Ayyan Ammal vs Vellayammal and Others

Rajagopalan, J.—The property, a fifth share of which the plaintiff claimed, belonged to Arumugam. He effected a usufructuary mortgage

over that property in favour of one Sankaralingam on 22nd July, 1890. The rights of the mortgagee subsequently devolved on his daughter

Kalyani. After the death of Arumugam, his five sons, defendants 3, 4, 5 and 6 and Sami succeeded to his rights. The plaintiff is the wife of the

fourth defendant. Defendant 7 is the widow of Sami. On 27th July, 1906, four of Arumugam''s sons, defendants 3, 5, 6 and Sami executed Exhibit

B-1, purporting to convey the entire equity of redemption in the property to the first defendant. The first defendant redeemed the mortgage

effected by Arumugam and obtained possession of the property some time between 1906 and 1912. She has been in possession of the property

ever since. In 1920 the fourth defendant executed Exhibit A-2 in favour of his wife, the plaintiff, purporting to convey to her his fifth share in the suit

property. The first defendant is thus in the position of a redeeming co-mortgagor, and the plaintiff of a co-mortgagor who did not participate in that

redemption, that is, she is a ""non-redeeming co-mortgagor"".

The plaintiff instituted the suit, out of which this second appeal arose in 1946 for recovery of possession of a fifth share in the property on

payment of a fifth share of the mortgage amount. The main question debated in the suit was whether it was a claim for possession governed by

Article 144 of the Limitation Act, or a suit for redemption governed by Article 148. The lower appellate Court held that Article 144 applied and

dismissed the suit. The plaintiff preferred the second appeal.

Satyanarayana Rao, J., who heard the second appeal, pointed out that if Section 95 of the Transfer of Property Act as it was amended by Act

XX of 1929 was retrospective in its operation, the suit would be one for redemption governed by Article 148; if however the claim was governed

by Section 95 of the Transfer of Property Act as it stood before amendment, and if the scope of that section was correctly laid down in Sinnanan

Chetty Vs. Sivakami Ammal and Another, , Article 144 of the Limitation Act would apply. In view of the conflict of decisions particularly on the

question of the retrospective operation of the amended section, the learned Judge referred two questions for the consideration of a Full Bench:

(1) Whether Section 95 of the Transfer of Property Act is retrospective or not; and

(2) Murajalli Munia Goundan Vs. Ramasami Chetti and Others, . and Sinnanan Chetty Vs. Sivakami Ammal and Another, were rightly decided.

When that reference was heard by a Full Bench consisting of Satyanarayana Rao, J., Rajagopala Ayyangar, J. and myself, we were of the view,

that the second question should be answered in the affirmative, and that the law on the scope of Section 95 of the Transfer of Property Act as it

stood before it was amended by Act XX of 1929 was correctly laid down in Sinnanan Chetty Vs. Sivakami Ammal and Another, . The first

question, however, in our opinion, required consideration by a Fuller Bench, as it involved the question, whether P. Kanakamma and Another Vs.

B. Krishnamma and Others, . which dealt with the scope of Section 53-A of the Transfer of Property Act and Section 63 of Act XX of 1929, had

been correctly decided. So we referred to a Fuller Bench the first of the question framed by Satyanarayana Rao, J., ""whether Section 95 of the

Transfer of Property Act is retrospective or not"". That is the question now before us.

Section 95 of the Transfer of Property Act before it was amended by Act XX of 1929 read:

Where one of several mortgagors redeems the mortgaged property and obtains possession thereof he has a charge on the share of each of the

other co-mortgagors in the property for his proportion of the expenses properly incurred in so redeeming and obtaining possession.

After Section 95 of the Transfer of Property Act had been amended by Section 48 of Act XX of 1929 it read:

Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation u/s 92 against his co-mortgagors,

be entitled to add to the mortgage money recoverable from them, such proportion of the expenses properly incurred in such redemption as is

attributable to their share in the property.

Section 92 of the Transfer of Property Act, after it was amended by Section 47 of Act XX of 1929, read:

Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the

mortgage, have, so far as regards ""redemption foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems

may have against the mortgagor or any other mortgagee.

The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the

mortgagee whose mortgage he redeems.

A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee

whose mortgage has been redeemed if the mortgagor has by a registered instrument agreed that such person shall be so subrogated.

Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed

has been redeemed in full.

The amendments to the Transfer of Property Act effected by Act XX of 1029 came into force on 1st April, 1930.

Though in form the question referred to us is whether Section 95 of the Transfer of Property Act, as it now stands after the amendment in 1929,

is retrospective in its operation, the real question is whether Section 92, which statutorily enacted the rule as to subrogation, is retrospective. The

rights conferred by the amended Section 95 on a redeeming co-mortgagor are supplementary to the right of subrogation conferred on him by the

new Section 92. There are only two possibilities Either both Sections 92 and 95 of the Transfer of Property Act are retrospective or neither. In the

latter alternative the rights and liabilities of the first defendant in this suit as a redeeming co-mortgagor have to be determined by the law as it stood

before it was amended in 1929, that is, by Section 95 of the Transfer of Property Act as it stood when the first defendant redeemed the mortgage

some time after 1906. It is in that sense that I have used the expression ""retrospective operation"" with reference to the present Sections 92 and 95

of the Transfer of Property Act.

It was a well settled rule of construction of statutory provisions that the Privy Council restated in Delhi Cloth and General Mills Co., Ltd. v.

Income Tax Commissioner Delhi (1927) 53 M.L.J. 819 : 1927 L.R. 54 IndAp 421 : ILR 9 Lah. 284.

While provisions of a statute dealing merely with matters of procedure may properly unless that construction be textually inadmissible, have

retrospective effect attributed to them provisions which touch a right in existence at the passing of the stature are not to be applied retrospectively

in the absence of express enactment or necessary intendment.

They merely reaffirmed what they had laid down earlier in Colonial Sugar Refining Co v. Irwing L.R. (1905) A.C. 369. Of course even a

modification of substantive rights would have retrospective operation and affect rights in existence if the Amending Act so provides. But Sections

92 and 95 of the Transfer of Property Act, as amended in 1929, which undoubtedly do not deal merely with matters of procedure, do not

themselves expressly or by necessary implication indicate that they are to be retrospective in their operation. The argument however, on which the

retrospectivity of these provisions was rested was twofold. Firstly, it was said that on a proper construction of Section 63 of the Amending Act

XX of 1929, the legislature had expressly or by necessary implication provided for these provisions having retrospective operation. Secondly, it

was urged that the amendment was declaratory in its essential nature, and, therefore, though these sections were concerned with substantive rights,

they had to be given retrospective effect.

