Late Sri K.V.Suriyanarayana Ayyar

It is with profound sorrow that we have to record the sad and sudden passing away of Sri. K. V. Surianarayana Ayyar in his residence at Ernakulam on the morning of 18th July 1970 Grievous has been the blow that has been struck by destiny in snatching away from our midst quite unexpectedly a friend and guide, a doyen of our Bar. Who argued cases and moved jovially with us till a few days back. We are deeply grieved because of his long and happy association with the Kerala Law Times as a member of our Editorial Committee. His able guidance and valuable support were a source of strength and success for us. We take this opportunity to express our tribute of gratitude for the assistance given to us by him.

Mr. Surianarayana Ayyar was born on 23rd June 1893 in Alathur Village. He set up practice in 1918 and within a short time he distinguished himself in the profession with a large and lucrative practice. In 1932 he was appointed as the Government Pleader at Calicut in which office he continued for 12 years with marked distinction and meritorious service. With the formation of the Kerala High Court in 1956 he was appointed as the first Advocate General of Kerala, and he discharged the duties of that onerous office till 1960 to the unstinted appreciation of the Bench and the Bar and the public. He was the President of the Kerala Advocates' Association. His activities were not confined to the legal profession. While at Calicut as the Chairman of the Calicut Municipality he rendered great services to the public He possessed an aptitude for thinking legally, tenacity, talents and tact, all contributing to his glorious success as an eminent advocate. He always tried to preserve the purity and prestige of the profession and the dignity of the Bench and the Bar. By his industry, individual effort and innate worth he made his way to the front rank in the Bar proving himself to be one of our most successful advocates. Many reported decisions in which he appeared and argued remain as standing monuments of his talents, erudition and profound knowledge in all branches of law. There was power in his advocacy but no bluster. He had a well-disciplined equable temper by reason of which he disarmed his opponents and hostile judges in a manner which few could emulate. Though firm and fearless, he was never offensive or insolent to the court, nor was he rude or arrogant towards the opponent. He was never showy, shallow, confused, angry or blustering in his manner. He was ''deep, yet clear; gentle, yet not dull; strong without rage, without overflowing full".

He commanded great respect with the Bench and the Bar and the public. His simple and unassuming manners earned for him the love, respect and esteem of those with whom he came into, contact. In him we have lost a great lawyer and a good man.

He will be held in affectionate remembrance by his large circle of friends and relatives and the legal profession. As for us, we can never forget him. May his soul rest in peace

"To live in the hearts of those

We leave behind is never to die".

APPOINTMENT OF LEGAL PRACTITIONERS

AS HONY. MAGISTRATES

(G. Sadasivan Nair, Advocate, Quilon)

1. In the Kerala Gazette dated 10th June 1958, a Government Order (G.O.No. (MS) 686 dated 5th June 58 has been published under caption 'Appointment of Legal Practitioners'. The Order purports to remove certain hardships caused by a prior order of Government (G. P. No. CJ 6-6871/56/JD dated 30-10-55) imposing a bar on legal practitioners being appointed as Hony. Magistrates.

2. The principle underlying the bar in question is embodied in Section 557 of the Code of Criminal Procedure, which says that 'no pleader who practices in the court of any magistrate in a Presidency town or district shall sit as a magistrate in such court or in any court within the jurisdiction of such court'.

3. Government appear to have recognized the fact that such bar as was imposed by the earlier order caused hardships by denying opportunities to legal practitioners to serve as Hony and Special Magistrates in Bench Magistrates Courts and calling in men without the requisite knowledge or training to discharge judicial functions. As such, one would rightly expect Government to remove the bar altogether or at least to relax the restriction placed on legal practitioners. What confronts one, however, in the present order is just the contrary inasmuch as the scope of the bar on legal practitioners has only been further widened.

4. The latest order in effect precludes legal practitioners practising in any civil, criminal or other court whose jurisdiction takes in any part of the territorial jurisdiction of the Bench Court from being appointed as Hony. Special Magistrates of that court. Besides, those legal practitioners within the jurisdiction of the Bench Court who may have cases pending in any court within that jurisdiction will also be disqualified. Apparently this is unwarranted and goes counter to the professed intentions of the Government, inasmuch as it precludes many more legal practitioners from being appointed as Hony Magistrates than under the original order or under the prohibition contained in the Code of Criminal Procedure.

5. Suffice it to say, the Government order under review leaves much to be desired and its object stands self-defeated.

THE BAR OF RENT CONTROL PROCEEDINGS BY THE

KERALA ACT 1 OF 1957

(By M. Karumharan Nambiar, B.Com. B.L., Advocate, Cannanore)

The learned article by Mr. K. E. Gopinath under the above caption discusses the circumstances under which a petition under S. 7 of the Madras Buildings Lease and Rent Control Act for the eviction of a tenant from a building which is a hut is liable to be stayed under S. 5 of Act 1 of 1957, not S. 4 as pointed out erroneously in the article.

