Whether the decisions of the Madras High Court prior to

States Reorganisation binding on the lower Courts in Malabar District

(P. G. Rajagopalan, B. Sc B. L,Tellichery)

It has been assumed by many lawyers that the decisions of the Madras High Court are not binding on the lower courts in Malabar District after the formation of Kerala State. The question is not without difficulty. It is submitted that the decisions of the Madras High Court prior to 1-11-1956 are binding on the lower courts though it may not be binding on the Kerala High Court.

The Preamble of the States Reorganization Act, 1956 which created the High Court of Kerala says that it is an Act to provide for the reorganisation of the States in India. It is clear from this preamble that it is not an enactment intended to change the laws in the State. S. 119 of the Act says 'The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within that State immediately before the appointed day". The words used are 'any law' and as such it includes Judge-made law or common law. It may be contended that law means statutory law only. But that does not seem to be the intention of the Legislature in view of the preamble stated above. If the view statutory law alone is taken then many customary laws and common law of this State will not be enforceable by the courts. The observation of Bhimsankaram, J. in A. I. R. 1955 Andh 87 F. B. may be pertinently quoted: "Should the mere constitution of a new High Court make any difference to Judee-made law that ought to prevail here? Now for instance it is well known that quite a large body of the rules of Hindu law as administered in India is Judge-made law. Why should we rouse apprehension in the minds of citizen of Andhra State that three rules so long held to obtain in this part of India are subject to reconsideration and possibly to reversal, all because a new High Court has been ushered into existence''. In the same case Subba Rao, C. J. (now Judge of Supreme Court) had also observed in a similar strain: "If Andhra High Court is free to start from scratch, it would be introducing confusion in the law of the land and disturbing titles acquired. It would also become a fruitful source of litigation."

It has been held by Andhra High Court that subordinate courts are bound by decisions of Madras High Court prior to 5—7—1954 (the date of inauguration of the Andhra High Court). "The subordinate courts in the State are primarily bound to follow the decisions of this court. If there are no decisions of this court directly governing the case, they ought to follow the decisions of Madras High Court as they have been previously doing in preference to the decisions of other High Courts. It is only when there are no decisions of this court or the Madras High Court dealing with the point, they are free to follow the decisions of other High Courts". (A.I.R. 1955 Andh. 33). There is no reason why this principle cannot be applied to the courts in Malabar.

It may be even contended that the decisions are binding on the Kerala High Court so far as administration of law in Malabar District is concerned, unless over-ruled or dissented by a competent bench of the Kerala High Court. It has been held that Andhra High Court and Madras High Court prior to 5—7—1954 are courts of co-ordinate jurisdiction; even if the two High Courts are deemed to be not courts of co-ordinate jurisdiction the Andhra High Court shall follow the Madras decisions on the principle of stare decis in the same manner that Madras High Court follows its decisions and subject to the same limitation. (A.I.R. 1955 Andh. 87 F. B.). In this same decision Subba Rao, C. J. after quoting Lord Eldon ("It is better that the law should be certain than that every judge shall speculate upon improvements in it") observes that 'there is no reason why the aforesaid salutary principle should not be followed in the case of decisions delivered by the Madras High Court when Andhra area was under its jurisdiction'. 1 he observation is true in the case of Kerala High Court also.

Chagla, C.J. in A.I.R. 1955 Bom. 1. (F.B.) has held that even obiter observations of the Privy Council are binding on the Bombay High Court. "It is true that this opinion of the Privy Council is obiter but so long as the Supreme Court does not take a different view taken by the Privy Council, the decisions of the Privy Council are still binding upon us, what is binding is not merely the point actually decided but an opinion expressed after careful consideration of all the arguments and which is deliberately and advisedly given". It has been held under Art. 372 (I) of the Constitution (similar to S. 119 of States Reorganization Act) even obiter dicta of the privy Council must be treated as bind­ing on the Indian Courts and the position is same even after advent of the Constitution in the absence of a contrary decision by the Supreme Court (A.I.R. 1953 Orissa 117 S. B.). On the anolagy of these decisions it can be held that the deci­sions of Madras High Court are at least binding on the subordinate courts in Malabar District.

In 1953 K.L.T. 430 = A.I.R. 1953 T- C. 283 D. B. the T-C High Court has held that the decisions of the pre-constitutional High Courts of Travancore or Cochin are not binding upon the post-constitutional High Court of Travancore-Cochin. This decision is distinguishable. When a constitution ushers entirely a new regime it may be reasonable for a High Court to consider it as a new High Court and the pre-constitutional High Court as an entirely different one. Both the Kerala High Court and the Madras High Court prior to States Reorganisation are High Courts under one and the same Constitution viz., Constitution of India. The Madras High Court prior to the States reorganisation and the Kerala High Court must be considered as courts of co-ordinate jurisdiction. The observation of Subba Rao, C. J. can be applied in the case of Kerala High Court also. "It would not be inappropriate to call a successor court as a court of co-ordinate jurisdiction with its predecessor if their jurisdiction at the point of time they exercised it are similar to or co-extensive with each other". Rutledge. C.J of Rangoon High Court had laid down the test of co-ordinate jurisdiction, ie, "Whether the two are of equal rank and status or of equal authority and exercise similar jurisdiction?" Applying this test it is easy to hold that the two courts are of equal rank and status and exercised similar jurisdiction and as such they are courts of co-ordinate jurisdiction.

