Contract for Sale Whether Creates ‘Charge’ Over the Property

(By P. Biju, Advocate, Nedumangad, Thiruvananthapuram)

1. Transfer of Property Act is the law which governs the transfer of properties in India. The property under T.P. Act includes properties of any kind as stated in S.6 of the Act i.e., it includes both movable and immovable. Transfer may be transfer of ownership, transfer of possession or transfer of any other interest which the transferor has over the property. There are many modes to transfer properties. Sale, gift, lease, mortgage and exchange are the modes of transfer. Out of the said modes transfer by sale and contract for sale of immovable properties are the topics I intent to discuss. Specific Relief Act, Limitation Act and Contract Act are also relevant for the discussion.

2. Sale and contract for sale are defined u/S.54 of the T.P. Act. From the definition of sale it can be seen that S.54 deals with sale of immovable property only and ownership over the property alone is transferred by such sale. It is not stated in the definition that the possession of property is also transferred on sale by the seller to the buyer. At the same time it is stated in S.55(1)(f) of the Act that possession should be asked by the buyer from the seller after purchase of ownership of the property and if so asked the seller shall give possession. S.55 describes the rights and liabilities of the buyer and seller with respect to the property sold. Getting possession is one among such a right available, after sale, to the buyer and one among such liability cast upon with the seller, after sale took place. A reading of Ss.54 & 55(1)(f) together will make the point clear that sale of immovable property does not include passing of possession also and possession will be passed to the buyer by the seller on request u/S.55(1)(f) of T.P. Act.

For ready reference S.55(1)(f) is extracted below.

S.55(1). The seller is bound:

(a) to (e) ******

(f) To give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits.

3. That means handing over possession is not the ingredient of sale but is only incidental to sale, that tooonly if the buyer so requests. So, when one person sold immovable property to another, it does not legally mean to say that possession is also handed over. That is why while drafting sale deeds words which shows handing over possession is worded specifically and separately to show that possession is also handed over.

4. Then what doescontract for sale means? It is also described in S.54 of the T.P. Act. Contract for sale is a document by which the buyer will get right to purchase a property and the seller became bound to sell it. Usually the seller will execute sale deed to the buyer as stated in the contract for sale. But there may be circumstances where one party is willing and the other party is unwilling to perform their respective part. Then the provisions of T.P. Act, Specific Relief Act, Limitation Act and Contract Act start to function.

5. If the seller decline to execute sale deed as per the terms of the contract, though the buyer is ready to purchase, the buyer may file suit for specific performance as provided under Chapter -II of Specific Relief Act. When such a suit is filed prayer for possession is to be asked separately which is prescribed u/S.22(1)(a) r/w 22(2) of the Specific Relief Act. The suit if decreed in his favour the seller has to execute sale deed and then pass possession to the buyer. If the seller did not execute the sale deed even after decree and where the buyer pays the purchase money before court, the court will execute the sale deed in favour of the buyer as provided u/S.28(3)(a) and cause delivery of possession as provided u/S.28(3)(b) of Specific Relief Act. These provisions also say that passing possession will take place after sale.

6. So, the buyer may get sale deed in his favour through any of the three modes i.e., [1] sale deed by the seller voluntarily, [2] sale deed by the seller himself under obedience of decree for specific performance, [3] sale deed by the court in case of disobedience of decree by the seller. Whatever is the mode, once a sale deed is executed in favour of the buyer, he has a right to ask for possession. If the seller voluntarily executes sale deed, the buyer should ask for possession to the seller himself u/S.55(1)(f). If the buyer gets sale deed by the court u/S.28(3)(a) of Specific Relief Act he has a right to ask for possession before the court itself u/S.28(3) of Specific Relief Act. All these provisions affirm the importance of asking for possession by the buyer and the liability of the seller to give possession if asked. Since the aforesaid provisions are available the seller is not expected to keep the possession with him after sale take place. The contract for sale is a gentleman agreement and there is practice of handing over possession to the buyer along with the sale deed itself.

7. But there may be circumstances where the buyer declines to accept delivery of possession after the execution of sale deed. He may have his own reasons for such declination. If the buyer declines to accept delivery without any proper reasons he has no opportunity to blame the seller and will have nothing to sue against the seller.

8. But, the buyer, if declined to accept delivery with valid reasons i.e., reasons not attributable to the buyer, has the right to get back the purchase money (not the advance money) paid to the seller at time of sale deed. Such a right is provided in the first limp of S.55(6)(b) of the T.P. Act. Because without possession the buyer has nothing to do with the sale deed and there will be no meaning in keeping the title alone. Therefore a right is prescribed for him to get back the purchase money paid by him, if he is unable to obtain the possession from the seller.

