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Vishnu Bhatta Subraya Bhatta Vs. Domakkee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 988 of 1952 (M)
Judge
Reported inAIR1958Ker326
ActsGeneral Clauses Act, 1897 - Sections 9(1); Limitation Act, 1908 - Sections 12 and 25 - Schedule - Article 132
AppellantVishnu Bhatta Subraya Bhatta
RespondentDomakkee and ors.
Appellant Advocate K. Kuttikrishna Menon and; V. Balakrishna Eradi, Advs.
Respondent Advocate T.C. Raghavan, Adv. (for Nos. 1 to 4) and; T.S. Venkiteswara Iyer, Adv. (for No. 5)
DispositionAppeal allowed
Cases ReferredCompany v. West Metropolitan Railway
Excerpt:
property - institution of suit - section 9 (1) of general clauses act, 1897 and sections 12 and 25 and article 132 of schedule of limitation act, 1908 - dispute regarding institution of suit - where statute fixes only terminus a quo of a state of things which is envisaged as to last indefinitely - then common law rule obtains that one ought to neglect fraction of a day - statute or regulation or order takes effect from first moment of day on which it is enacted or passed that is to say from mid-night of day preceding day on which it is promulgated - where statute delimits period marked both by terminus a quo and a terminus ad quem then former is to be excluded and latter to be included in reckoning. - - the rule is an obvious rule of convenience in a country like this, where there.....k.t. koshi, c.j.1. this appeal arises out of a suit on a mortgage bond, and the only question raised in the appeal is whether or not the suit was instituted within twelve years from the date on which the money sued for became due.2. the bond bears the date 27-3-1909 and was in favour of the predecessor-in-interest of the two plaintiffs in the suit and defendants 7 to 9. the mortgagor and the mortgagee belonged to kasaragod taluk and the bond is in kanarese. the principal amount borrowed was rs. 7800/-. interest for the loan was fixed at rs. 456-4-9 per year to be paid by the 30th phalguna of every year beginning from saumya (1909-1910). the mortgage money was repayable after twenty years and within thirty years.some time after the execution of the mortgage, the mortgagor sold the equity.....
Judgment:

K.T. Koshi, C.J.

1. This appeal arises out of a suit on a mortgage bond, and the only question raised in the appeal is whether or not the suit was instituted within twelve years from the date on which the money sued for became due.

2. The bond bears the date 27-3-1909 and was in favour of the predecessor-in-interest of the two plaintiffs in the suit and defendants 7 to 9. The mortgagor and the mortgagee belonged to Kasaragod Taluk and the bond is in Kanarese. The principal amount borrowed was Rs. 7800/-. Interest for the loan was fixed at Rs. 456-4-9 per year to be paid by the 30th Phalguna of every year beginning from Saumya (1909-1910). The mortgage money was repayable after twenty years and within thirty years.

Some time after the execution of the mortgage, the mortgagor sold the equity of redemption over the mortgaged properties to a stranger and the latter in his turn sold the same to four persons, of whom defendant 1 was one, and his uncle, the predecessor-in-interest of defendants 2 to 6, another. Under their purchase defendant 1 and his uncle took a distinct portion of the mortgaged property (Plaint B scheduled). The sale deed fixed the proportionate mortgage debt chargeable thereon at Rs. 8,000.

They paid only Rs. 1700/- out of it and the suit was for recovery of the balance and interest thereon at 5 1/2 per cent, per annum for twelve years prior to the suit by sale of the property purchased by them. The plaint claim amounted to Rs. 10,463.

3. Defendants 1 and 2 contested the suit. Besides raising the plea that the suit was barred by limitation they further contended that the debt was liable to be scaled down under the provisions of the Madras Agriculturists' Relief Act (Act IV of 1938). According to the plaintiffs the debt was exempt from the operation of the said Act. The learned Additional Subordinate Judge of South Kanara, who heard the case negatived the plea of limitation, but held that the debt was liable to be scaled down under the provisions of the Madras Agriculturists' Relief Act.

A preliminary decree for sale of the plaint B schedule property was accordingly passed on 18-9-1952 in favour of the family of the plaintiffs and Defendants 7 to 9 for Rs. 3682-1-11, with future interest at 6 per cent per annum and proportionatecosts. Defendant 1 has preferred this appeal against the said decree.

As stated at the outset we are concerned inthis appeal only with the question of limitation. The decision of the question would turn on the true construction of the mortgage bond as to when the mortgage money became due and also on the rule as to the computation of time applicable to the case. We have before us two translations of the relevant portions of the bond, one by the learned Subordinate Judge which finds a place in the judgment under appeal and the other in the printed record of the ease.

Though the two translations do not agree in all particulars, no exception was taken before us as to either translation. Indeed, on the broad lines in which the arguments proceeded slight variations noticeable in the two translations cause no serious difficulties in the disposal of the case, though the fixation of the date as to when the money became due is by no means easy.

It is advantageous to have both the translationsextracted in this judgment. The learned Subordinate Judge's translation of the relevant portion ofthe bond is in these terms.

'Every year by the 30th of Phalguna I shall pay Rs. 456-4-9 towards interest and obtain a receipt. I shall pay the principal sum after 20 years from the beginning of this Saumya year and by the 30th of Phalguna coming at the end of the 30 years vaida .......... After 20 years and before the expiry of 30 years, if I pay you this amount together with interest you must receive it and give a discharge of the debt'.

