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Report No. 89

Chapter 16

Section 16: Effect of Death on Limitation

16.1. Section.-Effect of death on or before the accrual of the right to sue.- The general principle is that when a right to sue accrues to a person during his lifetime, his death thereafter does not suspend the running of limitation. The reason is, that time commences to run at once (in general) and,1 as the Act puts it, once time has commenced to run, no subsequent inability to sue stops or suspends its running.

However, where a right to sue accrues for the first time after the death of a person i.e. if a person dies before the right to sue accrues, there must be some person capable of representing his estate when the right to sue accrues. Where the right to sue accrues on the death of a person (i.e. where the death and accrual of the cause of action are simultaneous), the same is the position. Dealing with these two situations, section 16(1) of the Act provides that the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting the suit or application in question.

While section 16(1) deals with the death of the would be plaintiff, section 16(2) applies the same principle to the case of the death of a person liable to be su.-the would be defendant. Where his death takes place before, or simultaneously with, the accrual of the cause of action, the period of limitation is to be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute a suit or make an application for enforcing the cause of action in question.

However, section 16(3) provides that nothing in sub-section (1) or sub¬section (2) appli.-

(a) to suit to enforce rights of pre-emption, or

(b) to suits for the possession of an immovable property or of a hereditary office.

The exception takes out these suits, presumably because the application of the section to such cases would tend to create insecurity of title.2 Moreover, the period of limitation for suits for immovable property is generally twelve years, and no hardship would be caused by the non-existence of a legal representative for some period.

In the case of suits for pre-emption, though the period is not so long, there is the general rule that the demand for pre-emption must be made quickly and the legislature .has not considered it proper to interfere with the operation of this rule. It may be mentioned that the same approach have been shown while dealing with the case of legal disability. The special provisions3 enacted to give extra time to persons under legal disability do not apply to a suit to enforce a right of pre-emption4.

1. Section 9, Limitation Act, 1963.

2. Cf. Kesho Prasad v. Madho Prasad, 1924 ILR 3 Pat 880.

3. Sections.-7.

4. Section 8.

16.2. The Law Commission,1 relying on the Privy Council case of Mayyappa v. Subramanya, (1916) 20 CWN 833 (PC), recommended extension of the old section 17 (now section 16) of the 1908 Act even to rights of action accruing on death and this recommendation has since been accepted. The gist of the Privy Council decision is that time does not run or commence to run until there is a person in existence who is capable of being sued.

This proposition has been sought to be clarified in present section 16, which takes the place of section 17 of the Act of 1908. The crux of the amendment in the law achieved by section 15 of the present Act is the addition, in sub-section (1), of the words "where a right to institute a suit or make an application accrues only on the death of a person" and the addition of corresponding words in sub¬section (2). The change was made in the light of certain decisions that had applied section 17 of the Act of 1908 even to cases where the right to sue had accrued on death.2

1. Law Commission of India, 3rd Report, para. 47.

2. Mayyappa v. Subranzanya, (1916) 20 CWN 833 (PC).

16.3. No change needed.- No further change is needed in the section.



The Limitation Act, 1963 Back




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