A Dozen Adjournments

(Without Malice. In Lighter Vein)

(T.M. Abdullah, Advocate Rtd. Asst. Judge, City Civil Court, Madras)

1. "He is actually on his legs" a pause "in the Dt. Court, your honour". Court within 'cant over-ride Dt. Court; cant wait indefinitely'       Adjd.

He is actually at home discussing a possible son-in-law with an emergent visitor.

An Engagement

x          x          x

2. "Ready your honour, but"........."feel a little tummy trouble"pause "an urge........."

"Please go home quickly".      Adjd.

He went to another court and urged a point.

A Conservancy risk

x          x          x

3. "Both sides ready, your honour" knowing full well that the court is jam-packed with earlier cases.       Adjd.

A Pre-emption

x          x          x

4. "Ready, your honour" feels pocket and "I am sorry, your honour I mislaid my spets somewhere". Court within 'nothing is possible without glasses'.          Adjd.

On the way to another court the spets perched on the nose from another pocket.

Sympathy

x          x          x

5. "15th may not suit me, your honour, I am in Ernakularm that day".

"20th I am in Delhi for a small matter in the Supreme Court".

Greatly Busy

x          x          x

6. "My client not reached, your honour. Students defleted his bus tyres on the way."      Adjd.

An Accident.

x          x          x

7. "My Client's mother died, your honour."   Adjd. Yes, last month.

A Longstanding Affection.

x          x          x

8. "Client not come, your honour. His whole village is under water."          Adjd.

True, but he was in his father-in-law's village that day.

A Vis-Major.

x          x          x

9. "My client suddenly left for Trivandrum last night on urgent call from PKV to discuss poll strategy, your honour".          Adjd.

Yes, his cousin P. K. Veeraswami, a ward candidate for Panchayat election wanted him to canvass votes.

Politics.

x          x          x

10. "My client is suffering from Schizophrenia and advised 3 month's rest. MC is produced, your honour."          Adjd.

Yes, it is an epidemic these days.

A Disease.

x          x          x

11. "Mistook the date, your honour. Not brought records."           Adjd.

No mistake of date, but records not readily available; or records brought, but date mistaken.

A Mogrel Truth.

x          x          x

12. "Likely to be settled, your honour."           Adjd.

A glad tiding and a possible relief.

A Strategy.

x          x          x

(The other side of the coin, in my next)

Maintenance to Muslim Divorcees

(T.M. Abdullah, Advocate, Tellicherry)

The Supreme Court after Bai Thahira's case (AIR. 1979 SC. 1362) ruling that if the amount of 'mahar' paid is insufficient to serve as the money equivalent to post-divorce maintenance till death or remarriage, it is no answer to the liability for such maintenance, has reiterated the same principle in another case. The implication is that if it is sufficient, the ex-husband gets absolved from the said liability under S. 127(3)(b) Cr. P. C.

It is submitted with respect that the Supreme Court misses the cardinal differences between mahar and maintenance in their concept and incidence. Mahar is consideration for acquisition of the wife while maintenance is consideration for continuance of wifely duties to the husband. 'Mahar' in pre-Islamic days was a sale price for the chattel of a girl which her male parent was entitled to receive. Islam transformed it as an ex-gratia present for the companion which the girl herself was entitled to receive. Its incidence is at the inception of the contract of marriage though it is payable at any time during coverture or at the time of or after divorce. 'Mahar' is contractual; maintenance during covertures is sociological; maintenance after divorce is humanitarian in concept. 'Mahar' is not one necessarily payable on divorce; it does not arise on divorce either.

What S. 127(3) (b) provides is a sum which, under customary or personal law is payable on divorce What the provision envisages is some sort of alimony or compensation which is payable on divorce as Khalid J. of the Kerala High Court bad held in 1976 KLT. 87 (Kunhji Moyin v. Pathumma). The full Bench of the Kerala High Court in 1979 KLT. 5 Vasantha Kumari v. Sadasivan, it is submitted, errs in over-ruling Justice Khalid's decision as the Full Bench dealt with a case of Ezhavas under the Travancore Ezhava Act which provides compensation payable on dissolution of marriage, unlike 'mahar' which is payable not necessarily on divorce.

