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Rangasami Chetti Vs. Thangavelu Chetti - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in50Ind.Cas.380
AppellantRangasami Chetti
RespondentThangavelu Chetti
Cases ReferredIn Ramanuja Ayyangar v. Sadagopa Ayyangar
Excerpt:
limitation act (ix of 1908), section 6, 8, 15 - assignee of minor, right of, to extended period of limitation under section 6--'injunction or order' in section 15, whether includes attachment. - - for, although the actual current of authority, whatever its tendency here and in bombay, is in respondent's favour, it is not strong enough to conclude the question. ) 159it seems to have been suggested that the prohibitory order issued during the attachment would come within the meaning of section 15. that dictum cannot be regarded as good law in the face of beti maharani v. the deponent distinctly says. it would have been better if the subordinate judge had given a decision on the facts, as to whether the original creditor of the defendant was a major at the time of the suit. iv, there was a..........of the defendant was a major at the time of the suit. that would have saved the discussion of the question of limitation which was very elaborately argued by the learned vakil for the appellant. but as he has not done so, it is necessary to deal with the abstract question of law. the point is whether the assignee of a minor can avail himself of the privilege of the extension of limitation given by section 6 of the limitation act. in rudra kant surma sircar v. nobo kishore surma biswas 13 a.p 76 : a.w.n. (1890) 194 : 7 ind. dec.(n.s.) 47, the matter was considered very fully by a bench of five judges. garth, c.j., said: 'it seems to me that the provisions in the limitation acts, which relieve minors and others under disability are purely personal exemptions.' mitter, j., mc donell, j.,.....
Judgment:

Oldfield, J.

1. I have had the advantage of reading the judgment, which my learned brother is about to deliver, and, as I agree with his conclusion, I deal only with the one important question we have to decide, whether the appellant is entitled to the extension of time he claims, as transferee from a minor. It does not appear material that his transfer was not voluntary, but was effected by attachment followed by a sale of the debt and an order vesting it in him as purchaser; and I assume that time did not begin to run, before the minor's acquisition of the cause of action. Appellant's contention is that he is entitled to the full extension of time, which the minor would have had, if the cause of action had remained his property or, in the alternative, to three years from the date, when his own ownership began.

2. This alternative contention can be dealt with shortly. It cannot be justified by any provision of the Limitation Act; for Section 6(3) is, as will be shown, the only one extending time for a person other than the one disabled and it is inapplicable to appellant, a transferee during the latter's lifetime. In fact, the argument in this form must rest solely on the tentative reasoning of Wilson, J., in Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas 9 C.P 663 : 12 C.L.R. 269 : 4 Ind. Dec. (N.S.) 1091 that an alienation of the cause of action terminates the existing disability and on general principles carries with it the right to sue thereon, which the alienor on such termination would acquire. But with all due deference, although on general principles the transferor's right to sue may pass with the cause of action, that goes no way towards answering the question whether it does so, when the operation of those principles has been interrupted by the special law, with which we are dealing, and special consideration? have been introduced; and it is still necessary to meet the argument of the majority of the Court that the disabled person's right to an extension is personal and does not necessarily remain alive after an alienation by him.

3. Turning to appellant's argument in its wider form, I need not repeat my learned brother's references to the cases. For, although the actual current of authority, whatever its tendency here and in Bombay, is in respondent's favour, it is not strong enough to conclude the question. To turn then to the relevant provisions of the Limitation Act, their wording does not authorize appellant's contention and their intention, so far as it can be deduced, is against it.

4. Firstly as to the wording, Section 6(1) throughout refers to one person only, the person entitled to sue or apply for execution, and does not admit of the violent construction proposed by appellant, that, one person being referred to as disabled, two, that person or in the alternative his transferee, are referred to later in the clause as eligible for indulgence; and in my opinion the possibility of such construction is further negatived by the specification in Clause (3) of one person, for whose benefit the right to indulgence inheres in a qualified form, the legal representative, to the exclusion of the transferees from the disabled person during his lifetime. Next, Section 8 can, it is argued, be regarded as extending time in favour not only of the minor or idiot concerned, but also of the person indirectly disabled from suing, the transferee. But this interpretation of the reference to the person affected by the 'disability' is inconsistent with the meaning of disability in Sections 6 and 7 which are explicitly referred to and in which 'disability' is used of the particular disabilities mentioned in the former, not of the disability to sue; and in any case Section 8 is statedly ancillary to and restrictive of the concession granted in those sections and does not confer any substantive privilege. It has been suggested that the definition of 'plaintiff' in Section 2, as including a person from or through whom the right to sue is derived, is relevant to the discussion. But it plainly is not so, since this part of the Act is throughout expressed, no doubt advisedly, with reference to the person entitled to sue.

5. We are on even firmer ground, when the intention of these provisions is considered. I respectfully concur in the opinion of the majority of the Court in Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas 9 C.P 663 : 12 C.L.R. 269 : 4 Ind. Dec. (N.S.) 1091 that the privilege is personal and cannot be transferred with property or a right of action. I add only that, if the contrary were the case, Section 6(3) would be superfluous and Section 7 an exception to the principle, for which no reason has been shown, since, if the privilege of one of the persons jointly interested attaches to the cause of action, it must attach to it as a whole and the ability of one of such persons to give a discharge will be immaterial.

6. I fact, however, the appellant's contention has been supported here, as it commended itself to Wilson, J., and might perhaps have commended itself in Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai 17 M.P 316 : 4 M.L.J. 152 : 6 Ind. Dec. (N.S.) 219, of a decision had been necessary, on grounds of Convenience or in order to avoid anomaly. It is a sufficient answer that inconvenience and anomaly are almost inevitable, where the general law is overridden by personal privilege and natural expectations founded on the former are disappointed. It may be added that, where, as in England, the law is as appellant contends that it should be construed here, anomaly and inconvenience are nonetheless to be apprehended. Darby and Bosanquet, Statutes of Limitation, 2nd Edition, page 399.

7. The appeal fails and is dismissed.

Seshagiri Aiyar, J.

8. Plaintiff's assignor obtained a decree against two persons. It was assigned to the plaintiff. In execution of the decree, he attached a book debt due to his judgment debtors from the present defendant. That debt became due in August 1911. The attachment was made in November 1913. Plaintiff himself became the purchaser of the debt and a certificate was issued to him on the 22nd February 1915. The present suit was brought on the 15th of March 1915. The question is whether the suit is in time.

9. The first contention raised by the learned Vakil for the appellant before us was that Section 15 of the Limitation Act saved the bar because the attachment was pending between November 1913 and February 1915. This contention must be overruled. There is the direct decision of the Allahabad High Court in Shib Singh v. Sita Ram 13 A.L 76 : A.W.N. (1890) 194 : 7 Ind. Dec.(N.S.) 47 to the effect that an attachment is not covered by the expression 'an injunction or order' in Section 15 of the Limitation Act. The Judicial Committee in Beti Maharani v. Collector of Etawah 17 A.P 198 : 22 I.A. 31 : 6 Sar. P.C.J. 551 : 8 Ind. Dec.(N.S.) 452 held that in the case of an attachment before judgment Section 15 will not save the bar. In that decision they expressly approve the principle enunciated in Shib Singh v. Sita Ram 13 A.P 76 : A.W.N. (1890) 194 : 7 Ind. Dec.(N.S.) 47. In Shunmugam v. Moidin 8 M.P 229 : 13 Ind. Dec.(N.S.) 159it seems to have been suggested that the prohibitory order issued during the attachment would come within the meaning of Section 15. That dictum cannot be regarded as good law in the face of Beti Maharani v. Collector of Etawah 17 A.M 198 : 22 I.A. 31 : 6 Sar. P.C.J. 551 : 8 Ind. Dec.(N.S.) 452. Therefore the first contention fails.

10. As regards the applicability of Section 14, it is enough to say that the attachment proceedings are not based on the same cause of action as the suit to recover money on the book debt. Another contention was that there was an acknowledgment which saved the limitation. Exhibit B, which is relied on as containing the acknowledgment, does not acknowledge a subsisting liability. The deponent distinctly says. 'I have discharged the debt.' This is not covered by explanation I to Section 19. Following Bollapragada Ramamurthy v. Thammanna Gopayya 35 Ind. Cas. 575 : 31 M.L.J. 231 : 40 M.P 701 : 4 L.W. 48 : 20 M.L.T. 129 I hold that there is no acknowledgment of any subsisting liability.

