Ponnian Nadar and Others vs Thaveethu Nadar and Others

Ismail, J.—Defendants 1 to 11 in Original Suit No. 89 of 1967 on the file of the Court of the District Munsif of Padmanabhapuram, which was originally instituted as Original Suit No. 294 of 1964 on the file of the Court of the District Munsif of Kuzhithurai, who lost before the Courts below are the Appellants herein. Before me the only point that was argued in support of this second appeal was one of limitation and that question came to be argued against the background of the following facts.

A mortgage was executed under the original of exhibit A-1, dated 1st July 1054 (M.E.). That mortgage was followed by three purakadam deeds, namely, the original of exhibit A-2, dated 6th August 1066 (M.E.), the original of exhibit A-3. dated, 4th June 1081 (M.E.) and the original of exhibit A-4 dated 13th November 1084 (M.E.). Thus, the, original of exhibit A-4 of 1084 (M.E.) correspnding to 1909 was the last of the purakadams. There is no controversy as to the period of limitation for redemption of the mortgage under the original of exhibit A-1 under the Travancore Regulation VI of 1100 (M.E.) namely, the Travancore Limitation Regulation. Under article 136 of the First Schedule to that Regulation, the period of limitation for redemption of a mortgage was 50 years from, when the right to redeem or to recovery possession accrued. Over and above that, there is an additional provision in Section 20 of that Regulation. Section 20(1) of that Regulation provided:

If before the expiration of the period prescribed for the redemption of a mortgage, the mortgagee accepts from the mortgagor a puravaippu or purakadam deed creating a further charge on the mortgaged property and duly registered, the prescribed period of limitation shall be computed from the date of such puravaippu or purakadam deed.

Applying article 136 and Section 20 of that Regulation to the present case, it will follow that the original of exhibit A-4 being the last of the purakadam deeds and that having been executed and registered in 1909, the mortgagor was entitled to file a suit for redemption within a period of 50 years from the date of exhibit A-4, namely, before 1959. However, before the expiry of that period of limitation, the Parliament enacted the Part B States (Laws) Act, 1951, (Central Act III of 1951), which came into force on 1st April 1951. By that Act, several enactments were extended to Part B States repealing the corresponding laws in force in those States and one such was the extension of the Indian Limitation Act, 1908 and the repeal of the Travancore Limitation Regulation VI of 1100 (M.E.). While so extending the Indian Limitation Act, 1908 and repealing the Travancore Regulation 6 of 1100 (M.E.) the following was introduced as Section 30 to the Indian Limitation Act, 1908:

Provision for States for which the period prescribed is shorter than that prescribed by any law previously in force in a Part B State.--Notwithstanding anything herein contained any suit for which the period of limitation prescribed by this Act is shorter than the period of limitation prescribed by any law corresponding to this Act in force in a Part B State which is repealed by the Part B States (Laws) Act, 1951 (III of 1951), may be instituted within the period of two years next after the coming into force of this Act in that Part B State or within the period prescribed for such suit by such corresponding law, whichever period expires first.

In addition to this special provision made with regard to limitation, there is a general provision, applicable to all the Acts repealed and replaced, in Section 6 of Central Act III of 1951, corresponding to Section 6 of the General Clauses Act, 1897, and the said Section is as follows:

Repeals one Savings.--If immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in this Act and repealed:

Provided that the repeal shall not affect--

(a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, or incurred under any law so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed:

Provided further that, subject to the proceeding proviso, anything done or any action taken (including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, patent, permit or licence granted or registration effected) under any such law shall be deemed to have been done or taken under the corresponding provision of the Act or Ordinance as now extended to that State, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the said Act or Ordinance.

