Free Judiciary Notes · Limitation Act Notes
Limitation Act:- SECTION 1-11
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LIMITATION ACT, 1963
INTRODUCATION
1. The Limitation Act is a procedural or adjective law.
2. It is lex fori.
3. It is an artificial mode to determine the justiciable dispute and has to be construed strictly.
4. The Act prescribes periods after the expiry of which a suit cannot be maintained in a court of justice to enforce a right. The object of the Act is not to create or define causes of action, but simply to prescribe the period within which existing rights can be enforced in Courts of Law.
5. The principle of the Act is not to enable suits to be bought within certain periods, but to forbid them being brought after certain periods.
6. The object of the Limitation Act is to quiet long possession and extinguish stale demands {Luchmee v Runjeet 20 W.R. 375 P.C.)
i.e. to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction or negligence (Rajender Singh v Santa Singh AIR 1973 SC 2537).
7. Thus, the object of the statute of limitation is preventive.
8. This principle is based on the maxim interest republicanut sit finislitium i.e. the interest of the State requires that there should be an end to litigation.
9. The doctrine or limitation is based on two broad considerations:
First, there is the presumption that a right not exercised for a long time is nonexistent.
Laws come to the assistance of the vigilant and not of the sleepy (Vigilantibus non dormeientibus jura suboeniunt).
The laws of limitation and prescription are based upon the principle that the law aids the diligent and not the indolent.
Second, an unlimited and perpetual threat of litigation creates insecurity and uncertainty; some kind of limitation is essential for public order and peace. A constant dread of judicial process and a feeling of insecurity retard the growth and prosperity of a nation.
10. Limitation Bars Remedy but Not the Right:
The rule of limitation is a rule of procedure, a branch of the adjective law.
It does not either create or extinguish rights (an aspect of substantive law), except in the case of acquisition of title to immovable property by prescription under Sec. 27 of the Limitation Act.
A law of limitation affects the remedy merely; it does not touch the right of a person to the debt, damage, goods, person, property, etc.
PART I - PRELIMINARY
1. SHORT TITLE, EXTENT AND COMMENCEMENT
1. This Act may be called the Limitation Act, 1963.
2. It extends to the whole of India except the State of Jammu and Kashmir.
3. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2. Definitions In this Act, unless the context otherwise requires,
2a."applicant"
Applicant includes-
I. a petitioner;
II. any person from or through whom an applicant derives his right to apply;
III. any person whose estate is represented by the applicant as executor, administrator or other representative;
2b."application"
Application includes a petition;
2c."bill of exchange"
Bill of exchange includes a hundi and a cheque;
2d."bond"
Bond includes any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;
2e."defendant
Defendant includes-
I. any person from or through whom a defendant derives his liability to be sued;
II. any person whose estate is represented by the defendant as executor, administrator or other representative;
2f."easement"
Easement includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing in, or attached to, or subsisting upon, the land of another;
2g."foreign country"
Foreign country means any country other than India;
2h."good faith"
Good faith-nothing shall be deemed to be done in good faith which is not done with due care and attention;
2i."plaintiff"
Plaintiff includes-
I. any person from or through whom a plaintiff derives his right to sue;
II. any person whose estate is represented by the plaintiff as executor, administrator or other representative;
2j."period of limitation"
Period of limitation means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act;
2k."promissory note"
Promissory note means any instrument whereby the maker engages absolutely to pay a specified sum of money to another at a time therein limited, or on demand, or at sight;
2l."suit"
Suit does not include an appeal or an application;
2m."tort"
Tort means a civil wrong which is not exclusively the breach of a contract or the breach of a trust;
2n. "trustee"
Trustee does not include a benamidar, a mortgagee remaining in possession after the mortgage has been satisfied or a person in wrongful possession without title.
