Legal disability in Limitation Act 1963
Querist :
Anonymous
(Querist) 17 September 2010
This query is : Resolved
Limitation Act 1963 states:
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6.Legal disability
(1) Where a person entitled to institute a suit or make an application for the execution of a decree, is at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the times so specified.
(3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.
Explanation: For the purposes of this section 'minor' includes a child in the womb.
7. Disability of one of several persons
Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
Explanation I : This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.
Explanation II: For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.
8. Special exceptions
Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application.
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What is meant by "discharge can be given without the concurrence of such a person"?
What if there are several plaintiffs, some minor and some major, does the time period of limitation begin when the youngest of them becomes a major?
R.Ramachandran
(Expert) 17 September 2010
Dear Anonymous,
1. Where several persons jointly entitled to institute a suit or make an application for the execution of a decree, and their inter-se relationship is such that any of them, who is free from disability, can give full discharge of the whole debt or claim, without the concurrence of the others (who have the disability), then just because one of them is in a position to give the discharge, the LIMITATION will start running against all of them (including those who have the disability).
2. On the contrary, if the several persons jointly entitled to institute a suit or make an application for the execution of a decree, have a relationship, where one (who is not having any disability) cannot give a full discharge on behalf of the other without the concurrence of the other (who has the disability), then the LIMITATION will not run against any of them until every one is free from disability.
For your second query, the answer would be yes, provided they fall under point 2 mentioned by me i.e. no one (who is free from disability) is in a position to give full discharge of the claim or debt, without the concurrence of the person who has the disability.
Querist :
Anonymous
(Querist) 17 September 2010
Thank you Sir Ramachandran, for your insightful reply.
Further, I would like to ask: how can it be determined whether a major plaintiff was "in a position" to give full discharge on behalf of a minor plaintiff? Is it simply assumed by the court that parents are automatically "in a position" before law to act on behalf of their minor children as far as filing suit is concerned, without needing to wait for the child to become a major? Or can it be argued that all minors who are party to a suit need to become majors before the limitation can start running?
R.Ramachandran
(Expert) 17 September 2010
Dear Anonymous,
As a rule, one of the holders of a joint right cannot give full discharge without the concurrence of the other. There is an exception to this rule. Such discharge can be given without the concurrence of the other, if the holder of the joint right happens to be partners, executors or members of a Mitakshara joint family. In other words, if the holders of joint right happens to be members of Mitakshara joint family, then such joint holder would be able to give full discharge in respect of another i.e. minor.
However, in the case of Dayabhaga joint family, onemember cannot give discharge in regard to causes of action accruing in favour of the members of the said family.
Where a right to sue is vested jointly in an adult and a minor for whose estate a guardian has been appointed by Court, the former cannot give a discharge without the concurrence of the Court guardian.
While the above is the broad principle, one has to really look into the real case situation.
This is primarily because benefit of Section 6 of Limitation Act is applicable only in case where a person is entitled toistitute a suit or make an application for the execution of a decree.
Further the benefit of Section 7 would be applicable only when the persons are jointly entitled to institute a suit or make an application for the execution of a decree.
If however, each of the persons are entitled to bring a suit for their own share, then the benefit of Section 7 would not be available.
Querist :
Anonymous
(Querist) 17 September 2010
Thank you again Sir Ramachandran for your clarification.
It is a property case, where the legal heirs of a deceased landlord (widow and two sons) wish to sue the old tenant, who stopped paying rent around the time of the death but continued to occupy the property and will most likely argue adverse possession. It does not fall into the family categories you mentioned and each heir is entitled to 1/3 of the deceased's estate. However, approximately 12 years have passed since the death but the heirs did not make a claim. Only now they want to evict the occupant but risk dismissal due to the Limitation Act, unless the fact that the sons were minors at the time of their father's death can be used to extend the available limitation period, thereby allowing suit to be filed.
Also, one final question: what constitutes "concurrence" between co-plaintiffs in the eyes of the court? For example, would a written legal document be required, showing that one or more plaintiffs concurred with one or more of the other plaintiffs to act on their behalf due to disability? It seems difficult to prove or disprove that such "concurrence" occurred or not, unless the court automatically assumes that parents are entitled to act on behalf of their minor children. If court requires minors to provide in writing at the time that they wished, or did not wish, for majors to act on their behalf, then it could be quite complicated.
Thanking you again.
R.Ramachandran
(Expert) 17 September 2010
Dear Anonymous,
The question of claiming adverse possession would not arise once the factum of tenancy is established.
Further the minors can definitely avail the benefit of Section 7 of the limitation Act.
When the concurrence is being talked it is the concurrence by the competent person, i.e. a person who has the capacity to give the concurrence. The minors do not have that capacity. Hence, you need not worry about "concurrent" in this case.
Querist :
Anonymous
(Querist) 17 September 2010
Dear Sir Ramachandran,
Many thanks again for clarifying this for me.
I am glad that the claim of minority can be availed.
Since I have raised the question of adverse possession, and you replied that it does not arise in the case of tenancy, can you confirm if the occupant is still considered a tenant after 12 years, although the original lease with the deceased landlord has expired and no rent has been paid to, or attempted to be collected by, the heirs. In other words, does the category of tenant permanently apply to occupants who entered the property as tenants, although the lease has expired and original landlord is deceased? At any point, do tenants who stay after the expiry of a lease and payment of rent fall out of the category of tenant? If they are still tenants in the eyes of the court then, as you rightly noted, they cannot claim adverse possession.
Many thanks. It's is a great help to have your assistance in this forum because many lawyers have given me conflicting advice in this matter.
R.Ramachandran
(Expert) 17 September 2010
Dear Anonymous,
All that I am saying is that the tenant cannot set up a defence of "Adverse Possession" especially in view of the documents showing him to be a lessee. He will continue to be a tenant there can be no doubt at that, at best, he will be a tenant in default. The expiry of the earlier lease deed will not come in the way.
Go ahead. Best of luck. In the meanwhile I will also try to see whether any case laws are available in the matter.
s.subramanian
(Expert) 17 September 2010
Permissive possesion can never get converted into adverse possession .
Querist :
Anonymous
(Querist) 17 September 2010
Thanks again sir, this is of great help to me.
I hope not to take up more of your time but each reply leads to more questions.
You mentioned that an expired lease deed will act as evidence to defeat any attempt to claim adverse possession. However, if there is no such lease as evidence, does it weaken the title holder's case? Naturally, a lease is the best evidence of the tenant's status but in the absence of a lease, what can be done to prevent him from claiming adverse possession? That he entered as a tenant is known to all parties but the original lease might be difficult to trace since so much time has passed. In addition, the original title has also been lost, although the sub-registrar records still show that the deceased was the title holder and a certified copy of the sale deed has been obtained to substantiate this.
Are sub-registrar records sufficient to evict the tenant and prove that he was in fact a tenant? It is not clear if any property tax was paid by him since the original landlord's death and the heirs of the landlord have not paid property tax either. However, the original tenant, even after the expiry of the presumed original lease, is still making maintenance payments in his own name.