If these provisions are applied, the position will be that the period of limitation for redemption of a mortgage provided for in article 136 of the First Schedule to the Travancore Regulation VI of 1100 (M.E.), will become enlarged to 60 years as provided for in Article 148 of the First Schdule to the Indian Limitation Act, 1908. If the period of limitation is to be computed from the date of the last of the purakadams, namely, the original of exhibit A-4, naturally the suit would have been barred by limitation by 1969, that is 1909 plus 60 years. However, in the present case, the suit, as I have already pointed out, was originally instituted on the file of the Court of the District Munsif of Kuzhi-thurai in 1964 and the suit was numbered as Original Suit No. 294 of 1964. But before the suit was actually instituted, the Indian Limitation Act, 1908, had been replaced by the Limitation Act, 1963, and that came into force on 1st January 1964. This Limitation Act contains a provision similar to Section 30 introduced into the Indian Limitation Act, 1908 by the Central Act III of 1951 and that is Section 30. Section 30(a) of the Limitation Act, 1963, provided that notwithstanding anything contained in that Act any suit for which the period of limitation was shorter than the, period of limitation prescribed by the Indian Limitation Act 1908, may be instituted within a period of five years (the said period of five years was subsequently replaced by seven years by the Amending Act X of 1969) next after the commencement of that Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier. In view of the fact that the Limitation Act 1963 prescibed a period of Limitation of 30 years only for redemption of a mortgage, Section 30(a) of that Act will apply because it curtails the period of limitation of 60 years prescribed under Articles 148 of the First Schedule to the Indian Limitation Act, 1908. Even on the application of Section 30 the suit should have been instituted within five years from the commencement of the Limitation Act, 1963, or the expiry of the period of Limitation of 60 years prescribed by Articles 148 of the First Schedule to the Indian Limitation Act, 1908, which was extended to the area in question on 1st April 1951. The suit was actually instituted in 1964 and therefore with reference to Section 30 of the Limitation Act, 1963 it would be within time. That was the view taken by the Courts below in the present case and accordingly they held that the suit for redemption instituted by the Plaintiff was within time.

However, Mr. Ganapathisubramania Iyer, learned Counsel for the Appellants-Defendants 1 to 11 in the suit, contends that that will not be the consequence, and that as soon as the Central Act III of 1951 was extended to the area in question the period of limitation certainly was enlarged from 50 years but the Plaintiff cannot claim the benefit of Section 20(1) of the Travancore Regulation VI of 1100 (M.E.), because there was no corresponding provision in the Indian Limitation Act, 1908, or the Limitation Act, 1963. He repeatedly contended either you ayply the Travancore Regulation VI of 1100 (M.E.) or the Indian Limitation Act, 1908 and you cannot take the period of limitation prescribed in the Indian Limitation Act, 1908, as 60 years and at the same time take advantage of the special provision contained in Section 20(1) of the Travancore Regulation VI of 1100 (M.E,). I am unable to accept this argument for more than one reason. However, before I give my own reasons for rejecting this argument of the learned Counsel for the Appellants, I shall deal with the two decisions cited by him.

The first decision cited by the learned Counsel for the Appellants is that of the Supreme Court in Syed Yousuf Yarkhan and Others Vs. Syed Mohammed Yarkhan and Others, That dealt with the question of limitation for recovery of wakf property, and that question also arose in the context of the extension of the Indian Limitation Act, 1908, to the State of Hyderabad by virtue of the Part B State (Laws) Act, 1951 (Central Act III of 1951). Before the Indian Limitation Act, 1908 was extended to the Part B State of Hyderabad, under the law in force in Hyderabad, there was no period of limitation prescribed for filing a suit for recovery of possession of a wakf property. But after the extension of the Indian Limitation Act, 1908, Article 142 of the First Schedule to the Limitation Act, 1908, applied for recovery of wakf property also. In that context, the Supreme Court had observed as follows:

