Liability of Hindu husband for maintenance

Of his wife

(K. K. Unni Advocate, Trichur)

I read with interest an article" in the above caption appearing in the September issue of AIR 'contributed by Advocate Sri. B. R. Mandlokar of Nagpur The article is mainly directed against the decision of the Supreme Court in Nanak Chand v. Chandra Kishore Aggarwal and others reported in AIR. 1970 Supreme Court 446. The writer fears that the decision has created an anomaly by holding that the scope of S. 488 Cr. P.C. is different from that of S. 4 (b) of Hindu Adoptions and Maintenance Act 1956 and that the result of the decision is if the wife seeks remedy of enforcement for maintenance in Criminal Court her personal property and income derived there from has to be ignored.

What is decided in the above said case by the Supreme Court is that there is no inconsistency between the provisions in the Hindu Adoptions and Maintenance Act and S. 488 of Criminal P.C, that both can stand together and that S. 4 (b) of Adoption and Maintenance Act does not repeal or affect in any manner the provisions contained in S. 488 of Criminal P.C. One other point considered and decided in the decision by the Hon'ble Court was as to the meaning and cope of the word 'child' used in S. 488. Having considered the different meanings of the word 'child' Their Lordships held that in S. 488 of Cr. P.C. as the word is used in correlation with the father, it does not mean a minor son or daughter and can only mean a son or daughter without any limitation as to age, the only qualification necessary to entitle to maintenance being that it is unable to maintain itself. This decision sets at rest the conflict of opinion on this point amongst the High Courts and even among the Judges of the same High Court.

In the light of what has been decided in the above said decision of the Supreme Court, it is difficult to imagine how the fear expressed in the article by Shri. Mandlokar could be justified. For one thing the question of maintenance of wife did not arise for consideration in the said case nor was it considered, the claim in the case being for the maintenance of children only. It is not therefore correct to say that the result of the Supreme Court decision is ''that if the wife seeks remedy of enforcement of maintenance in Criminal Court her personal property and income derived there from has to be ignored and excluded in determining the quantum of maintenance to be awarded to her." The Supreme Court Judgment does not even touch this aspect. The learned writer of the article appears to be under the impression that it is only by applying the provisions in the Hindu Adoptions and Maintenance Act that a Court will have the power to take into account the income of the wife for the purpose of fixing the quantum of maintenance. That is quite unnecessary. For one thing the Hindu Adoptions and Maintenance Act applies to Hindus only. Can it be that regarding the Hindus alone the wife's income is to be taken into account and not in the case of other communities? S. 488 of the Criminal P.C. is intended for all communities. It is a self-contained provision. It gives wide discretionary powers to the Magistrate in the matter of granting maintenance. Where the court's power is discretionary all factors including the resources of the wife can be taken into account for fixing the quantum of maintenance or even to refuse the grant of maintenance. There is nothing in S. 488 to show that in fixing the monthly allowance the court should consider the means of the husband alone and shut its eyes to the means of the wife. S. 488 does not warrant the grant of maintenance to a wife; with a fabulous income by a husband with meagre resources.

Instances are not rare where courts have not only considered the income of the wife in arriving at the quantum of maintenance to be granted but have even re­fused to grant maintenance to the wife when she has sufficient means to maintain herself. There is a catena of decided cases of various High Courts bearing on this question. I would like to refer only to a very recent ruling of the Kerala High Court reported in 1970 KLT. 554 (Ramankutty Achan v. Kalyanikutty) in which, after discussing the case law on the point the learned Judge holds that the wording of S. 488 does not warrant the exclusion from consideration of the wife's income in fixing the rate of maintenance. The wife in that case was an earning member and her income almost equalled that of the husband and being sufficient for her maintenance according to her status, the High Court set aside the order granting her maintenance.

