Skip to content


Mariyayya Shidramayya Hiremath Vs. Chanvirangouda Virangouda Patil - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case Number Second Appeal No. 574 of 1931
Judge
Reported inAIR1935Bom420; (1935)37BOMLR706; 159Ind.Cas.272
AppellantMariyayya Shidramayya Hiremath
RespondentChanvirangouda Virangouda Patil
DispositionAppeal allowed
Excerpt:
.....110,115 - minority-disability to sue-minority of the hindu widow entitled to sue-adoption by minor widow -adopted son a major at the date of adoption and of accrual of cause of action: -adopted son not entitled to extended period of limitation-widow not treated as dead after adoption-adopted son not her legal representative.;during the minority of a hindu widow, her guardian leased her lands, the rent of which became due on march 31, 1925, on march 2, 1928, while the widow was still a minor she adopted the plaintiff, who was born in 1905. the plaintiff sued, on july 19, 1929, to recover the rent which had become due on march 31, 1925. the defendants pleaded that the suit was barred by limitation :-;(1) that the suit was barred by limitation, as the plaintiff could not bring;..........act. the plaintiff sues to recover rent due under a rent note made by one mallawwa, who was a minor widow at the time. the rent note was in favour of defendant no. 1, and defendant no. 2 was a surety for the payment of the rent. the rent became payable on march 31, 1925, and that is when the cause of action to recover the rent accrued. the plaintiff was adopted by mallawwa on march 2, 1928. he had been born in 1905, and therefore at the date when the cause of action accrued he was major. he started this suit on july 19, 1929, to recover the rent both against defendant no. 1, and against defendant no. 2 as surety. the trial court dismissed the suit as being barred by limitation. on appeal the district judge held that the suit was not barred, and that the plaintiff was entitled to.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a decision of the District Judge of Dharwar, and the question which arises is on the Indian Limitation Act. The plaintiff sues to recover rent due under a rent note made by one Mallawwa, who was a minor widow at the time. The rent note was in favour of defendant No. 1, and defendant No. 2 was a surety for the payment of the rent. The rent became payable on March 31, 1925, and that is when the cause of action to recover the rent accrued. The plaintiff was adopted by Mallawwa on March 2, 1928. He had been born in 1905, and therefore at the date when the cause of action accrued he was major. He started this suit on July 19, 1929, to recover the rent both against defendant No. 1, and against defendant No. 2 as surety. The trial Court dismissed the suit as being barred by limitation. On appeal the District Judge held that the suit was not barred, and that the plaintiff was entitled to recover the amount claimed. From that decision defendant No. 2 has appealed.

2. It is clear that whether the suit falls under Art 110 or Art 115 it is barred by limitation, unless the case can be brought within one of the exceptions in the Indian Limitation Act, and the exception relied on is that of minority, which is dealt with in Section 6. The plaintiff himself being a major at the time when he (commenced the suit and also when the cause of action accrued, must rely on the minority of Mallawwa, his adoptive mother, if he is to bring himself within the provisions of Section 6. Now Section 6 provides that where a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, he may institute the suit within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule. That sub-section does not apply, because the person entitled to institute this suit was not, at the time from which the period of limitation is to be reckoned, a minor. Subsection (2) clearly does not apply. But the learned District Judge held that the case fell within Sub-section (3), which provides that where the disability continues up to the death of such person, his legal representative may institute the suit within the same period after the death, as would otherwise have been allowed from the time so prescribed. The contention of the appellant is that that subsection does not apply, because Mallawwa has not died, and therefore has no legal representative. It has been held, as noticed by the District Judge, by a full bench of the Calcutta High Court (Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas I.L.R(1883) Cal. 663) that the extended period allowed by 8. 6 of the Indian Limitation Act only applies to the case of a minor and his representatives after his death, and not to an assignee from the minor. That case was followed by this Court in Mahadev v. Babi I.L.R(1902) 26 Bom. 730 : 4 Bom. L.R. 513, and notwithstanding a doubt suggested in Arjun Ramji v. Ratnabai I.L.R(1916) . 40 Bom. 564 : 18 Bom. L.R. 579, I entertain no doubt whatever that the decision was right, and is in accordance with the language of the Indian Limitation Act. It is no doubt true that an adopted son in Hindu law is not an assignee from the widow who adopts him; but, for the present purpose, he seems to me to be in a position closely analogous. The argument on behalf of the respondent, and the view seems to have prevailed with the learned District Judge, is that the widow, having adopted, must be taken to have died within the meaning of Section 6(5). No doubt, in Hindu law, some of the consequences which normally follow upon physical death follow in the case of a Hindu widow upon her making an adoption, but that does not mean that a Hindu widow who adopts can be said in the normal sense, and for all purposes, to have died. If the Indian Limitation Act, Section 6 (5), had intended to provide for cases of notional death, appropriate language could have been used. I entertain no doubt whatever that the section itself, where it says, 'where the disability continues up to the death of such person ' is referring to physical death and nothing else, and the legal representative must be a legal representative whose title depends on the death, and in my view, the opinion of the learned District Judge that the adopted son is the legal representative of the widow within the meaning of Section 6(3) of the Indian Limitation Act is quite untenable. It is argued that unless such a construction be given to the subsection, hardships will result, because in the case where a minor widow adopts, causes of action which she was competent to bring but which will be barred in the case of a major, cannot afterwards be enforced by anybody. Whether that proposition is sound or not it is not relevant to determine. But in any case, it may very well be, as pointed out by this Court in Mahadev v. Babi I.L.R (1902). 26 Bom. 730, : 4 Bom. L.R. 513, that the legislature did not intend to encourage the transfer of causes of action barred in the case of majors, but which might be sued upon in the case of a transferor who happened to be a minor. If the minor wants to take advantage of minority, she can do so before she executes a transfer or makes an adoption. In my opinion the judgment of the trial Court was right, and the judgment of the lower appeal Court was wrong. The appeal, therefore, must be allowed, and the plaintiff's suit dismissed with costs throughout as against the appellant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //