Some Thoughts on Hindu Succession (Amendment) Act

(By K.G. Balasubramanian, Advocate, Ernakulam)

Hindu Succession Act, 1956 - An Act to amend and codify the law relating to intestate succession among Hindus! 1976 - An Act to abolish the Joint Family System among Hindus!! 2005 - An Act further to amend the Hindu Succession Act, 1956!!! Brother, the Acts have become classic instances of gender discrimination.

Ss. 6, 8 and 15 HS Act dealt with succession to the estate of Hindu males and females. S.17 deals with succession to the estate of marumakkathayees in particular. In the case of a male Hindu dying intestate, application of the Schedule is inevitable. Persons coming under Ss.15 and 17 are different from those coming under the Schedule. Why this discrimination? One feeble attempt at reconciliation is the amendment in 2005, whereby the Schedule has been put on some sort of a consequentially balanced (?) platform. In Mitakshara School, four generations of males were recognised as coparceners, as accepted in the Schedule originally. Under Marumakkathayam, the degree of female heirs acquiring right by birth in the property of an ancestress is theoretically infinite, restricted by only Mother Nature! Somewhere along came Kerala Joint Hindu Family System (Abolition) Act, 1975 and: Boom! On both counts!! Tributes to the Karta and Karanavan?!!

But, on the touchstone of Article 14, can “We, the people” maintain that there is equality in the matter in God’s own country? Does not HS Act retain the difference generated in 1956 between males, females and their estates? Is any public interest served thereby? Does such differential treatment have any nexus with any object? This segregation in 1956 might have been justifiable on religious precepts - made anachronistic by the Abolition Act! Going by 1993 (1) KLT 174, S.17 HS Act will haunt two more generations.

That brews another controversial issue. Is not coparcenary revived? Does not new S.6 HS Act repeal Ss. 3 and 4 Kerala Joint Hindu Family System (Abolition) Act? Can these provisions stand together? Neither the Kerala Act nor the HS Act has done away with Mitakshara law absolutely. The Kerala Act says no to right by birth and pious obligation. It has not, and cannot, annihilate communities or other religious rights, rites and customs. It has not defined ancestral property, a concept that has with stood the test of time, moulded and nurtured by Hindu philosophy and judicial recognition through centuries. It has not fully rewritten Manu’s Code or of Yagnavalkya. It refers to undivided Hindu family “governed by” the Mitakshara law. Millions in scores of communities in the State follow Mitakshara School in different forms and customs. Are they not “governed by” Mitakshara law? Governed, not in estate, but in food and worship, in birth and death, in marriage, in all things Hindu!

Look at S.4 of HS Act. Read it along with S.6(5) and the explanation. The disintegration effected by S.4 of Kerala Act is not included. Ss. 3 & 4 of the Kerala Act are set at nought. Really, new S.6 of HS Act has resurrected coparcenaries in Kerala. Even if abrogation of S.4 of the Kerala Act were held to be only from date of commencement of new S.6, the property obtained by persons “governed by” Mitakshara law under the Kerala Act till that date will be ancestral property as against their sons and daughters and descendants. With the added discrimination that under HS Act, daughters get what sons are denied by the Kerala Act. I do not think that even the abstract doctrine of eclipse will save the situation. Reading down? No way, Mr. Draftsman.

My first impression at the amendment to HS Act and its effect was exhilaration. One more small step in the right direction. But on closer scrutiny, I am petrified. The real effect of the repeal, if it is so, is that the object of the Kerala Act is demolished. How else can one now view S.4(1) and (2)? Shockingly, inadvertence (?) has lifted its head again. New S.6 does not touch Marumakkathayam School. The situation is, while law of succession under Marumakkathayam stands abolished, it is resurrected under Mitakshara, daughters included. The Parliament has created work for trapeze artists. Which way should one swing? Or really, excuse me, where were our representatives at the time of discussion of the Bill in the Parliament? In Parliament? Or elsewhere? Or ................?