Black-listing and the Law

(P. C. Abraham, M.A-, M.L, Advocate, Ernakulam)

With the increase in Governmental activities, now the State frequently enters into agreements with private parties for procuring supplies and also for executing works. For this purpose, Government invites tenders from traders and contractors. Though the economic interest of the State demands encouragement of competition, at times, the State may debar a person from competing for a Government contract. This is often done by putting a trader's name in a blacklist. More often than not, this debarment may have something to do with the antecedent conduct of the trader. But he is seldom given notice or an opportunity to refute the charges against him. Here the point to be considered is whether the State can black-list a person in violation of the 'audi alteram partem' principle.

That black-listing will have serious consequences to the individual concerned cannot be denied- Even private parties may not enter into financial arrangements with a person whose name is in the Government's black-list. At one time there was a feeling among lawyers that Government contracts of the type mentioned above were only "privileges" and the citizen had no 'right' for them. Echoes of the same can be seen in many of the Indian decisions, ((a) Bhaskaran, V- State of Kerala 1958 KLT. 334

(b) C. K Atchuthan v. State of Kerala 1959 SC 490

(c) Vedachala Mudaliar v. Divisional Engineer, AIR. 1955 Mad- 335) Now, there is increasing recognition among jurists of the principle that the administrator is bound to observe rules of "fair-play" even while conferring or denying a 'privilege'. Walter Gelhorn says: (As quoted in 1968 KLJ 618 at 629)

"A privilege is not something to be dealt with lightly. Much of modern life, it may said, depends on the continued enjoyment of a privilege such as a job with Government or receiving a pension payment, or retaining an occupational license or remaining in the country one has chosen for his home. The deportation of an alien, Justus Brandeis once realistically declared not only deprives the alien of his liberty, but 'may result also in loss of both property and life; or all that makes life worth living-' can a modern society happily allow decisions of such gravity to be made in terms that are unchallengable because the term need never be fully revealed?"

Kenneth Gulp Davies says (Kenneth Culp Davies "The Requirement of Trial-Type a Hearing Harward Law Review Vol 70 p. 196 at 225)

".........Similarly one who has no right to sell liquor, in the sense that the State May prohibit the sale of liquor altogether, may nevertheless have a 'right' to fair treatment when State Officers grant, deny, suspend or revoke liquor licenses. The State need not grant any such licenses, but if it does so, it must do so fairly without racial or religious discrimination and without unfair procedure."

"The fundamental proposition, stated abstractly, is that some kinds of unfairness are deemed deserving of judicial relief even when they appear in a context of privileges or gratuities. This proposition appears frequently in judicial opinions''

"Even though one may have no right to a Government gratuity, one may have right to be free from damage to reputation or position that may result from withholding of a Government gratuity in some circumstances".

A Full Bench of the Kerala High Court had to consider the problem of blacklisting in Punnen Thomas v. State of Kerala (1968 KLT. 800) In this case, the Govern­ment had passed an order (not communicated) the petitioner to black listing the petitioner and another tendered from taking any work with the Government for ten years, as these persons had, according to the Government, committed irregu­larities in connection with the tender for working down timber from a certain area. In the counter affidavit filed by the State, it was further submitted that the petitioner was found to be "dishonest and undependable" because of the irregularities and so his name was put in the Black list. The petitioner submitted that he had not committed any irregularity in connection with the tender and that the memorandum had been passed without notice and an opportunity of of being heard. Reclaimed the liberty, like any other citizen, to offer tenders for Government work and take the chance of their being accepted by the Govern­ment, if they happen to be the lowest ones- His case was that the order black­listing him was violative of the principles of natural justice and of articles 14, 16(1) & 19(1) of the Constitution.

The majority opinion proceeded on the basis that the petitioner's civil rights were in no way affected by the passing of the impugned order The Court did not think that this case can be brought within the horizons of natural justice, even after Ridge v. Baldwin (Ridge v. Baldwin (1963) 2 All E. R. 66)) and State of Orissa v. Binapani Dei (State of Orissa v. Binapani Dei   AIR. 1967 S.C. 1259) Raman Nayar, Ag. C. J. (as he then was,) observed (on behalf of himself and Eradi J.)

