! Gone also are the days when presiding officers took case files home and came to court prepared better than some lawyers. Examination in chief was an art; cross examination was a better art, many times turning bitter to the opponent. Witnesses were, as a rule, more straightforward, more respectful to their solemn oath. Pendency and arrears were of concern then also. But, litigants and lawyers were more sensitive and sensible about their wherewithal. That is what I have learnt from seniors.

But, now?! Alas! We have more men of straw amidst us, thanks also to “Enrica Lexie” situations. Proof affidavits have come to stay; examination on commission holds the sway. Arguments have no notes or octaves; argument notes have taken their place. We are now more in an era of readymade plaints and petitions, instant justice, than that of hesitant Mistress Justice who demanded zealous commitment from men of law. “Fast-food culture” has sown its seeds in legal fraternity. I understand that the present scheme for evaluation of judicial work in subordinate courts demands more of fair number of disposals than of fair disposals, which has some adverse effect on the delivery system.

The old ways did have their charms and none of the harms of the new. There is no perfect legal system, much less a perfect world. There never was. Think - of Rama, Yudhishtira, Jesus, Socrates, Joan of Arc, Rani Padmini, Jhansi Rani, Gandhiji and many, many others. True, everyone has limitations and perceptions. Our legal system has the maximum limitations, the result of centuries of ‘do’s and ‘do not’s, made inviolate by precedents and self-righteousness. I hasten to add that though I am much biased towards civil litigation, I too do not cherish harried delay in disposal or hurried burial of cases. 

I feel I should offload a few bytes which may, perhaps, aid in arresting the inertial growth of arrears in a revered area, appealing in its arcane precepts, appalling in its modern concepts. For this dissertation, I am staying within the laws of the niche we proudly market as God’s own country, particularly Civil Courts Act and High Court Act, without straying into enactments elsewhere. 

Section 11  Civil Courts Act:  Jurisdiction of District Court and Subordinate Judge’s Court in original suits:

(1) The jurisdiction of a District Court or a Subordinate Judge’s Court extends, subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), to all original suits and proceedings of a civil nature.

(2) The jurisdiction of a Munsiff’s Court extends to like suits and proceedings not otherwise exempted from its cognizance of which the amount or value of the subject matter does not exceed one lakh rupees.

Section 13  Civil Courts Act : Appellate jurisdiction of District Court and Subordinate Judge’s Court:

(1) Appeals from the decrees and orders of a Munsiff’s Court and where the amount or value of the subject-matter of the suit does not exceed two lakhs rupees from the original decrees and orders of a Subordinate Judge’s Court shall, when such appeals are allowed by law, lie to the District Court: (rest omitted)

Section 3  High Court Act :  Powers of Single Judge:

The powers of the High Court in relation to the following matters may be exercised by a Single Judge, ———————

(1)  ——————

(13) An appeal—

(a) ——————

(b) from an original decree or order in any suit or other proceeding, where the amount or value of the subject-matter of the suit or other proceeding does not exceed one lakh rupees.

(c) ——————— 

(d) from an order under section 104 of the Code of Civil Procedure, 1908, except an order of the kind mentioned in clause (h) of sub-section (1) of the said section or in clauses (c), (d) or (j) of Rule I of Order XLIII of the First Schedule to the said Code

Jurisdiction of single Judge to hear appeals was enlarged with effect from 29.8.1989. The appellate jurisdiction of Courts of Subordinate/District Judges was enlarged from 27.3.1996. Basically, both being achieved by amending statutes, the amendment to Civil Courts Act in 1996 has to prevail over the 1989 amendment to High Court Act. It is also to be borne in mind that Civil Courts Act provides the appellate forum; Section 3 High Court Act provides only the manner in which that forum is to arrange its business.

In 1995 (2) KLT 791, it was held: “——— it is clear that if the amount or value of the subject matter of the suit or other proceedings does not exceed one lakh rupees, the appeal against such an order is to be heard by a learned Single Judge of this Court.” (I have reservations about the reasoning herein as regards splitting up of valuation of the plaint for determining appellate jurisdiction).

In 2001 (2) KLT 416, it was held: “———— what is discernible is that the hearing of an appeal, whether it be against a decree in a suit or a decree or order in a proceeding arising under a special enactment, can be by a Single Judge if the value of the subject matter does not exceed one lakh rupees and it need only be heard by a Division Bench if the value of the subject matter exceeds one lakh rupees”. [Please also see 2004 (1) KLT 55 dealing with scope of Section 5(ii) High Court Act after amendment to C.P.C. vide Act 22/2002].

It can thus be seen that (i) the power of a Single Judge u/S.3(13)(b) High Court Act to hear an appeal from an original decree or order in any suit “where the amount or value of the subject-matter of the suit or does not exceed one lakh rupees” has vanished because of Section 13(1) Civil Courts Act, (ii) no appeal will lie directly to High Court in case of decrees/orders in suits valued below Rs. 2, 00,000.01 and filed after 27.3.1996 and (iii) an appeal will lie to High Court u/S. 96 C.P.C. from decrees and/or orders in a suit instituted after 27.3.1996, if otherwise competent, only if the valuation of the subject matter of the suit/proceeding exceeds Rs. 2, 00, 000.00 and such appeal will have to be considered only by a Division Bench. Reference may also be had to 2006 (4) KLT 651. It is possible for a single Judge to continue to exercise appellate jurisdiction over proceedings under other statutes and whose valuation does not exceed Rs. 1,00,000.00, for e.g., MACAs and LA APs. Hence, the dichotomy “valuation for jurisdiction: above/below Rs. 2, 00,000.00” in RFAs presented in High Court is unwarranted.

If it is that appeals from orders of the kind mentioned in clause (h) of sub-section (1) of Section 104 C.P.C. or in clauses (c), (d) or (j) of Rule I of Order XLIII C.P.C. are to be heard only by a Division Bench of High Court by virtue of Section 3(13)(d), irrespective of valuation of the suit/proceeding in the court/s below and the mandate of Section 13 Civil Courts Act read with Section 3(13)(b) High Court Act, will that not efface appellate jurisdiction of courts of Subordinate/District Judges in respect of such orders and will not there have to be a compulsory migration of such appeals from those courts to High Court?  I am sure there must be countless appeals from orders of the kind mentioned in Section 104(1)(h) C.P.C. or in clauses (c), (d) or (j) of Rule 1 of Order XLIII pending in those courts.

