A NOTE ON THE DISSENTING JUDGMENT OF THE

SUPREME COURT RELATING TO THE

KERALA EDUCATION BILL

(T. P. Ittoop (Thachil), Advocate, Ernakulam)

THE majority judgment as well as the dissenting note of the Supreme Court on the subject is illuminating enough to understand the scope and amplitude of Art.30(1) of the Constitution of India. But it is most humbly submitted that the dissenting opinion requires reconsideration on the grounds to be stated hereunder.

The difference of opinion centers round the interpretation of Art. 30 (I) of the Constitution, which confers on the minorities the right to establish and administer educational institutions of their choice, while the majority decision has interpreted the article to mean that the minorities whether based on religion or language, have the right to establish and administer educational institutions of the same kind and character as those run by the state whether in discharge of its obligation to educate the children of the state or in discharge of the responsibility cast upon the state by Art.45 of the Constitution, the dissenting judgment has interpreted the educational institutions referred to in Art. 30 (1) as mainly religious institutions and other institutions of a different kind and character from those run by the state and intended to make the taught eligible for public service on higher studies. It is common ground that "the policy behind Art. 30 (1) is that the majority should not destroy or impair the rights of the minorities, religious or linguistic". In furtherance of this policy the Constitution has conferred certain fundamental rights on the minorities under Arts. 29 and 30 in the field of education in the state The statement that these articles belong to the same category as Articles 25 and 26 does not stand scrutiny. That it is not self-evident is clear from the manner in which they are enumerated in the Constitution. Though all of them find a place in Part III of the Constitution, it is seen that Articles 25 and 26 are enumerated under the heading 'Right to freedom of religion'. Articles 29 and 30 are grouped under a different heading 'cultural and educational rights'. The right to profess, practise and propagate any religion guaranteed by Art.25 necessarily implies the right to teach the tenets of that religion and consequently no special provision other than Art.26(1) of the Constitution which confers the right to establish and maintain institutions for religious purposes, is required for the establishment of religious educational institutions.

Further this is a right granted to all people in the state irrespective of majority or minority considerations. But cultural and educational rights conferred by Articles 29 and 30 are granted exclusively to minorities, religious or linguistic. Therefore assuming the educational institutions mentioned in Art. 30 (1) are mainly religious educational institutions the result will be the majority shall not have the right to establish religious educational institutions even though freedom to profess, practice and propagate any religion and the right to establish institutions for religious purposes are conferred on them also under Articles 25 and 26. There can be no doubt as to the absurdity of this position. The further question and the crucial question for determination is whether there is a right in the minorities to have the educational institutions referred to in Art. 30(1) recognized by the state. It is true that the obligation of the state with respect to this right is purely negative and the minorities are not entitled to call upon the state to do positive acts of commission in their favor. But then the state shall not build a barrier around the education field in the form of education code or otherwise and thus prevent the minorities from entering that field where they have a right to enter. Therefore the state should either remove the barrier or build it up without causing obstruction to the rights of the minorities under Art. 30 (1). The demand of the minorities for recognition by the state of their (minority) educational institutions arises as a conse­quence of a positive act of the state in this direction In acceding the demand for recognition the state is not doing a positive act in favour of the minorities but a positive act the state is bound to do to maintain statutes quo.

If the right of recognition is conceded it is said that recognition will have,to be accorded to religious institutions as well. This question will not arise if the educational institutions referred to in Art. 30 (I) are construed to be secular and not religious.

The next point to be considered is about the absence of a provision for 'recognition' in the Constitution. The framers of the Constitution were well aware of the existing system of education in the state under which educational institutions run without recognition are non-entities in the eye of law. Hence the right to run educational institutions carries with it the right of recognition without which the former right is illusory. The right granted is absolute so that if the intention was otherwise a proviso to the effect that such institutions shall not be entitled to recognition requires to be added. At the same time Art. 28(3) makes it clear that no person attending recognized institutions shall be required to attend religious instructions if any imparted in such institutions. Subject to this restriction all minorities religious or linguistic are given the fright to establish and administer educationsl institutions of their choice. The state is only recognizing this right when recognition is given to minority educational institutions

Lastly it is said that Art. 45 of the Constitution which provides for free and compulsory education by the state to all children below 14 years of age will become a dead letter if the above interpretation of Art. 30 (1) is to prevail. The Constitution itself takes note of three categories of secular educational institutions in the state viz., (i) recognized (ii) state aided and (iii) state owned. There is nothing in the Constitution to suggest that by the introduction of free and compulsory education recognised institutions should cease to function. Therefore the responsibility of the state in this direction ought to be discharged through recognised institutions as well by compensating the loss of fees to them if any. But then it is said that such a right is not granted under Art. 30 (2) of the Constitution It is so and the minorities do not claim it on that score. All recognized institutions whether run by the majority or the minority are entitled to be compensated for the assistance done by them to carry out the obligation of the state to impart free and compulsory education. The state cannot assume a right under the cover of Art. 45 to have recognised educational institutions maintained by the minority to fall in line with state owned and aided institutions unless the state is prepared to bear the expenditure thereof. Art. 45 does not authorize the state to put an end to the right of the minorities under Art.30(1) or in any way cause prejudice to that right. Since the majority has no fundamental right under the Constitution with regard to educational institutions they cannot rightly complain either of the higher rights if any the minority may have or the discrimination in state legislation on this behalf and intended to give effect to the fundamental rights of the minority. The Privy Council decision City of Winnipeg v. Loyen (1892) A. C. 445 cited in the dissenting judgment may be distinguished on the ground that denominational schools under S. 22 of the Manitoba Act 1870 and Recognised Educational Institutions under the Constitution of India with which we are concerned are not identical. In the Manitoba Act there is no provision like Art. 28 (3) which imposes a ban on recognised institutions not to require persons attending them to attend religious instructions if any imparted therein.

CRIMINALS: ARE THEY BORN OR MADE ?

(By M. Karunakaran Nambiar, Advocate, Cannanore)

The problem of criminals and criminality is as old as crime itself. From times immemorial philosophers, social thinkers, and reformers have expended much thought on the evils of criminality and reform of criminals. Despite all the researches and investigations of criminologists from Lombroso to Walter Reckless, of recent times, the basic problem of criminology, whether a criminal is -born or made has eluded a positive and clear answer. The recent rapid development of the science of psychiatry has given added impetus to the study of certain fundamental questions in criminology.

It is interesting to note that most of the philosophers of ancient times strongly believed in born criminals and they attempted to correlate physiognomy to habits of vice and crime. Solomon declared ''an evil heart altered the face". Aristotle believed in born criminals and more interesting still is the ancient edict which ruled that if two persons were suspected of crime the more deformed of them should be presumed guilty. A very unconscientiously presumption indeed! The Hindu science of Samudrika-lakshanam also emphasises the idea that outward physical expressions indicate inward disposition. Dr. Lombroso of Italy attempted to put this view of the ancients on a scientific basis. In the course of his experimental researches in 1866 he discovered various anomalies organic and psychic of the born delinquent and ultimately’ laid the foundations of criminal anthropology. Lombroso's conclusions that a criminal is a atavistic being who reproduced in his person the ferocious instincts of primitive humanity and of inferior animals raised a storm of bitter criticism all over Europe. Dr. Healy, Professor Manouvrier and a host of others objected to the theory that the presence of median occipital fosse and hypertrophy of the vermin in a person is indicative of criminal propensities.