The bar under S. 5 of Act I of 1957 is against eviction of a kudikidap-pukaran from his kudiyirippu. This leads us to the question who is a Kudikidap-pukaran. 'Kudikidappukaran' has been defined in Travancore-Cochin Prevention of Eviction of Kudikidappukars Act (XIII of 1950) as "a person who has no homestead or land of his own to erect a homestead and has been permitted by an owner of a land to have the use and occupation of a portion of the land for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given......". Act 1of 1957 defines a Kudikidappukaran as "a Kudikidappukaran as defined in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act 1955 and includes any person in occupation of a hut (whether constructed by him or not) in any portion of a land belonging to and in the possession of another and who has been permitted by the latter to occupy that hut, bat has no interest in that land......" It is clear that Act 1 of 1955 has extended the ambit of the definition to include a person in occupation of a hut whether the hut was constructed by him or not. Under the definition in Act 1 of 1955 we have two classes of Kudikidappukaran, one the Kudikidappukaran as defined in Act XIII of 1955, who is a person who has constructed the hut iff his occupation, and the other, the Kudikidappukaran, ulkudidar of Malabar, who is a person in occupation of a hut whether constructed by him or not- A kudikidappukaran of Act XIII of 1955 can only be a person who has constructed the hut himself, a Kudikidappukaran of Act 1 of 1957 need not be one such.

The present amended Act 30 of 1958 has incorporated the definition of Kudikidappukaran in Act XIII of 1955 in a separate clause as clause 1 of S. 3 and clause 2 of S.3 is an improvement on the latter half of the definition of kudi­kidappukaran in Act 1 of 1957 in as much as it makes clear that the hut in question is one constructed by the person owning and possessing the land in which the hut is situated.

The conclusion of Mr, K. E. Gopinath that a kudiyirippu in relation to which eviction proceedings ought to be stayed is only one which has been built or constructed by the Kudikidappukaran is absolutely unwarranted and that conclusion is solely based on the definition of Kudikidappukaran as defined in Act XIII of 1955 which has been modified and the feelings of discomfort and haplessness expressed by Mr. K E. Gopinath over the definition of the word 'hut' are the logical outcome of this misapprehension.

Therefore the point now to be considered when the question of stay of a petition under S. 7 of the Madras Act for the eviction of a building is raised is whether it is ''a dwelling house which has a value not exceeding Four Hundred Rupees" and whether the person who is sought to be evicted has no homestead or land of his own to erect a homestead If these conditions are satisfied the petition under S. 7 has to be stayed under Act 1 of 1957, irrespective of other considerations

BAR OF RENT CONTROL PROCEEDINGS BY THE KERALA

ACT I OF 1957

(By K. S. Nambiar, Advocate, Trichur)

An article titled as "Bar of Rent Control Proceedings by the Kerala Act 1 of 1957" appeared in the K.L.T. dated 16-6-1958. In that article the scope and extent of the saving provision Sec 3, cl. (c) of Act 1 of 1957 have been discussed According to the article ''any building, may be a hut even, belonging to the landlord and let out to people on rent is not in the least affected and is safely beyond the clutches of Act 1 of 1957". According to me that view is not correct

A careful reading of the relevant provisions of the Act 1 of 1957 will lead one only to one irresistible conclusion and that is a rented building coming within the definitions of the terms hut and kudiyiruppu within the meaning of the Act is hit by it, irrespective of the fact whether the building is constructed by the landlord or the tenant.

The saving clause S. 3, sub-cl. (c) of the Act which takes the rented buildings out of the purview of the Act, by the explanation added to it makes the saving provision under it inapplicable to a hut which is a kudiyiruppu. The explanation reads as follows:

"For the purpose of this clause a hut which is a kudiyiruppu shall be deemed to be a building".

By the explanation it will be found that a building will come within the ambit of Act 1 of 1957 if the following conditions are satisfied.

(1) The building must be a hut within the meaning of S. 2, sub-cl. (2) of the Act 1 of 1957.

(2)The building must be a kudiyiruppu.

The word 'hut' has been defined as a "building which is principally made of wood, mud, leaves, grass or thatch". A "Kudikidappukaran" has been defined as follows, under S. 2, cl (3) of the Act 1 of 1957:-

"Kudikidappukaran means a kudikidappukaran as defined in the Travancore Cochin Prevention of Eviction of Kudikidappukars Act 1955 and includes any person in occupation of a hut (whether constructed by him or not) in any portion of a land belonging to and in the possession of another and who has been permitted by the latter to occupy that hut, but otherwise has no interest in the land.''