"......But here, there has been no determination of any question and, as we have

said more than once, no interference or threatened interference with the peti­tioner's civil rights. Surely, the term, 'civil consequences' means something more than consequences which the person concerned does not like. There must be at least the possibility of an invasion of some civil rights of his before it can be said that anything done in respect of him has civil consequences."

It was argued on behalf of the petitioner that as the order casts a stigma that by itself would attract the principles of natural justice Their Lordships repelled the argument by saying

"The question whether an impugned act involves a stigma or not, is relevant only for the purpose of determining whether the act sounds only in the region of contract or involves a punishment attracting the rules of natural justice or statutory provisions such as article 311 of the Constitution embodying such rules".

Towards the end of the penultimate paragraph of his judgment Raman Nayar Ag C. J. posed a problem. His Lordship asked:

"Supposing a police officer were to give as a reason for arresting a person that the man was drunk and disorderly. Surely the statement that he was drunk and disorderly would affect his reputation, and what is more unlike as in the present case, the arrest would clearly involve civil consequences But could the arrest be denounced as unlawful and could the police officer be exposed to action civil or criminal merely because he had reached the conclusion that the man was drunk and disorderly, without observing the rule of audi alteram partem?"

It is submitted that the problem posed is not akin to the one at hand. In the case of an arrest, a judicial enquiry will follow, whereas in the case of black­listing, the-adverse ex-parte adjudication by the administrator is final and the individual affected has no other remedy. The former, it is submitted, is more like the summary suspension of a license, pending enquiry.

Mathew J. in a powerful dissent highlighted the peculiarities of the case of black-listing.  His Lordship said (1968 K.L.T. 800 at 808)

"It is one thing to say that Government like any other private citizen, can enter into contract with any person it pleases, but a totally different thing to say that the Government can unreasonably put a person's name in a black-list and debar him from entering into contractual relationship with the Government for years to come- In the former case, it might be said that Government is exercising its right like any other private citizen, but no democratic Government should with impunity pass a proceeding which will have civil consequences to a citizen without notice and an opportunity of being heard. The reason why the proceedings for black-listing the petitioner and debarring him from taking Government work for ten years was passed, is that he committed irregularities in connection with the tender of the contract work. In the counter-affidavit on behalf of the State it is stated that the petitioner was found to be "dishonest and undependable" because of the irregularities and so his name was put in the black-list. The question whether he committed irregularities in connection with the tender is a question of fact. An ex-parte adverse adjudication that the petitioner committed irregularities in connection with the tender for working down timber from Udumbanchola Block No. 1 by Government on the report of some petty officers without notice and an opportunity of being heard to the petitioner and putting his name in the black-list dabarring him from taking any Government work for ten years' by way of punishment, appear to me, to be against all notions of fairness in a democratic country".

Mathew J. drew an analogy from the position of a 'temporary' Government servant. Though the 'temporary' Government servant has no right to continue in service, when the Government terminate his services for a reason that casts a

(7) stigma on his reputation, the employee gets the right to notice and an oppor­tunity of being heard. His Lordship said "I would and, the fact that one may not have legal right to enter into contractual relation with Government does not mean that he can be adjudged ineligible to take up any Government work, illegally".

His Lordship, therefore held "As the memorandum in question casts a stigma on the reputation of the petitioner, which is both an interest of personality and substance, and is attended with civil consequences to the petitioner, and as it operates as a punishment for an alleged irregularity, I, think the memorandum should have been preceded by notice and an opportunity of being heard". The Government, according to Mathew J. is not and should not be as free as an individual in selecting the recepients for largess. "Whatever its activity", 'His Lordship declared, " the Government is still the Government and will be subject to restraints inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal".

