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Sebastia Pillai Vs. V.E.K. Kadher Meera Rowther and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1962)2MLJ530
AppellantSebastia Pillai
RespondentV.E.K. Kadher Meera Rowther and anr.
Cases ReferredHutchinson v. Jauncey L.R.
Excerpt:
- .....which was thus extended to the erstwhile state of pudukottah was the madras act iv of 1938 (madras agriculturists relief act).2. by reason of the merger of pudukottah state with the madras province, appeals from decrees passed by the chief court of pudukottah lay to this court. the respondent who felt aggrieved by the preliminary decree aforesaid filed a.s. no. 634 of 1950 in this court. that appeal was disposed of on 5th november, 1954. this court confirmed the decree of the chief court, pudukottai, except for making a slight variation in regard to the rate of interest payable on the second of the two mortgages.3. it will be convenient at this stage to refer to the legislation referred to above, namely, madras act xxxv of 1949. section 4 of the act states:in any enactment.....
Judgment:

S. Ramachandra Iyer, C.J.

1. This is an appeal against the Judgment of Basheer Ahmed Sayeed, J., in C.M.A. No. 21 of 1957. The decree-holder is the appellant. In respect of two mortgages executed by the respondent on 29th March, 1926 and 8th April, 1926, the latter being an anomalous mortgage the appellant filed a suit O.S. No. 295 of 1943 in the Chief Court at Pudukottah and obtained on 24th November, 1946 a preliminary decree for sale. The State of Pudukottai was then under the sovereignty of a Ruler. In March, 1948, the Ruler of this State acceded to the Indian Union. Earlier by the Extra Provincial Jurisdiction Act, 1947, (Central Act XLVII of 1947) the Central Government was enabled to exercise extra provincial jurisdiction in such a manner as it thought fit to determine the law and procedure to be observed in such areas. In exercise of the powers conferred by the above enactment the Central Government after the Ruler of the Pudukottah State acceded to the Indian Union passed the Pudukottai and Banganapalli (Application of Laws) Order, 1949, on 9th April, 1949. That Order related only to certain enactments. On 27th July, 1949, the States Merger (Governor's Province) Order, 1949, was passed as a result of which three States were merged in the Province of Madras. Under Section 3 of that Order, Pudukottah State came to be administered in all respects as if it formed part of the Province of Madras from the appointed date, namely, 1st of June, 1949. The Provincial Legislature thereafter passed Act XXXV of 1949, Madras Merged States (Laws) Act, 1949. Certain laws current in the Province of Madras were extended to the State of Pudukottah. One of the enactments which was thus extended to the erstwhile State of Pudukottah was the Madras Act IV of 1938 (Madras Agriculturists Relief Act).

2. By reason of the merger of Pudukottah State with the Madras Province, appeals from decrees passed by the Chief Court of Pudukottah lay to this Court. The respondent who felt aggrieved by the preliminary decree aforesaid filed A.S. No. 634 of 1950 in this Court. That appeal was disposed of on 5th November, 1954. This Court confirmed the decree of the Chief Court, Pudukottai, except for making a slight variation in regard to the rate of interest payable on the second of the two mortgages.

3. It will be convenient at this stage to refer to the legislation referred to above, namely, Madras Act XXXV of 1949. Section 4 of the Act states:

In any enactment specified in the First Schedule, notwithstanding anything contained in the General Clauses Act 1897 (Madras Act IV of 1938 is one such enactment)....(b) Any reference by whatever form of words to Indian British subjects, shall be deemed to include a reference to persons who immeadiately before the 1st day of August, 1949 were subjects of any of the merged States.... (d) Any reference, by whatever form of words, to the province of Madras shall be construed as including a reference to the merged State or States concerned.'

''Section 5.--If immediately before the commencement of this Act, there is in force in any merged State, an Act, Ordinance, Regulation or other law corresponding to an enactment specified in the First Schedule...such corresponding law, shall, upon the commencement of this Act, stand repealed to the extent to which the law relates to matters with respect to which the Provincial Legislature has power to make laws for the province.