The translation in the printed record, so far as relevant, reads as follows :--

For this amount, the interest settled to be paid toyou from this same first of Chitra Suddha of Saumyayear ( ) onwards at the rate of Rs. 456-4-9(rupees four hundred and fiftysix annas four andpies nine) in cash per annum; and the said interest,I shall pay to you from this year onwards withinthe 30th of Phalguna Bahula of every year andshall obtain receipt from you.

As regards the principal amount, I shall pay it to you on the 30th of Phalguna Bahula of the year coming at the end of the period of 30 (thirty) years from this same Saumya year onwards together with the interest due at that time in one lump sum; and I shall discharge your mortgage liability with time-limit subsisting over the said properties and shall take back this document along with a receipt from you at my cost..............

If I bring and pay to you the principal amount of this document along with interest subsequent to 20 years from this Saumya year and within the 30th of the said stipulated year, you should receive the same and should give me receipt as mentioned above. To this effect is the mortgage deed executed and delivered'.

Saumya year commenced from, or rather the first day of the Saumya year (1st of Chitra Suddha of Saumya year) was, 22-3-1909. Though the suit document was executed only on 27-3-1909 the mortgage money was to bear interest from the first day of Saumya year and the interest was payable every year on the last day of the year according to the Kanarese calendar, that is, 30th Phalguna of every year.

The mortgage money was not returnable for twenty years, but the repayment had to be made on the 30th of Phalguna Bahula of the year coming at the end of the period of thirty years from the beginning of the Saumya year. 30th Phalguna Bahula coming after thirty years from the 1st of Chitra Suddha of Saumya year fell on 21-3-1939. The plaintiffs brought their suit on 26-3-1951. The plaint as originally stood stated (para IV) that 'the cause of action for this suit arose on Phalguna Bahula day of 1939, 13-4-1939...........'

The statement that Phalguna Bahula day of 1939 corresponded to 13-4-1939 was evidently made under a misapprehension of the true position. The corresponding date for 30th Phalguna Bahula (coming after thirty years from Saumya year onwards) was as stated earlier 21-3-1939. On the basis that the cause of action arose on the 30th Phalguna Bahula of 1939 (21-3-1939) the suit instituted on 26-3-1951 was obviously barred by time. Before the suit went for trial the plaintiffs got paragraph IV of the plaint amended and in place of the averment that the cause of action arose on Phalguna Bahula day of 1939, 13-4-1939, it was substituted that the cause of action arose on 27-3-1939, that is, when thirty years expired from the date of the execution of the bond.

In his judgment the learned Subordinate Judge has not chosen to say that on a true construction of the bond, 27-3-1939 should be taken to be the date on which the mortgage money became clue, but following the decision in Venkata Subramania v. Y. Bhiravaswami, AIR 1927 Mad 917 (A), the learned Judge repelled the contention that the suit was barred by time and accordingly passed a decree in favour of the family of the plaintiffs and defendants 7 to 9 for the amounts found due on a scaling down of the debt as per the provisions of the Madras Agriculturists' Relief Act.

4. Mr. T. C. Raghavan, the learned counsel who appeared before us on behalf of the plaintiffs-respondents, did not seek to sustain the decision of the lower court on the ground that the cause of action for the suit arose on 27-3-1939; indeed he had to concede that the language of the mortgage bond sued upon did not warrant such a proposition being evolved out of it. Nor did he contend that the authority of Venkita Subramania v. Y. Bhiravaswamy (A), would help his clients to get over the plea of limitation.

As the lower court's view that the cause of action arose when thirty years from the date of the suit document expired and the suit brought within twelve years therefrom is not barred by limitation cannot be sustained, on a true construction of the document we have to find out for ourselves on which date the mortgage money became due in this case, that is, when the cause of action for the suit arose. Towards that end we have to examine the different theories or constructions that emerged out of the arguments of counsel on either side.

In all three theories have been propounded, one by Mr. K. Kuttikrishna Menon, learned counsel for the appellant and two by the respondents' counsel Mr. Raghavan. We shall first state what these theories are and then discuss them.

5. The construction which Mr. Kuttikrishna Menon sought to give to the document was that as per the terms thereof the mortgage money was repayable on a specified date, namely, 30th Phalguna Bahula coming at the end of thirty years from the 1st of Chitra Suddha of Saumya year which corresponded, as stated earlier, to 21-3-1939 and that the suit to have been in time should have been instituted not later than 21-3-1951. The argument was that the period from 22-3-1939 to 21-3-1951 gave the mortgagee the twelve years' period prescribed by Article 132, Limitation Act and that a suit instituted even on 22-3-1951 would have been out of time.

6. The two alternative constructions Mr. Raghavan sought to give to the mortgage document proceeded on the basis that the document gave the mortgagor full thirty years to repay the debt and they differed from each other only as to the commencement of the said thirty years' period. According to one construction the period commenced from the last day of the Saumya year and not from the beginning of the year. The alternative argument was that assuming the period commenced from the beginning of the Saumya year (22-3-1909), the suit need have been brought only on 23-3-1951 and that as the 23rd, the 24th and the 25th days of March, 1951 were holidays, the suit instituted on 26-3-1951 was within time.

