Report No. 89
37.41. Starting poi.-comments (1908).- The starting point under this article requires some comments. When the draft Limitation Bill, 1908 was circulated, Dr. H.S. Gaur made the following comments also on the starting point of limitatio.-
"At present, the starting point for Limitation is the date of attachment and not the release (Ramnarain v. Umrao Singh, ILR 29 All 615). I submit that the starting point should be the release, not the date of attachment. In the view of the law, it may be that enquiry into the propriety of attachment may take a year or more and the party aggrieved may, in the meantime, lose its remedy."1-2
The opinion of Mr. Justice Banerji also dealt with the same difficulty in these word.-
"Articles 29-30: In case of wrongful distress or seizure, limitation should be computed from the date of distress or seizure and where the distress or seizure continues, from the date of the termination of the distress or seizure. If property remains under wrongful distress or attachment it is difficult for the plaintiff to assess his compensation until the property is released. The attachment may continue for a period exceeding one year. In such a case the owner of the property cannot, under the present law get the compensation to which he might be justly entitled. It is doubtful whether the attachment can be held to be a continuing wrong."3
The Chief Justice of Bombay wanted to extend the scope of this article further, suggesting, as unde.-
"This might be extended to a prohibitory order."4
1. Dr. H.S. Gaur, Bar-at-Law, Raipur, Letter No. 2063/V.4-5, dated 19-12-1907, National Archives File, 1908, Paper No. 2, p. 9.
2. Cf. Eng. Gim Moh v. Chinese Merited Corn. Banking, 1940 AIR 276 (FB).
3. Mr. Justice Banerji, High Court of Judicature N.W. Provinces, Letter No. 4021, dated 18th December, 1907, National Archives File, 1908, Paper No. 4, p. 8.
4. Sir Lawrence Jenkins, Chief Justice, Bombay High Court, Letter No. 2469, dated 18-12¬1907, National Archives File, 1908, Paper No. 6, p. 13.
37.42.Suggestions considered.- It is not clear from the file of the Act of 1908 as to why these suggestions were not accepted. We have however given some thought to the matter and find considerable force in these suggestions. It is true that generally the person aggrieved would know about the wrongful attachment within a few days thereof, and can move the court or other authority issuing the process of attachment for relief. If the attaching authority takes only a few months to pass the final order upholding the contentions of the petitioner, the latter would still have enough time left to file a civil suit for damages, as the prescribed period of limitation is one year.
37.43.Need for change in the law.- However, considering the long duration of pendency of cases in courts and the time taken in their disposal, it is likely that the attaching authority may take a long time before objections regarding the attachment are decided. In such a case, a period of limitation starting from the attachment may cause serious hardship. Till the result of the objection filed before the attaching authority is known, the civil court cannot decide the matter. It would rather be harsh to drive an aggrieved person to a civil court even before a cause of action has accrued in his favour, or at least before his claim can be effectively decided.
37.43A. Recommendation as to Articles 79-80.- To obviate such hardships as well as to avoid a multiplicity of litigation, we recommend that the third column of Article 79 should be revised as follow1:1
"The date of release of the distress."
Similarly, the third column of Article 80 should be revised as unde.- "The date of release from the seizure."