There has been a sharp divergence of judicial opinion on the scope and effect of Section 63 of Act XX of 1929. The Madras, Rangoon and

Nagpur High Courts took the view, that a necessary intendment of the legislature to make Section 92 and Section 53-A of the Transfer of

Property Act, among others, retrospective in their operation could not be inferred from the language of Section 63 of Act XX of 1929. The

Allahabad, Patna, Calcutta and Bombay High Courts took the contrary view. Before I deal with these cases, I should like to examine the scope of

Section 63 of Act XX of 1929 purely on its language. There is really little new to be said about Section 63, which was not discussed by one or the

other of the learned Judges who have so far had to consider the scope of Section 63, but, to the extent possible, I shall examine Section 63 freed

from the case law on that point.

Section 63 of Act XX of 1929 consists of three parts. I shall set out the section below, number each of these three parts as if they were

separate clauses, if only for convenience of reference in the rest of this judgment:

(1) Nothing in any of the following provisions of this Act, namely, Sections 3, 4, 9, 10, 15, 18, 19, 27, 30, Clause (c) of Section 31, Sections 32,

33, 34, 35, 46, 52, 55, 57, 58, 59, 61, and 62 shall be deemed in any way to affect:

(a) the terms or incidents of any transfer of property made or effected before the first day of April, 1930; (b) the validity, invalidity, effect or

consequence of anything already done or suffered before the aforesaid date; (c) any right, title, obligation or liability already acquired, accrued or

incurred before such date; or (d) any remedy or proceeding in respect of such right, title, obligation or liability;

and (2) nothing in any other provision of this Act shall render invalid or in any way affect anything already done before the first day of April, 1930,

in any proceeding pending in a Court on that date;

(3) any such remedy and any such proceeding as is herein referred to may be enforced, instituted or continued, as the case may be, as if this Act

had not been passed.

(The sections of the Transfer of Property Act which correspond to the sections enumerated above are Sections 2, 3, 15, 16, 17, 18, 53, 56,

63-A, 65-A, 67-A, 68, 69-A, 91, 102, 107, 111, 114-A, 129 and 130.)

The first clause of Section 63 enumerates 22 sections of the Amending Act. Clause 2 covers 40 sections, all the sections of the Amending Act

other than those mentioned in Clause (1). For the purpose of convenience those may be described as the enumerated sections respectively of the

Amending Act, adopting a nomenclature to be found in some of the cases in the reports. The 22 sections enumerated in Clause (1) of Section 63

fall into one group. The rest of the sections fall into the other group, that is, within the scope of Clause (2).

The language of Clause (1) of Section 63 is modelled to a considerable extent on that of Section 6 of the General Clauses Act (Central).

Though Clause (1) of Section 63 of Act XX of 1929 itself does not use the expression retrospective or retroactive it has generally been assumed

that what the legislature intended and what it achieved was that none of the 22 enumerated sections was to have any retrospective operation. What

the legislature, however, enacted in express terms with precision, and with apparent elaboration, was that nothing in any of the 22 enumerated

sections should affect (the rights of persons) in any of the contingencies specified in Sub-clauses (a) to (d) of Clause (1) of Section 63. In any of

those specified contingencies, none of the enumerated sections could have any retrospective effect. If the legislature has intended to say that

nothing in any of these enumerated sections was to have retrospective effect under any circumstances whatsoever, it could have said so. It did not

say so in such express terms, possibly on the assumption, that contingencies might arise other than those for which sub-clauses (a) to (d) of Clause

(1) provided. I venture to doubt whether the language of Clause (1) of Section 63 would bar the Courts from applying the provisions of the

enumerated sections retrospectively in contingencies other than those provided for by Sub-clauses (a) to (d), if on the application of well-settled

canons of statutory construction, any particular enumerated section has to be given retrospective operation. That Sub-clauses (a) to (d) of Clause

(1), appear fairly exhaustive does not affect the question when the problem is what is the effect of Clause (1) should a contingency arise other than

the one for Sub-clauses (a) to (d) of Clause (1) provided.

It is not even as if each of the 22 enumerated sections affects only substantive rights. Had that been the position, it may have helped to draw as

a necessary inference, that in no circumstance should any of these sections have any retrospective effect. The legislature could be presumed to

have known that, in the absence of an express enactment by the statute, the Courts would apply the ordinary rule of construction in considering the

scope of a statutory provision dealing with substantive rights.

If, however, Sub-clauses (a) to (d) of Clause (1) are to be deemed exhaustive of every conceivable contingency, no question of necessary

intendment could arise. Clause (1) with its four sub-clauses would then amount to an express enactment that the enumerated sections were not to

have any retrospective effect.

Clause (3) of Section 63, as I shall show presently, does not take us beyond Clause (1) with reference to the 22 sections enumerated in

Clause (1). So Clause (3) may not help in determining whether Clause (1) of Section 63 enacted by necessary intendment that the enumerated

sections shall not have retrospective effect in situations other than those covered by Sub-clauses (a) to (d) of Clause (1).

The main argument of the learned Counsel for the appellant was based on the separation between the enumerated and the unremunerated

sections, i.e., between Clause (1) and Clause (2) as I have described them. If the legislature selected particular sections, and enumerated them, for

denying them retrospective effect, the argument ran, this must be obviously for the purpose of rendering the other sections operate retrospectively.

On this line of reasoning it was urged that by reason of the very differentiation between the two groups, the legislature must be deemed to have

intended retrospective operation to the unenumerated sections-for if this were not the implication, there was no need for this separate classification.

Before, however, dealing with this argument, I propose to consider the language of Clause (2) since this must ultimately decide the proper

construction to be adopted.

Clause (2) is much more limited in its scope than Clause (1). With reference to the unenumerated sections, Clause (2) lays down that none of

them shall affect anything already done in a proceeding pending in a Court on 1st April, 4930. The supplementary provision in Clause (3) is that

such a proceeding could be continued as if the Amending Act had not been passed. The legislature in express terms denied retrospective operation

to any of the unenumerated sections only in the contingency specified in Clause (2). Had Clause (2) stood by itself, and there was nothing more,

could it be claimed that, when the legislature made express provision that none of the unenumerated sections should have retrospective operation in

a given contingency, the legislature by necessary intendment enacted that in every other contingency every one of the ""enumerated"" sections should

have retrospective effect. There should be no difficulty in rejecting such a contention.