11. The more difficult question relates to the applicability of Section 6 of the Limitation Act. It would have been better if the Subordinate Judge had given a decision on the facts, as to whether the original creditor of the defendant was a major at the time of the suit. That would have saved the discussion of the question of limitation which was very elaborately argued by the learned Vakil for the appellant. But as he has not done so, it is necessary to deal with the abstract question of law. The point is whether the assignee of a minor can avail himself of the privilege of the extension of limitation given by Section 6 of the Limitation Act. In Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas 13 A.P 76 : A.W.N. (1890) 194 : 7 Ind. Dec.(N.S.) 47, the matter was considered very fully by a Bench of five Judges. Garth, C.J., said: 'It seems to me that the provisions in the Limitation Acts, which relieve minors and others under disability are purely personal exemptions.' Mitter, J., Mc Donell, J., and Prinsep, J, were all of the same opinion. In the referring judgment no doubt, Wilson and Field, J.J., seemed inclined to take the opposite view. This Full Bench decision has been followed in Calcutta in a number of cases. In Bombay in the earlier cases ending with Mahadev v. Babi 26 B.P 730 : 4 Bom. L.R. 513, the same view was taken. But in Arjun Ramji v. Ramabai 37 Ind. Cas. 221 : 40 B.P 564 : 18 Bom. L.R. 579 the learned Chief Justice and Justice Heaton were apparently, inclined to reconsider the question. In the case before them it was the personal representative, not an assignee, that brought the suit. There is no direct decision in Madras. In Subramanya Pandya Chokra Talavar v. Siva Subramanya Pillai 17 A.P 198 : 22 I.A. 31 : 6 Sar. P.C.J. 551 : 8 Ind. Dec.(N.S.) 452 doubt seems to have been thrown upon Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas 9 C.P 663 : 12 C.L.R. 269 : 4 Ind. Dec.(N.S.) 1091. But there is co decision of the question. In Ramanuja Ayyangar v. Sadagopa Ayyangar 28 M.P 205 : 15 M.L.J. 249 it was held that where for a debt due to a minor a bond was executed benimi to the mother, the mother cannot avail herself of the extended period of limitation on the ground that the real owner was an intant. In this state of authorities it is desirable to consider closely the history and the language of Section 6. In 3 and 4 Will. IV Order 27, the disability section is Section 16. This was amended by 37 and 38 Vict. C.57, Section 3, and the amended Section 16 provides: 'If such person shall have been under any of the disabilities hereinafter mentioned, (that is to say) infancy, coverture, idiotcy, lunacy or unsoundness of mind, then such person or the person claiming through him, etc.' It must also be remembered that in both 3 and 4 Will. IV, there was a definition of the term 'person through whom another claimed,' and it clearly included the assignee. With those Statutes before them the Indian Legislature advisedly omitted the words 'or persons claiming through or under them.' It may be mentioned that even under the English section it is considered doubtful whether the assignee can get the benefit of the extended period. See page 399 of Darby and Bosanquet. But apart from that if we come to the Indian Act we find in Section 6, Clause (1), it is only the minor, the insane or the idiot who are mentioned as entitled to the benefit. Clause (2) speaks of successive disabilities to such persons. Clause (3) says that, where the disability continues up to the death of such a person, his legal representative may institute the suit. The special provision in favour of legal representatives, and the provision that such a representative can institute the suit after the death of the parson who was under disability, make it clear that an assignee was not within the contemplation of the Legislature and that suits by such assignees during the lifetime of the disabled person should not have the benefit of the extended period. Clause (4) makes a similar provision in favour of the legal representative when there have been successive disabilities. It seems to me that on the principle expressio unius personal vel rei, est exclusio alterius, Section 6 should be regarded as not applicable to assignees from a minor. These considerations show that the Legislature regarded that exemptions granted to minors were in the nature of personal privileges, which should not enure for the benefit of a bare transferee. In my opinion, therefore, the appeal fails and must be dismissed. I agree with the order of my learned brother.


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