1. The question involved in this second appeal is whether Section 13 of the Indian Limitation Act saves the suit from being barred against the appellant who was the third defendant in the trial Court. The suit was upon a mortgage executed by the first defendant in favour of the plaintiff on the 22nd April, 1916. The executant left British India in 1920, and returned a few days before the suit. After his return, the present suit was filed impleading the mortgagor and the appellant who was the purchaser of portions of the mortgaged property from the 1st defendant. The 1st defendant sold some properties to the appellant and some others to the third respondent who was the fourth defendant in the suit and then left for Penang in the year 1920. There was some doubt whether before he left India, the first defendant had disposed of all his properties. It has now been made clear by the production of the registration copy of a sale deed which though referred to in the written statements was not actually exhibited in the tower Court. It is said in the written statement that the first defendant had sold all the properties before he left India. There Was also some evidence even on the plaintiff's side to this effect. But I wanted to satisfy myself whether it was really so. Sale deeds were filed and exhibited with respect to two of the three mortgaged properties. As regards the other I directed the original or a registration copy of the sale deed to be produced. That was done and I marked it as Court Exhibit I. The question has now to be decided on these facts.
2. The first defendant, the mortgagor, sold all the properties, some to the appellant and some to the third respondent.. He had no interest whatever in the mortgaged properties but he was still liable under a personal covenant. He left India in 1920 and returned in July, 1941. The suit was filed on the 5th August, 1941. All this time, the third and fourth defendants have been residing in India. The appellant's contention is that the suit is not saved against him and that Section 13 of the Limitation Act on which reliance is placed helps the plaintiff only so far as the absentee defendant is concerned. Both the lower Courts repelled this contention and decreed the suit. The relevant portion of Section 13 runs thus:
In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from British India shall be excluded.
3. The appellant was throughout in British India and the argument is that the expression 'time during which the defendant has been absent from British India'' indicates that the sujt, is saved only against him. Reliance is placed on a decision of this Court in Pahmdppa Chettiar v. Veerappa Ckettiar (1917) 34 M.L.J. 41 : I.L.R. 41 Mad. 446, where it was held that where one of several partners was away outside British India but the others resided in British India and the suit was filed against all after the return of the absentee the suit was barred against those who were all along in British India. The learped Judges postulated the question thus:
One is whether the plaintiff is entitled to claim a reduction of time as against all the defendants by the fact that one of them was absent from British India.
4. After stating that the question was not covered by any authority India, the learned Judges referred to some decisions of the English Courts and pointed out that the liability of several executants of a document was joint and several as laid down under Section 43 of the Indian Contract Act, that Section 249 of the Indian Contract Act enunciated the same principle as regards partners and that consequently the plaintiff could have filed a suit for the recovery of the whole of the amount against the executants who were in British India. It was therefore held that as a suit could have been filed against such defendants, the suit was barred by the plaintiff's inaction for over the statutory period. They held that the bar was not saved merely by reason of the absence of one of the defendants. It was held by Lord Denman, C.J., in Fannin v. Anderson (1845) 7 Q.B. 811, that if one of the defendants was absent in a foreign country, the plaintiff was entitled to have the period of absence deducted in his favour as against the particular defendant and his co-promisors; to the same effect is the decision of Jervis, J., in Towns v. Mead (1855) 16 C.B. 123. These two decisions were quoted with approval in Roddam v. Morley (1857) 1 De G.J. 1 . These decisions were brought to the notice of the learned Judges who decided the case of Palaniappa Chettiar v. Veerappa Chettiar (1917) 34 M.L.J. 41 : I.L.R. 413 Mad. 446. The learned Judges stated that the English Statute is not very different from Section 13 of the Indian Limitation Act. After referring to the three decisions of the English Courts above referred to, the learned Judges said this:
Prima facie therefore the extreme contention of the learned vakil for the appellant would seem to derive support from these decisions; but, on examining them, we are of opinion that the plaintiff is not entitled to deduct the time of absence of defendant I as against the other defendants. Mr. Shephard in his Commentary on the Indian Limitation Act points out that, under the English law, if a co-obliger who is within the jurisdiction is sued, it is open to him to demur to the trial of the action on the ground that the other co-obligors should also be proceeded with at the same trial.
