S. Sarwar Ali, J.This appeal raises some interesting questions relating to a suit for specific Performance of contract. The plaintiff who is respondent no. 1 in this appeal, filed a suit for specific performance of contract on the allegation that defendant no. 1 on behalf of the joint family entered into a contract to sell the lands described in Schedule A of the plaint for a consideration of Rs. 60,000/-. In the alternative there was a claim for damages amounting to Rs. 31,500/-.

2. The case of the plaintiff, as made out in the plaint, is that the suit land belonged to one Jiwan Das Arya who sold the same to defendant no. 1 and his nephew Sundar Das Karsondas, the father of defendants 2 to 4 and husband of defendant no. 5, who constituted members of a joint Hindu family. Sundar Das Karsondas died in 1952 leaving behind defendants 2 to 5, who continued to possess the land in question with defendant no. 1. Defendant no. 1 is stated to be the Karta of the joint family. The joint family stood in need of money for legal necessity and defendant no. 1 on behalf of the joint family entered into a contract to sell the land in the suit for a consideration of Rs. 60,000/-. It was stated in the plaint that by an agreement dated 16.10.1959 defendant no. 1 for self and on behalf of defendants 2 to 5 agreed to sell to the plaintiff the suit land for a consideration of Rs. 60,000 and received Rs. 5000/- towards part payment thereof. The document i.e. sale deed had to be executed within one month of 16.10.1959. The plaintiff wrote several letters and approached the defendants to complete the sale by accepting the balance of the consideration amount but the matter was put off on one pretext or the other. The plaintiff made the necessary averment that he was always ready and willing to perform his part of the contract and was still so ready and willing. On these allegations the plaintiff prayed for a decree directing the defendants to execute and register the deed of sale in respect of the suit land on receipt of the balance of consideration of Rs. 55,000/-. The alternative claim of damage for Rs. 31,500/- consisted of: (a) damages due to difference in price of land Rs. 25,000/-, (b) the refund of the advance amount Rs. 5,000/- and (c) interest on the amount advanced at 12 per cent per annum.

3. The defence, as set out in the written statement of defendant no. 1, is the defendants 2 to 5 have been unnecessarily made parties to the suit as they had no interest in the property. There was no joint family consisting of defendant no. 1 and the other defendants and hence the question of defendant no. 1 being Karta or his entering into an agreement as a Karta did not arise. According to defendant no. 1 the property in question was purchased originally by the partnership firm M/s. N. Sundar Das and Company of 15 Clive Row, Calcutta. Subsequently on dissolution of the firm by the death of Sundar Das Karson Das the suit property became the exclusive property of defendant no. 1 according to terms of partnership. It was, therefore, in his capacity as the sole owner of the land in suit that he had entered into an agreement with the plaintiff. It was further averred that defendant no. 1 was all along ready and willing to execute the sale deed but the plaintiff refused to pay the balance of consideration money and get the sale deed registered. The written statement further states that the plaintiff agreed to cancel the alleged contract on 27.6.1951 on certain terms which were accepted by defendant no. 1. Although the cancellation was binding upon the parties, the plaintiff had filed the present suit in breach of the said contract. The claim for damages was denied and it was stated that there was no difference in the price during the period from October, 1959 to the date of filing of the plaint. The plaintiff, it was claimed, was also not entitled to the refund of the earnest money or to the interest as claimed.

4. On these pleadings the court formulated eight issues out of which issues 4 to 7 are the main issues and may be usefully quoted:--

(IV). Was there joint family of defendants 1 to 5 Was defendant no. 1 Karta of the same

(V). Did defendant no. 1 as Karta, execute the agreement for sale of suit land on 15.10.59

Is that deed of agreement valid, legal and enforceable against the defendants

(VI). Whether the agreement was cancelled

(VII). Is the plaintiff entitled to get a decree for specific performance of the said contract for sale of suit land, if not whether the plaintiff is entitled to refund of money paid and to any damage

5. The trial court decreed the suit of the plaintiff, as against defendant no. 1 in part, directing that plaintiff should deposit a sum of Rs. 25,000/- within three months from the date of the judgment and further directed that defendant no. 1 should execute a sale deed with respect to his share, namely, his half interest in the suit land after the deposit is made. It also gave ancillary directions in the decree flowing from the main reliefs granted. The plaintiff was also allowed proportionate costs.

6. In arriving at its conclusion the trial court gave the following main findings:--

(a). Defendants did not constitute joint Hindu family and defendant no. 1 was not Karta of the same.

(b). Defendant no. 1 was not the sole owner of the property and the property in suit belonged half to defendant no. 1 and half to defendants 2 to 5.

(c). The agreement or contract was not binding on defendants 2 to 5.

(d). Although defendant no. 1 had only half share in the property, the agreement to sell the suit land was binding on him in respect of his half share and the plaintiff was entitled to a decree for specific performance of contract in that regard.

(e). The rights of the parties will be determined with reference to the provisions of Specific Relief Act 1963 (hereinafter referred to as Act of 1963) and not with reference to Specific Relief Act 1877 (hereinafter referred to as Act of 1877).

(f). Applying provision of Section 12 of the Act of 1963 the plaintiff will be entitled to a decree in respect of half share of defendant no. 1 on payment of proportionate price, i.e. a sum of Rs. 30,000/-.

(g). The document of cancellation, mentioned in the written statement, became ineffective and the original contract remained alive.

(h). There was no laches on the part of the plaintiff and the plaintiff was not disentitled from getting his relief on the ground of delay or laches on his part.

7. Defendant no. 1 has appealed against the judgment and decree of the trial court. A cross-objection was also filed in this Court on behalf of the plaintiff-respondent, but the same has not been pressed.

8. Appearing on behalf of the appellant Sri S.K. Roy raised the following main contentions:

(a). The Act of 1963 did not have retrospective operation and as such the provisions which will govern the rights of the parties will be the provisions of Act of 1877, inasmuch as defendant no. 1 had acquired vested rights before the Act of 1963 came into force.