A similar case of blacklisting came up for consideration before the Delhi High Court in Mahaveer Hat Manufacturing Co Ors v. The Union of India.(Mahaveer Hat Manufacturing Co. & Ors. v. The Union of India (1969)71-P. L. R.D1 p. 334) That was a case in which the petitioner firm was blacklisted on the advice of the Special Police Establishment, who investigated certain complaints against the firm. The order blacklisting the firm was kept a secret from the petitioner, though it was communicated to various departments. Arguments based on V. Punnen Thomas v. State of Kerala were addressed before Mr. Justice S Rangarajan who heard the writ petition. The learned Single Judge however followed an earlier unreported decision of the same court in K G. Khosala & Co. v. The Union of India (K. G. Khosala & Co v. The Union of India C. W. No. 477 of 1969) wherein it was held by Kapur and Tatachari JJ. that an order of black-listing which involves serious consequences could not be passed without opportunity being given to the person affected by the said order.

There is a conflict of judicial opinion on this point which needs to be settled. Cases of this nature are likely to arise in future also. In a country like ours, where we do not have an administrative court of Appeal like the French Conseil D'etat it may not be judicious to decline relief to petitioners in cases of this type. Later cases of this court, (Ibrahim Kunju v. State of Kerala 1969 KLT. 230) the Supreme Court (A. K. Kraipak v. Union of India AIR. 1970 S. C. 150) and the Queen's Bench (R.V. Senate of the University of Aston, Ex.-parte Roffey and another 1962 All E. R. 964) on natural justice make one think that cases of black-listing will soon be held to come within the horizon of natural justice.

Now the community were Thiyyas of Ponnani. Did the Mitakshara law apply to them? And if it did, would the Pious Obligation apply along with it? In Dharmodayam Company v. Balakrishnan 1962 RLT. 712 the Kerala High Court had held that the Pious Obligation did not apply to the Thiyyas of Calicut, the reason being that polyandry once prevailed amongst them, and thus the Pious Obligation (being an institution of Hindu law associated with patriliny) would be anomalous. This case was sent back, however, to the trial court to find out whether as a fact the defendants would be liable (as Thiyyas of Ponnani) to answer the plaintiff's debt under the rule of the Pious Obligation. Whether or not the customs of the Thiyyas of Ponnani would be recovered sufficiently from decided cases, if these could be reviewed conveniently, is not clear; but it remains to be seen whether this fact can be established in this very case, the burden of proof of the applicability of the Pious Obligation naturally remaining upon the plaintiff.

But as a guide to the approach which should be followed Krishna Iyer, J ,made the following remarks, upon which I hope I may be permitted to comment.

"There is a widely accepted belief that Tiyyans came to the west coast of India from the Island of Ceylon If they crossed the seas and settled here they must have carried with them their island personal laws which certainly would not have included the Dharmasastras of the Vedic Aryans. In any view, the non-Brahmins of Kerala, more so the Thiyyas, are likely to have been somewhat impervious to Vedic influence in regard to social practices and legal theories based thereon. The big social gap that must have existed between the Tiyya community and its practices on the one hand and the Brahmin community and the Dharmasastras on the other, in the early days when the persona' laws s now applied by the Courts are supposed to have crystallised, makes the applicability of Hindu Law, proprio vigore, unlikely. Why, the Malayala Brahmins, i. e. the Nambudiris whom, as a superior class, they might have copied, themselves had eschewed the rule of pious obligation. The Ezhavas of Palghat, by contrast, were living in the midst of Tamil Brahmins and had probably adopted as custom, their rule of pious obligation."