Of course, if none of the unenumerated sections had dealt with substantive rights, and every one of them had dealt with only matters of

procedure or evidence, Courts would give retrospective effect to these sections except in the one contingency for which Clause (2) provides. But

that would be the result not of express enactment or enactment by necessary intendment, but of the application by Courts of the normal rules of

statutory construction. It certainly cannot be claimed that none of the unenumerated sections deal with substantive rights. Section 92, for example,

does confer on a redeeming co-mortgagor the substantive and substantial right of subrogation. It may not be necessary at this stage to refer to the

other clause of Section 92 of the Transfer of Property Act, which provides for what has been characterised by the Courts as a right of

conventional subrogation"".

In Section 63 of Act XX of 1929, the legislature classified the sections of the Amending Act into two groups, which I have labelled as the

enumerated and unenumerated groups of sections. When the legislature has classified the sections in a given Act, to define to what extent either

group of sections should not be retrospective, it is not for the Court to speculate on what basis such a classification was made by the legislature.

What the legislature has enacted the Courts must give effect to. Neither the grouping of the enumerated sections nor the grouping of other sections,

that is, the unenumerated, however, was based on the well understood difference between the law of substantive rights and that of procedure. The

classification adopted by the legislature in Section 63 was with reference to the pendency of proceedings in Court on a prescribed date, 1st April,

1930, the date on which the amendments affected by Act XX of 1929 were to come into force. Section 63, in effect, enacted that the enumerated

sections should not be given retrospective effect in any of the contingencies specified in Sub-clauses (a) to (d) of Clause (1), whether or not

proceedings were pending in a Court on 1st April, 1930. Section 63 also enacted that the unenumerated sections should not be given retrospective

effect in the contingency specified in Clause (2) with reference to proceedings pending in a Court on 1st April, 1930. A classification with such a

basis does not lead to a conclusion that by necessary intendment the legislature enacted that the unenumerated sections should have retrospective

effect in every contingency other than the one specified in Clause (2) of Section 63.

If Clause (3) of Section 63 is read distributively, as it should be, in my opinion, it should be clear that it enacts nothing that has not already been

provided for in Clauses (1) and (2) of Section 63, but that at best Clause (3) only emphasises the consequence of Clauses (1) and (2).

In Rustomji Dossabhai v. Bai Moti ILR (1940) Bom. 50 , Beaumount, C.J., observed:

... I think the final words of Sub-section (d) (what I have described for purposes of convenience in this judgment as Clause (3) of Section 63) are

merely consequential and enact positively that remedies and proceedings which have been saved by the earlier part of the section can be enforced

as if the section had not been passed.

In Tika Sao v. Hari Lall ILR (1940) Pat. 752, Fazl Ali, J., pointed out with reference to Clause (3) of Section 63:

It substantially provides that the remedy and proceeding referred to in the first part may be enforced, instituted or continued and the proceeding

referred to in the second part may be continued is if the Act had not been passed. This part is merely consequential and explains what is meant by

the provision that the remedy or proceeding referred to in the section shall not be affected by the provisions of the Act. It is in a sense redundant

because the meaning of the section will not be affected in any way of it is omitted, but instances of such tautology will be found in the General

Clauses Act and many other Acts where similar provision has been insterted to make the meaning of the preceding words absolutely clear.

Clause (3) of Section 63, it should be remembered, read:

and any such remedy and any such proceeding as is herein referred to may be enforced, instituted or continued as the case may be as if this Act

had not been passed.

The expression ""such remedy"" in Clause (3) can only refer to the remedy referred to in Sub-clause (d) of Clause (1), and that remedy has to be

correlated to ""the right, title, obligation or liability"" specified in Sub-clause (c) of Clause (1). The expression such remedy"" has thus to be correlated

to the enumerated sections in Clause (1). It could have no reference to the sections referred to in Clause (2), which I have labelled the

unenumerated sections"". The expression ""enforce"" in Clause (3) obviously refers only to remedy, that is, the remedy to which Sub-clause (d) read

with Sub-clause (c) of Clause (1) refers.

The expression ""proceedings"" occurs both in Clause (1) and Clause (2) of Section 63. Those are the proceedings ""herein referred to"" within

the meaning of Clause (3).

The proceeding referred to in Sub-clause (d) of Clause (1) has again to be correlated to the ""right, title, obligation or liability"" specified in Sub-

clause (c) of Clause (1). That is, the reference is to the 22 sections enumerated in Clause (1). With reference to these proceedings the provision in

Clause (3) is that they could be instituted after 1st April, 1930, as if the Act had not been passed: if the proceedings had been instituted before 1st

April, 1930, they could be continued as if the Act had not been passed.

Clause (2) of Section 63 refers to proceedings pending in a Court on 1st April, 1930. There can be no question of any of these proceedings

being ""instituted"" again. The only provision made by Clause (3) is for the continuance of these proceedings as if the Act had not been passed.

Clause (2), I should emphasise, only refers to the unenumerated sections, Clause (2) by itself would have barred the retrospective operation of any

of the unenumerated sections if the proceeding was pending in a Court on 1st April, 1930, i.e., till the conclusion of those proceedings. Clause (3)

only emphasises that:

Thus in effect Clause (3) of Section 63 enacts as follows: (i) Any remedy in respect of any right, title, obligation or liability acquired, accrued,

or incurred before 1st April, 1930, (which any of the 22 enumerated sections would affect) could be enforced as if Act XX of 1929 had not been

passed, (ii) Any proceeding in respect of any right, title obligation or liability acquired, accrued or incurred before 1st April, 1930 (which any of the

22 enumerated sections would affect) could be instituted after 1st April, 1930, as if the Act had not been passed. If a proceeding in respect of

such right, etc., had been instituted before 1st April, 1930, such a proceeding could be continued as if the Amending Act had not been passed; and

(iii) if any of the unenumerated sections would affect the rights of parties in a proceeding pending in a Court on 1st April, 1930, such a proceeding

could be continued unaffected by any of these provisions, that is, as if the Amending Act had not been passed.

Read that way, it should be clear that Clause (3) of Section 63 really adds nothing to what has been already enacted in Clauses (1) and (2) of

Section 63. Of Clause (3) it could well be said that it was enacted ex majore cautela. Therefore Clause (3) of Section 63 can well be left out of

account in considering the question at issue, whether Section 63 by necessary intendment enacted that the unenumerated sections should be given

retrospective effect except in the one contingency for which Clause (2) provided.

Let me now consider the effect of Clauses (1) and (2) of Section 63. I am afraid I cannot avoid a certain amount of repetition.

If a change in substantive law is expressly denied retrospective effect or if a change in procedural law is expressly made retrospective, both

would really be cases of provisions enacted ex majore cautela. Neither would by itself lead to any inference of a necessary intendment with

reference to any of the other provisions of the Act in regard to which no such express provision is made. If an Amending Act groups together

changes both in substantive and in procedural law and expressly enacts that such changes shall not have retrospective effect, that again would not

lead to an inference of any necessary intendment that all the other changes made by that Act were retrospective, regardless of the question whether

the changes were in substantive or in procedural law.