Coming to the issue on hand, one way of reducing pendency, at least in High Court, is to further amend (prospectively, of course) Civil Courts Act, whereby limit of pecuniary jurisdiction of Munsiff’s Courts as also appellate jurisdiction of Subordinate Judge’s Courts be raised to, say, Rs. 10, 00,000.00 and appellate jurisdiction of District Courts be enhanced to, say, Rs.  15, 00,000.00 and that of single Judges to Rs. 25, 00,000.00, leaving division benches to deal with appeals valued above that. (Let us continue to respect the age-old legislative wisdom that two heads are better to decide heavier stuff). Overburdened subordinate judges’ courts can have some respite from heavy trial work and dispose of more appeals and miscellaneous cases. I am sure our judicial officers are quite equipped to deal with such stakes, though I am aware that I am driving a stake through hearts of colleagues.

Is it not a hierarchical incongruity that while Subordinate Judges can decide suits valued at more than Rs. 1, 00,000.00 and hear appeals valued up to Rs. 1, 00, 000.00 and District Judges can decide appeals valued below Rs.  2, 00,000.01, a single Judge of High Court could not entertain many such matters?

Another suggestion I would make is that jurisdiction to decide and enforce monetary claims by/against companies (in liquidation) should be conferred on the principal court in every district, restricting right of appeal as in MVOPs. That will also reduce inconvenience to staff, counsel, clients and witnesses. Why is it necessary that a learned Single Judge should be burdened with the task of adjudication/realization of claims by/against a chitty company in liquidation?

Nobody will dispute the fact that civil litigation, as nurtured by the old school, has been much on the wane during last 4 - 5 decades, due to varied legislation and establishment of judicial and para-judicial institutions (though with bare accoutrements, making functional efficacy much more desirable). A consequence of the amendments will be reduction in accumulation in High Court, providing Judges with more time to dispose of old matters and more urgent issues, keeping a firmer hand on queue system in disposal of cases. I believe conservatively that pending civil matters will cater to 2 more generations.

Another obvious consequence of the amendments will be the need to establish more courts at various levels, to exercise the enhanced jurisdiction. There is no dearth of competent lawyers who aspire for a judicial career. Perhaps, some of them have to be fine-tuned. The ever deterrent factor – funds! - relied on by the State for not establishing new courts has to be firmly overruled, as speedy justice - civil, criminal or otherwise - is a constitutional prerogative of “We, the People” and cannot be a benefaction on the basis of “reserved/unreserved, rich/poor, minority/majority, male/female” classification.

I feel that awarding costs as per norms of the old school - loser to pay costs of the winner - should be strictly enforced. If actual costs are inevitable, at least some clients will be wary of embarking upon tentative litigation. American/English instances show that costs deter many actions. In the Indian scenario, properties become “Untouchable” and litigants become “Les miserables” because (i) it takes decades to know finally whether a deal became dud for fault of the defendant or not and (ii) an adventurous plaintiff knows he can hold defendant to ransom with a suit - worse than Damocles’ sword. There is no reason to allow a litigant in God’s own country and Mera Bharat Mahan the luxury of litigation with the assurance that “in the circumstances, no costs”! Grant of costs to third parties may be a deterrent only in few cases and not always, a topic I reserve for rumination in future. But I would say, reduce court fee please, as cheap justice is also a constitutional mandate.

Almost every litigant will be happy to draw the curtain on his act. Saying goodbye to the lawyer because relief and enjoyment thereof will be delayed and hence purchasing peace by taking/giving even half the claim in the lis, (thanks to Adalat, “Enrica Lexie” notwithstanding) without waiting for judgement has appeared to be healthier to many of them.

Fact remains, “we people” have to go a long, long way to reach the ultimate goal set by the Constitution for “We, the People”.

Obituary : Justice Varghese Kalliath

(By P.K. Suresh Kumar, Senior Advocate, Ernakulam)

Justice Varghese Kalliath has passed away.  But, the memories he has left behind are sure to occupy a place in the hearts of lawyers who had occasion to experience his large heartedness, erudition and wisdom. 

I have seen Justice Kalliath as an Advocate and a Judge. I have seen him arguing for admission of a Second Appeal by taking the entire forenoon session.   He never used to give up until he had exhausted the last weapon in his armoury.   He believed it was the absolute right of a lawyer to put forward his case in full with all the resources at his command. Surprisingly, he did not change this view on becoming a Judge. As a Judge, he allowed advocates to argue cases at length. He allowed lawyers even to revel in verbosity if they were so inclined.   Those who argued with precision and brevity were also highly appreciated by him as it was not difficult for him to quickly understand a case. 

However, Justice Kalliath never stopped at merely understanding a case. He would proceed to examine the case from different angles and from different points of view. The process which Cardozo thought should ideally take place in the mind of a Judge before a case was decided used to take place so manifestly in his Court. Sometimes, this process invited criticism from those who thought that the Judge had a wavering mind. Such criticism came from people who had little idea about the subtle judicial process in which a certain amount of vacillation is warranted. It is during this vacillation that law and justice is balanced.

Justice Kalliath had a sound knowledge of civil law. Various judgments of his stand testimony to his in-depth knowledge of civil law. He was conservative in his approach. He always respected tradition and chose to stick on to it. But, at the same time he was not averse to modern trends in jurisprudence. The judgment in ammonia tank case, though reversed on factual grounds, can even now be regarded as one of the fine judgments in environmental law which at that time was at its infancy stage in India.  And the most important thing to be remembered is the angst with which he wrote that judgment.   The concern he showed in favour of the unfortunate and the underprivileged was remarkable.   Whether it was for the victims in Thankamony or for the electrocuted child, his heart bled and he dared to award compensation to the injured by invoking Art.226 of the Constitution.

I have never seen a Judge so filled with compassion, piety and serenity. It is said that only if the right hemisphere of the brain is developed one would be endowed with a sense of justice, compassion, philosophical approach, subtlety etc. The left side of the brain gives one the capacity to assimilate facts, store datas and to think objectively. Many Judges who were believed to be brilliant were found to be lacking in the qualities supplied by the right side. But, in the case of Justice Kalliath both sides of his brain were perfectly developed and he could render justice in a righteous manner.

“Blessed are they that keep judgment, and he

that doeth righteousness at all times”

                                PSALM  106: 3

Room for Critical Thinking

(By P. Chandrasekhar, Advocate, Ernakulam)

Indians are traditionally argumentative. Amartya Sen says that ‘prolixity is not alien to us in India’ and also that ‘the arguments are also, often enough quite substantive’(Amartya Sen:The Argumentative Indian; Penguin Books 2005.) . According to Sen, democracy is intimately connected with public discussion and interactive reasoning and there is something unique in Indian history that makes the country singularly suited to democracy rather than taking democracy to be just a gift of the Western world that India simply accepted when it became independent. Democracy as public reasoning is not altogether a new idea. For John Rawls ‘the idea of public reason belongs to a conception of well ordered constitutional democratic society’ (John Rawls :The Law of People.). Alongside with the concept of democracy as public reason is the concept of judiciary as a democratic institution and ‘judicial review as an important avenue for democratic participation’ (Patrick O’Brien:Judicial Review as Democratic Institution.).

