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

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

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

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

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

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

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

Retirement of Mr. Justice M. Madhavan Nair

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

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

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

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

"Mid pleasures and palaces though we roam

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.