Clause (1) of Section 63, as I have endeavoured to point out earlier, in effect stated in express terms that the 22 specified (enumerated)

sections of the Amending Act should not be given retrospective effect in any of the contingencies set out with precision in Sub-clauses (a) to (d) of

Clause (1). As between these 22 sections the legislature did not differentiate between changes in substantive law and other changes including

changes in procedural law. In my opinion that by itself would not necessarily imply that the 22 enumerated sections would not be retrospective in

every other contingency also. Certainly it would but lead to an inference of necessary intendment that in every contingency other than those

specified in sub-clauses (a) to (d) of Clause (1) the 22 enumerated sections would have retrospective effect. No inference either way is possible.

If however, as I have discussed earlier, it is assumed that Sub-clauses (a) to (d) of Clause (1) provided for every conceivable contingency, the

position would only be that Clause (1) made express statutory provision, that none of the 22 enumerated sections should have any retrospective

effect. Had Section 63 contained only Clause (1) and no more, could it be said that the legislature necessarily implied that every one of the sections

of the Amending Act, and there are 40 of them other than the 22 enumerated sections, should be given retrospective effect without any regard to

the fact, that the changes effected by some of these unenumerated sections were in the law relating to substantive rights? Such a contention, as I

have already pointed out, cannot prevail. Nor has such a contention been accepted by any of the Courts that considered Section 63. At the risk of

repetition I have to point out that Clause (2) in effect enacted in express terms that the other sections of the Amending, Act, that is, the 40

unenumerated"" sections, should not be given retrospective effect in the one contingency specified in that clause. Nothing in any of these 40

sections, whether the changes were in the law relating to substantive rights or in the law of procedure, the legislature declared, should affect

anything done in any proceeding pending in a Court on 1st April, 1930. It could not be claimed on the basis of Clause (2) alone that the legislature

intended that in every other contingency these unenumerated sections should be given retrospective effect. Had Clause (2) of Section 63 stood by

itself, that is, if that was the only statutory provision the legislature had made, it certainly could not have resulted in every one of the other provisions

of the Amending Act, i.e., those I have referred to as the 22 enumerated sections of Clause (1), having retrospective effect by necessary

intendment.

Does the position change materially if Clauses (1)and (2) are considered together, as they have to be? The legislature enacted that in one set of

circumstances certain sections of the Act, specified by implication in Clause (2) of Section 63, i.e., the unenumerated sections, should have no

retrospective effect. In certain specified circumstances, that numerically they were more, and in fact they were more exhaustive than those set out in

Clause (2), may not make any difference in principle -by express provision the sections enumerated in Clause (1) did not have retrospective effect.

In my opinion, the effect of these express statutory provisions in Clauses (1) and (2) of Section 63 is only this. In the contingencies specifically

listed in either of Clauses (1) and (2), the legislature forbade retrospective effect. In every other contingency that might arise, the legislature left it to

the Court to decide with reference to each of the sections of the Amending Act, whether that section in the enumerated or in the unenumerated

group, should be given retrospective effect or not. When the need for such a decision by the Court arises, it should necessarily be, in accordance

with the well-known and well-settled principles of construction of statutory provisions. The application of these principles of construction was

specifically barred only in situations for which express provision was made either in Clause (1) or in Clause (2). Section 63 was a saving provision.

What did it save? It only ""saved"" what it expressly provided for. Nothing else was saved, not even by implication. In my opinion, on the language

employed in Section 63 of Act XX of 1929, no question of the retrospective operation of the unenumerated provisions by necessary intendment of

the legislature could arise, if the Court has to deal with a situation for which no express provision was made in any of the clauses of Section 63.

There is one other feature of Section 63 to which I can refer at this stage. If retrospective effect is to be given or denied as a result of a

statutory provision in variance with the normal rules of statutory construction, viz-, that alterations of substantive law are deemed prospective while

changes in procedure are prima facie retrospective, the language of the statutory provision should be unequivocal. Could that be claimed of the

language employed in Section 63 of Act XX of 1929? Even some of the learned Judges who held that Section 63 really concluded the question at

issue in favour of the general retrospectivity of the unenumerated provisions have expressed themselves in no uncertain terms about the language

employed by the legislature in Section 63 of Act XX of 1929. In Tika Sao v. Hari Lall ILR (1940) Pat. 752, Fazl Ali, J., pointed out with

reference to what he described as Clause (d) of Section 63, which included what I have described as Clauses (2) and (3) of Section 63, that the

clause was ""clumsily worded "". At page 797, Manohar Lall, J., who dissented from the view taken by Fazl Ali, J., and Dhavle, J., in that case,

recorded.

The difficulty-arises from the demonstrably ambiguous words used by the legislature in Section 63 of the Amending Act.

In Mahammad Hosain v. Jaimini Nath Bhattacharja ILR (1938) Cal. 607, Mukherjea, J., (as he then was) observed at page 624 with reference to

the language of Section 63:

The legislature no doubt speaks in a voice which is not very clear, but is somewhat dubious like that of the ancient oracles....

In Rustomji Dossabhai v. Bai Moti ILR (1940) Bom. 50, Beaumont, C.J., observed at page 55 that ""section 63 was not very happily worded"". In

Babu Kuhdan Lal v. Haji Sheik Faquir Baksh ILR (1938) Luck. 761, Thomas, Ag. C.J., pointed out:

The whole trouble has arisen on account of the obscure language of Clause (d) of Section 63 of the Amending Act.

I shall take two more examples from the observations of the learned Judges who took the contrary view on the scope of Section 63. In Bank of

Chettinad, Ltd. v. Mung Aye AIR 1938 Rang. 306, Roberts, C.J., observed at page 309:

I do not find the Section (section 63) easy to construe.

At page 310, he observed:

For my part I am content to reach the conclusion that Section 92 is not retrospective in its effect by reason of the lack of such clear words

contained in the Act as would be necessary to guide me to a contrary decision.

In P. Kanakamma and Another Vs. B. Krishnamma and Others, , Leach, C.J., observed at page 842-843:

It is true that the draftsmanship of Section 63 of the Transfer of Property (Amendment) Act, 1929, is open to criticism, but unless there is

something in the section, or elsewhere in the Act itself, which clearly indicates that the sections not enumerated at the beginning of the section are to

be given retrospective effect, the Court must hold that they have not this effect.