[SECTIONS 1-2]
1. The Limitation Act brought into force in:
a. 1964
b. 1963
c. 1965
d. 1967
Ans. (a)
2. Period of limitation means:
a. The period of limitation prescribed for any suit, appeal or application by the Schedule to the Limitation Act.
b. The period of limitation computed in accordance with the provisions of Limitation Act.
c. Both (a) and (b)
d. None of the above
Ans. (a)
3. Which of the following Sections of the Limitation Act, 1963 defines "applicant"?
a. Section 2(a)
b. Section 2(b)
c. Section 2(c)
d. Section 2(d)
Ans. (a)
4. As per section 2(c) of the Limitation Act
a bill of exchange includes.......................
a. Promissory note and bond
b. Promissory note
c. A hundi and a cheque
d. Bond
Ans. (c)
5. Period of Limitation means
a. period of limitation prescribed for any suit, appeal or applicable by the schedule
b. period of limitation computed according to the provisions of this Act
c. both (a) and (b)
d. none of the above
Ans. (a)
6. Bill of Exchange includes
a. only hundi
b. only cash, hundi and cheque
c. only hundi and cheque
d. none of the above
Ans (c)
7. An application for setting aside of an arbitration award has to be filed:
a. within 30 days from the date of service of the notice of the filing of the award
b. within 15 days from the date of service of the notice of the filing of the award
c. within 30 days from date of knowledge of filing of award
d. within 60 days from the date of service of the notice of the filing of the award
Ans. (a)
8. An application for bringing on records the legal representatives of a party has to be filed within:
a. 30 days of the death
b. 75 days of the death
c. 15 days of the death
d. 90 days of the death
Ans. (d)
3. BAR OF LIMITATION
1. Subject of the provision contained in section 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as defence.
2. For the purposes of this Act-
a. a suit is instituted-
I. in an ordinary case, when the plaint is presented to the proper officer;
II. in the case of a pauper, when his application for leave to sue as a pauper is made; and
III. in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
b. any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-
I. in the case of a set off, on the same date as the suit in which the set off is pleaded;
II. in the case of a counter claim, on the date on which the couner claim is made in court;
c. an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
4. EXPIRY OF PRESCRIBED PERIOD WHEN COURT IS CLOSED
Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the date when the court reopens.
EXPLANATION:
A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.
5. EXTENSION OF PRESCRIBED PERIOD IN CERTAIN CASES
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be, admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
EXPLANATION:
The fact that the appellant or the applicant was misled by any order, practice or judgement of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
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 MIT Akshara 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.
Q.1. X incurs a debt of Rs. 80,000 in the year 2000 from a firm of which A, B and C are partners. A becomes insane while B is a minor admitted to the benefits of partnership. Subsequently, A regains sanity in 2003 and B becomes major in 2004. A, B and C then file a suit against X in 2005 for recovery of debt. Is the suit maintainable? Decide giving reasons.
Q.2 F, father of X and Y, alienated certain joint family property. X was major on the date of alienation while Y was a minor. X’s claim to set aside alienation became barred by limitation when he did not file suit within 12 years of the cause of action. Can X later take benefit of the coming of the majority of Y and file a suit with him? [Hint X will not succeed.] Write a short note on: Disability of one of several persons entitled to institute a suit.
SCOPE OF SECTION. 7
This section deals with cases where there are several persons jointly entitled to institute a suit or make an application for the execution of a decree, and some only or even one of them is under a legal disability, while the rest are not. For such a case, provision has been made by S. 7, which may be explained in simple language as follows:
Where full discharge or release from the debt or claim can be given (to the defendant or the opposite party) by the persons not under disability without the concurrence of the person under a disability, time will commence to run against them all', but
Where no such discharge can be given, time will not commence to run against any of them until the disability ceases or until the person under disability loses (either by death or assignment) his interest in the subject-matter of the suit r in the decree.
THE TEST ADOPTED IS
whether a full discharge or a quittance can be given without the concurrence of the person under disability.
CO-PARTNERS-
One of several partners can give a valid discharge without the concurrence of the others.
CO-TRUSTEES-
One of several co-trustees can give a valid discharge without the concurrence of others. Therefore, where an adult joint trustee takes no steps to protect the trust, and his right to take steps becomes barred, the rights of other joint trustees, even though minors, become barred.
CO-MORTGAGORS-
The right to redeem is an indivisible right, and one mortgagor cannot give a valid discharge without the concurrence of the other co-mortgagors.
