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Row Venkata Kumara Mahipati Surya Row Bahadur Garu, Sirdar Rajamundry Circar and Rajah of Pittapur Vs. Gani Venkat Subba Row and ors. and - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in30Ind.Cas.94
AppellantRow Venkata Kumara Mahipati Surya Row Bahadur Garu, Sirdar Rajamundry Circar and Rajah of Pittapur
RespondentGani Venkat Subba Row and ors. And; Maddikonda Buchiraju
Cases ReferredRamakrishna Chetty v. Subraya Iyer
Excerpt:
.....of construction that retrospective operation ought not to be given to a statute so as to take away vested rights unless that effect cannot be avoided without doing violence to the language of the enactment, and that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. 291. on cases like the present, has been discussed by the full bench of the calcutta high court in gopeshwar pal v. 14. the correct rule seems to me to be that though laws affecting limitation might abridge or enlarge periods of limitation in cases of suits or causes of action which were alive at the date when the new enactment came into force and which under the old law would expire afterwards, the change cannot, unless there is a clearly expressed intention..........as amended that demands the construction that the plaintiff was there by deprived of a right of suit vested in him at the date of the passing of the amending act.'2. these observations are applicable to the present case and i think the appeals must be allowed, the decrees of the lower courts be reversed, and the case remanded for disposal according to law. the respondents will pay the appellant's costs of the appeals. other costs will abide and follow the event.seshagiri aiyar, j.3. with the greatest reluctance, i have ventured to differ from the conclusion at which the learned chief justice has arrived.4. the circumstances which raise the question of law are these. before the passing of the estates land act, suits for arrears of rent were cogmsable only by the ordinary civil courts......
Judgment:

John Wallis, C.J.

1. I think that Sadasivia Aiyar, J., was right in following the carefully considered judgment of Benson and Sundara Aiyar, JJ., in Ramakrishna Chetty v. Sub-ray a Iyer 18 Ind. Cas. 64 and that the principle to be applied is that where an Act contains provisions for the limitation of suits which take away altogether a vested right of suit without providing any equivalent remedy, then according to the approved rule of construction, the provisions must he considered to have been enacted subject to the implied exception that they were not to extend to such vested rights of suit which were to continue subject to the rules of limitation in force at the passing of the Act. This rule of construction was adopted to give effect to the presumed intention of the Legislature not to take away vested rights in this fashion. It is recognised in Section 8 of the Madras General Clauses Act, 1891, and the provisions now in question must be taken to have been enacted with reference to it. In Ramakrishna Chetty v. Subraya Iyer 18 Ind. Cas. 64 it was held with reference to this Act that the six years' period applicable under Article 116 to a registered contract continued to apply to a suit for rent under the Madras Estates Land Act at a time when the period of limitation presented by it for suits of this nature had already expired. In the present case the claim for rent was not barred at the date of the passing of the Act, as it was kept alive under Section 7 of the Limitation Act owing to the minority of the plaintiff. Sections 210 and 211 enact rules of limitation for suits under the Act, and Section 211 expressly provides that Section 7 and certain other sections of the Limitation Act shall not apply to suits under this Act. Thus the result of the passing of the Act, which came into force two days after it received the Viceroy's assent, was to leave no opportunity for the exercise of the plaintiff's vested right of suit, unless the provisions of Section 211(1) be read subject to an implied exception in cases where these provisions would otherwise absolutely destroy the plaintiff's right of suit, which was in existence when the Act came into force. In addition to the cases cited in that judgment, I may refer to the recent decision of a Full Bench of five Judges of the Calcutta High Court, Gopeshwar Pal v. Jiban Chandra 24 Ind. Cas. 37 where Jenkins, C.J., delivering the judgment of the Court after citing Commissioner of Public Works (Cape Colony) v. Logan (1903) A.C. 355 and Colonial Sugar Refining Co. v. Irving (1905) App. Cas. 369 observed: Here the plaintiff at the time when the Amending Act was, passed had a vested right of suit, and we see nothing in the Act as amended that demands the construction that the plaintiff was there by deprived of a right of suit vested in him at the date of the passing of the Amending Act.'

2. These observations are applicable to the present case and I think the appeals must be allowed, the decrees of the lower Courts be reversed, and the case remanded for disposal according to law. The respondents will pay the appellant's costs of the appeals. Other costs will abide and follow the event.

