R RAMANA REDDI Vs. RBABU REDDI

JUDGEMENT

(1.) This appeal is against an order of the District Court of Nellore dismissing an application for execution of the decree of the Subordinate-Judge s Court of Nellore in Original Suit No. 15 of 1892. The decree is one for partition and was passed on the 3rd August 1897. There were several intermediate applications for execution presented on the plaintiff s behalf during his minority by his next friend. One of them was compromised on the 29th January 1900. The plaintiff s present application ignores the compromise, his case being that it was illegal and not binding on him. The application has been dismissed by the lower Court on the ground that it is barred by limitation under Section 48 of the Code of Civil Procedure, it having been presented more than twelve years after the date of the decree, although within three years after the attainment of majority by the plaintiff. The first question for consideration is whether the plaintiff is entitled to the benefit of Section 7 of the Limitation Act and to reckon the period of limitation for execution of the decree from the date of attainment of majority; and whether apart from that section, there is any general principle of law entitling him to the same benefit on account of his disability arising from minority. Article 182 of the Limitation Act which lays down the general rule of limitation applicable to execution of decrees exempts from its operation cases coming within the purview of Section 48 of the Civil Procedure Code. Section 6 of the Act enacts that "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 period of limitation is to be reckoned, a minor,... 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 prescribed therefor in the third column of the first schedule"; and as Article 182 of the schedule is inapplicable to the case, Section 6 enacting the rule of exemption during the period of minority must also be held to be inapplicable, The District Judge, Mr. Wallace, has dealt with the question in a remarkably able and lucid judgment; but the question really does not admit of any serious doubt on the language of the section. It is unnecessary to consider whether the other general provisions of the Limitation Act contained in Sections 4 to 25 would be applicable or not, where the period of Limitation is prescribed by some special Act and not by the general code of limitation. Section 6 is expressly limited to cases where the limitation is provided for in the Limitation Act itself. We therefore agree with the Judge in holding that the plaintiff cannot claim the benefit of Section 6 of the Limitation Act. It is strenuously contended by Mr. Muthukrishna Ayyar, the learned vakil for the appellant, that apart from that section minority is a well recognised ground of exemption in law from the operation of the law of limitation. He relies in support of this contention mainly on Moro Sadashiv v. Visaji Raghunath (1892) I.L.R. 16 Bom. 536 and a passage in Bacon s Abridgment. The Bombay case, it cannot be denied, supports his contention. The question there was the same as in this case. Sargent, C.J., observed : " The question referred to us must be decided by the general principle of law as to the disability of minors, to which the provisions of the Civil Procedure Code must, in the absence of anything to the contrary, be deemed to be subject. The general principle is that time does not run against a minor; and the circumstance that he has been represented by a guardian does not affect the question." No authority has been cited in support of the enunciation of the rule that there is a general principle of law that time does not run against a minor. The passage cited from Bacon s Abridgment is in the following terms:-- "The rights of infants are much favoured in law, and regularly their laches shall not be prejudicial to them, upon a presumption that they understand not their right, and that they are not capable of taking notice of the rules of law, so as to be able to apply them to their advantage. Hence, by the common law, infants were not bound for want of claim and entry within a year and a day, nor are they bound by a fine and five years non-claim, nor by the statutes of limitation, provided they prosecute their right within the time allowed by the statute after the impediment removed." Tit: Infancy and Age, Section (g), IV volume, seventh edition page 348 King v. Dilliston (2) is cited as authority for this proposition. After full consideration we have come to the conclusion that the authority relied on in the passage cited does not show that according to the English law, infancy is an answer to a plea of limitation. The question in King v. Dilliston (1688) 87 E.R., 142 at p. 144 (3 Mod., 221 at p. 223) was whether a certain custom was applicable to minors, namely, a custom that the person to whose use a copyhold estate is surreudered shall come in and be admitted after three proclamations or otherwise his land shall be forfeited. It was held that it was not and that therefore if a surrender be made in fee and the surrenderee die before the next Court, the estate is not forfeited by the infant heir and the surrenderee not coming in after three proclamations. EYRE, J., observed "that a feoffment of an infant was no forfeiture at the common law, and that as a particular custom may bind an infant for a time, so it may bar him for ever," and that the question was whether the custom in question as it was found in general words should