Jurists and social scientists in India hold higher judiciary in high esteem. According to Prof. Upendra Baxi “The interpretive leadership of the Supreme Court of India and the Indian High Courts is of a very high order and has impacted on the South Asian and some other Global South jurisdictions”(Prof Upendra Baxi: Judiciary as a source of India Democracy; Seminar November, 2010).Andre Bateille, a well known Sociologist points out that ‘the Supreme Court hold its place in public esteem rather better than the Lok Sabha. Despite occasional allegations of financial impropriety, our Judges are still regarded as being on whole learned, high minded and dutiful in contrast with legislatures, ministers and civil servants”(Andre Bateille:The Institutions of Democracy; Third Praveen Visaria Memorial Lecture; Ahmedabad.). Andre Bateille, without contradicting Amartya Sen, says that “Indian are much more at ease with spoken than with written words” and that “commenting on the inordinate length of our Supreme Court judgments, Nani Palkhivala had once observed that they give clear evidence of the Indian preoccupation with eternity and infinity. Being able to write clearly and well is not just a matter of intelligence or even facility with language. Above all it requires patience and care, and emotional investment of a certain kind”(Andre Bateille:Ideology & Social Science; Penguin Books India 2006). Of late, major criticism against judiciary has sprung from critical insiders who had first hand experience of the working of higher judiciary. Justice Ruma Pal, a former Supreme Court Judge, has candidly said that most of the decisions emerging from higher judiciary are “without original reasoning in support of conclusion’ and are only “compendia or digest on a particular issue”(Justice Ruma Pal:Seven Deadly Sins of Judges; Indian Express; November 12, 2011.). Few years before Justice B.L. Hansaria, had aired similar concern stating that working under pressure Supreme Court has no time for deliberation and therefore very little time for research (Justice B L Hansaria:Do We Need a New Constitution?) . There is an overall feeling that the ‘argumentative Indian’ about whom Amartya Sen was proudly talking is now facing a natural death. A classic example could be found in the recent decision of the Full Bench, Raman Gopi v. Kunju Raman Uthaman (2011(4) KLT 458 (F.B.)).

In Raman Gopi’s case the Full Bench was answering a reference as to which of the conflicting decisions of co-equal benches of the Supreme Court is binding on the High Court and Subordinate Courts. Following the decision of an earlier Full Bench in Joseph v. Special Tahsildar (2001 (1) KLT 958 (F.B.)), the Full Bench in Raman Gopi’s case held that the High Court and Subordinate Courts are bound by the latest among the conflicting decisions of co-equal benches of the Supreme Court. Is the latest among the two conflicting decisions is binding because of the presumption that the previous decision shall deem to have been overruled by the latest decision? Is it because the latest decision shall deem to be correct in view of the development of law by passage of time? Is it because the High Court and Subordinate Court has a duty to anticipate overruling of the earlier decision in the face of the latest decision applying the principle of “anticipatory over ruling”?

Raman Gopi’scase was referred to Full Bench finding conflicting between two co-equal benches of the Supreme Court in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) and Shyam Sunder Sharma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)). Both decisions are of Benches consisting of three Judges. The facts in Raman Gopi’s case are short and simple. A suit for recovery of possession was decreed. An appeal was filed by the defendant out of time along with an application for condoning the delay in filing the appeal. The petition for condoning delay was rejected and consequentially appeal was dismissed as filed out of time. An Execution Petition filed by the decree holder after 14 years from the date of decree was objected by the judgment debtor as not maintainable having filed beyond the period of 12 years from the date of the decree, the prescribed period under the Limitation Act. The preliminary objection was rejected by the Execution Court holding that the period of limitationran only from the date of appellate decree and that the execution petition was within the prescribed period of limitation. The order of the Executing Court rejecting preliminary objection of limitation was under challenge before the High Court in Raman Gopi’s case.

The facts in Chandi Prasad’s case are not similar to Raman Gopi’s case. The reported decision shows that issue involved in Chandi Prasad’s case was relating to enforceability of final decree and maintainability of an execution case in a partition suit which was filed beyond the period of limitation when counted from the date of Appellate Decree but within the period of limitation from the date of Second Appellate decree. The issue raised was whether the date of decree of the Second Appellate Court could be taken as the date to enforce the decree in as much as Second Appeal having been entertained only on substantial question of law and doctrine of merger of Appellate Decree in Second Appellate decree having no application in such a case the period of limitation would runfrom the date of Appellate Decree and not from the date of Second Appellate Decree. The question as to whether an order dismissing an Appeal consequent on rejection of application to condone delay in filing Appeal an order passed in the Appeal or not was not a issue which directly or substantially arose in Chandi Prasad’s case. Though there are passing references in Chandi Prasad’s case referring to a decision of the Delhi High Court that ‘when an appeal is dismissed on the ground that delay in filing the same is no condone, the doctrine of merger shall not apply’ no such legal issue arose in the case and no such law was laid down in that case for universal application. Chandi Prasad’s case had been placed before a Bench of three judges of the Supreme Court doubting the correctness of Ratan Singh v. Vijaya Singh & Ors (2001 (1) KLT 327 (SC) = (2001) 1 SCC 469), a decision rendered by a Bench of two Judges. In Chandi Prasad’s case the Court found that the facts in Ratan Singh’s case were different and the said decision had no application to the Chandi Prasad’s case. In Ratan Singh’s case the court was confronting a question as to whether the starting point of enforceability of a decree is the date of the Appellate Decree or the date on which the Second Appeal was dismissed consequent on rejection of application to condone the delay in filing the Second Appeal. In Ratan Singh’s case a Bench consisting of two Judges of the Supreme Court held that an appeal filed along with petition to condone delay in filing the appeal was only an appeal proposed to be filed. The facts in Shyam Sundar Sharma’s case are also different from the facts in Chandi Prasad’s case and Ratan Singh’s case. In Shyam Sunder Sharma’s case, the trial court decreed a suit ex parte. The defendant filed an application to set aside the ex parte decree. Thereafter the defendant filed an appeal against the ex parte decree along with an application to condone the delay in filing the Appeal. Subsequently the Appellate Court dismissed the application to condone the delay and the Appeal for default. The trial court dismissed the application to set aside the ex parte decree in the suit stating that in view of Explanation to O. IX R.13 that where there has been appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under R.13 of O.IX of the Code of Civil Procedure, the application for setting aside the ex parte decree could not be entertained. It was argued by the Defendant in Shyam Sunder Sharma’s case before the Supreme Court that the appeal having dismissed consequent on rejection of application to condone the delay in filing the appeal, there was no appeal in the eye of law and therefore Explanation to Rule 13 of Order IX of the Code had no application. The Defendant relied on Ratan Singh’s case for the proposition that an appeal filed along with an application to condone delay is an appeal proposed to be filed and is not an appeal in the eye of law. The Bench of three Judges in Shyam Sunder Sharma held that the decision in Ratan Singhwas contrary to the decision in Sheodan Singh v. Daryo Kunwar (AIR 1966 SC 1332) rendered by a Bench of four Judges of the Supreme Court and Mela Ram & Sons v. Commissioner of Income Tax wherein the Supreme Court categorically held that’'where a decision is given on merits by Trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the Trial Court on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be groundfor dismissal of the appeal’. The question as to whether an appeal filed along with application of condonation of delay in filing the appeal is an appeal or an appeal proposed to be filed was not a legal issue directly or indirectly in Chandi Prasad’s case. Chandi Prasad’s case did not lay down any new law of universal application. The observations made in Chandi Prasad’s case which looked apparently contrary to the legal issue settled in Shyam Sundar Sharma’s case was only passing remarks made without any deliberation or discussion. In other words, there is nothing in Shyam Sundar Sharma’s case and in Chandi Prasad’s case to indicate that they were in direct conflict relating to any legal issue or point.

