Report No. 89
III Local La.-the Problem of Portuguese and French Laws
29.11. Section 29(.-Local laws.- As to the savings effected for "local laws", two cases decided by the Court of the Judicial Commissioner and the Madras High Court regarding Goa and Pondicherry respectively, have brought to surface the anomalous situation prevailing in these two former foreign enclaves.
29.12. Portuguese Civil Code.- In a Goa case1, it was held that Articles 529 and 535 of the Portuguese Civil Code are "special or local law" within the meaning of section 29(2) of the Limitation Act, 1963, and did not, on the coming into force of the Limitation Act, 1963, in the Union Territory of Diu, Daman Goa, stand repealed by the corresponding Articles 74, 31 and 65 of the Schedule to the Limitation Act, 1963. A reading of the judgment shows that the articles of the Portuguese Civil Code in question are more liberal to the plaintiff than the corresponding provisions of the Act of 1963.
So vast was the disparity between these two provisions as regards the prescribed limitation periods that the Counsel for the defendant went to the extent of arguing that Articles 529 and 535 of the Portuguese Civil Code (which prescribed a period of 30 years) were demonstrably discriminatory and irrational in nature. The argument was dismissed, but the ruling accentuates the fact that a system substantially different from the Indian Act has been regarded as continuing in force in the Union Territory of Goa.
1. J.A. De P. Barreto v. A.V. De Fonseca, AIR 1969 Goa 124.
29.13. French Civil Code.- The Madras High Court (which has jurisdiction over the former French Possession of Pondicherry) has also held in the same refrain1 that articles of Limitation laid down in the French Civil Code answered the description of "local law" in section 29(2) of the Limitation Act, 1963. The French Civil Code was a "local" law because it applied, and was in force, in the former French establishments of Pondicherry.
It was not in force anywhere else in India. After the de jure merger of Pondicherry in the Indian Union on 16th August, 1962, all the laws formerly in force in that territory were continued, by force of section 4(1) of the Pondicherry (Administration) Act, 1962. This meant that the laws so preserved continued to remain "local laws". The law of limitation continued in the French Civil Code had thus to be regarded as "local law", because that was its character at the time when Parliament passed the Limitation Act, 1963.
1. Chockalinga Mudaliar v. Nanivanna Pillai, (1978) 2 MLJ 544.
29.14. Long periods of limitation.- The French Civil Code shares the common trait of liberality to the plaintiff with the Portuguese Civil Code prescribing a period of 30 years for all rights of action whether in rem or in personam. The arguments advanc.-albeit without succe.-before the Judicial Commissioner of Goa about the discriminatory nature of the Portuguese Civil Code, vis-a-vis the Indian Limitation Act acquired an added refinement here.
The French Civil Code not only prescribed a 30 years limit for actions in rem or in personam (on the pattern of the Portuguese Civil Code), but also distinguished between actions for the price of goods sold to private persons and those where the purchasers were merchants. In the former case, a very short period of one year has been prescribed.1
1. Article 2272, French Civil Code contrasted with Article 2262 of the same Code.
29.15. Understanding of the mercantile community.- The complexity of the problem can be gauged from the fact that even the plaintiff did not seek to support his case by pleading the continuance of the French Code as regards limitation when he filed the suit on 23rd June, 1971 in the Court of the principal District Munsiff Pondicherry. It was for the first time in the appeal before the Principal District Judge, Pondicherry that a submission was made that the question of limitation must be considered under the French Civil Code, and not under the Limitation Act of 1963.
Even at this stage, no attempt was made by the plaintiff to wriggle out of the short period of limitation prescribed by Article 2272 of the French Civil Code by pleading that the goods for which the action is based were sold to a merchant. There is, thus, ample justification for concluding that the mercantile community is assuming that the Limitation Act, 1963 is now in force in Pondicherry.
29.16. While interpreting section 29(2) of the Limitation Act 1963, the Madras High Court has observed that the sum total of the consequences of section 29(2) is to "preserve unity in diversity in our laws of limitation". The sentiments expressed and the ideals aimed at cannot be faulted, but it will have to be seen whether such a diversity is in keeping with the smooth functioning of the legal system and with the intention of Parliament and the social and political ethos of our country.
29.17. Section.-Recommendation as to French and Portuguese laws relating to limitation.- No one would have a quarrel with the anxiety of all concerned for preserving the special characteristics and attributes of the system of administration of justice in these erstwhile foreign enclaves. With that end in view, a continuity with the past has been maintained in some areas.
However, as regards limitation, the mental orientations of the business community of Pondicherry towards the Indian laws as reflected in the judgment of Chockalinga Mudaliar's case persuades us to recommend to the Central Government that the provisions in the erstwhile French and Portuguese Civil Codes governing limitation in force in the Union Territories of Pondicherry and Goa respectively, should be expressly repealed, after ensuring that no legal hiatus is created by such a repea1.1
1. For implementation in connection with French and Portuguese Laws relating to limitation.
29.18. Supreme Court.- It may be mentioned in this context that the question1 whether the provisions of the Portuguese Civil Procedure Code as to limitation still survive in the Union Territory of Goa, Daman and Diu came up before the Supreme Court, where the point at issue was whether the appeal in question was governed by the Portuguese Code by Article 116 of the Limitation. Act, 1963. If it was the former, the appeal was out of time.
If it was the latter, the appeal was in time. The court of Judicial Commissioner. Goa had held (in the case under appeal) that the Portuguese Civil Procedure Code was still applicable and that section 32 of the Limitation Act, 1963 had repealed only the Indian Limitation Act of 1908 and not the Portuguese Code. Moreover, section 29(2) of the Act of 1963 saved a "local" law and hence the provisions contained in the Portuguese Civil
Procedure Code still applied, so that the appeal was out of time. However, on appeal to the Supreme Court, the Supreme Court, after posing the question, considered it unnecessary to decide it, since it held that in the circumstances of the case, the delay (if any) should be condoned. It is sufficient to quote the following passage from the last paragraph of the judgment of the Supreme Court:
"However, the other preliminary objection upheld by the learned Additional Judicial Commissioner is more important and the question that really arises for our consideration is, what was the law of limitation applicable in the Union Territories of Goa, Daman and Diu to proceedings launched therein prior to and pending at the date of liberation?
In other words, whether the period of limitation for the appeal in question was the one prescribed by the Portuguese Code or by Article 116 of the Limitation Act 1963? It was not disputed that if it was the former, the appeal was out of tune and if it was the latter, the appeal was well within time. It is really unnecessary for us to decide this question in view of the application for condonation of delay for tiling the said appeal in the Judicial Commissioner's Court at Goa, that has been made by the appellants before us which we are inclined to grant.
It cannot be gainsaid that the aforesaid question of limitation is a complex one and not free from doubt,1 and if in such a situation the appellants, bona fide believing that the appeal could be filed within 90 days as provided by Article 116 of the Limitation Act 1963, filed their appeal within that period, it would be a clear case of sufficient cause which could be said to have prevented them from filing the appeal withini.the time prescribed by the Portuguese Code.
Where two views are equally possible on this complex question and where a party, being guided by one of such views, adopts a course consistent with that view, it would equally be a case of 'just impediment' within the meaning of Article 145 of the Portuguese Code, which could be said to have prevented the party from filing the appeal within limitation prescribed by the Portuguese Code."
The above passage indicates that the position as regards the limitation law in force in the area in question is still uncertain.
1. Maria Christine v. Maria Zurna, AIR 1979 SC 1352 (1354, 1355).
2. Emphasis added.