R.M.P.V. Muthia Chettiar vs S.R.M.A.R. Ramasami Chettiar

Sundara Aiyar, J.—This is a suit by a landholder in the Zemindary of Sivaganga against a ryot for rent for fasli years 1315,1316 and 1317.

The principal contention raised by the defendant so far as they relate to this second appeal are:

(1) that the suit is not maintainable as pattas had not been tendered by the land-holder prior to the institution of the suit;

(2) that rent for Angami cowle land was payable only at Rs. 6 a Kurukkam and not at Rs. 16 a Kurukkam the rate claimed by the plaintiff;

(3) that the defendant was not bound to pay more than Rs. 1-14-0 for all the trees in his holding and;

(4) that plaintiff was not entitled to recover the cess known as Chittu Nottam.

Both the Lower Courts held that, according to the Estates Land Act I of 1908, which was in force at the time of the institution of the suit, tender

of patta was not essential to entitle the land-lord to maintain a suit for rent. This question has been already decided by this Court in several cases.

See Sri Raja Satrucheria Veerabhadra Raju Garu, alias Sivaskanda Raju Bahadur Garu and Another Vs. Gauta Kumari Naidu and Others, .

Kanthimathindtha Pillai v. Muthuswami Pillai (1912) M.W.N. 960 where it was held that Section 8 of Act VIII of 1865 which required the

exchange of pattas and muchilikas between the land-holder and the ryot or the tender of a patta by the land holder to the ryot as a condition

precedent to the maintenance of a suit for rent did not apply to suits instituted after Act I of 1908 came into operation-But as Mr. Govindaraghava

Aiyar earnestly desired to reargue the question., we allowed him to do so. His contentions may be briefly stated as follows :--that Section 7 of Act

VIII of 1865, which laid down that ""no suit brought and no legal proceedings taken to enforce the terms of a tenancy shall be sustainable unless

pattas and muchilikas have been exchanged as aforesaid, or unless it be proved that the party attempting to enforce the contract had tendered such

patta and muchilika as the other party was bound to accept, or unless both parties shall have agreed to dispense with pattas and muchilkas"", was

not merely a rule of procedure but affected the right of the land-holder to levy rent from his ryot; that Section 77 of the Estates Land Act, which

enacts that "" at any time after an arrear of rent has become due, the landlord may institute a suit before the Collector for the recovery of the arrear

should not be given retrospective effect so as to affect claims for rent which accrued due while Act VIII of 1865 was in force; and that non-tender

of patta before the expiration of the fasli year for which it was due put an end to the landlord''s right of action while Act VIII of 1865 was in force;

and that a right so extinguished could not be revived by the repeal of that Act and by the enactment of Act I of 1908. There can be no doubt that,

if the non-tender of patta affected the land-holder''s right to his rent under Act VIII of 1865, the appellant''s contention must succeed. The

substantive rights of parties must be decided according to the law in force at the time of the accrual of such rights.

Mr. Govindaraghava Aiyar, on the other hand, concedes that the processual law as to the enforcement of a right must be that in operation at the

time when the right is sought to be enforced. Did Section 7 of Act VIII of 1865 affect the landlord''s right to the rents? In my opinion it did not. It

merely imposed a condition which the landlord was bound to fulfil if he wished to institute a suit for its recovery or to take legal proceedings to

compel its payment. As pointed out in Sri Raja Satrucherla Veerabadra Raju Garu alias Sivaskandu Raju Bahadur Garu v. Ganta Kurmi Naidu

(1912) M.W. N. 441 the rent accrued due when it was payable irrespective of the tender of patta or the time when if was tendered. The law of

limitation would commence to operate, not from the date of the tender of patta but from the time that the rent was payable. The tender of patta

was, therefore not necessary to complete the land-holder''s right to rent against his ryot. Now what is the scope of the rule, that vested rights

cannot be taken away by a subsequent statute? It means that a statute will not be construed, 3/5 unless the language clearly requires it, so as to

impair rights acquired under existing laws or to create an obligation or duty which did not exist before or a disability in respect of transactions or

considerations already passed. A common-law or statutory substantive right would not be affected by a statute passed subsequent to its accrual

nor would the statute affect transactions which had become complete before its enactment. The validity of a contract must be judged by the law as

it stood when it was entered into. So also whether an act done by a person was lawful or tortuous or amounted to an offence or not, also the

validity or invalidity of any act done by a person. Illustrations of these different classes of cases are given in Maxwell on the ''Interpretation of

