1. This appeal is by defendants 1 and 2. The plaintiff took settlement of the disputed land and two other plots in the course of dearah proceedings. It has subsequently been ascertained that the disputed land was a reformation in situ of a holding of the appellants. At the time of diluvion, they accepted an abatement of rent. On these facts, the Munsif dismissed the suit. On appeal, the District Judge reversed this decision holding that the plaintiff is entitled to succeed in view of the provisions of Section 86A, Ben. Ten. Act. The question for decision in this appeal therefore is whether that section is of any use to the plaintiff in the present case. In this case it is to be noted that the diluvion and the abatement of rent took place before this section was enacted. It has accordingly been contended that the section has no retrospective effect, and that the learned Judge was wrong in confining his attention merely to the date of the reformation in situ.
2. The first point therefore for decision is whether this section confers or takes away actual rights or whether it is concerned with procedure. Mr. Ghose relies upon the concluding words ' his tenancy and rights therein shall be extinguished.' In my judgment, the section creates a rule of evidence which is so strong that it almost amounts to conclusive proof. If the intention of the Legislature were that the abatement of rent should automatically take away the tenant's rights, the main part of the section is redundant and meaningless. The words upon which Mr. Ghose relies merely emphasise the effect of the surrender. I must therefore hold that the section merely lays down a rule of evidence. In dealing with the question of retrospective legislation, Maxwell considers the general rule in the words of Wright J., in In re Athlumney; Ex parte Wilson (1898) 2 Q B 547 at pp. 551 and 552 (vide pp. 189-190, 8th Edn.). These words are as follows:
No rule of construction is more firmly established than this: that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.
3. Then again at page 199:
The general principle however seems to be that alterations in procedure are retrospective, unless there be some good reason against it.
4. There is no doubt that in the present case, to give retrospective effect to the present section would be to work injustice. In the first place, when the defendants actually took the abatement, they ran no risk in so doing. Their conduct would not of itself be evidence of surrender. Had there been that risk, they might have refused to take abatement. Then, in the second place, the rule does not apply in cases where there is a contract to the contrary made by a registered instrument. Similarly, they might have refused to take the abatement without such a registered agreement. No doubt, whenever the intention is clear that the Act shall have retrospective operation, it must unquestionably be so construed even if the consequences may appear unjust and hard. But whenever the language of the Legislature admits of two constructions and if construed in one way results in too obvious an injustice, the Court acts upon the view that such a result would never have been intended unless the intention has been manifested in express words.
5. Now, in the present case, I am not pre-pared to say that the only reasonable construction is to give the section retrospective effect. On the contrary, the use of the present tense suggests the opposite. On this view, the learned Judge was wrong to apply this rule of evidence to the present case. There remains the question of fact as to whether the appellants actually surrendered their rights. This question was not decided by the learned District Judge, and I very much doubt whether it was ever raised in his Court. However Dr. Sen Gupta drew my attention to the evidence, and I am satisfied that there is no evidence which would justify such a finding. There is admittedly no direct evidence on the point. The only relevant fact is the actual abatement of rent. This alone is clearly not sufficient to justify any such inference. In these circumstances, no useful purpose will be served by ordering a remand. The appeal is accordingly allowed. The decree of the lower appellate Court is set aside and that of the Munsif restored with costs in all the Courts.