NOTES ON The Limitation Act 1963 by Anil K. Nair Advocate High Court of Kerala AVAILABLE aT 71 = 2327380 Mob: S446580443 | | APARNAPUBLICATIONS — | | WITHABHAVAN, KULASEKHARAM, \ NTHAPURAM - 13, PHONE: 9446580443,a. 2 ar 4. 5 6 ee 8 9 CONTENTS Introduction ‘Period of Limitation and Prescribed Period Bar. of Limitation Condonation of Delay ( Doctrine of Sufficient Cause) +» Legal Disability” Continuous Running of Time Suits against. Trustees and Thelr Representatives Suits on Contracts ; Computation of Period of Limitation 4. 2. o enone 9. ‘i vA Exclusion of-time-in’ Legal Proceedings Exclusion ‘of: time Incases where leave’ to sue or appeal as ‘a pauperis applied for and rejected” Exclusion of Time of Proceeding bona fide in court without jurisdiction Exclusion of Time In’ certain other cases Effect of death before the accrual of right Effect of Fraud and Mistake Effect of Acknowledgement In writing Effect of Payment on account of debt Effect of substituting or adding new pleintiff 10. Acquisition of Easement by prescription Adverse Possession 11. an a “N 16 18 19 20 20 21 cal 22 23 24 27 32 32 33 27Notes on The Limitation Act,1963 Prepared By Anil K. Nair Advocate High Court of Kerala Phone: 2378489, 2327390 (0471) 2347135(0484) 9447500443(Mob) Topic-! Introduction In India the law relating to period of limitation for institution of suits . appeals or other proceedings is contained in the Limitation Act, 1963. It is a Proceedural or Adjuctive law The main object of the Limitation Act Is to prescribe a period of time within which any suit, appeal or application ia to be instituted, prefered or made After the prescribed period the plaintiff cannot approach a court for rellef The basic principle of the law of limitation Is that the “law will come to the assistance of the vigilant and not of the: sleepy’. The maxim is: “Vigilantibus non dormientibus jura subveniunt". {t means that the law will ald only those who “are vigilant and not those who sleep upon thelr rights, In the interest of the state also there should be an end to litiga- tion based on antiquated causes. The maxim Is: interest reipublicae ut sit finis litium.There might be deaths of parties and witnesses. Evidence may not be available. Documents might 1be lost or faded. Unlimited and unrestricted litigation may lead “to disorder and confusion. The purpose of the Limitation Act is to create a finality of litigation. It limits or prescribes. a time after the lapse of which a suit or other Proceedings cannot be maintained. It merely Prescribes a period for the institution of the proceeding in Court: Thus the law of - limitation does not extinguish the right of a Person but only bars the remedy The object of the Law of Limitation is neither right nor to extinguish an existing right puts a bar to a suit to give a new The Law of Limitation to enforce an existing right after a certain Period. The Law of Limitation does not destroy a right which is already acquired. It only bars the enforceability of right through court of law. ¢ In Punjab National Bank v, Surendra Prasad Sinha(AIR 1892 SC 1815), the Bank granted a loan to a persoh for which ‘S' and his wife became the guarantors and executed a security bond in which certian fixed deposit receipts security for the loan. The borrower The bank where pledged as failed to repay the loan. thon adjusted the amount of the fixed deposit receipts towards the duos and the balance was credited to the Saving Bank account of ‘S' and hia wite. ‘S' challenged the validity of action taken by the bank on the grond that the debt became Darod by IImitation and the bank cannot adjust the amount of ‘xed deposit towards this dues. The Supreme Court it clear that has made tho rules of limitation are not meant to distroy the fights of the parties, but only bars the remedy of suits: 'n Harira) Singh V. Sanchatak, ( AIR1988 All 246 ), the 2Court held that the rules of limitation are not meant to distroy the rights of the parties. They ere meant to see that the plaintiff seeks remedy within the period stipulated by the Legislature The rules of Limitation only bars the remedy but does not ex- tinguish the right. The right continues to exist even though the remedy is barred by limitation. Thorefore, a debtor who has paid the time barred debt cannot claim it.back on the plea that it was barred by limitation. Similarly, when a debtor has several debts due to a creditor and he makes payment without ony Stipulation, then the creditor can adjust it towards any of the debts even if recovery of such debt Is barred by time. In. Harshad: Co-operative V. limited India fire and general insurance, ( AIR 1992 Bom 341); the question before the Bombay High Court was that whether parties.to ‘a contract can cut down a period of limitation prescribed by the statute and whehter such a stipulation is valid. The provisions of Limitation Act is based on public policy and if a contract is made fettering or cutting down the period of limitation such a contract being against the provisions of the limitation Act are opposed to the principles of public plicy and hence inoperative. Even if such a stipulation is there in the contract the legal proceedings can be. instituted within a period of limitation prescribed by the Limitation Act, 1963. In India , by virtue of section 28 of the Indian Contract Act,1872 , an agreement which prescribe time limit different from those under the Limitation Act for enforcing the rights under the contract is void. Scheme of the Act The Limitation Act,1963 contains 32 sections-and one 3Schedule, The Schedule contains 137 Articles The Schadule states the poriod of limitation for institution of a suit, prefering ®n appeal of making an applicaiton. Articles 1 to 113 deal with period of limitaion for institution of different sults. Articles 114 to 117 deal with poriod of limitaion for prefering appeals. Articles 118 to 137 deal with period of limitation for making applications. Topic -Il | Period of Limitation and Prescribed Period Section 2 (j) of the Limitation Act, ash defines ‘perod of Iimitation| and ‘prescribed period’ ‘Period of Limitation’ means the period of timitation prescribed for any sult, appeal or application by the Schedule to the Act ‘Prescribed Period’ means the period of limitation computed in accordance with the provisions of the ActTopic-lll Bar of Limitation Section 3 of the Act deals with bar of limitation. By virtue of Sec. 3(1) of the Act every suit instituted, appeal preferred