(b). On the findings arrived at by the trial court the suit property belonged half to the plaintiff and half to defendants 2 to 5. In those circumstances a contract or agreement by a co-sharer purporting to transfer the entire property belonging to him and other co-sharers was not capable of specific performance in law.

(c). If the plaintiff was, at all, entitled to a decree he would have to pay the entire amount of consideration stipulated i.e., Rs. 60,000/-. This was irrespective of the fact whether the Act of 1877 applied or the Act of 1963.

(d). Since the plaintiff had not asked for specific performance in respect of half portion of the suit property and has not relinquished his other rights, the trial court could not suo motu pass a decree in respect of half share.

9. The above contentions were stated to be the main contentions in the case. During the course of argument however, certain other points were raised and it might be convenient to state them here. It was contended that (a) one of the sons of Sunder Das, namely, Indra Kumar (defendant no. 3) was a minor at the time of the alleged contract. There was, therefore, no mutuality between the parties and the case being governed by the Act of 1877 this infirmity made the contract incapable of specific performance; and (b) there was a delay of about 2 years 7 months in bringing the present suit. This delay and laches on the part of the plaintiff disentitled him to the reliefs claimed. There was no challenge to the findings in other respects.

10. Sri Lal Narain Sinha, the learned Advocate General, who appeared on behalf of the plaintiff-respondent gave up the cross-objection and stated that he was not pressing the same and further stated on behalf of his client that he wanted specific performance of contract in respect of half share of defendant no. 1 and was relinquishing all claims to further performance, damages etc. as required under the provisions of the Specific Relief Act.

11. The broad points raised by the learned Advocate General in his reply on behalf of the plaintiff-respondent may be stated briefly.

(a). In applying Section 12 of the Act of 1963 the Court was not applying the provisions thereof....retrospectively. There was thus no retrospectivity involved in granting the reliefs different from the reliefs that would have been granted, had the case been decided before the Act 1963 came into operation.

(b). The Specific Relief Act 1963 in general and the provisions of Sections 12 and 20 of the Act 1963 in particular were in essence procedural and as such there was no bar to a retrospective application of the Act of 1963.

(c). As a matter of interpretation and having regard to the nature of Specific Relief Act generally and Sections 12 and 20 in particular, these Sections are applicable even if they involved retrospectivity.

(d). The decree for specific performance of contract being governed by Section 12 of the Act 1963, which Act was applicable on the facts of this case, the plaintiff was entitled only to the proportionate price and not to the whole of the consideration amount, the decree being only in respect of the part to which the contesting defendant had title.

(e). In any event the plaintiff having offered to relinquish his rights in this Court, the suit for specific performance should not be dismissed on the ground of the said relinquishment not having been pleaded in the plaint.

(f). There was no delay or laches on the part of the plaintiff and the trial court had properly exercised its discretion in granting the relief for specific performance.

12. I would now take up the consideration of the question whether, in case the plaintiff is entitled to specific performance of contract, the decree which he may be entitled to, will be with reference to application of the provisions of Act of 1877 or with reference to the Act of 1963. The broad points taken by Mr. Roy for the appellant were developed in this way. The Act of 1877 has been repealed by Section 44 of the Act of 1963. This repeal is a repeal simpliciter and as such Section 6(c) of the General Clauses Act will be applicable, in case it is held that the plaintiff has acquired a substantive right on the date of repeal. Sections 1 and 3 of the Act clearly indicate that the Act of 1963 is prospective. It is well settled that an Act has to be applied prospectively unless the Act is made to have a retrospective operation either expressly or by necessary implication. The only relevant exception to this general principle is where the Act is procedural and does not affect substantive rights. The principle aforesaid is more strictly applicable where before the passing of the Act a suit has been instituted and as such pending actions are not affected by laws which are prospective. With reference to Section 15 of Act 1877 and Section 12 and Section 20(4) of the Act 1963 he submitted that these sections create or affect rights and obligations and as such confer substantive rights on the parties. Since the Act of 1963 does not make its provisions applicable to pending actions in express term, and there is nothing in Sections 12 and 20 of the Act of 1963 which will lead to the conclusion that there was an intent to apply them retrospectively, the rights of the parties must be governed by applying the provisions of the Act of 1877.

13. Mr. Lal Narain Sinha, the learned Advocate General, on the other hand, amplified his points thus: Specific Relief Act of 1963 in general and Section 12 in particular is adjective law and deals with procedural aspects. The question as to what is the equitable way of enforcing mutual rights of the parties is not a matter of substantive right, but is a matter of procedure. It is not the right but the relief which flows from the right which is subject matter of Legislation in Section 12 of the Act. Section 12(3) has altered the manner in which the discretion in granting a decree for specific performance of contract has to be exercised. This does not affect any substantive right of the parties but defines the way and the extent to which specific performance is to be enforced, For similar reason Section 15 read with Section 17 of the Act of 1877 is in its true scope procedural in nature. Further Section 12 of the Act, 1963, which governs the manner of exercise of discretion by the court in granting of decrees for specific performance is not, on true construction, to be applied retrospectively. A Statute is not deemed retrospective in its operation merely because it interferes with an existing right. The scheme of Section 12 makes it clear that at the time of passing a decree for specific performance of contract, the court is by legislative mandate directed to act in a particular way. In obeying such mandate, the court is not applying the act retrospectively but exercising its power prospectively. Section 12(1) of Act of 1963 speaks of "specific performance of part of contract". The expression contract in the said sub-section cannot be limited to contracts entered into after the passing of the Act. The sub-section embraces within its compass earlier contracts and it is only the working out of the equities which is the subject matter of legislation in Section 12 aforesaid. Alternatively, Section 12, by necessary implication, contemplates application of its provisions retrospectively. The argument regarding the true nature and scope of the section, as mentioned above, has a direct bearing on the question of retrospectivity, and shows the legislative intent to apply the Section 12 of the Act 1963 retrospectively. The said section speaks of inability to perform the whole of the contract. This inability has to be judged at the ultimate stage, i.e. at the point of the time when the decree is going to be passed, and has to be judged not only in respect of contracts after the passing of the 1963 Act but also in respect of contracts which had been entered into even before that date. The section is, therefore, applicable to past transactions and retrospective application is implicit in this provision. A reference to Section 18 of the old Act also indicates that the condition of applicability of the provisions of the Act are with reference to the date when it is to be applied.