It may here be mentioned that it is common ground between the contending parties that the said three days (23rd, 24th and 25th) were holidays, but the question whether even on this alternative argument the last day for the institution of the suit was not 22-3-1951 is a question dependingupon the rule as to computation of time for institution of suits. Admittedly both the 21st and the 22nd days of March, 1951 were working days.

7. Mr. Raghavan conceded that if we were to accept the construction contended for by Mr. Kuttikrishna Menon, the suit was filed out of time. He agreed that on that construction a suit brought any day after 21-3-1951 would have been barred by limitation. Mr. Kuttikrishna Menon however argued that even if the document is one giving the mortgagor full thirty years' period from the commencement of the Saumya year (22-3-1909), that thirty years expired on 22-3-1939 (23-3-1909 to 22-3-1939) and that the suit to have been within twelve years therefrom should have been instituted not later than 22-3-1951.

The argument was that the period from 22-3-1939 to 22-3-1951 covered the full period of twelveyears permitted for such suits and the suit ifbrought on 23-3-1951 would have been one daylate. If this mode of computation of time is theproper one, it would become unnecessary for us toseek to choose between the construction Mr. Kuttikrishna Menon sought to give to the documentand the alternative argument of Mr. Raghavan thatthe mortgagor had full thirty years from the beginning of the Saumya year (22-3-1909) to repay thedebt.

8. We shall, however, now consider how far the first construction which Mr. Raghavan sought to put upon the document is correct. It was argued that the expression '30th Phalguna Bahula of the year coining at the end of thirty years from this same Saumya year' gave the mortgagor a period of 30 years from the last day of the Saumya year and not from the beginning of the Saumya year. Reference was in this connection made to the principle underlying Section 9(1) of the General Clauses Act (Act X of 1897). Sub-section (1) of Section 9 reads : '(1) In any Central Act or Regulation made after the commencement of this Act it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from' and, for the purpose of including the last in a series or days or any other period of time, to use the word 'to'.

The section in terms of course, applies only to Acts or Regulations and not to documents inter partes. We are afraid we cannot apply the principle either to this case as the document makes it abundantly clear in more places than one that even though it was brought into existence some days after the commencement of the Saumya year, its operation was to take effect from the first day of the year, that is, first of Chitra Suddha of Saumya year.

Interest on the mortgage money was to run from 'the 1st day of Chitra Suddha of Saumya year 'onwards'' and again, in referring to the date for payment what is stated is 'on the 30th of Phalguna Bahula of the year coming at the end of the period of thirty years from this same Saumya year 'onwards' (the underlining (here into ' ') is by us). The language of the document, in our view, leaves no room to doubt that the document was to take effect for all purposes from the first day of Saumya year & not from any subsequent date. If the argument is to be accepted the mortgage money would not have become due or rather the cause of action would not have arisen in the year 1939, at all, but only in the succeeding year.

Further, as referred to earlier, the plaint as originally stood stated that the cause of action for the suit arose 'on Phalguna Bahula day of 1939,13-4-1939'. The amendment to the plaint as tothe date of the cause of action made at the instance of the plaintiffs took the same back by nearly fifteen days; it was not sought to take the date forward to the end of the next Kanarese year to any date earlier to that. It is therefore abundantly clear that it was never in the contemplation of the parties that the thirty years' period was to commence from the end of the Saumya year.

Apart from what the plaint stated in its original form or as amended, on the language of the document we have no hesitation to hold that the argument that the thirty years' period was to commence from the end of the Saumya year is absolutely unfounded, Accordingly we repel that contention.

9. As the basis on which the lower court proceeded that the cause of action arose on 27-3-1939 and Mr. Raghavan's argument that the cause of action arose not in 1939 at all, but somewhere in 1940 are both unacceptable to us, there remain for our consideration the construction which Mr. Kuttikrishna Menon sought to put upon the document that it had fixed a specific date for repayment of the mortgage money and Mr. Raghavan's alternative argument that what the document did was not to fix a date for repayment, but to give full thirty years from the commencement of the Saumya year to the mortgagor to repay the debt.

As stated earlier Mr. Raghavan conceded that, if Mr. Kuttikrishna Menon's argument is accepted the suit must be held to have been filed out of time. On the other hand, if Mr. Raghavan's argument is to be accepted the plaintiffs would have had one more day to file the suit and whether the addition of one more day would save the suit from the bar of limitation would depend upon the mode of computation of time to be adopted in such cases. If Mr. Raghavan's contention as to computation of time cannot be accepted, it would be of more academic interest as to which of the two constructions (that survive for our consideration should be preferred.

10. The question of the right mode of computation of time has received our anxious attention and we are definitely of the view, that, the position Mr. Raghavan contended for that a suit brought on 23-3-1951 would have been in time, cannot on principle or authority be sustained. Before discussing that aspect of the case we think it proper to point out that there is divergence of judicial opinion as to the construction to he given to instruments of the kind that is before us now to ascertain when the debt became due.