Statutes '' at pages 324 to 333. On the other hand the mode in which a right is to be enforced is determined by the law as it stands at the time. The

mode of enforcement will include all questions relating to the tribunal which is to compel the rendering of the right by the party under obligation, the

time within which the right may be enforced (subject to an exception to be presently noticed), the rules of evidence, regulating its enforce; ment

including the admissibility of documentary evidence, the pleas which it is open to the parties to an action, both plaintiff and defendant, to set up, and

the reliefs the court will or will not grant to enforce the right. All these matters are treated as relating to processual law. But in administering

processaual law understood in this broad sense, a further distinction has to be noticed, the failure to grasp which distinction sometimes leads to

confusion. Some matters coming within the law of procedure must be decided by the law as it stands at the time when the suit is instituted, while

with regard to other matters a change in the law subsequent to the institution of the suit will modify the procedure which the Court should adopt.

Thus the defences which a litigant is entitled to raise in answer to a claim made in a suit cannot be modified by a subsequent statute. The same

observation holds good with regard to anything which a party who seeks the assistance of a court should comply with as a condition precedent to

obtaining it. A plaintiff cannot be prejudiced by the defendant being allowed to set up pleas which were not open to him when the suit was

instituted. In this sense it is often said that a change in the processual law subsequent to the commencement of an action cannot change the rights

either of the plaintiff or of the defendant. The right spoken of here is not a substantive right of either party but a right relating to the enforcement of a

substantive right which would be included in the wide sense of proeessual law, that is, law relating to remedies for the enforcement of substantive

rights. But these remedial rights relating to the enforcement of substantive rights are affected by any change in the law subsequent to the accrual of

the right but before steps are taken to enforce it in a court. Sometimes a party has rights of a remedial character to enforce a substantive right

without resorting to the tribunals and authorities constituted by Government for the purpose. Thus he is entitled to abate a nuisance. If he has a right

of easement he is sometimes entitled to remove an obstruction to the enjoyment of it. Both Act VIII of 1865 and Act I of 1908 confer a remedial

right on a landlord who is not paid his rent, namely the rights to distrain the ryot''s property. If a distraint is made by a land-holder, its validity must

be determined according to the hw as it stands at the time of the distraint; for any act of an individual must be judged according to the law which

governs him when he does it. But if, before he exercises his remedial right, the law regulating the validity of the act is changed he must exercise his

right in such a manner as to be in accordance with the manner in which the law directs him to exercise it when he does so.

Applying these principles to the present case, there can be no doubt that a land-holder may institute a suit in a Revenue Court, after the coming

into force of Act I of 1908, for recovery of rent which accrued due while Act VIII of 1.865 was in force and that he could not institute it in the

ordinary civil courts, See Weldon v. Winslow (1884) 13 Q.B. 784. The Estates Land Act does not contain a provision similar to that embodied in

Section 7 of Act VIII of 1865, that a suit for rent cannot be sustained unless patta was tendered to the tenant prior to its institution. That provision

was one which related only to the enforcement of the right, as the tender of patta was not necessary to compel the land-holder''s right to rent but

only to the enforcement of it in Court or to the landlord exercising a remedial right himself. In so far as it related to the recovery of it through Court,

it undoubtedly belonged to the region of processual law. The non-performance of the condition merely furnished a defence to the action by a plea

which did not deny the landlord''s right to the rent. The object of tendering patta was merely to give notice to the tenant of what the land-holder

claimed to be the terms of the ryot''s holding the land which he was entitled to enforce. Such ''notice was not necessary if the tenant had executed a

muchilika or other instrument acknowledging the terms of the tenancy for the year. It was considered by the Legislature in the interests of the ryot

that such notice should be given before the landlord could be allowed to enforce his rights, through Court. In Coburn v. Colledge (1897) 1 Q.B.