bind an infant after three proclamations; "All customs," he said, "are to be taken strictly when they go to the destruction of an estate." Strictly, infants were not prevented by the letter of the custom, they were not bound by other customs like this, there was no necessity to construe them to be within the custom. He no doubt observed that, "the right of infants is much favoured in the law, and their laches shall not be prejudicial to them as to entry or claim, upon a presumption that they understand not their right" but he did not say that they were not bound by statutes of limitation. On the other hand he observed: "it is admitted that if an infant do not present to a church within six months, or do not appear within a year, that his right is bound; but this is because the law is more tender of the church, and the life of a man, than of the privileges of infancy. Bo if an office of parkship be given or descends to an infant, it the condition annexed in law to such an office (which is skill) be not observed, the office is forfeited. But that a proclamation in a base court should bind an infant, when he is not within the reason of the custom, is not agreeable either to law or reason" Nor did either of the other concurring Judges Gregory, J.,and DOLBEN, J., make any pronouncement in favour of the exemption of minors from rules of limitation proper. It may be that laches may not be attributable to an infant and that a penalty inflicted for laches may not be enforced on an infant. But laches should not be regarded as the sole or perhaps even the main ground on which rules of limitation are based. Lord St Leonards observed "all statutes of limitation have for their object the prevention of the rearing up of claims at great distances of time when evidences are lost; and in all well regulated countries the quieting of possession is held an important point of policy." In Trustees of Dundee Harbour v. Dowgall 1 Macq H.L. 321 Lord Kenyon described the statutes of limitation as statutes of repose. See also the observations of Lord Redesdale in Cholmondeley v. Clinton (1821) 4 Bligh (P.C.) 1 at p. 106 : (4 E.R. 721). Lord COKE says that the limitation of actions was by force of diverse Acts of Parliament, although at a very remote time in England there was undoubtedly a stated time for the heir of the tenants to claim after the death of his ancestor and in case of non-claim before the expiration of the time (a year and a day) the claimant was without remedy. Banning in his work on Limitations, page 1, observes: "the limitation of the times for bringing actions is, at the present day entirely dependent on statute." He states that under the common law the presumption arose alter a long time in respect to a legal claim that it had been satisfied. See Jones v. Turberville (1792) 4 Brown s Chancery Cases, 115. Eminent Judges have repudiated the notion that limitation is based solely on the ground of laches. In Dalton v. Angus (1881) 6 A.C. 740 at p. 818 Lord BLACKBURN observed: "This ground of acquiescence or laches is often spoken of as if it were the only ground on which prescription was or could be founded. But I think the weight of authority, both in this country and in other systems of jurisprudence, shews that the principle on which prescription is founded is more extensive. Prescription is not one of those laws which are derived from natural justice. Lord STAIR, in his Institutions, treating of the law of Scotland, in the old customs of which country he tells us prescription had no place (book 2, tit. 12, Section 9), says, I think truly, "Prescription, although it be by positive law, founded upon utility more than upon equity, the introduction whereof the Romans ascribed to themselves, yet hath it been since received by most nations, but not so as to be counted amongst the laws of nations, because it is not the same, but different in diverse nations as to the matter, manner, and the time of it....It is both fair and expedient that there should be provisions to enlarge the time when the true owners are under disabilities or for any other reason are not to be considered guilty of laches in not using their right within the specified period, and such provisions there were in the lioman law, and commonly are in modern (Statutes of Limitations, but I take it that these are positive laws, founded on expedience, and varying in different countries and at different times." Angell in his work On Limitation observes: "although, says Domat, there was no other reason to justify the introduction and use of prescription than that of public policy, it would be just to prevent the property of things from being constantly in a state of uncertainty. Laches like limitation no doubt deprive the plaintiff of his remedy, but it depends upon general principles while limitation depends on express law. Laches may be adapted to the facts of each particular case, but limitation is a matter of inflexible law. A positive rule of limitation must not depend on whether there be laches or no: Courts of Equity in England apart from any rules of limitation refused relief to parties resorting to th em for remedies not open to the courts of common law, if they were guilty of laches; but they also followed the Statutes of Limitation by analogy in granting equitable reliefs; although no Statute of Limitations before 3 and 4 Will. IV, c 27, provided in terms for equitable rights or expressly bound the Courts of Equity." See Darby and Bosanquet on Limitation, page 234.