Now, the Hyderabad Limitation Act did not apply to a suit for recovery of possession of a wakf property. The result was that under the corresponding law in force in Hyderabad, there was no limitation for such a suit. In other words, the period of limitation prescribed for the suit by the corresponding law in Hyderabad was an unlimited period. Article 142 of the Indian Limitation Act, 1908 applies to a suit for recovery of possession of the wakf property. As it prescribes a shorter period of limitation for the institution of the suit, Section 30 enabled the Plaintiffs to institute the suit within a period of two years after April 1, 1951. The Part B States (Laws) Act, 1951 while extending the Indian Limitation Act, 1908, to Hyderabad thus allowed the Plaintiffs reasonable time to institute the suit for recovery of the property. The extension of the Indian Limitation Act, 1908 to Hyderabad and the consequential change in law prescribing a shorter period of limitation did not confiscate the existing cause of action and must be regarded as an alteration in the law of procedure for the enforcement of the cause of action. We must, therefore, apply the normal rule that the law of limitation applicable to the suit is the law in force at the date of the institution of the suit. The suit is, therefore, governed by the Indian Limitation Act, 1908. The Plaintiffs did not institute the suit within two years after April 1, 1951. They cannot, therefore, avail themselves of the benefit of Section 30.

I am of the opinion that this decision has no application to the facts of the present case from more than one point of view. In the first place, Section 30 introduced into the Indian Limitation Act, 1908, by the Central Act III of 1951 will be attracted only to a case where the period of limitation provided for in the Indian Limitation Act is shorter than the period of limitation provided for in the corresponding law. In the present case, as I have pointed out already, the period of limitation prescribed in the Travancore Regulation VI of 1100 (M.E.) was 50 years for redemption of a mortgage and the period of limitation prescribed in Articles 148 of the First Schedule to the Indian Limitation Act, 1908, was 60 years, which was longer than the period of limitation prescribed in the corresponding law and therefore Section 30 has no application. Apart from this, there is no dispute at all before me that the law of limitation that is applicable to a suit is that law which is in force on the date of the institution of the suit. In the present case, on the date of the institution of the suit, the law of limitation in force was the Limitation Act, 1963, which Act undoubtedly curtailed the period of limitation from 60 years provided for in the Indian Limitation Act, 1908, to 30 years but gave the litigants a period of five years from the commencement of that Act for filing a suit. In this case, within that period and as a matter of fact practically immediately after the coming into force of the Limitation Act, 1963, the suit had been instituted and therefore this decision of the Supreme Court has no application to the facts of the present case.

The next decision relied on by the learned Counsel for the Appellants is that of a Full Bench of this Court in Rajah of Pittapur v. Venkata Subba Row ILR (1913) Mad. 645. I am unable to see how this can be of any assistance whatever to the Appellants. That case dealt with a suit for recovery of rent instituted under the Estates Land Act. The Plaintiff was a minor and he instituted the suit within three years after attaining majority. If the Indian Limitation Act, 1908 applied certainly the suit was within time. However, the special provisions contained in Section 211 of the Estates Land Act, expressly excluded the application of Section 7 of the Indian Limitation Act which gave an extended period of three years to disabled persons like a minor for instituting a suit within a period of three years after the cessation of the liability. On a difference of opinion between the two of the learned Judges of this Court as to whether the suit, which the minor had a right to institute within a period of three years after attaining majority under the Indian Limitation Act, 1908, would be barred by the provisions of the Estates Land Act, simply because the special provisions of the Estates Land Act excluded the applicability of Section 7 of the Indian Limitation Act, 1908, the majority of the Full Bench held that the suit was not barred. Wallis C.J. observed:

I think that Sadasiva Avyar J., was right in following the carefully considered judgment of Benson and Sundara Ayyar JJ., in Ramakrishna Chetty v. Subbaraya Ayyar ILR Mad. 101 and that the principle to be applied is that where an Act contains provisions for the limitation of suits which take away altogether a vested right of suit without providing any equivalent remedy, then according to the approved rule of construction, the provisions must be considered to have been enacted subject to the implied exception that they were not to extend to such vested rights of suits which were to continue subject to the rules of limitation in force at the passing of the Act. This rule of construction was adopted to give effect to the presumed intention of the Legislature not to take away vested rights in this fasion,; it is recognised in Section 8 of the Madras General Clauses Act, 1891, and the provision now in question must be taken to have been enacted with reference to it.