As I said, the question of necessary intendment necessarily depends upon the language of Section 63. Whatever be the difference between the

learned Judges on the scope and effect of Section 63, there seems to be a fair unanimity of opinion, that the language of Section 63 is not

altogether clear and unequivocal. If I have to rest my decision only on the language employed in Section 63, I should state that it affords a frail

basis, or really no basis at all, for any inference of a necessary intendment in favour of retrospectivity apart from what Section 63 has expressly

provided for.

The conclusion I have reached on the scope and effect of Section 63 of Act XX of 1929, on an analysis of its provisions, is in accord with the

principles laid down by the House of Lords in Gardner v. Lucas (1978) L.R. 3 A.C. 582. Though in the order of reference by Satyanarayana Rao,

J., to which I was a party, the learned Judge observed:

The decision of the House of Lords in Gardner v. Lucas (1978) L.R. 3 A.C. 582 relied on in Srinivasalu v. Damadoraswami ILR (1940) Pat. 752

does not support the inference which the learned Judges drew in that Bench decision.

On further consideration I beg leave to change my opinion, in respectful agreement with my learned brothers now. The question for decision in

Gardner v. Lucas (1978) L.R. 3 A.C. 582, was whether Section 39 of the Conveyancing (Scotland) Act, 1874, was retrospective in its operation.

Their Lordships were unanimously of the view that it had not that effect. At pages 589, 590, Lord Cairns, L.C., pointed out three classes of

sections in that Act.

No doubt there is, with regard to some of its sections, a very clear statement that they shall apply only to instruments written after the passing of the

Act; and with regard to other sections, there is an equally clear statement that those sections shall apply to things done both before and after the

passing of the Act; and there is a third class of cases, of which the 38th and 39th sections are examples, in which the Act contains no clear and

explicit statement of whether it is to be retrospective or merely to be prospective.

With reference to Section 39, which was in the third class, the Lord Chancellor observed:

But in a case of that kind your Lordships have to examine the subject-matter of the enactment of the particular section which you have to construe,

to bear in mind the effect of a construction which would make it retrospective, and to ask yourselves whether it is to be supposed that construction

was intended by the Legislature to be given to it.

The question of necessary intendment had thus to be settled only with reference to the language of Section 39 itself and not with reference to the

other provisions in the Act, some of which were expressly made not retrospective and others which were equally expressly made not

retrospective. At page 593 the Lord Chancellor observed:

... they might find that under the ambiguous words of this 39th section the instrument came again into validity. The proposition only requires to be

stated in that way to show that this is a construction which your Lordships would not arrive at unless compelled by the strongest and clearest

words of the statute. It is admitted that the words are not clear, that they are ambiguous, and if so it appears to me that these considerations to

which I have adverted would at once lead your Lordships to refuse to adopt that construction which would produce the gross injustice and the

gross anomalies to which I have referred.

At page 598 Lord Hatherley stated:

... we will turn to the sections in question. The sections in question have on their face no peculiar phraseology which would induce one to hold them

per se to be retrospective, or take them out of the general rule which Lord Cransworth lays down, that the portions of a statute which are silent in

that regard are to be taken prima facie as clearly indicating prospective intention, and prospective intention only, acting from the time the Act

comes into operation....

At page 603 are the observations of Lord Blackburn. After quoting Section 39 of the Conveyancing Act, Lord Blackburn stated:

Now these words by themselves do not certainly indicate to me very clearly upon their face whether those who passed them intended they should

be retrospective, or that they should not; so far as the words go, I think it extremely probable that of the lay members of the Legislature who

passed the Act many might think they were retrospective; but we must construe the Act according to the legal rules of construction to see whether

it expresses an intention of the Legislature that it should be retrospective.

I have set out these passages at length to answer what Fazl Ali, J., had to say on the scope of the rule in Gardner v. Lucas (1878) L.R. 3 A.C.

582 in Tika Sao v. Hari Lall ILR (1940) Pat. 752. The learned Judge set out the following passage from the speech of Lord O''Hagan in Gardner

v. Lucas (1878) L.R. 3 A.C. 582:

With such consequences staring in the face, we are required to give a retrospective meaning to this Act of Parliament; and this, I repeat, although

we have not only no express words capable of such a meaning, but we have in the Act of Parliament itself, in one of its sections, a clear declaration

that, save where otherwise expressed, it shall be of future operation; and then we have the Act pointing out in express words the circumstances in

which it was intended to be retrospective.

With all respect to Fazl Ali, J., I have to point out that was not the basis on which the other learned and noble Lords decided the issue in Gardner

v. Lucas (1878) L.R. 3 A.C. 582. They decided it on the language-""ambiguous language"" as the Lord Chancellor characterised it,-of Section 39

itself.

In Srinivasalu v. Damodaraswami AIR 1938 Mad. 779 and the Bank of Chettinad v. Maung Aye AIR 1938 Rang. 306, Venkatasubba Rao,

J., and Roberts, C.J., respectively held that Section 63 of the Act XX of 1929 should be construed with reference to the principles laid down in

Gardner v. Lucas (1878) L.R. 3 A.C. 582. I respectfully agree with these learned Judges.

The language of Section 63, which is neither clear nor unequivocal, does not lead to an inference, that by necessary intendment the legislature

enacted that the sections referred to in Clause (2), those which I have labelled the unenumerated sections, should all be given retrospective effect

except in the one contingency for which Clause (2) provided.

In Gardner v. Lucas (1878) L.R. 3 A.C. 582, the Lord Chancellor rejected the contention that the two or three month interval between the

date on which the Act of 1874 received Royal assent and the date on which it came into force should lead to an inference, that Section 39 of the

Act should be of retrospective effect and govern the rights of parties if a suit was instituted after the Act came into force-see the observations of

Lord Cairns at page 593 of the Report. Act XX of 1929 received the assent of the Governor-General-in-Council on 1st October, 1929. It came

into force on 1st April, 1930. In Tika Sao v. Hari Lall ILR (1940) Pat. 752, Fazl Ali, J., relied on the observations of Lord Campbell in Queen v.

Leeds and Broadford Railway Company (1852) 21 L.J.193, to reject a similar contention. I respectfully agree with Fazl Ali, J., that the interval

between the date on which Act XX of 1929 received assent and the date on which it came into force has no significance at all in deciding whether

the sections referred to in Clause (2) of Section 63 have any retrospective effect.

It now remains to refer to some of the cases cited before us. Much by way of comment may not be necessary at this stage in the choice

between what may be called the Allahabad and the Madras views on the scope of Section 63 of Act XX of 1929. Most of the case law on the

scope and effect of Section 63 prior to 1940 was discussed at length both by Fazl Ali., J., and by Manohar Lall, J., in Tika Sao v. Hari Lall ILR

(1940) Pat. 752. The learned Judges came to opposite conclusions on the scope of Section 63.

