Report No. 70
110.16. Simplification of the law.-
Then, there is the objective of simplification of the law. Where there is a conflict of decisions, of course, an amendment by way of statement of the true legal position is almost always desirable. But, even apart from that, we have borne in mind the consideration that where, on a particular subject, the law purports to be codified, any important proposition that does not find mention in the statute law should, by amendment, be incorporated therein, if relevant to the subject matter.
The ordinary citizen, once the law is codified, would expect that the most important matters would not be left to implication, and that at least the gist thereof would be found stated in the Code. Thus, we have recommended the incorporation1 into section 126 of the judicially well-established principle that a gift cannot be revoked after acceptance.
1. Section 126, third para.
110.17. Notice to quit.-
By way of example of simplification, we may mention our recommendation as to notice to quit. The normal method by which a landlord terminates a tenancy is by the service of a notice to quit. Such a document is no "new-fangled instrument"1 but has been used since leaseholds became a recognised kind of property. The drafting of notices to quit, however, in many cases, presents difficulties, and not a few conveyancers have a sigh of relief when a notice to quit is accepted by the tenant as valid and no subtle questions of law are raised.
The difficulty in framing such a notice lies in part in the fact that it must have been valid when it is served. Unlike a plaint, it cannot be amended from time to time. The fact that the tenant, on its receipt, does not immediately dispute its validity will not prevent him from doing so at any subsequent period in any dispute with the landlord as to delivering up of possession.
One of the difficulties in regard to a notice to quit arises from the position-now clearly established-that in all cases of periodic tenancies, whether yearly, quarterly, monthly or weekly, a valid notice to quit must be expressed so as to terminate the tenancy at the end of a current period. This requirement has led to avoidable controversies, which we hope will be reduced after the amendment that we have recommended in section 106. We are referring to this amendment as an illustration of our attempt to simplify the law.
1. Note The Coneyancer, (1947) 224 Law Times 296.
110.18. Fortunately, the Act is a short one and, in general, not complicated in its drafting. Shakespeare,1 in one of his plays, thus described the confused situation in which the characters stood-
"This is as strange a maze as ever man trod. And there is in this business more than Nature was ever conduct....... Some oracle must rectify our knowledge".
Oliver Cromwell has been quoted as having once said that the laws of England were "an ungodly jumble".2
We must hasten to add that a large part of the Act does not suffer from any such strange confusion. At some places, however, the Act is defective in the negative sense, as it is incomplete. We have tried to rectify such lacunae wherever they came to our notice.
1. The Tempest, Act 5, Scene 1.
2. Raymond Walton Introduction to Law of Sales of Land, (1950) (Introduction).
Digressing for a while from our main theme, we would like to stress the importance of a good system of conveyancing. Conveyancing is to the law of property what pleadings are to the law of civil procedure. Although land today is principally a mercantile commodity and saleability is a primary incident of its ownership, the modes of conveyancing remain essentially those that originated hundreds of years ago, for no compelling reasons. We have adverted to this aspect when we considered section 8, and would like to re-emphasise the need for a proper training in conveyancing. The matter is outside the scope of this Report; nevertheless, it is of importance, because a well drafted deed of transfer avoids many avoidable; problems, even if it cannot eliminate all of them.1
1. Lord Hailsham Address to the National Book Trade Provident Society, noted in the Law Journal, reproduced in 36 Born LR (Journal), p. 55.
110.20. This raises the question of style. Style was defined by Lord Hailsham1 as consisting in the power of saying precisely and without waste of words what you mean. He declared that if business men and lawmakers had these gifts, there would be less work for lawyers in putting them right. These observations apply to conveyancing documents with great force.
The popular condemnation of the "jargon" of the law may not be altogether just, since by reason of its subject matter, the law must aim at something quite drab. But if words are the raw material of the profession of the law, it behaves those who draft documents to select them with economy and care.