The view taken by some of the other High Courts that when there is a conflict between two co-equal benches of the Supreme Court the High Court and subordinate court should have the freedom to choose between the two decisions as to which of them lays down the law clearly and correctly is not, obviously, in accordance with the law of precedents prevalent in our country. As pointed out by the Supreme Court in Bengal Immunity Co. Ltd v. State of Bihar (AIR 1955 SC 61) ‘English decisions may well have been influenced by considerations which are no longer apply to the circumstances prevalent in India”. The English tradition that when two decisions of co-equal courts are in conflict the court is at liberty to chose between the two cannot be mechanically applied to Indian condition. Prior to 1966 the House of Lords in England was bound by its own decision. In 1898 the House of Lords had declared in London Street Tramways Co. Ltd v. The London County Council that a decision upon a question of law is conclusive and binds the House in subsequent cases. In 1966 House of Lords issued a Practice Statement (Judicial Precedent) reserving the right of House of Lords to depart from a previous decision when it appeared to them right to do so. In Young v. Briston Aeroplane Co. Ltd. (1944 KB 718) the Court of Appeal held that it was bound to follow its own decision and decisions of co-ordinate jurisdiction. It was also held that when two decisions are in conflict it is duty of Court of Appeal to decide which of the two decisions it should follow. No such law exists in India. In India when a co-ordinate Bench is faced with two conflicting decisions of coequal benches of the same court, the duty is to refer the case to larger bench and not to decide which of the two decisions it should follow. What the other High Courts, perhaps, failed to note is the difference between horizontal stare decisis’ and vertical stare decisis’. The duty of the Court of Appeal to decide which of the two conflicting decisions of its own should follow arose in relation to ‘horizontal stare decisis’ where precedential value of earlier decisions of the same court or court of co-ordinate jurisdiction is in issue. In 'vertical stare decisis’ where the duty of the subordinate court is to follow decision of a superior court the rule mentioned in Young v. Briston Aeroplane Co. Ltd. has no application. W.H.D Winder in an illuminating article explains that the proposition laid down in Young’s case by the Court of Appeal applies only when the conflict is between two decisions one on each side and not when there is a conflict between a series of decisions on the one hand and one decision on the other. In such a case the earlier series of decisions have to be followed in preference to the subsequent conflicting decision(W H D Winder;Divisional Court Precedents; Modern Law Review Vol. 9, 1946, page 257). In Watte v. Rees (1854) Plock C .B. is said to have taken a view that I should have felt myself bound by the last authority upon the question of a court of co-ordinate jurisdiction, if the previous one had been adverted to and had been deliberately overruled’. There is, therefore, no rule in England giving absolute freedom to choose between conflicting decisions of co-ordinate courts. When decisions of co-equal jurisdictions are in conflict there is no rigid rule even in England that the subordinate or lower courts shall have absolute freedom to chose from the two and to chose the one which according to the court below lays down the law correctly. The normal rule, it appears is that the last among them will have to be followed by a Subordinate Court on a presumption that the former deemed to have been over ruled by the subsequent decision.

The view that when there is conflict between two decisions of the Supreme Court of co-equal Benches, one on each side, acceptance of the last one as the precedent may create jurisprudential problems. It is now well settled by the Supreme Court that a co-ordinate bench of the Supreme Court has no power to overrule another co-ordinate bench decision. As held by the Constitution Bench in Central Board of Dawoodi Bohra Community & Another v. State of Maharashtra & Another (2005 (1) KLT 486 (SC)), a co-ordinate Bench could only doubt the decision of the earlier co-ordinate Bench and refer the matter to larger Bench or place the matter before the Chief Justice of India. That being the law of the land under Article 141 of the Constitution of India no inference could be drawn that the subsequent co-ordinate Bench had overruled earlier co-ordinate Bench decision. To say that the latest decision of the co-ordinate Bench would hold good in relation to the conflicting former decision of co-equal bench would mean to say that the later decision had overruled the earlier decision, and that would be as held by the Supreme Court in Indian Oil Corporation v. Municipal Corporation ((1995) 4 SCC 96) doing something the later co-equal Bench itself did not do or could not do.

American view regarding the duty of inferior courts when Appellate Court decisions are in conflict finds expression in Auto Equity Sales, Inc. v. Superior Court (57 Cal. 2d 450.) The Californian Court held that when ‘appellate decisions are in conflict the court exercising inferior jurisdiction can and must make achoice between the conflicting decisions.’ The American rule was obviously based on the principle of ‘anticipatory overruling’. According to this view, lower courts owe allegiance to earlier Supreme Court precedent, regardless of how doubtful that precedent may have become in light of developments in other areas. According to the principle of ‘anticipatory stare decisis’ lower courts should recognize when a Supreme Court precedent is effectively dead, whether or not the Supreme Court has acknowledged the murder. According to this view, lower courts should disregard Supreme Court decisions when they are reasonably sure that the Supreme Court would overrule them given the opportunity. This rejection of doubtful precedent by lower courts has been termed anticipatory overruling(C. Steven Bradford:Following Dead Precedent: The Supreme Court’s Ill-advised rejection of Anticipatory Overruling. Fordham Law Review Issue 1;1-1-1990). In Rodriguez de Quijas v. Shearson/American Express, Inc.(109 S.Ct. 1917 (1989) the U.S. Supreme Court spoke in favor of blind obedience to precedent and refused to accept ‘anticipatory overruling’ as law of the land. Even accepting ‘anticipatory overruling’ a sound principle to resolve a problem caused by conflicting decisions of co-equalbenches, the acceptance of the last decision cannot be rigid, because mere conflict cannot lead to an automatic inference of ‘anticipatory overruling’.