9. The second limp of S.55(6)(b) provides some more reliefs if the buyer has properly declined to accept delivery. Before discussing those reliefs, first of all what advance money is, what is earnest money and what is purchase money are to be borne in mind. Advance money means the amount paid in advance towards sale consideration before execution of deeds i.e., at the time of contract for sale. S.74 of the Contract Act contains provision for fixing the maximum amount to be paid towards compensation in case of breach of contract by either of the parties. That amount is calledearnest money. Provision for earnest money may or may not be included in a contract for sale. If no earnest money is fixed in the contract the parties can claim any amount as compensation. Purchase money means the total amount of consideration paid in total by the buyer to the seller towards sale consideration.

10. If the contract for sale contains any provision for earnest money the buyer can claim, after sale takes place, apart from the purchase money, the earnest money (not the advance money) or compensation, as the case may be, as if the contract has not been performed by the seller. Because as far as the buyer is concerned the contract is not performed as he is not able to get the possession though sale deed is executed. So also by virtue of the second limp of S.55(6)(b)of the T.P. Act the buyer if got the sale deed through a decree is entitled for cost of the suit also if any is awarded. Because though the suit is decreed and got the sale deed the buyer has in effect failed as he did not get the possession. So he can claim for return of purchase money paid to the seller or deposited in court along with the earnest money or compensation, as the case may be, and cost of the suit if any is awarded.

11. Yet another relief available for the buyer is to rescind the contract before sale takes place as provided u/S.27 of the Specific Relief Act. In that case also the buyer can realize cost for the suit from the seller. If we read S.55(6)(b) after reading all the aforesaid provisions it can be seen that S.55(6)(b) speaks about the rights available to the buyer in whose favour the sale deed is executed and who declines to accept delivery of property for reasons not attributable to him. While suing for return of purchase money, earnest money or compensation, as the case may be, and cost by such a buyer, he has a charge over the property as per S.55(6)(b) of the T.P. Act. For ready reference S.55(6)(b) is extracted:-

Section 55. Rights and liabilities of buyer and seller.— In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:-

(1) to (5) ***

(6) The buyer is entitled—

(a) ***

(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.

***

12. Then what is charge? When a charge is created over a property the person in whose favour a charge created has a specific right to avail his claim upon charging the particular property itself. The person against whom the charge created has no other option than to pay the debt to release the property from the charge. He cannot substitute the property with another one or another kind of security as in the case of an attachment under O.38 R.5.

13. From the reading of S.55(6)(b) it is crystal clear that charge over the property is crated in favour of the buyer only after sale takes place and the buyer declines to accept delivery for reasons not attributable to him or when the buyer has filed suit for recession. It is a benevolent provision to save a buyer who purchased the property by paying money and thereafter failed to obtain possession not due to his fault or the buyer who sued for recession. Such a benevolent right which is available only to the buyer who purchased the property or who sued for recession is not expected to be provided to the buyer to a contract for sale who did not purchase the property or did not sue for recession, but who sues for return of advance money with or without compensation or claim for earnest money as the case may be. Because, charge can be created only by operation of law or by act of parties, as defined under Section 100 of the T.P. Act. No law prescribes such a charge for a buyer who enters in to a mere contract for sale.

14. So, by entering into a contract for sale parties do not create charge. By virtue of S.54 of T.P. Act no charge is created by operation of law. Hence the contract for sale does not create a charge. That is what is stated in the 3^rd heading of S.54 of T.P. Act 3^rd heading of S.54 is extracted here for ready reference.

Contract for sale.–A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

15. Then, what right the parties to contract for sale has if sale deed is not executed. It is stated in Ss.73 & 74 of the Contract Act. By virtue of those provisions the parties are entitled to sue for compensation from the other who committed breach. So also the buyer may sue for advance money paid by him to the seller towards advance sale consideration at the time of entering contract for sale. Though there is no specific provision for return of advance money in the Specific Relief Act, Contract Act, T.P. Act or any other related statutes, it is being permitted under the benevolent principle that unlawful enrichment in favour of one person is to be avoided. Of course, if the buyer is at fault in purchasing the property the seller is entitled to get compensation from the buyer on account of the fault of the buyer, provided any actual damage is sustained to the seller. Such amount shall be deducted from the advance money and only the balance has to be returned to the buyer. But in a suit for return of advance money with or without compensation or earnest money, as the case may be the buyer has no charge over the property. No law prescribes such a charge. The only privilege available for the buyer is to get an order of attachment under O.38 R.5 over that property. But such an attachment is liable to be lifted if any other sufficient security is offered, as in the case of other money suits.

16. In this context I have come across some verdicts of the Hon’ble Supreme Court and Hon’ble High Court of Kerala lasting from 1962 to 2017. Some of them are 1962 KLT 728, 1965 KLT 877, 1989 (1) KLT 581, 2004 (1) KLT 159, 2016 (1) KLT 394 & 2017 (1) KLT 429. Unfortunately all the verdicts affirm that the buyer who sues for return of advance money, before sale takes place, has a charge over the property by interpreting S.55(6)(b) of T.P. Act. How far those interpretations will stand?