Section 7.--For the purpose of facilitating the application in any merged State of any enactment specified in the First Schedule, any Court or other authority may construe such enactment with such alterations not affecting the substance as may be necessary or proper to adapt it to the matter before? the Court or other authority.

4. The result of these provisions so far as the present case is concerned is that Madras Act IV of 1938 came into operation in the erstwhile Pudukottah State as on and from 1st January, 1950 and the corresponding legislation which existed in that State stood repealed. The respondent could not obtain relief under the provisions of the Madras Agriculturists Relief Act in the trial Court when it passed the decree as that enactment did not apply to Pudukottah State at the time. But that did not prevent him from obtaining under that Act in the appellate Courts as by virtue of the Merged States Laws Act, the Madras Agriculsurists Relief Act came into force on 1st January, 1950 as far as Pudukottah State was concerned. However on that date the respondent was not entitled to any relief thereunder as he was not an agriculturist within the meaning of the term ' agriculturist' as there defined in the Act, namely, was ' a person who has saleable interest in any agricultural or horticultural land in the Province of Madras.' The Proviso to the definition stated that a person should not be deemed to be an agriculturist if he had in both the financial years ending 31st March, 1938 been assessed to income-tax under laws of foreign Government. The respondent was assessed to foreign Income-tax during the relevant years.

5. Subsequent to the disposal of the appeal by this Court the Madras State Legislature enacted an amendment to the Madras Agriculturists Relief Act by Madras Act XXVIII of 1956 under which the words ' Foreign Government' in Section 3, (ii) (proviso) were deleted with the result that a debtor who had an interest in agricultural lands in the Province of Madras and who did not pay Indian Income-tax but was assessed to foreign income-tax was made eligible to claim the benefits under the Madras Act IV of 1938. The Amending Act received the assent of the President on 3rd December, 1956. The amendment was directly to the benefit of the respondent who had not been assessed to Indian Income-tax but only to foreign, income-tax during the relevant years.

6. Even before the amendment came into force, that is, on 20th April, 1955, the respondent filed the application out of which this appeal arises in the Sub-Court at Pudukottai for relief under Sections 9-A and 19 of the Madras Act IV of 1938 and claimed that the decree debt was liable to be scaled down in accordance with the provisions of the Madras Agriculturists Relief Act and that a revised decree should be passed. The learned Subordinate Judge rejected the application on> the ground that the respondent being assessed to income-tax by the Foreign Government during the relevant years was not entitled to the benefit under the Madras Agriculturists Relief Act. The judgment was delivered on 6th July, 1956, i.e.,, before the amendment of Section 3 came into force. Having regard to the definition of the term ' Agriculturist' as it stood on the date when the application was-made, this view is unexceptional. The respondent filed an appeal to this Court against the order of the lower Court. While the appeal was pending Madras Act XXVIII of 1956 referred to above came to be passed. Basheer Ahmed Sayeed, J.. before whom the appeal came on for hearing considered that the amended definition of the term ' agriculturist' should apply to the respondent's case. The learned Judge upheld the claim of the respondent and directed scaling down of the decree debt in accordance with the Act. The order of the lower Court was set aside and the application was remanded for fresh disposal. The learned Judge rested his conclusion on another reason as well. He expressed the view that the Proviso to Section 3 of the Act would apply only to a person who had been assessed to income-tax in respect or two financial years ending with 1937-38 and not to cases where assessment had merely taken place during the time covered by those two financial years, namely, 1936-37 and 1937-38 and there being no evidence that he was so assessed the appeal had to succeed. In other words it was held that so long as it was not proved that the respondent had been assessed to Ceylon income-tax for the years 1936-37 and 1937-38 he would be entitled to the benefits under the Madras Act IV of 1938. This part of the judgment of the learned Judge need not detain us long as it is opposed to the decisions of this Court reported in Rajoo v. Palaniappa Chettiar : AIR1941Mad289 and Sarwesvara Rao v. Umamaheswara Rao : AIR1941Mad152 . These decisions which we accept with respect as having been correctly decided were certainly binding on the learned Judge. The respondent as stated earlier was admittedly assessed to foreign income-tax during the years 1936-37 and 1937-38 and if the definition of the term ' agriculturist ' in Section 3 of the Act had not been amended, he would certainly fall outside the purview of the Act. The substantial question therefore which falls to be considered is whether the respondent would be entitled to take advantage of the amended definition of the term agriculturist, for scaling down the debt under the decree which has become final before such amendment came into force and whether he could obtain relief in an application filed by him before the date of the amendment itself.