14. I shall now consider the contentions of the respective parties. It cannot be disputed that the rights and obligations of the parties had to be governed by the Act of 1877, on the date when the suit by the plaintiff was instituted in the trial court. It was during the pendency of the suit that the Act of 1963 came on the Statute Book. In the context of the present case, the scope and true effect of Section 15 of the Act of 1877 will answer many of the contentions raised during the course of the argument and noticed earlier. Sections 14 to 17 of the Act 1877 Constitute a complete code in themselves. Section 17 of the said Act states that the court shall not direct the specific performance of a part of contract except in the cases mentioned in Sections 14, 15 and 16. Section 14 deals with the specific performance of part of contract where the part unperformed is small, whereas Section 16 deals with specific performance of a part of contract, where that stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically enforced. Section 15, with which we are more directly concerned, deals with specific performance of part of contract where part unperformed is large. Section 15 may be usefully quoted:

Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party direct the party in default to perform, specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.

15. It would be seen that Section 15 aforesaid specifies the rights and obligations of the parties to a contract, whose specific performance is sought to be enforced. It lays down that where a party is unable to perform the whole of his part of contract he is not entitled to obtain a decree for specific performance. It further gives a discretion to the court (a discretion to be judicially exercised on well settled principles) that at the suit of the other party, who is not in default, the court may direct specific performance of that part of contract which the defaulting party is capable of performing. It further lays down that the party seeking specific performance must relinquish all his claims to further performance and all right to compensation as mentioned in the Section. Thus, whereas on the one hand the section gives a right to have a part of the contract enforced to one contracting party, it gives on the other hand, a right to the other party to have the whole of consideration amount stipulated for the performance of the entire contract. It also absolves the defaulting party from the consequences which he might have ordinarily suffered on account of the breach on his part. As I understand the section, it does not confine itself to procedural aspects; but it also defines the rights and obligations of the parties to the contract in the circumstances and to the extent contemplated by the section. A law may define the rights which it will aid and may also specify the way in which it will aid them. In so far as it defines, thus creating, those rights the law is substantive law, while in so far as it provides a method of protecting or aiding it, it is law of procedure. It is, therefore, from this point of view that the controversy between the parties has to be further examined. It has been argued that the Specific Relief Act is procedural in nature. Reference has been made to (x) the introduction by D.F. Mulla in his Standard Commentary on the Contract and Specific Relief Act where he has opined:

Specific relief, as a form of judicial redress, belongs to the law of procedure, and, in a body of written law arranged according to the natural affinities of the subject-matter, would find its place as a distinct part or other division of the Civil Procedure Code.

Reference was also made to the Full Bench Decision of Calcutta High Court in the case of (1) Moulvi Ali Hossain Mian and Others Vs. Rajkumar Haldar and Others, where at page 426 it is stated:

Moreover the Specific Relief Act embodies what in essence is adjective law and the substantive law must be looked for elsewhere.

It may be that the Specific Relief Act, by and large, may be said to deal with procedural aspect of the law of specific performance; but that in itself does not mean that none of the provisions of the Act deal with or confer rights on the parties. The CPC is in its essence a law of procedure. Nevertheless the right of appeal, provided for in the Code, has been consistently hold to be a provision conferring substantive rights on the parties. It is not the general nature of the Act as a whole which is really relevant for our purpose. What is of real importance is to see whether the provisions with which we are directly concerned is substantive law or is adjective law or is an amalgam of both. I may state that in the Full Bench decision of this Court in the case of (2) Tika Sao and Others Vs. Hari Lal and Others, Fazal Ali, J. referring to Section 27A Specific Relief Act of 1877 stated that the section "confers an active title on the lessee provided that the contract of lease was entered into after first April, 1930." It would thus be seen that at least in respect of one of the provisions of the Act it has been held that it deals with substantive rights. I have already dealt with the scope and true nature of Section 15 of the Act of 1877 and it appears to me that the section is exclusively neither the one nor the other but a combination of both the substantive law and the procedural law. Similar is the position with respect to Section 12 of the Specific Relief Act of 1963 which embodies Sections 14 to 17 of the Act 1877 with certain amendments and alterations. It would be noticed that, Sub-section 3 of Section 12 with which we are vitally concerned, brings about a change in a very vital aspect as compared to the Act of 1877. Whereas in the earlier Act the party seeking specific performance under the corresponding provisions of Section 15 had to pay the entire amount of consideration stipulated in the agreement even where he was seeking enforcement of a part of the contract, under the present Act he has to pay only a part of the consideration after abatement in the amount of consideration as mentioned in the section. This change on a vital aspect is not really a change in respect of procedural aspect but on the other hand it fixes and specifies the mutual rights of the parties which may properly be classified under the head substantive law. It may be stated that the observation that the "substantive law may be looked for elsewhere" made in (1) Hossain Mians case was made with reference to Section 27(b) of the Act of 1877, as will be apparent from the lines that follow which are:

In our judgment the substantive law, the foundation for specific relief provided for in Section 27(b) Specific Relief Act, is to be found in Para 2 of Section 40, T.P. Act.

A perusal of Section 27(b) will clearly show that the said provision deals exclusively with procedure and in that situation it was rightly pointed out that the substantive law may be looked for elsewhere. The next argument that Section 12 of the Act of 1963 only lays down a new or amended remedy and is thus truly speaking procedural in nature is also, in my opinion, not correct. It is true that provisions introducing new remedies have been classified with provisions as to procedure, but as has been pointed out in (24) Halsburys Laws of England (3rd Edition Vol. 36 P. 428):

The reference to new remedies should on principles be taken to be confined to remedies granting of which would not alter the substantive rights of the parties. Thus in the Iron sides (1862) Lush 458 the new remedy consisted of no more than an alternative mode of enforcement.

