- Bookmark
- Share
- CaseIQ
Periya Akkandi Chetty v. Rethinagiri Chetty And Others
Summary of Opinion
Factual and Procedural Background
The suit arose from a mortgage executed by the first defendant in favour of the plaintiff on 22 April 1916. The mortgagor (first defendant) left British India in 1920 and returned a few days before the suit was filed. After his return the suit was instituted on 5 August 1941, impleading the mortgagor and the appellant, who had purchased portions of the mortgaged property from the first defendant. The first defendant had sold some properties to the appellant and some to the third respondent (who was the fourth defendant in the suit). There had been doubt whether the first defendant had disposed of all his properties before leaving India; registration copies and sale deeds for the properties were produced in the lower court, and one such registration copy was marked as Court Exhibit I.
Procedurally, the question before this Court in the second appeal was whether Section 13 of the Indian Limitation Act saved the suit from being barred against the appellant (the third defendant at trial). Both lower courts had rejected the appellant's contention and decreed the suit. The present Court considered the statutory language and definitions (notably Section 2(4) of the Limitation Act) and the factual position that the appellant acquired his interest by purchase from the absent first defendant.
Legal Issues Presented
- Whether Section 13 of the Indian Limitation Act saves the suit from being barred against the appellant, who was a purchaser (alienee) of the mortgaged property from the first defendant who was absent from British India.
- Whether the term “defendant” in Section 13 must be read so that the period of absence of an absentee defendant can be excluded only as against that absentee, or whether the period of absence may be excluded so as to save the suit against other defendants who derive their liability from the absentee.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that Section 13 of the Limitation Act saves the suit only as to the absent defendant and does not save the suit against a defendant who was physically present in British India throughout (i.e., the appellant himself).
- Reliance was placed on the language of Section 13 in the singular — “time during which the defendant has been absent from British India” — which, the appellant argued, demonstrates that the statutory saving operates only in favour of the absentee defendant and not in favour of co-defendants who were present.
- The appellant relied on the decision in Palaniappa Chettiar v. Veerappa Chettiar, where it was held that absence of one of several partners did not save the suit against those partners who were all along in British India.
Respondent's Arguments
- The respondent-plaintiff argued that the relevant question is whether the terms of Section 13 are satisfied and that the word “defendant” can be read to include one of several defendants; if any one defendant is absent, the saving under Section 13 should apply generally.
- The respondent also relied on the proposition that the statutory definition of “defendant” in Section 2(4) should be read into Section 13 so as to capture persons from or through whom a defendant derives liability to be sued.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Palaniappa Chettiar v. Veerappa Chettiar | Held that where one of several partners was absent outside British India but the others resided in British India and the suit was filed after the absentee's return, the suit was barred against those who had been in British India (i.e., absence of one did not save the suit against the others). | The present Court noted the decision and stated it could have broader implications but chose to decide the present case on a shorter ground (by reading Section 2(4) into Section 13) without entering the larger question of Palaniappa's correctness. The decision was therefore acknowledged but not followed as the sole basis for disposing of the appeal. |
| Fannin v. Anderson | Stated that if one of several defendants was absent in a foreign country, the plaintiff was entitled to have the period of absence deducted in his favour as against the particular absent defendant and his co-promisors. | The English decisions including Fannin were discussed in Palaniappa and referred to in this opinion as part of the authorities that take the view that absence of one defendant should not necessarily relieve inaction as to those who are present. The present Court distinguished the English authorities by reference to Indian statutory provisions and did not rest its decision on them. |
| Towns v. Mead | Decision of Jervis J. to similar effect as Fannin, treating deduction of absence in favour of the absentee and co-promisors. | Referred to as an English authority considered in Palaniappa; mentioned by the Court but not adopted as dispositive of the present matter because the Court preferred to resolve the case by construing Sections 13 and 2(4) of the Limitation Act together. |
| Roddam v. Morley | Quoted with approval the principles in Fannin and Towns regarding the effect of an absentee co-defendant on limitation. | Mentioned as an English authority cited in Palaniappa and considered in the surrounding discussion. The present Court noted these authorities but resolved the case on statutory construction under the Limitation Act instead of following these English precedents. |
Court's Reasoning and Analysis
The Court analyzed the matter primarily by reference to the language of Section 13 of the Indian Limitation Act and the statutory definition of “defendant” in Section 2(4) of the same Act.
