Subordinate Courts

(M. Stanley Fernandez, B.Com., D.S.S., B.L., District Government Pleader & Public Prosecutor, Ernakulam)

There is no sitting of Judges in the High Court’s on Saturdays. The various sections of the offices of the High Court work on all Saturdays except the second Saturdays. This privilege is denied to the presiding officers of the Subordinate Courts, without proper reasons. Those of the Judicial Officers, who have their homes away, could go over there during week ends, if they get two days' holidays on Saturday & Sunday consecutively. While others who remain in station can usefully spend their time attending to administrative work or preparing judgments of the cases they heard during the week. One of the reasons for law's delays in the Subordinate Courts is due to paucity of time and adequate facilities for disposal of cases already heard by the pre­siding officers. Both the Kerala Government and the Chief Justice of the Kerala High Court should look into this matter, and declare Saturday as a daywithout sitting for the Subordinate Courts in Kerala State.

A New Year Salad

(T.G. John, Advocate, Trichur)

Much is talked about legalising abortions. We hear of bills about the same in the anvil in this country and elsewhere. The matter is unthinkable as a topic of public discussion but the population explosion, the food problem and other complexities of life makes the topic as endearing to the common man as a breakfast egg As far as our Penal Code is concerned, Macaulay may turn twice in his grave if he comes to know that Ss. 312 to 315 will have to be dropped off from the Code which he drafted so laboriously. But the shock will be less when he hears news from his own country that "gentlemen" over there are thinking seriously to legalise homosexuality. King James the first who succeeded Queen Elizabeth in 1603, was homosexual. (Wilson and Pitman-over bury Murder). Even this extreme measure will become unnecessary within a few years because with safe do-it-yourself medicatious abortion will be brought actively into the arena of private decision. Boston College's Jesuit Thelogian-Lawyer Robert, F. Drinan contends even therapeutic abortion under a model code recommended by the American law institute and recently adopted by three states means taking a life. To ensure that no abortion shall have legal sanction, Father Drinan suggested that the states shall repeal all abortion laws. The reaction of Pat Maginnis, a medical technician aged thirty nine who had three abortions herself is different. It is her confirmed opinion that no laws shall hold the woman responsible for ridding herself of an unwanted child. She argues that the police shall not be allowed to take any action "even if you take your fetus into the police station and tell them you just did your abortion".

xx xx xx xx

Defence counsel in criminal trials sometimes become very dramatic. The trial of Leopald Nathan and Richard Loeb law students of Chicago University for the murder of fourteen year old Bobbie Franks was an occasion when the defence counsel, Clarrance Darrow became suddenly poetic and took the court room by surprise His defence speech was ponderous and emotional with Freudian under-stones. To the agape courtroom he quoted from A.E. Houseman's Last poems:

"The night my father got me

his mind was not on me,

He did not plague his fancy

to muse if I should be

the son you see".

and went on to more irrelevant whimsy "the mother who looks into the blue eyes of her little baby cannot help musing of the end of the child, whether it will be crowned with the greatest promises that mind can imagine--or whether he will meet death upon the scaffold'. Over eloquent when describing his client's possible summons to the scaffold, Darrow went on to say that Judge Caverly presiding over the trial stood between the past and the future, between hate and love and quoted the Persian poet, Omar Khayyam":

"So I be written in the Book of love

I do not care about that book above

Erase my name or write it as you

So I be written in the Book of love''.

The trial took place in the criminal court of Cook County, in Chicago on 21st of July 1924. In spite of the public clamour for death sentence, the Judge awarded only life imprisonment.