The idea underlying 'idda' maintenance is subsistence for a testing period for pregnancy; it is not a compensation for destitution. Ch. II, Verse 241 of the Holy Quran enjoins a handsome provision of means for wife while separating. This is different from 'mahar' and 'idda' maintenance. This salutory quranic command is not generally followed by Muslims. This provision can be pressed into service while interpreting what is payable on divorce in S. 127(3)(b) Cr. P. C.

A view that projects from Bai Thahira's case that whatever the nomenclature of the payment, whether 'mahar' or maintenance, the amount must be sufficient to serve to support the post-divorce life of the ex-wife may be a pragmatic one; but the two are different rights and one cannot replace the other, nor strictly accord with S. 127(3)(b) Cr. P. C.

USUFRUCTUARY MORTGAGE IN MALABAR--WHETHER KANOM

By M. Velayudhan Nair, Advocate, Alathur

In two recent cases, Emunni Panikkar v. Krishna Panikkar (1958 Kerala Law Journal 805=1958 Kerala Law Times 756) and Janardhanan v. Kuppandi and another (1959 Kerala Law Journal 119 F.B.=1959 Kerala Law Times 118 F.B.) the Kerala High Court has taken the view that an usufructuary (possessory) mortgage is Kanom within the meaning of the Malabar Tenancy Act.

Section 3(14) of the Malabar Tenancy Act defines Kanom as follows:-

“Kanom means the transfer for consideration in money or in kind or in both by a landlord of an interest in specific immovable property to another [called Kanomdar] for the latter’s enjoyment, the incidents of which include

(a) Right in the transferee to hold the said property liable for the consideration paid by him or due to him which consideration is called ‘Kanartham’,

(b) The liability of the transferor to pay to the transferee interest on the Kanartham, and

(c) The payment of ‘Michavaram’ by the transferee”.

The suits in both the cases decided by the Kerala High Court were for redemption of usufructuary (possessory) mortgages. The mortgage in the first case Emunni Panikkar v. Krishna Panikkar was for a term of six years and under the provisions of the document, the mortgagee was to pay himself the interest on the mortgage debt and also pay the Government revenue from the income of the property and pay the balance of 106 paras of paddy as annual purappad to the mortgagor. The document contained also a provision for sale of the property for realization of the mortgage amount. His Lordship Mr.Justice Varadaraja Iyengar refers to the omission by the Amending Act 33 of 1951 of clauses 4 and 5 (relating to the Kanomdar’s right to enjoy the property for a period of 12 years and the liability to pay a renewal fee to the jenmi at the end of the period) from the definition of Kanom in the original Act 14 of 1930 and proceeding on the assumption that the mortgage in suit satisfies the definition of Kanom in Section 3(14) of the Amended Act, arrives at the conclusion that the transaction in the case amounts to a Kanom and the suit must therefore be stayed under Act I of 1957.

Clauses 4 and 5 to Section 3(14) which followed the present clauses (a), (b) and (c) and which were omitted by the Amending Act 1 of 1951 ran as follows: -

(4) The right of the transferee to enjoy the said property for twelve years or any ether period, and

(5) The liability of the transferee to pay a renewal fee to the transferor, if the transferee is permitted to enjoy the said property for a further period after the termination of the original period”.

Mr. Justice Varadaraja Iyengar seems to have assumed that as the definition of Kanom has been amended by Act 33 of 1951 by omitting clauses 4 and 5, leaving surviving only the three incidents mentioned in clauses (a),(b) and (c), a usufructuary mortgage would fall within the definition of Kanom in the Amended Act. This is evident from the Learned Judge’s observation in the Judgment that “it is not denied on respondent-plaintiff’s side that the definition in S. 3(14) is satisfied in this case”. 