Cl. (4) defines "Kudiyiruppu" as follows:

"Kudiyiruppu means a Kudiyiruppu as defined in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act 1955 and includes a hut occupied by a Kudikidappukaran."

From these two definitions it will be clear that definition of ''Kudiyiruppu" and "Kudikidappukaran" in the Kerala Act 1 of 1957 and the Travancore-Cochin Act are not the same. The article in KLT dated 16-6-1958, it seems, does not advert to this fact. The scope of the definition of the terms Kudikidappukaran and Kudiyiruppu has been amplified in the Kerala Act so as to take in huts also irrespective of the fact whether it was constructed by the tenant or not, by which something more is added to the Travancore-Cochin definitions.

The words "hut (whether constructed by him or not)" definitely suggest that a hut to be a kudiyiruppu need not belong to the tenant. Even if it is constructed by the landlord it will be a kudiyiruppu within the meaning of the Act. The intention of the Legislature was to give absolute protection from eviction proceedings under the Act to those people who are in occupation of huts. The explanation to S. 3 cl (c) was added in the light of the definitions of the terms 'Kudikidappukaran' and 'Kudiyiruppu' contained in S. 2 of the Act 1 of 1957. From the foregoing brief discussion it will be clear that a building which is a hut within the meaning of the Act 1 of 1957 irrespective of the fact whether it was constructed by the tenant or not will be brought within the staying provisions of the Act 1 of' 57 if it satisfies the other conditions of a Kudiyiruppu. The fact that the "hut" is constructed by the tenant or landlord is of no significance in the face of the definite provisions in the Act 1 of 1957. So it is not correct to say that any building, even in the case of its being a hut, belonging to the landlord is not hit by the staying provisions of the Act.

LEGAL FANTASIA

(T. G. John, Advocate, Trichur)

There is a popular gibe on the continent, with a tinge of lambent humour that the hardest religious vow which a Parisian spinster in the teeth of dire misfortune will take, is that she will marry and be faithful to her husband for the first year of their married life. Against a background of casinoes, night clubs, mink coats, silk shantung sacks and other crazes of fashionable Paris, she has solemnly undertaken to do almost the impossible. Nevertheless, the infidel wife of France is punishable under French law for adultery. But coming to our own country the land of rope-tricks and Sathyagrahas, it is curious that the infidel wife is not punished as an abettor "It would be more consonant with Indian ideas if the woman also were punished for adultery. Manu has provided punishment for her and in France and in China she is punished." Adultery figures in the penal law of many nations and some of the most celebrated English lawyers have considered its omission from the English law as a defect. 

This carnal sin of adultery has again struck the head-lines in Great Britain. Scotsman Ronald MacLennan and his wife Margaret a professional ice-skater, separated in 1954. Margaret crossed the Atlantic to live in Brooklyn, where, more than a year later, she gave birth to a daughter. In Scotland, Ronald laid a suit for divorce, charging that she must have committed adultery. Margaret's reply: the baby was the result of artificial insemination. Her husband answered that even if this were true he had never agreed to her adopting such a course.

Was such an act adultery? A sin or a triumph of science? These questions were exercising the best legal, religious and journalistic minds of Britain. Hearing MacLennan's suit, Lord Wheatley, a Roman Catholic Judge of Scotland's Court of Session, listened to the argument of MacLennan's lawyer that the real essence of adultery is not how it is accomplished but "the surrender of a woman's reproductive organs to another man". Commented Lord Wheatley: "Of course, it is not another man, but a test tube. She does not know who the man is. How can you have intercourse with only one person present?" In his preliminary ruling the Judge noted: ''The idea that adultery might be committed by a woman alone in the privacy of her bed-room is one with which earlier Jurists had no occasion to wrestle", concluded that it did not constitute "adultery in its legal meaning".

Lord Wheatley's ruling raised more questions than it settled. Father Paul Crane, a Roman Catholic spokesman declared: "Human beings are not cattle to be bred by test tubes. Only a pagan world would treat them as such". Britain's popular press disagreed, argued that artificial insemination could bring comfort to women previously unable to conceive. Dr. Geoffrey Fisher, Archbishop of Canterbury, addressed the synod of the convocation of Canterbury on the issue. Whether or not artificial insemination by donor was legally held to be a crime or not, he said it was a sin in the eyes of the church. "It is something far less responsible and far less human than adultery", he asserted "It violates the exclusive union set up between husband and wife. It defrauds the child begotten and deceives both his putative kinsmen and society at large."

As for Mr. MacLennan, the Archbishop added: "On the facts of this case some legislation would seem to be inevitable. If the law gives him a remedy against adultery by his wife, it can hardly deny him a remedy against his wife if she bears into his family a child born out of wedlock and without his knowledge". (Time, Jan. 27, 1958).