Dr. Lombroso's reasoning was divorced of the influence of environment on .biological inheritance. The restatement of the Italian Doctor's theory by Sommer is significant. According to him there may not be born types but there might exist a born delinquent in whom the impelling forces drive him to crime when the opportunity affords.

According to the advocates of the theory of epilepsy, crime is a psychic disease. We have the very interesting story of the Italian soldier Misdea, who while serving in the army suddenly, attacked and killed his superior officer and ten other soldiers who tried to overpower him and then fell into a deep slumber and remembered nothing of the incident when he woke up. Modern psychologists also tell us that kleptomaniacs are persons obsessed by a feeling of inferiority complex and their thieving operations are only attempts to assert their individuality.

Several eminent criminologists have come to astounding conclusions in the course of their researches. Thus for instance, the Thermic Law of Delinquency enunciated by Quetelet stated that crimes against persons were numerous in hot countries while property crimes abound in cold regions.

Some professors have asserted that feeble-mindedness is the cause of crime. The British Royal Commission of 1907 defined feeble-mindedness as a mental deficiency consequent on the incomplete cerebral development of a person Several cases of feeble-minded youths have been discussed in ''Criminal Imbecile" by Goddard. The leading case is that of Fred Tronson an adult male who shot a woman for having refused to marry him. It was found that he had the mentality of a boy of nine. The shocking case that baffled all criminologists is the one told by Mr. Russel. A boy of ten and a girl of five years old were living together in the same house, the latter was missed one day, and after considerable search her body was found buried in a dung hill and shockingly mangled. Though at first the boy denied all knowledge on close interrogation he said that the girl used to foul herself in bed and so he did her to death.

The French school of criminologists differ from all these views and hold that criminal tendencies are the result of bad environment. They place too much of emphasis on the environmental conditions; though this view is plausible it is tripped up by the logical fallacy of post hoc, ergo propter hoc— 'After this, therefore because of this.'

The best answer to the problem would be to describe crime as the product of the Joint action of the innate and acquired characteristics of an individual with the existing environment of society. 

GOLDEN JUBILEE OF QUILON BAR ASSOCIATION

The Quilon Bar which has an excellent and erudite tradition and a proud legacy has celebrated its golden jubilee on 15th, 16th and 17th of August 1958 in the presence of eminent personalities and lawyers from the different parts of the State. In the field of law and service of nation the Quilon Bar has a glorious contribution. Its members have played an important role in the attainment of freedom. They have adorned with distinction offices of High Court Judges, Ministers etc. The Lawyers' Conference discussed many burning problems and passed several resolutions affecting the profession. At a time when the legal profession is faced with manifold hardships and obstacles and is losing its dignified position, organized and concerted action by the lawyers is the only means to achieve healthy and balanced growth of the profession. The resolutions passed deserve special and immediate attention by the authorities concerned and we hope they will be implemented without delay.

We are sure the 1 ead given by the Quilon Bar will be taken up by other Bar Associations with enthusiasm. We take this occasion to extend our hearty congratulations to Mr. V. N. Narayana Pillai, the President, Mr. G. Sadasivan Nair, the Secretary and to all the members of the Quilon Bar for the grand celebration of the golden jubilee and we wish a more prosperous and brilliant future and many more jubilee celebrations for the Bar.

The celebration commenced at 9. 30 A. M. on 15th August 1958 with the hoisting of the National Flag by Sri. V. N. Narayana Pillai, President of the Celebration Committee, in front of a tastefully decorated Pandal erected for the purpose in the premises of the Bar Association rooms within the new Quilon Civil Station. Sweets were distributed to the children assembled.

Between 10 A. M. and 12 Noon, the subjects to be placed before the Lawyers' Conference were discussed by the lawyers assembled and Resolutions were drafted in the after-noon. Sri. K. N. Parameswara Sarma of the Alleppey Bar was in the Chair.

From 8 to 1 in the night, a programme of variety entertainment was put on boards'by the members of the Association in the presence of a large gathering of the public.

On 16th August at 4 P. M. the Golden Jubilee meeting of the members was held in the Association Hall. Mrs. Kamala Kailasanathan and party gave a music concert from 8 to 11 in the night in the pandal. It was largely attended and much appreciated.

From 10 A. M. to 12. 30 P. M. on the 17th a Lawyers' Conference was held in the Association Hall presided over by Sri. Malloor K. Govinda Pillai. Delegates and members of several Bar Associations in the State were present at the Conference. Sri. Malloor in the course of a brilliant Presidential address emphasized the necessity for imparting at least a rudimentary knowledge of law to students in the High School Classes. He also pointed out that there was a growing desire on the part of workers in factories, shops and other establishments to acquire a workable knowledge of law so necessary for them in their ordinary life. He suggested that provision may be made for holding evening law classes which they may attend after their day's work and qualify themselves for a law diploma. According to him, much of the evil that we find in present day legislations and administration was the direct effect of adult franchise which however suited to countries like England and America, was totally unsuited to the conditions of India. Sri. Malloor added that it is the duty of the advocates to see that the Rule of law is maintained at any cost and not allowed to be interfered with lightly by any person or authority however high they be. Nineteen resolutions were passed regarding amendments to the existing rules of practice in the Courts, ap­pointment of Judicial Officers, Prosecutors, Receivers and the like, establishment of a Bench of the High Court at Trivandrum and a bench of the Supreme Court at a Central place in South India and removal of prohibition against appearance of Advocates in labour Courts, Tribunals etc. The Provident Fund Scheme adopted by the Travancore-Cochin Lawyers' Conference in 1955 at Trivandrum was also passed by another resolution. By another resolution, the need for the establishment of a Kerala Bar Federation was recognized and a Committee appointed to take suitable measures for its formation.

The conference then adjourned for lunch which was served in a spacious Hall on the northern wing of the Civil Station in the manner of Orthodox Kerala style.

At 5. 30 in the evening, a public meeting was held in the Pandal with Dr. John Mathai, Vice-Chancellor of the Kerala University in the Chair, Sri. V. N. Narayana Pillai welcomed all those present in a short speech. The Secretary Sri. G. Sadasivan Nair .then read a report on the history of the Association for the last 50 years. The Governor Dr. B Ramakrishna Rao then delivered his extempore inaugural address. Mr. Justice Sankaran of the Kerala High Court and former member of the Quion Bar Association, spoke next. Sri. P. Nila-kanta Pillai President of the Association thanked the guests. The proceedings closed at 7. 30 P. M. with singing of the National anthem.

From 9. 30 to 2 in the night the members of the Association staged a very interesting drama by Sri. N. P. Chellappan Nair caricativing absurd notions of fundamental rights and high prerogative writs envisaged in the Indian Constitution as entertained by certain people and entitled ]²Xn-IÄ A§s\ ]ptcm-K-an-¡p-¶p.(so progress the plans). The performance which was attended by a huge gathering including such distinguished persons 'as Dr. and Mrs. John Mathai, was a complete success.

WELCOME SPEECH

(By Sri V. N. Narayana Pillai, President, Golden Jubilee Celebration Committee)

At, the Public Meeting at 5-30 P. M. on Sunday the 17th August, 1958.

Mr. President, Your Excellency, ladies and gentlemen,

Today concludes a three-day celebration of the Golden Jubilee of the Quilon Bar Association. As its oldest member, both in age and in standing at the Bar, I have been asked to perform this pleasing duty of welcoming you to our midst in this gathering.