Tailpiece: Aye, Aye, Guv’nor, the gunnie misfired his broadsides. ‘E shudav looked first! '

Marching Women under the Domestic Violence Act

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

All the laws are Imperfect, even if made by a committee of arch angels  

                 --  Bernad Shaw

It has been about nine months since the Domestic Violence Act, 2005 has come into force in the Country.  When one looks at the litigation Scenario under the new Act, it seems like an alarming  picture. A flood gate of new litigation is opened under the Act, whereby women are rushing to the criminal courts to get various kinds of remedies and redressals. They seek financial protection, protection order on shared houses, restraint order against violence, compensation for illtreatment, medical expenses, education expenses of children etc. Though the Act contains an ameliorative provision under S.14 to have counselling of the issues, indeed it has become purposeless. As no counsellors are appointed, Criminal Courts find it difficult to have proper counselling between parties. Since matrimonial dispute is the core issue under the Act, counselling is one of the effective remedies which should be recommended than the other forced remedies prescribed by the Act. The District Probation Officers who are designated as the protection officers as per the rules are working under a compelling circumstance as they are not provided with material resources and infra structures. One may wonder how Kerala got this much women in distress who knock on the Court under the D.V. Act. Both educated and illiterate, rich and poor, employed and vagrant, old and young are approaching the court with petitions under the D.V. Act. Due to the alarming rate of filing of cases, Criminal Courts find it difficult to attend with other cases as there is a time limit imposed by the D.V. Act. The Govt. has to seriously consider in setting up special or new Courts for the remedial measures under D.V. Act. Ordinary criminal Courts are in an explosive state of pendency with other cases thereby other litigants who seek justice will be put into trouble by the flux of this new litigation.

Next, when we look at the provisions of the Act it has so many pit falls. The Act is a hurry - burry legislation which did not have wider discussions before it became enacted. As it is the brain child of Mrs. Renuka Chaudhary, the Union Minister, it is women friendly . The recent observation of the Hon’ble Supreme Court that the Act is a ‘clumsily drafted one which needs through over hauling opened the mind of the Minister to have amendments on its provisions. The definition of the expression shared household occuring in S.2 (s) of the Act creates so much confusion and difficulty in interpreting it in a pragmatic sense. Again the definition of respondent occuring in S.2 (9) of the Act creates another question mark that a respondent can only mean a male person alone thereby petition can be filed by a female against a, male person alone. Though the Act lays down in S.28 that the procedure would be governed by the provision of the Code of Criminal Procedure, it does not specifically make out any provision for execution or implementation of the order passed under Ss.18, 19, 20, 21, 22 or 23. Of course the Act contains provision that breach of any order passed under the Act will invite penal consequences under S.31, nevertheless it is not a relief to the petitioner who only wants an implementation of the order granted in her favour. As the objective of the Act is to give civil remedy to the aggrieved woman, it must have prescribed express provision for execution of the order passed by the Magistrate.

S.12(1) of the Act says that an aggrieved person or a protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under the Act. Sub-s.4 of S.12 says that the Magistrate shall fix the first date of hearing, which shall not be ordinarily be beyond three days from the date of receipt of the application by the Court. The mode of service of notice is prescribed in S.13 which says that it shall be served by the protection officer by such means . This causes a lot of difficulty. First of all, the period of three days prescribed for hearing within which the notice is to be served on the respondent is a never achievable proposition. Supposing that the respondent is a person from a far away place, then how the protection officer could get the notice served on the respondent within three days?  Further, the forms of prescribed notice scheduled in the rule are not printed and supplied at all. Again, the protection officers would find it difficult to give the notice on the respondent as they are not provided with any means or resources for service of notice. Another point to ponder is that the Magistrate who takes cognizance of the case, who passes the order himself has to execute the order one way or other. The protection officer appointed under the Act looks like a person to render voluntary public service as it seems that he has got a duty to search and find out domestic violence in his area and report it to Court. The next strangeness of the Act is that when there is no other evidence except that of the aggrieved woman, her sole testimony shall be relied upon by the Magistrate in deciding the existence or otherwise of the domestic violence. With the drastic provisions of the Act along with the penal provision of S.498 (A) I.P.C. as well, the women in the country are hunting down their erring men partners like sheep to the shamble. 