7. Mr. Rajagopala Aiyar appearing for the decree-holder dealing with the first aspect of the question contended that as the amendment introduced by Madras Act XXVIII of 1956 did not in express terms or by necessary implication state that it would have retrospective effect it would not be competent for the Court to amend the decree which was passed in the year 1954. In support of this contention, learned Counsel relied on the following passage from ' Statutory Construction and Interpretation of Laws ' by Crawford, 1944, Edn., Article 295:

As with statutes, generally an amendment will have no retrospective operation unless its terms clearly indicate a different intent. There is also a presumption that amendments are effective prospectively. Consequently rights acquired under a statute before its amendment are not affected unless the amending statute expressly or by necessary implication so provides. But if the legislative intent requires, it, retrospective operation must be given to the amendment. In other words an amendment will usually take effect only from the date of its enactment and will have no application to prior transaction in the absence of express intent or an intent clearly implying to the contrary. Indeed there is a presumption that an amendment shall be operative prospectively....

' In this connection it is interesting to note the language of Reynolds C. in Penton v. Wickwire 54 N.Y. 226, wherein he speaks of the retroactive effect of an amendment. There was once and long ago a rule in the construction of statutes that an amendment of it was to be regarded as having incorporated in and made a part of the original enactment but that rule has been for a long time disregarded and it is now settled that an amendment has no more retroactive effect than an original Act upon the same subject. Neither the original statutes nor amendments could have any retroactive force unless in exceptional cases the Legislature so declared. This view seems correct regardless of whether the amendment is regarded as entirely displacing the old law and therefore, as having the efficacy of an independent enactment, or whether the amendment is, what the word signifies, an addition or alteration to the old law with some part of the old law remaining. Only for the purpose of ascertaining what the law is, should the amendment be considered a part of the original enactment.

8. It must, however, be noticed that the amendment introduced by Madras Act XXVIII of 1956 is not in the operative part of the statute. It effected a change in the definition clause in the statute by enlarging the class of persons who would be entitled to the benefits of the main enactment. An amendment of a statute is generally intended and does operate to change original law in order to effect an improvement therein or for the purpose of more effectively carrying out the purpose for which the original law was passed. Where the amendment relates to the definition clause in the main Act it will have the effect of enlarging or abridging, as the case may be, of the scope or applicability of the main enactment to the extent to which its applicability is dependent on the definition. In such a case the statute effecting an amendment of the definition clause in a previous enactment can be considered as analogous to a declaratory statute. A declaractory statute has generally speaking a retrospective operation. An amendment of a definition clause issued has a similar effect. Rajamannar, C.J., while delivering the judgment of the Bench in Alagappa v. Nachiappa I.L.R. (1953) Mad. 996 : (1953) 2 M.L.J. 298, observes:

Take for instance a case where a person is held to fall outside the purview of an enactment having regard to a particular definition in force at the time. If there is subsequently a change in the definition which should draw a person within the purview of the statute can the person maintain the plea that he should be excluded from the operation of the new definition because it had been held that he did not fall within the old definition? I think not.