The Secretary will be placing before you a report on the origin, growth and achievements of the Association during the past 50 years. I shall not therefore, touch upon that subject.

We consider ourselves lucky in getting his Excellency the Governor to inaugurate this Public meeting and Dr. John Mathai to preside over it. We have been equally lucky in having Mr. Justice Sankaran as speaker this evening. All of them are too well known to need any lengthy introduction.

His Excellency was a very successful practicing lawyer. He had his share of suffering and sacrifice in India's struggle for freedom. He is a consummate statesman and able administrator. He is an erudite scholar and is aptly the Chancellor of our University. Ever since he assumed charge of the Governorship of our State, he has been keeping himself in touch with the people by extensively touring the State. We are deeply grateful to your Excellency for having graciously condescended to inaugurate this meeting and I offer your Excellency in the name of the Quilon Bar Association a hearty welcome.

Dr. John Mathai had a brilliant academic career. He also was a practicing lawyer, although for a short time only. He is one of the most illustrious sons of Kerala who have distinguished themselves in the service of the Mother-land. He was Finance Minister of India. As Vice-Chancellor of the Kerala University he has an important part in shaping the intellectual and moral well-being of our young men and women. He kindly accepted our request to preside over this meeting. We feel flattered and greatly honored by the presence of Mrs. John Mathai on this platform. To us, the older generation of lawyers, she has been known as the daughter of our revered and beloved Professor and Principal the late Mr. E. J. John of whom mention will be found in the Secretary's report in another connection. On behalf of the Quilon Bar Association, I extend to you, Dr. and Mrs. Mathai, a warm and hearty welcome.

Mr. Justice Sankaran is a former member of our Association. He began practicing as a lawyer in the Quilon Courts. He was an elected member of the Travancore Legislative Assembly. As a Judge he was first posted at Quilon He was a Secretary to Government. He is now a judge of our High Court and we hope that, within a few months, he will be sworn in as Kerala Chief Justice. To You, Mr. Justice Sankaran, I offer your old Quilon Bar Association's warm welcome.

Sri. Kuttikrishna Menon and Sri. Suriyanarayana Iyer who were due to speak this evening are unavoidably absent, the former on account of indisposition and the latter pressure of work in the Supreme Court.

His Lordship the Bishop of Quilon has been very kind to us in accepting our invitation and honouring us by his presence. I offer your Lordship a hearty welcome.

Now, Ladies and Gentlemen, I see before me a very large number of you who have so kindly responded to our invitation and whom I should like to welcome individually. But for obvious reasons, you will not expect me to do it. I offer you all, a sincere welcome and request you to be good enough to excuse us the little inconvenience you might have felt in the matter of accommodation or reception.

REPORT

(by Sri. G. Sadasivan Nair, Secretary)

On the history of the Quilon Bar Association for the past 50 years-

read by Secretary at the Public Meeting held on 17th August,

1958. in connection with its Golden Jubilee.

Mr. President, Tour Excellency, Ladies and Gentlemen,

It is my pleasant duty to place before you a brief history of the Association for the past 50 years. In doing so, I have largely adopted from our Silver Jubilee Report read at the Public Meeting held on the 17th August, 1933

This Association was founded in August, 1903, under peculiar circumstances. It will be difficult for any one now to believe that there would have been any difference of opinion among the members of the Bar about the desirability-nay the absolute necessity-for such an Association.

When the new order of Lawyers with University degrees began to enroll themselves as Vakils of the Quilon Courts at the beginning of this century, they were looked upon with suspicion by the older generation who were innocent of knowledge of English. Finding it impossible to form an Association with the countenance of the leaders of the Bar, six of the junior practitioners began in 1906, jointly to subscribe for the Indian Law Reports and the English Law Quarterly. They were all inconspicuous members of the Bar. There was not one among them who really did count. Their financial position was such that some of the six were not able to pay the admission fee of Rs. 7/- in a lump, but paid it in installments They had no constitution and no rules. They had no meetings, they had no place to meet and they did not keep any accounts. They had no library worth the name. The reports and the few text books which they had were circulated among the members of their association which they styled "The Quiion Vakils' Association". Subsequent events proved they were the weak instruments of a benevolent Providence travailing for the birth of this Association.

They had a room in these premises which though known as Vakils' room was mainly occupied by their clerks and petition writers. They had no chairs or tables, but they squatted on the floor in three or four rows with their characteristic desks before them and their clients sat between the row of desks. About 1/3 portion of the room was screened off with bamboo mats, which was used by some of the Vakils as a tiffin room. The Vakils ordinarily remained in the court rooms at other times. When the court buildings had to be renovated between 1905 and 1908, that room had to be vacated and the District Court itself was shifted to the old building now attached to the office of the Superintendent of Police in the Quilon Cantonment. After renovation, the District Court moved back to its old habitation, but the room formerly assigned to the Vakils' Association was taken away from them for the Court establishment. Mr, C. Sankara Menon, the Secretary of the Association, insisted that he must have a room for the Association. The District Judge, Mr. R Ananda Rao, conceded that the Vakils Association was certainly entitled to a room, but when he knew that its membership numbered only six, he said that the Association had to be satisfied with a very small room. All the Vakils were alive to the convenience of a roomoftheir own in the premises of the court, even though those outside the Association were not keen about joining the Association. Mr. Sankara Menon was firm and said that non-members of the Association would not be allowed to enter whatever room might be given "to him as the Secretary of the Association.

Compelled by force of circumstances, a meeting was held at the residence of Mr. Sankara Menon, presided by Mr. V. Subbier, about the middle o f August 1908. Besides the six members of the association, nine other vakils were present at that meeting. It was resolved then that those 15 members form a new association under the name, THE QUILON BAR ASSOCIATION, of which they were to be the first members. The older body, the Quilon Vakils' Association, consented to efface itself and the nine vakils were saved from the unpleasant necessity of having to apply to be admitted to an association which they had so long ignored. Prominent among these first members were Messrs. V. Subbier (later, Law member to the Govt.); Dr. K. Krishnan Pandalai (later, Judge of the Madras High Court); Illikulam P. Kesava Pillai (later Govt. Pleader), K. Raman Pillai (popularly known as Madras Raman Pillai); S. Venkitakrishna Iyer (District Court Vakil); Changanacherry K. Parameswaran Pillai (later, High Court Judge); C. Raman Thampi (later, High Court Judge) and C. Sankara Menon. One of the first resolutions was to ask the Judge for a suitable room to locate this new association. All Vakils entitled to practice in the civil courts at Quilon were eligible for membership of this association, on payment of an admission fee of Rs. 7-/. Each member had to pay monthly an ordinary subscription of Rs. l/-and a special subscription of 2 chuckrams (Roughly 7 naya paise) for each vakalath filed by him in the Munsiff's,Magistrate's and other ordinate courts, and 4 chuckrams for every vakalath filed by him in the District and Session Courts and the District Magistrate's Court. The vakalath fee was later on abolished and in its place the special subscription was fixed at Rs. 1/-per mensum. These rates prevail even now except in the case of the admission fee which at present is Rs. 10/-. The special subscription was suspended for some years from 1931 owing to economic depression. Mr. C. Sankara Menon, the first secretary of the association, held his office for 10 years continuously and he was succeeded by Mr. P. Karunakara Menon. The association was unique in that it did not make any provision for a President until 1937 when the association was incorporated.