In spite of Rodriguez, ‘Anticipatory Overruling’ is a subject vigorously debated in the US. Prior to US Supreme Court decision in Rodriguez, a number of US court opinions indicated, often in dictum, a willingness to disregard a Supreme Court precedent if convinced that the Supreme Court would not follow it. Another line of cases stated that lower courts must follow Supreme Court precedent, doubtful or not, until it had been expressly overruled. Justice Blackmun of the Eighth Circuit Court of Appeals in Ashe (399 F.2d at 45) refusing to disregard two ten-year-old Supreme Court double jeopardy Cases said that ‘this court is not the Supreme Court of the United States. We therefore are not free to disregard an existing fiat and still live holding of the Supreme Court even though that holding is one by a sharply divided tribunal.’ Even courts supporting anticipatory overruling disagreed about when it was appropriate. Most courts required a strong showing that the Supreme Court was likely to overrule before they would disregard live Supreme Court precedent. US Supreme Court decision in Barnette v. West Virginia Board of Education is the most frequently cited example of anticipatory overruling. Barnette involved a constitutional challenge to a compulsory flag salute in public schools. The Supreme Court had upheld the constitutionality of such a flag salute in Minersville School District v. Gobitis (310 U.S. 586 (1940) which, at the time Barnette’s case was decided, had not been overruled. Judge Parker’s rejection of Gobitis became classic. He said that ‘ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority. Of the seven justices now members of the Supreme Court who participated in that decision, four have given public expression to the view that it is unsound, the present Chief Justice in his dissenting opinion rendered therein and three other Justices in a special dissenting opinion in Jones v. City of Opelika. The majority of the court in Jones v. City of Opelika, moreover, thought it worth while to distinguish the decision in the Gobitis case, instead of relying upon it as supporting authority. Under such circumstances and believing, as we do, that the flag salute here required is violative of religious liberty when required of persons holding the religious views of plaintiffs, we feel that we would be recreant to our duty as judges, if through a blind following of a decision which the Supreme Court itself has thus impaired as an authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties.’(Barnette v. West VirginiaBd. of Educ., 47 F. Supp. at 252-53) Steven Bradford says that the US Supreme Court’s stand in Rodriguez is surprising. He says that Supreme Court decisions prior to Rodriguez said very little about how the lower courts should treat doubtful Supreme Court precedent. The Supreme Court had many opportunities to criticize anticipatory overruling, but did not do so. In most cases in which a lower court rejected suspect Supreme Court precedent, the Supreme Court simply ignored the jurisprudential issue and confined its opinion to the substantive issue at hand. Two cases arising in the aftermath of Brown v. Board of Education (347 U.S. 483 (1954) illustrate the stifling effect the Rodriguez position could have. Brown v. Board of Education, decided in 1954, rejected the separate-but-equal doctrine and held that racial segregation in public education was constitutionally impermissible. Two challenges to segregation policies on buses followed the Brown decision. At the time those cases arose, the Supreme Court had not expressly overruled Plessy v. Ferguson, (163 U.S. 537 (1896), which allowed segregated public transportation. Under the Rodriguez view, the lower courts would have been required to follow Plessy and uphold the segregated bus policies, even though Brown clearly disapproved of public racial segregation. In fact, lower courts refused to follow Plessy. One lower court noted that “a judicial decision, which is simply evidence of the law and not the law itself, may be so impaired by later decisions as no longer to furnish any reliable evidence. The Fourth Circuit held that “We do not think that the separate but equal doctrine of Plessey v. Ferguson can any longer be regarded as a correct statement of the law. That case recognizes segregation of the races by common carriers as being governed by the same principles as segregation in the public schools; and the recent decisions in Brown v. Board of Education and Boiling v. Sharpe, which relate to public schools, leave no doubt that the separate but equal doctrine approved in Plessy v. Ferguson has been repudiated. That the principle applied in the school cases should be applied in cases involving transportation appears quite clearly from the recent case of Henderson v. United States where segregation in dining cars was held violative of a section of the interstate commerce act providing against discrimination. If the reaction to Rodriquez is of any indication, it is unlikely that the call for ‘anticipatory overruling’ as a principle to be followed in appropriate circumstances would die in the near future.

Prof. Barry Friedman points out ‘stealth overruling’ is another problem faced by US lower courts (Barry Friedman:The Wages of Stealth Overruling: George Town Law Journal, 2010.). He says that in stealth overruling ‘justices are perfectly aware that they are over ruling but hide the fact that they are doing so. Instead, the court sneaks through opinions that denude earlier cases of effectiveness, yet leave them barely alive’. He says that it is like ‘a justice will have planted a time bomb in a current opinion, hoping friendly lawyer or legislator will later spark the fuse, exploding the precedent into constitutional oblivion’. Tracing the gradual erosion of principle laid down by US Supreme Court in Miranda v. Arizona ((384 US-436) (1966), he said that the progeny based on Miranda’s case showed how gradual stealth overruling whittled the major case to meager facts. The Court in Miranda held that suspect must be clearly informed of the right to consult with a lawyer and to have the lawyer with him during interrogation’. The Court in subsequent decisions diluted the principle and in Florida v. Powell (130 S.Ct. 1195 (2010) without overruling Miranda and held that it was enough for police to provide an instruction that included a right to consult with lawyer and not the right to have the lawyer with the suspect during interrogation. The court perhaps felt that the principle in Miranda was unworkable. It is, however, felt that the lower courts have been reduced to a ‘group of post hoc stamping magistrates’ and ‘are made to carry dead wood’1(Richard Brust: Dead Precedents: The Justices Over Rule, But they do so stealthily.). There are similar Indian predicaments. The gradual transformation of education, which had earlier been a public charity in view of the earlier decisions of the Supreme Court, into profession, occupation and trade, under the fold of Article 19 of the Constitution of India, by a series of subsequent Supreme Court decisions, is an obvious instance.