The suit for redemption in the case before the Full Bench Janardhanan v. Kuppandi and another was decreed by the Munsif’s Court. In appeal the Subordinate Judge found that the Karipanayam sought to be redeemed was in substance only a renewal of a prior Kanon of the year 1906 and he held that the mortgage document Ex. B.1) represents Kanom demise and the suit was consequently dismissed. In Second Appeal, the learned Judges of the Pull Bench (Koshi, C.J., M.S. Menon and Varadaraja Ayyangar, JJ.) agreed with the conclusion reached by the Subordinate Judge that the mortgage document Ex. B.l represents Kanom demise and confirmed the decree and judgment of the lower appellate Court. The mortgage document in this Full Bench case was styled as a ‘Karipanayam’ & there was provision in the deed to pay purappad to the mortgagor at the rate of 110 paras of paddy a year by the mortgagee. The learned Judges seem to think that the mortgage document in that case (Ex. B.l) spells Kanom, but they do not indicate the reasons that induced them to take that view, notwithstanding that the words ‘Kanomdar’ and ‘Kanartham’ were not used in the document.

With great respect to the learned Judges, I submit, the view taken by them that an usufructuary mortgage will fall within the definition of Kanom in Section 3(14) of the Malabar Tenancy Act does not seem to be correct.

I respectfully submit that the omission of clauses 4 and 5 from the definition of Kanom in the original Act 14 of 1930 by the Amending Act of 1951 cannot have the effect of making this strange metamorphosis in the status of an usufructuary mortgage who was put in possession of the mortgaged properties only with the intention of securing the payment of money borrowed from him. It is difficult to see how the deleting of these two clauses from the definition, of Kanom in the original Act would have the effect of enlarging the rights of an usufructuary mortgagee & assimilating his status to that of a Kanom bar entitled to fixity of tenure and other benefits under the Tenancy Act-rights which he (the mortgagee) did not bargain for and which were totally absent from the minds of the parties at the time the mortgage transaction was entered into. The two decisions under notice have created a very anomalous situation-viz., there is no scope for an usufructuary (possessory) mortgage to operate as such in Malabar and other areas to which the Malabar Tenancy Act is applicable. All usufructuary mortgages hitherto executed and that may in future be executed will be treated as Kanom demises. This is the logical effect of the view expressed by the learned Judges in the two decided cases.

It is not suggested that because clauses 4 and 5 (relating to the 12 years period and to the liability to pay renewal fee, have been omitted from the definition of Kanom by the Amending Act, Kanom loses its essential character as a tenure in land and becomes an usufructuary mortgage. Notwithstanding the omission of these two clauses from the definition of Kanom by the Amending Act, Kanom retains its essential characteristics nad incidents, excepting the liability for the Kanarito pay renewal fee at the end of the 12 years period. A Kanom bar is entitled to fixity of tenure as provided in Section 21: he is not liable to be evicted before the expiry of the 12 years period and he is not liable to be evicted excepting at intervals of 12 years. Paradoxical as it may seem, although clause 4 relating to the 12 years period is taken away from the definition of Kanom by the Amending Act, the Kanomdar’s right to enjoy the property for a period of 12 years as an incident of the tenure has not been abrogated by the statute. That incident subsists. This is evident from the fact that the landlord’s right to evict for own cultivation, for construction of buildings, for residential purposes or for the extension of a temple, mosque or church as provided in clauses 4, 5 and 6 of Section 25 of the Amended Act can be exercised only after the expiry of the period of the Kanom, and also from the last proviso to Section 25 which was introduced by the Amending Act 33 of 1951. The said proviso reads as follows:-

“Provided also that no suit for eviction on one ground specified in clause 4 or clause 5 shall be instituted, except,

(a) In cases where the period of the lease has expired before the commencement of the, Malabar Tenancy (Amendment) Act 1951, within one year from the date of such commencement and in every twelfth year thereafter,

(b) In other cases within one year from the expiry of the period of the lease and in every twelfth year thereafter.”