Equally the other learned Judge who agreed with the learned Chief Justice, namely, Kumaraswami Sastriar I, stated:

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

It is a well known rule of construction that retrospective operation ought not to be given to a statute so as to take away vested rights unless that effect cannot be avoided without doing violance to the language of the enactment and that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. I need only refer to Reid v. Reid (1886) L.R. 31 Ch. D. 402 and Lauri v. Renard (1892) 3 Ch.D. 402. The same view was taken by the Privy Council in Mohamed Abdul Samad v. Kurban Hussan ILR (1903) All. 119 (P.C.) Colonial Sugar Refining Co. v. Irwing (1905) A.C. 369 Section 6, Clause (c) of the General Clauses Act and Section 8, Clause (d) of the Madras Act I of 1891 are statutory recognitions of the same rule.

The above observations from the judgment of the two of the learned Judges who constituted the majority of the Full Bench in that case are significant from two points of view. One is, even with regard to procedural law which is generally retrospective, it cannot affect the vested rights unless such consequence is sought to be brought about by express language contained in the statue or by necessary implication. Secondly, this well-known position had received statutory recognition in the provisions contained in the General Clauses Act and in particular Clause (c) of Section 6 of the General Clauses Act 1897. Clause (c) of Section 6 of the General Clauses Act 1897 will have further significance because that is identical with Clause (b) of the proviso to Section 6 of the Central Act III of 1951 itself.

In addition to the above two reported rulings, my attention was drawn to two unreported judgments of two of the learned Judges of this Court. The first is the judgment of mohan, j., in Second Appeal No. 582 of 1970 (Thomas v. Victor), dated 19th September 1975. A similar question to the one which I am now considering appears to have been argued before the learned Judge. Mr. Ganapathisubramania Iyer, who is appearing for the Appellants in the present case, also appears to have appeared in that case and put forward an argument therein as follows, as can be gathered from the judgment of the learned Judge:

Mr. Ganapathi Subramania Iyer, learned Counsel for the Appellant, strenuously contents before me that upon the execution of the Purakadam Section 20 of the Travancore Regulation VI of 1100 (M.E.) gets attracted as a result of which the limitation of 50 years will have to be computed from the date of the Purakadam. In 1951 the Part B States (Laws) Act, 1951 came into force and extended the Indian Limitation Act, 1908, to Travancore, the result of which would be that within two years since the coming into force of Part B States (Laws) Act, 1951, the suit ought to have been filed. In so far as it has not been done, the present suit for redemption is barred. In support of this submission the learned Counsel relies on Syed Yousuf Yarkhan and Others Vs. Syed Mohammed Yarkhan and Others, already referred to

On the face of it the above argument was misconceived because the reference to two year was taken from Section 30 introduced into the Indian Limitation At, 1908 by the Central Act III of 1951, and as I have pointed out already, that section will be attracted only when the period of Limitation prescribed in the Indian Limitation Act, 1908, is horter than the period of Limitation prescribed in the corresponding law which was repealed. Therefore, very rightly that argument was rejected by Mohan, J. In addition to that, Mohan, J., had dealt with the question est the basis of consolidation with reference to the provisions contained in Section 61 of the Transfer of property Act. The learned Judge pointed out:

Under these circumstances, the mortgagors ought to consolidate both the mortgages and redeem exhibits A-1 and A-2 together and piece-moal redemption was impossible, as per the law under the Transfer of Property Act that stood prior to the Amending Act 2 of 1929. This right of consolidation was not a mere right to have the advantage of an existing statue, but it was a vested right in the property. This is the dictum laid down in Nachappa Goundan Vs. Samiappa Goundan and Another, .

