Kammili Venkataratnam vs Kammili Krishna Murthy and others

Punnayya, J.—An important question of law has arisen in this appeal. The decree-holder died on 20-11-1956 leaving behind her son, the sole surviving heir. He was minor at the time of the death of the decree-holder. Within three years after attaining majority, the decree-holder''s son filed E.P. 75/72. The judgment-debtor raised objection to the effect that the E.P. is barred by limitation inasmuch as it was not filed within the period of three years from 1-6-1956 on or before which date the 1st defendant-judgment-debtor has to pay a sum of Rs. 3000/- to the deceased decree-holder as per the terms of the compromise decree in O.S. No. 80/51 on the file of the Court of the Subordinate Judge, Machilipatnam and as the limitation started from 1-6-1956 even when the decree-holder was alive.

The Subordinate Judge accepted the objection in view of the decision in Kasam Umar v. Gulab (AIR 1956 Sau 20) and also the commentary on Section 6 of the Limitation Act 1963 by Chitaley and Rao (4th Edition at page 272) which is to the following effect.

Where limitation begins to run against one person and thereafter another becomes entitled to sue on the same cause of action, there is no fresh starting point of limitation and the disability of such person at the time of his so becoming entitled to sue is no ground for the extension of limitation under this Section.

The Chief Justice of Saurashtra High Court in the above decision also held that limitation having once commenced to run it will not be interrupted by the fact of the plaintiff''s minority and the suit having been brought more than three years from that day it is clearly barred by limitation. So holding, the learned Subordinate Judge finally dismissed the E.P. Aggrieved with the said decision of the learned Subordinate Judge. the decree-holder preferred this appeal.

Sri Seetharama Rao the learned counsel for the petitioner-appellant contends that by 1-6-1956 when the limitation started against the decree-holder, the appellant was a minor and after the decree-holder''s death on 20-11-1956 the appellant who was the sole surviving heir of the deceased could not take any steps to execute the decree on account of his minority and he filed the E.P within three years after attaining the majority and when there were no laches on his part in filing the execution petition, he is entitled to take the benefit of Section 6 of the Limitation Act. In support of his contention he relied upon a decision of the Patna High Court in Satyendra Narain Sinha and Others Vs. Pitamber Singh and Others, and a decision of the Lahore High Court in AIR 1944 409 (Lahore)

In the Patna case the decree was passed in favour of the minors on 6-8-26. The guardian of the minors applied for execution in 1931. But it was rejected as time barred and also for default on his part. One of the decree-holders attained majority in 1935. He along with the minors applied for execution. But the learned Sub Judge held it barred by res judicata, since it was rejected for default in 1931 when it was filed by the guardian of the minors and also barred by limitation. In revision it was contended that they were not bound by the acts of the guardian and they are entitled to file E.P. u/s 6(1) of the Limitation Act since one of them attained majority in 1935 itself. This contention was accepted by the learned Judge and held that u/s 6(1) of the Limitation Act a minor is entitled to institute a suit or make an application for the execution of a decree within the statutory period of three years after attaining majority and the minor should not suffer for the laches of their guardian in the matter of making an application for execution.

This decision does not help the appellant''s case. It does not lay down the principle that though the limitation had already begun to run against the decree-holder from the date of the decree, it does not continue to run against the minor when he succeeded the decree-holder on his death as his legal representative. As the decree in the above cited case was passed in favour of the minors, the minors are entitled to take the benefit of Section 6 on account of the disability to which they were subjected due to the minority at the time of the decree being passed.

The decision of the Lahore High Court is somewhat nearer to the principle put forth by the learned counsel for the appellant, though it does not directly enunciate that principle. In that case Mt. Basil, widow of All Shair mortgaged the land on 1-12-1934 for Rs. 870/- to one Ilahi Baksh. At the time of the alienation the only reversioner living was one Peer Baksh, who however died on 24-6-1938, without instituting any suit challenging the said alienation. He left him surviving a son Umar Baksh who was born on 2-8-1924. On 20-12-1940 Umar Baksh brought the usual declaratory suit challenging the mortgage on the ground of want of consideration and necessity. The suit was decreed and an appeal against that order was dismissed by the District Judge and the unsuccessful defendant preferred a second appeal to the High Court which was also dismissed by a single Judge. Then a Letters Patent Appeal was filed. Before the admitting bench the counsel for the Appellant confined himself to the question of limitation only abandoning all the other points raised in the Memorandum of appeal. On being brought to the notice of the learned Judges that on the question of limitation two Divisional Benches of that Court had delivered conflicting judgments the appeal was admitted straight to a Full Bench. The only question that fell for determination was whether the suit instituted by Umar Baksh was within time. Counsel for the appellant urged that in so far as the right of reversion is common and indivisible limitation had begun to run against Peer Baksh from the date of the alienation and as no suit was instituted within six years as provided by Article 1 of Punjab Limitation (Custom) Act 1 of 1920, the plaintiff even though a minor, could not claim any extension of time on that account in view of Section 9, Limitation Act and consequently his suit was barred by time.

The respondent on the other hand contends that a right to sue accrues to every reversioner who is in existence at the time of the alienation and although it cannot be exercised by remote reversioners in the presence of nearer reversioners, the inactivity on the part of the nearer reversioners does not preclude the remote reversioners from taking advantage of the cause of action that had accrued to them. Consequently when Peer Baksh died, his son Umar Baksh being a minor could institute a suit in his own right within the time allowed to him by law u/s 6 of the Limitation Act.

Considering a number of decisions, the learned Judges held that in the presence of a nearer reversioner a remote reversioner is in his own right entitled to sue if certain contingencies arise. It cannot, therefore be said on any valid ground that if a presumptive reversioner has failed to sue a remote reversioner who happens to be a minor at the time of the alienation, he cannot avail himself of the benefit of Sec. 6 of the Limitation Act which clearly 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 (subject to Section 8 Limitation Act) institute a suit after the disability has ceased as would otherwise have been allowed from the time prescribed therefor in clause (3) Schedule I, Limitation Act. Regarding the contention of the learned counsel for the appellant that when once time begins to run against the next presumptive reversioner, no subsequent disability or inability to sue stops it as provided for in Section 9 Limitation Act, the learned Judges held that the said Section however does not come into operation in the circumstances that obtain in a case like the present. Time no doubt will start running both against the major and minor reversioners. But they will have their own periods of limitation and in no case will the one provided for minor reversioner be affected by that of a major reversioner whether of equal or of a different degree. If the proposition advanced by the appellant is logically applied to the case of the minor presumptive heir and a major remote heir, it will evidently lead to an absurdity, for in that case the major heir will be entitled to sue even within the period allowed to a minor heir, although his own period of limitation will have expired long ago. The learned Judges ultimately held that the plaintiff''s suit was within time.

As stated above, this decision cannot be said to be a direct authority on the point and it was rendered in view of the peculiar circumstances of the case. But at the same time this decision lays down the principle that though the limitation started against Peer Baksh from the date of the alienation, yet Umar Baksh is entitled to invoke the benefit of Section 6 and his suit cannot be said to be barred by limitation on the ground that Peer Baksh did not institute any suit within the time prescribed.