An Error in the Madras High Court

Prof. J. Duncan M. Derrett (London)

An alarming error has" been made in P. Periasami v. P. Periathambi AIR. 1980 Mad. 33 at p.41 para 13. As the learned Chief Justice, Ramaprasada Rao, C.J., puts it, "In spite of the enlightened cobwebs of orthodox Hindu Law having been shed by the introduction of the statute law in the Hindu Succession Act of 1956, yet, the law relating to the joint family which is a peculiar doctrine among Hindus still shoots posers which are not easy of solution." Even in a state which has abolished the joint family (so far as legislation can abolish a thing so deeply rooted in custom) questions will arise for many years as they did in that case, in which the correct exposition of the old law is vital. On the other hand there is a tendency to allow current statute law to infect, as it were, retrospectively, the way in which obsolete law is expounded, under the impression that it is better for the public to suppose that the law once was more or less what it now is. There are several instances of this tendency, and although that is not the motivation between the error in Periasami’s case, it is as well to draw attention to it.

Not so long ago complaints were made that the British, especially the Privy Council, never really understood Hindu and Mahomedan legal problems, and created an Anglo-Hindu law and an Anglo-Mahomedan law. Now we are in a further situation in which even the best efforts of the Bar cannot enable judges born, educated and trained in India fully to comprehend the legal history of their own nation. Moreover, judges who have spent several days with an intricate case, studying a genealogy going back over four generations, and working out the property relationships and litigations between members of a family relying on events as far back as (in this case) 1906 and 1954 respectively, may very well have a clear idea of what justice demands, and, as is not seldom the case, direct their enquiries into the law (especially if it is somewhat obscure) in such a way as to produce an answer that will do justice between the parties: but that can be an instance of hard cases making bad law. Nor can we dismiss the instance because it deals with obsolete law. As the learned Chief Justice said, such cases sometimes arise, and can go on arising.

To come to the point: when a father governed by Mitakshara law dies prior to 1966 and prior to any statute abolishing the birthright, and he leaves self-acquired property, and also sons who are undivided from him at the time of his death and from each other, do they take the self-acquired property in shares as tenants in common (thus excluding their own sons) or as coparceners at Mitakshara law, sometimes called 'joint tenants with benefit or survivorship' (to utilise an English near-analogy)? For well over a century it has been known in some quarters, and for many decades has been established in all quarters, that the undivided sons take the self-acquired property of the father as ancestral property, i.e. as coparcenary property between them and between themselves and their male issue respectively. True, the power of testamentary disposition of self-acquired property was introduced by the British, and has been established since the mid-nineteenth century at the latest; and true the acquirer could dispose of the property inter vivos free from the sons' interference (as Vijnanesvara said, they must give their assent, out of obedience, and therefore their assent is, judicially, presumed). Both the power of disposition inter vivos, and by testament, however, left untouched the principle that the sons' birthright in their-ancestral daya which was apratibandha, i.e. unobstructed, by the survival of the ancestor, came to full life and vigour on his death, entry into sannyasa, or, in former times, lapse from caste or being outcasted.

This absolutely notorious position is to be found in countless cases, of which I need only cite a comparatively recent one, Ram Dei v. Gyarsi AIR 1949 All. 545 FB. We must confine ourselves to the self-acquired property. The expectation that if the father bequeathed it to his sons they would take no different estate than they would have had by operation of law led to Arunachla v. Muruganatha AIR. 1953 SC. 495, in which emphasis was laid on the point that the father could have conveyed an absolute estate to a stranger, and that it does not follow that because he chose his sons as legatees they must take a lesser title. Yet the result is that if the father gives no indication to the contrary the sons may be held to take even the legacies as joint-family property between them.

That the sons have a real daya— actually apratibandha daya because he is their male lineal ancestor—in the father's self-acquired property is manifested by several rules of law, which we dare not infringe. For example a father can by intention alone (without document) merge his self-acquired property with the joint stock and then partition it; and he must manifest an intention that they shall take it in shares, otherwise they take it as ancestral property vis-a-vis their own sons: S. Parthasarathi v. Commr. of I. T Madras AlR 1967 Mad. 227. The blending of self-acquired property would be quite impossible if a preexisting right, known to the personal law, though not amounting to a right to demand partition or to interdict alienations, did not exist. The blending is not a transfer within S. 5 of the Transfer of Property Act: see Vallabhdas Mehta at AIR 1969 Journal 27-8 and references there given. The sons have no choice to refuse the father's blending (!): Commr. of Gift Tax v. P Rangasami AIR 1970 Mad 441 FB. The blending is not a 'transaction' within the meaning of the Gift Tax Act, 1958: Goli Easwariah v. Commr. of Gift Tax, A. P. (1970) 1 S.C.W R. 841 (this Supreme Court decision should have been consulted).