As per the suit document interest on the mortgage money was payable every year on the 30th. Phalguna Bahula. Likewise the document is sufficiently clear that the parties intended that the repayment of the principal money was also to be made only on the 30th of Phalguna Bahula of any year coming after the expiry of twenty years and before thirty years expired. Section 25 of the Limitation Act, 1908, which is relevant in this context is in these terms:

'25. All instruments shall, for the purposes of this Act, be deemed to be made with reference to the Gregorian Calendar.'

In this case we have seen that 30th Phalguna Bahula that came thirty years after the commencement of the Saumya year fell on 21-3-1939, but thirty years from the commencement of the Saumya year, 22-3-1909, expired only on 22-3-1939. The question which Courts have from time to time been called upon to decide is, when such conflicts occur,which date should be taken to be the date on which the debt became due? As stated earlier judicial opinion on the question is not uniform.

In the view we take that even the construction according to which the mortgagee would have a larger time by one day will not help the present suit being saved from the bar of limitation, it is not necessary for us to choose between either construction or even to refer to the conflicting authorities. However as the question has been argued at length it is only proper that we refer to the two sets of decisions bearing on the question.

11. Mr. Kuttikrishna Menon's construction as to when the mortgage money under the suit document became due finds support in two decisions of the Allahabad High Court and in certain observations in the judgment in Venkata Subramania v. Y. Bhiravaswami (A). On the other hand Mr. Raghavan's alternative argument that for repayment of the debt the mortgagor had full thirty years, from the beginning of the Saumya year stands supported by a Bombay decision, by a decision of the Calcutta High Court and by one from the Chief Court of Oudh. Venketa Subramonia v. Y. Bhirava-swamy (A), has cited with approval the Bombay and the Calcutta decisions we have in mind. The two sets of rulings may now be briefly referred to.

12. We shall first refer to the two Allahabad decisions supporting Mr. Kuttikrishna Menon's interpretation of the document. The earlier of the two cases is Dwarka Prasad v. Raja Ram, 13 All LJ 486: 29 Ind Cas 980: (AIR 1915 All 272) (B). For our purpose here it would suffice if we quote the headnote to that case-

'Under the terms of a bond dated 24-7-1892, money was repayable in eight years by eight yearly instalments, each instalment being payable on Magh Sudi Puranmashi. The last instalment was mentioned as payable on Magh Sudi Puranmashi 1956, corresponding to 14th February 1900. Suit for recovery of money was brought on 24-7-1912. Held that the parties intended that payment of instalments was to be made on the Hindi date mentioned in the bond and Section 25 of the Limitation Act did not apply. Held also that the suit having been brought more than twelve years after Magh Puranmashi 1956 (the date on which the last instalment was payable) was barred by limitation ........'

The other case supporting this view is Roshan Lal v. Bashir, AIR 1925 All 138 (C). There it was held that the applicability of Section 25, Limitation Act, depends on interpretation in each case and that the Section does not apply where the parties have agreed that the time must run from a particular date. The head-note to that case may also-usefully be quoted here:

'If the starting point is to be calculated as so many months or so many years from a particular date, that point must be calculated according to the Gregorian Calendar. On the other hand, if the starting point is otherwise fixed by stipulation itself the court cannot apply Section 25 of the Limitation Act. It is really a matter of interpretation in every case.

Where the intention was that the interest should be payable at the expiry of 'six months' according to the Hindi calendar that is to say, on a particular date and not at the expiry of six months, and that the cause of action should arise on default.

Held: that Section 25 was not applicable.'

In Venkata Subramania v. Y. Bhiravaswamay (A), a passage from the judgment in Roshan Lal v. Chaudhuri Bashir (C), which word for wordagrees with the first part of the head-note quoted above is extracted and it is then pointed out that the learned Judges in that case did not apply the rule enunciated by them to the decision of the case. Be that as it may, with respect we venture to think that the learned Judges in the Madras case themselves fell into the error they accused the Allahabad Judges' of, namely, not applying the rule they themselves enunciated to the decision of tile case before them. Towards the end of the judgment in Venkata Subramania v. Bhiravaswami (A), it is seen stated thus:

'The cowle (referring to the cowle-deed in thecase) was to run for 16 Telugu years from a particular date for the purpose of limitation, the yearshave to be deemed to be Gregorian calendar years.The suit was therefore in time. The appeal isallowed.'

The particular date fixed by the cowle-deed for the period of 16 years for which the lease arrangement was to last, was the first day of the then current Telugu year Khara, but the deed happened to be executed only on 2-5-1891, several days after the beginning of the said year Khara. In holding that the suit instituted on 2-5-1919 was in time the learned Judges of the Letters Patent Bench overlooked the fact that the 16 years specified by the deed expired several days before 2-5-1907; and that the suit brought on 2-5-1919 could not therefore have been held to be within time. Mr. Raghavan realised this error in the Madras decision when he conceded that its authority cannot help his clients in this case,

13. Before we proceed to refer to the decisions favouring the opposite view, it may not here be out of place to point out that in both the Allahabad cases cited above, the bonds provided for payment of the debt in instalments and also provided that in case of default, the mortgagee could call the whole amount regardless of the period specified for repayment. In the earlier case, that is, Dwarka Prasad v. Raja Ram (B), the learned Judges proceed to discuss the question of limitation ignoring the acceleration clause, while in the later case, that is, Roshan Lal v. Chaudhuri Bashir (C), the question was considered giving effect to the acceleration clause.