Briefly, there is no evidence that Thiyyas came trom Ceylon. The established legal historians of Ceylon, amongst whom Dr. H. W Tambiah, Q C, is to be accounted amongst the foremost, having considered the elements in Ceylon law which are not consistent with pure patriliny such as might have been acquired by way of immigration from India, and having considered the Mukkuva community, which is a fisher-community with a history of polyandry and matriliny, have concluded that there were several immigrations from South India, but notably from the Malabar coast. There is no suggestion that there was any immigration into Malabar from Ceylon. That fisher-folk populated both regions, and that their customs should be similar, will have puzzled no one: but this is the first time I have heard that there might have been any immigration from Ceylon into India. Next, it is a principle established for a very long time that the application of Hindu law does not depend upon any historical fact of acquisition of Vedic customs or Aryan ways. Unless a community is held to be governed primarily by custom it must be governed by the Anglo-Hindu law (as amended by statute) unless a valid custom can be proved effectively to derogate from it. In the case of the castes of Malabar each caste stands upon its own fees here, there being no presumption that Hindu law applies. It is well known that castes with a matrilineal or bilineal (or bilateral succession) back-ground can follow the Mitakshara law as their custom; but it must be proved in each case (unless the court is entitled to take judicial notice of the point) what the custom is. Thus it was perfectly correct not to decide the matter on a mere balance of probabilities when direct evidence had not yet been sought without success. His Lordship's quotation from Battukkaval Chakutti v. Cothembra Chandukutti AIR. 1927 Mad. 877 seems perfectly correct, adequate, and compelling.

As for the Nambudiris the position is, as explained by the learned judge at pp. 970-1 of the judgment, that the Pious Obligation was denied in that community simply because, and to the extent that, the interests of sons could not be distinguished for the purpose of attachment and sale for debt. After freedom of partition had been introduced by statute and with it the possibility of alienation of undivided interests it was too late in the day to import the Mitakshara notion that the father could alienate his sons' undivided interests. It is not the case that Nambudiris do not believe that they must pay their father's debts: it is a question solely on a particular judicial remedy known amongst Mitakshara Hindus not being extended to them.

His Lordship says at p. 972 that those who wish to rely upon the Pious Obligation, where the caste is not normally governed by Mitakshara law must prove that it is applicable to them as their custom, and this seems absolutely unexceptionable. I now pass to the passage (para. 15) which is the real occasion for this article of mine.

"Before parting with this subject, I would like to observe that the Hindu Code, which encountered opposition and was eventually withdrawn in Parliament, did contain a clause (clause 88) abrogating the rule of pious obligation for all Hindus. The theological foundation of the moral duty of the son to discharge his father's (and not any other relation's) debts has now lost much of its appeal. In this context, particularly when the Constitution directs the State to have a uniform Civil Code for all Indians, it is a matter worthy of serious consideration whether the rather obsolescent rule of pious obligation should be extended by the Courts to all the non-Brahmin Makkathayees of Kerala. Although these considerations are largely for Parliament and not for the Courts they may serve to understand whether the Thiyyas of South Malabar had really assimilated this rule as custom."

Retirement of Mr. Justice M. Madhavan Nair

An eminent Judge of the Kerala High Court, Mr. Justice M. Madhavan Nair has retired on 31st October, 1970 after a meritorious service for a decade creditably fulfilling his judicial mission. His retirement was unusually silent and exceptionally free from fuss and bluster. Imbued with a spirit of humility—a quality which makes a judge great & good—he disliked & disapproved the conven­tional farewell speeches. Still, the inner voice of heart-felt farewell and sen­timents of abiding affection rising in unison from the hearts of Judges and members of the Bar and the staff are greater and more touching in his case than those expressed in usual customary references.

