T.KALIAMUTHI Vs FIVE GORI THAIKAL WAKF .
Bench: A.K. MATHUR,TARUN CHATTERJEE, , ,
Case number: C.A. No.-004988-004991 / 2000
Diary number: 10864 / 2000
Advocates: K. R. NAMBIAR Vs
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4988-4991 OF 2000
T. Kaliamurthi & Anr. …Appellants
Versus
Five Gori Thaikal Wakf & Ors. . .Respondents
J U D G M E N T
TARUN CHATTERJEE,J.
1. By judgment and decree dated 19th of November, 1999, the
High Court of Judicature at Madras dismissed SA Nos. 972
and 973 of 1986. Subsequent to the dismissal of the second
appeals, by an order dated 24th of April, 2000, two C.M.P.
Nos. 3200 and 3201 of 2000 filed in S.A.Nos.972 and 973 of
1996 were also rejected.
2. Feeling aggrieved, the appellants have filed the aforesaid four
appeals against the common judgment and decree dated 19th
of November, 1999 of the High Court of Judicature at
1
Madras and also against the order dated 24th of April, 2000
passed in C.M.P. Nos.3200 and 3201 of 2000. By the
aforesaid common judgment, the High Court had dismissed
three second appeals of the defendants/appellants and
affirmed the judgment of the first appellate court which had
set aside the judgment of the trial court dismissing the suit
for recovery of possession and mesne profits filed at the
instance of the plaintiffs/respondents. It may be kept on
record that another Second Appeal No.1242 of 1986 was
also dismissed by the High Court by the same judgment
passed against which no SLP has been filed in this Court
and, therefore, no reference is made to the same in this
judgment.
3. The brief facts leading to the filing of these appeals are
stated here.
4. Iynthukori Thaikkal Wakf (5 Kori Durga Wakf) (in
short “the Wakf”) had instituted two suits in the Court of
District Munsif, Vridachalam for a decree for recovery of
possession of the suit properties as fully described in the
2
plaint and for mesne profits. The Wakf/respondents
claimed in their plaint that the suit properties belonged to
them whereas the appellants before us alleged in their
written statement that the suit properties were not Wakf
properties but they were private properties of one Syed
Kasim Saheb and others. After the death of Syed Kasim
Saheb and others, their legal heirs and representatives
had sold the suit properties to the appellants. The
appellants further alleged that the suits were barred by
limitation under Article 134-B of the Limitation Act, 1908.
An additional plea was also taken by the appellants that
they had also perfected the title in respect of the suit
properties by way of adverse possession. On the basis of
the aforesaid pleadings by the parties, the trial court, by a
common judgment, held that the suit properties belonged
to the Wakf/respondents. On the question of limitation
and adverse possession, the trial court held that the suits
of the Wakf/respondents were barred by limitation and
appellants had perfected the title by adverse possession
3
and on such findings, the trial court dismissed the suits
filed by the Wakf/respondent. While dismissing the suit
on limitation, the trial court held that in view of Section 31
of the Limitation Act, 1963, the claim could not be revived
under the provisions of the Limitation Act, 1963. Feeling
aggrieved by the common judgment of the trial court,
appeals were filed before the first appellate court, which
confirmed the findings of the trial court on the question
whether the suit properties were Wakf properties or not.
Therefore, two concurrent findings of the two courts below
were arrived at on the question of the suit properties being
Wakf properties. But on the question of limitation and
adverse possession, the first appellate court had set aside
the findings of the trial court holding that the suits were
not barred by limitation under Article 96 of the Limitation
Act, 1963 and also that the appellants had failed to prove
that they had acquired title to the suit properties by way of
adverse possession. On the aforesaid findings, the first
appeals were allowed and both the suits were decreed.
4
Against the decisions of the first appellate court, the
appellants preferred three appeals in the High Court,
namely, Second Appeal Nos. 972/86, 973/86, and
1242/86. During the pendency of these second appeals,
the Wakf Act, 1995 (in short, “Wakf Act”) came into force
with effect from 1st of January, 1996. Section 107 of the
said Act provides that nothing contained in the Limitation
Act, 1963 shall apply to any suit for recovery of possession
of immovable property comprised in any Wakf or for
possession of any interest in such property. The High
Court in second appeals also affirmed the concurrent
findings of the two courts below that the suit properties
were Wakf properties. However, on the question of
limitation, the High Court by the common judgment,
which is under challenge in this Court, held that in view of
coming into force of Section 107 of the Wakf Act, the bar
of limitation no longer existed and also held that in view of
Section 112 of the Wakf Act, such provision also applied to
the pending proceedings and upon the aforesaid findings
5
as noted herein above, the appeals were dismissed. So far
as the plea of adverse possession is concerned, it was held
by the High Court in the common judgment that the same
was not available to the appellants. After the
pronouncement of the judgment in SA Nos. 972 and 973
of 1996, two applications being CMP Nos. 3200 and 3201
of 2000 were filed before the High Court for bringing on
record the legal heirs and representatives of one of the
appellants V.T. Duraiswami, who had passed away during
the pendency of the second appeals. The applications for
bringing on record the legal heirs and representatives of
the deceased, V.T.Duraiswami, one of the appellants, were
rejected by the High Court. As noted herein earlier,
against the common judgment and decree dated 19th of
November, 1999 of the High Court passed in the aforesaid
second appeals and the order dated 24th of April, 2000
passed in CMP Nos. 3200 and 3201/2000 rejecting the
applications for setting aside the abatement, Special Leave
6
Petitions, which after grant of leave, were heard by us in
presence of learned counsel for the parties.