RELATIONSHIP WITH SECTION. 6
Sec. 6 and 7 are not mutually exclusive.
1. Sec. 7 supplements Sec. 6; it is an extension to the general principle enunciated by Sec. 6.
2. It has been held that sec.7 is a proviso to sec.6 sec. 6 is an enabling section enabling persons under disability to exercise their legal right within a certain time. It must be construed liberally. While sec. 7 is a disabling section and in so far as it takes away the right conferred by sec.6 it has to be strictly construed.
3. Sec. 6 contains the general rule regarding the person under disability while Sec. 7 give a special rule for some of these cases and if a case falls within the ambit of Sec. 7 then the special rule of Sec. 7 will apply.
4. Both Secs. 6 and 7 do not give a fresh period of limitation. The ‘disability’ under both sections includes only minority, idiocy or insanity. Both sections are inapt licable to appeals and pre-emption suits. Both sections apply only if the disability exists at the time when the limitation is to be reckoned and not when disability supervenes later.
JOINT RIGHT OF SUIT –
One partner can give valid discharge in respect of the debt due to the partnership firm- This is based on the principle that a partner has implied authority to do everything necessary and usual in the course of the partnership business.
Similarly, the Karta or managing member of a joint Hindu family has an implied authority to bind all the members by a discharge given by him without their concurrence, even though they may be minors, and therefore time will run against them all. An example of second part of Sec. 7:
Where a labourer killed by a motor accident leaf behind his widow and two minor sons, time for filing the petition for compensation under the Motor Vehicles Act shall not run against any of the claimants until both the minor sons have ceased to be minor, because a discharge cannot be given by the mother without the concurrence of the minors.
SECTION. 7 WHEN DO NOT APPLY –
Section 7 contemplates a case where more than one individual possesses, the same identical substantive right.
Persons whose rights are distinct and different but who are permitted to enforce such separate rights by one judicial process to which all are parties, or by a process instituted by one on behalf of all are not comprehended by this section.
Thus, each of the sons, who is a coparcener of a joint family is entitled to question alienation made by the father (if it is not binding on the family) has an independent right of his own; it is not a joint right of all the sons which cannot be enforced unless all of them join so that the minority of one son could enlarge the period of limitation.
SECTION 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 he death of the person affected thereby, the period of limitation for any suit or application.
SECTION. 8 LAYS DOWN THAT THE RULES CONTAINED IN SEC. 6 AND SEC. 7
a. do not apply to suits to enforce rights of pre-emption; and
b. do not, in any case, extend the period of limitation for more than three years from the cessation of the disability or the death of a person, as the case may be.
Write notes with case law on the effect of Section 8, Limitation Act on the provisions of Sections 6 and 7, Limitation Act.
ILLUSTRATIONS: -
A, to whom a right to sue for legacy has accrued during his minority, attains majority eleven years after such accruer. A has, under the ordinary law, only one year remaining within which to sue. But under S. 6 and this section an extension of two years will be allowed to him making in all a period of three years from the date of his attaining majority, within which he may bring his suit.
A right to sue for an hereditary office accrues to A who at that time is insane. Six years after the accrual A recovers his reason. A has six years under the ordinary law from the date when his insanity ceased within which to institute a suit. No extension of time will be given to him under S. 6 read with this section.
A right to sue as a landlord to recover possession from a tenant accrues to A, who is an idiot. A dies three years after the accrual. His idiocy continuing up to the date of his death. A’s representative in interest has, under the ordinary law, nine years from the date of A’s death within which to bring a suit. Section 6 read with this section does not extend that time, except where the representative is himself under disability when the representation devolves upon him.
SCOPE-
This section is ancillary to and restrictive of the concession granted in Ss. 6 and 7. The effect of S. 8 is that a person under disability may sue after the cessation of the disability within the same period as he would otherwise have been allowed under the Schedule; and the present section adds a proviso that in no case can the period be extended to anything beyond three years from the cessation of the disability. This section must be read together with each article in Schedule 1, and when the period prescribed by the latter is three years or more, and expires within three years from the date of attainment of majority, the intention is that the minor should have the full term of three years;
RELATIONSHIP BETWEEN SECTION. 6, 7 AND 8
Secs. 6,7 and 8 have to be read together (Bauocban Karan v Basant Kumari Naik AIR1999 SC 876).
