DORAISAWMI Vs. NONDISAWMY SALUVAN

JUDGEMENT

(1.) This appeal raises two questions relating to the construction of Section 8 of the Limitation Act - (1) whether the section has any application; to a, suit to which Article 44 of the same Act would be applicable, that is, a suit to recover possession of properties from a person holding them under invalid alienations made by the plaintiff s guardian during his minority, and (2) whether the section in question is applicable to a case where the property sought to be recovered belonged to more than one plaintiff as Hindu co-parceners, all of whom were minors at the date of alienation, but one or more of whom attained majority more than three years before the institution of the suit. As regards the first, the contention is that under Article 44 the time from which the period of limitation provided for by the article : begins to run is the date of attainment of majority by the minor, while Section 8 contemplates cases in which time would have run during minority but for the disability, that is to say, cases in which the running of time is suspended owing to disability, or in other words the period of disability is excluded from computation. In cases falling within the scope of Article 44 time runs only from the date of attainment of majority and there can therefore, it is argued, be no question of exclusion of the period of minority or suspension of running of time during minority. The argument appears at first sight to have some plausibility, but once we realize the proper place and scope of Article 44 in the scheme of the Act the unsoundness of the contention becomes apparent. The fallacy of the arguments consists in treating the article as if it stood by a itself and there were no other provision of the Act applicable to the case to which that article applies. A suit by a minor to set aside a sale by his guardian and a suit to recover possession of the property so sold from the vendee is regarded as standing substantially on the same footing as far as the applicability of Article 44 is concerned and as one to which in the first place not only is this Article applicable but also Article 144 and Section 28 of the Limitation Act. This has been so held by the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) I.L.R. 23 M. 271 at 279 and the reasons for it are obvious. Suppose a case in which the plaintiff attained majority within less than nine years from the date of alienation, could it then be said that it he did not sue within three years after attaining majority his suit would be barred and he would not be allowed 12 years from the date of alienation? Clearly not. It is well established that the Limitation Act does not deprive persons under disability of any advantages which other persons have under the provisions of the Act, but on the other hand the Act makes certain concessions in their favor because of the disability (See MITRA on Limitation, 4th Edn., pp. 295, 315-7,696). Section 28 also applies, as it is only after 12 years of adverse possession against the minor by the alienee, but not leas, even if the 3 years after attainment of majority expired within 12 years from the commencement of adverse possession, that the rights of minor would be extinguished. Then if we read Article 44 along with Article 144 and Section 28 the result clearly is that Article 44 must be understood as extending - in the case of suits of a particular class by minors - the period of limitation provided for in Article 144, the general residuary Article, to three years after cessation of the disability. In other words the running of time is suspended in such cases so long as minority lasts and that after cessation of his minority the plaintiff shall have 3 years from such date or 12 years from the commencement of adverse possession, whichever period is the longest.

(2.) Now let us see what relation Article 44 bears to Sections 7 and 8. It is a well established rule of construction of the Limitation Act that the sections in the body of the Act govern and control the application of the articles in the two schedules except so far as the language of a particular article clearly precludes the application of any such section. If the proper meaning and scope of Article 44 be what I have stated, it is exactly what Section 7 lays down ; only the latter lays down the rule generally for all forms of disability and in all descriptions of suits, while the former enunciates the rule only in one form of disability, viz., minority, and for one class of suits - suits to set, aside sale by guardian. So far, Article 44 is but a mere illustration of Section 7. It has, however, been held that Section 7 applies to suits where there is one plaintiff and he is under disability, or where there are more than one plaintiff and all of them are under disability, but not to suits by a number of plaintiffs only some of whom are under disability see Seshan v. Rajagopala (1889) I.L.R. 13 M. 236, Vigneswara v. Bapayya (1892) I.L.R. 16 M. 436, and Ahinsabibi v. Abdul Kader Sahib (1900) I.L.R. 25 M. 26. Suits of the latter class are dealt with by Section 8 which lays down in what cases of joint claimants and creditors the running of time shall be suspended as provided for by Section 7 and when there shall be no such suspension. Article 44 applies to suits by several plaintiffs, but is confined to cases of minority and where the object of the suit is to set aside sales by a guardian Section 8 therefore covers all the cases to which Article 44 would apply when the plaintiffs could be said to be joint creditors or joint claimants.

(3.) Then, as I have shewn, Article 44 really enacts that in the suits to which it applies the running of time would be suspended during minority, and the first part of Section 8 lays down that the running of time shall not be suspended in certain cases. If the present is one of those cases, the fact that Article 44 applies to it would not, having regard to its scope, exclude it from the operation of Section 8.