Before the High Court, the following two questions were
raised –
(i) Whether the suit properties were originally
Wakf Properties or alternatively whether they
ceased to be Wakf properties as the
defendants/appellants and their predecessors
had perfected their title by way of adverse
possession ?
(ii) Whether the suits filed by the
Wakf/respondents were barred by limitation
and, if so, whether Section 107 of the Wakf Act
could have the effect of reviving a barred claim ?
So far as question No.1 is concerned, that is to say,
whether the suit properties were Wakf properties or not,
we find that the courts below concurrently held that the
suit properties were Wakf properties. Accordingly, we need
not dilate on question No.1 as the said findings of fact
7
were concurrently found by three courts below and
nothing has been brought before us to show that the said
findings of fact were either perverse or arbitrary. Apart
from that, the learned counsel appearing on behalf of the
appellants did not raise any serious submission
questioning the aforesaid findings of fact arrived at by the
courts below.
5. In view of our observations made herein above and in
the absence of any serious challenge to the aforesaid
findings of fact, we do not see any ground to interfere with
such concurrent findings of fact of the courts below.
6. Let us now come back to the important question that
was raised in the form of question No.2, that is to say,
whether the suits filed by the Wakf/respondents were
barred by limitation and whether the plea of adverse
possession was available to the appellants in the suit filed
by the Wakf/respondents. So far as the question of
limitation is concerned, we may reiterate, as noted herein
earlier, that the trial court on consideration of the
8
evidence and other materials on record, held that in the
facts and circumstances of the present case and on the
interpretation of Article 134-B of the Limitation Act, 1908
and Article 96 of the Limitation Act, 1963 and also relying
on several decisions of this Court, rejected the contention
of the Wakf/respondents and held that the suits were
barred by limitation under Article 134-B of the Limitation
Act, 1908. However, in appeal, the first appellate court
had taken a contrary view and held that the suits were
filed within 12 years of the appointment of the last
Muthavalli and accordingly, relying on Article 96 of the
Limitation Act, 1963, it held that the suits were not barred
by limitation. It was also held by the first appellate court
that the alienations of the Wakf properties were by the
persons who were holding them in trust and, therefore, on
its understanding of the scope of Section 10 of the
Limitation Act, 1963 held that the alienations did not meet
the legal requirements for a plea of adverse possession
against the trust. Keeping in mind the findings of the trial
9
court and the appellate courts, we may note that the High
court, in the impugned judgment, has not given its
opinion whether Article 96 of the Limitation Act, 1963
would apply or Article 134-B of the Limitation Act, 1908
would apply in the present case. Without going into this,
the High Court instead held that in view of the coming into
force of the Wakf Act, the bar of limitation no longer exists
and has held that the provision to that effect viz., Section
107 of the Wakf Act would also apply to pending
proceedings.
7. In the backdrop of these findings arrived at by the
courts below, let us now deal with the submissions made
by the learned counsel for the parties before us.
8. According to the learned counsel for the appellants,
the suits were clearly barred under the Limitation Act,
1908 and once it has been found that the suits already
stood barred under the Limitation Act, 1908, Section 107
of the Wakf Act, which came into force w.e.f. 1.1.1996,
could not have the effect of reviving the barred claim.
10
Relying on Section 6 of the General Clauses Act, 1897
the learned counsel for the appellants argued that when
Section 6(a) clearly spells out that a repeal shall not
revive anything not in force or existing at the time at
which the repeal takes effect, the barred claim could not
have been revived. He had drawn our attention to Section
112 of the Wakf Act and submitted that when Section
112 of the Act also lays down the provision similar to the
one laid down under Section 6(a) of the General Clauses
Act, the barred claim could not have been revived. The
learned counsel for the appellants further contended that
the High Court erred in merely adverting to Section 107
of the Wakf Act holding that it applied to pending
proceedings as well. On the other hand, he submitted
that the High Court ought to have examined whether
Section 107 had the effect of reviving a claim already
barred under the Limitation Act, 1908. He also
contended that the trial court was fully justified in
holding that the claim was barred under Article 134-B of
11
the Limitation Act, 1908 and that the reliance placed by
the appellate court on Article 96 of the Limitation Act,
1963 was totally wrong in view of Section 31 of the
Limitation Act, 1963. Therefore, the learned counsel for
the appellants contended that under Article 134-B of the
Limitation Act, 1908, the suits were clearly barred by
limitation and, therefore, Section 107 of the Wakf Act
could not have the effect of reviving the barred claim as it
is settled law that the right to sue is barred under the
law of limitation in force before the new provision comes
into operation and the vested right accrued thereon, the
new provision could not revive the barred claim or
alternatively shall take away the accrued vested right, if
any. In support of this contention, the learned counsel
for the appellant strongly placed reliance on Section 6(a)
of the General Clauses Act, 1897 and Section 112 of the
Wakf Act .
9. So far as the plea of adverse possession is
concerned, the learned counsel for the appellants further
12
submitted that since the suit properties were accepted by
the State Government as the individual properties of the
appellants considering them as absolute owners of the
same for which the State Government had granted
individual pattas to the appellants in respect of the suit
properties, the courts below were wrong in decreeing the
suit on the ground that the suit properties were Wakf
properties and that plea of adverse possession of the
appellants in respect of the same could not be accepted.