The view that when a debt bond provides payments in instalments in the event of default the creditor is bound to avail of that provision to sue for the money, a view which the Allahabad High Court was consistently taking, came for some sharp criticism by the Privy Council in Pancham v. Ansar Hussain, AIR 1926 PC 85 (D), and the said view was definitely overruled by the Judicial Committee in Lasa Din v. Mt. Gulab Kunwar, AIR 1932 PC 207 (E).

14. The opposite view, that is, Mr. Raghavan's alternative argument before us that even when a specified date under the Indian Calendar has been mentioned as the date for repayment, at the same time mentioning the period during which the transaction is to remain in force is expressed in terms of months or years, the debtor should have the benefit of the full period as per the Gregorian Calendar, in case the specified date happens to be earlier and the period fixed in terms of months or years extends beyond that date is supported by the decisions in Rungo Bujaji v. Babaji, ILR 6 Bom S3 (F); Latifunnessa v. Dhan Kunwar, ILR 24 Cal 382 (G) and Pulai Ram v. Sanchit Misir, AIR 1931 Oudh 357 (H). We consider it advantageous to have the headnotes in these cases also extracted here:

In Rungo Bujaji v. Babaji (F), the head-note reads:

'The plaintiff sued on a note, bearing a negative date, Ashad Vadya 13th, Shake 1790 (7th August 1877), and containing a stipulation for payment of the money to this effect: 'In the month of Kartaik, Shake 1799, -- that is to say, in four months, -- we shall pay in full the principal and interest'. The plaint was filed on 6-12-1880, in the court of Small Causes at Poona. The Judge was of opinion that the claim was barred. On his referring the case to the High Court for its decision. Held, that the period of four months was, for the purpose of ascertaining whether the suit was barred by lapse of time, to be calculated according to the Gregorian calendar, under Section 25 of the Limitation Act XV of 1877, and that the claim was not barred.'

In Latifunnessa v. Dhan Kunwar (G), the head-note is as follows:

'In a mortgage bond, dated 14-6-1876, it was stipulated that the money advanced should be repaid 'in the month of Jeyth 1289 Fusli, being a period of six years'. The last day of Jeyth 1289 answered to the 1st June 1882, and the period of six years from the date of the bond ended on 14-6-1882. In a suit brought upon the bond on 12-6-1894.

Held (Ameer Ali, J., dubitante) that the money sued for became due on 14-6-1882, and the suit was in time'.

The headnote to Pulai Ram v. Sanchit Misir (H), is in these terms:

'Plaintiff sued on registered bond for Rs. 150 executed by defendant on 16-4-1924. The bond provided for payment of money in six months, date being fixed as Kuar Sudhi Puran Mashi 1332 which corresponded to 13-10-1924. The suit was filed on15-10-1930 and was dismissed as being beyond limitation by two days.

Held: That all instruments should for the purposes of limitation be deemed to be made with reference to Gregorian calendar. Date of the fasli year is a move able date with reference to the Gregorian Calendar and therefore could not be taken as the date of payment with reference to which limitation should be calculated. Date of payment should be calculated as six months from16-4-1924 and as limitation in this case was six years the suit was filed one day before the limitation expired.'

We may once again refer to Venkitasubramonia v. Bhiravaswami (A). There before referring to the Bombay and the Calcutta decisions we cite here and before attempting to distinguish the two Allahabad cases cited earlier, the learned Judges observed:

'For the purpose of argument we will assume that the third version '16 years from this year till the end of the Telugu year Parabhava' is correct and that the parties to the deed meant it to run for 16 Telugu years. It was, of course, executed several days after the beginning of the Telugu year Khara and if the lease was to expire at the end of Parabhava, the full term would have been some-tiling less than 16 Telugu years. Mr. Lekshmana, takes his stand on Section 25, Limitation Act.

That section reads as follows (Section 25 quoted). Nothing could be more unconditional. If a question of limitation arises, the instrument must be deemed to have been made with reference to the Gregorian calendar, the intention of the parties being immaterial. The rule is an obvious rule of convenience in a country like this, where there aremany calendars each of which divides the year in a different manner.'

This passage also supports Mr. Raghavan's alternative argument. It has already been stated that in the view we take that even if the suit had been instituted on 23-3-1951, it would have been barred by limitation, it is really unnecessary for the purpose of this appeal, to state which view commends itself to us as better or the more correctone. After referring to the conflict of decisions bearing on the question, in the commentaries to Section 25, Rustomji's Law of Limitation (fifth Edition, 1939) contains the following passage at page 492Volume I:

'The better view, however, appears to be that Section 25 of the Limitation Act is unconditional, that if a question of limitation arises, the instrument must be deemed to have been made with reference to the Gregorian calendar, the intention of the parties being Quite irrelevant.'

We venture to think that this is a correct appraisal of the position. As observed by Beverley J., in Latifunnessa v. Dhan Kunwar (G), a liberal construction should be given in cases of doubt such as the present one.

