KERALA HIGH COURT

                                             Neelakandhayya Pillai

                                                         Vs

                                                     Sankaran

                                                (M. S. Menon, J.)

                                                   03.04.1961

                                                 JUDGEMENT

M. S. Menon, J.

( 1. ) THE appellant is the plaintiff who, on the basis of an assignment of the jenmi's rights to
him as per Ext. P3 dated 4-5-1945, sued on 12-10-1945 for redemption of a kanom Ext. P1 dated
15-5-1929. THE suit having been decreed by the trial court on 17-1-1946, the plaintiff reduced
the property to his physical possession in 1946 itself.

( 2. ) THE defendant had appealed against the decree of the trial court and by the time it came up
for disposal before the learned subordinate Judge, the Malabar Tenancy (Amendment) Act VII of
1954 came into force introducing a provision: "section 25. No suit for eviction of a kanamdar
shall lie at the instance of his landlord except in the following grounds: . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provided further that -. . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii) no person whose right to evict arises under
an instrument or transfer inter vivos shall be entitled to sue for eviction on the ground specified
in clause (4) or clause (5) until the expiry of two years from the date of the instrument. '. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It was further enacted therein
that all suits, appeals and other proceedings which are pending at the commencement of the Act
shall from and after such commencement be disposed of in accordance with the provisions of the
Malabar Tenancy Act as amended by this Act. This Amending Act came into force on the 19th
March 1954. The learned Subordinate Judge took the view that the inhibition of suits for eviction
for two years after an assignment of the landlord's rights contained in S. 25 quoted above would
apply to the institution of this suit which had been instituted within five months of the assignment
in favour of the plaintiff, and dismissed the same. The plaintiff has therefore come up in this
Second Appeal. The provisions of S. 25 of the Malabar Tenancy Act as amended by Madras Act
VII of 1954, as indicated by the expression "no suit shall lie", "no tenant shall be evicted", "no
person shall be entitled to sue" in that section, are only prospective in application. There is
nothing in the said S. 25 indicating a retroactive operation for any of the provisions therein. As
the prohibition to the institution of the suit within two years of an inter vivos assignment relates
only to the institution of the suit, it cannot, without an expression thereto, be made to affect
institutions already had. It is pertinent to note that the section does not provide for a dismissal or
even stay of any suit already instituted. Most probably the natural effect of the provision in S. 25
quoted above may be to stay the trial of a suit already instituted before the commencement of the
Act for a period which comes within two years of the assignment of the landlord's rights in the
plaintiff's favour. Anyhow, that question does not arise in the instant case as the assignment in
this case was in 1945 and even the two years of bar to institute the suit had expired by 1947 long
before the Act itself came into being and long before the learned Subordinate Judge applied the
provision to the disposal of this suit.

( 3. ) EVEN if the section is held to apply literally to the institution of the present suit, the defect
of prematurity at the institution of this suit cannot entail its dismissal in 1954, the period of two
years after the assignment in favour of the plaintiff having expired by 1947. The pendency of the
suit after 1947 and the trial that the suit had since then cannot be found to be affected by any
defect. The learned counsel for the respondent brought to my notice two rulings of the Madras
High Court one in Sankaran v. Andy1 and the other in Kumhambu v. Tagnan Nambudiri2 I do not
fee) persuaded with all respect to accept the view taken in those two decisions. It has been held
several times, as observed by B. K. Mukherjea, J. (with whom Sharpe, J. concurred) in Tarak
Chandra v. Anukul chandra (AIR. 1946 Calcutta 118), that the court is to look into events
subsequent to the institution of the suit for the purpose of doing complete justice to the parties in
the case and particularly to avoid further litigation between them. The subsequent event relevant
herein is the subsequent accrual of the cause of action after the expiry of the period of
prohibition. ;

Cases Referred.

1(1954-11 MLJ. 581)
2(1956-1 mlj. 297 )