Report No. 89
Articles 56 to 58: Suits Relating to Declarations
33.1. Article 56.- article 56 Runs As Follow.-
|"To declare the forgery of an instrument issued or registered.||
|When the issue or registration becomes known to the plaintiff."|
Originally a single Article 93 appeared in th.-Act of 1871, which ran as unde.-
|"To declare the forgery of an instrument issued or registered, or attempted to be enforced.||
|The date of the issue, registration or attempt."|
When the Act was proposed to be replaced in 1877, a Draft Bill containing the article in the following revised form was circulated for comment.-
|"To declare the forgery of an instrument issued, or registered, or attempted to be enforced against the plaintiff.||
|The date of the issue, registration or attempt, whichever last happens."|
33.2. Sir Richard Garth1 found fault with the last paragraph of the proposed article and wanted that discovery of the forgery should be made the starting point:
"I do not understand this. Suppose an instrument is first forged and a month afterwards registered, and three years afterwards attempted to be enforced. From what time does the limitation run? I should have thought the time ought to run from the discovery of the forgery."
On these comments of Chief Justice Garth, the Legislative Secretary, Arthur Hobhouse, noted:2
|No. 93. Declaration of forgery of instrument - The mere forgery of an instrument is not a cause of action, it is the issuing of it, or the attempt to enforce it, that is the important matter. I think number is right as it stands.||Doe it not want the addition "whichever last happens", and "attempt to enforce against the plaintiff?"|
1. D.O. from the Hon'ble Sir Richard Garth (Chief Justice of Calcutta High Court) to the Hon'ble Arthur Hobhouse, Q.C., dated 24th July, 1876.
2. Note by the Secretary Mr. Arthur Hobhouse, Legislative Department on Sir Richard Garth's remarks on Limitation Act, dated 12-12-1876, National Archives File, 1877, Paper 1, p. 7.
33.3. In addition to the point taken by Sir Richard Garth the draftsman had also to consider the opinion given by the Judicial Commissioner, Central Provinces, Nagpur, who made out a case for splitting up of Article 93 into two articles, one when the plaintiff seeks to declare that an instrument is a forgery and another when a person attempts to base a claim on such instrument. He commente.-
"Article 91, Col. 3, "Whichever Last Happens". Better "as the case may be," otherwise, it might be pleaded in the case of an instrument issued only that as the period of limitation begins to run from the date of the attempt to enforce it, and as no such attempt had been made, the period of limitation had not begun to run, and a sui' could therefore be brought though more than three years had elapsed since the issue. If this is the intention of the Article had better stand:
|To declare the forgery of an instrument.||
|When the instrument is attempted to be enforced.|
|"But, if not, it would seem better to divide the article into two parts thus:-|
|To declare the forgery of an instrument issued or registered.||
|When the issue of registration becomes known to the plaintiff.(See Articles 89, 90, 92, 93, 94).|
|To declare the forgery of an instrument attempted to be enforced.||
|When the instrument is attempted to be enforced against the plaintiff."|
33.4. Section 42, Specific Relief Act, 1877.- One can recapitulate that the draftsman also aware of the provisions 5 of section 42 of the Specific Relief Act, 1877 which had been just passed and hence the suggestion of the Judicial Commissioner, Nagpur, regarding declaration simpliciter was accepted readily.
33.5. Act of 1877.- As a result of that Article 93 was split up into the following two articles in the 1877 Act:
|"92. To declare the forgery of an instrument issued for registered.||
|When the issue or registration becomes known to the plaintiff.|
|93. To declare the forgery of an instrument to be enforced against the plaintiff.||
|The date of the attempt".|
This scheme was continued in the 1908 Act and the present Article 56 and the general Article 58 cover the old Articles 92 and 93.
33.6. It would be of interest to note that the shift from the date of issue or registration to the date when such issue or registration becomes known to the plaintiff only brought the statute book in harmony with a pronouncement of the Calcutta High Court1 which had interpreted old Article 93 of the 1871 Act asunde.-
"The time when the period begins to run in such suits is 'the date of the issue, registration or attempt'. I should be disposed to hold that these dates were applicable respectively to the circumstances in which the instrument has been publish.-that is to say, where it has been issued, the time begins to run from the date of the issue, where it has been registered, the time runs from the date of registration, and so on. But it is clear that the suit at any rate would be barred at the expiration of three years from some one or other of the acts described in the third colu.-that is to say, the issue, registration, or attempt.
The acts or matters specified in the third column of that schedule are acts which, according to the intention of the legislature, put the plaintiff upon the assertion of his rights, and in the case of an instrument which is said to be forged, and which prejudices the plaintiff, the legislature apparently-thought that he ought to commence the suit as he has notice of the instrument by the issue, registration, or attempt to enforce it."
1. Fakharoodden v. Pogose, 1879 ILR 4 Cal 209 (212).
33.7. No change needed.- As the present article has not given rise to any controversies, no change is recommended.
33.8. Article 57.- Article 57 reads as unde.-
|"To obtain a declaration that an alleged adoption is invalid, or never, in fact, look place.||
|When the alleged adoption becomes known to the plaintiff."|
This is identical with Article 118 of the Acts of 1908 and 1877.
In the earlier Act of 1871, the corresponding provision was in Article 129:
|"To establish or set aside an adoption.||
|The date of the adoption, or (at the option of the plaintiff) the date of the death of adoptive father."|
33.9. The expression "to establish or set aside an adoption" in the first column (1877 Act) was found to be a curious one by the Privy Council:1
"It thus appears that the expression 'set aside an adoption' is and has been for many years applied in the ordinary language of Indian lawyers to proceedings which bring the validity of an alleged adoption under question, and applied quite indiscriminately to suits for possession of land and to suits of a declaratory nature."
1. Jagadantba Chaodhrani v. Dakhina Mohun Roy Chaodhri, 1886 ILR 13 Cal 308 (319, 320) (PC).
33.10. Article 129 of the Act of 1871 was in 1877 split into two articles, viz., Articles 118 and 119. The expressions 'set aside' and 'establish' were also dropped and the starting point was altered. This scheme continued in the Act of 1908 and the Act of 1963. This change of expression is discussed in a Privy Council1 judgment, thus:
"In the Act of 1871, as observed in the judgment in Jagadamba Chowdhrani's case, the words used had no technical meaning, and they were treated as expressing popular language to which in popular reasoning the meaning which prevailed could attach. In the Act of 1877 and 1908, the matter is otherwise. The words 'a suit to obtain a declaration' are terms of art. They relate back to the Specific Relief Act passed in the same year 1877, being Act No. 1 of that year, whereas the Limitation Act is No. XV.
Section 42 of the Specific Relief Act deals with declaratory decrees, and the illustration (Letter f) is much in poin.-
"A Hindu widow in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may, in a suit against the adopted son, obtain a declaration that the adoption was invalid."
It is to this class of suit that this particular limitation applies. The date from which the time begins to run is a subjective or personal date; and the condition of obtaining the particular relief which is sought in a declaratory suit is that the plaintiff should not be guilty of lathes, the measure of laches being fixed by the statute as six years.
1. Kalyandappa v. Chanbasappa, ILR 48 Born 411 (425) (PC).