It was further contended that since the suit properties
were the subject matter of alienation as early as in 1927
and there had been successive alienations upto 1975, it
must be accepted that the original Inamdars and their
legal heirs had perfected the title in respect of the suit
properties by adverse possession even prior to 1927. It
was also argued by the learned counsel for the
appellants before us that the High Court went wrong in
declining to allow the application for impleadment of the
13
legal representatives of the deceased V.T.Doraiswami
when there were genuine reasons for the delay.
10. Relying on the aforesaid submissions, the learned
counsel for the appellants submitted that the judgment
of the High Court in the second appeals should be set
aside and the suits should be dismissed.
11. The submissions made by the learned counsel for
the appellants were seriously contested by the learned
counsel for the respondents. The learned counsel for the
respondents had seriously relied on the findings of all the
courts below that the suit properties were Wakf
properties. It was further argued by the learned counsel
for the respondents that the appeals had abated against
V.T. Duraiswami and Kaliammal and, therefore, the
judgment of the High Court in second appeals had
become final. According to him, the vested rights could
be taken away by the repealing act expressly or by
necessary implication. In this connection, attention was
drawn to Sections 59A and 59B of the Wakf (Tamil Nadu
14
Amendment) Act, 1982 (Act 34 of 1982) which
safeguards the right to recover property of the Wakf and
overrides the Limitation Act from 15th of August, 1947.
The learned counsel further contended that if Section
107 of the Wakf Act was not given a retrospective effect,
ambiguity and contrary results would follow. He
submitted that Section 6 of the General Clauses Act,
1897 cannot come to the aid of the appellants in the
present case because a different intention is manifested
in Sections 107 and 112 of the Wakf Act. Elaborating
this submission before us, the learned counsel for the
respondents submitted that the test as enumerated by
this court was whether the scheme of the repealing act
and its aims and objects and section abrogated or
destroyed the vested rights, if any, and not that the
repealing act made alive past actions. Accordingly, it was
submitted that the Wakf Act only kept alive the
appurtenant etc. or administrative actions in its negative
sense but destroyed that vested rights in positive terms
15
by enacting Sections 107 and 112 of the Act and by
Sections 59A and 59B of the Wakf (Tamil Nadu
Amendment Act), 1982.
The learned counsel for the respondents also
submitted the following :
1) An appeal is a continuation of a suit.
2) The court in appeal was bound to take notice of the
supervening events and the changes in law
3) All procedures in law are retrospective in operation and ;
4) Section 107 of the Wakf Act must be said to be
retrospective in operation.
12. Having heard the learned counsel for the parties
and after considering the judgments of the courts below
including the materials on record and the statutory
provisions, namely, provisions of Wakf Act, Limitation
Act, 1908 and 1963, the moot question that needs to be
decided in this appeal is whether Section 107 of the Wakf
Act is retrospective in operation or whether it can have
16
the effect of reviving barred claims. Section 107 of the
Wakf Act was made inapplicable to any suit for recovery
of Wakf properties under the Limitation Act, 1963. As
noted herein earlier, the Wakf Act was enacted at the
time when the second appeals of the appellants were
pending. Before we decide the question as posed, we may
note the relevant provisions of the different Acts which
are as follows :-
Since Section 107 of the Wakf Act is the bone of
contention of both the parties, we may first reproduce
the said section which is as under :-
“107. Act 36 of 1963 not to apply for recovery of wakf properties.--- Nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised in any wakf or for possession of any interest in such property.”
Section 6 of the General Clauses Act is also crucial
and relevant for rendering a proper decision in this
appeal and the same is reproduced as under: -
17
“6. Effect of repeal. Where this Act or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- a) revive anything not in force or existing
at the time at which the repeal takes effect, or
b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or
c) affect any right, privilege, obligation or liability acquired, accrued, or incurred under any enactment so repealed, or
d) ……..
e) ……..
Section 112 of the Wakf Act is another important
provision and is reproduced as under: -
“112. Repeal and savings. (1) The Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act.
18
(3) If immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed:
Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken.”
13. Some provisions of the Limitation Act, viz., Article
134-B of the Limitation Act, 1908, Article 96 of the
Limitation Act, 1963 and Section 31 of the Limitation
Act, 1963 are also very relevant for our purpose and
therefore the said provisions are reproduced as under: -
Article 134 -B of the Limitation Act, 1908 -
By the manager of a Hindu, Muhammadan or
Budhist religious or charitable endowment to recover
possession of immovable property comprised in the
19
endowment which has been transferred by a previous
manager for a valuable consideration---- the Limitation is
12 years----The period shall run from the death,
resignation or removal of the transferor.
Article 96 of the Limitation Act, 1963-
By the manager of a Hindu, Muhammadan or
Budhist religious or charitable endowment to recover
possession of movable or immovable property comprised
in the endowment which has been transferred by a
previous manager for a valuable consideration. ----The
period of limitation is 12 years---The period shall run
from the date of death, resignation or removal of the
transferor or the date of appointment of the plaintiff as
manager of the endowment, whichever is later.
Section 31 of the Limitation Act, 1963-
“31. Provision as to barred or pending suits, etc. –Nothing in this Act shall,
a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 expired before the commencement of this Act; or
20
b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.”
14. Although we have already briefly noted the findings
of the courts below, we feel it proper to undertake a more
extensive examination.