702 a solicitor instituted an action for the recovery of the amount of a bill of costs. The suit was brought within the period of limitation if computed

from the time that the attorney delivered his bill of costs to the defendant. Section 37 of the Solicitor''s Act of 1843, provided that "" no solicitor

could commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by him until the

expiration of one month after the delivery to the party to be charged therewith of a bill of such fees, charges and disbursements. "" The Court of

appeal held that the delivery of the bill was not necessary to complete the solicitor''s right to the payment of what was due to him, but was only a

rule of procedure, and that limitation should therefore be computed from the time that he was entitled to payment, apart from the delivery of the

bill. Referring to the section of the Solicitor''s Act, Lord Esher, M.R. observed. "" It takes away no doubt the right, of the Solicitor to bring an

action directly the work is done, but it does not take away his right to payment for it which is the cause of action. The statute of limitation itself

does not affect the right to payment but only affects the procedure for enforcing it in the event of a dispute or refusal to pay. Similarly, I think,

Section 37 of the Solicitor''s Act, 1843, deals, not with the right of the Solicitor but with the procedure to enforce that right. It does not provide

that no solicitor shall have any cause of action in respect of his costs or any right to be paid till the expiration of a month from his delivering a signed

bill of costs, but merely that he shall not commence or maintain any action for the recovery of fees, charges or disbursements until then. It assumes

that he has a right to be paid the fees, charges, and disbursements, but provides that he shall not bring an action to enforce that right until certain

preliminary requirements have been satisfied. If the Solicitor has any other mode of enforcing his right than by an action, the section does not seem

to interfere with it. For instance, if he has money of the client in his hands not entrusted to him for any specific purpose, there is nothing in the

section to prevent his retaining the amount due to him out of the money. If that be the true construction of the section, it does not touch the cause of

action but only the remedy for enforcing it.

The plaintiff, in order to make out a cause of action must assert certain facts which, if traversed, he would be put to prove. It is, well known, of

course that any of those facts which is not traversed, is taken to be admitted; In former times, if he failed to assert any of those facts, his

declaration was demurrable as showing no cause of action. If he asserted those facts and they were traversed, it lay upon him to prove them. If any

of them were not traversed he need not, of course, prove them. If the plaintiff alleges the facts which if not traversed, would prima facie entitle him

to recover, then I think he makes out a cause of action. Applying that to a case like the present when the plaintiff had completed the work, under

the old course of pleading alluded to by my brother Lopes, he could have brought his action, declaring for money payable for work and labour

done at the request of the defendant; and if the defendant made no answer to that claim, he would have been entitled to recover. The defendant

could not have demurred to the plaintiff''s declaration which would have shown a perfectly good cause of action and unless the defendant set up

something to defeat the claim, the action would have been maintainable. Therefore, as soon as the Solicitor had done the work, he could have

maintained his cause of action for work and labour. The defendant might plead that no bill of costs had been delivered, but that would only be by

way of answer to a case which constituted a good cause of action."" In Rangayya Appa Row v. Bobba Sriramulu ILR 27 M. 143 the Judicial

Committeee of the Privy Council observed, with reference to Section 7 of Act VIII of 1865, that it "" was not an enabling section bat a restraining

Section"" The restraint placed upon the procedure in enforcing the right to rent was removed by the Legislature and the removal deprived the

defendant of a plea which he could set up in answer to the right to enforce, but one which would not amount to a denial of the right itself. But, as

observed in Maxwell on the '' Interpretation of Statutes'', "" no person has a vested right in any course of procedure, he has only the right of

prosecution or defence in the manner prescribed for the time being for the Court in which he sues, and if an Act of Parliament alters that mode of

procedure he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort. It takes away

no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without or with only a defective remedy.

It is a mistake to suppose that in allowing suits to be instituted u/s 77 of Act I of 1908 for rent which accrued due before the Act, without previous

tender of patta, retrospective operation is given to the Section It is merely enforced as it stands in suits instituted after it came into force. The

defendant has no vested right in a defence which was available before, but abolished by the Act. It is rather the defendant who seeks to enforce a

provision which was no longer in force. The provision must be regarded, after the repeal of Act VIII of 1865, just as if it had never existed at all, in

suits instituted after the repeal. Sureties and Anr. Assignees of the Estate and Effects of a Bankrupt v. Ellison (1829) 9 Bar. & Cress 750.