Sec. 8 is ANCILLARY TO AND RESTRICTIVE of the concessions granted in Secs. 6 and 7, and did confer any substantial privilege. This section is in the nature of a proviso to Secs. 6 and 7 (Darshan Singh v Gurdev Singh AIR 1995 SC 75). Sec. 6 should be read specially with Sec. 8 which controls it.
Sec. 8 imposes a limitation on the concessions provided by Secs. 6 and 7 to a person under disability to a maximum of 3 years from the cessation of disability.
In no case can the period be extended to anything beyond 3 years from the cassation of the disability
PONNAMMAV PADMANBHAN AIR 1969 KER. 163
It is important to note that under Sec. 8, the period can be extended up to an extent of 3 years, if under the ordinary law out of the period of limitation prescribed, there remains a period of less than 3 years for bringing the suit. But if the period remaining is more than 3 years, no extension can be granted
THE COMBINED EFFECT OF SECTIONS 6, 7 AND 8 MAY BE DISCUSSED WITH REFERENCE TO THE FOLLOWING PROPOSITIONS: -
Expiry of ordinary period more than 3 years after the cessation of disability- No extension will be allowed under Secs. 6-8, but the plaintiff will be entitled to ordinary peri d (though longer than 3 years). For example, a right to sue accrues to A who at the time is insane. Six years after, A recovers his reason. The ordinary limitation period is 12 years. A has (12-6) 6 years, under the ordinary law, from the date when his insanity ceased within which to institute a suit. No extension of time will be given to him under Secs. 6-8. But A will be entitled to the ordinary period of 6 years.
Expiry of ordinary period at the end of 3 years from the cessation of disability - No extension can be allowed under Secs. 6-8. However, the ordinary period in such a case is 3 years.
Expiry of ordinary period before the cessation of disability - In such a case if the ordinary period was 3 years or more, the plaintiff has 3 years from the cessation of disability, as Section. 8 operates here; if the ordinary period was less than 3 years, the plaintiff has only the ordinary period, and not a period of 3 years, from the date of cessation of disability.
EXPIRY OF ORDINARY PERIOD AFTER THE CESSATION OF DISABILITY, BUT BEFORE THE END OF 3 YEARS FORM CESSATION OF DISABILITY: -
In such a case
a. if the ordinary period is 3 years or more, the plaintiff will get 3 years by virtue of Sec. 8;
b. if the ordinary period is less than 3 years, the plaintiff has only that ordinary period.
LOK NATH V ROHLU AIR 1951 J&K 25: —
Under Sec. 8, the period can be extended up to the extent of three years if under the ordinary law out of the period of limitation prescribed, there remains a period of less than three years for bringing the suit.
But if the period remaining is more than three years, no extension can be granted
IN HARIPADA GHOSH V FEKTOO BIBI87 CWN 290,
The plaintiff was dispossessed since 1950 and he attained majority in June, 1960, he had to bring the suit either within 12 years of dispossession i.e. within 1962 or within 3 years of his attaining majority i.e. within June, 1963. But he filed the suit on 16th December, 1963. So, the suit was barred.
IN DARSBAN SINGH V GURDEV SINGH (AIR 1995 SC 75),
1. The respondent was a minor at the time of his father’s death.
2. He attained majority on 17 thApril, 1977 and thereafter a suit for possession of the property was filed on 4t" November, 1982 which was within 12 years under Art. 65 of the Limitation Act, but was after expiry of the period of three years of his attaining majority.
3. The plea was made by the appellant that the suit ought to have been filed within three years of his attaining majority.
Held that the period of limitation as provided in Art. 65 expired when the respondent was 16 years of age and consequently, he ought to have filed the suit within three years of his attaining majority and his suit is barred by limitation.