Seshagiri Aiyar, J.

3. With the greatest reluctance, I have ventured to differ from the conclusion at which the learned Chief Justice has arrived.

4. The circumstances which raise the question of law are these. Before the passing of the Estates Land Act, suits for arrears of rent were cogmsable only by the ordinary Civil Courts. Such suits were governed by the Indian Limitation Act. As a necessary incident of such rights, minors were entitled to institute their suits within three years of their attaining majority, if the c use of action for rent arose during their minority. The claim in the suit now under appeal relates to the arrears which accrued due in Fasti 1315, when the appellant was a minor. He attained his majority in 1906. The Estates Land Act was passed by the Local Legislature in March 1908. In it a provision was inserted that the Act shall come into, force on the 1st of July 1908. His Excellency the Governor gave his assent to it on the 25th March 1908. The assent of His Excellency the Governor General was given on the 28th June. The Act came into force on the 1st of July. Section 189 of the Act enacts that suits for arrears of rent shall be instituted in the lie venue Courts, and removes such cases from the cognisance of Civil. Courts. Section 211 provides that certain sections of the general Limitation Act shall not apply to suits instituted under the Act. The minority Section (7) is one of them. The present suit was instituted by the appellant in the Revenue Court after the Estates Land Act came into force, It is conceded that the suit would be barred if Section 7 of the Limitation Act did not apply. I am forced to the conclusion that the suit is barred. The pre-existing right, which carried with it the benefit of the Limitation Act, was to institute the suit in the Civil Court. That right could not have been sued upon under the old law in the lie venue Court. The new forum is the creature of the Statute. It was designed to afford a speedy remedy to the parties. The plaintiff was chosen to avail himself of that advantage. He is also bound by the disabilities which the law imposes on such persons. 1 can follow the argument which claims for the plaintiff the right to institute his suit in the ordinary Civil Courts with the attendant advantage of counting in his favour a period of three years after attaining majority. To such an argument, the plea that the Legislature should not be presumed to have deprived parties of their vested rights by post facto legislation may apply. But a litigant cannot approbate and reprobate. He cannot claim the advantage which the new law gives without submitting to the restrictions which, it imposes.

5. The principle that vested rights should not be taken away by implication cannot apply to the present case. Section 211 lays down that the minority section of the Limitation Act shall not apply. There is no room for speculation here; It is an express prohibition. If a suit is instituted under the Act, it is not open to argument that Section 211 is not applicable to it. The clear indication of the Legislature is that it takes this case out of the general rule. See per Lord Hatherley in Pardo v. Bingham 4 Ch. App. 735. The closely reasoned judgment of Benson and Sundara Aiyar, JJ, in Ramakrishna Chetty v. Subrapa Iyer 18 Ind. Cas. 64 was much relied upon in the course of the argument. I am not differing from the main propositions which that case enunciates. Excepting one matter of detail, to which I shall refer later on, I fully concur in the conclusions therein stated. In my opinion, it is not correct to say that the plaintiff in this case is deprived of his rights by giving retrospective effect to the Estates Land Act. He acquires one of his rights only under the Act, namely, the right to sue in the Revenue Court. He had a vested right for a longer period of limitation before the Act came into force. As has been well stated a Statute is not retrospective. because a part of the requisites for its action is drawn from time antecedent to its passing,' per Lord Denman, C.J., in Reg. v. St. Mary Whitechapel (1848) 12 Q.B. 120 . That is the position in the present case. Lord Justice Buckley points out in West v. Gwynne (1911) 2 Ch. 1 'As a matter of principle an Act of Parliament is not without sufficient reason taken to be retrospective. There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most' Acts of Parliament, in fact, do interfere with existing rights.' This dictum is specially applicable to enactments which, while taking away some rights, confer others which arc he loss important. See also of parte Dawson; In re Dawson (17). On the ground that Section 211 is express and on the further ground that the principle of retrospective extinguishments of vested right does not arise in this case, I hold that the decision in Ramakrishna Chetty v. Subraya Iyer 18 Ind. Cas. 64 does not affect this case. In Manjuri Bibi v. Akkel Mahmud (19) Ind. Cas. 793; Budhu Koer v. Hafiz Husain 20 Ind. Cas. 821 and Gopeshwar Pal v. Jiban Chandra 24 Ind. Cas. 37 there was no express provision as in Section 211 of the Estates Land Act. Moreover in all these cases a completed pre-existing right was sought to be put an end to by implication.