Attorney General v. Larnplough (1878) 3 Ex. D. 214. In re the Mexican and South American Company. Grise wood and Smith''s case, Depass''s

(1859) 4 D. & J. 544. In the Queen v. the Inhabitant of Denton (1882) 118 ER 287 a man was convicted, on an indictment not provided for by

the common law. The indictment was good under a statute which was in force at the time that it was laid but was repealed before judgment was

asked for. It was held that the judgment must be arrested. Lord Campbell observed "" By arresting the judgment we are not giving the statute any

retrospective operation. We allow it force only from the time when it passes and we say that if the count was bad then it cannot be acted upon

now."" It is unnecessary to consider whether this decision is in accordance with the principle that some rules relating to processual law cannot be

altered so as to aftect pending cases. But the principle enunciated is certainly applicable to all laws relating to the enforcement of substantive rights

which are repealed before the institution of an action.

Reference was made by Mr. Govindaraghava Aiyar to, In re-Joseph Suche and Company Limited (1875) 1 Ch. D. 48 but in that case the

question related to the substantive rights of creditors in bankruptcy proceedings and is not analogous to the present case. . The Colonial Sugar

Refining Company Limited, v. Iroing (1905) A.C. 300. Nanabin Abu v. Shekubin Andu ILR (1908) B. 357 and Salimamma and Another Vs.

Valli Husanabba Beari, . were cases where the law was altered after the commencement of the proceedings. It was held that the right of appeal

must be regulated by the law in force at the time when the proceedings commenced, an appeal being only a continuation of the proceedings in the

Court of First Instance. As already observed there are some rights in processual law which cannot be altered except by clear words by legistation

subsequent to the institution of the proceedings. These cases are no authority for the position, that an alteration made before the commencement of

an action will not affect anything coming within the province of processual law and not relating to the substantive right sought to be enforced.

Mr. Govindaraghava Aiyar contends that the failure to tender patta within the end of each of the fasli years in question destroyed the land-

holder''s right of action for rent. This contention cannot be accepted. No doubt the court could not enforce the right to rent in an action under Act

VIII of 1865 if the defendant raised the plea of non-tender of patta. But the defendant might or might not raise it. The failure to tender patta did not

of itself destroy the right to institute a suit. The failure plus the defendant''s insistence in the suit on a plea of its non-maintainability would together

prevent the court from giving the plaintiff a decree. If the non-tender of patta itself destroyed the right of action the court would be bound to

dismiss the suit even if the defendant did not plead it. The cases cited by the appellant''s pleader which laid down that a right of action barred under

an existing statute of limitation would not be revived by a subsequent statute are not analogous. The lapse of time by itself destroys the plaintiff''s

right to his remedy by suit, and the court is bound to dismiss the suit though the defendant may not plead limitation. Much reliance was placed for

the appellant on G, Lee. Morris Receiver of the Estate of the late Rajah of Tanjore v. Sambamurthi Rayar (1871) 6 M.H.C.R. 122. The question

there was whether a suit was maintainable after Act VIII of 1865 came into force for rent which accrued due before, the law as it stood at the time

of the accrual not requiring the tender of patta before a suit could be maintained. The Court (Holloway and Kindersley, JJ.) held that the suit was

sustainable. Holloway, J. with whom the other learned judge concurred evidently treated the tender of patta as necessary to complete the

acquisition of right to complete the landholder''s right to rent under Act XIII of 1865, for he observed, ""the law as to the acquisition of rights is that

prevailing at the period of the arising of the matters of fact which generate them. Their enforcement must be according to the rules of process at the

period of the suit. Care must however, be taken to distinguish between laws which are merely processual and such as under that fictitious

appearance are really material. To declare a certain right which would be validly created by certain matters of fact not creatable without the

addition of some other, is material and not formal law, the non-distinguishing of which has led to very great injustice."" (To call substantive law

material and processual law formal does not seem to lead to any elucidation of the nature of primary and remedial rights, but rather calculated to

create confusion). The view adopted by the learned Judge is entirely inconsistent with the later decisions of this Court, where it was clearly laid

down that the right to rent is complete without the tender of a patta. It is also inconsistent with Coburn v. Cottedge (1897) 1 Q.B. 762. The

learned Judge disagreed with the decision in Le Roux v. Brown (1852) 12 CB 801. But that case has never been dissented from in the English

Courts. On the other hand, the view laid down there was accepted in Maddison v. Alderson, (1883) 8 A.C. 488 and Rochefocould v. Boustead

