# T. KALIAMURTHI & ANR v. FIVE GORI THAIKAL

- **Citation:** [2008] 11 S.C.R. 758
- **Court:** Supreme Court of India
- **Decided:** 2008
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-kaliamurthi-anr-v-five-gori-thaikal-23422
- **Pages:** 35

## Headnote

T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
759
WAKF & ORS.
Act, the repeal of an enactment will not affect any right, priviA
lege, obligation or liability acquired or incurred under the repealed enactment, but this provision cannot be resorted to if a
different intention appears - Repeal.
Interpretation of statutes: Retrospective operation - Held:
B
,;"'J
No statute shall be construed to have a retrospective operation until its language is such that would require such conc/usion.
Respondent-Wakf instituted suits for recovery of possession and mesne profit. The appellants contested the c
suit on the ground that the suit properties were private
properties of one 'SKS' purchased by the appellants and;
that suits were barred by limitation under Article 1348 of
Limitation Act, 1908. Appellants also took an additional
plea of adverse possession.
D
The trial Court 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 were
barred by limitation under Article 1348 of Limitation Act,
1908 and the appellants had perfected the title by adverse E
possession and on such findings, dismissed the suits.
On appeal, the first appellate Court confirmed the finding
of the trial Court that the suit properties were Wakf property but on the question of limitation and adverse possession, set aside the finding of trial Court holding that F
I ;.
suits were not barred by limitation under Article 96 of Limitation Act, 1963 and also appellants failed to prove that
they acquired title to the suit properties by way of adverse
possession. On these findings, the first appeals were allowed and the suits were decreed.
G
Appellant filed appeals in the High Court, during pen-
....,,
dency of which the Wakf Act, 1995 came into force w.e.f .
1st January, 1996. High Court dismissed the appeals holding that in view of coming into force of s.107 of Wakf Act,
the bar of limitation no longer existed; and that in view of H
760
SUPREME COURT REPORTS
(2008] 11 S.C.R.
A s.112 of Wakf Act, such provision also applied to the pending proceedings. Hence these appeals.
Allowing the appeals, the Court
HELD: 1. The three courts below have recorded conB current finding of fact that the suit properties were Wakf
properties, and nothing has been brought before this
-,....,.._
Court to show that the said findings of fact were either
perverse or arbitrary. In the absence of any serious challenge on this count, there is no ground to interfere with
c such concurrent findings of fact of the courts below.
[Paras 4,5] [767-G-H; 768-8]
. 2.1. The first appellate court was not justified in holding th~t Jhe suits were filed within the period of limitation
as prescribed under Article 96 of the Limitation Act, 1963.
D The trial court correctly held that Article 1348 of the LimiM
tation Act, 1908 would apply and therefore the suit was
barred by limitation. S.31 of the Limitation Act, 1963 provldes that nothing in the Limitation Act, 1963 shall enable
any suit, appeal or application to be instituted, provided
E or made, for which the period of limitation prescribed by
the Limitation Act, 1908 expired before the commencement
of the 1963 Act. s.31 of the 1963 Act assumes great importance which was completely overlooked by the first appellate court.Admittedly, the suits were filed long after the
F 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. The period of limitation prescribed under the 1908 Act had already expired
before the commencement of the 1963 Act and, therefore,
G in view of the clear mandate of s.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. [Para 19] [780-G-H; 781-A-8]
~
C. VPurushotham \/. Chinna Jeevangar Mutt Tirupati AiR
H (1975) AP 153; The Special Officer for Wakfs, Madras v.

## Text

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T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
759
WAKF & ORS.
Act, the repeal of an enactment will not affect any right, priviA
lege, obligation or liability acquired or incurred under the repealed enactment, but this provision cannot be resorted to if a
different intention appears - Repeal.
Interpretation of statutes: Retrospective operation - Held:
B
,;"'J
No statute shall be construed to have a retrospective operation until its language is such that would require such conc/usion.
Respondent-Wakf instituted suits for recovery of possession and mesne profit. The appellants contested the c
suit on the ground that the suit properties were private
properties of one 'SKS' purchased by the appellants and;
that suits were barred by limitation under Article 1348 of
Limitation Act, 1908. Appellants also took an additional
plea of adverse possession.
D
The trial Court 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 were
barred by limitation under Article 1348 of Limitation Act,
1908 and the appellants had perfected the title by adverse E
possession and on such findings, dismissed the suits.