17. With due respect to the Coram, legal luminaries appeared in those cases for both sides, let me disagree with the interpretations made on those judgments. What I understood from those judgments is that all those interpretations were made under the impression that S.55(6)(b) speaks about buyer in a contract for sale who sues for return of advance money. But in fact S.55(6)(b) meant only the buyers who purchased the property by paying the entire purchase money and thereafter declines to accept delivery of possession due to reasons not attributable to him. Suit for return ofadvance money without the sale being take place and suit for return ofpurchase money paid after sale takes place are distinct and different. Charge is created to the latter category only by virtue of S.55(6)(b) of T.P. Act. But somehow such privilege is being given to the former category also through the aforesaid judgments. Those judgments unfortunately do not address the aforesaid differences.

18. This would be clearer if we read S.54 again. Towards the last portion of S.54 it is categorically stated that the “contract for sale, of itself, do not create any interest in or charge on such property”. Through that provision charge over the property is specifically excluded. When something is excluded specifically all other provisions are to be understood subject to the specific exclusion. But nothing regarding the specific exclusion had been discussed in the judgments referred above. Even if the aforesaid exclusion is omitted to be considered, S.55(6)(b) is very clear as to whom and at what stage charge will be created. We can make sure that law will not intend to create charge for buyer suing for return of advance money if the following consequences are considered.

19. Let us imagine the consequences if the buyer under a contract for sale has a charge over the property for the advance money paid by him. By virtue of Article 62 of Limitation Act the period to claim money is 12 years when there is charge. Otherwise it is only 3 years. If the buyer who failed to purchase property kept mum for period of 12 years and files suit for return of advance money just before the expiry of 12 years the seller would be put to trouble as he might have sold the property already to some others. Because, the seller who decided to sell the property, might have so decided for fulfilling his financial needs. If charge is available to the buyer by virtue of mere, contract for sale the seller should wait for another 12 years to sell his property to others. Even if he plans to sell the property before 12 years, he must honestly disclose the new buyer that a charge subsists over the property. Nobody will purchase a property over which a charge is created according to the seller himself. Net result would be that, nobody will come forward to purchase the property and the earlier buyer may pressurize the seller to settle the account at his directions. The buyer, even if he is not the defaulter does not deserve that much of mercy from law simply because he had advanced some amount to purchase a property. Likewise the seller, even if he is the defaulter is not bound to be penalized that much by the law simply because he failed to return the advance money received by him. No law would contain that much of blemish. Law is made to ensure justice and to prevent injustice. Law does not mean to create troubles to persons who resort to it. When giving interpretations to law it should be harmonious and should be able to give effect to all the provisions, as said by Hon’ble Supreme Court and the Hon’ble High Court on many a occasion.

20. I read Ss.54 & 55 of T.P Act repeatedly to cure my doubts. I kept the topic throughout in my mind. But still I am unable to accept the verdicts as containing harmonious interpretations.

21. But situation may be different, if the contract for sale itself contains provision to create charge even for advance money. Because charge can be created by act of parties also as per S.100 of the T.P. Act. The specific inclusion of such a provision in the contract for sale may come within the purview of ‘act of parties’ and thereby creates charge. But no such interpretation has been made so far.

22. If the verdicts of the Hon’ble Supreme Court and Hon’ble High Court are to be followed all the buyers may file a suit for return of advance money and thereby obtain an order restraining alienation of the property under the guise that they have a charge over it. At the same time they will not file suit for specific performance and will not come forward to purchase the property. The seller, in effect, would not be able to sell his property. Though the suit by the buyer is only for return of advance money, the seller would not be able to furnish security as in the case of an attachment order under O.38 Rule 5 C.P.C. The seller would be bound to keep the property unsold till the final disposal of the case which is indefinite.

23. It is reminded that suits for return of advance money are being tried in trial courts which are bound to follow the decision of the Hon’ble High Court and Hon’ble Supreme Court. Since, these verdicts subsists, though not good, the trial courts are bound to follow it and are bound to pass orders in favour of buyers who approaches the court with a claim of charge. This may create unpleasant situation.

Let these words be an eye opener to all concerned, if correct.

Do We Deserve Pure Drinking Water?

(By Mathew Philip, Advocate, Kottayam)

1. Descending from the clouds, water is the elixir of life and the major constituent of all living organisms. This colourless odourless and transparent liquid is the cause of our ancient cultures, agriculture and industry. It is second only to air for the sustenance of our life in this planet.

2. One of the major source of water is the rivers, the natural channel of waters flowing from the mountains and ultimately reach the great oceans. It is home for the dazzling varieties of fishes, animals and the flora. The physical, chemical and biological character of the eco system largely depends upon these water bodies.

3. There are 44 rivers in this beautiful, tiny, God’s own land renowned for its wonderful greenery, intertwined river system, beautiful sceneries and varied geo systems. The longest river is less than 250 kms. In length. All the rivers originate in the fort like western ghats which is a marvellous combination of monsoon, mist, attractive animals and equatorial richness of plants. When this pristine blue waters reach the Arabian and Indian oceans, the shining and sparkling droops and it become dark and foul.