(1897) 1 Ch. 126. The learned Judge further observes, "" Now to say that the right of the landlord shall not exist upon its actionable side unless

something is done which was not necessary before is to affect an acquired right by matters subsequent; and this is not processual but material law,

and no restrospective effect should be given to if. "" What the learned Judge meant by the actionable side'' of a right is not clear. Possibly he was

referring to the possibility of a right continuing to subsist though the remedial right is destroyed or affected by some circumstance. This is no doubt

the case where a right of action is destroyed by the lapse of time itself provided in the statute of limitations. But as already pointed out the lapse of

time destroys the right when the period prescribed for instituting an action expires. The learned Judge was evidently of opinion that the condition

laid down by a statute which restricts the circumstances under which a complete right may be enforced makes the right itself incomplete, This, is in

accordance neither with principle nor with the decisions either of the English or the Indian Courts. The learned Judge evidently perceived the

difficulty in sustaining the position adopted by him, because he speaks of the incompleteness of the right as attaching only to a certain side of it

which he calls the ''actionable side.'' The actual decision in the case is also inconsistent with several cases in the English Courts died in Maxwell on

the ''Interpretation of Statutes'' which laid down that a statute laying down conditions restricting the enforcement of a previously accrued right is

applicable if the action is instituted after the modification in the law. Where the law, as modified, could not reasonably be complied with after the

change, it has been held that the new law would not be taken as applicable to such cases.

It may also be observed that under Act VIII of 1865 suits for rent, lay in the ordinary civil courts, while such suits are made cognizable, in

certain cases, exclusively by a Revenue Court under Act I of 1908. The strict application of Section 7 of Act VIII of 1865 would not require the

condition of tender of patta to be enforced when the suit is in a Revenue Court.

For all these reasons, the contention that the suit is not maintainable on account of the non-tender of proper pattas for the faslies in question

cannot be supported.

The next point relates to the rate of rent for Angami cowle land. The findings of both courts on the question are concurrent. Rs. 16 per

Kurukkam was found to have been paid for a long time by the ryot. The lower courts were entitled to find that there was a contract that such rent

should be always payable. We are bound to accept the finding in second appeal.

With regard to the rent payable for trees, the District Judge has apparently misconstrued Exhibit II. That document provided a consolidated

rent of Rs. 1-14-0 for certain kinds of trees on the Shunmuga Oorani bund on Kottaikkaraipuli Mettangadu next to it, on Achukattu Varappu and

in the backyard of the ryot''s house. The Judge is no doubt right in holding that what is collectable according to the terms of Exhibit II must be

regarded as rent; but he did not advert to the effect of the document in fixing the amount payable. The plaintiff claimed Rs. 34-10-9 per year, while

the defendant contends that no more than Rs. 7-10-0 per year would be payable in any event. We must ask the District Court to submit a revised

finding on the question, what rent is payable for the trees in the defendant''s holding?

The last question for decision, is, whether the plaintiff is entitled to recover the cess called Chittu Nottam, The evidence in the case does not

show clearly what the nature of this cess is. The District Judge holds that the Head Assistant Collector should not have disallowed it. The word

''Nottam'' seems to show that the cess was levied as a consideration for testing coins. Plaintiff''s 2nd witness states that the man who collects rent is

called the ''Nottamgar'' and that there are emoluments due to him. But he adds that the Chittu Nottam is not paid to the Nottamgar. The ryot is not

bound to pay any consideration to the land-holder for testing coins; nor would he be bound to make payment to enable the landlord to collect the

rents due to him from his ryots. The cess has never been incorporated with the rent so as to become part of it. A decree was first passed against

the defendant ex parte for the rent due by him by the Head Assistant Collector, but the claim for Chittu Nottam was disallowed. This decree was

set aside by the Appellate Court at the defendant''s instance, but the plaintiff preferred no appeal against the disallowance of Chittu Nottam. We

do not think that, in these circumstances, the defendant should be held to be bound to pay the amount claimed as Ghittu Nottam.

The finding on the question of the rent for the trees will be submitted within one month from the date of receipt of this order in the lower court.

Seven days will be allowed for filing objections.

Sadasiva Aiyar, J.