Taking all these, views into consideration it can be safely assumed that the decisions of Madras High Court prior to 1—11—1956 are binding upon the I wer courts in Malabar District unless overruled or dissented by a competent Bench of the Kerala High Court.

                                    ON MARUMAKKATHAYAM LAW OF GIFTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

children in future, the presumption will hold good.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 

THE KERALA AGRICULTURISTS DEBT RLLIEF ACT

XXXI OF 1958 -- ITS DEFECTS

(K S. Nambiar, Advocate, Trichur)

The Kerala Agriculturists Debt Relief Act 31 of 1958 (hereafter called as Act 31 of 1958) though more comprehensive and detailed than the T-C Indebted Agriculturists Relief Act 1956 and has conferred more substantial reliefs to the Agriculturist debtors than its Travancore-Cochin counter-part through its provi­sions relating to (1) The settlement of the liabilities of the Agriculturist who is unable to pay his debts under its provisions through the intervention of the Court, (2) Usufructuary mortgages, (3) Setting aside of sales of immovable properties in certain cases and etc., suffers from certain defects which have to be cured through appropriate amendments. In an Act like Act 31 of 58, where the legislature has to confer maximum benefit on the agriculturist debtor and also to protect the rights of the debtors against rich Agriculturists and to see that some class of debtors and debts should be kept out of the purview of the Act in the interest of justice and general economy of the State, there is no wonder if some defects are found. The main scope of this article is to point out some of those defects and suggest amend­ments wherever possible.

One of the most important definitions in the Act 31 of 58 is that of the word 'debt'. S. 2 (c) defines the word debt as follows:-

"Debt means any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act, whether payable under a contract or under a decree or order of any Court, or otherwise, and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists (Repayment of Debts) Act 1955 or the Travancore-Cochin Indebted Agriculturists Relief Act 1956, but does not include (i)any sum payable to the State or the Central Government or to any local Authority....................................(vi) any debt which represents the price of goods purchased for purpose of trade:...................................."Thus S. 2 (c) defines debt and at the same time takes away certain liabilities out of the definition. But it includes any debt or balance of debt at the commencement of the Act under the corresponding Madras and Travancore-Cochin Acts. This provision of "inclusion" is unnecessary and will introduce contradictions. The use of the words "any liability payable under a contract or under a decree or order of any Court" are by themselves more than sufficient to take in all concei­vable debts. In the face of the definite language used in the main part of the definition there is no scope for entertaining any doubt as to whether some of the debts will not come within the purview of the definition. Inclusion of debts under the Madras and Travancore-Cochin Acts will only help to introduce contradiction in the same definition. S. i (c) definitely excludes several liabilities are from the purview of the Act. Some of those liabilities not so excluded under the Travancore-Cochin Act and are debts under that Act. For example S. 2 (c) excludes any debt which represents the price of goods purchased for the purpose of trade from the definition of debt while the Travan­core-Cochin Act does not contain such exclusion, and under that Act any debt which represents the price of goods purchased for the purpose of trade is a debt. So we reach at the absurd position that debt which represents the price of goods purchased for purpose of trade is specifically excluded by the provision of "exclusion" in S. 2 (c) from debt and at the same time the provision of "inclusion" in the same sub-clause that is words "and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists (Repayment of Debts) Act, 1955, or the Travancore-Cochin Indebted Agriculturists Relief Act. 1956" in S. 2 (c) includes such debt impliedly within the Category of debts under the Act 31 of 1958 The same is the case with some other liabilities also.

It might be, that it was anxiety of the legislature to see that all those who have been already benefited by the earlier enactments should not be deprived of those benefits by the coming into force of the Act 31 of 5 and at the same time they should get all the benefits of the new Act also and certain liabilities should not come within the category of debt, that was responsible for the introduction of the contradictory provisions in the same definition. Amendment can be effected by bringing the definition of the word debt in the Act 31 of 58 on the same line as that of the word debt in the Travancore-Cochin and Madras Acts by deleting necessary clauses from the provision of "exclusion" contained in S. 2(c) or by deleting provision of "inclusion" and allowing the provision of ''exclusion" to remain as it is.