The trial court, while dismissing the suits for
recovery of possession and mesne profits arrived at the
following findings :-
“1.Since Syed Nabi and Syed Mahdoom had sold the suit
properties by virtue of Ex. B.13, B.16, B.6 and B.42
dated 2.4.1927, 3.4.1927, 27.4.1927 and since this case
was not filed within 12 years after their death, the suit
was barred by limitation.
2.The argument that the sale deeds were executed by the
then muthavallis not only for self but also on behalf of
their minor children viz., Syed Kasim, Syed Kulu and
Syed Tipu and since the case was filed within 12 years of
21
the death of such children, the suit was not barred by
limitation but could still not be accepted because it could
neither be assumed nor was it pointed out by the
plaintiffs that these children were also muthavallis with
their fathers.
3. The argument that after the death of the muthavalli
in 1922, no muthavalli was appointed till 12.6.1966 on
which date the plaintiff was appointed as the muthavalli
and the suit was filed within 12 years of such
appointment and since the High Court in a decision had
stated that a case would not be affected by limitation if
no muthavalli was appointed in place of the former
muthavalli, these suits would not be barred by
limitation, could not also be accepted.
4. It was evident from the exhibits that the defendant
purchased the suit properties in the years 1927 and
1930 respectively and paid the kist etc. to some who
enjoyed that property absolutely. Since the suit was
22
barred by limitation and the defendants and their
forefathers enjoyed the same for more than 12 years, the
plea of adverse possession had to be accepted.”
15. In contradistinction to the above findings of the trial
court, the first appellate court, while decreeing the suits,
arrived at the following findings: -
1. The judgment in C.V.Purushotham vs. Chinna
Jeevangar Mutt Tirupati [AIR 1975 AP 153] could not
be relied upon because it was delivered by a different
High Court and reliance had to be placed in the case of
The Special Officer for Wakfs, Madras Vs.
Subramanyam & Ors. [1976 Vol.89 Law Weekly 467]
and S.A. 800/72 and S.A. 452/72 which stated that
suits could be filed within 12 years from the date of
appointment of Muthavalli.
2. The Public Property (Extension of the Limitation)
Act 1959 had extended the time limit in cases like this so
that these cases could be filed until 31.12.1970 if the
transfers were made between 14.8.1947 and 7.5.1954.
23
3. As per section 31 of the Limitation Act, 1963, it was
evident that if the plaintiff’s right had not been affected,
he could file the suit. It had been stated that the expiry
date which was made like that under the Limitation Act,
1908 could not be renewed as per the new act and that if
the time limit had been reduced as per the Limitation
Act, 1963, it would not be applicable to the pending
suits. The recitals found in Article 96 of the Limitation
Act, 1963 had to follow absolutely and straining the
language would not be permissible since it would cause
hardship to others later. Therefore under Article 96 of
the Limitation Act, 1963, since the suit had been filed
within 12 years from the date of appointment of
muthavalli, the suit was not barred by limitation.
4. No right of adverse possession existed because the suit
properties were wakf properties and, therefore, the
Inamdars were trustees of the same.
24
5. Even if the defendants/appellants had been in possession
of the properties and paying patta for many years or
transferred the patta in their own name, they could not get
the right of adverse possession in view of Section 10 of the
Limitation Act, 1963.
16. The High Court, while affirming the decisions of the
first appellate court, except the finding no. 5, arrived at
the following findings: -
1. Section 112 of the Wakf Act shows that the provisions of
the Act were intended to apply to pending proceedings also
because under Section 112, any action taken under the
repealed act would be deemed to have been done or taken
under the corresponding provisions of the present act.
2. Under Section 6 of the General clauses act, the repeal of an
enactment can not affect any right, privilege, obligation or
liability acquired or incurred under the repealed enactment,
but this provision can not be resorted to if a different
intention appeared and therefore, Section 6 could not be
25
applied to every repealed provision or enactment regardless
of the intention of the legislature and the language used in
the repealing provision, the object of the repeal and the
existence of a savings clause.
3. By enacting Section 107, the intention to destroy the plea of
limitation was made very clear. Reliance in this regard was
placed on the observations made in State of Punjab Vs.
Mohar Singh Pratap Singh (AIR 1955 SC 84).
4. In procedural matters, there was no vested right and hence
any amendment to the procedural matters would apply to
pending proceedings.
5. In view of the principles laid down in various authorities
and considering the objects behind the Wakf Act, Section
107 would apply to pending proceedings also for the
following reasons:
(a) Section 2 of the act holds that the act shall apply to
all Wakfs created either before or after the
commencement of the act.
26
b) A separate tribunal is constituted for determining
disputes regarding Wakfs under Section 83.
c) The jurisdiction of civil courts are barred under section 85
of the act, in respect of disputes determinable by the
tribunal.
d) Section 112(2) specifically mandates that anything done or
action taken thereon shall be deemed to be taken under the
corresponding provision of the act. In this context, the
expression, ‘anything done or any action taken in the
exercise of the powers’ had been held not to mean or
include an act done by a person in contravention of the
provisions of the act but as intended only to keep alive the
official actions, rules and notifications issued and done in
the exercise of the powers conferred under the repealed
provisions vide judgment of this Court in State of Punjab
vs. Mohar Singh Pratap Singh’s case (supra). Therefore,
in the absence of a specific provision expressly saving or
protecting the pending legal proceedings, it would be
27
incumbent on the courts to give full effect to the provisions
of the act.
