Skip to content


Seerangathuni Vs. Bava Vaithilinga Mudaliar - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtChennai
Decided On
Reported inAIR1921Mad528; (1921)40MLJ532
AppellantSeerangathuni
RespondentBava Vaithilinga Mudaliar
Cases ReferredKunthalammal v. Suryaprakasa Mudaliar I.L.R.
Excerpt:
- - if this be so, the fact that he has been brought on, as a defendant, in consequence of his unwillingness to join as a plaintiff, does not make the case any better. if a is the right person to sue, it would clearly be wrong to allow him, for the sake of avoiding the limitation ordinance, to take advantage of a suit improperly instituted by b. 10,000 it is to be utilised for certain purposes and that any balance that may be left is to be added to the 'fund 'the word 'fund 'is used in both cases in the original tamil, and it is perfectly clear that the intention of the testator was that the balance left over after the expenditure provided for in paragraph 11 was to be added to the fund already mentioned......i.l.r. (1909) cal. 229. we must therefore modify the decree of the lower court by holding the suit barred as regards the immovable properties in the possession of the 1st defendant. certain immovable properties which the testator had inherited but had not reduced into possession at the time of his death are also the subject of the suit. as regards these the suit is only for a declaration and is barred under article 120.3. the only other question for decision relates to the construction of the will. paragraph to directs that the balance left after making certain payments shall be accumulated to form a ' fund ' and paragraphs 11 and 12 provide that when the balance amounts to rs. 10,000 it is to be utilised for certain purposes and that any balance that may be left is to be added to.....
Judgment:

John Wallis, C.J.

1. This is an appeal from the revised judgment of the Subordinate Judge of Negapatam after the remand order of this court in appeal No. 114 of 1916 the finding that the 6th defendant had not renounced his executorship under the testator's will has not been seriously questioned before us, and it is accordingly necessary to deal with the question of limitation in the light of that finding. The property sued for is partly in the hands of a Receiver appointed in this suit. He had previously been appointed Receiver in a former suit filed by the present 4th defendant the 2nd daughter of the testator in which the will which is the subject of this suit was ignored and the testator's widow the present 1st defendant was impleaded as representing the estate of her deceased husband. It was the Receiver's duty in both suits to get in the estate of the deceased and he must now be taken to hold the assets collected by him subject to the orders of the court for the benefit of the persons entitled under the Will of the deceased. No question of limitation therefore arises about them and as regards them there is no sufficient reason for differing from the finding of the Subordinate Judge that the suit is not barred.