and applications made after the prescribed period shall bo dismissed although limitation has not been set up as defence Section 3 is made Specifically subject to sections 4 to 24 It is clear from the wording that it is mandatory for the Court to dismiss if a suit is instituted or an appeal'ls prefored or an application is made after the prescribed period. There need not even be any specific objection from the other side. in Rama Shankar v. Shyamlal (AIR 1970 SC 7416), the Supreme Court held that a suit instituted after expiry of period of limitation is liable to be dismissed though the limitation is not pleaded in the written statement. The Court has no choice in the matter. When a suit is clearly time barred It cannot be decreed in violation of section 3 of the Act. In Kerala State Bamboo Corporation Ltd v. P.K, Ramosan Nair (2016 (6) KHC 942), it was held that section 3 of the Act only bars tho remedy , but will not destroy the right. Rules of limitation are not meant to destroy the rights of the parties. Expiry of proserib By virtue of Section 4 of the Act, if the prescribed period for any sult, appeal or application expires on a day when the Court is closed, the suit, appeal or application may bo Inati- orlod wi tuted, preferred or made on the day when the Court reopensA Court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day. In Hiralal Vs. V.K.S. Mandali Ltd, (1995 AIR SCW 3902),under an-agreement for Sale of goods a date was fixed for making the payment. The buyer defaulted in making the Payment. The seller filed a suit for recovery of money after 3 years from the date fixed for making the payment. The Courts were closed for holidays on the day when 3 years were completed. The suit was filed immediatly on the date on which the Courts were re-opened: The Supreme Court held that the - benefit of section 4 would be attracted to.the filing of the suit by the plaintiff and the sult was: not barred by limitation. In Kurlan E&. Kalathil v, KSEB. Tym and another’(2014 (1) KHC 148), the Kerala High Court held: “it Is the duty of the Court to dismiss the suit instituted after the prescribed period of limitation Irrespective of the fact that limitation has not been set up as a defence. Unless exclusion of time under any other provision of the Act Is available and shown to be exist, there is no provision In the Limitation Act for condoning the delay in filing the sult In Antony C.K. v. Mathal M. Palkeday (2014 KHC 416), it was observed: * it le for the court to determine wheter the suit is barred by limitation or not, Irrespective of the fact that such a plea of IImitation has not been set up asa a defence in the written. statement, !a Ajay Gupta v. Raju @ Rajendra Singh Yadov (2016 (4) KHC 169, last date for filing suit was 31-12-2010, the last 6day of winter vacation for Court. 01-01-2011 was 2 non working saturday-but working day for Registry. Suit was filed on 03-01- 2011. The High Court held that the suit filed on 03-01-2011 was within the limitation as 01-01-2011 was non-working Saturday. But the Supreme Court held the suit was barred by limitewon pecause 01-01-2011 was 8 working day, for the, Registry. No court can extend the period of limitation for filing a suit Topic -1V Condonation of Delay © (Doctrine of “Sufficient Cause Section 5 of the Act confers a power to the Court to grant extention of period of limitation if there is ‘sufficient cause’ for not filing the appeal or any application within the prescribed period. Section 5 says that, * an appeal or any application may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not prefering the appeal or making the application within such period, This section gives a discretionary power on the court to do justice. By virtue of section 5 of the Act-the Court can condone the delay and admit the appeal and application if the following con ditions are satisfied: (1) An appeal or application should have prefered or made after the prescribed period. (2) There should be sufficiont cause for the delay in 7prefering appeal or making application (3) The appellant or the applicant should satisfy the cour that he had sufficient cause for not prefering the appeal o, making the application within the prescribed period The court cannot condone the delay in making an application under the provisions of Order XXI of the Code of Civil Procedure,1908. Order XX! of the Code deals with execution of decrees and orders. The court cannot condone the delay in instituting a suit. The term sufficlont cause is not defined in the Act. Therefore we have to depend upon decided dases. In State of West Bengal v. Administrator (AIR 1972 SC 748) the Supreme Court laid down following guidelines for applying ‘the doctrine of “sufficient cause”. (a) It must be a cause which was beyond the control of the party invoking It (b) He must not be guilty of negligence. His deligence and care must be shown (c) His intention must be bona fide in Now India Insurance Co. v, Shantl Mlera (AIR 1976 SC 237), the Supreme Court pointed out that what constitute “Sufficient Cause" cannot be lald down by hard and fast rules in John v. Mammukutty (1985 KLT 55), the Kerala Hig? Court held the words “sufficient cause" occuring in Sec.5 of the Limitation Act should be liberally construed as to advance 8substantial justice unless the petitioner is guilty of contumacious conduct. The circumstances or facts on the basis of which the petitioner prays for the condonation of delay should appear to the court to be reasonable, proper and acceptable in Kumarl Amma vy. Kavukutty Amma (1993 (2) KLT 793. it was held thal arronoous legal advice, sickness, distance from the court of lawyar's office and poverty are some of tho causes which may ba considored as sufficlont. 1) Uness of the Party Iiness of the party is a sufficient cause for condoning the delay. A mero plea of sickness Is not sufficeint cause for excusing the delay. The effect of the iliness must be such as that it will afford reasonable excuse of the delay In Gauri Shankar V. Kashinath (AIR 1934ALL 367) the Court held that high fever attended with delirium is a sufficient | cause. In> Lucey V, Francis (AIR 1954 Mys. 86) there was a delay of 9 days in filing the appeal on account of abortion and consequent haemorrhage and it was held as a sufficient cause. 2) Imprisonment Imprisonment in jail may be a sufficient cause and the time spent in jail may be deducted (Collector of Balasore V. Ashutosh (AIR 1963 Ori 102). 