Jurists are of the opinion that iron clad insistence of obedience to stare decisis would take away intellectual potential of the subordinate courts. A balancing exercise to provide them authority to chose their own course having regard to given facts,ratio dicidendi, erosion of precedential value of the decision, overall growth of law, development of society and also impact of passage of time alone would sustain court as democratic institution. In a democratic society like India there is always room for critical thinking in that direction.

Indelible Memory Never Will Fade

(By V.K. Babu Prakash, Chief Judicial Magistrate, Pathanamthitta)

“I have lived and flourished in a Secular India. In the fullness of time, if God wills, I would also like to die in a Secular India.”

                                            - Fali.S.Nariman in his Autobiography Before Memory Fades

“Before Memory Fades’ instantly attracted me while I was gazing through the book piles of Modern Book Centre, Thiruvananthapuram. Without any second thought I bought the book ‘Before Memory Fades’ penned by Fali.S.Nariman which is rich with his indelible memories. There are outstanding autobiographies and memories of many eminent legal personalities which adorn the legal literature. M.C.Chagla’s ‘Roses in December’ is a remarkable book which tells the intellectual experiences of Chagla and the road he travelled to reach at the helm of affairs of the Bombay High Court. H.R.Khanna’s refined and short book about himself and his life titled, 'Neither roses nor thorns’ shows his early life, his testing times during emergency period and the short stint of his ministership is another gem in the crown of autobiography. But Hidayathulla’s ‘My own Bosewell’ stands out different from the other ones on many facets. The author’s student years in England are depicted in the beginning part. Later, it develops into a crafted literary exposition. The middle part deals with the formative years of Hidayathulla as a budding lawyer and then the metamorphosis of him into the most shrewd and assertive one in the later mature years. His Judgeship and Chief Justiceship are narrated in a rather introspective manner. M.C.Setalwad’s ‘My life’ though is a big book, yet, it seldom contains the personal details and careergraph of the learned author. His main exaltation is on the freedom movement, drafting of the Constitution and his contributions as the first Attorney General of India. He emphasized on the cherished principles of the Constitution and the leading cases in which he appeared. He has extensively narrated his achievement as the First Law Commission Chairman. It is M.C.Setalwad who suggested in the First Law Commission report to constitute a Lokpal in the form of an independent ombudsman with judicial powers to deal with corruption in public life. The book is a wealth of knowledge in the matter of legal wisdom exercised by the author as a patriot as well as eminent scholarly lawyer.

Fali.S.Nariman’s autobiography is an entirely different stuff. Born on the 10th day of 1929 in Rangoon to Zorastrian (Parsis) parents, Fali @ Baba completed his education in India. His parents and their children including little Fali had to leave Rangoon for India and take refuge since Japan bombed Rangoon during the second world war. Fali was sent to Bishop Cotton School, Shimla, thereafter to St.Xavier’s College Bombay. He took his law degree from Government Law College, Bombay. After graduating in law, Fali started his legal career at Payne & Co., as a novice. Later, he joined the prestigious Khanga Chambers of which Sir.Jamshedji B.Khanga was the Skipper. Khanga’s chambers was the super class one which contributed many a   legal luminaries such as Nani Palkhiwala,   H.M.Seervai and Soli.J.Sorabjee to name a few. It is interesting to mention that three parsis have dominated over jurisprudence for the past five decades in India, Nani Palkhiwala, Soli Sorabjee and Fali.S.Nariman. It is surprising to see that this community, given refuge in India when they fled the Islam invasion of Persia, has given to India many distinctive contributions. Dadabhai Naoroji started our freedom movement. Jamshedji Tata launched the path of industrialisation. Homibaba gave India atomic energy for peace. Sam Manekshaw liberated Bangladesh with his shrewd military skill. What an enormous return for a small favour done by our country to those great men.

In the beginning chapters Fali vividly describes his formative years at the bar as a budding lawyer. When Fali was just a year old in the bar, Nani Palkhiwala had entrusted with him an appeal under the Land Acquisition Act. Nani had an engagement before the Income Tax Appellate Tribunal. The appeal came before the bench of Chief Justice M.C.Chagla and Justice Gajendragadkar. Fali was reluctant to argue the appeal, so he told the bench that Nani was appearing in the appeal. Then Chief Justice Chagla asked Fali if he knew the matter.This turned out to be the golden opportunity for Fali to express himself before the bench. Fali ably presented the appeal. Nani came while Fali was rendering his argument. Nani interrupted but Chagla rebuked him saying that Fali has presented the matter well.

The second part of the book is really a classic locus which is the commentary on the most important historic cases on the constitutional provisions. Those are Shankari Prasad (1951), Sajan Singh (1965), Golaknath (1967), Kesavananda Bharati (1973) and Minerva Mills (1980) which laid emphasis about the importance of fundamental rights as part of our Constitution. Fali exhorts how the Judicial interpretation dealt with the amendments which were subject matter in the above cases and held that fundamental rights form part of the basic structure of the Constitution which cannot be amended away. While Fali was turning to be rising star in the lawyer’s profession at the age of 38 he was offered Judgeship at the Bombay High Court. Firmly but politely he declined the offer for financial reasons. The book has a touching episode about the emergency period in 1975. He was the Additional Solicitor General of India then. He recalls the dubious days like 12th June 1975 when the Allahabad High Court gave the verdict that Indira Gandhi indulged in corrupt practice in her election which disqualified her from holding public office. On 22nd June 1975 an appeal was moved before the Supreme Court by Nani Palkhiwala for Mrs.Gandhi. He pressed for the stay of Allahabad High Court’s verdict. Nani argued before V.K.Krishna Iyer and got the verdict stayed. It saved Mrs.Gandhi from the illfate. Soon after Mrs.Gandhi declared emergency, the black chapter of Indian democracy. Fali resigned from the post of Additional Solicitor General in protest of declaring emergency and suppressing civil liberties and rule of law.

Fali gives great acolade and homage to the eminent Judges H.R.Khanna and V.R.Krishna Iyer in the book. He held that indeed H.R.Khanna knew, when he signed the dissenting judgment in A.V.M.Jabalpur case (1976) that he was signing away his future Chief Justiceship. However, Fali suffered severe criticizm when he appeared for the Union Carbide Corporation in the Bhopal Gas tragedy case before the Supreme Court. Professor Upendra Baxi and many others described him as “fallen angel” questioning his representation as a human right’s activist. Upendra Baxi even declared that he will not share seats with Fali anymore in any public functions. There is an interesting chapter in the book in which Fali explains his stand. He has also written letters to Upendra Baxi and Baxi has replied to them also. Fali has candidly published those letters and replies in the book which shows the transparency of his mind.