9. In that case there was a decree passed by the Chief Court of Pudukottai prior to its merger with British India. At the time when the decree was passed there existed a certain legislation in that State which gave some relief to agriculturists coming within the purview of that legislation. The debtor's claim for benefit on the basis of that statute as an agriculturist was negatived when the decree came to be passed. Later the Madras Agriculturists Relief Act was extended to Pudukottah State. A question then arose whether a judgment-debtor could file an application for amendment of the decree taking advantage of the definition contained in the Madras enactment. The learned Judges held that the Madras Act IV of 1938 was applicable and that the judgment-debtor was entitled to the relief claimed by him for the reason that the decree-holder could not be said to have acquired any vested right under the prior decision of the Pudukottah Court as all that was adjudicated upon was that the judgment-debtor was not an agriculturist within the meaning of the Pudukottai Regulation and that he was not, therefore, precluded from taking advantage of the subsequent legislation.

10. In Hindu Religious Endowments Board, Madras v. Ratnaswami : AIR1937Mad232 ,a contention similar to the one before us was taken with respect to the Hindu Religious Endowments Act, 1927, which regulated the management of temples which were classified as ' excepted ' and ' non-excepted '. Originally ' an excepted temple ' was defined in certain terms. Subsequently by the Amending Act of 1930 a new definition of the term ' excepted temple 'was substituted for the old one. A certain institution was held under the 1927 Act to be an excepted temple. After the Amending Act the Endowments Board reversed that decision and held that it was not an excepted temple by virtue of the new definition of the term. A Full Bench of this Court upheld that view. Varadachariar, J., delivering the judgment of the Court pointed out:

There is nothing like a recognised legal right or category of right known to general jurisprudence that is connoted by the expression ' excepted temple.' It was merely a grouping or classification adopted by the Legislature in 1925 as a convenient method of referring to a certain class of temples with a view to lay down certain rules in relation thereto in the body of the Act. No doubt, as long as the Act stood in that form, temples which fell in the category of excepted temples were intended to be dealt with in a particular way and temples comprised in the category of non-excepted temples were intended to be dealt with in another way. But it does not seem to us reasonable to suggest that there was a kind of guarantee that, once the Legislature has though fit to say that a particular temple will be dealt with in a particular manner it should never afterwards be dealt with in a different manner.

11. This principle would apply with equal force to the present case. The original enactment denied relief to a particular class of persons who paid foreign income-tax but the amendment of the definition of the term agriculturist extended the operation of the relief granted by the original enactment to the class of persons who paid foreign income-tax. In other words the effect of the amendment would be to make the original enactment cover a wider field of persons entitled to the relief under the Act than before. In effect the amendment of the definition will be declaractory in nature declaring that a wider class of persons would be entitled to the benefits of the Agriculturists Relief Act. A declaratory statute as stated earlier will have a restrospective operation unless there are specific words in the statute itself showing that it ought not to have such retrospective operation. This was the view that commended itself to the learned Judge who decided the case in Bappu Iyer v. Ranganayaki (1955) 2 M.L.J. 302 where a question arose as to the retrospective operation of a definition clause introduced by the Madras State Legislature so as to make the term ' property ' in the Hindu Women's Right to Property Act, 1937, enacted by the Central Legislature to include agricultural land as well. Govinda Menon, J. accepted the principle that where a statutory provision was in the form of a definition it would have the effect of extending the provisions of the Act from the date of the original enactment itself unless there be a restriction in the Amending Act showing a contrary intention!' The true function of a definition is to serve as a key for understanding the statute or an interpretation clause for it. An amended definition would therefore have a retrospective effect unlike the case of statutes affecting vested rights. It is indeed this principle that underlies the decision in Alagappa v. Nachiappa (1953) 2 M.L.J. 298 : I.L.R. (1953) Mad. 996. It follows that the respondent would be entitled to claim the benefits of Madras Act IV of 1938 notwithstanding the fact that his qualification as an agriculturist came into existence only by reason of the amendment which came into force on 3rd December, 1956, provided the substantive sections in the enactment enable him to reopen the decree passed before the amendment came into force. The next question that arises for consideration and that which forms the second part of the argument of Mr. Rajagopala Iyer is whether the respondent can obtain relief under Section 19(2) of the Act on a petition which was filed even before the amendment came to be passed. It is contended on his behalf that the application should be deemed to be one filed under Section 19(2) of the Act and that as that application was before the appellate Court, it was competent for Basheer Ahmed Sayeed, J. to take note of the amended definition and grant relief to the respondent by applying the provisions of the Act.