3) Mistake of the Lawye Wrong advice given by a lawyer may give raise to sufficient 9cause for condoning the delay in South Indian Ltd. v, Ousoph (1986 KLT 1133), it was held that a miscalculation of period of limitation may be sufficient ground provided It Is found to be bona fide. In Fathima Beevi v. District Magistrate (1993 (2) KLT 821) it was held that there is no general proposition that mistake of a counse} by Itself is always sufficient ground. It is always.a question whether the mistake was bonafide or was merely. a device to cover an ulterior purpose such as laches on the party of the litigant or an attempt to save limitation. The court can see whether ina particular case the mistaken legal advice can be accepted as a sufficient reason for condoning the delay. In Raflq V. Munshilal (AIR 1981 S.C. 1400) the Supreme Court observed; * The problem that agitates us is that whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously Is In the negative. We cannot help an innocent party suffering injustice merely because his chosen advocate, defaulted.” in G. Ramegowda V. Spl. Land Acquisition Officer (1988 (2) SCC'142), it,was held that . the law of limitation is same for private citizan’s and Government. In this case the Supreme Court criticized the conduct of a, Government official. There was a delay on the part of the Government for a poriod of more than one year. However, in the interest of justice the Court condoned the delay. 10Topic- V Legal Disability By virtue of section 3 of the Act, a suit is to be instituted within the prescribed period and a suit instituted after the precribed period is to be dismissed. By virtue of section 6 of the Act, if a parson who Is entitled to. institute a suit or make an application for the execution of a decree isa minor or insane or an idiot. at the time from which the prescribed period is to be reckoned, he may institute the suit or make the applicalton within the same period after the disability has ceased, as would otherwise have been allowed from the time Specified therefor in the third column of the Schedule. \ Section 6 which embodies the doctrine of legal disability is applicable only in. the case of three classes of persons. They .-are- i) Minors li) Insane’ Persons li) Idiots. By virtue of Explanation to the section, minor includes a child jn the womb. Section 6 Is applicable only in the matter of institution of suit or-make an application for the execution of a decree. The rules in_ section 6 are given below: 1) If a person entitled to institute a suit or make an application utor execution of e decree is at the time from which the prescribed o be reckoned, a minor or in lication for execution of the period is t sane or an idiot, he may tute the suit or make the apP me period after @ have been allowed form the instl decree, within the as would otherwis therefor in the third column of the schedule the disability has ceased time specifies 2) If such person is at the time from which the prescribed period is to be reconed affected by two such disabilities or if before his disability has ceased he Is affectod by another disability he sult or make the application within the samo as would otherwise may Institue the period after both disabilitl have been allowed form the time so specified: 1 3) If the disability contiunes upto the death of that person his legal representatives may Institue the suit oF make the application within the same period aftor the death, as would otherwise , have been, allowed form the time so specified. If such legal representative | also suffering from any of ine disabilities mentioned above, he will be entitled to sue of make the application after the disability has ceased 4) If a person under disability dies after the disability ceases but within the period allowed to him, hie legal representaliv® may institue the suit of make (he application within the same pariod after the deoth as would otherwi that person had he not died have been avaliable! Disability of One of Severs! Persons Section 7 of the Limitation Act deals with the ¢ sabi! one of several persons. 12'f one of the several persons jointly ontitied to Institute a suit or make an application of the execution of a decree is under any. of the disability i.e., minority, lunacy or Idiocy, anda discharge can be given without concurrence will run against them all, such person, time Wa dlacharge cannot be given without concurrence of petaon Under disability, time will not run againat them until the disabled capable of giving such discharge without the cuncuttence of the others of until the disability has ceased person become a tefers to discharge from every kind of Nability including a llability in respect of any Immovable proporty, Manager of a Joint Hindu Family can giveva valid discharge without the concurrence of the other members of the family if he is In management of joint family property. | ‘Discharge’ | 1) ‘A’ is Karta of a Joint Hindu Family... 'X' trespassed into the Joint Family Property taken. wrongful possession of the property. 8, C and D are other coparceners of the Family. D is a minor on the date of trespass by X. ‘A’, being Karta of the family, can discharge X from liability without concurrence of the disable person and thus the time will begin to run against them all and the suit for eviction and compensation is to be ue within the prescribed period notwithstanding the disability of 2) ‘A’ incured a debt to a firm of which B, C and D are partners B was insane on the date of debt. C and D can discharge’A from w liability without concurrence of B and thus the time will begin to a 13run against them all and the suit for recovery of money should be filed within the prescribed period even though B is a disabled person on the date when A incured debt. In Vv. Qrem Insurance Co. (AIR 1983 All 27), the sult was for compensaties_tor accidental death by two minor children of the victim and his widewor mother could not give a valid discharge without the consenmat the minor children. So time would not run against any of themtill ~~ the children attain majority. Special Exception Section 6 of the Act is in the nature of a proviso to sections 6 and 7. Section 8 says'the “nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend for more than three years: from the cessation of the disability or the death of the person affected thereby, the Period of limitation for any suit or application”. By virtue of section 8 of the Act, nothing in sections 6 or 7 shall be deemed to extend for more than three years from the cessation of the disability or the death of the person affected by disability. Thus if a suit is'to be instituted by a person who Is 1} suffering from any of the disability, the suit is.to be instituted within’ the normal period of limitation or 3 years from the cessation of the diabillty or the death of the person affected by the disability. Example +. 