I may also usefully refer to the observation of Lord Wright M.R. in (3) a Debtor, ex parte Debtor (1936 Chancery 237 at page 243):

Thus while an appellate court is able, and bound, to give effect to new remedies which have been introduced by enactments passed after the order appealed from was made by the court of first instance, yet with regard to substantive rights it is well established that the appellate court must give effect to the same law as that which was in force at the date of earlier proceeding.

16. The next branch of contention of the respondent, that in granting relief u/s 12 of the Act of 1963, the court does not apply the provisions retrospectively but applies them only prospectively may now be considered. Strong reliance was placed on the case of (4) West V. Gwynne (1911) 2 Chancery Division 1, and particularly on the observation of Buckley L.J. to the following effect.

To my mind the word "retrospective" is inappropriate, and the question is not whether the section is retrospective. Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case.

The relevant facts of this case were these. The plaintiff was an assignee of a lease dated 31.7.1874, which contained a covenant that the lessee will not, during the period of lease, assign sub-lease etc. the demised premises without consent in writing of the lessor. The lease also contained a proviso for re-entry in case of default by the lessee in performance of any of the stipulated covenants. In February 1909 the plaintiff applied to the defendant for his consent to a proposed under-lease of a part of the premises. The defendant was not prepared to give the consent unless the plaintiff agreed to certain conditions specified by him. The plaintiff brought an action for a declaration that the defendant was not entitled to impose the condition, and in the events which had happened the plaintiff was entitled without any further consent on the part of the defendant to the grant of the proposed under lease upon the terms approved by the defendant except the conditions laid down by him. Section 3 of the Conveyancing and Law of Property Act, 1892 prevented exaction of a fine by the lessor for giving the lessee a licence to assign. The question for consideration was whether this provision applied to the leases created before the Act came into force. The observations quoted above were made in that context. The court of appeal affirming the decision of Joyce, J. held that the said section was applicable, and the plaintiff was entitled to the declaration claimed. Interpreting the section, Cozens Hardy M.R. held that the language of the section was perfectly general and that the expression "all leases" would include leases created before the enactment.

He observed:

I doubt whether the power to refuse consent to an assignment except upon the terms of paying a fine can fairly be called a vested right or interest. Upon the whole I think Section 3 is a general enactment based on the grounds of public policy, and I decline to construe it in such a way as to render it inoperative for many years wherever leases for 99 years or it may be 999 years, are in existence.

Buckley, L.J. also observed:

I am asked to read this as if it were not "In all leases" but, "In such leases as shall be executed after the commencement of this Act." I see no reason for so doing. "All leases" means, I think, all leases, that is to say, both existing leases and leases to come into existence.

Kennedy, L.J. observed:--

The opening words, "in all leases", prima facie negative a distinction between leases made before and the leases made after the passing of the Act. Nor is there anything in the context to prevent or modify this inference.

He further observed:--

I do not think that an enactment which prevents the lessor from availing himself of the lessees covenant not to assign without licence as an indirect instrument of profit falls properly within the category of enactments which take away either vested rights or the legal character of a past transaction, or which impair an existing contract, and it is chiefly to such an enactment that the rule "nova constitutio futuris forman impenere bebet, non practeritis" has been applied by the Court in the series of cases to which I have already referred.

The above discussion would show that the two broad lines of reasonings which induced the Court of appeal to apply Section 3 of the Conveyancing and Law of Property Act, 1892 were;

(a) On a true construction of the provision of the section in question leases created before and after passing of the Act were in contemplation of the legislature and the provision should, therefore, be applied to lease created before the enactment of 1892.

(b) The mere fact that an existing right in affected (Sic) does not involve retrospectivity. It would be a different matter if it affects vested rights.

It would be pertinent here to quote a few lines from the judgment of the trial Judge, Joyce, J. who interpreting the Section in question observed:

The section does not take away any accrued right of action, nor is there any interference with past transactions, does it affect, to my mind, anything which can very aptly be termed a vested right at all. The exacting of this fine for giving the consent may, perhaps, more correctly be called a privilege to require a payment in a certain contingent event than a vested right.

In the present case, if my interpretation of the relevant provisions of the two Specific Relief Acts is correct, there is certainly the question of vested rights or vested interests being affected. I may further state that the right of action crystallises when an action is brought and a suit is instituted. In the present case there was such a crystallisation of the rights of the parties by the institution of the suit by the plaintiff. It would thus appear that accrued right of action as also vested rights would be affected in the instant case if Section 12 of the Act of 1963 is applied instead of Section 15 of the Act of 1877. Section 15 of the Act of 1877 does not contain expressions, similar to these used in Section 3 of Conveyancing and Law of Property Act, of 1892 which could be so construed as to make the aforesaid section applicable even to pending actions. Nor is this a case of merely effecting an existing right without affecting vested rights. Consequently, I am of the view, that the case of (4) West V. Gwynne (Supra) is of no help to the respondent and is inapplicable in the facts and circumstances of the present case. I may now briefly, deal with the observation of Buckley, J. relied upon by the respondent. It is not necessary to go into the question as to what is meant by the expression "retrospective operation". As has been stated by Maugham, J. in (5) Garduor & Company V. Cone (1928) Chancery Division 955.

It seems to me that the word retrospective is used in several senses and that leads to a good deal of confusions. An act may be called retrospective because it affects existing contracts as from the date of its coming into operation and this section is instance of that. It may be properly described as retrospective because it applies to actual transactions which have been completed, or to rights or remedies which have already accrued; or it may apply again to such matters as procedure and evidence; and in each of these matters retrospective legislation has a different effect.

It is, therefore, clear that the observation of Buckley, J. does not exhaust the class of retrospective legislation. In any event in this case it is not really necessary to go into all these niceties for if Section 12 of the Act of 1963 affects vested rights or an accrued rights of action the said section can not apply, unless as a matter of construction it is held that Section 12 has retrospective operation.