THE PROVISIONS RELATING TO DISABILITY UNDER SECTIONS 6 AND 7 OF THE LIMITATION ACT, 1963
a. Are not applicable to suits to enforce rights of pre-emption,
b. Shall not 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
c. Both (a) and (b) (d) Neither (a) nor (b)
9. CONTINUOUS RUNNING OF TIME –
Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it: PROVIDED that where letters of administration to the estate of creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues.
WHERE ONCE TIME HAS BEGUN TO RUN, NO SUBSEQUENT DISABILITY OR INABILITY TO SUE STOPS IT. COMMENT.
Thus, Sec. 9 contemplates a case of subsequent and not of initial disability. A simple example is: A right to sue accrues to P, when he is under no disability, but subsequently he becomes insane. Time runs against P as usual, form the date of accrual of the right and his subsequent disability (viz. insanity) is no bar to the running of time.
Another example is: A right to sue accrues to P during his minority. P dies only one day after attaining majority and is succeeded by his son K who is a minor. Time begins to run against K from the death of P and K’s minority is of no use.
The rule as to the continuous running of time is one of the fundamental principles of the law of limitation. This rule lays down that where once time has begun to run, it runs continuously and without any breaks or interruptions until the entire prescribed period has run out, and no disability or inability to Sue occurring subsequently to the commencement will stop its running. This fundamental principle is embodied in Sec. 9 of the Act, which applies to suits as well as applications, although the words used are “inability to sue.”
The principle underlying Sec. 9 is the same as that under the English law.
If at the date on which the cause of action arose the plaintiff was under no disability or inability, then time will naturally begin to run against him because there is no reason why the ordinary law should not have full operation.
The principle may seem a little hard at times, as it may be impossible to file a suit during the last few days of the period by reason, for instance, of the plaintiff falling severely ill, or becoming insane or being called away elsewhere on some pressing business etc. But the plea of limitation, being devised for promoting diligence and discouraging laches or indolence of any sort, requires that a person should be diligent and file a suit in respect of his right as quickly as possible. The principle of Sec. 9 will, therefore, be strictly applied, and no exceptions (other than those which the Act itself prescribes) can be recognized or allowed to be made by any court. Secs. 12-15 of the Limitation Act (discussed later) provide exceptions to Sec. 9.
Sec. 9 applies to a person (plaintiff) himself as well as to his representatives-in-interest after his death. The inability referred to in Sec. 9 must be held to be a personal inabihty affecting the plaintiff himself.
The section contemplates a case of subsequent and not of initial disability i.e. it contemplates those cases where the disability occurred after the accrual of the cause of action; whereas cases of initial disability have been provided for by Sec. 6.
Disability or inability to sue includes disability to make an application for execution as well. ‘Disability’ is want of legal qualification to act; ‘inability’ is want of physical power to act. For the purpose of limitation, a disability is the state of being a minor, insane or an idiot; whereas illness, poverty, etc. are instances of inability.
In Hanmantram v Bowles (8 Bom. 561), it has been held that absence from India would not constitute an ‘inability’ under Sec. 9.
In Balkrishna v Dhanraj (AIR 1956 Nag. 200), it was held that inability does not cover the case of obstacles, such as, stay of execution by the court’s order
Any subsequent disability in favour of a person in whom right to sue does not vest at the starting time cannot extend the period of limitation. For example, where the father of a joint Hindu family alienated the family property, time began to run from the date of the alienation, and a son who was born after such date could not get an extension of time under Sec. 6. Sec. 9 applied, and the subsequent birth and minority of the after-born son could not stop the running of time (Dhanraj v Ram Naresh AIR 1924 All. 912.)
PROVISO TO SECTION. 9
The principle of the proviso is this: When the right to sue and the right to be sued vest and unite by the act of law in the same person i.e. when the same person becomes the hand to receive and the hand to pay, the running of the statute is suspended during such union of rights.
When letters of administration to the estate of the deceased creditor have been granted to his debtor, the time between the grant of the letters of administration and the completion of the administration for the estate is excluded in computing the period of limitation for a suit to recover the debt.