6. On the other hand, where the Statute provides for a new procedure for the enforcement of rights, it is always retrospective, per Lord Blackburn in Gardnc v. Lucas 3 App. Cas. 582. In the present instance it is the procedure by which the arrears are to he recovered that is changed. The plaintiff is directed to seek redress in a Revenue Court instead of in the Civil Court. The decision of the Judicial Committee in Soni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 lays down that the Limitation Act in force at the time the suit is instituted governs the action and not the one under which the rights accrued. That decision governs the present case. See also Chidambaram Chetty v. Karuppan Chetty 8 Ind. Cas. 543 and Hope Mills Ltd. v. Vithaldas 12 Bom. L.R. 730. There is one circumstance which has not been noticed in Ramakrishna Chetty v. Subraya Iyer 18 Ind. Cas. 64. I stated at the outset the material dates regarding the passing of the Act and of the sanction obtained. One underlying principle of the cases which lean against retrospective operation is that if the new Act gives no days of grace for its coming into operation, but makes it law as soon as it is passed, Courts should hold that the Legislature did not intend to interfere with vested rights. But where litigants had previous notice and could have enforced their rights before the Act became law, they cannot claim relief. On the day the Legislature passed the Act it deliberately put off its operation for over three months. It did not say that it shall become law as soon as the Governor-General's assent was obtained. It purposely gave parties a period of grace during which their remedies under the law as it stood could have been enforced. The plaintiff in claiming, exception by virtue of an equity should not be heard to say that although he might have enforced his rights between March and July 1908, he can plead that the Act does not apply to him because no time was fixed for its coming into force after the assent of the Governor-Greneral was obtained.

7. As I feel strongly that the plaintiff has no right to avoid the Statute under which he has come to Court, I respectfully differ from the conclusion at which the learned Chief Justice has arrived and agree with Sankaran Nair, J., in holding that the suit is barred by limitation.

Kumaraswami Sastri, J.

8. The appellant, who is the Raja of Pittapur and whose estate was under the management of the Court of Wards, attained majority on the 5th October 1906. He filed suits to recover rent due for Fasli 1815 and claimed exemption from the bar of limitation, on the ground that he had under Section 7 of the Limitation Act three years from the date of his attaining majority to file suits for airears of rent accrued due during his minority. The Deputy Collector in whose Court the suits had to be filed under Section 77 of the Estates Land Act held that Section 211 of the Act applied and that the suits were barred, as the plaintiff was not entitled to the benefit of Section 7 of the Limitation Act. The District Judge taking the same view confirmed the decree of the Deputy Collector, In second appeal Mr. Justice Sankaram Nair held that Section 211 of the Estates Land Act applied retrospectively and barred suits which would have been in time but for the Estates Land Act; which Mr. Justice Sadasiva Aiyar was of a contrary opinion.

9. The question raised in this appeal is, whether Section 211 is retrospective and bars suits which would have been in time if the ordinary law of limitation were applied. The point is not free from difficulty, but I am of opinion that both on principle and on the balance of authority the section ought not to be applied so as to kill causes of action that were alive on the date of the passing of the Act.

10. It is a well-known rule of construction that retrospective operation ought not to be given to a Statute so as to take away vested rights unless that effect cannot be avoided without doing violence to the language of the enactment, and that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. I need only refer to Reid v. Reid 31 Ch. D. 402 and Lauri v. Renad (1992) 3 Ch. D. 402 : 67 L.T. 257. The same view was taken by the Privy Council in Muhammad Abdussamad v. Kurban Husain 31 I.A. 30 Colonial Sugar Refining Co. v. Irving (1905) App. Cas. 369. Section 6, Clause (c), of the General Clauses Act and Section 8, Clause (d), of the Madras Act I of 1891 are statutory recognitions of the same rule.