4. A study on the water sources of Kerala found that 73% of the water sources which arithmetically is 3606 in number (including rivers, streams, ponds, lakes and wells) are contaminated. (Hindu dated 26.10.2017). About 27 per cent are totally polluted. The rivers in Kerala are polluted from industrial and domestic waste as well as pesticides and fertilizer used in agriculture. Industries discharge harmful pollutants like phosphates, sulphides, ammonia, fluorides, heavy metals, and insecticides. Pampa river is choked by the waste of pilgrims. Periyar is undergoing eco degradation throughout its flow due to indiscriminate deforestation, agricultural industrial pollution and large scale sand mining. Still another reason for this pollution especially during summer, is the topography of the State. Because of the considerable level difference between western ghats and the ocean, the Kerala rivers are fast flowing and because availability of water is scarce during summer, the situation worsens. Per contra, the rivers in north India experience richness even in summer because of the melting of ice in Himalayas.

5. What about our right of clean potable water?

6. This matter was discussed elaborately in the classic case of Tirupur Dyeing Factory case (2010 (1) KLT OnLine 1114 (SC). A large number of industries situate on the banks of Noyyal river in Tamil Nadu and the discharge of industrial effluents into the river caused water pollution to the extent that the river water became neither potable nor fit for any other domestic use. It even polluted the underground water sources. The Hon’ble Madras High Court while considering the case imposed heavy fine on the manufacturing units at a pro rata of 6ps, 8ps and 10ps per litre of the effluent discharged into the Noyyal river being the cost of removing the sledge from the river and for the treatment of water making it worth for irrigation and human consumption. The penalty was challenged before the Supreme Court. It held:

“15. In Indian Council for Enviro Legal Action v. Union of India(2011 (3) KLT SN 137 (C.No.141) (SC) this court ruled that once the industrial activities carried out are found to be hazardous or inherently dangerous, the persons carrying on such activities are liable to make good the loss caused to any other person by his activity, irrespective of the fact whether he took reasonable care while carrying out his industrial or commercial activities. Therefore the polluting industries are absolutely liable to compensate for the harm caused by it to the villagers or other affected persons of the area, to the soil and to the underground water and hence the industry is bound to take all necessary measures to prevent degradation of environment and also to remove sludge and other pollutants lying in the affected area. As the liability of the polluter is absolute, for harm to the environment, it extends not only to the victims of the pollution but also to meet the cost of restoring the pollution free environment.

16. InVellore Citizens Welfare Forum v. Union of India(1996 (2) KLT OnLine 1119 (SC)) this Court considered various constitutional provisions including article 47, 48A, 51A(g) and came to the conclusion that it is the duty of the State to protect and preserve the ecology, as Article 21 of the Constitution guarantees protection of life and personal liberty and every person has a right to pollution free atmosphere. Therefore the “precautionary principle” and the “polluter pays” principle have been accepted as a part of the law of the land, being the part of environmental law of the country.”

7. The Honourable Apex Court did not interfere the order of the Hon’ble Madras High Court other than granting three month’s time for compliance.

8. In “U.P.Pollution Control Board v. Dr.Bhupendra Kumar Modi & Anr.”(2009 (1) KLT Suppl.720 (SC)) the issue was discharge of trade effluents into river Sai without any treatment. The company viz. M/s Modi Carpets Limited, Raeberali, was reluctant to carry out the directions of U.P.Pollution Control Board and continued to discharge untreated noxious and polluting trade effluents into the river. The learned Apex Court held:

“’Those who discharge noxious polluting effluents into streams, rivers or other water bodies which inflicts on public health at large, should be dealt with strictly de hors, to the technical objections. Since escalating pollution level of our environment affects on the life and health of human beings as well as animals, the courts should not deal with the prosecution of offences under the Pollution and Environmental Acts in a casual or routine manner.”

9. One observation inM.C.Mehta v.State of Orissa (1992 (1) KLT OnLine 919 (Ori.) is worth noting:

“The enormity of the problem can be gauzed from the following extract of the World Health Organization report:

“One hospital bed out of four in the world is occupied by a patient who is ill because of polluted water..... Provision of a safe and convenient water supply is the single most important activity that could be undertaken to improve the health of the people living in rural areas of the developing world.”

10. Pollution of water was the concern inStella SiIks v. State of Kamataka(2001 (1) KLT OnLine 1016 (Karnt.) and the Hon’ble Court observed:

“The very object of the Act is to ensure that the water which is a very essential natural resource available to the society is maintained in its purity, that some powerful influential and greedy persons do not corner the same for themselves and do not cause pollution to the detriment of the society at large.”

11. Time and again this matter was under consideration of our High Court. An interesting question of law arose inPrasad v. State of Kerala (2012 (1) KLT 861). The accused
persons dumped toilet waste into a thodu and accordingly charged under Section 277 read with Section 34 I.P.C. The counsel for the accused argued that Section 60 of the Water (Prevention and Control of Pollution) Act 1974 contains a non obstanteclause and therefore impliedly repeal Section 277 I.P.C. Section 60 supra reads:

“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.”