Now the Madras High Court has done a very strange thing. Holding that self-acquired property is taken by the sons as tenants-in-common, the learned judges have deliberately dissented from the Allahabad decision cited above (which was correct), and have claimed that they were bound by an old Madras decision under the rule stare decisis. That was (1921) 44 Mad. 499, which is far from satisfactory. The Hindu Law was much clarified in many aspects after the 1920's.

Two remarks have to be added. The Madras High Court repeats obiter a rule of law which is now agreed almost everywhere, namely that if a father dies leaving self-acquired property, with some sons joint with him and some separated, then the joint sons will exclude the separated. No doubt this is so, but it is a rule which supports the correct rule which they deny elsewhere in the same judgment. A separated son, though I have argued otherwise elsewhere, does not have a birthright unsatisfied, and is therefore excluded.

Next there is a rule which is not noticed in our instant judgment. If a father dies leaving, not separate and self-acquired property, but a share in former coparcenary property, it is a rule that his separated sons (even if they are all joint with each other) take that former share as tenants in common and not as ancestral property. See Ragho v. Shantabai AIR. 1957 Bom. 274; M.D.R. Ranganatha v. M.D.T. Kumaraswami (1961) 1 M.L.J. 404; Vish-weshwarlal v. Bhuramal AIR. 1968 Raj. 277 (Mulla, Hindu Law, 13th edn. para. 222 needs modification). The reason for this rule is that the sons', birthright was totally satisfied at the partition, and the share, on the father's death, descends as property in respect of which the sons have no daya This' strange rule actually corroborates the correct understanding of the sons' rights which the Madras High Court has now failed to grasp.

The reason for the Madras error is to be detected at para 13 and para 17. At para. 13 it is said, 'If they inherit the same, then it would be a case of saprathibandha daya. If they survive to the same as members of a coparcenary, it would be a case of apratibandha daya.' So brusque a formula did not do justice to the true situation. In part the case of Lakshinarasamma v. Rama Brahmam was to blame, for in respect of apratibandha daya that very case did contain misleading remarks. At para. 17 of our instant judgment we find the notion expressed that the ancient texts can no longer be followed. Too true! Anglo-Hindu law, let alone Modern Hindu law, has made many departures. But in this particular context Vijnanesvara is still the basis guide and is not to be deserted without warrant.

Another ‘Hurdle’ on the Expeditious Disposal of Cases

(P.K. Somasundaran Nair, B.Sc., B.L., Munsiff, Perumbavoor)

We have heard the oft-quoted maxims:—

"Justice hurried is justice buried" and" justice delayed is justice denied". In between the two devils the courts have to administer, rather dispense justice. Now a question has arisen as to the proper service of summons to a defendant in a case. This position was considered by the Division Bench of our High Court in a case reported in 1979 KLT. 866: ILR. 1980(1) Kerala 612 (Mohan Traders and four others v. A.V.M Cattle and Poultry Feeds Manufacturing Industries). Order V Rule 9(3) of the Civil Procedure Code, 1908 was inserted by the notification in the Kerala Gazette dated 9—6—1959, enabling the courts to cause a summons under this Order to be addressed to the defendant at the place where he ordinarily resides or carries on business or works for gain and sent to him by registered post prepaid for acknowledgment. An acknowledgment purporting to be signed by the defendant shall be deemed to be sufficient proof of service of such summons. Rule 9(3) does not provide for cases of refusal of summons issued through registered post. Kerala Rule 9(3) and Rule 20A(2) came up for consideration in a case reported in 1970 KLT. 907 and the Honourable High Court held that since Rule 9(3) says nothing about an endorsement of refusal, the implication is that an endorsement of refusal is not to be deemed to be sufficient proof of service Thus if a summons issued under Rule 9(3) is returned with an endorsement by the postman that it was refused, there is no due service of summons.

