JUDGMENT

B. Dayal, J. - This is a Second Appeal by the defendant, the Union of India. The plaintiff filed a suit for the recovery of Rs. 1,606/8/- against the Union of India alleging that from the 31st of August, 1949 to 17th of September, 1949, he had sent valuable parcels, to the addressees in Pakistan, worth Rs. 1,460/-. The addressees paid the whole amount but the Union of India failed to pay the same to the plaintiff. He,therefore, claims Rs. 1,460/- plus Rs. 246/8/- as interest thereon after giving notice under Sec. 80, C. P. C.

2. The defence taken by the Union of India was that the plaintiff did not make the claim about this amount before the 22nd of October, 1950 when it became more than one year after the parcels had been handed over to the Post Office and the claim was, therefore, barred by Rule 102 of the Indian Post Office Rules. It was contended that the Pakistan Government did not pay the money to the Union of India although the Pakistan Government had realised the amount from the addressees and consequently the Union of India was unable to pay the amount.

3. The trial court dismissed the plaintiff's suit. In appeal, the lower appellate court has decreed it on the finding that Rule 102, insofar as it fixes a limit of one year for making the claim, is ultra vires and that the plaintiff was entitled to the money even though, the Union of India may not have been able to realise the amount from the Pakistan Government. That is a matter between the Governments for which the plaintiff was not liable to suffer a loss. Against that decree, the Union of India has come to this Court. The learned single Judge finding an important question about the vires of Rule 102 of the Indian post Office Rules, has referred it to a Division Bench.

4. We have heard learned counsel appearing on behalf of the Union of India and we find that the decision of the court below was correct. Rule 102 has been framed under the provisions of Sec. 35 of the Indian Post Office Act. We have gone through all the clauses of Sec. 35 which authorises making of certain rules. None of the clauses specifically refers to a power to make such a rule limiting the period during which claims can be made. Learned counsel appearing for the Union of India contended that such rules can be framed under Cl. (1) which runs as follows: -

"The Central Government may make rules as to the transmission by post of value payable postal articles." This clause to our mind only authorises the Government to make rules regarding transmission of parcels. It does not make any rule providing for making of claims in case the money is not paid. We, therefore, agree with the lower appellate court as regards the second part of rule 102 which provides "The Central Government shall not incur any liability in respect of the sum specified for remittance to the sender in respect of a valuable postal article;.........unless and until a claim for that sum is preferred within one year from the date of the posting of that article." Learned counsel then contended that this rule may be treated as a part of the contract between the plaintiff and the Union of India as the parcel had been taken subject to the rules. Even if that is so, we are of the opinion that such a rule barring the claim of a property is hit by Sec. 28 of the Indian Contract Act, which runs as follows: -

"28 - Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights is void to that extent."

5. The only exception to these provisions is an agreement to refer the dispute to arbitration and since it is not a matter of arbitration, in our opinion, a clause of this kind in any contract saying that a claim must be made within the year otherwise the claimant will have no right to claim the money, is an invalid contract and in effect, restrain