'Before Memory Fades' is not only a book about legal achievements and professional success of a brilliant lawyer, but also is the outcome of a vibrant story teller, whose keen observations about places, people, circumstances and above all nature and human life. The book is a must read for the book buffs. Fali was awarded Padma Bhushan in 1991 and Padma Vibbushan in 2007. To conclude, the book will simply awe and inspire one who reads it avidly. Memory is a form of images kept stored in the backyard of human mind. The good ones are like small rainbows in the puddle of drizzle. Some memories are little miracles that light up the way on dark and rainy nights.

Gender Equality and Intestate Succession of Females under Hindu Law

(By Advocate Mamatha T.K., LL.M., Guest Faculty in Law, CUSAT, Kochi)

Personal laws are always considered as antithetical to the principle of gender equality. The Hindu Personal Law which was not an exception to this rule has undergone a drastic change by the enactment of the Hindu Succession Act, 1956. The system which was purely based upon the concept of patriarchy was widened and thereby the rights which were earlier denied to the women community were then conferred to them. The rule of limited ownership of property was eliminated and replaced by the right to hold property as an absolute owner (The Hindu Succession Act, 1956, Section 14.). The Hindu Succession (Amendment) Act, 2005 established that a woman can be considered as a coparcenar for all purposes under Hindu Law (The Hindu Succession (Amendment) Act, 2005, Section 6.). Hence the Hindu Succession Act, 1956 and the Hindu Succession (Amendment) Act, 2005 were treated as highly revolutionary, which revamped the societal status of a woman and thereby brought them in parity to a certain extent with men folk.

Despite all these developments, a major area of discrimination which persists in the Hindu Succession Act, 1956 is the rule of intestate succession of a Hindu female (The Hindu Succession Act, 1956, Section 15.).This issue assumed a serious nature when the judiciary was unable to extend justice due to the intricacies involved in the provision. The Law Commission also played its part by recommending new changes to resolve it. But nothing changed and it still remains in the statute book, ridiculing the principle of equal status for men and women, which our Constitution upholds.

Provision  for  intestate  succession

The rules of intestate succession to a Hindu female are enumerated under section 15 of the Hindu Succession Act, 1956. It consists of three parts which contain different rules of succession based upon the sources from which a female obtains property. The modes which determine the devolution of property of an intestate female are:

         • Property inherited from her own father or mother

         • Property inherited from her husband’s family

         • Property obtained from other sources

If a woman acquires certain property from her father or mother, on her dying intestate, the said property will devolve upon the heirs of her father (The Hindu Succession Act, 1956, Section 15(2)(a).). If the property retained by a female is the one she inherited from her husband or father-in-law then the heirs of the husband will be entitled to the same (The Hindu Succession Act, 1956, Section l5(2)(b).) . These two provisions will operate only when the female does not have any issues. If she has children, then they will be entitled to the property irrespective of the sources from which it is inherited.

But the manner of devolution is different if the property which a female holds is obtained from other sources. What all constitute the “other sources” is not mentioned in the Act. From the provision it can be understood that, if a woman is able to acquire some property other than from her husband or his family or from her own family, then it can be termed as the property obtained from “other sources”. This type of property will initially devolve upon the husband,  sons and daughters (including children of any predeceased son and daughter) of a Hindu female dying intestate. Secondly, if the woman does not have any of the above said relations, then the heirs of her husband can have the property of the intestate. In the absence of above said heirs, the mother and father of the female will be entitled to the property. If there are no members in any of the previously stated set of heirs, the fourth preference will go to the heirs of her father and lastly, to the heirs of her mother (The Hindu Succession Act, 1956, S.l5(1).) .

References to the prior status of women in society may justify the reasons for introducing such a peculiar system of succession based upon the sources of inheritance. The legislature while framing this scheme was very much influenced by the whole Mitakshara law, its concept of stridhana and inheritance by a female in a double capacity. This reversion of the once-inherited-property back to her father’s or her husband’s heirs shows a desperateness on the part of the legislature to treat her only as a temporary occupier (Poonam Pradhan Saxena,“Succession Laws and Gender Justice”, in Redefining Family Law in India. Routledge, New Delhi  (2008), p.289.). The property which she receives from either family will go back to them on the event of her dying intestate.

Recent controversy regarding the intestate succession of a Hindu female revolves around the devolution of third category of property which she obtains from “other sources”. According to the Hindu Law, if a person earns some property out of his own toil and moil, it will be the separate or self-acquired property of that one concerned. As regards a woman, this self-acquired property will naturally come under the category of property obtained from other sources. The problem actually begins at this juncture. The rules set out for the devolution of the self-acquired property of a female create tension and unrest among the whole community.

The extent of injustice perpetrated by this section became evident in Omprakash and Others v. Radhacharan and Others (2009 (2) KLT 971 (SC) = (2009)15 SCC 66.).  In this case, the female whose devolution of property was under question, left the home of her husband (thrown out) shortly after his death. Thereafter, she lived with the aid of her own parents. Before dying intestate, she left a huge sum earned out of her employment. The separate property of a woman will of course come under the term ‘other sources’ whose devolution is determined by Section 15(1) of the Hindu Succession Act, 1956. As per this section, due to the absence of heirs in the first category, the property was about to naturally devolve upon the second group of heirs that is, the heirs of the husband, who had driven her out from the matrimonial home.

The intestate female’s mother challenged this manner of devolution of property before the Supreme Court. The Court agreed with the fact that the deceased female was completely denied support from her husband’s family and also she had no connection with her matrimonial home after the husband’s death. But still by invoking Section 15(1) of the Hindu Succession Act, 1956 the Court dismissed the appeal filed by mother of the deceased and upheld the rights of husband’s heirs to that property. Even though the factual situation warranted an opposite order the Court was of the view that sentiment or sympathy can never be the guiding factors to pronounce a judgment (Supra para. 10.).The court identified this case as a hard one stating that “because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible (Supra para. 10.).”  Here the existing provision of law breeds injustice and it goes against the principle of gender equality too. Law of equity and good conscience demands an order favouring the appellant but in reality the hands of Court were tied up by the prevailing rule of intestate succession. The language of the court implies that it had pronounced such a judgment only because the law says so. Otherwise the court may have easily adjudicated the matter in favour of the appellant.

At this juncture, what attract our attention are the provisions of intestate succession to the property of a Hindu male. As far as a Hindu male is considered there is no distinction of property based upon the sources. The property of a Hindu male should primarily devolve upon Class I heirs. If there are no heirs under Class I the second preference will be for the Class II heirs. In the absence of both Class I and Class II heirs, agnates of the deceased will be entitled to the property. Finally, the property will be vested with the cognates if heirs in other three groups are absent (The Hindu Succession Act, 1956, Section 8.).