On appeal, the first appellate Court confirmed the finding
of the trial Court that the suit properties were Wakf property but on the question of limitation and adverse possession, set aside the finding of trial Court holding that F
I ;.
suits were not barred by limitation under Article 96 of Limitation Act, 1963 and also appellants failed to prove that
they acquired title to the suit properties by way of adverse
possession. On these findings, the first appeals were allowed and the suits were decreed.
G
Appellant filed appeals in the High Court, during pen-
....,,
dency of which the Wakf Act, 1995 came into force w.e.f .
1st January, 1996. High Court dismissed the appeals holding that in view of coming into force of s.107 of Wakf Act,
the bar of limitation no longer existed; and that in view of H
760
SUPREME COURT REPORTS
(2008] 11 S.C.R.
A s.112 of Wakf Act, such provision also applied to the pending proceedings. Hence these appeals.
Allowing the appeals, the Court
HELD: 1. The three courts below have recorded conB current finding of fact that the suit properties were Wakf
properties, and nothing has been brought before this
-,....,.._
Court to show that the said findings of fact were either
perverse or arbitrary. In the absence of any serious challenge on this count, there is no ground to interfere with
c such concurrent findings of fact of the courts below.
[Paras 4,5] [767-G-H; 768-8]
. 2.1. The first appellate court was not justified in holding th~t Jhe suits were filed within the period of limitation
as prescribed under Article 96 of the Limitation Act, 1963.
D The trial court correctly held that Article 1348 of the LimiM
tation Act, 1908 would apply and therefore the suit was
barred by limitation. S.31 of the Limitation Act, 1963 provldes that nothing in the Limitation Act, 1963 shall enable
any suit, appeal or application to be instituted, provided
E or made, for which the period of limitation prescribed by
the Limitation Act, 1908 expired before the commencement
of the 1963 Act. s.31 of the 1963 Act assumes great importance which was completely overlooked by the first appellate court.Admittedly, the suits were filed long after the
F 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. The period of limitation prescribed under the 1908 Act had already expired
before the commencement of the 1963 Act and, therefore,
G in view of the clear mandate of s.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. [Para 19] [780-G-H; 781-A-8]
~
C. VPurushotham \/. Chinna Jeevangar Mutt Tirupati AiR
H (1975) AP 153; The Special Officer for Wakfs, Madras v.
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
761
WAKF & ORS.
Subramanyam & Ors. (1976) Vol.89 Law Weekly 467; A
C.Beepathuma & Ors.· v. Velasari Shankaranarayana
Kadambolithaya & Ors. AIR (1965) SC
241 - referred to.
2.2. S.6 of the General Clauses Act clearly provides
that unless a different intention appears, the repeal shall B
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. Thus, the right of action, c
which is barred by limitation at the time when the new act
comes into force, c.annot be revived by the change in the
law subsequently. [Paras 22,23] [782-F-H; 783-A]
Ram Murthi & Ors. v. Puran Singh Sia Attra Singh & Anr.
D
AIR (1963) Punjab 393 - referred to.
2.3. Sub-section (1) of s.112of1995 Act 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 E
be deemed to have been done or taken under the corresponding provisions of this Act. Sub-section (2) is the
saving clause and provides validity to the actions taken
under the repealed Act. [Para 24] [783-D-E]
2.4. S.112of1995 Act is in conformity with s.6 of the
F
I •
General Clause Act which also provides that a repeal shall
not affect any right, privilege, obligation or liability acquired or incurred under the repealed enactment unless
a contrary intention appears. Thus under s.6 of the General Clauses Act and s.112 of 1995 Act, prior operation of G
the repealed enactment or the legal proceedings or remedies instituted, continued or enforced etc. are saved.
..,.
Thus on this ground, the High Court was not justified in
relying on s.112of1995 Act to hold tha~ the Act has retrospective effect. [Para 24] [785-D-F]
H
I
f-
>-
762
SUPREME COURT REPORTS
[2008] 11 S.C.R.
r
y
A
C. Beepathuma & Ors. v. Velasari Shankaranarayana
Kadambolithaya & Ors. AIR 1965 SC 241; Mst.Rafiquennessa
v. Lal Bahadur Chetri (since deceased) and his LRs. & Ors.
AIR (1964) SC 1511; Mohd. Idris & Ors. v. Sat Narain & Ors.
AIR (1966) SC 1499; Qudratullah v. Municipal Board (1974)
8 1 SCC 202 - Distinguished.
2.5. S:107 of 1995 Act provides that nothing in the
·-re-...