This exception has been introduced lest the debtor administrator intentionally might omit to pay or sue for the debt. It might make the statute a cloak for his own fraud. The proviso applies only to an administrator under the grant of letters where he is a debtor of the deceased. It does not apply to a case where there has been a fusion for the interest of the mortgagor and the mortgagee in the same person.
RUNNING OF TIME WHEN CAN BE STOPPED (EXCEPTIONS TO SEC. 9)
Sec. 9 can apply only where the cause of action continues to exist and not when it is cancelled by subsequent events or where it disappears or is otherwise discharged. Such cancellation, etc. of the cause of action wipes out the time which has run and a fresh limitation period starts on the revival of the cause of action from the date of revival. Thus, even though the right to execute the decree arises on the date of passing of decree by trial court but if the appeal is preferred the decree-holder can get fresh starting point from the date of the appellate court’s decree {Rajendra v Board of Revenue AIR 1972 All. 417).
When the mortgage-deed provides for right in the mortgage to recover possession of mortgage property on default of payment of interest, the mortgage made default but paid interest subsequently which was accepted, then the said default subsequent to the default waived will be within time (sir Nivas v Baleswar AIR 1950 All .506)
EXCEPTIONS TO S. 9 (Ss. 12-15).
The rule laid down in S. 9 is however a general rule only, and it is subject to some exceptions. Thus, the running of time will be suspended in following seven cases:
1. When the letters of administration to the estate of a creditor are granted to h s debtor. (S. 9, Proviso) When letters of administration to the estate of a creditor have been granted to his debtor, the running of time in favour of such debtor is suspended for so long as the administration continues. This is in order to prevent an administrator from taking advantage of his office in delaying the payment of a debt he himself owes to the estate, till the prescribed period has expired. (This has already been discussed above).
2. In computing the period of limitation prescribed for an appeal, an applicati n for leave to appeal and an application for a review of judgment, the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, (and when a decree is appealed from or sought to be reviewed the time required for obtaining a copy of the judgment also), is to be excluded. Likewise, in the case of an application to set aside an award, the time required for obtaining the copy of the award is also to be excluded. (S. 12)
3. In computing the period of limitation for a suit or appeal, the time taken for prosecuting an application for leave is to be excluded, if such leave is necessary. (S. 13)
4. When the defendant is absent* from India and the territories beyond India under the administration of the Central Government. [S. 15(5)1
5. When the plaintiff has been prosecuting another civil proceeding bona fide in a Court without jurisdiction. (S. 14)
6. When an injunction or order has been obtained to stay the institution of a suit. [S. 15(10)]
7. When notice has been given before the institution of a suit in accordance with law, the limitation will be suspended during the period of notice. [S. 15(2)]
8. In a suit for possession by a purchaser at an execution sale, limitation will be suspended during the time for which the proceeding to set aside the sale has been prosecuted. [S. 15(4)]
10. SUITS AGAINST TRUSTEES AND THEIR REPRESENTATIVES
Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.
EXPLANATION:
For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.
According to this section, when a trust has been created expressly for some specific purposes or object, and property has become vested in a trustee upon such trust, the person who is beneficially interested in that trust may bring a suit against such trustee to enforce that trust at any distance of time without being barred by the law of limitation. As a result of this section, an apparently fraudulent trustee who has put trust money into his own pocket cannot escape by reason of lapse of time. (Chintaman v. Khanderao, 30 Bom. L.R. 45)
Although S. 10 does not say that the suits to which it refers must be instituted by any particular person, it has been held that the section applies only where a trustee is sued by cestui que trust. If other persons claim the trust property contrary to the provisions of the trust deed, S. 10 does not apply, and against them limitation runs in favour of the trustee.
A suit which cannot be regarded as suit by the beneficiaries is not within the operation of S. 10. A suit for declaration against the defendants as rival beneficiaries will not be within the section;
'IN TRUST FOR ANY SPECIFIC PURPOSE’
The expression applies to trusts created for some definite or particular purpose or object as distinguished from trust of a general nature such as the law imposes upon executors and others who hold recognized fiduciary positions. It is used in contradistinction to trusts arising by implication of law, i.e., resulting and constructive trusts.
