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1970 DIGILAW 147 (KER)

Kumaran v. Mathai

1970-07-31

P.S.POTI

body1970
JUDGMENT P. Subramonian Poti, J. 1. An interesting question has arisen in this appeal and that relates to the limitation for the suit. The suit is on a hypothecation bond, Ex. P2 dated 12-8-1124 M.E. corresponding to 25-3-1949 A.D. The suit is filed on 12-2-1137 corresponding to 28-9-1961. The plaintiff contends that the defendants are agriculturists and, therefore, a period of six months during which the suit could not have been instituted by reason of the 'provisions of the Travancore Cochin Act III of 1956 should be excluded in computing the period of limitation, which it is agreed is 12 years from the date of the bond. Therefore, the total period available would be 12 years and 6 months. If the 'Malabar year' is taken into account, the suit is seen to be filed exactly on the last day of 12 years and 6 months and if the period is to be reckoned according to the British calendar, the suit will be seen to be filed after the expiry of the period of 12 years and 6 months. The only question urged before me by the learned counsel for the defendants who are the appellants here is that the period has to be reckoned according to the British calendar year and, if so reckoned, the suit would be barred. 2. At the time when Ex. P2 bond was executed, it was the Travancore Limitation Regulation VI of 1100 that was in force. S.26 of that Regulation provided. "All instruments shall, for purposes of this Regulation be deemed to be made with reference to the Malabar calendar." This Regulation was repealed by the Part B States Laws Act III of 1961. Notwithstanding such repeal S.6 of the said Act kept alive any right, privilege or obligation or liability acquired, accrued or incurred under the law so repealed. By the provisions of the Part B States Laws Act, 1951 the Indian Limitation Act, 1908 was extended to the Travancore Cochin State. S.25 of the Indian Limitation Act, 1908 provided that- "All instruments shall, for the purposes of this Act, be deemed to be made with reference to the Gregorian calendar." The definition of the term "year " is contained in the General Clauses Act, 1897. "Year" is defined in S.3 (66) of that Act as follows: "year" shall mean a year reckoned according to the British Calendar." 3. "Year" is defined in S.3 (66) of that Act as follows: "year" shall mean a year reckoned according to the British Calendar." 3. The question is whether the provisions of the Travancore Limitation Regulation and in particular S.26 would govern the matter of reckoning the period for the purpose of limitation. If the matter fell to be decided under the Travancore Regulation, certainly it will be the Malabar year that will have to be reckoned for construing whether, on the date of institution of the suit, it will be barred by limitation and. if that be the case the suit would not have been barred. No doubt, the starting point of the period of limitation was at a time when the Travancore Limitation Regulation was in force. On the date of institution of the suit the Indian Limitation Act had come into force and the period, if reckoned under that Act, would be that according to the Gregorian calendar and then the suit would be barred. 4. It is well settled now that no litigant has a vested right in the matter of limitation. All proceedings are governed by the law of limitation applicable at the E time of the institution of the proceedings. It that be the case, there cannot be any difficulty in resolving the question in issue before me since whatever might have been the law of limitation in force on the date of the transaction or on the date of the commencement of the period of limitation, on the date of institution of the suit the law in force being the Indian Limitation Act, 1908, the suit would be barred. I think the same view has been taken by the Travancore Cochin High Court in Achuthan Nair v. Velu ( 1956 KLT 389 ). There a similar question arose before Varadaraja Iyengar J. The learned judge found that it was the Indian Limitation Act and the period fixed thereunder that had to be considered for computing the period of limitation. That the law of limitation to be applied to a proceeding is the law in force at the time of the institution of the proceeding is well settled. I need refer only to a decision of this Court reported in Official Liquidator, Palai Central Bank Ltd. v. Augusti (1966 KLT 411). That the law of limitation to be applied to a proceeding is the law in force at the time of the institution of the proceeding is well settled. I need refer only to a decision of this Court reported in Official Liquidator, Palai Central Bank Ltd. v. Augusti (1966 KLT 411). I do not think it is necessary to cite other decisions here as the position appears to be very clear. 5. It is contended by the learned counsel for the respondent that the law of limitation must be decided on the intention of the parties at the date of execution of the document on the basis of which the suit is filed. In other words, what he would contemned is that if the parties contemplated the application of a particular law of limitation on the date of the transaction that should govern. I see absolute no point in this contention. This will be to nullify the provisions of S.85 of the Indian Limitation Act, 1908. If there be any doubt, the illustrations to that Section would be sufficient answer. I can see no connection between the intention of parties and the law of limitation to be applied to the suit. The limitation depends on the statute which prescribes it and not on the intention of parties. 6. In the result, I hold that the suit is barred by limitation for reasons other than those considered by the courts below. If so, the suit is to be found as filed out of time. The Second Appeal is therefore allowed and the suit is dismissed. But in the circumstances I direct parties to suffer costs.