The above is a brief account of the origin of the Quilon Bar Association. Almost all the founders of the Association rose to eminence in the profession & many of them attained high positions either in the service of the State or in public life. We very much regret that these benefactors who did so much for us and left us such a rich and proud legacy are no longer with us today. Their example should remind us that:-

"The heights by great men reached and kept

Were not attained by sudden flight;

But they, while their companions slept,

Were toiling upwards in the night".

We bow our heads in silent reverence to their sacred memory.

GROWTH OF THE ASSOCIATION

The association began with 15 members as has been already stated and the income for the first year was Rs. 166 --. In 1933 when the Silver Jubilee was celebrated, our membership numbered 86 and the income for the year was Rs. 1,500/-. The Dewan, Sir. P. Rajagopalachari, visited our room one year after the association was founded. He was amused to see the contents of a big almirah in our room numbering only three volumes and he sarcastically remarked that we had an excellent library. In 1933 when we celebrated our Silver Jubliee we had 1132 volumes in our library, costing Rs. 11, 450/-. The Laws Delays Commission which visited our Association, has stated in their report that our Association was a flourishing one and had a good library. We had built up a reserve of Rs. 4,000/-in the first 25 years of our existence.

During the long period of 50 years of our existence we had to face several vicissitudes consequent upon territorial readjustments of the Quilon judicial and revenue Districts. With the establishment of the Mavelikkara District Court in 1940 our District Court lost its jurisdiction over six Taluks. On the formation of the Alleppey Revenue District, our District Magistrate's court lost its jurisdiction over six Taluks. The formation of linguistic provinces.again deprived our district of another taluk.

The Association was in the nature of a mutual benefit society whose chief object was to render its members mutual professional assistance and to maintain a good law library of text books, reports, journals and the like. With the increase in the assets jmd the membership of the association, it was unanimously felt that the association should be incorporated as an Association not for Profit under the Companies Act. The necessary Government license was obtained on 5th February 1937 and the Association was registered as an Association not for profit in March 1937.

Our present strength is 118 members of whom seven are women Advocates. Our annual report for 1957 shows an income of Rs. 3,312. 75 for the year and an accumulated balance of Rs. 4,000/-. Our library now contains over 2220 volumes valued at over Rs. 18,000/-. The total assets as per the balance sheet exceeded Rs. 23,700/-in value. All these were made possible by a provision in our Rules that a member in arrears of subscription for a quarter or part of it, automatically ceases to be a member. Members therefore take care that they pay their subscription in time.

OUR ACHIEVEMENTS

(i) We have contributed our quota to the Legislature by supplying it with our views and suggestions on proposed legislation whenever any Bill of importance was introduced in the Assembly.

(ii) As regards civic affairs, ever since elected representatives of the people were appointed as Municipal Councilors and the Chairman was elected by them, we have returned an appreciable number of our members to every council and it is gratifying to us that up till now except for one individual, the elected Chairman of the Quilon Municipality has always been a member of our Association.

(iii) Although the Association as such has no politics, our members in their individual capacity have always played an important part in the politics of the State. We have supplied legislators & ministers. Messrs. T. M. Varghese and C. Kesavan-both our members-were two out of the three ministers who composed the first Cabinet in Travancore. Sri. Kesavan was also Chief Minister of the Travancore-Cochin State. Ambassador Dr. C. P. Mathen too was our member.

(iv) Our contribution to the judicial service of the State is even more noteworthy. Dr. Krishnan Pandalai one of the founder-members of the Association was a Judge of the Travancore High Court and afterwards a Judge of the Madras High Court. Our members, Messrs. P. Raman Thampi and Puthuppally S, Krishna Pillai, were Chief Justices of the State. Messrs. Changanacherry K. Parameswaran Pillai, C. Raman Thampi, C. Madhavan Pillai, N. Kumaran and Parur N. Narayana Pillai -- all, our members -- became judges of the High Court. Mr. K. Sankaran, one of the speakers of this evening, is the Senior most judge of the High Court of Kerala and has once acted as Chief Justice. Our contribution to the personnel of the subordinate judiciary is too numerous to mention. Many of our members still adorn the judicial service of the State as Judges, Munsiffs and Magistrates. In the recent selection of 18 candidates for appointment as Munsiffs based on the results of a competitive examination, four of our members including a lady (Miss Fathima Beevi), came out successful.

(v) Our activities extended to the entire bar in Travancore so much so we called together an All Travancore Vakils Conference which met at Quilon on the 25th and 26th of December 1913. It was presided over by Sri. K. G Sesha Iyer (who afterwards became a Judge of the Travancore High Court). The object of the conference was to organise the ranks of the Bar in Travancore so as to maintain the honour and diginity of the profession, to cultivate social relations among lawyers and to increase their usefulness in promoting the administration of justice. Mr. E. J. John, the undisputed leader of the Bar at the time, pointed out that such annual conferences if they resulted in nothing else, were useful so far at least as they serve to bring about better social relations among the members of the profession. Four more such annual conferences were held at Trivandrum, Alleppey, Thiruvalla and Haripad, presided over by Messers. K. G. Sesha Iyer, Kochukrishna Marar, K. A. Krishna Iyangar and E.J, John respectively. The conferences then died a premature death.

(vi) At the election of members to the first Travancore Bar Council, neither we, nor any other Mofussil Bar Association, took part, with the result that out of the 10 elected members, 9 were from Trivandrum and one alone from a District Court Centre (Alleppey). We learned by experience that we should interest ourselves in the elections to the second Council and see that at least one member from each of the seven District Court Centres was returned as a member of the Bar Council. Accordingly with the concurrence of the remaining six District Court Bar Associations we proposed that each of these bar associations should nominate one representative whose candidature should be supported by the voters of the remaining six associations also. We left the election of the three remaining members to be made by the High Court Advocates' Association. After the integration of Travancore and Cochin States, the number of District Court bar associations increased to nine, by the addition of the Ernakulam and Trichur Bar Associations. The same scheme was extended to those two associations leaving only one member to be chosen by the Ernakulam High Court Advocates' Association. This scheme has worked without fail up to now.

Just before the foundation stone of these magnificent Civil Lines was laid on the 17th of August 1956 the three wings of the old quadrangular building were demolished leaving intact the northern one which housed our association. In the new building under construction three rooms as requested by us were marked off to be assigned to us on completion. For this generous provision we are deeply obliged to Sri. P. S. Rau then Adviser to the Raja Pramukh and to Sri. P.I. Jacob, then Collector of Quilon. We moved into our present rooms which consists of a sitting room, a library room and a Tiffin room with up-to-date sanitary amenities attached, on the 11th of December 1957.

Before concluding this report I must mention here the valuable help and guidance we have been receiving all these years from the leader of our Bar, Sri. V. N. Narayana Pillai. He has been a member of this Association for the past 45 years and its President for well-nigh two decades. We are extremely fortunate to have him in our midst, still active and pursuing his role as the Doyen of the Bar as well as a friend, philosopher and guide to us all.

As this report was meant to be a permanent record of the working of the Association for half a century, it had necessarily to refer in some detail to matters of interest to us. I fear I have taken a lot of your time for which I beg to be excused.

RESOLUTIONS

I. Resolved that the Union Government be requested to comply with the unanimous resolution passed by the Kerala Legislative Assembly to establish a permanent Bench of the Kerala High Court at Trivandrum as early as practicable.