Obviously Section 277 I.P.C. does not go against the spirit of Water Act and therefore not inconsistent to the provisions of the Act. Hence court held that there is nothing to interfere.

12. Next question is how far the present enactments help to prevent water pollution. Section 24 of the Water Act is the charging section. It prohibits dumping of polluting matter in any stream or well or sewer or on land. Section 43 is the penal provision. The penalty prescribed is imprisonment which may not be less than 18 months but which can be extended to 72 months. Section 49 authorises the State Pollution Control Board to prosecute offenders. Because of the cumbersome procedure and lack of evidence prosecutions are seldom. Another penal provision is Section 277 of the Indian Penal Code. The penalty for fouling of water is three months simple imprisonment or fine upto ` 500 or both. The penalty is meagre considering the gravity of offence. The plethora of laws enacted to regulate waste management and to protect water quality are simply not working.

13. One suggestion I would like to make is a statute prescribing environmental permit to all riparian industrial/manufacturing units. This is in vogue in England vide The Environmental Permitting (England and Wales) Regulations 2010. The environmental permit may be made applicable to all existing units and future units. The owner or occupier or person in charge shall declare whether he intent to use river water and to discharge treated water in the river and in the latter cases the measures taken to make the effluent water clean and potable. The unit will be allowed to function only after they obtain an environment permit. Sufficient penal provisions are to be incorporated for suppression of facts or variation without permission. Another advantage for this is that the declarations and details made will be available in public domain, susceptible to R.T.I. Act.

A Law Teacher Hard to be Found

(By P.B.Sahasranaman,Advocate, High Court of Kerala)

Late Sri.T.P.Kelu Nambiar, Senior Advocate was respected by the learned lawyers and judges for the reason that he is a good guide. If somebody commits mistakes affecting the legal system he used to tell them boldly and sometimes write articles on the same in his inimitable style.

His Article in the KLT tilted “Heard Both Sides” criticises the casual manner in which writ petitions are disposed of. The legal profession seems to be injured from shoulder to foot, he expressed his unhappiness.

Obituary reference of lawyers were made after a long gap, sometimes together. If you think we are doing the right thing, perish the thought. I should think, it borders on absurdity. It is objectionable from Alapha to Omega, he has written in his inimitable style in the article titled “R.I.P.”. In the said article he has expressed his last wish: Do not wake me in my grave long after my interment only to convey your last regrets and rehearsed recollections. He has also written an article “Insult not the dead” when the judges death was given more preference though reference is due to lawyers who died earlier. After these articles the system of having reference for lawyers in the evening is stopped and the present practice of standing for two minutes. The present Chief Justice in recognition of the principle has given more respect to them by showing their names in every court and offices, respecting the soul of the lawyers.

Sri.Nambiar is of the view that a Judge, while hearing a cause should never look at his cause-list; should hide his watch and respect the brief before him. What should be the feeling of a party to the cause and his counsel, when they see the rapid ‘throw-away” of the brief book. Every brief contains the information enough to perceive the important truth relating to the cause.

Criticising the manner in which the discussions are being done on matters pending in Court, Sri.Nambiar has written an article tilted “What Ho ! Contempt”. The participants in the media show very heavily crossing the LOC (Line of Contempt) by venturing strong views against the observation and orders of the presiding judge. Even the appearing counsels were seen opinionated. And, they all were mis-fuelling, when the proceedings were pending. For a clear answer, brood over the matter sitting for some time under the green-wood tree.

Memorandum of Second Appeal “Cribbed, Cabined and Confined by Kalliani”, that was the title of an article written by him criticizing the judgment by which the Court has held that the memorandum of second appeal does not state the facts and grounds, only the question of law.

Sri.Kelu Nambiar is not with us. But his passion towards the profession is respected by all. He was a teacher for both the bench and bar. The Court can render good judgment only with the help of such good lawyers. When the question of interference by the High Court in Devaswom matters was questioned it was Sri.Nambiar who helped the court as amicus curiae. His submission was that the High Court has got ‘inherent jurisdiction’ (a reserve power) not conferred by the statute to protect the interest of a religious or a charitable trust or deity, the class of persons who cannot, on their own, take proceedings to protect or safeguard their interests and set right the abuses or mismanagement or maladministration. Appreciating the said submission the Court observed when the question regarding jurisdiction was argued at length by the learned Additional Solicitor General, the presence of inherent jurisdiction in this Court, as stated above, was put in the forefront by Mr. Nambiar.¹

We need guidance from such veterans for a good judicial system to work. Bar and bench should help each other to produce quality judgments. A good understanding will make better work.  I would like to quote Justice V.R.Krishna Iyer in this regard.

“My life-long and experience at the bar and the Bench is that Judges cannot shine without the Bar lending great support and so each is complementary to the other.”