Mr. Justice Madhavan Nair is one of our finest' mea and one of our best Judges. Apart from his wide knowledge and integrity, his judicial work has been characterised by sterling independence and a passion for justice unshackled by technicalities or formalities.As Lord Macmillan has observed in his essay on Lord Chancellor Birkenhead, "the warmer tints of ima gination and sympathy are needed to temper the cold light of reason, if human justice is to be done". Mr. Justice Madhavan Nair possessed in abundant measure both these qualities, imagination and sympathy. His judgments on all branches of law bear eloquent testimony to his deep learning & human approach in arriving at sound and correct conclusions with his practical and powerful mind. He was distinguished for his knowledge of Hindu law where his Sanskrit learning gave him a special advantage. He brought his knowledge of Sanskrit and legal learning to bear upon the liberalisation and modernisation of Hindu law and Marumakkathayam Law so as to retrieve them from the rigidity under which they laboured and make them progressive. Decisions in 1961 1, L. T. 141 and 1968 K. L. T. 51 reveal his masterly scholarship in Sanskrit texts and Hindu Law and incise power of drawing nice distinctions. He could correctly modify the translation from Yagnavalkya by Colebrooke. In the latter decision he has pointed out with sound reasons how the view of Mayne in his Hindu Law and Usage is not acceptable.

He revelled in legal argument with counsel and never shirked a law point. He has an amazingly active and alert mind with a natural aptitude for thinking. He was a courageous and outspoken Judge; stubborn but without sacrificing principles. He always endeavoured to do justice conscientiously and correctly even in the face of any opposition from any quarter. He fought fairly and fear­lessly to hold the scales of justice even, to maintain the high traditions of the judiciary and to champion the cause of the Bar. Surely these are qualities of a great judge and not a 'rebel judge.'

His retirement is only a milestone in his life's journey. We are sure his retirement in full health and vigour will enable him to do more service to the legal professson and to the country at large. In bidding him our respectful farewell we convey our best wishes for a long life, prosperity and happiness.

"Mid pleasures and palaces though we roam

Be it ever so humble, there is no place like Home".

THE KERALA AGRICULTURISTS DEBT RELIEF ACT
(ACT 31 OF 1958)

(By K. S. Rajamony, M. A., B. L., Advocate, Trivandrum.)

The Kerala Agriculturists Debt Relief Act (31 of 1958) bears all the marks of a hasty and ill-drafted piece of legislation. The rationale behind many of the provisions is quite unintelligible and most of the sections are so clumsily worded that it is difficult to decipher the real intention of the legislature in enacting them. The framers of the Act ought to have realized that defective drafting leads to serious repercussions and hampers administration of the law and is also likely to defeat the very purpose for which the Act is passed. Even a cursory glance at the provisions of the Act will show that the Act makes serious inroads into the sanctity of contracts and brushes aside with impunity many of the existing laws which have stood the test of time like, The Civil Procedure Code, Limitation Act, Transfer of Property Act etc. Very serious rights of the citizens are affected and no proper safeguards are made to prevent inequity and injustice.

The Act is too drastic against creditors and highly partisan towards debts ors. The preamble says that the object is to give relief to indebted agriculturists. One would have expected a civilized Government to provide all credit facilities to the agriculturist to enable him to repay his debts and make reasonable restrictions on the creditors to prevent harassment and undue pressure. But the effect of the present Act is that it makes a virtue of indebtedness and perpetuates agricultural indebtedness for all time by tempting him not to repay his debts. The normal law of the land itself allows adequate scope for Courts to exercise their discretion to grant time for payment in really hard cases under the provisions of the C.P.C. and the severity of the Act comes in an unreal context and is completely out of tune with prevailing conditions. The framers of the Act have not certainly taken a balanced view of the nature of the rights infringed, the reasonableness of the restrictions imposed and the extent and urgency of the evil sought to be remedied.

The restriction imposed on the creditor spreading over a period of 8% years is unreasonable especially when no clear case is made out for the necessity of such an extraordinary provision. The period is much too long. The Madras Act 1 of 1955 is more reasonable. S. 4 of that Act stipulates that within four months of the commencement of the Act, 1/8 of the principal amount outstand­ing and all interest up to that date or 1/4 of the total amount outstanding whichever is less must be paid, and the balance of the debt to be paid in three further equal annual instalments. The long period of 8%years really harms the ryot and makes his position worse as rural credit gets rudely shaken thereby Creditors will not be certainly tempted to lend further. There are many agriculturists who prosper on credit facilities. The present Act saps that source and in the absence of the State not providing new and enlarged credit facilities, the purpose of the Act gets defeated. The inclusion of Banks and chit Funds ir the Scheme of the Act will affect the vitals of rural credit structure.