18 8 minor Muslim aged 4 years. His immovable property is sold by his brother who is not his legal guardian. The sale is 14void. If a sale is void the plaintiff need not file;a suit to set aside the sale deed. When a sale is void , the possession of the vendee becomes adverse to the vendor and after the expiry of 12 years form the date of assignment the vendee.will acquire a title by prescription(Article 65). However as the right to institute the suit for possession is with ‘a minor, the'time will be extended till he attains majority and the minor can, by. virtue of section 6, Institute the suit within the same period after. the diability, has ceased as would otherwise have been allowed from the time specified in the third column of the schedule. However by virtue of section & of the perid of limitation shall not bo deomed to extent for-more than three years from the c tlon of the diasbility. Thus the suit for possession should be filed within 3 years from the date of cessation of disability and not within 12 years from the date of attaining majority. In Moidu Haji v. Kunhabdulla and others (1998 (2) KLJ 241), the Kerala High Court held that if the property exclusively . belonged to a Mohammedan minor and the same had been alienated by a person who was not his legal guardian, the said transaction would be vold and applying Article 65 of the Limitation Act and in the light of sections 6 and 6 of the Act, the suit is to be instituted by the quondam minor (former minor) within three years of his attaining majority or within 12 years of the transaction Itself. AsTopic -V! , : continuous Running of Time Or -once time has begun to run no subsoquent disability stop it" - Discuss n 9 of the Limitation Act, if once the By virtue of sectio or inability to time has begun to run, no subsequent disability institute a suit or make an applicaiton cannot stop the running of once the limitation period has ability will not stop limitation period. In other words, started running the subsequent disability or in the running of limitation perlod. ‘Disability’: means want of legal capacity to act. eg Minority; insanity and idiocy. : “Inability” means want of physical power to act, og. Lack of money) Iliness etc. : The only exception to the above stated rule Is that if the letters of administration to the estate of a creditor is granted to his debtor,. the running of period of limitation for a suit to recover the debt shall be suspended while the administration continues. Application of the Rule 1) The law as to continuous running of the limitation period Is applicab to the creditor himself or his legal representatives 2) If the limitation period starts before the person becomes 16insane or if the person becomes subsequently insane it will not ill no affect the continuous running of the limitation period 3) If the limitation periog nas to start funning when a person is a minor, and if he subsequently becomes @ major, the limitation period 18 suspended till he vecomes a major. Once he becomes a major the limitation period starts running. Subsequent insanity after attaining majority does not affect the continuous running of the limitation period 4) If the limitation period has to start running when a person {sa minor, it is temporarily suspended. When he attains majority, the limitation period starts tunning. The subsequent death of a person who has attained majority does not affect the continuous running of limitation period. After his death though his legal representatives are minors, the limitation period does not Stop or is suspended, but it runs continuously. PROBLEM 1 . A borrows. Rs, $000/- from B and agreed to repay the same within one month. A failed to repay the money’ 8 dies after three months leaving C his minor son without instituting a suit against A. C sues A for the money within three years of attaining his majority but § years after the borrowing date. Can ‘C’ recover the loan from A. The minor cannot succeed because the limitation period has already started running when his father B was alive. Once the limitation period has started running the subsequent disability or inability cannot affect the running of limitation period. C, have instituted the suit within 2 ©ugh a minor, ought to Three years is years and .8 months after his fathers death. the period of limitation for recovery of money payable for money 17lent and the time from which the period begins to run is the date on which the loan is made. Here the suit is filed by the minor after 5 years from the date when the loan is made and the suit is barred by limitation under section 3 of the Act and hence liable to be dismissed, Topic - VII Suits against Trustees and Their Representatives By virtue of section 10 of the Act, a suit shall not be barred by any length of time if it is against a person In whom property has become vested in trust for any specific purpose or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following his or their hands such property or the proceeds thereof or for an account of such property or proceeds. By Virtue of explanation to section 10 of the Act, any property comprised in a-Hindu, Muslim or Buddhist religious of» charitable endowment shall be deemed to be property vested in trust fora specific purpose and the manager of the property shall be deemed to be the trustee thereof. in Swapna v. Thankavelu (1990 (2) KLT 604, the Kerala High Court held that the husband is in the position of a trustee so far, as the ornaments and utensils entrusted to him by the wife are concerned, and under section 10 of the-Limitation Act there shal! not be any limitation for such a suit by the wife against husband. in Chako v. Annamma (1993 (1) KLT 675, the Kerala High 18Court affairmed the decision in Swapna’s case and held that when father of Christian girl pays stridnanam to her father-in- law , an express trust is created and the girl is made its cestui que trustee and the money paid would constitute in the hands of the husband or the father -in - law the subject matter of of an express trust and the amount is a