1. Compare Articles 73, 74 and 90 and see Manga v. Changa Mal, AIR 1925 All 1311.
37.44.Articles 81-83.- Article 81 reads as unde.-
|"81.||By executors, administrators or representatives under the Legal Representatives' Suits Act, 1885.||
|The date of the death of the person wronged."|
|It is identical with Article 20 of the Act of 1908.|
|Article 20 of the Act of 1877 was as unde.-|
|"20.||By executors, administrators or representatives under Act No. XII of 1855 (to enable executors, administrators or representatives to sue and be sued for certain wrongs).|
|It was identical with Article 12 of the Act of 1871.||
|The date of the death of the person wronged."|
|Article 82 reads as unde.-|
|"20.||By executors, administrators or representatives under the Indian Fatal Accidents Act, 1855.||
|The date of the death of the person killed."|
|It is identical with Article 21 of the Act of 1908 except that the period in that Act was one year.|
|In the Act of 1877, Article 21 was as unde.-|
|"21.||By executors, administrators or representatives under Act No. XIII of the 1855 (to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong).||
|The date of the death of the person killed."|
|Article 13 of the Act of 1871 was in identical terms.|
|Article 83 reads' as unde.-|
|"83.||Under the legal Representatives' Suits Act, 1855 against an executor, an administrator or any other representative.||
|When the wrong complained of is done."|
|Articles 33, 34 and 35 of the Act of 1908 were as unde.-|
|"33.||Under the Legal Representatives' Suits Act, 1855, against an executor.||
|34||Under the same Act Two against an administrator.||
|When the wrong complained of is done.|
|35||Under the same Act Two against any other representative.||
|When the wrong complained of is done.|
|Article 33 of the Act of 1877 was as unde.-|
|"33.||Under Act No. XII of 1855 (to enable executors, administrators, or representatives to sue and to be sued for certain wrongs) against an executor, administrator, or other representative.|
|Article 39 of the Act of 1871 was in identical terms.|
37.45. Law Commission Repo.-point concerning survival of cause of action on death.- The Law Commission1 in its Report on the Act of 1908, while considering the scheme of the relevant Act, observed as unde.-
"The maxim of English Law "actio personalis moritur cum personal" has been modified in India by various Acts. The Fatal Accidents Act provides that in the case of death of a person injured by a wrongful act, neglect or default, a right to suit accrues to recover damages for the benefit of the wife, husband, parent and child, if any, of the person who dies. But the suit has to be instituted in the name of the executor, administrator or representative of the deceased person.
Under the Legal Representatives' Suits Act, XII of 1855, the executor, administrator or representative of any deceased person has been given a right to bring a suit for a wrong committed in the life-time of such person which occasioned pecuniary loss to his estate, provided the suit was in respect of a wrong committed within one year before the death. Death will not abate any cause of action relating to loss of damage to property.
The damages recovered form part of the estate of the deceased. A suit may be maintained against the executor, administrator or representative of the deceased for any wrong committed by him in his life-time for which he would have been subject to an action if the wrong was committed within one year before his death. Section 2 of that Act further provides that the death of either party to a suit shall not abate the suit.
Section 306 of the Indian Succession Act provides that the right to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his death survives to and against his executor, administrator or representative. But an exception is made in respect of a cause of action based on defamation, assault as defined in the Indian Penal Code, or other personal injury not causing the death of the party.
In England, until recently, the maxim above referred to applied generally till it was abrogated by the Law Reform (Miscellaneous Provisions) Act, 1934. But even under this Act, a cause of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other and for damages on the ground of adultery were excepted. The law, therefore, both in England and in India at the present moment is more or less the same. The difference lies only in the exceptions existing under the Indian Law and the English law."
1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 112.
37.46.History.- Article 83 of the Act of 1963 replaces Articles 33, 34, and 35 of the Act of 1908. The period under this article is two years, whereas under Article 81 it is one year. In Article 82, the period of one year has been increased to two years (suits under the Fatal Accidents Act, 1855).
37.47. Law Commission Repo.-point concerning limitation.- The Law Commission1 in its Report on the Act of 1908, observed as unde.-
"113. Article 20 relates to a suit filed by a legal representative for torts causing pecuniary loss to the estate, while Article 21 relates to a suit filed by a legal representative for damages for death, which has to be a representative action. The other group of Articles 33, 34 and 35 relate to suits against the legal representatives. Under Articles 20 and 21, the date of death of the person is taken as the starting point of limitation. Under the Fatal Accidents Act, the suit is for damages for causing death by any wrongful act, neglect or default and the suit is for the benefit of the dependants.
The suit under the Legal Representatives' Suits Act is restricted to wrongs which occasion pecuniary loss to the estate of the deceased and cause of action in respect of which, according to the law then prevailing, did not survive. Under the Succession Act, all rights of action survive to the executors or administrators except actions for defamation, assault or personal injuries not causing the death of a party. The substantive law preventing the abatement of the cause of action is laid down by the said Acts.