1. C.S.Rajan v. State (AIR 1994 Ker.174).

Some Thoughts on Family Courts and Transfer Petitions

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

I have been divorced from matrimonial jurisdiction since long, excepting infrequent restitution in property disputes between man and woman. I find it shocking that matrimonial causes are gaining volume at an unprecedented rate, one cause multiplying into countless causes like Arjuna’s epical arrow multiplying thousand fold.

There has been a proliferation of transfer petitions, originating in Family Courts. Much administrative/judicial time is spent on registering and disposing of transfer petitions in/by the High Court, at times delaying proceedings in Family Courts. We find multiple transfer petitions being filed between same parties as regards proceedings between them despite the law declared in 2016 (1) KLT 696. I understand from some colleagues that some Family Courts in the State are barren for want of presiding officers, but flooded with litigants.

Rule 5 Family Courts (Procedure) Rules, 1989 provides for institution of proceedings. Rule 6 confers power on the District Judge, inter alia, to withdraw any proceeding from any court or to send it to any other Judge. U/s.7(1)(b) Family Courts Act, the Court is deemed to be a District Court for the purpose of entertaining an application referred to in Section 7.

Section 21A Hindu Marriage Act and Section 40A Special Marriage Act provided for transfer of cases by the District Court in certain situations. Section 8 Indian Divorce Act provides for extraordinary jurisdiction of High Court to transfer cases. Section 24 C.P.C. authorizes the High Court to transfer any proceedings from one Civil Court to another Civil Court under its jurisdiction. Section 25 C.P.C. enables the Supreme Court to transfer any Case, appeal or other proceedings from a High Court or other civil court in one State to a High Court or other civil court in any other State. Section 201 Cr.P.C. prescribes the procedure to be followed by a Magistrate not competent to take cognizance of a case. Order VII Rule 10 CPC commands the court to return the plaint.

The Parliament brought in Section 19(iii)(a) in Hindu Marriage Act and Section
31(1)(iiia) in Special Marriage Act to provide that the wife shall have the preference of jurisdiction. Assuming that freedom of preference of jurisdiction is absolute as regards the wife, should we spend more time of High Court on such transfer petitions?

Will it not be conducive to justice to incorporate a provision, mutatis mutandis, in Family Courts Act/Rules that the respondent-wife shall be entitled to apply to the Family Court (where the matter is pending), at the first hearing, to have the matter transferred to another Family Court? Can the High Court also not issue a circular enabling Family Courts to transfer/make over proceedings to such other Family Court on such request, without undertaking the cumbersome exercise under Section 122 C.P.C., while ensuring that (i) the transferee court shall not transfer it to any other court and (ii) number of transfers shall be limited to one except when ordered by High Court in exceptional circumstances?

Having regard to the fact that law shows more regard to the fairer sex, is it fair to compel her to come to High Court from Kasargode or Thiruvananthapuram, pleading for transfer of her case?

I recall that Lord Denning had reasoned: “...... So long as the wife behaves herself, she is entitled to remain in the matrimonial home..... So long as she has done nothing to forfeit that right, the court will enforce it”. I guess that his Lordship never ever contemplated Family Courts Actand Protection of Women from Domestic Violence Act.

Remember “Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned”? That was before their Lordships proclaimed equality/freedom in right to worship in “Sabarimala” case. I feel that the freedom of preference of jurisdiction given to the wife is ultra viresArticle 14, that such right may not be protected under Article 15(3) of The Constitution. In a lighter vein, clients of either gender come to Court (Temple of Justice) to pray for relief or to prey upon the institution of marriage.

Quaere:Can a TG approach the matrimonial court?

Delayed Justice and Accessless Justice

(By V.K. Babu Prakash, Secretary, Kerala Legislature Secretariat)

“Delayed justice is today perhaps the biggest bane of judicial administration in India. What use is a divorce decree when one is too old to remarry, or return of a house when the owner is dead? “                                                               -- Justice Leila Seth In Her Book

                                                           ‘Talking of Justice: - Peoples Rights In Modern India’.

As of 30^th June 2016, there were 2,81,25,304 cases pending in the Lower Judiciary, 39,45,158 cases in High Courts and 62,646 cases in the Supreme Court1. The number of cases pending in the Courts has grown at more than 30% over the last two decades. Various reasons are given for this massive backlog of cases including inadequate number of judges, lack of infrastructure, complex procedural laws and inefficiency of lawyers and judges. Irrespective of the reasons, the time taken for each case to navigate the judicial system takes decades. While no detailed study has been done to measure the average life cycle of a case from institution to final disposal, the law reports reveal that often the Supreme Court and High Court are rendering judgments in cases that were filed in the Lower Courts nearly two decades earlier. The non-governmental research organization DAKSH has recently started building a database of all pending cases in the High Courts to analyze in detail the pendency problem. In the 29 High Courts, the average pendency is 1296 days for the case currently pending. There are matters from 1950 still pending in some Courts. The oldest matter on record has been pending since 1958. Data has also been obtained from 3000 Lower Courts across the country and the average pendency in those Courts is 2155 days. In the Supreme Court, the average pendency of cases pending is 1148 days.