17. The alternative argument that Section 12 of the Act of 1963 has retrospective operation may now be considered. The question whether a Statute operates prospectively or retrospectively is essentially a question of legislative intent. In discovering such an intent certain principles are now firmly established. Before stating the relevant principles some of the decisions of the Supreme Court and Federal Court may be briefly noticed. These decisions leave no doubt as to the principles which have to be applied in deciding whether a legislation is prospective or retrospective. Thus, in (6) Garikapatti Veeraya Vs. N. Subbiah Choudhury, S.R. Das, C.J. delivering the judgment of the Court observed:

The golden rule of construction is that, in the absence of anything in the enactment to show that it has to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.

Reference in this connection may be made to the decision of the Supreme Court reported in (7) Mahadeolal Kanodia Vs. The Administrator-general of West Bengal, where Das Gupta, J. observed:

Statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective; they are retrospective only if by express words or by necessary implication the Legislature has made them retrospective.

Reference may also be made to (8) State of Bombay Vs. Supreme General Films Exchange Ltd., . where it was held that "an impairment of right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs and imperils the substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment". In the case of (9) Rafiquennessa Vs. Lal Bahadur Chetri (Dead) through his Representatives and Others, Gajendragadkar, C.J. speaking for the Court approved the observation of Wright, J. in Athlumney Ex Parto Wilston, to the following effect;

It is a general rule that when the Legislature alters the rights of the parties by taking away or conferring any right of action, its enactment, unless in express terms they apply to pending actions, do not affect them.

The learned Chief Justice qualified the said observation thus:

We ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retrospective operation appears to be clearly implicit in the provisions construed in the context in which it appears.

In the case of (10) AIR 1941 16 (Federal Court) Sulaiman, J. while considering the effect of a Statute in a pending action stated:

It is well recognised rule that statutes should, as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated. When a Statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts, nor gaps filled up in order to widen its applicability. It is well established principle that such Statute should be construed strictly and not given a liberal interpretation.

Varadachariar, J. put the matter thus:

There are two recognised principles, (1) that vested rights should not be presumed to be affected and (2) that the rights of the, parties to an action should ordinarily be determined in accordance with the law as it stood at the date of the commencement of the action. The language used in an enactment may be sufficient to rebut the first presumption, but not the second. Where it is intended to make a new law applicable even to pending actions, it is common to find the Legislature using language expressly referring to pending actions. But it will be seen from the decision of the Privy Council in 15 Pat 268, that it is not necessary that the intention of the Legislature should always be expressed in that particular form.

18. Some of the principle which may be relevant for the present purposes may be, thus, briefly summarised.

(a) Statutes taking away, impairing or imperilling substantive rights are ordinarily prospective.

(b) In order that a Statute may be applied retrospectively in the above situation there must be either express provision in the Statute or such an intention must be necessarily inferred from the provisions thereof.

(c) If it is doubtful whether the Statute was intended to operative retrospectively, the doubt should be resolved against such operation.

(d) An enactment which puts a new restriction or puts a more onerous condition on the exercise of substantive right is presumed to be prospective and will be held to be retrospective only if it is so made either expressly or by necessary implication.

(e) The taw dealing with procedure in the absence of anything to the contrary, is, retrospective in operation.

(f) The above rules apply even to pending actions.

19. The various reasons suggested by the learned Advocate General for contending that retrospective operation was implicit in the provision aforesaid have already been noticed by me and need not be repeated. In my opinion, none of the reasons suggested lead to the conclusion that retrospective intention is implicit in the provision. The fact that certain conditions or criterions are laid down which are to govern the exercise of power, or that it is not specifically stated that the contract in respect of which the power is to be exercised are contract entered into after the passing of the Act or that the inability to perform the whole of the contract (vide Sub-section 3) is to be judged on the date of exercise of power by the Courts do not lead to a conclusion that, the Legislature intended that the power was to be exercised retrospectively so as to affect vested rights or, the provision was retrospective in operation. Even if the intention was to make the legislation prospective the section would have been framed and couched in the same language in which it has been enacted in the instant case. Language which is also apt in a situation which contemplates prospective application will not be of any assistance in deciding whether or not an Act or provision thereof is retrospective. What is required in that the consideration of the relevant provisions or terms thereof unqualifiedly give the Statute or provision thereof a retrospective operation or imperatively require such a construction or negative the idea that it is to apply to future cases. None of the aforesaid conditions are, in my opinion, present in the instant case or are inferable on the basis of the reasons suggested in the course of argument by the learned Advocate General.

20. I will now briefly deal with some of the cases which will show that the courts have not given retrospective operation to an Act in circumstances which were stronger than those in the present case;

(a) In (11) Moon V. Durden (1848) 2 Ex. 22 Section 18 of the Gaming Act 1845, was being considered. The section provided "no suit shall be brought or maintained for recovery, money etc". It was held that the expression mentioned above did not affect a pending action and the section was not retrospective in its operation. This case has been approved by the Federal Court in (10) Atiqa Begums case and by the Supreme Court in (6) Garikapati Veerayas case referred to above. Similar decision was reached on the Gaming Act, 1835 and enacted that no action for the recovery of money under the said section shall be entertained by any court. In (12) Beadling V. Goll (1922, 39 T.L.R. 128) it was held that the Act did not operate to put an end to a pending action. Similarly in the case of (13) Henshall V. Porter (1923 2 Q.B. 193) it was held, after consideration of a number of authorities, that the language of Section I of the Gaming Act, 1922 did not give the Act retrospective operation. In this case it was further held that although the action had not in fact been commenced, the section in question would not be applicable inasmuch as the liability in question had arisen before coming into force of the Gaming Act of 1922.

(b) The question under consideration in (14) Smithies V. National Association of Operative Plasterers and others (1909) I.K.B. 310 was whether Section 4 of the Trades Dispute Act, 1906 was retrospective so as to prevent the continuance of an action against a Trade Union, which was commenced before the passing of the Act. Section 4 of the aforesaid Act contained the words "an action against a Trade Union....shall not be entertained. "It was held that the action which had been commenced before the passing of the Act, would not be affected. It is of interest to notice that two of the Judges, Buckley and Kennedy L. JJ. who were parties to the case of (4) West V. Gwynne, were also members of the Court deciding this case. They did not find their decision in (4) West V. Gwynne as an impediment in requiring the section to be applied only if it could be interpreted to have retrospective effect.

