Report No. 89
Section 7: Disability of One of Several Persons
7.1. Section.-Disability of one of several persons jointly entitled.- Continuing the subject of disability, and dealing with a special situation in that regard, section 7 provides that where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under a disability and a discharge can be given without the concurrence of such person, then time will run against 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 others or until the disability has ceased.
The first Explanation to the section makes it clear that the section applies to a discharge from every kind of liability, including a liability in respect of any immovable property. The second Explanation provides that the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving such a discharge without the concurrence of the other members of the family, only if he is in management of the joint family property.
7.2. Meaning of the expression "time will not run".- The use of the expression "time will not run" in section 7 regarding the disability of one of several persons has given rise to difficulties of interpretation which have come to surface in a Full Bench decision of the Kerala High Court1. The appeal in that case pertained to movable properties belonging to one Ponnamma, who died some time in 1941, leaving two sons as the sole surviving members of the joint family.
In 1943, when these two sons were minors, their father and the maternal grand-parents sold the properties, for the recovery of which the two sons filed a suit in 1954. In the meantime, the original purchaser had gifted away the properties to his minor children, who were impleaded as defendants to the suit in 1955. The first plaintiff had attained majority in 1951, though the second plaintiff continued to be a minor even in 1955 and attained majority only in 1958.
The majority of the Bench held that the suit was barred by limitation. As one of the plaintiffs acquired the capacity to give a discharge without the concurrence of the others when he became the manager in 1951, the plaintiff could not get more than three years from 1951 for filing the suit, under section 8 of the Act.
1. Ponnamma v. Padmanabhan, AIR 1969 Ker 163 (FB).
7.3. The dissenting Judge, however, held that time began to run as against both the plaintiffs (under section 7) in 1951, when the first plaintiff became the manager of the joint family, but this acquisition of majority or managership was not the "cessation of disability" within the meaning of section 8. The entire period of 12 years provided by Article 142 (of the Act of 1908) was available to the plaintiffs from the date 'time began to run', unaffected by the three year limit of section 8. The dissenting Judge conceded that the three-year limit of section 8 would, at best, be reckoned from 1958 onwards when the second plaintiff became a major, because, by then, both the plaintiffs ceased to be under disability.
7.4. The majority was unhappy about the drafting of section 7 and made the following observation.-
"The wording of section 7 creates some difficulty, because the latter part of that section says that 'time will not run as against any of them until one of them becomes capable of giving such a discharge, without the concurrence of others or until the disability has ceased', which would seem to imply that the starting point of limitation itself is postponed until after the capacity so discharge has been acquired by one of them, or until the disability has ceased."
However, they got over the difficulty by putting a harmonious construction on sections 6 and 7, observing that the latter was really an appendix to the former and that the avowed purpose of both the sections was to extend the period of limitation.
7.5. History.- The expression "time will not run" also occurred earlier in section 8 of the Act of 1871, which ran as under:
|"Disability of one joint creditor||8. When one of several joint creditors or claimants is under any such disability and when a discharge can be given without the concurrence of such person, time will not run against them all: but where no such discharge can be given, time will not run as against any of them until they all are free from disability."|
|Section 8 of the Act 1877 reads as under: "Disability of one joint creditor.||8. When one of several joint creditors or claimants is under any such disability and when 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 against any of them until one of them becomes capable of giving such discharge without the concurrence of the others."|
(a) A incurs a debt to a firm of which B, C and D are partners. B is insane and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D.
(b) A incurs a debt to a firm of which E, F and G are partners. E and F are insane, and G is a minor. Time will not run against any of them until either E or F becomes sane, or G attains majority.
The expression "time has begun to run" occurs also in section 9 of the present Act which provides that where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.
7.6. English Act.- It may be of interest to mention that the difficulties arising out of the expression 'time will not run', as respects persons under disability, are not present in section 22 of the U.K. Limitation Act, 1939 (so far as is material) reads as unde.-
"If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years, or in the case of actions to which the last foregoing section applies, one year from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired."
While commenting on the special provision regarding limitation for infants. Halsbury has observe1 that the provision is a saving clause which does not, of itself impose a disability and the plaintiff, while under disability, may bring his action in the same way as if the Act had not been passed, and may also do so within the statutory period after determination of the disability.
1. Halsbury's 4th Edn., Vol. 28, p. 388, para. 868. See also Vol. 24, para. 895.1, et seq.
7.7. Law in U.S.A.- In regard to the American Law Corpus Juris Secundum states the position thus:
"The saving of the position of limitation by reason of disabilities depends on the statute as it existed at the time the cause of action accrued. In the absence of such a saving clause the statute runs against all persons whether or not they are under disability".
This statement of the law has been quoted in various cases.
However, it is observed:
"The statute begins to run against persons under disability as soon as the disability is removed, but, unless a statute prescribed the maximum period that limitations may be tolled by disabilities, limitations do not begin to run until the disability is removed".
A reading of the above shows that even in American jurisdictions the expression "limitations do not begin to run" has been understood to mean suspension of the running of the time, even though that running of time started earlier, even against the person under disability and the expression has not been understood to mean that the starting point of limitation itself is postponed.
7.8. Need for amendment.- As the expression "time will not run" (in section 7) is giving rise to difficulties of interpretation1, we are of the view that the language of existing section 6(1) can be usefully incorporated in section 7, and section 7 should be suitably amended on those lines:2
1. Paras. 7.2 to 7.4, supra.
2. For the draft, see para. 7.9, info.
7.9. Recommendation.- In the light of the above we recommend that section 7 should be revised as under:
Revised section 7
"7. 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 as is referred to in section 6, th.-
(a) if a discharge can be given without the concurrence of such person, the provisions of section 6 shall not apply in favour of any of those persons;
(b) if no such discharge can be given, the provisions of section 6 shall apply in favour of all of them, until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased."
(Rest of the section as at present).