The huge backlog of cases is not just a time related problem, as most observers believe. There is no doubt that delayed justice is equivalent to denial of justice in many cases. However, this glosses over the equally serious quality of justice problem that is a direct consequence of severe backlog. Judges are required to hear nearly 100 matters a day on a daily basis. While some may be a minorprocedural matters and cannot be compared to a substantial hearing, expecting a human being, even a highly skilled and trained one, to take 100 decisions in a period of five hours, to be fair and reasonable, and to ensure justice, is an impossibility. The sheer volume of cases that a judge has to hear each day affects the quality of his/her behavior in Court, order and judgments. Judges just do not have the time to give each matter the time it deserves, reflect upon it, review existing precedents and then pass a considered order. Law reports contain a number of cases where judges have made fundamental errors, that cannot be pardoned. Two examples can be illustrated. In Bengalure a magistrate accepted a complaint of harassment and issued notice, when the relief sought was to parade the accused naked on the street, garland them with slippers and force feed them with human faeces.²

In another case report from Gujarat a Magistrate had issued bailable arrest warrant against the President of India, the Chief Justice of India and other high functionaries without even scrutinizing the complaint.³

Judges also end up writing judgments that are nothing more than a collation of quotes from past cases making it impossible even for experienced lawyers to decipher the judgment.

The length of these judgments and the difficulty in finding the ratio of the case are obstacles, which discourages any attempt at effective communication of the law laid down to the public. Poor quality of justice and indecipherable judgments also increase the number of appeals resulting in more cases and further delays. This means that the appellate courts are dealing mostly with cases more than a decade old and which are not necessarily the most important current issues facing society.

Pratap Bhanu Mehta argues that judicial administration, including docket management has never been taken seriously by the judiciary. He observes, “as an institution, almost all levels of the judiciary exhibit what can only be described as administrated chaos. There is unanimity in the view that the court system is administratively inefficient. Judges are excessively passive in an adversarial legal system, excessive party control allows respondents to delay cases with impunity and there are few alternatives for dispute resolution other than ill managed trial. The administrative infrastructure of most courts is woefully inadequate. Records of filings are mostly kept by hand, documents are difficult to trace, and judges orally summaries testimony for court records, judges are moved around from bench to bench faster than depositions are filed. Judges seem to seldom exercise the power to impose costs for frivolous litigations, interim injunction relief and adjournments are routinely granted and the number of possible appeals while a case is still on is large enough to effectively fracture the trial or stay it” ⁴

The judicial system has become so oppressively slow that it is incapable of protecting the rights of citizens and has resulted in the executive acting with utter impunity. The Law Commission in its 120^th report observed that one of the costs of judicial delay was an all declining respect for the rule of law. In fact, members of the judiciary themselves have shown a lack of faith in the rule of law due to massive judicial delays. The most shocking example in recent times is a Session’s Judge in Mumbai seeking help of an underworld don to settle his personal affairs.

The position has only worsened after nearly 60 years. There has been very little effort to study this problem in detail. There are many reports by the Law Commission on the issue of judicial delay and multiple suggestions have been made by the Commission with almost non implementation by the executive and the judiciary. The Law Commission even acknowledges that the problem cannot be studied properly in the absence of properly maintained data by the Courts. In its 245th report, the Commission observed that there is no scientific collection and maintenance of data by the High Courts to even begin to study the backlog problem in detail. As a result, most suggestions are based on surmises and anecdotal evidence. At the Chief Justice’s Conference in April 2015, the then Chief Justice of India set a target of 5 years for the disposal of each case at the trial court stage. The 5-year period may sound great for people who are used to trials going on for decades. However, from a right’s perspective, this reflects a severe lack of ambition in setting targets that make real change to the life of litigants. Five years in the trial court means that final disposal in the highest court may not happen for a minimum of 10-15 years after institution of a case.

It is not sure that India is an extremely litigious country as severe backlog and delays suggest. On the other hand, many argue that it is an under litigated country with persistent access to justice problem. The judiciary has tried to innovate through the concept of public interest litigation and Lok Adalaths. While there is a Legal Services Authority that provides legal aid to deserving people, the quality of legal aid has not only been poor but also only a myth most of the times. Lok Adalaths, however, have been reduced to a mechanism for achieving disposal rates by the judiciary. Unfortunately, it is the poor who are often forced to settle their cases through Lok Adalaths, as they do not have the luxury of financing a long drawn litigation and hoping for a favorable result at its end. At best, Lok Adalaths, are an inequitable form of mediation for the poor as the poor people are being left to settle matters because of the inability of the judiciary to provide remedies for breach of their rights.