Perhaps one reason for the present state of affairs is the fact that there are no legal journals dealing with the theory and practice of conveyancing in India. There are, no doubt, a few books, but they are not enough to focus attention on developments in law and practice concerning conveyancing and do not deal with intricate examples of drafting of interest to those mythical and overburdened creatures-the average practitioner and the average landowne2-to borrow a phrase used by Megarry.
1. Lord Hailsham Address to the National Book Trade Provident Society, noted in the Law Journal, reproduced in 36 Born LR (Journal), p. 55.
2. R.E. Megarry Lectures on the Town and Country Planning Act, 1947 (Preface).
110.21. This is not to say that good conveyancing will avoid all problems. What Hudson wrote of treaties1 applies to conveyancing also-
"In litigation, the simple case is relatively rare in which the parties may be said to have foreseen and endeavoured to effect a solution of the precise problem presented. The parties seldom proclaim their intention in unmistakable terms; and even if an intention is proclaimed, it must be found to have been expressed in the text. More often, the problem raised before the Court was not foreseen when the instrument in question was being drafted, neither the particular problem nor the general class to which it belongs; or if it was foreseen its solution was not definitely agreed upon.
The compromises which are inevitable in framing an international instrument frequently result in the acceptance of a 'formula' which is possible only because it does not foreclose the contentions of any party. No great experience in international conferences is required to know that terms are sometimes employed in treaties of which no common understanding is reached in advance. In some situations, a lack of clarity may even be desideratum; the chief desire may be to continue uncertainty."
1. Hudson Permanent Court of International Justice, (1943), p. 644.
110.22. Two recent cases illustrate the different facets of the matter. In a Rajsthan case1, the notice to quit was in the following terms:
"That the premises mentioned above let out to you on rent are required reasonably and bona fide for the personal necessity of residence and business for which my client has purchased and premises mentioned above. My client does not want to keep you his tenant any longer and hereby terminates your tenancy by this notice and requests you to vacate the premises by the end of October, 1969 i.e., by the midnight of 31st October, 1959 or on such day on which you consider that your month of tenancy comes to an end".
It was contended that the expression "hereby terminates" meant that the tenancy was immediately terminated, that is to say, at the time of the service of the notice on the tenant, so that it was void with reference to section 106 Fortunately, this argument was rejected by the court, which regarded the notice as unambiguous. Such arguments cannot, of course, be avoided by any excellence in conveyancing.
On the other hand, there is an Allahabad case2 where the notice was in the following terms:-
"You are required to deposit Rupees 195 arrears of lent within one month of receipt of the notice, failing which you should vacate the portions of the premises which are in your tenancy on expiry of 30 days of the receipt of the notice otherwise on expiry of the said period necessary legal proceedings will be taken against you".
It was held that there was no indication in the notice that the plaintiff was going to file a suit for ejectment or possession and that the demand for deposit of arrears of rent was the principal object of the notice. One may not, with respect, agree with the actual conclusion reached by the Allahabad High Court in this case, but the point which is being emphasised in the present discussion is that the draftsman of the notice could have avoided these complications by intimating in positive terms that he was terminating the tenancy.
1. General Auto Agencies v. Hazari Singh, AIR 1976 Raj 56 (61), para. 22 (February).
2. Ram Bhushan v. K.R. Chakravarty, 1971 All LJ 752.
110.23. As to the amendments recommended by us in the Act, it is not for us to say whether we have succeeded in effecting any substantial improvement. The task of the law-reformer is not an easy one. To recommend a change in the law without realising in full its likely implications is to render oneself open to the charge of undue tinkering with the law. To shrink from recommending a change where the existing law is believed to cause serious injustice, is to be guilty of a serious omission. Striving to steer clear of this Scylla and Charybdis, the law reformer must yet navigate his ship on an even keel. He must exercise a keen faculty of discrimination as well as exhibit a balanced approach. We would add that we have done our best to follow such a course.