e) The act, being a welfare legislation, passed with the
intention of protecting trust properties, ought to be
considered in a manner consistent with upholding the said
objective. The objective of the legislature was to destroy the
rights of trespassers and imperfect the alienees claiming
adverse title against the trust properties and as such, no
distinction can be made between the pending proceedings
and proceedings to be commenced afresh. The various
provisions of the Act are self contained code intended to
affect pending proceedings also.
f) In the suits filed by the occupants or the wakfs prior to the
coming into force of the act, the wakfs will not be entitled to
raise the defence under Section 107 whereas any suits filed
or to be filed belatedly after coming into force of the Act, the
wakf would be entitled to raise the said defence and the
occupants would be deprived of their right to raise the plea
28
of adverse possession. The legislature could not have
intended such a fortuitous circumstances to be the
determinative factor to decide the rights of parties.
g) It is also possible that in a pending suit, the wakf
withdraws the suit with liberty to file it afresh on the same
cause of action and thereby in the fresh suit, confer upon
itself the advantages of Section 107 of the Act. Therefore,
the interpretation to be placed should be purposeful
meaningful and reasonable not giving rise to anomalies and
unintended situations.
h) The issue of limitation in reference to disputes between the
parties under the Wakfs Act, 1954 is also dependant upon
a consideration of the Public Works(Extension of Limitation)
Act, Central Act 29 of 1959 and the subsequent Wakf
(Tamil Nadu Amendment) Act, 1982 in and by which
Section 59-A and 59-B were inserted in the Central Act of
1954. As a result of Section 112(3) of the Wakf Act, all the
State Acts corresponding to the present act stand repealed
29
which would add to the complexity of interpreting the rights
of the parties, if no retrospective effect is given.
17. The decision of the appellate court was based on an
erroneous application under Section 10 of the Limitation
Act, 1963 which was not applicable or relevant to the
issues involved in the case and therefore to that extent,
the finding of first appellate court was liable to be set
aside.
18. We have already noted the conclusions of the
findings arrived at by the three courts below including
the High Court, as noted herein earlier. From the
findings arrived at by the High Court, it is clear that in
view of the coming into force of the Wakf Act, the said Act
did not advert to the question of applicability of the
Limitation Act, 1908 or the Limitation Act, 1963 on a
peculiar facts of this case because according to the High
Court, the question of limitation ceased to exist after
Section 107 of the Act as it applied to pending
30
proceedings also. As noted herein earlier, the High Court
did not decide whether the suits were barred by
Limitation. However, in the present case, it would be
expedient that before we determine whether or not
Section 107 applies to pending proceedings also thereby
making the bar of limitation non est, we should decide
whether Article 96 of the Limitation Act, 1963 would
apply or Article 134B of the Limitation Act, 1908 would
apply in order to ascertain whether the suits actually
stood barred by limitation. It was the findings of the first
appellate court that the suits were filed within the
limitation period as prescribed under Article 96 of the
First Schedule to the Limitation Act, 1963 whereas the
Trial Court had held that the suits were barred by
limitation in view of Article 134B of the Limitation Act,
1908.
19. From a careful consideration of the above aspect of
the matter, in our view, the first appellate court was not
justified in holding that the suits were filed within the
31
period of limitation as prescribed under Article 96 of the
Limitation Act, 1963. In our view, the view taken by the
trial court was the correct one and Article 134B of the
Limitation Act, 1908 would apply. We have carefully
noted two articles viz. Article 96 of the Limitation Act,
1963 and Article 134B of the Limitation Act, 1908 and
we find that they are different from each other in so far
as while under the 1908 Act, 12 years was to run from
the death, resignation or removal of the transferor, under
the 1963 Act, the said period of 12 years was to run from
the date of death, resignation or removal of the transferor
or the date of appointment of the plaintiff as manager of
the endowment, whichever was later. Section 31 of the
Limitation Act, 1963 provides that nothing in the
Limitation Act, 1963 shall enable any suit, appeal or
application to be instituted, provided or made, for which
the period of limitation prescribed by the Limitation Act,
1908 expired before the commencement of this Act.
Section 31 of the 1963 Act assumes great importance
32
which was completely overlooked by the first appellate
court. Admittedly, in the present case, the suits were
filed long after the death of the Muthavalli and the suit
properties were transferred as far back as in 1927,
therefore, the suits were barred under the Limitation Act,
1908. In other words, in the present case, the period of
limitation prescribed under the 1908 Act had already
expired before the commencement of the 1963 Act and,
therefore, in view of the clear mandate of Section 31 of
the Limitation Act, 1963, suits could not have been
instituted by taking the plea that the same was within
the limitation under the 1963 Act.
20. Such being the view, we have already expressed on
the question of limitation, let us now examine whether
Section 107 of the Wakf Act can have the effect of
reviving a barred claim.
21. The Limitation Act, 1908 was amended on the basis
of the third report of the Law Commission and Limitation
Act 36 of 1963 was enacted. The Wakf Act, 1954 as
33
originally enacted did not touch the question of
limitation. Suits to recover immovable properties
comprised in a Wakf were governed by Articles 134A and
134B of the Limitation Act, 1908 inserted by Act I of
1929 and the residuary Articles 142 and 144 of the said
Act. Articles 94 and 96 of the Limitation Act, 1963
correspond to Articles 134A and 134B of the Limitation
Act, 1908, while Articles 64 and 65 of the Limitation Act,
1963 correspond to Articles 142 and 144 of the
Limitation Act, 1908. The corresponding old law was
Section 66G of the Wakf Act, 1954 inserted by the
Amendment Act 69 of 1984.