I need not repeat the facts of the case as they have been fully set out by my learned brother in his judgment. The only question I intend to deal

with is whether the tender of a patta was necessary before the land-lord could recover his rent in a suit brought after the passing of the Estates

Land Act for rent accrued due before the Act. In Sri Raja Satrucheria Veerabhadra Raju Garu, alias Sivaskanda Raju Bahadur Garu and Another

Vs. Gauta Kumari Naidu and Others, , Sundara Aiyar and Spencer, J.J. held that that preliminary condition had been taken away by the Estates

Land Act even with respect to suits brought1 for previous rents. This decision has been followed in several other cases. If it were not for the long

and strennous argument advanced before us by Mr. Govindaraghava Aiyar who appeared for the appellant in this case, I would have disposed of

this question very shortly by stating that the question cannot be reopened on the principle of Stare decisis especially as suits for arrears of rent for

faslis 1315, 1316 and 1317 must hereafter be very rare, more than three years having elapsed now from the close of Fasli 1317. However, out of

deference to the arguments of the learned vakil, I shall notice them very shortly. His contention was that the decisions in Sri Raja Satrucheria

Veerabhadra Raju Garu, alias Sivaskanda Raju Bahadur Garu and Another Vs. Gauta Kumari Naidu and Others, and other cases are wrong

because they are opposed to the principle of the decision of Holloway and Kindersley, J J. in G. Lee Morris E. Receiver of the Estate of the late

Raja of Tanjore v. Sambamurthi Rayar (1871) 6 M.H.C.R. 122.. In that case, Holloway, J., held that the provision in 7 of Act VIII of 1865

requiring a tender of patta in order to enforce the landlord''s right to rent by an action in a court of law was a provision which related to ''material''

law and not to ''formal'' law. The learned judge seems to admit that a condition merely requiring tender of a putta as a condition precedent, to

enforce by action the right to rent which always existed in the landlord is prinia facie a provision relating to ''processual'' law and not to ''material''

law. But he considered that this prima facie view was wrong because the law imposing the condition had only "" the fictitious appearance"" of

processual law and that it was really material law. I am, with the greatest respect, unable to follow the reasoning of the learned judge. I think that

that condition related to formal law not merely in appearance but also, in substance and that it had not merely a fictitious appearance of formal law.

The learned Judge says that because this condition altered "" the right itself upon its actionable side"", it related to material law. I think the fallacy lies

in hiding the fact that the condition related to processual law by using the paraphrase that it related to the actionable side of a substantial right.

Supposing a person was entitled to bring a suit on a plaint stamped with Rs. 200 when the cause of action arose, but before he brought the suit on

the cause of action, the Legislature had increased the stamp to Rs. 400,; can he say that he was entitled to stamp his plaint with only Rs. 200

because his ''right on its actionable side had entitled him to bring a suit on a Rs. 200 stamp paper before the law was changed and that the new law

should not affect his said right ''on its actionable side''? Every formal or processual law which imposes new conditions on litigants or removes old

conditions from their backs does affect a right on its ""actionable side"" or a liability on its defensible side but that is no reason for not applying the

processual or formal law to actions brought after that law came into force. I am therefore unable to follow the case in G. Lee Morris Receiver of

the Estate of the late Raja of Tanjore v. Sambamurthi Rayar (1871) 6 M.H.C.R. 122, with the greatest deference to the eminent Judges who

decided it. I am fortified in this view of the law by the decision of that eminent Judge Sir T. Muthuswami Aiyar in the case in Secretary of State v.

Vira Rayan ILR (1885) M. 175. There the question arose in this way. It was assumed for the sake of argument that Regulation 2 of 1802 Section

18 prevented the Courts from enforcing a claim brought by the Government for possession of Government land after 12 years from the date of the

cause of action; the Regulation did not however enact that the right became legally extinct after the expiry of the 12 years. The Limitation Act of

1871 extended the period of limitation for suits by Government to 60 years from the date of the cause of action. There was no provision in that Act

(of 1871) similar to the provision in the later Acts 15 of 1877 etc., declaring that nothing therein contained should be deemed to revive any right to

sue barred under an earlier Limitation law. It was held that the Government which was merely restricted by Regulation 2 of 1802 from enforcing by

suit its claim after 12 years could sue after the Limitation Act of 1871 came into force within 60 years of the cause of action to enforce that claim to

land, though more than 12 years had elapsed since the date of the alleged trespass. The dictum in the above decision in Secretary of State v. Vira