11. It is argued that as rules of limitation are rules of procedure and as nobody has. a vested right as regards matters of procedure, the plaintiff cannot plead Section 7 of the Limitation Act as giving him a longer period of limitation, as at the date of the suit the Estates Land Act had enacted that the soot ion is not to apply to suits for rent. Reference has been made to Arayil Kail Amma v. Pelappakkara Manakal Sankaran Nambudripad 5 Ind. Cas. 420; Suni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 : (1913) M.W.N. 470. As observed by Mookerjee, J., in Manjurt Bihl v. Akkel Mahumd 17 C.L.J. 316 a Statute of Limitation ceases to be a Statute of mere procedure where it shortens the period and is sought to be used to defeat causes of action which had accrued earlier thin the length of time prescribed in the new law. The distinction has always to be borne in mind between mere matters of procedure and rights of suit which the procedure affects. The effect of the decision of the Privy Council in Sori Ram v. Kanhdlya Lal 19 Ind. Cas. 291. on cases like the present, has been discussed by the Full Bench of the Calcutta High Court in Gopeshwar Pal v. Jiban Chandra 24 Ind. Cas. 37 and 1 agree with the conclusion arrived at by the Full Bench that the provisions of an enactment should not, unless it is absolutely necessary, be construed so as to make it impossible to exercise a vested right of suit. As pointed out by Justice Chatterjee (at page 1129), their Lordships of the Privy Council had not to consider the retrospective operation of special period of limitation provided by a local law coming into operation at once. In Arayil Kali Amma v. Pelappakkara Manakal Sankaran Nambudripad 7 M.L.T. 115 Miller and Krishna-swami Aiyar, JJ., seem to rest their decision on the ground that the new Limitation Act gave time to suitors to make applications under the old Act, as the Legislature postponed the coming into operation of the Act on 1st January 1909. In Suiidaraw (sic) v. Muthuganapatigal 14 Ind. Cas. 184 Justice Miller who was a party to Arayil Kali Amma v. Pelappakkara Manakal Sankaran 'Nambudripad 5 Ind. Cas. 420 was of opinion' that Section 210 of the Instates hand Act cannot be retrospective. As the assent of the Governor-General was received only about three days before the Estates Land Act came into operation and as it is doubtful if the public knew of the assent before 1st July 1908, it cannot be said that the public had due notice. It cannot be said that they were bound to assume that consent was a mere matter of form' and would be given as a matter of course, especially as petitions had been sent by landlords against the measure.

12. The question as to the retrospective operation of Section 210 was discussed in Ramakrishna Chetty v. Subraya Iyer 18 Ind. Cas. 64 where it was held that the rule, of limitation in Madras Act I of 1908 was inapplicable to cases when the period of three years provided by it had expired before the Act came into force. The judgment of Benson and Sundara Aiyar, JJ, deals exhaustively with the whole question and I see no reason to dissent from the view taken by the eminent Judges who decided the case.

13. I do not think it makes any difference whether the alteration of the period of limitation is due to a special provision in Schedule A to the Act or to a special section in the body of the Act. So far as I can see, there is no difference in principle between the present case and the one reported as Ramakrishna Chetty v. Subraya Iyer 18 Ind. Cas. 64 . In both cases the Legislature shortened the period of limitation for suits for rent so far as the plaintiff was concerned 'and if the three years' rule in Schedule A applied, the suit would have been barred.

13. Some 'considerations were urged during the argument which I think are beside the point. It has been argued that as the Estates Land Act has prescribed a new forum which the plaintiff has elected to sue in he is precluded from seeking the benefit of the exemption conferred by Section 7 of the Limitation Act. Section 77 of the Estates Land Act gives the. plaintiff no option as to the forum and there is in the present case neither election nor benefit so far as he is concerned. It has also been suggested that the object of the Legislature was to preserve tenants from long standing demands. This may be so as regards causes of action arising after the Act came into force or running at its date, but I can see no grounds for supposing that the Legislature intended to deprive landlords of rents justly-due to them at the date of the passing of the Act.

14. The correct rule seems to me to be that though laws affecting limitation might abridge or enlarge periods of limitation in cases of suits or causes of action which were alive at the date when the new enactment came into force and which under the old law would expire afterwards, the change cannot, unless there is a clearly expressed intention to the contrary, either by apt words in the enactment or otherwise, be retrospective so as to destroy rights of suits which were alive on the date.

15. I agree with the Chief Justice and would allow the Letters Patent Appeals and reverse the decisions of the Courts below and remand the suits for disposal. The respondents will pay the appellant's costs of these appeals. Other costs will abide and follow the result.


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