22. Section 107 lays down that nothing contained in
the Limitation Act, 1963 shall apply to any suit for
possession of immovable property comprised in any Wakf
or for possession of any interest in such property. Thus it
can be said that this section virtually repeals the
Limitation Act, 1963 so far as the Wakf properties are
concerned. Therefore, it can be concluded without any
34
hesitation in mind that there is now no bar of limitation
for recovery of possession of any immovable property
comprised in a Wakf or any interest therein. In this
background, let us now see whether this section has any
retrospective effect. It is well settled that no statute shall
be construed to have a retrospective operation until its
language is such that would require such conclusion.
The exception to this rule is enactments dealing with
procedure. This would mean that the law of limitation,
being a procedural law, is retrospective in operation in
the sense that it will also apply to proceedings pending at
the time of the enactment as also to proceedings
commenced thereafter, notwithstanding that the cause of
action may have arisen before the new provisions came
into force. However, it must be noted that there is an
important exception to this rule also. Where the right of
suit is barred under the law of limitation in force before
the new provision came into operation and a vested right
has accrued to another, the new provision cannot revive
35
the barred right or take away the accrued vested right. At
this juncture, we may again note Section 6 of the General
Clauses Act, as reproduced herein earlier. Section 6 of
the General Clauses Act clearly provides that unless a
different intention appears, the repeal shall not revive
anything not in force or existing at the time at which the
repeal takes effect, or affects the previous operation of
any enactment so repealed or anything duly done or
suffered thereunder, or affect any right, privilege,
obligation or liability acquired, accrued, or incurred
under any enactment so repealed.
23. From the above, it is clear that the right of action,
which is barred by limitation at the time when the new
act comes into force, cannot be revived by the change in
the law subsequently. In Ram Murthi & Ors. Vs. Puran
Singh S/o Attra Singh & Anr.[AIR 1963 Punjab 393], it
has been held that Section 107 renders the Limitation
Act, 1963 inapplicable to suits for possession of
immovable properties comprised in any Wakf or any
36
interest therein but the right of a person to institute such
a suit which is already barred at the commencement of
this Act can not revive. It was further held that his title is
extinguished and a good title is acquired by the person in
possession and that where the title of the true owner is
extinguished in favour of the wrong doer, it is not
revived by that person again getting into possession.
There is no remitter to the old title.
24. Let us also see Section 112 of the Wakf Act dealing
with Repeal and Savings. Sub-Section (1) repeals Wakf
Act 1954 and the Wakf Amendment Act 1984. Sub-
Section (2) provides that notwithstanding such repeal,
anything done or any action taken under the said acts
shall be deemed to have been done or taken under the
corresponding provisions of this Act. In the present case,
there is no specific provision which stipulates that
Section 107 has any retrospective effect. If we look at
Section 112, it is clear that Sub-Section (2) is the saving
clause and provides validity to the actions taken under
37
the repealed act. As noted hereinearlier, the High Court
has proceeded on the assumption that a reading of
Section 112 of the act leads to the conclusion that the
provisions of the act are intended to apply to pending
proceedings also. With regard to Section 6 of the General
Clauses Act, it has observed that although it is true that
under that section, the repeal of an enactment will not
affect any right, privilege, obligation or liability acquired
or incurred under the repealed enactment, but this
provision cannot be resorted to if a different intention
appears and therefore, Section 6 cannot be applied to
every repealed provision or enactment regardless of the
intention of the legislature and the language used in the
repealing provision, the object of the repeal and the
existence of a savings clause. We agree with the
observations of the High Court with regard to Section 6
of the General Clauses Act, but we are afraid, we are not
inclined to accept the reasoning of the High Court that
Section 112 shows that the Act had a retrospective effect.
38
Section 112 (2) of the Act is a saving clause and saves
the actions already done or taken under the repealed
enactment. This cannot lead to the conclusion that the
Act has been given a retrospective effect. Rather, if seen
properly, this saving clause in the absence of any specific
provision providing retrospective effect to the Act,
reinforces the suggestion that Act has no retrospective
effect. This is because it saves actions already taken
under the repealed enactment, i.e., it provides that the
new provisions will not affect the validity of the actions
already taken or in other words, it says that there will
not be a retrospective effect. We do not mean to suggest
that from a saving clause, the retrospectivity or no
retrospectivity can be judged but we are of the view that
the reliance placed by the High Court on Section 112,
which is a saving clause, to hold that the act has a
retrospective effect is not proper. In our view, Section
112 is in conformity with Section 6 of the Act which also
provides that a repeal shall not affect any right, privilege,
39
obligation or liability acquired or incurred under the
repealed enactment unless a contrary intention appears.
Thus under Section 6 of the General Clauses Act and
Section 112 of the Wakf Act, prior operation of the
repealed enactment or the legal proceedings or remedies
instituted, continued or enforced etc. are saved. Thus on
this ground, we are of the opinion that the High Court
was not justified in relying on Section 112 of the Wakf
Act to hold that the act has retrospective effect. The High
Court has relied on certain cases and we would advert to
them in the later part of this judgment while answering
the applicability of Section 6 to the present case in
further detail.