Tota Ram v. Ram Lal ILR (1932) All. 897, in which a Full Bench of three Judges of the Allahabad High Court held that Sections 92 and 101

of the Transfer of Property Act had retrospective effect, may be left out of account. That was really a case where Clause (2) of Section 63 of Act

XX of 1929 should have applied because a suit was pending in the Court on 1st April, 1930, as was pointed out by Sulaiman, C.J., in Hira Singh

v. Jai Singh ILR (1937) All. 880, and by Varadachariar, J., in Lakshmi Ammal v. Sankaranarayana Menon (1935) 70 M.L.J. 1 : ILR Mad. 359.

In Chhaganlal Sakharam Vs. Chunilal Jagmal, , the scope of Section 63 of Act XX of 1929 was no doubt discussed by Tyabji, J., who held

that Section 100 of the Transfer of Property Act was not of retrospective effect. But that was also really a case which fell within the scope of

Clause (2) of Section 63 as the action was pending on 1st April, 1930.

In Isap Bapuji Amiji Vs. Umarji Abhram Adam, , Wadia, J., was inclined to follow Totaram''s Case ILR (1932) All. 897 to hold that Section

92 of the Transfer of Property Act was retrospective. Alternatively the learned Judge held that, even if Section 92 was not retrospective, the

equitable principles underlying Section 92 should be applied though the action was commenced after 1st April, 1930.

In Tukaram Ganpatrao Surve Vs. Atmaram Vinayak Gondhalekar, , the learned judges held that Section 53-A of the Transfer of Property Act

was retrospective in its effect. Broomfield, J., specifically dissented from Kanji and Moolji Brothers Vs. T. Shanmugam Pillai, , and followed Tota

Ram''s case ILR (1932) All.897, on the scope of Section 63.

In Hira Singh v. Jai Singh ILR (1937) All. 880, a Full Bench of five Judges of the Allahabad High Court held that Section 92 of the Transfer of

Property Act was retrospective. The observations of Sulaiman, C.J., on the scope of Section 63 of Act XX of 1929 are at pages 898-899 of the

Report. After pointing out that the ordinary rule of interpretation of a statute is that it should not be considered to have retrospective effect so far as

substantive rights are concerned unless it expressly says so, Sulaiman, C.J., observed with reference to Section 63:

There is an express reference to certain specified sections which are not to be retrospective and there is an express reference to all the other

provisions of the Act which are not to be retrospective in a certain contingency. It seems to follow that barring that contingency the other

provisions of the Act were intended to have a retrospective effect. The reason is not far to seek. The legislature had apparently thought that these

other sections are merely explanatory in their character and declare the law which had existed prior to this amendment.... We must give effect to

the language of the Act as it stands and hold that the sections of the Transfer of Property Act not dealt with in the sections enumerated in Section

63 have a retrospective effect, at least where no action was pending, on the 1st of April, 1930.

With all respect to the learned Chief Justice, I may venture to point out that there is little basis for the assumption that all the ""other"" sections, that

is, the unenumerated sections, were merely explanatory in their character. Sections 92 and 53-A of the Transfer of Property Act as they were

enacted by Act XX of 1929 could not be said to be merely explanatory in their character.

The view of the Allahabad High Court expounded in Hira Singh v. Jai Singh ILR (1937) All. 880, was followed by Fazl Ali, J., and Dhavle, J.,

with Manohar Lall, J., dissenting, in Tika Sao v. Had Lall ILR (1940) Pat. 752. There was full discussion of the scope of Section 63 both by Fazl

Ali, J., and Manohar Lall, J. At pages 778 and 779 Fazl AH, J., summed up his views:

... in my opinion the language of Section 63 and the scheme of the Amending Act show that Section 92 and many of the other sections not

specifically included therein were intended to have retrospective operation. A few of the sections have either made only verbal changes in the old

Act or deleted some of the old provisions already covered by the new amendment and so no question of their retrospective operation really arises.

Again, with all respect, I venture to point out that the real distinction between sections like 92 and 53-A of the amended Transfer of Property Act

and the other sections in which only verbal changes in the old Act were made was not fully kept in view. They were all clubbed together in deciding

what the scope of Section 63 was.

Earlier than the Patna decision was the decision in Rustomji Dossabhai v. Bai Moti ILR (1940) Bom. 50. That was also one of the decisions

considered by the learned Judges in Tika Sao v. Hari Lall ILR (1940) Pat. 752. In Rustamji Dossabhai''s Case ILR (1940) Bom. 50., Beaumont,

C.J., held, principally with reference to Section 63 of Act XX of 1929, that Section 53-A of the Transfer of Property Act was retrospective in its

operation. The learned Chief Justice was of the view, that Section 49 of the Indian Registration Act which was also amended to supplement

Section 53-A of the Transfer of Property Act, was only passed ex abundant cautela, and the fact, that the amendment of Section 49 of the Indian

Registration Act was not made retrospective, did not have any great weight in considering whether Section 53-A of the Transfer of Property Act

was made retrospective. On this aspect of that case I find myself in respectful agreement with the criticism of Manohar Lall, J., in Tika Sao v. Hari

Lall ILR (1940) Pat. 752. The effect of the amendment of Section 49 of the Registration Act on the scope retrospective or otherwise, of Section

53-A of the Act was considered by Leach, C.J., in P. Kanakamma and Another Vs. B. Krishnamma and Others, , with whose observations also I

find myself in respectful agreement.

In Mohammad Hosain v. Jaimini Math Battacharjya ILR (1938) Cal. 607, Nasim Ali, J., held on the basis of Clause (2) of Section 63:

The necessary implication is that the other amendments would be retrospective in cases not coming within the exception. By excluding cases to

which these other amendments would not apply, the legislature was by implication indicating the cases to which they would apply.

Mukherjea, J., (as he then was) after referring to the ambiguity of the language of Section 63 expressed:

It is really the provision of Section 63 of Act XX of 1929 which, in my opinion, concludes the matter and I agree with my learned brother in

holding that Section 53-A, Transfer of Property Act, would apply to a suit instituted after April 1, 1930, even though the transaction itself was

earlier in point of time.

That view was reiterated by Mukherjea, J., in Shamsuddin Bhuya and Others Vs. On death of Haider Ali Bhuya one of his heirs Asadulla and

Others, . Hira Singh v. Jai Singh ILR (1937) All. 880, and Tika Sao v. Hari Lall ILR (1940) Pat. 752, were among the cases specifically referred

to and followed, and the learned Judge expressly dissented from the view of Varadachariar, J., in Lakshmi Amma v. Sankaranarayana Menon

(1935) 70 M.L.J. 1 : ILR 59 Mad. 359.