15. We now come to the question as to the computation of time for instituting the suit. We have already stated that Mr. Raghavan had conceded that if we took that the 30th Phalguna Bahula of 1939 (21-3-1939) as the date when the money became due, the present suit must be held to be barred. Mr. Raghavan, however, contended that had the suit been brought on 23-3-1951 it would have been in time and as the 23rd, the 24th and the 25th days of March were holidays, the present suit instituted on 26-3-1951 was not hit by the twelve years' rule of limitation.

In discussing this aspect of the case we proceed on the basis that for repayment of the debt the mortgagor was entitled to the full thirty years from 22-3-1909 (the commencement of the Saumya year) as per the Gregorian calendar. Thirty years therefrom ended on 22-3-'39. The money became due on that date and the mortgagee could have sued for the same on 23-3-1939. The period of twelve years during which the claim remained alive ended on 22-3-1951 and the suit to be within time had to be brought, the latest on that date. To accede to Mr. Raghavan's argument that the suit brought on 23-3-1951 would have been in time is to hold that the mortgagee had not twelve years but twelve years and one day to sue.

Under Section 12(1), Limitation Act, the day to be left out of count is the day from which the period of limitation is to be reckoned. Here the period of limitation had to be reckoned from 22-3-1939 and from 23-3-1939 to 22-3-1951 the mortgagee had the full period of twelve years to sue. Innumerable cases can be found in the books supporting this mode of computation of time, but before we refer to some of them reference may be made to two decisions to which Mr. Raghavan invited our attention on this part of the argument.

16. In Webb v. Fakmanner, (1838) 3 M & W 473 : 49 RR 690 (I), the question was whether the suit was premature and no question of limitation arose there. In that case action was brought on 5-12-1837 in respect of goods sold on 5-10-1837, to be paid for in two months. The point raised was whether the suit was premature and it was held that an action for the price could not be commenced until after the expiration of the 5th of December.

The principle enunciated in the decision hadbeen kept in view when we stated earlier that the mortgagee in the present case could have sued for the amount only on 23-3-1939, that is giving the mortgagor the full thirty years' period provided for payment by the bond. If the seller of goods in the English case had three years' time to sue for the amount, a suit brought on the 6th of December 1840 would have been out of time.

17. The other case Mr. Raghavan referred to is Lasa Din v. Mt. Gulab Kunwar (E), which we have already cited in another context, that is when speaking of instalment bonds. Reliance was sought to be placed on certain observations of Sir George Lowndes, who gave the judgment in that case for the Judicial Committee and those observations read:

'.............. in their opinion the mortgagemoney does not 'become due' within the meaning of Article 132, Limitation Act. until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued.'

In this case this occurred on 23-3-1939 and the period ending with 22-3-1951 exhausted the full period of twelve years to bring the suit. Evidently Mr. Raghavan is confusing the day from which the period of limitation is to be reckoned, with the day when the money became due; in this case the former date was 22-3-1939 and the latter 23-3-1939.

18. We shall now refer to some authorities which support our view point as to computation of time in this case. In Rustomji's Law of Limitation (Fifth Edition), Vol. I, at page 487, referring to two Privy Council decisions reported in AIR 1926 PC 85 (D), the learned commentator states:

'............ where a cause of action aroseen 30-11-1904, and the suit (for which the limitation period was 12 years) was instituted on 30-11-1916, it was conceded by the Privy Council (apparently in view of the provisions of Section 12, Clause (1) of the Limitation Act. which provides that in computing the period of limitation, the day from which such period is to be reckoned shall be excluded), that the suit was just in time, 'in that it was commenced within twelve years to-a-day from the 30th November 1904'. '(Lal Chand v. Ramrup Gir, AIR 1926 PC 9 at P. 11 Col. 1) (J). Thus, if the suit was instituted a day later (viz., 1st December 1916) it would have been out of time.'

The authority cited in the foot-note to support the view set out in the last sentence of the above quotation is a case which we have already referred to, namely, Pancham v. Ansar Hussain (D). The relevant portion is in Col. 2 of p. 85 in AIR 1926 PC 85 (D). There the mortgage deed in suit was dated 21-2-1893 and the time fixed for repayment was twelve years, but there was a covenant to make annual payments of Rs. 500 on account of principal and interest and an acceleration clause that in the event of default the mortgagee can call all the money immediately.

As stated earlier their Lordships in that case discussed the correctness of the view whether the mortgagee was bound to sue immediately the default occurred, or was entitled to wait for the full period specified for repayment. The suit was instituted on 21-2-1917, 24 years after the execution of the bond. In Col. 2 on p. 85 of the report it is stated 'a day later, and it would on any view have been hopelessly out of time.' This is a case where a period was fixed for repayment of the debt & the observations of their Lordships show that Mr. Raghavan's contention cannot be sustained. The concluding portion of their Lordships' judgment may also be usefully quoted here:

'Their Lordships accordingly, without pronouncing in any way upon matters which must one day call for most serious consideration at the hands of the Board, think that this appeal should be dismissed on the short ground that the appellants are committed to the position that their cause of action accrued to them on 21-2-1894, and that their suit, in the absence of any payment or acknowledgment by the mortgagors, was barred long before the date on which it was instituted; in point of fact it was barred on 21-2-1906.'