trust property or trust money In such a case there is no limitation for suit to recover such money. a Topic - Vill Suits on Contracts entered into outside the territories to which the Act extends Section 11 of the Act says that suits instituted in the territories to which the Limitation Act extends on contracts entered into in the State of Jammu and Kashmir or in a foreign country shall be subject to the rules of limitation contained in the Limiatation Act, 1963. The rule of limitation in force in the State of Jammu and Kashmir or in a foreign country shall not be a defence to a suit, on a contract entered into in that state or foreign country, instituted In the territories to which the Limitation Act applies. However if the rule of limitation in force in the State of Jammu and Kashmir or in @ foreign country shall be a defence if the rule has extinguished the contract and the parties were domiciled in that state or in the foreign country during the period prescribed by such rule. - 19Topic -IX eee Geitation of Period of Limitation Sections 12 to 24 of the Limitation Act deal with rules regarding computation of Limitation. The rules regarding computation of period of limitation is discussed under the following heads: (1) Exclusion of time In Legal Proceedings (Section 12) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded, . ; In computing the period of ‘limitation foe an appeal or an application for leave to appeal or for.revision or for review of a judgment,’ the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. If a decree or order is appealed from or sought to be revised or reviewed or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of Judgment on which the decree or order ts founded shall also be excluded. In coputing the period of limitation tor an application to set aside an award, the time requisite for obtaining a copy of the award shall also be excluded.In computing the period of limitation for any suit the time during which, the plaintiff has been Prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal of revision, against the defendant shall be excluded. The proceeding should relate to the same matter in issue. He should have prosecuted in good faith in a court which is unable to entertain it due to defect of jurisdiction or other cause of a like nature. The above sated rule shall also be applicable to a fresh suit instituted on permission granted by court under Order 23 of theCPC If such permission Is granted on the ground that the first suit must fall by reason of a defect in the jurisdiction of the'court or other cause of alike nature. Misjoinder-of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due whether Ina court, of, first diligence another civil proceeding, the same party for the Instance or of appeal or revision, against same relief shall be excluded. He should have prosecuted In good faith ina court whichis unable to entertain It due to defect of jurisdiction or other cause of a like nature. (4) Exclusion.of time in certain other cases. (Section 15} In computing the’ period of limitaion for any suit or application forthe execution of a decree, the ‘institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or.order, the day on which it was issued of made, and the day on-which it was withdrawn, shall be excluded. In compiting the period of limitation for any suit of which notice has been given, or for which the previous consent or netion of the Government or any other authority is required, In accordance with the requirements of any law for the time being force, the period of such notice or the time required for obtaining such consent or sanction shall be excluded. 1) Disha Constructions v. St of Goa (2012) 1 SCC 690, suit was filed against State on 24 -10-2009 for recovery of 2about Rs. 9 lakhs with interest at 18% that remained unpaid from 30-09-2006. Notice under s.80 CPC was given on 19-02-2009, which was within period of limitation, and the same was received on 27-02-2009 and two months thereafter expired on 27-4-2009. It was held that the said two months must be computed and benefit of exclusion of said two months must be given to the appellants. When the limitation period is so computed filed Is within the period of limitation. the suit ' In computing the period of limitation for any suit or applicaiton for execution of a decree by any receiver, or interim receiver appointed in proceedings for the adjudication of a person a8 an Insolvent, or:by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, t Period beginning with date of institution of such proceeding | ending with d months from the date of appointment of such receiver or liquidator shall be excluded. the expiry of thre In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a docreo, the time during which a proceeding to set aside the sale has been prosecuted stall be excluded. ~ ° * . In computing the period of limitation for any suit the time during which the Wefendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded. (5) Effe. ° ore the {Section 16) If a person who whould, if he were living, have a right to 3institute a suit or make an application dies before the right accrues, or where a right to institute a suit or make an application accrues only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such application. Mf a person againt whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, or where a right to institute a suit or make an application against any person accrues ‘on the death of such person, the period of limitation shall be computed form the time when there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application. The above stated rules are not applicable to suits to enforce rights of pre-emption or suits for possession.of immovable property or of a herditary office. | (8) ct of tra d Mist: ec’ Section 17 of the Act provides the effect of fraud or mistake and its impact on the period of limitation. | The general rule contained in section 17 is that If a sult is based upon the fraud of the defendant or mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud of mistake The following are the rules contained In section 17 4. Mf a Bult or application Is based upon the the fraud of the defendant or respondent orhis agent, the period of limitation shall not begin to sun until the plaintiff or applicant has discovered 24the fraud of could, with reasonable diligence, have discovered it 2 It the knowlege of tight of title on which @ suit or application is foundod is concealed by the fraud of the defendant or respondent of hi agent, the period of limitation shall not begin to run until theptalntittor applicant has dlecovered the fraud or could, with reasonable diligence, have discovered it .. 