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 applicac tion of s.107of1995 Act, 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 s.107 cannot apply.
There is no specific provision which stipulates that s.107
D 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 limita;.
E tion, 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
F into force. However, there is an important exception to
this rule also. Where the right of suit is barred under the
-4··.
law of limitation in forc.e before the new provision came
into operation and a vested right has accrued to another,
the new provision cannot revive the barred right or take
G away the accrued vested right. In the instant case, any
right which the Wakf had over the property stood extinguished under the Limitation Act, 1908. When the right
stood extinguished, s.107 cannot have the effect of reviv-
~
ing the extinguished right/claim. [Paras 22, 24, 27, 28, 29]
'
H
[782-B; 785-H; 786-A-B, 783-C-F]
,.., ..
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
763
WAKF & ORS.
Yeshwantrao Laxmanrao Ghatge and Anr v. Baburao A
Bala Yadav (Dead) By Lrs. (1978) 1 SCC 669; Karnataka Steel
& Wire Products and Ors. v. Kohinoor Rolling Shutters & Engg.
Works and Ors. (2003) 1 SCC 76 - referred to.
2.6. Once it is held that the suit tor possession of the
suit properties filed at the instance of the Wakfwere barred
8
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 s.27 of the Limitation
Act, 1963 and, therefore, when s.107 came into force, it
could not revive the extinguished rights. [Para 30] [788C
B-0]
Sree Bank Ltd. v. Sarkar Dutt Roy & Co. (1965) 3 SCR
708; Dhannalal v. D.PVijayvargiya & Ors. (1996) 4 SCC 652;
New India Assurance Co. Ltd. V. · C. Pad ma & Anr (2003) 7 0
sec 713;. s. Gopal Reddy v. State of AP (1996) 4 sec 596 -
held inapplicable.
Smt. Dayawati & Anr v. lnderjit & Ors. (1966) 3 SCR 275
- distinguished.
Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC E
353; Mis. Bharat Barrel & Drum Mfg. Co. Ltd. & Anr v. The
Employees State Insurance Corporation (1971) 2 SCC 860;
Indira Sohan Lal v. Custodian of Evacuee Property, Delhi and
Ors. AIR (1956) SC 77 - referred to.
F
Case Law Reference
AIR (1975) AP 153
referred to
Para 15
(1976) Vol.89 Law Weekly 467 referred to
Para 15
AIR (1963) Punjab 393
referred to
Para 23
G
AIR (1964) SC 1511
Distinguished
Para 26
AIR (1965) SC 241
referred to
Para 26
AIR 1965 SC 241
Distinguished Para 26
H
A
B
c
764
SUPREME COURT REPORTS
[2008] 11 S.C.R.
AlR (1966}·SC 1499
-(1974) 1 sec 202 ·
(1978) 1 sec 669
(2003) 1 sec 76
.(200~) ·1 _sec 76
. (2006) 5 sec 353
(1971) 2 sec aso
(1965) 3 SCR 708
(1996) 4 sec .596
(1996) 4 sec 652
Distinguished
Para 26
Distinguished
Para 26
referred to
referred to
referred ,to
referred to
referred to
Para 27
Para 28
Para 29
Para .29
Para 30
held inapplicable Para 30
held inapplicable Para 30
held inapplicable Para 30
-(2003) 7 SCC 713 -
held inapplicable Para 30
.
.GIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 4988-4991 of 2000
From the final Judgment and Order dated 19.11.1:999_&
24.4.2000 of th_e High Court of Judicature at Madras in S.A.
Nos. 972 & 973of1986 in C.M.P. Nos. 3200 & 3201 of 2000 in
E
S.A. Nos. 972 & 973 of 1986 respectively.
K.V. Viswanathan, K.V. Venkataraman, M. Shoeb Alam,
Rajeev Kr. Singh and K.R. Nambiar for the Appellants.
J.M. Khanna, T.N. Bhat, Shefali Sethi, Dhruv Mehta,
Harshwardhan Jha and Yashraj Singh Deorn (for Mis. K.L Mehta
F
& Co.) for the Respondents.
The Judgment of the Court was delivered by
•
'~'
-::- •
J
•
~ .... ~
.
'
-
•
'
....
TARUN CHATTERJEE, J. 1. By judgment and decree
datecf1·9ih of November, 1999, the High Court o( Judicature at
G Madra_s dismissed SA Nos. 972 and 973 of 1986. Subsequent
to the dismissal of the second appeals, by an order dated 241h
of Api-lr; 2000, two C.M.P. Nos. 3200 and 3:201 0(2000 fi!ed in
S.~.Nos.972 and 973 of.1996 were also rejected.