Rayan ILR (1885) M. 175 was criticised by Mr. Govindaraghava Aiyar for the appellant as it was opposed to some of the observation in the

decision in Abdul Karim v. Manji Hansraj ILR (1876) B. 295. See also the case in Venkatachala Mudali v. Seshagiri Rao (1874) 7 M.H.C.R.

and Molakatalla Naganna v. Pedda Narappa (1873) 7 M.H.C.R. 288. and to the opinion of the majority of the Judges in the Full Bench case

in, In the matter of the petition of Ratansi Kaliyanji ILR (1977) B. 148. But I prefer to follow the decision in Secretary of State v. Vira Rayan ILR

(1885) M. 175 which is binding on this Bench. The case in, In the matter of the petition of Ratansi Kalianji and six others ILR (1977) B. 148 might

also be distinguished on the ground that the direct question there in dispute was whether the right of the decree-holder to detain a judgment-debtor

in prison for a certain period related to processual law or material law, two of the learned Judges holding that it related to processual law and was

affected by a later statute (which was passed during the judgment-debtor''s detention in jail) deducting the maximum term of imprisonment while

the three other learned Judges held contra. Similarly there were doubts as to whether rights of appeal and revision in pending suits related to

material"" rights or related to "" processual"" law but that matter (whatever might be the correct logical view has been set at rest by the decision of the

Privy Council in the Colonial Sugar Refining Company v. Irving (1905) A.C. 369. followed in Nanabin Abu v. Sheku bin Aridu ILR (1908) B.

337 dissenting from Vaiechand Ramji v. Nandram Daluram ILR (1907) B. 545. I do not think that it is convenient or permissible to make a

distinction between cases where the change in the processual law imposes a new or further restriction on the prosecution of a substantial claim in

the Court or merely takes away a restriction on such prosecution imposed by an older processual law. Whether the change in the processual law

favours the prosecution or the defence, it must be held to affect all actions commenced after the statute making the change comes into force unless

of course the statute itself contains saving clauses which prevent the change affecting particular actions or classes of actions. I do not think it

necessary to notice in detail the numerous cases quoted on both sides in which the provisions of various original amending and repealing statutes

like the Statute of Frauds, the statute allowing a married woman to sue in her own name without joining her husband as plaintiff, the statute

requiring solicitors to serve bills before presenting claims for costs and so on were considered. I do not say that isolated passages could not be

quoted from some of these numerons cases which passages might be held to favour the defendant''s contention in this case but the general effect of

the cases seems to me to establish the principle which I have tried to formulate. A very recent case decided by the Privy Council in Vasudeva

Mudaliar v. Sadagopan Mudaliar (1912) 23 M.L.J. 16 shows that the provision in the Limitation Act made by the new Section 31 affected even a

pending suit which had been remanded by the Privy Council with a direction that the lower Court might apply to that suit the law as to limitation

laid down by the Privy Council before Section 31 was enacted but which law so laid down by the Privy Council was materially and expressly

affected by that Section 31. I am clear that the right of a defendant to raise technical pleas as to court fees or the absence of notice of suit required

by a law or the omission to fulfil a condition imposed on plaintiff before bringing his suit to enforce a right vested in the plaintiff (vested according to

ordinary principles of jurisprudence and not a right newly created in plaintiff''s favour by the statute itself imposing the condition) the right of a

defendant to raise such technical pleas is not a material right which could not be affected by a new statute making changes in the processual law.

As regards the question of rates of rent, the question of Chittu Nottam and tree tax, I do not think I could usefully add anything to what my

learned brother has said.

In the result I concur in the order proposed by; him.

In compliance with the above order in the judgment, the District Judge of Ramnad submitted.

Findings to the following effect.

I find Es. 7-10-0 to be the correct annual rent.

This second appeal coming on for final hearing after the return of the finding of the lower appellate court upon the issue referred by this Court

for trial, the Court delivered the following

We accept the finding that the rent payable for trees is only Rs. 7-10-0 per year and not Rs. 34-10-9 a year. We have already disallowed the

claim for Chittu Nottam. The decree of the lower appellate court will be modified accordingly. The parties will pay and receive proportionate costs

throughout.