(2.) Limitation then being the result of statute law, it has been held in England that no exemption from it can be recognised except what the statute itself provides. In Beckford v. Wade (1805) 11 R.R., 20 at pp. 23 and 24 : S.C. 17 Ves. 87 at pp. 91--93, the Judicial Committee of the Privy Council held that the fact that the defendants in an action were absent from the realm could not postpone the running of limitation. The Master of the Rolls observed; "The proposition, that this construction, under the doctrine of inherent equity, is put upon our English Statutes of Limitation, is, as I apprehend, altogether unfounded. General words in a statute must receive a general construction; unless you can find in the statute itself some ground for limiting and restraining their meaning by reasonable construction, and not by arbitrary addition or retrenchment." He goes on to say: "The true rule on this subject is laid down by Sir EARDLY WILMOT in his opinion in the House of Lords on the case of Earl of Buckinghamshire v. Drury 1762 (Wilm. 177), [97 E.R.,69]. He says: many cases have been put, where the law implies an exception; and takes infants out of general words by what is called a virtual exception. I have looked through all the cases, and the only rule to be drawn from them is, that, where the words of a law in their common and ordinary signification are sufficient to include infants, the virtual exception must be drawn from the intention of the legislature, manifested by other parts of the law, from the general purpose and design of the law, and from the subject matter of it. And he mentions the Statutes of Limitations, as an instance of a case, in which infants would be barred, if it were not for the introduction of the waving clause. Accordingly we find, that in the great case of Stowel v. Lord Zouch (1797) 1 Plowden 353 [75 E.R. 536], upon the Statute of Fines of Henry the Seventh where the question was, whether, when the bar by five years non-claim had begun to run in the time of the ancestor of lull age, it should continue to run against his infant heir, although there was great difference of opinion among the Judges upon that question, the whole argument turns upon the true construction of the statute itself, with reference to all the parts of it, and to the object it had in view, and not upon any supposed inherent, equity, by which infants were to be excepted out of the operation of the Statutes of Limitation. On the contrary it is laid down in that case and laid down without any contradiction; For as much as they intended, that is, the Legislature intended, to avoid universal trouble fas the preamble speaks) and to make peace, which is to be preferred before all other things, and for as much as they have made the provision general, viz. that the fine shall be final, and shall conclude as well privies as strangers: if the Act had stopped there, it would have bound as well infants, femes covert, and the others, named in the exception, as people of full age, and who were void of such defects," His Lordship went on to observe, referring to the case before him, that the absence of the defendants from the realm or even the fact of the Courts of Justice being shut up in times of war were no grounds for excluding the Statutes of Limitation. See also Angell on Limitation, page 498, where the opinions of Chancellor KENT and MARSHALL, C.J. in America to the same effect are referred to. It is perfectly clear from Beckford v. Wade (1805) 11 R.R., 20 at pp. 23 and 24 : S.C. 17 Ves. 87 at pp. 91--93, that minority unless expressly provided for in the statute would be no ground of privilege. See Mohummud Bahadoor Khan v. Collector of Bareilly (1874) 1 I.A., 107. We have no hesitation in saying that the same view must be held in this country also.

(3.) The earliest statutes of limitation in India therefore made express provisions in favour of minors. See Madras Regulation 2 of 1802, Section 18, Clauses 1, 2 and 3. In Act XIV of 1859, Section 11 provided a general exemption in favour of minors but only in the case of suits. In Act IX of 1871 also the exemption was confined to suits, but a further restriction was introduced by it by limiting the privilege to cases where limitation was provided for in the schedule to the Act. There can be no doubt that the restriction was deliberately made. In Section 7 of Act XV of 1877 the privilege was extended to applications; but the restriction to cases for which the limitation was provided for in the Act was continued. The provision in the present Act is in the same terms. We cannot therefore uphold the argument that there is any fundamental rule of law or justice entitling the appellant to claim that the limitation should run only from the date of his attaining majority. The decision of the Punjab Chief Court in Jhandu v. Mohan Lal 29 P.R., 489, is in accordance with the view we have taken on the question.