-x--
H
- .2.-:Feeling aggrieved. the appellants have filed the afore-
;-
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
765
WAKF & ORS. [TARUN CHATTERJEE, J.]
said four appeals against the common judgment and decree A
dated 19th of November, 1999 of the High Court of Judicature
at 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
B
.. '"t'
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 c
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.
D
4. lynthukori 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 plaint and for mesne profits.
E
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 leg.al heirs and representatives had sold the
F
,~
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 G
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 H
r
766
SUPREME COURT REPORTS
[2008] 11 S.C.R.
y
A
the title by adverse possession an_d 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. FeelB ing aggrieved by the common judgment of the trial court, appeals were filed before the first appellate court, which confirmed
-r ..
i
the findings of the trial court on the question whether the suit
t
properties were Wakf properties or not. Therefore, two concurrent findings of the two courts below were arrived at on the quesc tion 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
I
Limitation Act, 1963 and also that the appellants had failed to
~
D 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. Against the de-
. .,..,
cisions of the first appellate court, the appellants preferred three
appeals in the High Court, namely, Second Appeal Nos. 972/
E
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 151 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
~
F
of any interest in such property. The High Court in second apr
peals 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
G 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 as noted herein
~
above, the appeals were dismissed. So far as the plea of adH verse possession is concerned, it was held by the High Court in
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
767
WAKF & ORS. [TARUN CHATTERJEE, J.]
the common judgment that the same was not available to the
A
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
B
); ~
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 c
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 Petitions, which after grant of leave, were heard by
us in presence of learned counsel for the parties.
D
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
E
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 F
,. ~
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 G
properties. Accordingly, we need not dilate on question No.1
~
as the said findings of fact 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
H
768
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
appellants did not raise any serious submission questioning
y
the aforesaid findings of fact arrived at by the courts below.
5. In view of our observations made herein above and in
r
the absence of any serious challenge to the aforesaid findings
B
of fac( 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
-r-...
i '~
was raised in the form of question No.2, that is to say, whether
the suits filed by the Wakf/respondents were barred by limita-
·-,,.
tion and whether the plea of adverse possession was available
tc
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 evidence and other materials on record, held that in the facts
D 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
Y"
of this Court, rejected the contention of the Wakf/respondents
and held that the suits were barred by limitation under Article
E
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
F
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 1 O
~-
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 court and the
' I
G appellate courts, we may note that the High court, in the imI-
pugned judgment, has not given its opinion whether Article 96
of the Limitation Act, 1963 would apply or Article 134-B of the
t
Limitation Act, 1908 would apply in the present case. Without
~
going into this, the High Court instead. held that in view of the
H coming into force of the Wakf Act, the bar of limitation no longer
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
769
~y
WAKF & ORS. [TARUN CHATTERJEE, J.]
exists and has held that the provision to that effect viz., Section
A
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.
B
... .,..
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 re- c
viving the barred claim. 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 D
revived. He had drawn our attention to Section 112 of the Wakf
r-y
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 E
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 justi-'
F
4f
tied in holding that the claim was barred under Article 134-8 of
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 unG
der Article 134-8 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 operaH
770
SUPREME COURT REPORTS
[2008] 11 S.C.R.
''<"'
A tion 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
B of the Wakf Act .
9. So far as the plea of adverse possession is concerned,
..,.- .....
the learned counsel for the appellants further submitted that since
the suit properties were accepted by the State Government as
>
the individual properties of the appellants considering them as
c absolute owners of the same for which the State Government
had granted individual pattas to the appellants in respect of the
suit pr.operties, 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 reD spect 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
lramdars and their legal heirs had perfected the title in respect
E 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 legal representatives of
the deceased V.T.Doraiswami when there were genuine reaF sons for the delay.
10. Relying on the aforesaid submissions, the learned coun-
+ ..
sel 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.
G
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
H suit properties were Wakf properties. It was further argued by
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
771
WAKF & ORS. [TARUN CHATTERJEE, J.]
~y
the learned counsel for the respondents that the appeals had
A
abated against VT. 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 598
8
,.,.,.
of the Wakf (Tamil Nadu 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 con- c
trary 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 responD
dents 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
E
appurtenant etc. or administrative actions in its negative sense
but destroyed that vested rights in positive terms by enacting
Sections 107 and 112 of the Act and by Sections 59A and 598
of the Wakf (Tamil NaduAmendmentAct), 1982.