As Mr. Justice Varadaraja Iyengar rightly observes in the decision in Emunni Panikkar v. Krishna Panikkar, no particular period need now be fixed in a Kanom demise, for no Kanom tenant can be evicted excepting at intervals of twelve years. As the Kanomdar’s right to enjoy the property for a period of 12 years and his non-liability for eviction excepting at intervals of 12 years are recognized and specifically provided for in S. 25 of the Act, clause 4 relating to the 12 years period in S.3(14) was probably considered otiose and this probably is the reason for deleting it from the definition of Kanom by the Amending Act.

Renewal and renewal fee were abolished by the Amending Act of 1951 and consistently with the repeal of the provisions contained in Act 14 of 1930 relating to renewal and renewal fee, clause 5 relating to renewal fee was deleted from the definition of Kanom by the Amending Act. It would have been absurd to retain that clause in the Act after the repeal of the provisions regarding renewal and renewal fee contained in the original Act. The abolition of renewal fee relieves the Kanomdar from a liability which the Legislature thought was unreasonable and oppressive. Its only effect is that from the date of the Amended Act, the Kanomdar has not to pay renewal fee, and non-payment of renewal fee will not avail as a ground for eviction. In other words, it only enlarges the right of the Kanomdar by enabling him to continue in possession even after the expiry of the term without paying renewal fee. It is difficult to see how, in the circumstances, the omission of clause 5 from the definition of Kanom would enlarge the rights of an usufructuary mortgagee and elevate him to the position of a Kanomdar.

If, on account of the omission of clauses 4 and 5 from the definition of Kanom by the Amending Act, Kanom does not become an usufructuary mortgage and notwithstanding the omission of those two clauses from the definition, Kanom retains its essential characteristics and incidents, excepting the liability for the Kanomdar to pay renewal fee the omission of which, as I have pointed out, only enlarges the rights of the Kanomdar, it is difficult to see how the terms and incidents of an usufructuary (possessory) mortgage governed by the Transfer of Property Act would satisfy the definition of Kanom in Section 3(14) of the Malabar Tenancy Act.

Usufructuary mortgage is defined in the Transfer of Property Act in these words:-

“Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee and authorize, him to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee”. (Section 58 (d).

The Transfer of Property Act specifies three classes of usufructuary mortgages, first, where, the rents and profits may be appropriated in lieu of interest; second, where they may be appropriated in lieu of principal; third, where they may be appropriated in lieu of principal and interest; the right to retain possession until the debt is paid being of the essence of an usufructuary mortgage as defined in the Act.

“An usufructuary mortgage,” remarks Dr. Rash Behari Ghose in his Tagore Law Lectures, “is a very common form of security in this country.” An usufructuary mortgage is executed as security for the payment of a debt and the right to retain possession created by the document is only accessory to the right to recover the mortgage debt. Mortgage is only a transfer of an interest in immovable property as security for repayment of a debt, while Kanom is a tenure inland. The difference in the purpose for which or the intention with which the two transactions--usufructuary mortgage and kanom-are entered into is clear from the wording in the definition of the terms mortgage, usufructuary mortgage and Kanom and must be kept in mind in order to appreciate the essential distinction between usufructuary mortgage and kanom. The distinction is real and not fanciful, and the connotation of the two terms is well understood in Malabar. In the definition of mortgage, the emphasis is on the intention to create a security in favour of the creditor for the amount borrowed. In the definition of Kanom (just as in the definition of lease in S.105 of the Transfer of Property Act) the emphasis is on the right to enjoy the property which is transferred. The true test to ascertain whether a transaction is a lease or a mortgage has been laid down by the Supreme Court in the recent decision in Ramadan Puri v. Banbey Behari Saran (1959) (1)Madras Law Journal 53-Supreme Court Reports) Says His Lordship Mr. Justice Subha Rao:-

“The only guiding rule that can be extracted from the cases on the subject (whether the transaction is a lease or a mortgage) in that Jthe intention of the parties must be looked into and “Once you get a debt with the security of land for its redemption (repayment), then the arrangement is a mortgage by whatever name it is called” (Ghose on Mortgage, 5th Edition, Vol.1 page 102).”