All debts existing on the date of commencement of the Act come under the purview of the Act. This is also unreasonable. The Travancore Debt Relief Act which came into force in 1116 stipulated that only debts which were contracted before, 1112 came within the purview of the Act. Some such provision ought to have been made in the present Act.

The Act does not give any protection to comparatively poor creditors who are agriculturists. While money due to the State or Co-operative Societies or by way of maintenance or breach of trust or wages are excepted, there is nothing to safeguard the moneys due to the poor agriculturists who may require those sums for their economy.

Further the Act makes no attempt at fixing the lower limits o exempted debts. Thus even in respect of a five-rupees debt, an agriculturist can, if he so chooses, keep the creditor harassed for 8^1/2 years. A provision that the Act does not apply to debts less than Rs. 100/- may be reasonable

The provision relating to defaulting debtors is also unreasonable. Every time default is made in paying the installments under the Act, the creditor will have to take out execution against the debtor and can realise only the installments in arrears. This procedure involves needless expense for the creditor and may not be worth the trouble at all if the installment to be realised is a small amount. A provision that a debtor who consecutively defaults for three installments would forfeit the benefits of the Act would have been salutary.

Explanation 1 to S. 3 of the Act enacts another inequitable provision. It says that when an agriculturist and a non-agriculturist are jointly liable under a debt, the bar of execution application extends to the non-agriculturist as well. A wealthy non-agriculturist can escape liability for the period protected under the Act if he manages to procure one agriculturist also to borrow along with him. This puts such a non-agriculturist at an advantage over another of the same category who has not the privilege to be a joint debtor with an agriculturist.

Apart from all these drawbacks, defective drafting of some of the provisions has resulted in anomalies, contradictions and conundrums. For instance, S. 2 gives the definition of 'agriculturist'. Agriculturist means a person who has an interest, other than as a simple mortgagee, in any agricultural or horticultural land. It is not clear what sort of interest a man must have in land to be an agriculturist. If it is only any interest' that is required persons who have absolutely nothing to do with agriculture or horticulture come within the definition.

While terms like 'Family', 'Court' and 'Pay' are defined, there is no definition of the term 'agricultural or horticultural land'. The Madras Act has made it clear that agricultural or horticultural land does not include land appurtenant to a residential building.

As the definition stands at present, agricultural land need not be in Kerala. On the other hand it can be anywhere in this planet. This is a serious lacuna.

Another glaring instance of careless drafting can be seen in sub-clause (xi) of clause (c) of Section 2. The main clause says that debts exceeding Rupees one thousand five hundred due to a bank borrowed under a single transaction do not come within the definition of 'Debt'. The proviso says that debts exceeding Rs. 1,500/- due to a bank borrowed under a single transaction can be repaid in installments as provided by clause (2) of S. 4 of the Act. The proviso really nullifies the main clause except to a slight extent that is provisions modifying contract regarding interest.

To quote another instance, clause (2) of S. 6 runs as follows: --''The provisions of S. 4 shall, for purposes of execution be deemed to be a subsequent order of court within the meaning......" It is difficult to understand how the 'provisions' of a section can be deemed to be a 'subsequent order'. It ought to have been, "an order passed under the provisions of S. 4. shall be deemed to be a subsequent order .....". There are similar defects in the wording of most of the sections. Clarity of expression is conspicuous by its absence. Hasty and thoughtless legislation has become the order of the day and this statute is only an example. Some defects were pointed out when Act 3 of 1956 was passed. Curiously enough, all those defects are repeated in the present Act. It is unfortunate that the legislature shows no anxiety to profit by experience and remedy defects pointed out to them. A simple Act has been complicated and confused by superfluous verbiage and unintelligent draftsmanship. On the whole this Act ill-adorns the statute-book