25. There is another aspect of the matter. The learned
counsel for the respondents has contended that an
appeal is only a continuation of the suit and the High
Court was bound to consider any change in law affecting
the question involved in the appeal. It was also argued
that Section 107 is retrospective in operation because
40
although there are no express words in the amended
statute that the new provision will apply to the pending
proceedings also, the legislature clearly intended that
even pending proceedings should be affected by such
amendment. We are not inclined to accept this
submission. It is an admitted position that there is no
express provision provided for retrospective effect and
Section 112 clearly saves actions done under the
repealed enactment. Therefore, we are not inclined to
accept the first reasoning given by the High Court to hold
that Section 107 is retrospective in operation.
26. Let us now look at the other ground taken by the
High Court to hold that Section 107 has a retrospective
effect. The High Court has held that it is a settled
proposition of law that in procedural matters, there is no
vested right and hence any amendment to the procedural
matters would apply to pending proceedings also. The
learned counsel for the respondent relied in the case of
C.Beepathuma & Ors. vs. Velasari
41
Shankaranarayana Kadambolithaya & Ors. [AIR
1965 SC 241] in support of his submission that law of
limitation was only a procedural law and the provisions
existing as on the date of the suit should be applied.
Similarly, in Mst.Rafiquennessa vs. Lal Bahadur
Chetri (since deceased) and his LRs. & Ors. [AIR
1964 SC 1511], it was held that where vested rights are
affected by any statutory provision, the said provision
should normally be construed as prospective unless the
provisions related to a procedural matter. In Mohd. Idris
& Ors. vs. Sat Narain & Ors. [AIR 1966 SC 1499], it
was held that the law affecting procedure was also
retrospective. Similarly in Qudratullah Vs. Municipal
Board, [1974 (1)SCC 202] it was held in respect of a
provision that even if Section 6 of the General Clauses
Act could be held as applicable, the provision was only
procedural and hence applicable to pending proceedings.
The ratios of the above authorities undoubtedly lay down
the correct position of law. Before we express any opinion
42
on the above argument of the learned counsel for the
respondents, the ensuing discussion on some of the
other aspects is very important.
27. Section 107 provides that nothing in the Limitation
Act, 1963 would apply to any suit for possession of
immovable property, comprised in any Wakf or for any
interest in such property. Therefore, for the application of
Section 107, on 1st of January, 1996, the property must
be comprised in the Wakf or the Wakf must have some
interest in such properties. If however, the right to
property stands extinguished, then Section 107 cannot
apply. In the present case, any right which the Wakf had
over the property stood extinguished under the
Limitation Act, 1908. A similar question came up for
consideration of this court in Yeshwantrao Laxmanrao
Ghatge and Anr. Vs. Baburao Bala Yadav (Dead) By
Lrs. [(1978) 1 SCC 669] wherein this court in paragraph
5 observed as under:-
“In our judgment, there is no substance in any of the points urged on behalf of the
43
appellants. The possession of the purchasers was adverse in respect of all the properties at 1A to 1D and 1F to 1H from the very beginning. By such adverse possession, those who had come in possession of those properties had acquired an indefeasible title under the Indian Limitation Act, 1908. It is not necessary to decide in this case as to which of the articles in the first schedule of the said Limitation Act applied to this case. Whether it was Articles 134, 134A, 134B, 142 or 144 the claim had become barred long, long before the year 1955. The effect of Section 28 of the Limitation Act was that the right to the property was extinguished resulting in conferment of a title by adverse possession on the person in possession of the concerned properties. It is well known that the effect of Section 28 of the Limitation Act is not only to bar the remedy but also extinguish the right. The right to the property itself was dead and gone. It could not be revived by a provision like the one contained in Section 52A of the Act.
28. In the present case, as noted herein earlier, the trial
court had held that the suits were barred under Article
134B of the Limitation Act, 1908 and, therefore, since
the suits were barred under the 1908 Act, in view of
Section 31 of the Limitation Act, 1963, Article 96 of the
44
1963 Act could not be applied. Section 31 was
overlooked by the first appellate court. Therefore, in our
view, when the right stood extinguished, Section 107
cannot have the effect of reviving the extinguished
right/claim. This principle has also been followed in
Karnataka Steel & Wire Products and others Vs.
Kohinoor Rolling Shutters & Engg. Works and
others (2003) 1 SCC 76.
29. The learned counsel for the respondents argued
before us that in the present case, only the remedy was
barred but the right was not extinguished and therefore,
no reliance can be placed on the authorities cited above.
We are not inclined to accept this submission of the
learned counsel for the respondents. It is true that there
is a difference between extinguishing a right and barring
a remedy. The difference has been explained by this
court in Prem Singh and others Vs. Birbal and others
(2006) 5 SCC 353 wherein this court at paragraph 11
and 12 observed as under: -
45
“11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
12. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the articles, provides that upon lapse of the prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out or is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed.”
30. The difference between the two aspects viz., barring
of remedy and extinguishment of right can also be seen
in the decision of this court in M/s. Bharat B arrel &
Drum Mfg. Co. Ltd. & Anr. Vs. The Employees State
Insurance Corporation [(1971) 2 SCC 860].
46
In view of the above authorities, we are of the view
that in the present case, once it is held that the suit for
possession of the suit properties filed at the instance of
the Wakf were barred under the Limitation Act, 1908, the
necessary corollary would be to hold that the right of the
Wakf to the suit properties stood extinguished in view of
Section 27 of the Limitation Act, 1963 and therefore,
when Section 107 came into force, it could not revive the
extinguished rights. The authorities relied upon by the
learned counsel for the respondents in this regard in the
case of Sree Bank Ltd. vs. Sarkar Dutt Roy & Co.