12. But before dealing with that question, we should refer to one matter which during the course of the argument, created a doubt whether the respondent could at all invoke the provisions of Section 19(2) of the Act. As we stated earlier, the decree which is sought to be scaled down and amended was passed by this Court in 1954. Jurisdiction to amend such a decree by applying the provision of Madras Act IV of 1938 will exist only if the respondent's case comes within Clause (2) of Section 19 of the Act which states:

The provisions of Sub-section (1) shall also apply to cases where after the commencement of this Act, a Court has passed a decree for the repayment of a debt payable at such commencement.

13. The words '' commencement of the Act and payable at such commencement' have been held to refer to the commencement of the original enactment, namely, Madras Act IV of 1938 (that is, 22nd March, 1938). Vide the decision in Govindaswami Gounder v. Ramaswami Gounder : (1958)2MLJ185 . The term ' debt ' in the sub-section obviously means a liability due from an agriculturist. It follows that before a litigant can apply for the benefit of scaling down of the decree debt under Section 19(2) of the Act he should satisfy the Court that the debt existed on the date when the Act came into force, i.e., on 22nd March, 1938, and that he was an agriculturist on that date. In the present case although the debt was due from the respondent he could not prima facie be said to be an agriculturist as he did not then own lands in the province of Madras but he had a saleable interest in agricultural lands in the then Pudukottah State only. But the matter has to be considered in the light of the Madras Merged States Laws Act, 1949. By reason of Section 4, Sub-section (b) and (d) of that enactment the term ' Province of Madras ' in Section 3 (a) of Madras Act IV of 1938 will include saleable interest in agricultural lands in the Pudukottah State as well. We have already considered the effect of the change in the definition in an enactment; namely, that it would have retrospective operation so far as the applicability of the Act is concerned. The Section 4 of the Merged States Act has enlarged the definition. A person having a saleable interest in agricultural lands in the Pudukottah State will be considered to be an agriculturist within the meaning of the definition of the term 'agriculturist' in Madras Act IV of 1938.