Insult Not The Dead*

(By T.P. Kelu Nambiar, Sr. Advocate)

Dear Mr. President,

I am to entreat you, request you, and desire you to read this letter carefully, attentively, and repeatedly. I pray your patience; and please do not destroy the prayer. The matter comprised in this letter may not be treated in a ‘take it or leave it’ fashion.

I am constrained to say, regretfully, I have a hunch that lawyers are being treated as the legal profession’s apartheid; and lawyers are unable to protect their own rights. And, I have learnt to trust my intuition.

I am on the aspect of obituary reference accorded to ‘dead’ lawyers. For some time now, when an advocate passes away, ‘reference’ in Court, touching the deceased, is held after a lapse of long number of days, probably waiting for other lawyer-deaths, so that condolence meetings could be combined into two-in-one or three-in-one, holding a mass meeting for all together. This has happened many a time in recent past. This I say with the veracity of a historian. Please look into the ‘Red Book’ and find out the origin. When Judges or retired Judges pass away, obituary reference is almost instantaneous. Recently, a practising Senior Advocate was murdered on the evening of July 12, 2007. A few days later, (on 19-7-2007), a retired Judge of the High Court ( retired long, long ago), passed away. Obituary Reference by the ‘Full Court’ was held for the ‘dead’ Judge, the next morning itself, you, the President, participating. But, obituary reference to the lawyer was held still later, you, the President, not minding. Why differentiate between “mortal ghosts”, to borrow the expression of Dylan Thomas. Is the Association going down in the estimation of right-thinking members? God forbid!

When Adam brought death into the world, he did not devise great death or small death. “And all the dead lie down”; said Emily Dickinson.

Let me probe at some length into the secret life of the English language. John Donne sang:

“Death be not proud.........

Everyman’s death diminishes me; because I am involved in Mankind. Therefore never send to know for whom the bell tolls; it tolls for thee”.

Everyone possesses a body of ‘dusty death’. Here, there is no difference between a soldier and a scholar, a prince and a plebeian. G.K.Chesterton perceived ‘democracy’ in the dead. Death stands still as Miss Havinsham’s clock. Death closes all, mused Lord Tennyson. And, said T.S.Eliot, “Death has undone so many”. By dying, you make space. 

Differentiating the dead, amounts to insulting the dead. Death cannot be blacklisted. According to the Old Testament, death is the deliverance from the body of death.

Let me quote Edna  St.Vincent  Millay:

              “Down, down, down 

              into the darkness of the grave 

              Gently they go,

              the beautiful, the tender, the kind, 

              Quietly they go, 

              the intelligent, the witty, the brave”.

Shakespeare made Macbeth perorate:

              “Life’s but a walking shadow, a poor player, 

              That struts and frets his hour upon the stage, 

              And then is heard no more; it is a tale 

              Told by an idiot, full of sound and fury, 

              Signifying nothing”.

“There is no way to destroy death”. Life insurance agents work on this premise. 

In sum, ‘death is life’s high meed; as John Keats put it. “In the last analysis, it is our conception of death which decides our answers to all the questions that life puts to us”. This is not my opinion, but of Dag Hammarskjold. Everybody is struck down by death’s feather. On death, you forget your past. Therefore, differentiate not the dead; insult not the dead. Death takes everybody by the heart.

George Bernard Shaw’s famous words may be quoted: “Life levels all men; death levels the eminent”. It was Dylan Thomas who said: “After the first death, there is no other”. One may live like a prince, or king, or Senior Advocate, or Judge, or Philosopher, but does not die like that. It is said that Jesus Christ alone died like God. 

My live body may, perhaps, brook any insult; but my dead body would revolt against the slightest affront; and, to register such a protest only, I visualise My ‘dead body alive’. Kindly, therefore, spare me. I leave My last will to the Kerala High Court Advocates Association: “Please do not hold a belated condolence meeting in Court with reference to me, and that, too, before an attenuated gathering”.