(c) In (15) Re Chapman Cocks V. Chapman (1896 1 Chancery 323) Section 4 of Trustee Act, 1894 fell to be considered. The section exempted a trustee from breach of trust "by reason only of his continuing to hold an investment which has ceased to be an investment authorised by the instrument of trust." Prior to coming into force of this provision as trustee had committed a breach of trust as he held an investment which was not an authorised investment. The question was whether this section absolved such trustees of their liability. It was held that the section was not retrospective and the trustee was consequently liable for the breach.

(d). In (16) Re Suche and Company Ltd. [(1876) 1 Ch.D. 48] Section 10 of the Judicature Act, 1875 was being considered. The section directed that the winding up of any company whose assets may prove insufficient for payment of its debts will be governed by the same rule as may be in force under the Law of Bankruptcy. It was held that winding up commenced before the commencement of the Act was not governed by this provision as the same was not retrospective. In deciding the case Jessel, M.R. observed "I so decide because it is a general rule that when the Legislature alters the rights of parties by taking away or conferring in right of action, its enactments, unless in express terms they apply to pending action do not affect them. I may add that the same principle will be applied whether a right of action is taken away or is substantially affected.

21. I may now deal with the three decisions specifically relied upon by the respondent:

(a). (17) Craxfords (Ramsgate), Ltd. V. Williams and Steer Manufacturing Co. Ltd. (1954) 3 All E.R. 17. In this case the question for consideration was whether or not Section 4 of the Sale of Goods Act. 1893 was procedural. The section made contracts in respect of which there was no sufficient note or memorandum unenforceable by action. The Law Reforms (Enforcement of Contracts) Act, 1954, repealed Section 4 of the Sale of Goods Act aforesaid. Although, a writ had been issued by the plaintiff before the repeal aforesaid, it was held that in view of the fact that Section 4 aforesaid was procedural, the defendant to the action could not plead bar of Section 4 in the action. There is no similarity between the section under consideration in the aforesaid case and the sections which are subject-matter of decision in this appeal, particularly in view of the true effect and scope of the sections of the two Specific Relief Acts as interpreted by me.

(b). (18) Leroux V. Brown (138 E.R. 1119). By an oral agreement a contract was entered into in France. According to Section 4 of the Statute of Fraud such an agreement had to be reduced into writing. In an action brought in England, the question was whether the section aforesaid was applicable so as to non-suit the plaintiff. If it was a procedural section it would be applicable even to contracts made outside the country and thus the plaintiff would not be entitled to maintain the action. Jervis, C.J. held that section in question related only to procedure, and not to the right and validity of the contract itself. In the words of Maule, J. "it is parcel of the procedure, and not of the formality of the contract." According to Talfourd, J. "the section has reference to procedure only and not to what are called by jurists the right and solemnities of the contract." It would thus be seen that this case also is not at part with the case now under consideration.

(c). (19) Bigan Singh Vs. Sayid Shah Zaffer Hussain and Others, .

In this case, the respondent who obtained a decree for rent, was proceeding to execute his decree. On 7.3.1938 the executing court directed issue of a writ of attachment fixing 5th of May as the date of sale. Sub-section 5 of Section 163 was introduced into Bihar Tenancy Act by an amending Act which came into operation on 10.3.1968. The question for decision was whether the amended provision would apply to the pending execution case. It was held that it would. In deciding this case the court took the view that the provision in question was procedural in nature and did not affect vested rights. Agarwala, J. observed:

The vested right of the decree-holder is to have his dues satisfied within the property of the judgment-debtor in so far as that is possible. It was never his right to have the property of the judgment-debtor sold at inadequate price.

It was further held that Section 163(5) was a remedial measure, the object of which was to prevent the sale of cultivators holding for inadequate price. It was in those circumstances that the provision was held to apply to the pending actions. It is, therefore, clear that this case is also not at par with the case under consideration and the decision aforesaid is not of any help to the respondent.

22. In view of the above discussion I am clearly of the view that Section 12 of the Act of 1963 does not have retrospective operation. I am further of the opinion that in this case the rights and obligations of the parties will be governed by Section 15 of the Act of 1877. Further consideration of the various other questions will be on the basis of this finding.

23. The other main contention of the appellant is that since by virtue of the agreement between the parties, defendant no. 1 has contracted to sell his own interest as also those of defendants 2 to 5, who were his co-sharers the same was not capable of specific performance. It was urged that, on the findings arrived at by the trial court, defendant no. 1 could not enter into a contract so as to bind the interest of defendants 2 to 5. Thus there was lack of mutuality between the parties and the contract in question was incapable of specific performance. Strong reliance was placed by Mr. Roy in the case of (20) Abdul Haq Vs. Mohammad Yehia Khan and others which was characterised by him as a binding decision, being a Bench decision of this Court. He further relied on the case of (21)(1) Babu Rameshwar Prasad Sahi Vs. Mst. Anandi Devi and Another, which was affirmed in Letters Patent Appeal, the Judgment of the Letters Patent Bench is reported in (22) Rameshwar Prasad Sahi Vs. Mt. Anandi Devi and Others, , (23)(2) Harendra Chandra Das and Others Vs. Nanda Lal Roy and Others, and (24) (3) Panchananda Kundu and Others Vs. Rajani Kanta Pal, . It may at once be stated that the decision in (20) Abdul Haqs case is not a decision of both the Judges who constituted the Bench. It is true that the contention raised by the appellant is fully supported by the decision of Das, J. in that case. Foster, J., the other Honble Judge constituting the Bench, however, took a different view in respect of the appliability of Section 15 of the Specific Relief Act, 1877. Although the ultimate conclusion in the appeal of the two Judges was the same, Das, J. held that in the circumstances of the case Section 15 of the Specific Relief Act of 1877 was inapplicable. Foster, J. took a contrary view and held that the latter part of the Section 15 was applicable to the case. This decision, therefore, is not a Bench decision which can be said to be binding on this Court. This position was appreciated by Mr. Roy when he was replying to the arguments of the learned Advocate General. He, therefore, rested his submissions on the reasonings given by Das, J. and invited us to accept the same. It would, therefore, be necessary to carefully consider the reasonings of Das, J. in the case aforesaid. The relevant facts in that case were that an agreement for sale of certain properties was entered into by defendant nos. 1 and 2 of that suit, defendant no. 2 entering into the agreement for sale also as a guardian of defendant nos. 3 and 4. Defendant no. 2 was defactor guardian of defendant nos. 3 and 4 but he had no power to convey to the plaintiff the share of defendants 3 and 4 in the properties agreed to be sold. In those circumstances one of the questions that arose for consideration was whether the plaintiff was entitled to a decree for specific performance against defendants 1 and 2 in regard to their share in the properties agreed to be sold. As already stated Das, J. took the view that such a specific performance was not permissible in law. The question of inapplicability of Section 15 to the facts of the case has been decided by the learned Judge on two main grounds. They are (a) the party against whom the contract was sought to be enforced was not unable to perform the whole of his part of contract, (b) there was no representation by the defendants that they were entitled to the whole interest in the property. The following observation of the learned Judge would show that he was giving a restricted meaning to the expression "unable to perform whole of his part of contract."