After making the above observations, the learned Judge also referred to Bhaskaram Moothathu v. Agnisarmaru Namboodri (1946) T.L.R. 546 and Pakavathi Neelakantan v. Ummini Pillai AIR 1952 T.C. 295 and Lola Sad Ran v. Kanhaiya Ltd 40 I.A. 74 and held that the recitals in the particular Pura kadam in that case ate of great consequence and of immensvalve in deciding the point of limitation and that the fallacy in the argument of Mr. Ganapathi Subramania Iyer was that he wanted to reckon the 50 year period of limitation from the date of the Purakadam, exhibit A-2 without reference to the recitals contained therein. Therefore, the only significance of that judgment is that the learned Judge in that case also held that the period of limitation had to be computed from the date of the Purakadam even after the extension of the Indian Limitation Act, 1908 to the areas in question.

The other unreported decision is that of Varadarajan J. in Second Appeal No. 1426 of 1972 (Parameswaran Thambi A Kanakamma Thankachi and five others dated 2nd December 1975), In that case, the learned Judge appears to have held that there was no need for consolidation and that as a matter of fact, the mortgagee could not compel the mortgagor to consolidate the various amounts outstanding on the property in question and redeem the thing as a whole. The learned Judge stated as follows:

Therefore, after the Amendment Act 20 of 1929 the mortgagee was not entitled to insist on the mortgagor redeeming the charge created under the original of exhibit A-2 before he could redeem the mortgage created under exhibit A-1. Therefore, it would follow that after the Limitation Act, 1908 had been made applicable to the area concerned by the Part ''B'' States (Laws) Act III of 1951, in the absence of any provision in the Limitation Act, 1908, corresponding to Section 20 of the Limitation Regulation VI of 1100 M.E. it was open to the mortgagor to redeem the mortgage covered by exhibit A-1 alone and it was not open to the mortgagee to insist on the redemption of the charge convered by the original of exhibit A-2 before the mortgagor could be allowed to redeem the mortgage covered by exhibit A-1. The Limitation Act, 1908, had been made applicable to the area with effect from 1st April 1951 and the mortgagor had to redeem the mortgage covered by Exhibit A-1 within sixty years from the date of its execution namely 25-6-1886, and the suit filed only in 1969 is clearly barred by Limitation, and it is not possible to agree with the learned Subordinate Judge that the mortgagor had a period of sixty two years from the date of exhibit A-2 for redemption and could file the suit within five years after the new Limitation Act, 1963, came into forcs in view of Section 30 of that Act and that the suit is in time.

The mortgage and purakadam in the cases dealt with by Mohan J., as wellas Varadarajan J., were before the amendment of the Transfer of Property Act in 1929 and still Mohan, J. relied upon the law, as it stood prior to the amendment in 1929, and held that the mortgagor had to consolidate the mortgage as well as purakadams for redeeming the mortgage and that consequently he could compute the period of limitation from the date of Purakadam. However, Varadarajan, J., took the view that after the Amendment Act 20 of 1929, the mortgagee was not entitled to insist on the mortgagor redeeming the subsequent charge, that is, purakadam in the present case, before he could redeem the mortgage and that therefore it was open to the mortgagor to redeem the mortgage alone and it was not open to the mortgagee to insist on the redemption of the charge along with the mortgage, and that hence the suit in that case was barred by limitation.

If I am to decide the present case with reference to the said doctrine of consolidation, probably I may have to adopt a different procedure. However, I am deciding this case entirely on a new point not dealt with by the two learned Judges, namely, the mortgagor had acquired a right to compute the period of limitation from the date of purakadam u/s 20(1) of the Travancore Limitation Regulation VI of 1100 M.E. at the time when the Indian Limitation Act, 1908 was extended to the area in question by Central Act III of 1951 which Act neither expressly nor by implication took away or destroyed that right.