19. Next we refer to a line of decisions of the Indian High Courts supporting our view. In re Palany Andy Pillai, 4 Mad HCR 330 (K), arose from a reference made by the Principal Sadr Amin of Tanjore to the High Court. There three plaints were presented by the plaintiff on 10-4-1863 for the recovery of money on three simple money-bonds, in all of which the 10th of April 1866 was fixed as the day for repayment of the sums mentioned in them. As the bonds were unregistered the period of limitation for suits founded on them was three years.

The question was whether in calculating the period of limitation the day mentioned in the bonds for repayment was to be included or not, since a period of three years, from that date expired on 9-4-1869. Scotland C. J. and Innes J., answered the reference in the following terms:

'The provision in the Act of Limitations applicable to this case clearly imports that the period of three years is to be computed from the time when the right to sue for the alleged breach of a contract to pay a sum of money first arose. In the present case, the defendant had, under the contract, the whole of 10-4-1866, for payment, and there was not a breach of the undertaking to pay until the last moment of that day. Consequently, the right to sue did not accrue on but from that day and it must be excluded in the computation of the period of three years ..........'

The suits brought on the day of the month corresponding with the date fixed for repayment were therefore held to be within time.

20. In Venkubai v. Lakshman Venkoba Khot, ILR 12 Bom 617 (L), the suit was filed on 29-11-11886 on a bond dated 29-11-1881, payable in two years. The Subordinate Judge dismissed it as time barred, being of opinion that the cause of action had accrued on 28-11-1883. In reversing the decision of the Subordinate Judge the High Court held that the suit was not barred by time as the cause of action accrued on 29-11-1883, that is, the day of the month corresponding with the day on which the bond was dated.

In Upendra Chandra Singh v. Mohiri Lal, ILR 31 Cal 745 (M), on 17-3-1899, the plaintiff brought a suit to enforce a mortgage bond dated 17-9-1886, containing a stipulation that the debt would be repaid within six months. Dr. Rash Behary Ghose, who appeared for the defendant-appellant, contended before the High Court that the period of six months should be reckoned from the date of the bond itself, that accordingly the amount fell due on the 16th of March and not on the 17th and that the suit having been instituted on the 17th it was barred by the twelve years' rule of limitation. In negativing the contention the learned Judges who disposed of the appeal stated:

'The first point that has been raised before us is limitation. It will be remembered that the mortgage-bond, under which the plaintiffs claim, bears date 17-9-1886. It stipulated that the amount borrowed would be paid within six months; and a question has been raised before us as to the date from which the period of six months is to run; the contention on behalf of the appellant being that it should run from the date of the bond itself, and that, therefore, the suit instituted on 17-3-1899 is barred by the twelve years' rule of limitation.

We arc, however, of a different opinion, we think that, in reckoning the period of six months, the date on which the bond was executed must be excluded, and that being so, the limitation should run from the expiry of the six months mentioned in the bond, i.e., it should run from 17-3-1887; and the suit being instituted on 17-3-1889 would be 'just within time,' ' (the underlining (here intois by us).

The next case is a decision of the Upper Burma Judicial Commissioner's Court reported as Nga Po Yin v. Mi Shan Nu, 18 Ind Cas 574 (UB) (N). There the plaintiffs sued on a promissory note executed on 7-5-1907. The suit was instituted on 9-5-1910, which was a Monday. It was held that the period of limitation commenced to run from the expiration of 7-5-1907 and expired at 12 midnight on 7-5-1910 and hence the suit was barred by time. The case followed the decision in Tarachand v. Munshi Abdul Ali, 8 Beng LR 24 : 16 WR (OC) 1 (O), where on a promissory note dated 14-11-1867 the suit instituted on 14-11-1870 was held to be within time. The following remarks of Pliear, J., from Tarachand Ghose's case (O), are quoted by Eales J. C., in Nga Po Yin v. Mi Shan Nu (N):

'It has been decided in very many cases that when the period is limited from the date or from the day of date, it does not commence to run until the day has expired. I think, therefore, that in the present case the period of limitation did not commence to run until mid-night between the 14th and 15th November, 1867. The suit was brought on 14-11-1870, and was. therefore brought on the last day of the period of 3 years which commenced at mid-night between the 14th and 15th of November 1867: in other words, it was brought within the period of three years prescribed by the clause of the Limitation Act to which I have referred.'

Eales J, C., then observed:

'That is to say, that on the morning of the 15th of November, the learned Judge would have held that the suit was time barred. This is exactly the view I hold myself.'

Eales J, C. then went on to say:

'The first year of limitation would run from 0.1 A. M., on 8-5-1937 to 12 P. M. on 7-5-1908: this would conclude the first calendar year. The second calendar year would run in the same way from 0.1 A. M., on 8-5-1908 to 12 P. M., on 7-5-1909 and the third calendar year from 0.1 A. M. on 8-5-1909 to 12 P. M. on 7th May 1910. The suit, therefore, according to Justice Phear's ruling would have been barred on the morning of the 8th.'

The last in the series of cases we would refer to for elucidation of the point is the decision of the Oudh Chief Court already referred to in another connection namely, Pulai Rain v, Sanchit Misir (II). To confine ourselves to what is relevant for this part of the case, the suit brought on 15-11-1930 upon a registered bond, dated 16-4-1924, providing for payment in six months, was held to have been filed one day before the limitation expired. The headnote to the decision has been quoted elsewhere in this judgment.