The suit in the case before the Supreme Court was to redeem a mortgage. Plaintiff claimed that the transaction was an usufructuary mortgage, but defendant contended it was a lease. His lordship after examining the terms of the document expresses the view that “under the document, there was a relationship of creditor and debtor between the parties and the property was given as security for payment of the amount advanced with interest “The gist of the document,” says His Lordship, ‘was not a letting of the premises, with a rent reserved, but a mortgage of the premises with a small portion of the income of it made payable to the plaintiff. There is therefore no scope for the argument in this case that the document is a lease and not a mortgage.’

The distinction between a mortgage and Kanom is well brought out by His Lordship Mr. Justice Krishna Pandalai in the case in Umerkutty v. Narayanan Chettiar (1929 A.I.R. Madras 777). That was a suit for specific performance of an agreement to grant a lease or a Kanom of a shop belonging to the defendant. The defendant contended that the bargain was for a Kanom, which is virtually a mortgage, and that the plaintiff lender cannot get specific performance of a contract to borrow. This contention was over-ruled by the learned Judge with these observations:-

“Where this contract substantially one of lending and borrowing as distinguishable from a contract for a well known tenure of land prevalent in a part of the Presidency and subject to well recognized incidents, the appellants’ argument would succeed. But if the contract was really not for lending money, but for a tenure in land, the fact that one of the incidents of the tenure is that the Kanom tenant advances money to the jenmi and that there are stipulations for the return of the sum or such portion of it as is left after setting off the arrears of rent at the termination of the tenure, is not, in my opinion, sufficient to make the contract one of borrowing To those conversant with the system of property holding in Malabar, including in that expression the whole of the Malayalam speaking country, it would come as a startling surprise to learn that a bargain for a Kanom was one for money and not for land.”

In the opinion of the learned Judge, a transaction of Kanom is one by which the Kanom tenant bargains for a substantial interest in the jenmi’s property for the purpose of occupation, cultivation and improvement.

In the following passage, His Lordship emphasizes the true nature of Kanom as tenure in land:-

‘In the States of Travancore and Cochin, the State has intervened by legislation to confer on the holders of this tenure rights of permanent occupancy which were imperiled by the development of the notions of mortgage and redemption and second mortgage introduced by modern courts interpreting western jurisprudence It is a matter of public knowledge that similar legislation is on foot in this Presidency (Reference is to the Malabar Tenancy Bill which became Act XIV of 1930) Lawyers are familiar with the early controversies as to whether Kanom is a lease or mortgage. The decisions on this topic which will be found set forth in Moore’s Malabar Law were that the Kanom is a lease or a combination of a lease and mortgage. The modern doctrine, the result partly of legal analysis and partly of consideration of convenience is that it is an anomalous mortgage. But to give it a legal label which really means that the so-called mortgage is subject to incidents in it by custom or by contract that do not fit in with any of the recognised forms of mortgage only emphasises that that description alone cannot be a guide in deciding whether the transaction is substantially one of borrowing and lending money or one by which the Kanom tenant bargains for a substantial interest in the jenmi’s property for the purpose of occupation, cultivation and improvement. I have no doubt that it is the latter”.

The true nature of Kanom, as distinguished from mortgage, which is a contract for borrowing or lending money is described as follows by His Lordship Mr.Justice Ramaswami in a case decided after the definition of Kanom in Act 14 of 1930 was amended by Act 33 of 1951 Mammikutty v. Cheria Chathu Kurup (1954(1) Madras Law Journal 439).