The learned counsel for the respondents also submitted
F
~ 1the 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
G
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.
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772
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[2008] 1j S.C.R.
~
A
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
8
Section 107 of the Wakf Act is retrospective in operation or
whether it can have the effect of reviving barred claims. Section
-r ....
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
c the second appeals of the appellants were pending. Before we
decide the question as posed, we may note the relevant provisions ofthe 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
D which is as under:-
"107. Act 36 of 1963 not to apply for recovery of wakf
'i'._
properties.-. Nothing contained in the Limitation Act, 1963
shall apply to any suit for possession of immovable property
E
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: -
F
"6. Effect of repeal. Where this Act or any [Central Act] or
Regulation made after the commencement of this Act,
-f'
repeals any enactment hitherto made or hereafter to be
made, then, unless a different intention appears, the repeal
shall notG
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
y.·-
repealed or anything duly done or suffered thereunder
H
or
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
773
WAKF & ORS. [TARUN CHATTERJEE, J.]
_....,,
c)
affect any right, privilege, obligation or liability A
acquired, accrued, or incurred under any enactment
so repealed, or
d)
e)
B
....
"T'
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) c
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.
D
--y
(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:
E
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 F
'- t
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 134B of the Limitation Act, 1908, Article 96 of the Limitation Act,
G
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 -
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· , [2008).11 S.C.R.
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By the manager of a Hindu, Muhammadan or Budhist reli""
gious or charitable endowment to recover possession of immovable property comprised in the endowment which has been
transferred by a previous manager for a valuable consideration-- the Limitation is 12 years--The period shall run
B from the death, resignation or removal of the transferor ..
Article 96 of the Limitation Act, 1963By the manager of a Hindu, Muhammadan or 8udhTst religious or charitable endowment to recover pqssession of move able 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 dr rem.oval of
the transferor or the date of appointment of the plaintiff as man-.
0
ager 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,
E
a)
enable any suit, appeal or application to be instituted,
preferred or made, for which the perio.d of limitation
prescribed by the Indian Limitation Act, 1908 expired
before the commencement of this Act; or
F
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 extenG sive examination.
H
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. 8.13, 8.16, 8.6 and
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
775
-'r
WAKF & ORS. [TARUN CHATTERJEE, J.]
B.42 dated 2.4.1927, 3.4.1927, 27.4.1927 and since
A
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
B
" . ..,.
of their minor children viz., Syed Kasim, Syed Kulu
and Syed Tipu and since the case was filed within
12 years of 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 w~s it
pointed out by the plaintiffs that these children were c
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 D
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
E
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
F
... 1
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 G
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 H
776
SUPREME COURT REPORTS
[2008) .11 S.C.R.
yA
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. 800172 and S.A. 452/72 which stated
that suits could be filed within 12 years from the date
B
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 14.8.194 7 and
c
7.5.1954.
3.
As per section 31 of the Limitation Act, 1_963, it was
evident that if the plaintiff's right had not been
affected, he could file the suit. It had been stated that
D
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
•
E
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
F
was not barred by limitation.
+-"
4.
No right of adverse possession existed because the
suit properties were wakf properties and, therefore,
the lnamdars were trustees of the same.
G
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.
H
T. KALIAMURTHI & ANR. v. FIVE GORI THAIKAL
777
WAKF & ORS. [TARUN CHATTERJEE, J.]
-y
16. The High Court, while affirming the decisions of the
A
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
B
proceedings also because under Section 112, any
;.-- -y
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 c
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 applied to every D
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
I;
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
F
... ¥
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 G
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.
H
778
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8
c
D
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SUPREME COURT REPORTS
[2008) 11 S.C.R.
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 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
·-
T. KALIAMURTHI & ANR. v. FIVE GORI THA!KAL
779
WAKF & ORS. [TARUN CHATTERJEE, J.]
-·y
the Act are self contained code intended to
A
·affect pending proceedings also.
f)
In.the suits filed by the occupants or the wakfs
i
prior 'to the coming into force of the act, the
'
wakfs will not be entitled to raise the defence
~
B
~ ~ ~
· 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 of adverse
possession. The legislature could not have c
' · 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 D
wakf wit~draws the suit with liberty to file it afresh
~-~
QI") the s·ame cause of action and thereby in the
fresh suit, confer upon itself the advantages of
Section 107 of the Act. Therefore, the
. .
.