Moved by Sri. Nedumangad R. Kesavan Nair, Trivandrum

Seconded by Sri C. K. Sankara Pillai, Mavelikkara.

II. This Conference of the Lawyers of Kerala accepts the Legal Practitioners' Security Assurance and Provident Fund Scheme adopted by the All Travancore-Cochin Lawyers' Conference held on 29-12-1955 at Trivandrum and requests the Government, the High Court and the Kerala Bar Council to take legilative and other measures for the implementation of the Scheme on an All Kerala basis.

Moved by Sri. K. N. Parameswara Sarma, Alleppey

Seconded by Sri. G. P. Parameswaran Pillai (Cheroor)

III. Resolved that the All Kerala Bar Federation be formed and that the Travancore-Cochin Federation be requested to take suitable measures in that behalf in consultation with representatives of the Bar from all over the State and that a Committee consisting of the following members be appointed to contact the respective bodies to carry out the resolution.

M/s. R. Kesavan Nair, K. Kesavan Potti, G. Sadasivan Nair, K. N. Parameswara Sarma, G. Govinda Pillai.

Moved by Sri D. Sankara Iyer

Seconded by Sri. V. G. Iype.

IV. This Conference is of the considered opinion that in the interests of the dignity and efficiency of the judiciary the practice of promoting members of the Ministerial Staff to Judicial Posts should be discontinued. This Conference is further of opinion that all appointments in all other Cadres in the Judicial service shall be by direct recruitment from the Bar.

Moved by Sri. M. G. Koshy

Seconded by Sri. S. Oopala Pillai, Karunagapally.

V. This Conference is of opinion that in the interests of promoting efficiency of the services as well as of relieving over-crowding at the Bar,

(i) Recruitment to all offices involving quasi-judicial functions shall be solely from the Bar;

(ii) Not less than 50% of all posts the incumbents of which are expected to interpret and administer the law shall be reserved for the Bar,

(iii) For appointment to all other posts under the Government, when other qualifications are equal, preference shall be given to the members of the Bar.

Moved by Sri. V. Nagappan Nair Seconded by Sri. G. Sadasivan Nair.

VI. This Conference is of opinion that the restrictions placed on advocates in the matter of appearing before Industrial Tribunals and Labour Courts are unjust and not conducive to the proper administration of justice and therefore requests the Government of India to take steps for the removal of such restrictions.

Moved by Sri. N. Raman pillai

 Seconded by Sri. K. Kesavan

VII. This Conference is of the view that practising Lawyers should be declared competent to function as conveyancers both in the matter of drafting as well as of writing documents for registration without a licence therefor.

Moved by Sri. D. Sankara Iyer

Seconded by Sri. R. Kunjuraman Pillai.

VIII. This Conference resolves that the salutary practice of engaging a junior in all suits and appeals the subject matter whereof exceeds Rs. 1000/-in value be made compulsory by appropriate rules made in that behalf.

Moved by Sri. S. Vaidyanatha Iyer

Seconded by Sri. D. Sankara Iyer

IX. This Conference resolves that the practice of appointing or deputing Police Officers for the conduct of prosecutions whether under the Penal Code or under the Penal provision of other statutes has to be discontinued.

Moved by Sri. J. Joseph Rodriguez

Seconded by Sri. G. Govinda Pillai, Kanjirapally.

X. Having regard to the flood of new legislation involving penal provisions and to the fact that the investigating Officers cannot reasonably be expected to keep abreast of the implications and contents of the new enactments and further to the illegality and impropriety of public prosecutors taking part by advice or otherwise in the investigation stage this Conference considers that in the interests of the more efficient investigation and launching of Police and Departmental prosecutions there should be a full time police attorney for each district, recruited from competent senior members of the Bar.

Moved by Sri. M. G. Koshy

Seconded by Sri. K. N. Parameswara Sarma.

XI. This Conference is emphatically of opinion that the recent High Court Circulars enjoining upon all judicial Officers the duty of taking down all depositions in their own hand is not conducive to the proper administration of justice. The interests of justice require that the old practice of bench clerks taking down the depositions and presiding Officers concentrating their attention on regulating the examination and independently taking down notes so that the correctness of the deposition taken by the bench clerk may by verified with reference to such notes when the depositions are read out to the witnesses may be restored.

Moved by Sri. G. Sadasivan Nair

Seconded by Sri. G. Sivasankaran Nair.

XII. This Conference is emphatically of opinion that the recent High Court Circular calling upon Presiding Officers to discontinue the time-old and healthy practice of having a Roll call at the beginning of the days's work is highly prejudicial to the interests of the lawyers, parties, witnesses and even to the adjustment of the day's work of the Courts. Parties, Counsels and witnesses have to wait till about the rising of the Court to learn that their cases are finally to be adjourned. We therefore request the High Court to issue instructions to the subordinate Courts to restore the old practice.

Moved by Sri. N. Krishna Pillai, Mavehkara

Seconded by Sri. G. Govindan, Karunagapally.

XIII. This Conference resolves that in the interests and convenience of the public in South India a bench of the Supreme Court be permanently housed in a centrally situated place in South India.

Moved by Sri. N. Palpu, Quilon.

Seconded by Sri. K.N. Pararnesuara Sarma.

XIV. This Conference recolves that first grade Pleaders (of not less than 15 years standing at the Bar) be declared eligible for enrolment as advocates of the Kerala High Court.

Moved by Sri. S. Kuttan Pillai

Seconded by Sri. V. G. Iype.

XV. This Conference is of the opinion that the newly introduced panel system in the matter of appointment of Receivers and the imposition of the condition that candidates selected to the panel shall furnish security in the sum of Rs. 2000/- are unncessary and may result in keeping out deserving candidates. We consider that the strict and vigilant enforcement of the existing rules would effectively secure the proper discharge of a Receiver's functions. We therefore request the High Court to direct the subordinate judiciary to continue the existing practice.

Moved by Sri. G. Narayanan Nair

Seconded by Sri. K. Kesavan.

XVI. Having regard to the necessity of recruiting personnel who have attained higer standard of maturity and practical experience to fill judicial posts this conference is of opinion that the age limit be raised to 40 years in the case of Munsiff's and 45 years in the case of subordinate and Additional Judges and 50 years in the case of District Judges.

Moved by Sri. Joseph J. Panjikaran.

Seconded by Sri. V. Q. Iype.

XVII. This Conference resolves that the Honourable High Court be requested to make the following provisions in the Civil and Criminal Rules of Practice to ensure the more speedy and effective administration of justice and to avoid or reduce the scope for corruption by the Ministerial staff.

(i) Entries in the file book required to be made before the issue of summons or notices should invariably be completed within the two days of filing the plaints.

(ii) Orders for curing defects must specify in detail the defects to be cured.

(iii) Orders for curing defects or for the issue of summons or notices should be passed within three days of receiving records from the file book section and summons and notices should be issued within a week from the date of ordering such summons or notices.

(iv) The Progress Diary in trial and execution cases posted for each day must be completed and made available for reference preferably by seperate notification in the notice board within one hour of the rising of the Court.

(v) Office copies of orders and judgments should be ready within two days of the date of pronouncement there of.      

(vi) Preparation of decrees should be completed and decrees signed within three weeks of the date of pronouncement of judgments.