In Janki v. Kanhaiya Lal AIR 1936 Oudh 102, a Division Bench of the Oudh Court held that Section 53-A of the Transfer of Property Act

had no retrospective effect. That, however, was overruled by a Full Bench of three Judges in Babu Kundan Lal v. Haji Shaik Faquir Bakhsh ILR

(1938) Luck. 761 the opinion expressed in which was reaffirmed by another Full Bench in AIR 1942 449 (Oudh) . In Babu Kundan Lal v. Haji

Shaik Faquir Bakhsh ILR (1938) Luck. 761, the specific question was whether Section 92 of the Transfer of Property Act was retrospective. The

learned Judges were of the view, that all the unenumerated sections were on a par. The rule of interpretation laid down by the Allahabad High

Court in Hira Singh v. Jai Singh ILR (1937) All. 880, was followed.

The Madras High Court has consistently held that Sections 53-A, 92 and 95 of the Transfer of Property Act, which are among the

unenumerated sections"" of Section 63 of Act XX of 1929, have no retrospective effect.

With reference to Section 92 of the Transfer of Property Act in Pichaiyappa Chetti and Another Vs. Govindaraju Mudaly and Others, ,

Sundaram Chetty, J., pointed out that Section 92 had no retrospective effect.

In Kanji and Moolji Brothers Vs. T. Shanmugam Pillai, , Beasley, C.J., and Cornish, J., held that Section 53-A of the Transfer of Property

Act had no respective effect. After a brief reference to Section 63 of Act XX of 1929 Cornish, J., referred to Young v. Adams L.R. (1898) A.C.

469 and observed:

Judged by that test, the Transfer of Property (Amendment) Act (XX of 1929), in our opinion fails to disclose an intention that Section 53-A was to

have a retrospective effect.

The correctness of that view was affirmed by a Full Bench in P. Kanakamma and Another Vs. B. Krishnamma and Others, . Though the

observations of Varadachariar J. in Lakshmi Ammal v. Sankara narayana Menon (1935) 70 M.L.J. 1 : ILR 59 Mad. 359, on the question whether

Section 92 of the Transfer of Property Act had retrospective effect, were considered obiter dicta, they were approved of by Leach C.J., in P.

Kanakamma and Another Vs. B. Krishnamma and Others, . It should be remembered that on the question of the scope of Section 63 of Act XX

1929 it is now generally accepted that there is no real difference between Section 53-A and Section 92 of the Transfer of Property Act, both of

which fall into the group of the unenumerated sections of Section 63. That Section 92 of the Transfer of Property Act was not retrospective was

what Venkatasubba Rao, J., and Abdur Rahman, J., held in Srinivasulu v. Damodaraswami AIR 1938 Mad. 779, See also Puligoru Subbarama

Reddi (dead) and Another Vs. Palamkota Krishniah Chetti and Another, .

In Sriramulu v. Ramakrishnayya (1935) 70 M.L.J. 532 of the Transfer of Property Act was denied retrospective effect. To the same effect is

the judgment of one of us (Krishnaswami Nayudu, J.), in his unreported decision, S.A. No. 764 of 1950.

Among the decisions of this Court apart from the obiter dicta in Lakshmi Ammal v. Sankaranarayana Menon (1935) 70 M.L.J. 1 : ILR 59

Mad. 339, the scope of Section 63 was discussed at some length by Venkatasubba Rao, J., in Srinivasulu v. Damodaraswami AIR 1938 Mad.

779, and by Leach, C.J., in P. Kanakamma and Another Vs. B. Krishnamma and Others,

In Bank of Chettinad v. Mating Aye AIR 1938 Rang. 306, the Full Bench followed the Madras view expressed in Lakshmi Ammal v.

ankaranarayana Menon (1935) 70 M.L.J. 1 : ILR 59 Mad. 339, in preference to the Allahabad view in Hira Singh v. Jai Singh ILR (1937) All.

880 and held that Section 92 had no retrospective effect. With much of what Roberts, C.J., said I find myself in respectful agreement. Dunkley, J.,

justified the extreme contention, that, on the language of last clause of Section 63 none of the provisions of the Amending Act could be said to have

any retrospective effect. That view was criticised by Manohar Lall, J., in Tika Sao v. Hari Lall ILR (1940) Pat. 752, and I must also express my

respectful disagreement with the views of Dunkley, J., on the point.

In AIR 1934 97 (Nagpur) a Division Bench of the Nagpur High Court followed Kanji and Moolji Brothers Vs. T. Shanmugam Pillai, , and

held that Section 92 of the Transfer of Property Act had no retrospective effect.

Despite the weight of authority in favour of the view that Section 63 of Act XX of 1929 by necessary intendment makes Section 92 among

others of the sections referred to in Clause (2) of Section 63 retrospective in its operation except where suits were pending on 1st April, 1950, and

despite the highest respect I entertain for the eminent Judges who expounded that view, it is with unfeigned regret that I have to confess my inability

to accept that view as correct and to depart from the principles laid down by the Full Bench of this Court in P. Kanakamma and Another Vs. B.

Krishnamma and Others, . If I may say so with respect I find myself in agreement with much of that Manohar Lall, J. said in his dissenting

Judgment in Tika Sao v. Hari Lall ILR (1940) Pat. 752.

To sum up the discussion up to this stage; in my opinion Section 63 of Act XX of 1929 does not by necessary intendment provide for

retrospective effect being given to Section 92 and Section 95 among other sections referred to in Clause (2) of Section 63. It is independently of

Section 63 that we have to decide whether Sections 92 and 95 of the Transfer of Property Act are to have retrospective effect. Though one of the

questions we have been asked to consider is, whether P. Kanakamma and Another Vs. B. Krishnamma and Others, , was correctly decided, it is

only the correctness of the reasoning in that judgment, that Section 63 did not by itself make Section 53-A of the Transfer of Property Act

retrospective, that is really within the scope of the reference. I have already expressed my respectful agreement with the reasoning of Leach, C.J.,

who held, in my opinion rightly, that Section 63 did not have that effect. Whether independently of Section 63 of Act XX of 1929 Section 53-A of

the Transfer of Property Act should be held to be retrospective or not does not arise for consideration now.

Before considering whether there is anything in Sections 92 and 95 of the Transfer of Property Act to indicate unequivocally that the legislature

intended that they should be of retrospective effect, the other contention of the learned Counsel for the appellant remains to be considered. This

was that Sections 92 and 95 were only declaratory of the law of subrogation applicable to a redeeming co-mortgagor and his rights and liabilities

as it stood before the amendment effected by Act XX of 1929, and on that basis also retrospective effect should be given to the enacted

provisions of Sections 92 and 95. In Craies on Statute Law, 5th edition, at pages 56 and 57, the learned author stated:

For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of

any statute. Such acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to

have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act

contains a preamble, and also the word ""declared"" as well as the word ""enacted."" (See also the observations at pages 364 and 365).