3. If the sult or application Is for relief trom the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the mistake or could, with reasonable diligence, have discovered it. 4. If any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant first had the means of producing the concealed document or compelling its production. The principle underlying is that where on account of fraud, mistake or concealment, the other side has remained in dark from the knowledge of such right or title, the party will get a fresh Period of limitation from the knowledge of right or title. In Karthlyani Amma v, Sudasundaram (1994 (1) KLJ 843), it was held that a person desiring to invoke the aid of the section must establish the following essentials: (i) That there has been fraud. (il) That by means of such fraud he was kept in dark from 25the knowledge of his right to sue or apply or of the title on which. such rights le founded. The effect of fraud or mistake Is that the period of limitation will run only .from the date when the fraud or mistake becomes known to the plaintiff or the applicant. However the defendant can establish that with reasonable deligence the plaintiff would have discovered the fraud or mistake eariler, then the benefit of this section Is not available to tha plaintiff. Exceptions 1) By virtue of the proviso (i) of sub section (1) of Section 17, in the case of fraud, a bona fide purchaser of property for value without notice of fraud in the earlier transaction will be protected and the benefit of section 17(1) cannot be extended to set aside the sale as against him In Karthiyani Amma v Sudasundaram (1994 (1) KLJ 843), the Kerala High Court held that the proviso (i)to section 17(4) of the Limitation Act protects the right of a person who has purchased the property for valuable consideration. Even if the period of limitation is liable to be extended on establishing fraud «nothing In the section shall enable any suit to be instituted to set aside any transaction affecting any property which has been purchased for valuable consideration ‘by a person who was not a party tothe fraud and did not at the time of the purchase know or have reason to believe that any fraud has been committed. The right ofa person who bonafide purchaser for valuable eansideration will not in any.way affected even if there is irregularity or infirmity in the sale. 26ii) By virtue of the proviso (li) of sub section (1) of Section 17, in the case of mistake, a bona fide purchaser for valuable consideration without notice of the mistake in the earlier transaction will be protected and the benefit of section 17(1) cannot be extended to set aside the sale as against him iil) 17, By virtue of the proviso (iii) of sub section (1) of Section in the case of concealment, a bona fide purchaser for valuable consideration is protected when he is nut the concealment and did not know’ that concealed. @ party to fhe document had been By virtue of section 17(2) of the Act, if a judgment -debtor has, by fraud or force, prevented the execution of a decree or order within.the period of limitation, the court may, ton the application of the judgment -creditor made after the expiry of the said period extend the period for execution of the decree or order. An application for this purpose is to be filed within one years form the date of the discovery of the fraud.or the cessation of force. 2 (7) Effect of Acknowledgment in writin on 18 Sec. 18 provides that-if before the expiry of the prescribed Period for a suit or application“in respect of any property or right, an acknowledgment of liability in respect.of such property or right is made in writting signed by the party against whom such property or right is claimed, or by any other person through whom he derives his title or liability, @ fresh period of limitation shall be computed from the time when the acknowledgment was so signed. 2g containing such acknowledgment is undateg If the writin the time when it was signeg then oral evidence may be given of Essentials of valid acknowledgment There are 5 essentials to constitute a valid acknowledgment 1) Acknowledgement must be made before the expiry of the prescribed period for a suit or application. In other words the acknowledgement must be made. at any time after the limitation period has started running and before the expiry of prescribed period. i 2) The acknowledgment must be made by the party against whom the property or right is claimed or any person through whom he derives his title or lability. In other| words the person making the acknowledgment must have interest in the property. ; : | 2) Acknowledgment of liability must be in writing. So oral acknowledgment is not valid. In Jal Hind Of! Mills v. Kerala Ele. & All. Engg. Co. Ltd (1990 (2) KLJ 342, it was held that the acknowledgment under section 18 must be in writing signed before the expiration of the period of limitation. The acknowledgment could be proved only by the signed writing and not by parol evidence. 4) The Acknowledgment must be signed by the person against whom propery or right is claimed of by any person through whom he derives his title of lability, An acknowledyment signed by @n agent duly authorised in this behalf is also valid The expression duly authorised in this behalf shall, in the case of aperson under disability, include his lawful guardian, or manager or an committee agent duly authorised by such guardian, committee of manager to sign the acknowlegment. An acknowladymant without signature is not valid 5) Acknowledgment muat be in respect of particular properties or righta claimed in the suit or application. An acknowledgment may be Sufficient though It omits to apecity the axact nature of the property or right The effect of acknowledgment is that a fresh period of limitation provided under the statute begins to rin from the date of such acknowledgment. In computing the fresh period of limitation the day on which the acknowledge is signed must be excluded. In Gopala Nannies v. Tulasi Ammal (1987 (2) KLT 992, it was held that) the acknowledgment may well be a recital in a document olnea in favour of a stranger. It need not necessarily be addressed to the creditor or the person entitled to sue. It is