The records should be transmitted to the decree clerk within a week of the pronouncement of the judgment.

(vii) Attested copies of decrees, judgments orders and other records shall be supplied ordinarily within a week of the production of the stamp sheets and requisition for the necessary stamp sheets should be made within two days of the application. In urgent applications for attested copies requisition for stamp sheets should be made within 24 days of the receipt of the application and the copies should be ready for delivery within 24 hours of the production of stamp sheets. Ordinary application for attested copies shall be complied with strictly in the order of priority of production of stamp sheets. Any clerk found violating the order of priority in this matter shall be severely dealt with.

(viii) In applications for cheques, verification must be completed within two days of the applications and in the absence of any impediment on verification the cheque must be issued the same day.

(ix) Summons and notices to parties and witnesses should in the first instance be sent by registered post.

(x) Copies of written statements, petitions, affidavits and other statements ordered to be filed in court shall be served on the opposite side or filed in Court where the opposite side has not entered appearance and copies of documents sought to be proved shall, unless dispensed with by order of Court, be served on the party against whom they are intended to be used except where such party is a party to the document in question.

Moved by Sri. G. Sadasivan Nair;

Seconded by Sri. K. Kesavan.

XVIII. This Conference resolves that the number of days declared as Holidays in connection with Oh am be fixed at seven.

Moved by Sri. G. Sivasankaran Nayar,

Seconded by Sri. K. Kesavan.

XIX. This Conference resolves that a Committee consisting of the following members with power to co-opt be constituted to take all necessary steps for implementing the above resolutions.

M/s. V.N. Narayana Pillai, K. Kesavan, G. Sadasivan Nair (Convenor), K. N. Parameswara Sarma and V. Nagappan Nair

Moved by Sri. P. Sadasivan, Seconded by Sri. H. Sivararnakrishna Iyer.

BEAUTY AND THE BEAST

(T. G. John, Advocate, Trichur)

Of all kinds of murders, that by poison is the most dreadful, as it takes a man unguarded and gives him no opportunity to defend himself, much more so when administered by the hand of one who is dear and near, whom one could least suspect and from whom one might naturally look for assistance and comfort. It is sneakish and heinous, it is always the hidden work of darkness; for poisoning is done in secret and alone. It is not like other murders because it cannot be proved with equal perspicuity.

One of the most notable British trials that ever took place at the Oxford Assizes was the trial of Mary Blandy on a charge of murdering her father by administering the deadly poison of white arsenic. To a modern devotee of fictional 'whodunits' or cheap six-penny thrillers, this would be just another 'poisoning case'. But judged from the standard of the times, the parricide was considered so sinister and horrid in itself, that it rocked and swept like a tornado over eighteenth century England. On Monday, the 2nd of March 1752, a bill of indictment was found by the grand inquest for the County of Oxford against Marv Blandy, spinster, for the murder of Francis Blandy, her father, late of the parish of Henley-upon-Thames, in the said county and on Tuesday, 3rd of March 1752, the Court being met, she was set to the bar for her trial............

Mary Blandy was the only daughter of Francis Blandy, a gentleman and a prosperous Attorney-at-law. Mary was beautiful and her vivacity, wit and good humour were such as to make her an immediate social success Mr Blandy business-like in all things, determined to spend a season with his family at Bath, then the great market-place for matrimonial bargains. At Bath, Francis Blandy began his hunt for a suitable son-in-law. The first to cross the thresh hold with matrimonial intent was a thriving young apothecary but Mr. Blandy quickly made it plain that Mary and her £. 10000 (dowry fixed by him and settled on her) were not to be had by any drug-compounding knave ‘who might make sheep's eyes at her', and the apothecary returned to, his gallipots forhealing of his bruised affections. Many eligible visitors entered the parlor of Mr. Blandy and shared his plentiful table but none got his approval. It was in the summer of 1746 that Mary met the man of her life Dining with her parent at Lord Mark's house, she met one Captain William Cranstoun who was one of the guests. The old father following up the aristocratic scent soon found to h joy that Captain Cranstoun was no less a person than the fifth son of a Scots peer, William, fifth Lord Cranstoun and his wife, Lady Jane Kerr eldest daughter of William, second marquis of Lothian, In the summer of 1747 the patrician Cranstoun duly declared his passion and from that rest infatuated of him It was thus while things were moving on to such a heavenly crescendo that Francis Blandy received a letter from Lord Mark which broke he amazing news that Mary's lover Cranstoun already had a wife and child living in Scotland! Things took a different turn from that moment. The: old man was incensed; Mary and Cranstoun were determined to become man and man at any cost and also to get the £ 10000 as soon as possible by removing the only obstacle in the way her father. They agreed upon a horrid deed. Meanwhile, Cranstoun left Henley to Scotland and from there sent her 'a small box contain-in g some white powder'. The fatal dose was administered by Mary Blandy in the gruel which her father used to take every day. Francis Blandy died from the effects of poisoning. Cranstoun escaped to France. On Monday the 6th of April 1752 Mary Blandy was executed at Oxford according to the sentence pronounced against her.

x x x x

From the point of view of the jurist, the trial of Mary Blandy is very significant. The summing up of the charge to the jury was done by Baron Legge (Heneage Legge (1703 - 1759). second son of William First Earl of Dartmouth, was called to the Bar, 1728, took silk in 1739 and was appointed one of the Barons of Exchequer in 1747.) who along with Sir Sydney Smythe presided over the trial. Baron Legge's charge to the jury is a classic in itself. It is a landmark in the history of the law of evidence because for the first time the overwhelming importance of circumstantial evidence was stressed judicially.

"...............In the present case which is to be made out by circumstances,

great part of the evidence must rest upon presumption, in which the law makes a distinction. A slight or probable presumption only has little or no weight, but a violent presumption amounts in law to full proof, that is, where circumstances speak so strongly that to suppose the contrary would be absurd. I mention this to you that you may fix your attention on the several circumstances that have been laid before you, and consider whether you can collect from them such a presumption as the law calls a violent presumption, and from which you must conclude the prisoner to be guilty. I would observe further that where that presumption necessarily arises from circumstances, they are more convincing and satisfactory than any other kind of evidence because facts cannot lie

About two centuries enmeshed in legal marvels and perplexities have rolled by; still our temples of justice reverberate with the resonant words of Baron Legge-"Witnesses may lie; but circumstances cannot lie".

                                    ON MARUMAKKATHAYAM LAW OF GIFTS

(By K. E. Gopinath, Bsc, B. L. Advocate, Cannanore)

The Marumakkathayam Law relating to gifts is not uniform. The obvious reason being, that the people following Marumakkathayam customs were subjected to different governments and consequently became the topic of judicial interpretation by different High Courts. So much so, the Madras High Court which had jurisdiction over Malabar till recently, interpreted the law of gifts in a particular way in the light of the customs and usages followed by the Marumakkathayees of Malabar. Similarly, Cochin and Travancore High Courts gave effect to other consistent pronouncements in consonance with the existing customary practices and principles followed in the respective areas. But after a careful and critical examination of the topic in question, it will be evident that the difference in law is only factual’ and apparent. It so happened that the different High Courts gave judicial recognition of the different conception of the Maurumakkathayam way of life. With this background in view, let us examine how the law of gifts by a Marumakkathayee, have been evolved by the different High Courts.