In Lakshmi Ammal v. Sankaranarayana Menon (1935) 70 M.L.J. 1 : ILR 59 Mad. 359, Varadachariar, J., explained the position thus at page

366:

If the learned Judges (the reference was to Hira Singh v. Jai Singh ILR (1937) All. 880) were right in their view that the law was the same even

prior to Act XX of 1929, or that Act XX of 1929 must only be understood as having declared the previous law (with a view to set conflicting

decisions at rest) no exception could be taken to their relying on Act XX of 1929, because there will then be no question of ""retrospective

operation"" at all. If, on the other hand, Act of 1929 must be held to have changed the law prevailing prior thereto, it is difficult to agree that the

learned Judges were giving full effect to the concluding words of Section 63 of Act XX of 1929....

No doubt there was conflict of authority on the scope of Section 95 as it stood before it was amended in 1929. The position has been summed up

by Mulla in his commentary on Section 95 at pages 597-598 of his Transfer of Property Act (third edition):

The use of the word ''charge'' had also led to much confusion in the application of the law of Limitation to the suit of a mortgagor to redeem the

charge of a co-mortgagor who had redeemed a mortgage. The Allahabad High Court, except in one case where the charge holder was held to

have acquired title by adverse possession, had treated the mortgagor who had redeemed the mortgage as an assignee of the mortgagee and had

applied the sixty years'' rule under Article 148 from the date when the mortgage was redeemable (the leading case was Ashfaq Ahmad v. Wazir

Ali ILR (1889) All. 1. But the other High Courts treated the suit not as one for redemption, but for recovery of possession and applied Article

144, i.e., twelve years from the time when the chargeholder''s possession became adverse by the open assertion of an exclusive title and in the

absence of such open assertion or ouster it was said that the chargeholder''s possession was not adverse. On the other hand, Article 132 (viz. 12

years from the date of redemption) was applied to a suit by the redeeming mortgagor to enforce contribution against a co-mortgagor, the

redeeming mortgagor being regarded as an assignee of the mortgagee so that time runs from the date when the whole mortgage is paid off.

The decisions of the Patna and the Lucknow High Courts were cited as authority for this statement.

But in Sreemati Raj Kumari Debi v. Kukunda Lal (1920) 25 C.W.N. 283 the Calcutta High Court applied Article 148 to the doctrine of

subrogation, and treating the redeeming mortgagor as standing in the shoes of the mortgagee, made the due date of mortgage the terminus a quo

for limitation. In the Full Bench case of Umar Ali v. Asmat Ali (1930) 58 Cal. 1167, Rankin, C.J., said that the amendment of Section 95 made

Sreemati Kumari''s case (1920) 25 C.W.N. 283 statute law, but that the amendment had not retrospective effect.

The view that prevailed in Madras, that Section 95 of the Transfer of Property Act, before its amendment in 1929, did not confer rights of

subrogation as such on a redeeming co-mortgagor was that laid down in Murajalli Munia Goundan Vs. Ramasami Chetti and Others, , and

Sinnanan Chetty Vs. Sivakami Ammal and Another, .

Does the existence of this conflict make Sections 92 and 95 of the amended Transfer of Property Act declaratory of the law, is the question.

Act XX of 1929 does not in express terms call the amendment declaratory. It is stated to be an Amending Act. As pointed out at page 57 of

Craies on Statute Law, to give a declaratory effect to a statutory provision one should normally look for the use of the expression ""declared"" in

some portion of the Act including the preamble in addition to the word ""enacted."" In Section 92, as it has been amended by Act XX of 1929, there

should be considerable difficulty in looking upon the provision for what has been characterised as conventional subrogation, with its further

requirement of a registered instrument in writing, as merely declaratory of the law that existed before 1929. Nor can the express conferment of a

right of subrogation on a redeeming co-mortgagor be said to be merely declaratory. Rankin, C.J., rightly pointed out that the amendment of

Section 95 made the principles laid down in Sreemati Raj Kumari Debi''s case (1920) 25 C.W.N. 283 statute law; that, of course, followed the

view laid down by the Allahabad High Court in Ashfaq Ahmed''s case ILR (1889) All. 1.

This apart, I am not aware of any principle by which an Amending Act which sets at rest conflicting judicial decisions can on that one ground

be held to be declaratory and, therefore, to have retrospective effect. Further, no authority has been brought to our notice in which any of the

Courts, that have had to consider the amended Sections 92 and 95 of the Transfer of Property Act, held they were of retrospective effect on the

sole ground, that they were merely declaratory of the law that had existed prior to the amendment. The question whether if Sections 92 and 95

were declaratory, they should have retrospective effect, does not therefore really arise. In my opinion they were not declaratory in their scope.

They made substantial changes in the law of subrogation as it was understood and applied by the Courts in India, at any rate in Madras.

That leaves us with only the amended Sections 92 and 95 of the Transfer of Property Act to be considered. In considering whether they are

retrospective in their operation, I have said enough to indicate that neither expressly nor by necessary intendment does Section 92 or Section 95 or

both of them taken together provide for retrospective effect being given to the statutory right of subrogation conferred by Section 92 on a

redeeming co-mortgagor.

As I have already pointed out, the correctness of the decisions of this Court on the scope of Section 95 of the Transfer of Property Act, as it

stood before it was amended by Act XX of 1929, has not been specifically referred to us. Still reference to these cases is unavoidable, even in

answering the question specifically referred to us. The law laid down in Murajalli Munia Goundan Vs. Ramasami Chetti and Others, and Sinnanan

Chetty Vs. Sivakami Ammal and Another, , if I may say so with respect, is sound. That brings me to the consideration of one more factor, the

principle of stare decisis. Not many transactions entered into before 1st April, 1930, are likely to come up for consideration before Courts in

future. The amended Transfer of Property Act has been in force for over 25 years now. The law laid down in Sinnanan Chetty Vs. Sivakami

Ammal and Another, , has held the field in this State for about 37 years. Even if there had been compelling necessity to say that Sinnanan Chetty

Vs. Sivakami Ammal and Another, , was wrongly decided, and there is none, what I have mentioned above should make the Court pause before it

decides on grounds of logic to upset rights founded on transactions entered into before 1st April, 1930, especially when so little purpose might be

served now, 25 years after 1930.

My answer to the question referred to us, whether Section 95 of the Transfer of Property Act is retrospective or not, is that it is not

retrospective. The parties to this litigation must be governed by Section 95 of the Transfer of Property Act as it stood before it was amended in

1929.