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Arjun Ramji Mhankal Vs. Ramabai Raoji Vithoba - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 759 of 1914
Judge
Reported inAIR1916Bom107; (1916)18BOMLR579
AppellantArjun Ramji Mhankal
RespondentRamabai Raoji Vithoba
Excerpt:
limitation act (ix of 1908), section 7 - minor- cause of action-death of minor within three years of his attaining majority-minor's representatives can sue within three years on the same cause of action.;where a minor acquires a cause of action to sue for possession of property and dies after majority but before the expiry of three years from the date of the cessation of his disability of minority, his personal representatives can, although twelve years have expired since the cause of action accrued, institute a suit on the same cause of action at any time within the three years' period which has already commenced in the life-time of the deceased. - .....cause of action accrued, institute a suit on the same cause of action at any time within the three years' period which had already commenced in the life-time of the deceased. in our opinion the personal representative can maintain such a suit. in such a suit the deceased must be included in the term 'plaintiff' for the purpose of article 142 for according to section 3 of the limitation act ' plaintiff' includes any person from or through whom the plaintiff derives his right to sue.2. the title of the quondam minor had not been extinguished by twelve years of dispossession because on attaining majority he was entitled to a further period of three years within which to sue. to use the words of section 28 'the period limited for instituting a suit for possession of the property had not.....
Judgment:

Basil Scott, Kt., C.J.

1. The question is whether where a minor acquired a cause of action to sue for possession of property and died after majority but before the expiry of three years from the date of the cessation of his disability of minority, his personal representative can, although twelve years have expired since the cause of action accrued, institute a suit on the same cause of action at any time within the three years' period which had already commenced in the life-time of the deceased. In our opinion the personal representative can maintain such a suit. In such a suit the deceased must be included in the term 'plaintiff' for the purpose of Article 142 for according to Section 3 of the Limitation Act ' plaintiff' includes any person from or through whom the plaintiff derives his right to sue.

2. The title of the quondam minor had not been extinguished by twelve years of dispossession because on attaining majority he was entitled to a further period of three years within which to sue. To use the words of Section 28 'the period limited for instituting a suit for possession of the property had not determined.'

3. It is otherwise where a minor with the cause of action more than twelve years in existence dies pending disability. In such a case no extended term has commenced for him; therefore the cause of action which would survive up to twelve years from its origin would be extinguished on expiry of that period notwithstanding that the minor had not been able to judge whether or not to sue: for this reason the third clause of Section 7 provided a fresh term for the representative of a person with a cause of action dying under disability.

4. The express provision for such a case in the third clause of Section 7 does not therefore impliedly exclude the right of the personal representative to stand in the shoes of the deceased for the purpose of subsisting causes of action which is expressly recognised to belong to executors and administrators by Section 89 of the Probate and Administration Act of 1881.

5. In Mahomed Arsad Chowdhry v. Yakoob Ally (1875) 15 B.L.R. 357 Mark by J. observes that ' the minor or his representative in interest after his death has a special period allotted to him for bringing the suit. There are no words whatsoever in Section 7, which would give to any other person, in whatever way he might happen to be connected with the minor, any other period for bringing the suit than that specified for ordinary persons'. The question was whether the special period was not confined to the minor and his representatives after death to the exclusion of representatives after transfer if the term ' representatives' could be appropriately used for transferees.

6. A Full Bench of the Calcutta High Court came to a similar conclusion as regards transferees in Rudra Kant's case I.L.R. (1888) Cal. 668 though there are dicta of the Chief Justice and Mitter J. which would confine the rights of representatives after death to the special case provided for by the third clause of Section 7. Mr. Justice Wilson who was a member of the Full Bench and of the referring Bench gave reasons for doubting the correctness of the decisions in both the above Calcutta cases. Their correctness has been doubted also by the Madras High Court in Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai I.L.R. (1894) Mad. 316 where it is remarked that ' those decisions involve the apparent anomaly that a minor cannot transfer his title to property though at the date of the transfer it is a subsisting interest so far as he is concerned'. In this connection also we may refer to Section 6 of the Transfer of Property Act which provides that property of any kind may be transferred subject to certain special exceptions.

7. In Mahadev v. Babi I.L.R. (1902) Bom. 730 : 4 Bom. L.R. 518 a Bench of this Court has indicated a preference for the reasoning of Wilson J. in his judgments in Rudra Kant's case and has expressed the opinion that Mahomed Arsad Chowdhry v. Yakoob Ally decided that Section 7 limits to the minor and to his representatives after his death the privilege of computing the period subject to certain conditions from the date when the disability ceases or from the death of the minor before he can attain majority.

8. In this view we concur. We are not here concerned with the question decided in Rudra Kant's case with reference to representatives by transfer. Shridhar as whose heiress the plaintiff claims, died on the 5th August 1910 having attained majority on the gist December 1909-this suit was filed on the 2 and of May 1912 and is therefore in time. We affirm the decree and dismiss the appeal with costs of Ist respondent payable by the appellant.


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