Dear Mr.President, kindly publish this letter for the information of the members of the Association. And, if so advised, please communicate a copy to the Registrar-General. 

I do reserve my right to publish this letter, through the medium of our esteemed Law Journal, the Kerala Law Times.

Long Live the ‘Dead’ Lawyer.

Tail-piece:

       “Death and the cross are the two

       great levellers; kings and their

       subjects, masters and slaves,

       find a common level in two places -

       at the foot of the cross, and at

       the silence of the grave”.

                                                -- Charles Caleb Colton

       “APw N¯p KPambv ]nd¡p¶p 

       KPw N¯§PhpamboSp¶p

       \cn N¯p \c\mbv ]nd¡p¶p

       \mcn N¯pSt\mcnbmbv t]mIp¶p

       Ir]IqSmsX ]oUn¸n¨oSp¶ 

       \r]³ N¯p Iranbmbv ]nd¡p¶p

       Cu¨ Ns¯mcp ]q¨bmboSp¶p 

        Cuizcsâ hnemk§fn§s\.” 

                                    -- Poonthanam in 'Jnanapana'

* Letter, dated 4th September, 2007 addressed to the President, Kerala High Court Advocates Association, by Senior Advocate T.P. Kelu Nambiar)

Some Thoughts on “Denial of Title” and “Estoppel”

(By K.G. Balasubramanian, Advocate, Ernakulam)

1. Estoppel between landlord and tenant in the setting of Kerala Buildings (Lease & Rent Control) Act is baffling. Made so more by interpretation, than its setting. I feel the issue of denial of title of the landlord  by the tenant warrants a different consideration - precedents notwithstanding.

2. In many other States, denial of title spells doom to the tenant. But in God’s own country, it is maddening, if not sickening, that denial of title is an escape route to an unscrupulous tenant, to delay judgement day by compelling the landlord to invoke S.11(2) or its companions in a civil Court! Why? I have personally nothing against tenants. They also serve. But, one is entitled to look for parity, purity, proportion and propriety in legislative drills. More, in the case of a Self Contained Code.

3. The definition of landlord vide Section 2(3) is not exhaustive. It includes a person who is   receiving or  is  entitled to receive rent as agent, trustee,   executor, administrator, receiver, guardian. It does not, and cannot, include one who had received rent. The dichotomy between past and present receipt of rent is intentional. The decisive element is the right to receive rent, in praesenti, either for himself or on behalf of another. Take the case of the so-called landlord who, the tenant belatedly learns, is neither the owner of the building nor an agent, etc., of another, but only a usurper. Or that of the landlord, whose title is vitiated, being sham or fraudulent on tenant and public. Though he might have received rent, can he seek eviction? No, according to me, because receipt by him was legally not either for himself or on behalf of another. Lawful entitlement to receive rent appears, to me, to be the concomitant of S. 2(3).

4. In view of AIR 1979 SC 1409, one has to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. In AIR 1988 SC 1413, their Lordships held that: “the law as to the estoppel of a tenant under S.116 of the Evidence Act was a recognition, and statutory assimilation, of the equitable principles underlying the doctrine of estoppel in relation to tenants. The Section was not exhaustive of the law of estoppel. The section inter alia, predicated that no tenant of immovable property during the continuance of the tenancy, would be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property. There could be a denial of the title of his landlord without the tenant renouncing his own character as a tenant, where, for instance, he had set up a plea of Jus tertii”. Their Lordships also accepted that: “But, here too, it is open to the party sought to be estopped to explain away the attornment, and so escape the estoppel to which he would otherwise be subject, by proof that, when he so attorned, he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if such error or ignorance was due to the fraud of that person”. The “notwithstanding” manoeuvre in S.11(1) reigns the field and the rule that payment of rent to the landlord estops the tenant is not applicable in all cases, an inevitable situation, with due respect to precedents to the contrary on the point.