The question for consideration is this. When a person governed by the Marumakkathayam law makes a gift of his properties to his wife and children in general, what is the nature and scope of the right thereby created in relation to the donees? In other words, who are the beneficiaries under the gift? Are they entitled as tenants-in-common? Or does it ensure to the benefit of the thavazhi constituted by the donees with the incidence of a starved property?

For example let us take the case of a father gifting his properties to his two sons and a daughter to be enjoyed in the female line. The Madras High Court as early as in Narayanan v. Kannan (7. Madras, 315.), construed the gift in such a way, that the donees were entitled to an absolute estate in the properties gifted, enabling them to hold it as tenants-in-common This may sound alarming because, prima facie, the decision cuts at the very root of the intention of the donor, who bad made explicitly clear that even the future generation was to have rights in the properties gifted. Naturallv when the very same question of construction of gift came up for consideration in Kunhachumma v. Kuttimammi Haji (76. Madras 201 F. B) Best and Subrahmanya Iyer, J. J. found it rather difficult to accept the view in 7 Madras 315 and so they referred the matter to a Full Bench so as to reconsider the view therein. The Full Bench after an elaborate enquiry held that under Marumakkathayam Law, joint tenancy or thavazhi enjoyment was the ordinary mode of enjoying the properties gifted and it was quite contrary to the spirit and notion of the Marumakkathayam way of life, to bold that the donees under the gift were to enjoy as -tenants-in-common. In support of this view an observation by the Judicial Committee in Soorjimonce Dossev. Mullic (6 M. I. A. 526) quoted below was strongly relied on by the F. B.

"In construction of a document executed by a Hindu due regard should be given to the ideas and notions of an ordinary Hindu and ordinary method of enjoying property".

This rule of construction propounded by the J. C. was straightaway applied in Amman Kutti v. Appu (22 Madras 322) and Palhumma v. Abdulhaji (31 Madras 228).

The very same question came up for closer scrutiny in Chakkara Kannan v. Kunhipoeker (39 Madras 317 F. B.) which is a landmark in the development of the law. Here the gift was by a father to his two sons and daughter. The case first came up befor Tayabji and Sankaran Nair, J. J. who later made an order of reference to a Full Bench. The point raised in the order of reference was whether the decision in 16 Madras 201 F. B. should be applied only in cases where the donees formed a separate thavazhi having a karanavan of its own. The four judges unanimously came to the conclusion that when a gift is made by a husband to his wife and all their children the presumption is that the donees enjoy it as a thavazhi property. They further held that there is no scope for such a presumption if the donees do not take within its fold all the members of that family. A careful persual of the judgment will make clear that adistinction in law was attempted to be drawn between cases where the donees constitute a separate thavazhi as such and where they do not consist of all the members of the thavazhi.

In the next case of Kundankutty v. Panku (32,1.0.107) the property were gifted to four sisters who were the only surviving members of the tarvad. Coutts Trotter, J. held that they were tenants-in-common on the ground that there was an express right of alienation conferred on the donees in the deed itself. But Kumaraswami Sastriar, J. came to the contrary conclusion. The learned judge held that there was no express power of alienation and consequently the presumption that the property became the tarvad property, has to be drawn. His Lordship even went to the extent of remarking that though reference to the issues of the donor is conspicuously absent in the deed, the presumption must be drawn whenever a Marumakkathayi makes a gift. In other words according to the learned judge, even in a case where the gift is expressed to be in favour of wife alone or children alone, the gift is to be construed as one for the benefit of the thavazhi with the incidence of a tarvad property. It is respectfully submitted that this is an extreme view of stating Marnmakkathayam Law on the subject. When a gift is purputted to be made by the husband to his wife alone excluding the issues alive, the only course in interpreting the deed is to confer the absolute estate to the wife alone and an importation of any presumption is unwarranted and repugnant to the intention of the donor. The decisions in Narasamma v. Kesu(1913 25 M.L J. 637) and Bhandari v, Bhandari (1915 31 LC. 854) are in support of this view.

The case of Thaihamma v. Thnkappa (59 L-W. 569) was a turning point in the march of law on the subject. Here the gift was purported to be given to one's wife and some of their children only. The law enunciated in Chahkra Kantian v. Kunhi Pocker, on the strength of the rule of construction laid down by the Privy Council, did not impress the judges who decided this case, During the course of the judgment, Sommayya and Yahalya Ali, JJ.reviewed the whole case law and observed:

"We cannot on these decisions say that when a property is gifted to the wife alone or to some of the children alone, there is the presumption that the donees take it with the incidence of a tarvad property. The presumption will arise only if the gift was in favour of the wife and all the children who by themselves form a thavazhi", and further stated:

"We have no hesitation in saying that the whole question must be reviewed when the question directly arises for consideration and is not covered by Section 48 of the Marumakkathayam Act. A reasonable solution is to hold that exception cases governed by Section 48 of the Act, there is no presumption that the donees do not get absolute right".

This decision had the effect of materially over-ruling Chahkara Kannan v. Kunhi Pocker. According to this decision the rule of construction formulated by the P. C, should be confined to cases where the donees take within its fold all the members of the tavazhi i.e. the wife and children and in the absence of the wife, all the children. Joined ownership and impartibility which were the characteristics of a Malabar tarvad has been put an end to by legislation and new ideas and notions regarding ownership and enjoyment of property in the west coast have come into existence displacing old and orthodox ideas and consequently the rule of construction previously propounded has to be applied with necessary modifications in the light of new changes.

The enactment of the Madras Marumakkathayam Act by this time would have found a lasting solution to the problem. Section 48 reads as:

"When a person bequests or makes a gift of any property...,.............in the name of his wife alone or his wife and one or more of his children by such wife together, such property shall unless a contrary intention appears from the will or the deed of gift..............., be taken as thavazhi properties by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line..................’’

The Act came into force on and after 1st August 1933. But deeds executed since the passing of the Act, alone are within the purview of the Section 48, because it has been held in Thathamma v. Thanhappa following the ruling in Knshnan v. Thala (1941 1 M.L J. 508) that the Act has no restrospective effect. So much so the law regarding the interpretation of gifts, executed before 1933 was still in the process of evolution.

Unfortunately, the very next decision dealing with the topic in Lakshmi v. Mukundan(1953) 2 M.L.J. 54-5) seems to look with disfavour the observations made in Thathamma v. Thanhappan. Here was the case of a gift to one's wife Thala and her santhanams. The question arose whether the gift was purported to be for Thala and for her two daughters, absolutely. The late Govinda Menon, Jas he then was) held that the gift was to the thavazhi of Thala and children, with the incidents of tarvad properties, for it was a clear case where all the members existing in the thavazhi were included as donees.

The learned advocate appearing on the other side tried his best to apply the opinion of the judges who decided Thathamma v. Thanhappa, but with no effect. Menon, J. said

"With all deference to the learned judges, this is not stating Marumakkathayam law as it is. We do not think that ever since the decision in 39 Madras 317 (F.B) based on the presumption arrived at by the J.C. decisions subsequent to the F. B. decisions, have in any way made inroads upon that proposition".

Another aspect of the matter was also discussed in this case i.e., whether the presumption will hold good in cases where the donor happens to be an uncle or brother of the donees. It was held that the presumption can be drawn even in such cases following the decisions in 32 I.C. 107 by Kumaraswamy Sastriar, j.