5. Then they referred to the passage in Fannin v. Anderson (1845) 7 Q.B. 811, to this effect. ' The plaintiff cannot bring the absent defendant into Court by any act of his; and therefore if he be compelled to sue those who are within six years, without joining those who are absent, he may possibly recover against insolvent persons, and lose his remedy against the solvent ones who are absent.'
6. Seshagiri Ayyar, J., who delivered the leading judgment took this passage from Fannin v. Anderson (1845) 7 Q.B. 811, as the ground of the English decisions and held that as under Sections 43 and 249 of the Indian Contract Act, a suit would lie against any one of the co-promisors or partners, the English decisions would not apply.
7. It is urged for the respondent-plaintiff that this decision is open to exception.. It is pointed out that the question is not whether a suit would have lain against those present in British India without impleading the absentee defendant and that the only question is whether the terms of Section 13 of the Act are satisfied. He takes the word 'defendant' to mean any one of the defendants and urges that if any one of the defendants is absent, the suit is generally saved and that is against all the defendants. On the other hand, it is said that singular includes plural, that in the case of a single defendant, the suit would be saved if he was absent from British India but that where there are several defendants all of them must have been absent from British India and then alone Section 13 would apply Ayling and Seshagiri Ayyar, JJ., said this in Palaniappa Chettiar v. Vaerappa Chettiar (1917) 34 M.L.J. 41 : I.L.R. 413 Mad. 446.
Moreover the language of Section 13 of the Limitation Act, does not lend itself to the extreme contention of the appellant. Although the singular 'defendant' would include the plural 'defendants' the contention would necessitate our reading into the section some words like these; namely, if there are more defendants than one and any one of them happens to be out 'of British India.
8. We see no reason for adopting such a construction. We must therefore hotel that the absence of defendant I would not entitle the plaintiff to count the period of his absence in his favour as against defendants 6 and 8.'
9. It appears to me that this case can be disposed of on a short ground without entering into the larger question how far the decision in Palaniappa Chettiar v. Veerappa Chettiar (1917) 34 M.L.J. 41 : I.L.R. 41 Mad. 446, is right Section 2(4) of the Indian Imitation Act defines the word 'defendant', thus,.
defendant includes any person from or through whom a defendant derives his liability to be sued.
10. Here the first defendant sold the property in question to the appellant. The appellant, therefore, derives his liability to be sued from the first defendant. Reading this definition into Section 13, the expression 'time during which the defendant has been absent from. British India' must be read as 'time during which the defendant or any person from or through whom the defendant derives, his liability to be sued has been absent from British India.'So read, it is clear that as the first defendant from or through whom the third defendant derives his liability to be sued was absent from British India, Section 13 would apply and save, the suit from being barred against the appellant. This was pointed out by the learned District Munsiff in this case and I think that this argument is right. As pointed out by the learned District Munsiff who has written a very careful judgment, if A executes, a document goes abroad the next day lives there for a number of years and dies there and the suit is subsequently brought against his son or legal representative who has been however in British India throughout, obviously Section 13 must apply and this result can be reached only by reading the definition given in Section 2(4) into Section 13.. In such a case, the sole defendant would be the legal representative of the executant and the suit would be saved against him because the person through whom he derives his liability to be sued was absent from British India. The answer cannot be different in a case where it is not the legal representative that is the defendant in the action but an alienee from the executant. In either case, the defendant derives his liability to: be sued from or through the executant and if that person was absent from British India, the suit is saved against the defendant whether be is the personal representative or the alienee.
11. The second appeal fails and is dismissed with costs of the first respondent,