“Kanom is not really a contract for borrowing or lending money, but one for land. It is generally understood as an estate or tenure in land for the purpose of occupation, cultivation and improvement in which the Kanomdar has a substantial interest. The present definition steers clear of all difficulties by refraining from designating the transaction as a mortgage or as lease and by resting content with ti.e enumeration of its essential incidents”. 

That the legislature has treated Kanom, not as a mortgage, but as a tenure in land is clear from the definition of Kanom, and also from the definition of “tenant” and “landlord” in the Act (Section 3(27) and (19). ‘Tenant’ means any person who has paid or has agreed to pay rent or other consideration, for his being allowed by another, to enjoy the land of the latter and includes a Kanomdar. ‘Landlord’ means a person under whom a tenant holds and to whom he is liable to pay rent or michavaram and includes a jenmi.

The name by which the transaction is described in the document is of considerable significance in ascertaining the true intention of the parties and the real character of the transaction. In this context, one might usefully refer to the decision of His Lordship Mr. Justice Raghava Rao in the case in Raman Nambudiri v. Karthiayani Nangiar Amma (1951 (2) Madras Law Journal 527) - although the case was decided before the Amending Act of 1951 came into force. The dispute in that case related to the construction of a panaya-Kychit dated 25th May 1923. Plaintiff sued for redemption on the footing that the document evidenced an usufructuary mortgage. Defendant contended that the transaction was in the nature of a Kanom. Holding that the transaction was not a Kanom, but was only a possessory mortgage and reversing the judgment of the Subordinate Judge, the learned Judge made the following observations which are very apposite:-

“The name Panaya Kychit is, as Subba Rao, J. has observed in C.R.P. No.1253 of 1948, a very well known word in Malabar and where that word is used, there is no reason to suppose that a mortgage is not what was intended. If really the parties intended a Kanom, there was no difficulty in the way of their using that word. That the parties in the present case have not used that word, but have used altogether a different word is a point of considerable significance in my opinion which the lower appellate Court has altogether missed. It is argued by Mr. Sundara Iyer that the name is not all that matters, but that the substance of the transaction must be looked into. That is true, but where the substance of the transaction is not susceptible of easy definition on the provisions of the document, the significance to be attached to the name still remains, as I think”.

To suppose therefore, that an usufructuary mortgage satisfies the definition of Kanom in S.3(14) of the Malabar Tenancy Act is to miss altogether the essential distinction between mortgage and Kanom. It is unfortunate that not only was the essential distinction between usufructuary mortgage and Kanom not emphasized before the learned Judges, but a tacit admission also seems to have been made before Mr. Justice Varadaraja Iyengar in the case of Emunni Panikkar v. Krishna Panikhar, by plaintiff’s learned Counsel, wrongly, as I think, that the definition in Section 3(14) was satisfied in that case.

The most remarkable feature of the recent history of Criminal Law is the rise of probation. This has revolutionized the very conception of penal policy. Probation may be defined as the suspension of punishment plus personal supervision. A probation officer has three tasks before him. These are investigation, report, and treatment. With these three stages probation is the most advanced application of social case work in the field of Criminal Justice.

Distrust and resentment against the man who has been in prison has always proved an obstacle to the work of welfare agencies and to the honest efforts of the former prisoners themselves. It is a critical moment in the prisoner’s life and if he finds himself an out-cast excluded from the workshop and the companionship of respectable people he will rapidly develop a grudge to the Society. Man cannot leave in self contained isolation. Rejected from decent Society he falls back to the community of those he has met in prison.

Life is the greatest inventor of human destinies. It is wrong to imagine the prisoner as always the habitual criminal with a steady record of dishonesty. Abnormal times with social upheavals and growing insecurity throw people into crime. The right personal intervention by correctional methods may save thousands of persons from becoming criminals and they can be converted into good citizens of the Nation.