One of the celebrated innovations of the Indian judiciary is the development of public or social interest litigation in the higher courts. However, most of the remedies ordered by the higher courts in PILS are ineffective in enforcing the rights claimed by litigant. A system based on rights has to provide meaningful remedies for their violation. These remedies should necessarily contain two aspects: first, the person suffering the violation should either be restored to his original situation or suitably compensated and second, the person causing the violation should be made to pay either monitory or otherwise. PILS have generally not been able to rectify the inability of the legal system to do either of the above. The Supreme Court in 1980 ordered that under trial prisoners should not be hand cuffed, as it is a prima facieviolation of their human rights.⁶However this practice has not stopped and it is common to see the accused hand cuffed, even in Court premises where lawyers and magistrates are present. Similarly, the Supreme Court has on many occasions ruled that under trails shall be released if they have served as much or more time than the prescribed punishment for the offence they have been accused of.⁷However, very often, civil society groups have to approach judiciary for implementation of the Supreme Court order, as there are no continuous compliances without further intervention by civil society. Even today many under trials continue to rot in jails, across the country after 39 years of the Supreme Court’s judgments. In 2013 a study showed that more than 75% of prisoners in India are under trials. Given that the conviction rate in India is very low, the incarceration of under trial is in itself a violation of rights. The Government is the largest litigant in the country in the lower courts and the higher courts. However, it is the attitude of the Government towards litigation, which makes it a large contributor to both judicial delays and problems in the legal system. A Government does not shy away from regularly appealing every order that comes against it, without considering whether the matter is worth appealing. Arun Shourie gives some examples in which appeals were filed before the Supreme Court by the Government in which the subject matter is not more than `15,000-20,000.⁸Courts have observed on innumerable occasion that the Government should not file appeals automatically, by examining if there is a serious issue that needs resolution rather than the attitudes of the officers involved.

Litigation between two departments of the same Government is also very common by spending money on counsel and court fees.

The executive and the judicial systems responsible for enforcement of rights and laws are crumbling on its legs. Where there is clarity on the rights, its enforcement is poor or non-existence. The judiciary is often left to plead helplessness and put itself at the mercy of the executive to enforce its orders at least to some extent. Its refusal to comedown heavily on the executive even in contempt proceedings, for lack of enforcement adds to the instability of rule of law. Another glaring problem is that while judicial activism can possibly give relief in the short term, it is hurtful to the cause of rights and the rule of law in the long term as the other institutions are quite happy not to do anything and pass the buck to a willing judiciary. The rights jurisprudence is undermined by two further aspects. First, is the tendency of the judiciary to apply its ruling only prospectively on grounds of practical consideration and difficulties in undoing the effects of illegal aspects. The judiciary resorts to this prospective over ruling approach often. The effect of prospective over ruling is protection to the beneficiaries of illegal actions and it does not meaningfully compensate the victims of illegal actions. The beneficiaries of illegal actions and the executive are so used to prospective over ruling by the judiciary that they do not hesitate to take action even when they are aware of its illegality. Leila Seth highlights the second aspect by pointing out that many judges appear to be oblivious of the existence of rights itself and are more influenced by personal, class and societal prejudices. Justice Leila Seth gives the example of the decision by the District & Sessions Court Jaipur in the Bhanwari Devi rape case and observes as follows;

“ What is historic however is the view taken by the Sessions Judge that the accused by virtue of their age and social standing were necessarily incapable of a crime like rape. The judgment suggests that rapists are usually teenagers. This may or may not be statistically true. But extending that to mean that accused who are not teenagers cannot rape is ludicrous. If this were to be accepted all cases of rape should be dropped the moment it is established that the accused have crossed their teens. Equally astonishing is the finding in the judgment of the Sessions Judge that since the alleged rapist were middle aged, they must necessarily be responsible, a contention supported neither by statistics nor by elementary logic. The most degrading reason given for acquittal was that the accused (one of whom was a brahmin) were fairly highly placed in the caste hierarchy and that this ruled them out as possible rapist of a lower caste woman. Such caste characterization of crime, apart from being morally objectionable, betrays an entirely a historical perspective and this perspective while insidious in society at large is even more abhorrent within the judiciary “.⁹

The failure to recognize, implement and sustain the culture of rights means that the discourse in India continues to be one of the entitlements which the executive in its discretion bestows on people, raising the question of India is still a subject society. While the success of electoral democracy ensures that claims of India being a subject society remain muted, the everyday impunity of the executive makes the case for bringing these muted voices to the surface. Judicial impunity, lack of consistent reasoning, while exercising judicial discretion and judicial delay have added to the desperation of citizens, who have no one to turn to for effective enforcement of laws, contributing to the sense of lawlessness.

The rule of law thus hangs in the balance.

1.  This information is available on the website of Supreme Court of India.

2.    The newspaper The Hindu dated 10.04.2015.

3.    The Newspaper The Hindu dated 28.04.2004.

4.   Mehta, India’s Judiciary: The Promise of Uncertainty, page 151.

5.  R.K.Sen, A.Das Guptha, Crime and Corruption in Indian Economy, page 209.

6. Prem Shankar v.Delhi Administration (1980) 3 SCC page 526).

7.   Hussainara Khatoon v. Home Secretary, State of Bihar (AIR 1979 Supreme Court, page 1369).

8.  Arun Shourie, Courts and their Judgments, page 370.

9.   Leila Seth in her book Talking of Justice, page 21.