necessary that the acknowledgment must relate to an existing liability. The jural relationship between the debtor and creditor must be clear and the acknowledgment should have been made with intention of admitting the jural relationship _'n Savithri Kunjamma vy. Narayanan (1989 (2) KLT 628), it was held that mere admission of jural relationship is not Sufficient and that a statment in order to constitute acknowledgment must be in relation to the liability or the right to Property Claimed and that such a statement must shown to have been made with a consciousness and an intention of admitting RMRGHE or fisbiliiy, Under secticn 18 what is required isthat before the expiration of the prescribed period for a suit or spplicalton, there must be an acknowledgment of liability in Fespect of the proerty or right. Then only a fresh period of limitation shall be computed. In Sreodevi v. Appu (1990 (2) KLT 392), it was held that In order to operate.as an acknowledgment under section 18 of the Limitation Act for the purpose of computing a fresh period of Limitation from that-date there must be acknowledgment of.a Subsisting liability which is not already barred. It is not necessary that the statment should indicate exact mature or Specific character of the liability. It is not necessary that the intention should be in express terms, it can be by implication also from the nature of admission and the surrounding circumstances. In Xavier v. Kas! (1990 (2) KLT 139, it was held that the Plaintiff can rely on the written statement in a previous suit as an acknowledgment. Acknowledgment in the written statement in an earlier suit can operate as an acknowledgment within the meaning of section 18 of the Limitation Act. In Craft Centre and Ors. v. Koncherry Colr Factories (1890 (2) KLT837), It was held that an acknowledgment, in order to save limitation must be in writing and signed by the party, against whom the property or right is claimed, or any person, through whom he derives title or liability. Evidence of an acknowledgment saving limitation is only the writing signed. If that signed document is not before court, oral evidence of its contents shall‘not be received by the court. That is the mandate of Section 18(2) of the Limitation Act. 30In P.D Pillai v. Mrs, (4994 (2) KLJ 187(FB), Kalyanikutty Amma and others the Kerala High Court discussed at length the essentials of valid acknowledgment. The following obserations are note worthy. Acknowlegment, in substance, is an admission of the truth of one's liability. It must be made by a person who is under a lability at the material time and must be made at a time when the lability exists. - it has to be understood that such an acknowledgment does not create a new right of action but merely extends the period of limitation by this act of acknowledgment. Therefore, the exact nature or specific character of the liability is not necessary but the words of acknowledgment must relate to a person and substantial liability; must indicate the existence of jural relationship between the parties, such as one Is a debtor and the other is a creditor and there is an intention to admit such jural relationship. B An acknowledgment does not require to be specific and direct. It is not’necessary that there should be a spocific and direct acknowledgment of the particular liability which Is sought to be enforced. “If there Is an admission of facts of which the Hability in question is a necessary consequence, there would be an acknowldgment ‘within the: meaning of section 18 of the Limitation Act. What is necessary is admission of the existence of a-debt, a lability for contribution, in case a part of it is Paid and such an admission would operate to enlarge the period of limitation. . 31unt of dobt or of intero ct of mont on ac * (8) logacy ( Section 19) By virtue of section 19, of interest on a legacy is made before prescribed period by the person liable a fresh period of limitation is computed if payment on account of a debt o, the expiration of the to pay the debt or his duly authorised agent, from the time when the payment ‘duly authorised in this behalf’ shall, in the case of a person under disability, include his lawful guardian, committee or manager or an agent duly authorised by such guardian, committee was made. The expression or manager to make the payment. The expression ‘debt ' does not Include money payable under a decree or orders of a court. (9) fisu 1 din ow aintiff_or defendant (Section 24) : | By virtue of section 21(1) If after the institution of a.suit, 2 new plaintiff or defendant Is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. However if the court is satisfied that the omission to include a new plaintiff or defendant was due to @ mistake made in good falth, it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any oarlier date in Gopalakrishnan Chettiar v, Annemma Ooveesya (1090 (2) KLT SN 60 P.58, it was held that under the proviso to section 21(1) of the Act, the court hus power, If it le satisfied that (ne omission to include a new plaintiff or defendant was due toa 2mistake made in goog faith, to direct that the sult as regards such plaintiff or detendant shall be deomed to have b instituted on any eartier date, eee tule stated in 21(1) is not Spplicable to a case where a party ils added or Substituted owlng to assignment or devolution of any Interest during the Pendenoy of a pult or where a plaintiff le made a defendant or a detendant is made a plaintiff. In James Machintosh & Co Pvt. Lid. v. Sree Yammuna Mills Go. Ltd (1990 (2) KLT 237), it was held that when there is only transposition of a party already on record, change of Position will not affect limitation so far asa party who waa already on Tecord. That is the case with legal representatives and*assignees also.’ So far as they are concerned, it is a continuing suit which will be deemed to have been Insitituted on the. date of its original institution itself. Sub-section (1) of section 21 has np application in such cases. Topic -X Acquisition of Easements by Prescription Section 25 of the Limitation Act deals with the:law relating to the acquisition of easement by prescription. Easement Is defined In Sec. 4 of the Indian Easement Act. It is a right available’ to the owner‘or’ occupier of*one piece of land to do something in or upon the property of another. Examples are easement of light, air, support, right of way etc According to section 25, if the access and use of light or air to and for any building have been peaceably enjoyed as an easment and as of right without interruption and for a continuous 33een CSh°l:20-Vears. ihe tight “to euch mocece and use of light or elr shall be absolute and indifeasible, if any way or water course or the use of any water or any other easment (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easment and as of right without Interruption and for twenty years, the right to such way, water course, use of water or other easment: shall be absolute and Indefeasible, If the property over which a right is claimed belongs to the government, the period is 30 years. i 'f @ person is in continuous enjoyment of an easement for more than 20 years and an obstruction thereafter is made, ‘he must bring his suit to establish his right within @ period of Ilmita- tion of 2 years from the date of such obstruction; otherwise ‘his right will be defeated. Illustration: A Suit is brought in 1981 for obstructing a right of way. Tho: defendant admit the obstruction but denies the right of way. The plaintiff proves that. the right was peaceble and openly enjoyed by him as an easement and as of right, without interruption from 1st Jan. 1960 to 1st Jan. 1980. The plaintiff is entitled to easement. The following are the conditions for the acquisition of the right to easement by prescription. 1) The right should be enjoyed peacebly 34The enjoyment ofan easement must not be by violence or force. 2) The right should be enjoyed openly except in case of light and air Tho: enjoyment must have from the very beginning being visible and mainfest, not secret or clandestine. ° 3) The right should be enjoyed as an easement The claimant must have enjoyed the right @ If there hed been any unity of could not h an ement. Possession and ownership, he enjoyed an easement. 4) The right should be enjoyed as of right In order that an enjoyment should be as of right, the person claiming it must have exercised It without from anyone. licence or permission 5) The right should be enjoyed without Interruption The enjoyment for a period of 20 years must be without Interruption. 35Topic - XI S Extinguishment of Right to Property by Adverse Possession or sie ee “nec vi nec.clam_nec precario” - Explain Section 27 of the Limitation Act says that at the determination of the period limited to any person for instituting a sult for possession of any. property, his right to such property shall be extinguished. 4 3 Section 27 constitutes an exception to the general rule that the law of limitation only bars the remedy but does not extinguish the right Itself. The effect of th ction Is that right to property shall be extinguished -aftersexpiry*of ‘the period timited for instituting a suit for possession of the property. rgiyee” + In Ramadas -v.: Anna (1984 KLT 1077), it was held that once there Is a statutory-extinguisment of a right there cannot be @ revival of the right to recover the property. The ordinary tule @ that the statute of Limitation bars the remedy and does Not extinguish the right Itself.” But section 27 Is an exception to this rule. 2 By virtue of section 27 read with Article 65, if the plaintiff falls to bring the sult for possession based on his title within 12 years of dispossession of the immovable property by the defendant his suit would fail as there would be complete extinguishment of his ‘title. However any suit brought before expiry of 12 years of dispossession would arrest the period of Sdverse possession and a decree passed in his favour would ‘slate back to the date of institution of the suit, irrespective of 36The person who claims adverse possession has to prove that e tha ne has remained In uninterrupted possession of the property t tly to the Knowledge Of the true owner and has denied the title of the true owner and aanerted his own tights of ownership in the property to the exclusion of the true owner ; Otherwise mere possession for any number of years cannot constitute adverse Ma person enters the possession with the permission of a true owner then the adverse possession can only start from the time when he denies thé title of the true owner and claims adverse .possession. possession. Any party élaiming adverse possession must give, evidence about possession being exclusive, open and with hostile animus. The initial onus i on the plaintiff to prove his.title and then it is on the defendant to prove possession for more than statutory period adversely. When there is no evidence with regard to possession of the defendant being exclusive, open and with hostile animus for more than 12 years then the claim of adverse Possession by the defendant would fail. In George Mitran v. Garfrude (1990 (1) KLT 204, It was held that a decree merely-deciaring the plaintiff's title to the Property involved in the suit will not interrupt the defendant's adverse possession of that property and if such possession \s allowed to continue undisturbed for a period of 12 ftom the adverse possession, years or more commencement of such ee a '"espective of the declaratory decree the defende tit ion le by adverse possession. The cause of act the d °0Ssesion is not from the date of the decree but from for recovery of ate of def, " ®ndant's adverse possession 37'n Kriehnamurthy v. Naras (2007 (3) SCC 569, it was held that the plaintiff making claim for adverse possession must plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession and also that such possession was actual and to the knowledge of the real owner. In Kodlyan v. Karambi ( 2007 (2) KLT 361, it was held that mere continuance of possession for 12 years or more is not enough to defeat the title of the real owner and to claim title by operation of 8.27. By virtue of Article 64, the period of limitation for filing a suit for poss: lon of immovable property is 12 years. Starting point of the period of limitation is the point at which the possession of the defendant becomes adverse to the plaintiff. Adverse possession is commenced in wrong and Is aimed against the right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from enjoyment of the property. The requirement of adverse possession is nec vi nec clam nec precario, ie. the quired must be adequate In continuity, in publicity possession re Where the possession is referable to a permissive and in extent. possession, it cannot be sald that the person in possesssion has perfected title by adverse possession, even if he continued in possession for a long period.