A specific purpose is a purpose that is either actually and specifically defined in the terms of the deed by which the trust is created or a purpose which, from the specific terms can be certainly ascertained.
Thus, in one case on the death of her husband in 1904, a widow handed over a certain sum of money to her brother for the benefit and education of her two sons and the brother applied part of the trust moneys for that purpose but put the balance amounting to Rs. 1,600 for his own use. On his death, his representatives were called on to refund this balance and to account. On these facts, the Court held that the money being vested for specific purpose, a suit for account and refund of the trust property cannot according to S. 10, be barred by any lapse of time. (Chintaman v. Khanderao, 30 Bom. L.R. 45).
Section 10 is to be used only against those persons “in whom property has become vested in trust for a specific purpose".
And, a specific purpose is a purpose that is actually and specifically defined in the terms in which the trust is created or a purpose which from the specified term can be certainly affirmed.
Section 10 applies to express trusts as distinguished from trusts arising by implication of law, and from the resulting and constructive trusts. A quasi-trust or an obligation in the nature of a trust, is not a trust properly so called. A resulting trust, or a constructive trust is only a quasi-trust.
WHO ARE TRUSTEES UNDER THIS SECTION
An executor, a partner, an agent, a director of a company, a guardian or legal adviser has a fiduciary character, but none of these persons is necessarily a trustee in the strict sense of the word.
Nor is an administrator as such a trustee under this section.
Similarly, one cosharer is not an express trustee for another, and a right to mesne profits of one sharer against other sharers would not be saved by S. 10.
Fiduciary relation is not the only characteristic of a trustee within the meaning of S. 10.
An agent whose duty it is to remit all moneys received to the principal is not an express trustee. But, if he is entrusted with funds for a specified purpose, e.g., the purchasing of land or stock, or being employed in any other particular manner, he is treated as an express trustee.
There is also no fiduciary relation between a banker and a customer ordinarily, and the usual relationship between them is merely that of an ordinary debtor and creditor.
Similarly, an executor as such is not an express trustee of a legacy or share of residue, so as to exclude the operation of the statute, unless he is so appointed by the will or makes himself a trustee by an act of his own nor is he such a trustee of undisposed of residue.
TRUSTEE DE SON TORT-
If a person not a party to the trust agreement i.e. a third party or an outsider, by mistake or otherwise, takes upon himself the administration of the trust property or assumes the character of a trustee, he becomes a trustee de son tort.
Such a person becomes trustee constructively, and will be treated by the Court as, an express trustee and is bound to account as if he were a rightful trustee.
A trustee de son tort cannot be permitted to plead limitation and the benefit of this section can be claimed against such a person. He cannot discharge himself from that trust by appealing to the lapse of time.
VESTED": -
The word implies that a person must have an estate in the subject-matter of the alleged trust and not the mere power of controlling or directing it. The mere fact that a person has got with him the control or management of the property will not vest the property in him. “Vesting” implies property or ownership in the subject-matter. Therefore, the directors of a company are not trustees, because they are not persons in whom the property of the company may be said to have been vested under this section.
REPRESENTATIVE: -
Representative in S. 10 means the person who, as heir or executor or administrator, represents the estate of the deceased trustee and who has received, as such representative, the specific trust property which is the subject of trust.
When, after the trustee’s death, specific trust property has passed into the hands of his representative, as part of his estate, the cestui que trust can, without bar of limitation, recover from his hands the specific property. (The cestui que use is the person for whose benefit the trust is created. The cestui que trust is the person entitled to an equitable, as opposed to a legal, estate in the trust assets. Thus, if land is granted to A, for the use of B while in trust, with remainder to C when the trust terminates, A is the trustee, B is cestui que use, and C the cestui que trust. Ordinarily B and C would be the same person, so the terms are generally synonyms. Principally owing to their cumbersome nature, both have been virtually superseded by the term "beneficiary" in general law of trusts.)
All assigns for value are excluded from the operation of this section and consequently suits against them would be liable to be barred by one of the Articles in the Schedule.
(Assigns are persons to whom property, or an interest is transferred or may be transferred by conveyance, will, descent and distribution, or statute; assignees. The word is often used in drafting legal instruments to denote the assignable nature of the interest or right created. It is often found in deeds as "heirs, administrators, and assigns”. It is used to denote the assignable nature of the interest or right created.)