The cause of action under the Fatal Accidents Act is the death and time under Article 20 begins to run from the date of the accrual of the cause of action. However, under the Legal Representatives' Suits Act, as the suit is in respect of a wrong committed in the life time of a person but time is made to run from the date of the death, the running of time does not synchronise with the date of accrual of the cause of action.
On the other hand under Articles 33 and 35, a period of 2 years is provided which runs from the date when the wrong complained of is done. This synchronises with the date of the accrual of the cause of action. The suits contemplated under the two Acts, i.e. Legal Representatives' Suits Act and the Fatal Accidents Act relate to torts. No special period of limitation is provided for actions contemplated by section 306 of the Succession Act, as it was assumed that the provisions laid down in the Limitation Act will govern such actions.
114. A provision for the survival of the right of action having been made, the action may be treated as one founded on tort whether it is by or against an executor, administrator or representative and the time for limitation may be made to commence with the accrual of the cause of action. If a period of three years from the accrual of the cause of action is provided, no hardship will be caused to either party.
In view of the proposed period of 3 years from the date of accrual of the cause of action the period of one year before death provided in the Legal Representatives' Suits Act will have to be abrogated. It may be observed "here that instead of leaving the question of survival of the cause of action to be dealt with by three separate Acts, a consolidating amendment in an appropriate manner may be made in section 306 of the Indian Succession Act.
115. There is also a conflict of decisions under section 306 of the Indian Succession Act as to whether a right to an action for malicious prosecution is one relating to personal injury not causing the death of the party and whether it survives. This conflict may be set at rest by specifically bringing within the exception to section 306 of that Act, actions for malicious prosecution if it is intended that the cause of action in respect of such wrongs should not survive the death of the person aggrieved."
1. Law Commission of India, 3rd Report (Limitation Act, 1908), paras. 113, 114-115.
37.48.Joint Committee Report.- There is a period of limitation of one year under all these articles, except in the case of fatal accidents under Article 82, where it has been increased to two years in the Act of 1963 on the recommendation of the Joint Committee. The Joint Committee Report state1 thus:
"The Committee feels that the limitation of one year provided for suits under the Indian Fatal Accidents Act, 1855, is short and should be increased to two years."
1. Joint Committee Report, (1963 Act).
37.49.Comment.- The period of one year in earlier articles (corresponding to present Articles 81 and 83) was commented upon by W.J. Money, Officiating Judge, Maimansingh, in his old opinion of 1871, as to be too short for the purpose in hand:
"That, under Act XII of 1855, there was a limitation of two years in the case of actions of a certain kind against executors, 8r c. points out that delay in instituting actions of this class may often be unavoidable, owing to the difficulty of obtaining full information, and urges that it is not apparent, therefore, why the period of limitation should be reduced to one year.
He submits whether in such cases it would not be more for the public interest that the limitation should be fixed at two years in the cases of actions both by and against executors, such limitation being in respect of wrong committed within one year of the death of the person, and to be calculated from the date of decease, and not from the commission of the wrong."1
1. Officiating Junior Secretary, Government of Bengal, letter No. 416, dated 2nd February, 1871, National Archives File, 1871, Paper No. 5, p. 14.
37.50.Causes of action surviving on death.- So much as regards matters of primarily historical interest. A question that may need to be looked into is this. Under section 306 of the Indian Succession Act, the right to prosecute or defend an action or proceeding in favour of or against a person at the time of his death survives to, and against, his executors, administrators or representatives. It seems desirable to refer to the impact of this provision on the law of limitation.
In contrast with the general position, the starting point mentioned in Article 81 is the date of death of the person wronged, and not the date of commission of the wrong. In other words, though the suit is in respect of a wrong committed in the life-time of a person, time is made to run from the date of the death, and the running of time does not synchronise with time with the accrual of the cause of action.