In Basharan v. Kavunni (1954) 2 M.L.J. 294) a will was executed by one Kunhan in favour of his seven children excluding the youngest child of two years. The question arose whether the presumption can be drawn in this case where obviously the donees do nol consist of all the children alive. It was held that there was no scope for such a presumption and that the question falls to be considered in each case on the factwhether the gift was intended for the thavazhi or for the donees as tenants-in-common. After a careful interpretation of the will, which in clear and explicit terms specified that "except for them no other person can lay any manner of claim to this property", it was held that the donees took as tenants-in-common and further observed that in view of the case law on the subject, the presumption of thavazhi property could not be extended in such cases.

Damodara Menon v. Bhargavi Amma (1956 2 M. L. J. 311) which is the latest case decided by the Madras High Court, a person and his sister gifted their properties to his wife and children of the former. Following the ruling in Chakkara Kannan v. Kunhi Pocker it was held that the gift to a woman and her children then existing, all together forming a natural group, must be deemed to be a gift to a thavazhi. Even if the donor happens to be someone other than the husband, there is absolutely no bar in applying the presumption.

In the light of the above discussion of the case law on the subject, the following conclusions can be arrived at.

1. A person governed by the Marumakkathayam Law can make a gift to an entity called a thavazhi in which case the properties gifted will have the characteristics of a tarvad property.

2. When the gift is made by a person to his wife and children, the genera i presumption is that the gift is for the thavazhi.

3. When the donees under the gift take within its fold the wife and children or in the absence of the wife, all the children, the presumption will be applicable

4. When all the members existing in the thavazhi are included and in the "absence of any express intention excluding the benefit under the gift to the

children in future, the presumption will hold good.

5. When the gift is made to the children of the same mother or to a member or members of the thavazhi without an express indication that an absolute alienable estate was granted, the presumption is that the donor intended to confer an estate with all the incidence of tarvad properties.

6. Even in cases where there are more than one donor, e. g. husband and brother, or other relations, subject to the above conditions, there is no harm in applying the presumption of the thavazhi properties.

Incidently, the view adopted by the Travancore High Court happens to be in consonance with the Madras view. The earliest decision is reported in Narayani v. Parvathi Nangeli (5. T. L. B. 116) wherin it was held that:

"The intention of the father of a Marumakkathayam family who makes a provision for the adequate maintenance of his children and their mother by giving them landed preperties is that the donees should enjoy the properties in common by taking usufructs of the property jointly and (hat the property should in all respects be subject to the incidence of other similar properties held by them as members of the tarvad. This intention has invariably seen respected by the people and has come to be regarded as a usage. We do not see why this court should refuse to accept the well-known usage of the country."

This statement of law on the subject enunciated so long ago, has been subsequently recognised and consistently followed in a series of later cases. In Kallyani v. Lakshmi (II. T. L. R. 139) the property was acquired by the father in the name of one of the children. It was held that the presumption is that the acquisition was for the benefit of the sub-tarvad constituted by all the children and the mother. The decision in Narayana Pillai v. Krishnan (22 T L R 287 F. B.) was also to the same effect. In Chakki v. Raman (26 TLB 11 F. B.) the gift was by the brother in favour of two sisters. It was held that the denees should take it as the sub-tarvad property and not as tenants-in common.

Unfortunately, the Cochin High Court consistently followed the opposite view right from the beginning, in Kuttirishnan Nair v. Cheethamma (10 Cochin L. R-614). According to this decision in the absence of an express or necessarily implied intention, to the contrary, the donees or legatees of putravakasam properties can only be regarded as tenants-in-common with regard to the subject matter of the gift as the case may be. This rule of construction was strictly followed in the series of subsequent cases i.e. Parukutty v. Raman (14 Cochin 363), Achuthan v. Devassy (28 Cochin 616), Thankam v. Raman (30 Cochin 131) and was finally approved and confirmed in a full bench decision in Tripurasun-dary Amma v. Anantha^admanabha Iyyer (36 C. L. R. 759).

It is interesting to note that after the integration of Cochin and Travancore States, when this question again came up before the T, C. High Court, it has given effect to both these opposing views, according as the parties belonged to Cochin or Travancore State. Both in Kallyani Amma v. Devaki Amma (1950 KLT705. F. B) and Narayana v. Kumaran (AIR 1951 T. C 11) where the parties hailed from Cochin area, the well established rule of construction enunciated in Kuttikrishnan v. Cheethamma was adopted without any hesitation.

In a very recent decision in Amina Beevi v. Vasudevan (1956 KLT 117) F.B.) Joseph Vithayathil, J. delivering the judgment remarked as follows:

"This being a Travancore case we find no reason why we should not follow the view that was being taken by the Travancore High Court from5 TLR 116 onwards. We therefore hold that in the case of a gift by a Marumakkathayee mother to her daughter......, the presumption is that it enured to the benefit of sub-tarvad of the donees."

Again in Janaki Amma v. Kunji Lakshmi Amma (1956 KLT 867 FB) wherein the parties hailed from Cochin, it was held:

"As such an acquisition by a Nair male in the name of his two daughters should in conformity with the line of decisions in Cochin courts, be taken to be a gift for the persons specified and they take it as tenants-in-common or joint tenants.

Koshi, C. J., observed: "The path of prudence lies in deciding each case on its own merits and not attempting are conciliation of the conflicting presumptions that obtained in the Cochin area on the one hand and in Travancore and Malabar on the other with respect to the matter. It is too late to attempt to examine the comparative merits of rival presumptions and seek to prefer one of them to the other."

It is worth while to note that these rival presumptions are not the result of any basic difference in law, but only of fact. All the High Courts took inspiration from, and followed, the rule of construction propounded by the Judicial Committee in 6 MIA 526 in arriving at the intention of the donor. Both the Madras and Travancore High Courts have assumed right from the beginning that a Marumakkathayee donor would ordinarily intend that the donees should take the properties gifted subject to the incidents of a thavazhi or tarvad properties, which is the prevailing system of holding and enjoying the properties in the respective areas. But the Cochin High Court consistently refused to accept the above view and presumed that the beneficiaries under the gift would take it absolutely as tenants-in-common, on the ground that both the systems of holding and enjoying the property i.e., as a thavazhi & individually, are equally in vogue in Cochin and that there is no reason to attribute one idea to the donor rather than the other, Thus it is clear that the difference is not exactly in law, but is only in fact i.e., the fact how the property is being held and enjoyed by the community.

And now that a separate Kerala State has come into existence and the integration of laws have proved to be of supreme importance, it is worth while to see the view adopted by the Kerala High Court. In Sarada v. Trivandrum Permanent Fund Ltd. (1957 K. L- T. 756) Mr. Justice Varadaraja Ayyangar observed as follows:

"There was no rule even in the days when pristine Marumakkathayam law prevailed that under no circumstances could a gift be made by a Marumak­kathayam father to his daughter so as to constitute her the sole and absolute owner of his bounty. And with the transfer of emphasis from group to indi­vidual ownership, brought about by the statutory innovations, there is less scope than ever for gifts in favour of sub-tarvads."

The trend of decisions in Karthyani v. Kesavapillai (1957 K.L.T. 355), Phillip v. Kesavun (1957 K- L. J. 1028) and Lakshmi v. Anandan Nambiar (1958 KLT s. notes 30) is clearly in favour of conferring the benefits under the gift on the donees absolutely. It is worthy to realise that our High Court will formulate a uniform rule of construction of gifts, so as to assure uniformity in the law of the State.