14. It is, however, contended by the learned Counsel for the appellant that as the respondent was not an agriculturist on 22nd March, 1938, which is a requisite qualification under Section 19(2) of the Act, he would not be competent to apply under that provision for the scaling down of the decree debt. Section 7 of the Madras Merged States Act, 1949, says that it is competent for the Court for the purpose of facilitating the application in any merged State of any enactment to construe such enactment brought into force by reason of the merger with such alterations not affecting the substance as may be necessary or proper to adapt it to the matter before the Court. In Alagappa v. Nachiappa (1953) 2 M.L.J. 298 : I.L.R. (1953) Mad. 996 it has been held that the words ' before the commencement of the Act ' contained in Section 19 (1) of Madras Act IV of 1938 which confers a right on the judgment-debtor against whom a decree has been passed before the Act, must be construed in the case of a merged State like Pudukottah as before 1st January, 1950, when Act IV of 1938 was first extended to the Pudukottah State. Mr. Rajagopala Iyer, however, contends that the term ' commencement of the Act ' in Section 19(2) of the Agriculturists Relief Act will not be the same thing as ' coming into force of the Act. ' According to the learned Counsel by virtue of the Madras Merged States (Laws) Act, 1949, it can only be held that the Madras Agriculturists Relief Act came into force on 1st January, 1950, and that date would not be the date of commencement of the Madras Agriculturists Relief Act which was 22nd March, 1938. We are, however, unable to accept that contention. So far as a merged territory is concerned the Agriculturists Relief Act should be deemed to commence to operate only from 1st January, 1950. We respectfully agree with the observations of Rajamannar, C.J. and Venkatarama Aiyar, J. in the case referred to above that while reading the expression ' commencement of the Act ' we should take it that it was from 1st January, 1950. If that were done, the respondent satisfies the conditions of the definition of the term ' agriculturist ' in the Act and he would be entitled to apply for the scaling down of the decree debt under Section 19(2) of the Act. The question then is whether relief could be granted to the respondent on an application which was filed for amendment of the decree even before that Madras Act XXVIII of 1956, came into force. It cannot be disputed that on the date of the application the respondent could not be regarded as an agriculturist according to the law as it then stood. Learned Counsel for the appellant invites our attention to the decision in Seshi Ammal v. Arunachala Chettiar : (1949)1MLJ658 to support his contention that unless the respondent satisfied the conditions of the definition of the term agriculturist in the Act he could hot apply for the scaling down of the decree debt under Section 19(2) of the Act. But Mr. K. S. Ramamurthi appearing for the respondent contends that as the amendment has retrospective effect the application which his client filed in the lower Court should be held to be one properly filed and that relief could be granted on the basis of that application. He referred in this connection to the decision reported in Hutchinson v. Jauncey L.R. (1950) 1 K.B. 574. In that case the landlord instituted a suit after a valid notice to quit claiming possession. On the date when the action was filed the tenancy was not within the protection of the Rent Restriction Act owing to the fact that it was a tenancy of a part of the premises. During the pendency of the action the Landlord and Tenant (Rent Control) Act, 1949, came into force by which protection afforded by the Rent Restriction Act to the various tenancies of the entire premises was extended to cases where the tenant shared accommodation with others. It was held that the protection extended by the Act would apply to pending actions as well, as there was no express prohibition against such application in the statute itself. That was a case where a question arose as to whether the tenant could avail himself of a substantive right created in his favour pending a litigation. That principle has been accepted by this Court in a number of cases where the Madras Act IV of 1938 came into force after the decree of the trial Court but pending appeal and it has been held that the judgment-debtor could claim the benefits of the Act in the appeal pending before the appellate Court. Those decisions proceed on the well-known principle that the result of an action will be affected by a change in the law pending the litigation. But the question that arises before us is entirely different. So far as the respondent is concerned, the decree that was passed against him in the year 1954 under the statute has given a right to reopen that decree. In the present case the statute while giving such a right has prescribed also the procedure in Section 19. In the case of decrees passed before the coming into operation of the enactment Clause (1) to that section prescribes certain conditions for the exercise of jurisdiction by Courts to amend decrees passed by them. That requires that on the date of the application for amendment the debtor should have been an agriculturist. That qualification is also necessary to an application under Section 19(2) of the Act. Admittedly the respondent in the present case could not maintain the. application on the date when he filed it. Although he came within the definition of the term agriculturist under the Act during the pendency of the appeal in this Court, his proper remedy would be to apply afresh to the lower Court and if he satisfies the conditions of the definition of the term agriculturist on the date when he files the application he would be entitled to have the decree amended. We are of opinion that the relief by way of amendment of the decree cannot be granted on the basis of an application which is the subject-matter of this appeal filed at a time when under the terms of the definition of the term agriculturist as it then stood the respondent was not entitled to the benefit of the Act. This judgment will not in any way prejudice the respondent from applying to the lower Court for amendment of the decree hereafter in case he is entitled to the benefits of the Act. We set aside the judgment of the learned Judge and restore that of the trial Court dismissing the application as not maintainable. There will be no order as to costs.


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