2. The next question is as regards the immovable properties belonging to the deceased which were in adverse possession of his widow, the 1st defendant for less than twelve years before the institution of the present suit by the plaintiff but for more than twelve years before the 6th defendant was added as a party defendant. It was held by this court in the order of remand that the 6th defendant as a co-executor was a necessary party to a suit for the recovery of these properties if he had not renounced probate. It has been found that he had not renounced, and he has been added as a party defendant as he was not willing to be added as a plaintiff. Now it is provided by Section 22 of the Limitation Act that 'where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him be deemed to have been instituted when he was so made a party.' It is quite clear on the wording of the section that when a wrong plaintiff sues and the right plaintiff is afterwards substituted, the suit must be regarded as instituted when the right plaintiff is substituted. Similarly as regards the 6th defendant here, if he had been brought in as a co-plaintiff, the suit must, by the terms of the section, have been regarded as instituted so far as he was concerned when he was made a party, and would therefore have been barred as to him. If this be so, the fact that he has been brought on, as a defendant, in consequence of his unwillingness to join as a plaintiff, does not make the case any better. The effect of the section appears to be that to save the bar of limitation a properly constituted suit must be filed within the prescribed period. In Meyyappa Chetty v. Subramaniam Chetty (1916) (1) A.C. 603. (P.C.) Lord Parker of Waddington in delivering the judgment of the Privy Council with reference to this section as reproduced in a Straits Settlements Ordinance observed. ' Their Lordships are of opinion that Section 22 contemplates cases in which the suit is defective by reason of the person or one of the persons in whom the right of suit is vested not being before the court. Section 133 of the (Straits) Civil Procedure Code provides against the defeat of a suit on this ground and enables the proper party to be added or substituted. If A is the right person to sue, it would clearly be wrong to allow him, for the sake of avoiding the Limitation Ordinance, to take advantage of a suit improperly instituted by B.' This is a case in which one of the persons in whom the right of suit has been held to be vested was not before the court when the suit was at first instituted, and therefore by virtue of the section it must be deemed to have been instituted when he was first brought before the court, in which case it is barred. The earlier judgment of the Privy Council delivered by Lord Macnaughten in Peary Mohun Mukerjee v. Narendar Nath Mukerjee I.L.R. (1909) Cal. 229 (P.C ) is in no way inconsistent with this ruling. There was in that case no addition or substitution either of plaintiffs or defendants to bring Section 22 into operation and consequently there is no direct ruling as to the effect of the section where parties are added or substituted. The suit was within time and was properly brought by the executors of a deceased Shebait who had succeeded to the office under the Will of an ancestor for relief against the debutter estate and all the surviving descendants of the ancestor were made parties in the first instance. Subsequently, at a date when the suit would have been barred, the plaint was amended by adding a prayer that it might be determined which of such descendants was the Shebait and that the debutter estate might be represented by the person declared to be entitled to the Shebaitship. Their Lordships held that the suit as amended was not barred 'in as much as the amendment directed by the High Court did not alter the character of the suit and no new defendant was brought upon the record. The object of the amendment was to determine judicially which of the living descendants of the original testator, all of whom were parties to the suit, was to be considered Shebait.' This certainly suggests that, if it had been found necessary to add a fresh defendant after the prescribed period, the suit would have been barred under Section 22. I am therefore unable with great respect to accept the view taken in Subramania Aiyer v. Subba Naidu (1912) 25 M.L.J. 452 and allowed in Konda Ponnappa Naicken v. Venkatasesha Aiyar (1919) 9 L.W. 377 that this decision of the Privy Council is authority for the proposition that in suits by an alleged trustee of a temple to recover moneys belonging to a temple the real trustee may be substituted for the alleged trustee and the suit continued, notwithstanding that the period of limitation had expired at the date of its institution. This is in my opinion opposed to the provisions of Section 22, a d to the decision of the Privy Council in Meyyappa Chetty v. Subramaniam Chetty (1916) (1) A.C. 603 and Peary Mohun Mukerjee v. Narendra Nath Mukerjee I.L.R. (1909) Cal. 229. We must therefore modify the decree of the lower court by holding the suit barred as regards the immovable properties in the possession of the 1st defendant. Certain immovable properties which the testator had inherited but had not reduced into possession at the time of his death are also the subject of the suit. As regards these the suit is only for a declaration and is barred under article 120.

3. The only other question for decision relates to the construction of the Will. Paragraph to directs that the balance left after making certain payments shall be accumulated to form a ' fund ' and paragraphs 11 and 12 provide that when the balance amounts to Rs. 10,000 it is to be utilised for certain purposes and that any balance that may be left is to be added to the 'fund '. The word 'fund ' is used in both cases in the original Tamil, and it is perfectly clear that the intention of the testator was that the balance left over after the expenditure provided for in paragraph 11 was to be added to the fund already mentioned. The appellant's contention that there was an intestacy as to this balance must be overruled. In the result the appeal must be allowed as regards all the immovable properties in the plaint schedule but otherwise dismissed.

4. Parties to pay and receive proportionate costs.

Ramesam, J.

5. I. concur with my Lord's judgment just delivered. The only other point argued by the appellant, viz that Ex. A does not operate as a devise of such of the immovable properties as were acquired by the testator after its execution need not be decided in view of our decision of the question of limitation. I may, however, express my opinion on it. The words 'my landed property' in paragraph 8 are sufficient to cover all the immoveable properties belonging to the testator at his death. The words ' such properties as might have been omitted by mistake' (there is a mistranslation in the printed papers--the words 'by mistake' being omitted) refer to properties and cannot be used to cut down the plain significance of the words 'my landed property on the date of the testator's death.' The decision in Kunthalammal v. Suryaprakasa Mudaliar I.L.R. (1915) Mad. 1036 does not therefore apply.

7. No order is necessary on the memo of objections.


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