Sec. 3, sub-sec. (1) of the Act 31 of 58 bars making of applications for the execution of a decree in respect of a debt against any agriculturist in any Court before the expiry of six months from the commencement of this Act. The Act does not make it clear as to what should be done with respect to such application pending at the commencement of the Act till the expiry of six months period. Under the provisions of S. 4 of the Act the decree debt can be paid by 17 equal half yearly installments; the first installment being payable before the expiry of a period of six months from the commencement of this Act. Thus the Court will not be in a position to proceed with the execution application before the expiry of six months period because under the provisions of the Act execution can be taken against the agriculturist with respect to a debt only if the first installment has not been paid before the expiry of the six months period. So practically there is a stay of such execution though there is no staying provision in the Act. To make the position more clear and to avoid long adjournment of execution application it will be better to add a staying provision to S 3, sub-sec (1) of the Act. The proposed amendment of the sub-section is as follows:

 "No application for the execution of a decree............from the commence­ment of this Act and no such application for execution pending at the commence­ment of this Act, shall be proceeded with beforethe expiry of such period, (underlined portion is added to the original clause).

Sec. 3, sub-section (3) is not happily worded. One interpretation of the Section (call it as first interpretation) is that if a suit is filed for the recovery of a debt before the expiry of six months period or after the Agriculturist has deposited in Court such installment of debt specified in the Act and during the period when he is entitled to pay by installments under the Act, the defendant will get his costs from the Plaintiff and the Plaintiff will have to bear his own costs except in cases where the period of limitation prescribed for enforcing the claim will expire before the expiry of six months period. Words "except in case where the claim would have been barred by limitation had no such suit been filed" appearing in the sub-sec may also lead to another extreme interpretation (call it as second interpretation) to the effect that only such suits filed on the last day of the periodof limitation are taken out of the mischief of the sub-section. Let us take the case of a promissory note executed on 18th of August 1955. If we go by the second interpretation if a suit is filed on the 17th of August 1958 it will come within the mischief of the sub-section. So every creditor will have to wait for the last day of limitation and if unfortunately he fails to file the suit on that day he loses the claim. Though it will be found under the Rules of interpretation relating to statutes the first interpretation is the correct and reasonable one it will be better to amend the sub-section so that the first interpretation may prevail over the other in unequivocal terms. Thus Section 3, sub-section (2) may be amended as follows:- "Where a creditor.....................except in case where the claims would have been barred by limitation had no such suit been filed before the expiry of six months from the commencement of this Act. ("Underlined portion added to the sub-section as it stands now).

It is provided in Section 4 of the Act for the payment of debts by installments. The mode of payment is set forth in Section 4, sub-section (2). The wording of the sub-section is not happy and it will lead to interpretation which might not have been the reflection of the intention of the legislature. Section 4, sub-section (2) reads thus: "If any debt is replayed in seventeen equal half-yearly installments together with interest accrued due on the principal debt outstanding at the commencement of this Act till the payment of each installment at the rate of 5% per annum or the contract date whichever is less................" From the sub-section it will be seen that the rate of interest has been scaled down to be only from the date of the commencement of the Act; with respect to interest till the date of the Act, the contract rate will prevail, because the use of the words "any debt is replayed in seventeen equal half-yearly installments together with interest" suggests that the whole of the debt has to be paid along with interest on the principal debt till the payment of each installment at 5% & the debt itself according to the definition in the Act is the whole amount payable under a contract or under the decree or order of any Court, which includes interest at the contract rate or the rate mentioned in the decree till such commencement. The word debt covers the whole liability till the commencement of the Act and the question of interest at 5% arises only from that date. The subsection has to be amended so as to give the full benefit of 5% interest to the Agriculturist. The use of the word "principal debt" in the sub-section is not correct. The word debt has to be deleted from the words "principal debt" to convey real meaning to the sub-section.

Section 6, sub-section (1) lays down that when a debt refers to in Section 4 is a decree amount paid by installments under Section 4 will be appropriated first towards costs, and then to interests and then to the principal. This sub-section is of no meaning in the face of the definite language in S. 4. Under that Section any debt Can be replayed by installments and decree debt also is included in the world debt. So there need not be any separate provision for decrees and a particular mode of appropriation thereto. The whole of the sub-section may be deleted being unnecessary for the purpose of this Act. About Section 6, sub-section (2) some comments on the clumsy wording of the sub-section have already appeared in the columns of K. L. T. That sub-section has to be suitably amended.

Section 11 sub-section (7) is an exproprietory legislation. Under that sub-section a mortgagee auction purchaser of the property mortgaged will be deprived of the balance of the mortgage amount if the property bought by him in the Court sale does not cover the whole amount under the mortgage decree. Such balance of mortgage amount is an interest in property with request to the mortgagee and the deprivation of it without compensation is against the provisions of the constitution. So the whole of the sub-section has to be deleted because it offends the provisions of the constitution.

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