In the case before us, provided the court could carry into effect the contract as against the minor defendants, no question would arise as to the ability of defendant nos. 1 and 2 to perform the whole of their part of it.

Foster, J. dissented from this view and held:

I would not go so far as to say that partial performance in specie cannot be enforced, but in such cases as these the question is whether it can and should be enforced. The contract obviously lacks mutuality but, in my opinion, this case can be distinguished in its legal aspects from Mir Sarwanjans case (2). In that case there was an absolute lack of mutuality. This case in fact falls into one of the exceptions to the doctrine of mutuality, an exception recognised in Sections 14 to 16 of the Specific Relief Act.....In my opinion, this case is governed by the latter part of Section 15 of the Specific Relief Act.

In my view the expression "unable to perform the whole of this part of it," refers to the inability to perform in its entirety what had been contracted for by the party. If a party had contracted to sell his share as also those of some other person, may be a co-sharer, he is unable to perform whole of his part of the contract if for any reason he is unable to convey a legal and valid title to the property contracted to be conveyed by him. The language of the section is wide and simple. There is no justification for restricting the expressions used in the way suggested by Das, J. Interpreting it in the manner suggested by me, defendants 1 and 2 in that case and defendant no. 1 in the present case were unable to perform the whole of their part of the contract, their part of the contract in either case being the conveyance of the entire property which was the subject-matter of the contract. The other reasoning given by Das, J. limits the section to the cases where there has been a misrepresentation. Here again the limitation envisaged does not follow from the language of the section. To my mind, it is reading into the section something which is not there. When the language of a provision is clear and unambiguous full effect must be given thereto and the words and expressions used in the section cannot be limited in their application. This is a well recognised rule of construction. Of course, there are exceptions thereto. But none of the well recognised exceptions are applicable here, nor has it been suggested in the course of argument that they are so applicable. The matter may be examined from another point of view. Thus examined, the position appears to be, that when a party contracts to convey something more than what he legally can, it necessarily implies a representation that he is competent to convey the property contracted for. This implicit representation would be present in this case also. In support of this point of view the learned Advocate General rightly relied upon an observation of the Supreme Court in the case of (25) Silla Chandra Sekharam Vs. Ramchandra Sahu, , where at page 1792, Raghubar Dayal, J. observed as follows:--

There is some sort of representation whenever a person sells or leases property, the representation being implicit and to the effect that he is competent to sell or let the property.

Thus none of the two reasons suggested by Das, J. in (20) Abdul Haq Vs. Mohammad Yehia Khan and others appear to be real impediment in the application of Section 15, provided other conditions laid down in the section are fulfilled.

24. It appears that in taking the view regarding the restricted applicability of Section 15, the learned Judge was mainly influenced by the decision in (26) Lumley V. Ravenscroft [(1895) 1 Queens Bench 683] and the various observations made therein. The aforesaid case does not even represent the view taken by the English Courts in respect of specific performance of a contract by a person jointly interested with another and purporting to deal with the entirety of the estate. This was noticed in the case of (27) Baluswami Aiyar Vs. Lakshmana Aiyar and Others, wherein it was stated as follows:--

In Lumley V. Ravenscroft (28) Lord Lindley stated the general rule to be that in the absence of misrepresentation or misconduct when a person is jointly interested in an estate with another person and purports to deal with the entirety specific performance will not be granted against him as to his share and that his remedy was only by way of damages. But in Hexter V. Pearce (29) specific performance was granted of a contract relating to an undivided moiety of mineral property. In Burrow V. Cammell (30) a defendant who was entitled only to a moiety of the premises agreed to be sold was directed to perform with a proportionate abatement in this consideration. In Hooper V. Smarl (31), it was held that where the vendors were entitled only to a moiety of the property agreed to be sold specific performance was decreed of the moiety with the abatement of the one half of the purchase money.

This case, it appears, was not brought to the notice of the Court deciding (20) Abdul Haqs case. It is not necessary to consider in detail the various English decisions on this aspect of the law of specific performance, for the case of (26) Lumley V. Ravenscroft does not appear to have been accepted by the Privy Council as laying down the correct law, while deciding an appeal from West Africa, (28) Abdul Karim Basma Vs. Gladys Muriel Weekes and Others, . The question posed in that case was as follows:--

The other question in this appeal is whether the appellant is entitled to have specific performance of a part of his contract. He agreed to buy two houses which were owned by the first, second and third respondents as tenants in common. He cannot enforce this contract against the first respondent because she had no power to make the contract. Can he enforce it against the second and third respondents so as to require conveyance to him of the two one-third shares which belonged to these respondents.

After considering the various authorities on the question their Lordships of the Judicial Committee were of the view that specific performance of a part of contract was permissible in law. Their Lordships did not accept the decision in (26) Lumley V. Ravenscroft as laying down the correct law and clearly held that the authority of the earlier decision in Horrocks V. Rigby was not impaired by the decision in (26) Lumley. V. Ravenscroft. It may, however, be stated that so far as the present case is concerned it has not to be decided with reference to the law of specific performance of contract as applied in England but has to be decided (in view of my previous finding) with reference to Section 15 of the Specific Relief Act of 1877.