While analyzing the provisions of intestate succession to both males and females we can witness substantial differences. The Class I heirs who are entitled to the property of an intestate male includes his mother and the first category among the Class II heirs contains his father (Non-inclusion of the father in Class I is being challenged and the Law Commission has recommended to include father under Class I heirs.). The parents of a male are given much predominance at the time of distribution of his property or in other words, they are entitled to the property of their son in the first instance. With respect to a female we have found that her husband’s heirs will gain the right to her property before her own parents. Incorporation of such a provision shows the pure dominant character of men who bases the justifications on the Hindu culture, which severs the relation of a woman with her family at the time of her marriage. As per the Hindu religious system, from the date of the marriage a woman’s family is her husband’s family and a woman spends substantial part of her life in matrimonial home. By solely emphasizing this fact, the law makers have granted primary consideration to family members of her husband while her own parents were treated as secondary. Moreover, in this post modern era the conventional concept of family has drastically changed and it is bald to say that women are spending a substantial part of her life in matrimonial home. Is this provision serving justice when she is completely severed from her husband’s family? Omprakash ‘s case depicts such a situation in which law became a hurdle to justice even though law is made for its administration. The deceased female’s property which she earned with the help of her parents had devolved upon the most undeserving persons on earth as far as she is concerned. The term “heirs of husband” is wide which will include a large number of persons related to him. It is not at all fair to keep parents of the female away till each and every member of her husband’s family disappears.

This principal status for the husband’s side was granted due to the traditional concepts which prevailed during early decades. But now the situation has changed tremendously and the stature of women in the eyes of society has improved. She has emerged from the position of a home maker to bread winner and has occupied higher echelons in the society. Percentage of self employed women in the society is evidently increasing. Hence they gain more respect and now enjoys a better position compared to their predecessors. So in this changed scenario, chaining them with the age old concepts should cease. Due to the operation of this provision not only the female faces inequality but also her parents. The parents are denied the rights to their child’s property only because the child is a female. Thus they are also facing an implied discrimination compared to that of the parents of a male. The care and concern of the parents of a female towards her child is disregarded completely. In short, this section turns out to be a tool having the power to suppress the hard earned independence and dignity of women. The only way to resolve this crisis lies with the timely interference of the legislature to make the required changes to do away with this injustice.

Recommendations   of   Law   Commission

The Law Commission headed by Justice AR. Lakshmanan, being convinced by the injustice set out to women at the time of succession, had put forth a proposal to amend Section 15 of the Hindu Succession Act, 1956 in 2008. Rightly the Commission perceived the changes which had been brought about in the Indian society with respect to a woman. It identified the changes in the structure of families from joint to nuclear and consequent developments which followed as a result of the woman empowerment. It recognized the economic independence which the woman had gained through these decades. The Commission very properly agreed with the injustice which had been faced by the woman community for the past years and it established that the legislators did not contemplate a situation in which woman acquires property by her own hard work (13.       Para 4.2.).

The Commission was of the view to equalize the position of women with men in the case of intestate succession. But simultaneously it reiterated that while enabling the female’s parents to inherit the self acquired property, her husband’s parents should also be considered in the same footing. The Commission report establishes that the social ethos and mores of our community would not allow the complete exclusion of members of husband’s family from the list of heirs. Shortly, as per the recommendations of the Commission the female’s mother inherits her self-acquired property along with her mother-in-law. Similar is the case with respect to other members in her natal family. For example, the brother of a female is entitled to inherit her self-acquired property together with her husband’s heirs.

The report of the Commission is undoubtedly a progressive one which at least recognized the plight of women at the time of intestate succession and made some remarkable changes.

Conclusions

Personal laws are governed by the rituals, spiritual embodiments and ties of a particular community. It is obvious that the law makers should consider these elements at the time of framing a law. At the same time, it is mere rigmarole to say that the religious and social concepts which existed earlier should be administered, and followed strictly in the post modern society which is drastically undergoing frequent changes. Personal laws should be refreshed and revamped timely in tune with the transformation of society.

The Law Commission has pronounced certain progressive and revolutionary recommendations which if adopted, will altogether revise the prevailing pattern of intestate succession of females. Moving further forward from what the Law Commission has suggested the necessity of treating the husband’s family in parlance with the female’s own family needs reconsideration. Observing through the lens of gender equality, granting equal rights to the husband’s family seems to be brazenly inappropriate. At the time of intestate succession of a male, his wife’s parents do not have any relevance and cannot be seen anywhere in proximity. At the time of marriage or later they are enjoying the fortunes which their wives bring home as stridhana or as partitioned property. There may be exceptions for all these arguments but that does not invalidate the rule. This is the common phenomena which take place in a normal Hindu family system. In spite of all these, if the husband’s family is again given predominance it is sheer injustice to the female and her family. The entire group of husband’s heirs howsoever remote have been made to inherit wife’s property, but she is not entitled to inherit from the former. These remote heirs will go with her property and will be preferred above her parents. An analysis of these provisions shows the relegation of the inheritance rights of a woman to a very inferior position. The laws have created inequities in the context of fast changing social needs (Supra n.7, p.291.).The female’s parents are also suffering from an implied discrimination only because they gave birth to a female child. If it was otherwise the mother would be entitled to the whole property in the absence of spouse and children. It will be more just if the parents of the female alone become entitled to her self- acquired property in the absence of her husband and children. The Commission has also pointed out that if a female is not happy with these rules then very well she can write a will during her lifetime (Para 5.7.). Death is one of the most unexpected events which visit a person in the most unforeseen time. So we cannot always justify the application of this provision on the ground that a female may write a will during her lifetime. It is not a valid excuse to rely upon.

Many legal scholars have stressed upon the need to change the law but till now it has not been amended (For example, Prabha Sridevan, a former Judge of the Madras High Court and Chairperson of Intellectual Property Appellate Board has pointed out this issue in her article “A Law that thwarts Justice” in The Hindu dated June 26, 2011.). The National Commission for Women has recommended for the complete deletion of Section 15 from the Act (http://ncw.nic.in/frm Report Laws 19.asp.). In midst of all these protests it is not fair for the legislature to ignore such a serious issue which will ultimately affect the basic principles on which our society stands. We have a Constitution which promotes positive/protective discrimination for women. It not only promotes gender equality but also preaches for creating laws for the development of socially excluded groups including women. By keeping silent over this issue for past many years our legislature is impliedly promoting gender discrimination which goes against the fundamental principles of our legal system. It is high time to amend the concerned section as it serves as a great injustice to the whole woman community in the country.