The C.P.C. was amended in 1976 by Act 104 of 1976. Order V Rule 21 provides that where the defendant resides within the jurisdiction of a court other than the one which issued the summons, summons may be sent to that court either by one of the officers of the court issuing the summons or by post. The service of summons on the defendant is to be effected by court within whose jurisdiction the defendant resides. The usual mode of service as contemplated under Order V Rules 10 to 15 is by delivery or tendering a copy of the summons by an officer of the court to the defendant, if practicable, or to his authorised agent or to an adult member of his family residing with him. Thus the ordinary mode of service contemplated under law is service through an officer of the court. Service of summons by post was permitted by Rule 20A, which was inserted by S. 14 of the Amendment Act 66 of 1956 Rule 20A (2) dealt with refusal of summons sent by registered post. The above Rule 20A provides that an acknowledgment purporting to be signed by the defendant or the agent or an endorsement by a postal employee that the defendant or the agent refused to take delivery may be deemed by the court issuing the summons to be prima facie proof of service. That provision under Rule 20A stands deleted by the Amendment Act of 1976. Now service of summons by post is provided in Rule 19A, which is a new provision added by the Amendment Act of 1976 The above Rule 19A provides simultaneous issue of summons for service by post in addition to personal service. Thus service by registered post is permissible, it has to be done in addition to and simultaneously with the issue of summons for service in the manner provided in Order V Rules 9 to 19. Rule provided under the old Rule 9 (3) of the Civil Procedure Code, 1908 stood at a different footing, which allowed service of summons by post even without service of summons through an officer of the court. Under S. 97 (1) of ' the Code of Civil Procedure (Amendment) Act 1976, any amendment made or any rule inserted in the C.P.C 1908 by a State Legislature or a High Court before the commencement of the Amendment Act, 1976, shall except in so far as such amendment or provision is consistent with the provisions of the "said Code, stands repealed. Thus Rule 9(3) added in Kerala in so far as it provided for issue of summons by registered post otherwise than as provided in Rule 19A is inconsistent with the Amendment Act 104 of 1976 and it follows that Rule 9(3) added in Kerala stands repealed by S. 97 of the Amendment Act, 1976.

A question of nicety has arisen in a case before me, wherein the summons issued by registered post prepaid for acknowledgment was served on the defendant residing outside the State of Kerala. When the case was called on the date of its posting the defendant was absent. He was set ex parte and the suit was decreed with costs. Subsequently a petition to set aside the ex parte decree was filed. The contention raised by the learned counsel for the defendant was that there was no proper service of summons under Rule 19A. According to him, even though service by registered post is permissible, it has to be done in addition to and simultaneously with the issue of summons for service in the manner provided in Rules 9 to 19. Then only it will be deemed proper service and the summons deemed to be duly served on the defendant. The contention of the learned Counsel appeared to be technical, but reasonable and sound in view of the provision contained in S. 97(1) of the Civil Procedure Code (Amendment) Act, 1976. Thus service of summons by registered post is found to be superfluous. Unless summons is issued through court, the service of summons cannot be deemed to be service according to law. Now the position that emerges is that service of summons cannot be taken as "duly served" unless it is served in the manner provided under Rules 9 to 19. The ruling reported in 1979 KLT. 866: ILR 1980(1) Kerala, page 612 confirms the position. In the circumstances Rule 9(3) of the old Code is no longer in law and the present rule under 19A will undoubtedly create delay in the service of summons and in the disposal of cases. The Honourable High Court may take steps to restore the provision under Rule 9(3) incorporating provision under Rule 20A of the Code of 1908 enabling the court to draw prima facie proof of service when the summons was refused by the defendant or his authorised agent. If the present state of affarirs is allowed to continue, undoubtedly it will be another hurdle on the expeditious disposal of cases.