25. I now deal with the other cases relied upon by Mr. Roy. The case reported in (21) 1956 Patna 53 referred to earlier, is a decision of a Single Judge of this Court and proceeds to decide the case on the basis of the reasoning given by Das, J. in (20) Abdul Haqs case. For the reasons already given and with great respect to the Honble Judges who decided those cases, I am unable to agree with the view expressed by the learned Judges in either of the two decisions. The case reported in (21) 1956 Patna 53 was subject-matter of Letters Patent appeal. The judgment of the Letters Patent Bench is reported in (22) Rameshwar Prasad Sahi Vs. Mt. Anandi Devi and Others, . The decision of the learned Single Judge was affirmed in appeal. In deciding the appeal, however, their Lordships rested their decision on one ground only, namely, whether the delay in the circumstances of that case disentitled the plaintiff to a decree for specific performance. The question of applicability of the section, however, was not decided. The appellate decision, therefore, cannot be of any assistance to the appellant in this appeal. The next case relied upon was the case of (23) Harendra Chandra Das and Others Vs. Nanda Lal Roy and Others, . The main question in this case was whether in the circumstances of the case the contract was a divisible contract; for if it was, Section 16 of the Specific Relief Act would come into play. Such being the position this case cannot be an authority for the proposition sought to be established by the appellants counsel. The last case relied upon by Mr. Roy also does not support his contention. In fact, this case to a certain extent goes against the contentions raised by the appellant. For the present it is sufficient to say that this case holds that when a member of a Hindu joint family purports to sell not only his own share, but also the share of other coparceners and the vendor is not able to give good title to anything more than his individual share in the property, the purchaser can claim the share of the actual contracting member of the joint family and can get a decree for specific performance in respect thereof. I fail to see how this case can be of any assistance to the appellant. I would consequently reject the contention of the appellant that since he was incapable of transferring the interest of his co-sharers, the suit for specific performance cannot be decreed even in respect of his share. In fact in similar circumstances, courts in India have decreed suits for specific performance in at least two cases reported in (29) Purna Chandra Mukerji and Another Vs. Gopendra Krishna Kundu and Others, and (30) AIR 1925 465 (Lahore) .

26. I would now take up for consideration the other points raised in this appeal. The argument regarding the incompetence of the court to pass a decree for half share because it was not so claimed in the plaint was met by the respondent by referring to (31) Kalyanpur Lime Workers Ltd. Vs. State of Bihar and Another, where it was observed:

The plaintiffs learned counsel had asked for relief in course of his argument and he has made it clear that he insists on no further performance, nor does he claim any compensation for any period prior to the execution of the leases. Relinquishment of the claim to further performance can be made at any stage of the litigation. See AIR 1930 34 (Lahore) . We think, therefore, that subject to what we are going to say on the last point the plaintiff can claim relief u/s 15 of the Specific Relief Act.

I have already stated that learned Advocate General while opening the case of his client specifically stated that he was giving up the cross-objection and that he was relinquishing claim for further performance and for compensation etc. as required u/s 15 of the Specific Relief Act, 1877. The relinquishment as required by law, having been made in this Court the plaintiff-respondent could not be non-suited on this ground.

27. The two subsidiary points raised may be dealt with now. The appellant contends that one of the defendants on whose behalf defendant no. 1 is purported to have entered into a contract was a minor, there was thus absence of mutuality between parties and a decree for specific performance cannot be passed. This argument would have been valid had the contracting parties been the minor on the one hand and the plaintiff a major, on the other, as was the position in (32) Mir Sarwarjan Vs. Fakharuddin Mahomed Chowdhury, . But such is not the position here. On the facts and in the circumstances of the instant case, which have been fully dealt with in the earlier paragraphs of this judgment, Section 15 of the Act of 1877 is clearly applicable and this objection of the appellant must therefore be overruled. The other contention raised by the appellants counsel, although a little half heartedly, was that there were laches on the part of the plaintiff in bringing the suit for specific performance. The trial court has dealt with the question of laches in paragraph 44 of the judgment. The various correspondences Exts. A to A/4, Ext. 2 series and 6 series show that the plaintiff was making efforts to have the transactions completed and it was the defendant who was putting off the matter. I may refer to Ext. 2/M, a letter written by appellant no. 1 to plaintiff-respondent which clearly shows that till before that date i.e. 13.4.1962, defendant no. 1 was holding out that the transaction would be completed. He stated in the letter "Hope that you will finalise the matter in April so that our brotherly relation will stand as it is." "In the circumstances, I am of the opinion that in instituting the suit on 14.5.1962 there was no laches or delay on part of the plaintiff. The court, in my opinion, has rightly decided to exercise its discretion for the grant of relief of specific performance.

28. Lastly, I wish to notice that in this case elaborate arguments were made by the counsel of the parties on the question as to what would be the amount of consideration payable by the plaintiff in case Section 12 of the Act of 1963 was applicable. According to Mr. Roy it was on payment of the entire amount of consideration that a decree could be passed. The learned Advocate General on the other hand contended that it would be on payment of proportionate price for the share of defendant no. 1. As I have already held that it is Section 15 of the Act of 1877 which will govern the rights and obligations of the parties it is not necessary to go into this question.

29. In the result, while confirming the findings of the trial court that the plaintiff-respondent is entitled to a decree for specific performance of contract, I would hold, in modification of the findings of the trial court, that the plaintiff is entitled to the decree for specific performance in respect of half share of defendant no. 1 on payment of the entire amount of consideration stipulated in the agreement i.e. Rs 60,000/-. The extra amount of Rs. 30,000/- which the plaintiff has to pay on the basis of this judgment should be deposited in the court below within three months from the date of this judgment. I would, accordingly, allow the appeal in part as indicated above. As the success of the parties has been divided the parties are directed to bear their own costs throughout.

S.N.P. Singh, J.

I agree.