[(1965) 3 SCR 708], Dhannalal vs. D.P.Vijayvargiya
& Ors. [(1996) 4 SCC 652], New India Assurance Co.
Ltd. vs. C.Padma & Anr. [(2003) 7 SCC 713] and
S.Gopal Reddy vs. State of A.P. [(1996) 4 SCC 596]
have no application to the facts of the case because in
these cases, unlike the present case, there was no
extinguishment of the rights.
47
31. Let us now answer the submissions on behalf of the
learned counsel for the respondents. The learned counsel
for the respondents relied on a decision of this court in
Smt.Dayawati & Anr. Vs. Inderjit & Ors. [(1966) 3
SCR 275] to suggest that the law affecting procedure is
always retrospective and therefore, Section 107 should
be given retrospective effect. In Dayawati’s case (supra),
this court observed as under: -
“Now as a general proposition, it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit………………… ……Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance. The distinction between laws affecting procedure and those
48
affecting vested rights does not matter when the court is invited by law to take away from a successful plaintiff, what he has obtained under judgment.”
32. We have to agree that the decision relied upon by
the learned counsel for the respondents which lays down
the correct position of law but we are afraid that it is
distinguishable on facts and cannot be of any help to the
respondents. First, Dayawati’s case (Supra) was not a
case of extinguishment of right in property. Moreover, in
that case, there was a specific provision viz., Section 6
which gave retrospective effect to the provisions in that
case. Also, the decision in that case dealt with certain
rights, which the judgment of the courts below had given.
In the present case, however, the right to property flows
not from any judgment but by the application of the
principle of extinguishment of rights. The learned
counsel for the respondents also relied upon a decision
of this court in Indira Sohan Lal Vs. Custodian of
49
Evacuee Property, Delhi and others [AIR 1956 SC 77]
to argue that in the present case, Section 6 of the
General Clauses Act would not apply at all because a
different intention appears from Section 112 of the Wakf
Act and, therefore, the very question of reviving the
barred claim does not arise. In Indira Sohan Lal’s
case, this court observed as under:-
“10.................... Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by a fresh legislation on the same subject, we would undoubtedly have to look to the provision of the new Act, but only for the purpose or determining whether they indicate a different intention.
The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6, General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation
50
manifests an intention incompatible with or contrary to the provisions of the Section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law………… …………Thus where the repealing section of the fresh enactment which purports to indicate the effect of repeal on previous matters, provides for the operation of the previous law in part and in negative terms as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of Section 6 of the General Clauses Act………….. Subsection 3 of section 58, Administration of Evacuee property Act, 1950 purports to indicate the effect of the repeal, both in negative and in positive terms. The negative portion of it relating to “the previous operation” of the prior Ordinance appears to have been taken from Section 6 (b) General Clauses Act while the positive portion adopts a” deeming” provision quite contrary to what is contemplated under that section. Under the General Clauses Act, the position in respect of matters covered by it would have to be determined as if the repealing Act had not been passed, while under section 58 of Central Act 31 of 1950, the position so far as positive portion is concerned has to be judged as if the repealing Act were in force at the earlier relevant date. Section 6 of the General Clauses Act cannot therefore be called in aid in a case governed by Section 58(3) of the Act…….”
51
33. After considering this submission of the learned
counsel for the respondents, it may appear that the
controversy has narrowed down to the point whether
Section 6 of the General Clauses Act would apply in this
case or not. That is to say, it may appear that if we
answer this question in the negative thereby holding that
Section 112 is self contained, the appeal would fail
because then the question of reviving a barred claim
would not arise at all because Section 112 does not
contemplate or provide for any such provision. However,
if we answer this question in the affirmative, the
inevitable result would be that the appeal would have to
be allowed because on all other points, discussed herein
earlier, the arguments of the learned counsel for the
appellants have been accepted. However, in our view, the
authorities relied upon by the respondents deal only with
the question of repeal and savings but do not answer the
question raised by the learned counsel for the appellants,
52
i.e., whether Section 107 can revive an extinguished
right. We may note that the authority relied upon by the
learned counsel for the appellant reported in
Yeshwantrao Laxmanrao Ghatge and Another (supra)
cannot be ignored. That decision was not a case of repeal
and accordingly, there was no reference to Section 6 at
all in that Act. Nevertheless, it was held in that case that
a right extinguished under Section 28 of the Limitation
Act, 1963 cannot be revived by Section 52A. Similarly, in
the present case, we are of the opinion that applicability
of Section 6 is inconsequential because admittedly, there
was an extinguishment of rights under Section 28 and
Section 107 cannot revive those extinguished rights.
34. In view of the above discussions, we are, therefore,
of the view that Section 107 cannot revive a barred claim
or extinguished rights.
35. For the reasons aforesaid, the judgment and decree
of the High Court passed in the aforesaid second appeals
are set aside and the suits filed by the respondents are
53
dismissed. In view of the dismissal of the second appeals,
we do no find any reason to interfere with the order
passed in CMP Nos.3200 and 3201 of 2000 and
accordingly the Civil Misc. Petitions are also dismissed.
36. The appeals are thus allowed. There will be no order
as to costs.
………………… ….J.
[A.K.Mathur]
New Delhi; ...…………………..J. August 1, 2008. [Tarun Chatterjee]
54