There is a decision of a Bench of this Court which will be of great assistance in deciding the present controversy, and that is Chavithianathan Nadar Singarajan Nadar Vs. Mayhavadiyan Nadar Chandanamariyan Nadar, . The form in which the matter came beforer this Court was by means of an application to excuse the delay in filing the second appeal before this Court. As a matter of fact, the point that was made out was that there was really no delay at all. The first appeal was disposed of on 7-5-1124 M.E. on 2005-1124 M.E. the Petitioner before this Court made air application for certified copies of decree and judgment. On 22-11-1124 M.E. stamp papers were called for and on the 25th the stamp papers were furnished by the Petitioner, 7-12-1124 MM. was the date fixed for the Petitioner to take delivery of the certified copies. Meanwhile on 1-8-1124 M. E. the Petitioner filed a review application. That was pending for nearly seven yean and it was disposed of finally on 28-6-1956. On 9th July 1956 in the second appeal, it was contended that he was entitled to exclude the time during which the review application was pending, in computing the period of limitation for preferring the second appeal. For this purpose he relied on Section 12(5) of the Travancore Limitation Regulation VI of 1100 M. E. already referred to Section 12(5) of the said Regulation stated:

In computing the period of Limitation prescribed for an appeal, the time during which an application for review of judgment presented before the expiratoin of the time allowed for appeal was pending, shall also be excluded....

The argument that was advanced before this Court was that by the Central Act III of 1951 the Travancore limitation Regulation VI of 1100 M. E. was repealed and the Indian Limitation Act 1908, was extended, and there was no provision in the Indian Limitation Act, 1908, corresponding to Section 12(5) of the Travancore Limitation Regulation VI of 1100 M. E. and therefore the Appellant in the second appeal would not be entitled to exclude the period during which the review application was pending, in computing the tune for presentation of the Second Appeal. The Bench of this Court referred to Section 6 of the Central Act III of 1951 which I have already extracted and after referring to that Section stated:

The Petitioner''s contention is that when Act III of 1951 came into force, the Petitioner had acquired a right to exclude the period occupied by the review petition in computing the period for filing a second appeal and that right would not be a affected by Act III of 1951. The Petitioners Advocate also relied on Clause (d) which must be read along with Clause (b). Learned Counsel for the Respondent was really unable to meet the point. In the absence of any specific provision in Act III of 1951 in the Schedule relating to the Indian Limitation Act prescribing any time within which an appeal should be filed after the coming into force of Act III of 1951, we are of opinion that the Petitioner cannot be deprived of the right which he undoubtedly had on the date of the coming into force of Act III of 1951, of waiting till the disposal of the review petition to file the second appeal. That right has not been expressly or impliedly taken away. It remains. We therefore hold that the second appeal filed on 9th July 1956 was in time.

I am definitely of the opinion that the principle of the above decision clearly applies to the facts of this case. On 1st April 1951 when the Indian Limitation Act, 1908 was extended to the area in question and the corresponding law, namely, the Travancore Limitation Regulation VI of 1100 M.E. was repealed, the Plaintiff in the present case, that is, the mortgagor had already acquired the right to compute the period of limitation from the date of the purakadam and in the present case from the date of the teat of the parakadams, namely, 1959. There is absolutely nothing either in the Indian Limitation Act, 1908, or in the provisions contained in the Central Act in of 1951 to take away on destroy that right either expressly or impliedly. Consequently, not withstanding tin repeal of the Travancore Limitation Regulation VI of 1100 M.E. and the extension of the Indian Limitation Act 1908 to the and in question, the mortgagor had the right to compute, the period of limitation prescribed by the Indian Limitation Act from the dale of the purakadam and in the present case, from the date of the last of the purakadams, namely, exhibit A-4 of 1959. If it is so, admittedly the suit is not barred by time. Hence, I hold that the conclusion of the Courts below that the suit is not harred by limitation is correct.

The second appeal therfore fails and is dismissed. There will be no order as to costs. No leave.