21. These decisions completely repel Mr. Raghavan's argument that the suit instituted on23-3-1951 would have been in time and that on account of the intervention of three holidays, the present suit is not hit by the twelve years' rule of limitation. Thirty years from the beginning of Saumya year (22-3-1909) expired on 22-3-1939 and twelve years from 23-3-1939, (that is, excluding the date on which the debt became payable) expired on 22-3-1951. The suit should then have been brought on 22-3-1951 to be within the period of 'twelve years from the time the money sued for became due', prescribed by Article 132, Limitation Act, 1908.

To hold that the suit if instituted on 23-3-1951 would have been in time would be to allow twelve years plus one day as the period within which the suit should be brought. The period of twelve years ended at mid-night on 22-8-1951.

22. An illuminating elucidation of the principles relating to computation of time is to be found in the judgment of Coutts-Trotter, J. (as he then was) in In re Court Fees, ILR 46 Mad 685: (AIR 1924 Mad 257) (FB) (P). There the question was when, a Notification in the Fort. St. George Gazette Extra-ordinary, published on 5-5-1922, announcing an increase of court-fee for suits filed on the Original Side of the High Court stating that the amendments 'do come into force from the date of publication in the Fort St. George Gazette', will apply to suits filed on that day before a copy of the Gazettee Extra-ordinary was received in the office of the High Court.

We are here concerned with the computation of time for institution of suits, and though the portion relevant for our present purpose is not the whole paragraph extracted here, for a proper appreciation of the principles we think it advantageous to quote below the whole of the relevant portion of the judgment. At pp. 691 to 693 (of ILR Mad) (at p. 259 of AIR), the learned Judge observed:

'It appears to me that while it is true that no one general rule exists as to the computation of time (See Sir Willan Grant in Lester v. Garland, (1808) 15 Ves 248: 33 ER 748 (Q), and In re North, Ex parte Hasluck, (1895) 2 QB 264 (R)), the English Common Law has evolved two perfectly clear principles and they are the principles which I conceive that the draftsman of the Indian General Clauses Act intended to embody in the sections (Section 3, Sub-section 12 & Section 9) which I have quoted. What J conceive to emerge from the decided cases is this: that as the law in general neglects fractions of a day you must either exclude or include the whole of the day with which a given statute or rule or regulation deals. And the exclusion or inclusion, I think, is clearly provided in two other rules. If you are fixing the point of time at which a certain state of things is to be called into existence that state of things conies into existence at mid-night of the day preceding the day at which or on which or from which or from and after which the new state of things begins. In such cases the statute or rule is only concerned in fixing the terminus a quo of a new state of law which is enacted to continue indefinitely, in other words, until repealed by a new enactment of the legislature where, in snort, you have a terminus a quo but no terminus ad quern.

This principle is well illustrated by the case of Tomlinson v. Bullock, (1879) 4 QBD 230 (S). It is one of obvious convenience for it would be an intolerable burden upon the litigant public to require it to ascertain at which precise hour of the day a particular statute is passed or a particular rule or regulation is promulgated. The otherrule is this. When you have a period delimited by statute or rule which has both a beginning and an end, the word 'from' excludes the opening day and any words fixing the closing day include that day.

As was pointed out by Day, J,, any other canon of construction would lead to an absurdity. For instance a policy of insurance to be good for one day from the 1st January might be valid only for a few hours or even for a few minutes or conceivably not at all, unless you exclude the 1st January from the computation. Illustrations of the application of this principle are to be found in Isaacs v. Royal Insurance Co., (1870) 5 Ex. 296 (T); In re Railway Sleepers Supply Co., (1885) 29 Ch D. 204 (U); South Staffordshire Tramways Co. v. Sickness and Accident Assurance Association, (1891) 1 QB 402 (V), Sheffield Corporation v. Sheffield Electric Light Co., (1898) 1 Ch. 203 (W) and Goldsmith's Company v. West Metropolitan Railway, (1904) 1 KB 1 (X).

This distinction appears to me to be vital and reconciles all the cases referred to in the argument. I think the rule that emerges is this: Where a statute fixes only the terminus a quo of a state of things which is envisaged as to last indefinitely, the common law rule obtains that you ought to neglect fractions of a day and the statute or regulation or order takes effect from the first moment of the day on which it is enacted or passed that is to say, from mid-night of the day preceding the day on which it is promulgated; where, on the other hand, a statute delimits a period marked both by a terminus a quo and a terminus ad quem, the former is to be excluded and the latter to be included in the reckoning'.

The application of the second principle enunciated above confirms the view we set out earlier that, if the bond in question is construed as one giving the mortgagor a definite period of thirty years from the beginning of the Saumya year (and not as one where the date of payment is specified), full thirty years were covered by the period between 23-3-1909 and 22-3-1939. Twelve years therefrom began with 23-3-1939 and ended on 22-3-1951. A suit brought on 23-3-1951 would have been a day too late. On principle and authority Mr. Raghavan's alternative argument cannot be accepted either.

23. The appeal has in the result to be allowed. Accordingly we reverse the lower court's judgment and decree and dismiss the plaintiff's suit. In the circumstances of the case, the parties will bear their costs throughout.


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