RELIGIOUS AND CHARITABLE ENDOWMENTS: -
For the protection of charity, it is now specially provided that a Hindu, Mahomedan or Buddhist religious or charitable endowment is to be deemed to be the trust for a specific purpose, its manager ‘an express Trustee’, and its property ‘express trust property’.
MUTAWALLI-WAKF PROPERTY: -
MAHAMMAD SHAH V. FASIDIM ANSARI, A.I.R. 1956, S.C. 773
a suit for declaration that the property in the possession of Mutawalli is wakf property, no question of imitation can arise in respect of property if it be found that the property comprises the wakf estate.
SUITS NOT FALLING UNDER S. 1O.-
Suits seeking to make the trustee liable for whether might have received, but which he could not receive for his willful default or negligence, are quite different from suits for an account of what he, in fact, received, or what actually became vested in him. Such a suit will not, therefore, fall under S. 10.
Suits seeking to make the trustee liable for whether might have received, but which he could not receive for his willful default or negligence,
suits for an account of what he, in fact, received, or what actually became vested in him.
A suit for the enforcement of plaintiff’s personal right to manage trust properties is not a suit to recover property for the purposes of the trust and does not fall under S. 10.
Where there is an invalid trust, a suit to recover the property from the trustees in the enforcement of a resulting trust is also not governed by S.10
PROBLEM: - A, claiming to be an heir of B who has made a trust deed of his properties, files a suit against the trustees 15 years after the death of the settlor for possession of the trust estate, alleging that the trust deed is void. Is the suit in time?
Ans.-Ais not claiming under any of the provisions of trust deed to recover any property. A person who claims to be an heir of the settlor and claims to be entitled to the property on the ground that the trust deed is void is not a person claiming against the trustee holding the property for an express purpose. To such a case, S. 10 of the Limitation Act has no application. A's suit, therefore, is time barred. (Fidahusein Faderbhai v. TayaballiEusufally, 43 Bom. L.R. 622).
Suits on contracts entered into outside the territories to which the Act extends Suits instituted in the territories to which this Act extends on contracts entered into in the State of ammu and Kashmir or in a foreign country shall be subject to the rules of limitation contained in this Act.
No rule of limitation in force in the State of Jammu and Kashmir or in a foreign country shall be a defence to a suit instituted in the said territ ries on a contract entered into in that State or in a foreign country unless-
a. the rule has extinguished the contract; and
b. the parties were domiciled in that State or in the foreign country during the period prescribed by such rule.
SUITS ON FOREIGN CONTRACTS
S. 11 lays down the following two rules:
1. Suits instituted in India on contracts entered into in a foreign country are subject to the rules of limitation contained in this Act.
2. No foreign rule of limitation can be a defence to a suit instituted in India on a contract entered into in a foreign country, unless the rule has extinguished the contract and the parties were domiciled in such country during the period prescribed by such rules.
KUNSTOFFEN INDUSTRIES VOLENDAM (KIVO) C. V. ASHOK K. CHAUHAN AIR (2009) DEL 158
it was held that where a suit was instituted for recovery of money from guarantor based on contract entered into in a foreign country (i.e. Germany) then in view of sec. 11 of the Limitation Act, Indian law of Limitation will apply. But since the suit against guarantor was filed after three years from date of breach it was barred by Limitation.
FOREIGN RULE OF LIMITATION CAN BE PLEADED IN DEFENCE IF THE FOLLOWING CONDITIONS ARE SATISFIED:
1. the rule has extinguished the right or obligation itself; and
2. both the parties were domiciled in such country during the period prescribed by such rule.
The rule which applies to the case of contract made in one country and put in suit in the Courts of another country appears to be this, that the interpretation of the contract must be governed by the law of the country where the contract was made; the mode of suit governed by the law of the country where action is brought." It is only lexfori which determines the time during which a suit must be brought.
This principle is contained in this section which lays down that contracts entered into in a foreign country are subject to the provisions of this Act.