But the decision of the Division Bench of Madras High Court in In Re: S. Malliah, took contrary view which is in conformity with the view expressed in Kasam Umar v. Gulab ( AIR 1956 Sau 20). In Ramakrishnaiah v. Venktata Subbarao (Supra) the sale was confirmed on 7-3-41 in favour of the decree-holder who purchased the property in the Court auction held on 28-1-1941 in execution of the decree in O.S. 37/37. Undoubtedly at that time the decree holder was alive. It is not known when exactly he died. But the first application E.A. No. 203/1941 for delivery of possession of the property as per the sale certificate was filed on 21-8-1941. The warrant was returned unexecuted as no one was present to take delivery of possession of the property on behalf of the decree-holder purchaser and that petition was closed. The second application E.A. No. 199 of 1943 was filed on 7-7-1943 for the same relief and that was struck off on 2-9-1943 as the warrant was returned unexecuted since the house was under lock and key. The third application E.A. No. 89/45 was filed for delivery of possession on 28-3-1945 and that again was dismissed on 11-7-1945 on the ground that the delivery warrant was returned unserved as the petitioner failed to accompany the amin to take delivery of possession. The fourth application E.A. 153/45 was filed on 25-9-1945 for the same relief and that was dismissed on 14-11-1945 as delivery batta was not filed. The fifth application E.A. 213/46 was filed on 22-8-1946, it was dismissed on 3-10-1946 as batta was not paid. The sixth application E. A. 49/47 was filed on 24-3-1947, for the same relief and was dismissed on 16-7-1947, as batta was not paid. It was after all these applications that the present application was filed by the legal representatives of the decree-holder on 30-3-1948. The respondents objected that the petition was not maintainable and that it was barred by limitation. The petitioners in the lower Court attempted to get over the plea of limitation by relying upon two circumstances. In the first place, it was alleged that the petitioners were minors when the earlier applications were filed, and even now petitioners 2 and 3 are minors and that therefore they were entitled to rely upon Sections 6 and 7 of the Limitation Act for extension of the period of limitation. The second contention is not relevant for the purpose of this case. The learned District Judge overruled the plea of limitation and the other objection and directed the execution to proceed. Aggrieved with the said findings they preferred appeal before the High Court. The learned judges held that at the time when the right to apply for delivery of possession accrued, the decree-holder was alive and as time began to run from that date, the subsequent disability of the legal representatives of the decree holder would not prevent the running of time. They are therefore not entitled to invoke the benefit of Sections 6 and 7 of the Limitation Act, for at the time from which the period of limitation is to be reckoned the person entitled to apply, namely the decree holder auction purchaser was not a minor. The view of the learned Judge that the applicant was entitled to the benefit of those two Sections proceeded on an erroneous presumption at that time when the sale became absolute there was no major who could have applied for delivery of possession. This ground on which therefore the learned District Judge rested his decision cannot be sustained in view or the fact that the decree-holder was a major at the material time.

Viswanatha Sastry, J. of this Court observed in Kotha Seshamma (died) and Others Vs. Pittala Venkayya and Others at para 7 that under Article 126 of the Limitation Act time begins to run from the date the alienee takes possession and u/s 9 once time begins to run nothing stops it, There may however be an extension or enlargement of the period of limitation in particular cases, as for instance, in the case of minors or other persons under legal disability under Sec. 68of the Limitation Act. Now it is only a person who has a right to sue at the time from which the period of limitation is to be reckoned, that is to say, a person who is entitled to sue at the commencement of the period of limitation that can seek the aid of Section 6. The Section does not apply to a person who is not entitled to sue at the commencement of the period of limitation.

I am inclined to follow the decision of the Madras High Court in Ramakrishnaiah v. Venkata Subba Rao (AIR 1954 Mad 331) (supra) which is a direct authority on the question under consideration and also the observations made in Kotha Seshamma (died) and Others Vs. Pittala Venkayya and Others on the same point in preference to the decision of the Lahore High Court in AIR 1944 409 (Lahore)

The legal position u/s 6 of the Limitation Act is to the effect that where the decree-holder happens to be minor, he is entitled to apply for execution within three years after attaining majority. Even if the guardian of the minor fails to execute the decree passed in favour of the minor the right to the minor to execute the decree within three years after attaining majority is not effected. But where a decree is passed in favour of minor''s father, the limitation starts from the date of decree and even if the decree-holder dies leaving behind him the minor the limitation continues to run from the date of decree and as such the execution petition filed by the minor beyond the period of limitation from the date of the decree, but within three years alter attaining majority becomes barred by limitation, since nothing stops the limitation when once it begins to run.

It is true a minor being under disability cannot execute the decree obtained by his father after his (father) death. It is also true that there are no laches on the part of the minor to execute the decree except the disability to which he is subjected. It is also true that much hardship would be caused to the rights of the minor if the benefit u/s 6 is not given to him even in case where the execution could not be applied for by the minor within the period of limitation from the date of the decree obtained by his deceased father. But on that account it is not desirable for me to give interpretation for Section 6 of the Limitation Act inconsistent with what was laid down in In Re: S. Malliah, , which represents the intention of the legislature, in clear terms.

For the aforesaid reasons I find myself unable to agree with the contentions raised by the learned counsel for the appellant. Thus I find no merits in the appeal, it is accordingly dismissed with costs.