Frankfurter described the complexity of the Judge's task in these terms:1
"The core of the difficulty is that there is hardly a question of any real difficulty before the Court that does not entail more than one-so-called principle. Anybody can decide a question if only a single principle is in controversy. Partisans and advocates often cast a question in that form, but the form is deceptive. If the conflict (between two 'truths') cannot be resolved, the task of the Court is to arrive at an accommodation of the contending claims. This is the core of the difficulties and misunderstanding about the judicial process. This, for any conscientious judge, is the agony of his duty".
Much of this applies to law reform.
1. Felix Frankfurter of Law & Men (Papers & Addresses edited by Philip Elumn), (1956), p. 43.
110.24. Bagehot on Transfer.-
Bagehot has observed1 that "A law reformer, in order that his work may be perfect, requires the conveyancing abilities. He must be able to bear in mind the whole topic, to draw out what is necessary of it on paper-to see what is necessary-to discriminate the rights of individuals-to distinguish, with even metaphysical nicety, the advantage he would keep from the abuses he would destroy. A still and patient man, in quiet chambers, apt in niceties, anxious by temperament, precise in habit, putting the last extreme of perfection on whatever he may attempt, is the man for the employment."
1. Bagehot Eassay on Brougham, reprinted in The Collected Works of Walter Bagehot (London 1968), Vol. 4, p. 159.
110.25. We fully endorse these observations of Bagehot, and can merely say in all humility that we have tried not to lose sight of what he regards to be the desideratum of all good law reform.
Note of Dissent
We do not agree to the proposal contained in the proposed new section 123A which may be regarded as giving effect to the doctrine of part performance of an agreement to make a gift in cases where the transferee i.e. the intended donee of a property has taken possession of that property or any art thereof in pursuance of that agreement. We are afraid that an agreement to make a gift has no legal validity in our legal system.
In the Indian Contract Act, 1872, "Consideration" is an essential ingredient of a valid contract. A consideration as defined in the Contract Act is valuable consideration. Mere natural love or affection or any other factor (based upon other considerations) without a valuable consideration cannot be the basis of a valid contract. Under section 2 of the Indian Contract Act, when at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise.
On the principle of English Common Law of Contract which has been followed throughout in this country unless this consideration is a valuable consideration that is, to put in a simple language a pecuniary consideration, there is no valid contract. Under section 10 of the Contract Act all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not by the Contract Act itself expressly declared to be void. Whatever exceptions have been made to this rule in this respect are to be found in section 25 of the Contract Act which lays down inter alia in clear terms that
"A contract made without consideration is void, unless
(i) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other; or unless
(ii) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor or something which the promisor was legally compellable to do; or unless.
(iii) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.
In any of these cases, such an agreement is a contract.
Explanation 1-Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.
Explanation 2-An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the court in determining the question whether the consent of the promisor was freely given."
In view of these clear provisions of the Contract Act. We do not think that the proposed section 123A sought to be inserted in the Transfer of Property Act is at all called for. Such a provision, unless it can be brought within the scope of section 25 of the Contract Act would be illegal; and if it comes within the scope of section 25; it is redundent. Lord Mansfield who is regarded as the greatest Chief Justice of England suggested that consideration as we understand it, should not be an essential ingredient of a valid contract. But his proposal was not accepted. In countries where the legal system is based upon the civil Jaw system, that is, upon the Roman law, consideration as we understand it in our law or in the English common law is not an essential ingredient of a valid contract.
But as consideration in the sense of valuable consideration is an essential ingredient in our law, we think the proposal made in the proposed section 123A cannot be accepted. This is why the doctrine of part performance which was given statutory recognition by section 53A of the Transfer of property Act inserted in 1929 clearly provides that a part performance of a contract to transfer any immoveable property is possible only where such contract to transfer is a contract for consideration. Without elaborating the point any further we think it has been sufficiently pointed out that the proposed section is opposed to the law relating to contract contained in the Indian Contract Act, 1872.
My learned and esteemed colleague Shri S.S. Dhavan has gone through this note and concurs in it.