- The Court acknowledged the line of English authorities (Fannin v. Anderson; Towns v. Mead; Roddam v. Morley) and the decision in Palaniappa Chettiar v. Veerappa Chettiar, which treated the effect of an absentee co-defendant on limitation. Those authorities were examined but the Court indicated it would avoid entering the larger question decided in Palaniappa if the case could be resolved on a narrower ground.
- The Court invoked the statutory definition in Section 2(4): “defendant includes any person from or through whom a defendant derives his liability to be sued.” By reading that definition into Section 13, the phrase “time during which the defendant has been absent from British India” must be read to include “time during which the defendant or any person from or through whom the defendant derives his liability to be sued has been absent from British India.”
- Applying that construction to the facts, the Court observed that the appellant (third defendant) derived his liability to be sued from the first defendant (the executant and seller) because the first defendant had sold the mortgaged property to the appellant. Since the first defendant was absent from British India between 1920 and shortly before the suit, Section 13 (as read with Section 2(4)) operated to exclude the period of the first defendant’s absence in computing limitation, thereby saving the suit from being barred as against the appellant.
- The Court affirmed the District Munsif’s reasoning that similar results must follow where a sole defendant derives liability through an absent executant (for example, a legal representative or an alienee). The Court emphasized that such an interpretation is necessary to produce an obvious and equitable result: if an executant went abroad and remained absent, a suit subsequently brought against a person who derives liability from that executant should be saved by Section 13.
- Having reached this conclusion on the statutory-construction ground, the Court dismissed the second appeal without resolving the broader doctrinal question from Palaniappa about the full effect of an absentee on co-defendants present in the jurisdiction.
Holding and Implications
Holding: The second appeal is dismissed. The Court held that Section 13 of the Indian Limitation Act, read together with the definition of “defendant” in Section 2(4), saves the suit from being barred against the appellant because the appellant derived his liability to be sued from the first defendant who was absent from British India.
Implications:
- Direct effect on the parties: The decree in favour of the plaintiff as to the appellant is sustained; the second appeal fails and is dismissed with costs payable to the first respondent.
- Scope of the decision: The Court expressly disposed of the case on a narrow statutory-construction ground and stated it would not enter into the larger question dealt with in Palaniappa Chettiar v. Veerappa Chettiar. Accordingly, the opinion does not purport to lay down a broad principle beyond the immediate statutory construction it applied; the Court relied on reading Section 2(4) into Section 13 to reach its result.
Judgment delivered by N.R.R. (No leave).
JUDGMENT
The question involved in this second appeal is whether S. 13 of the Indian Limitation Act saves the suit from being barred against the appellant who was the third defendant in the trial Court. The suit was upon a mortgage executed by the first defendant in favour of the plaintiff on the 22nd April 1916. The executant left British India in 1920 and returned a few days before the suit. After his return, the present suit was filed impleading the mortgagor and the appellant who was the purchaser of portions of the mortgaged property from the 1st defendant. The first defendant sold some properties to the appellant and some others to the third respondent who was the fourth defendant in the suit and then left for Penang in the year 1920. There was some doubt whether before he left India, the first defendant had disposed of all his properties. It has now been made clear by the production of the registration copy of a sale deed which, though referred to in the written statements, was not actually exhibited in the lower Court. It is said in the written statement that the first defendant had sold all the properties before he left India. There was also some evidence even on the plaintiff's side to this effect. But I wanted to satisfy myself whether it was really so. Sale deeds were filed and exhibited with respect to two of the three mortgaged properties. As regards the other I directed the original or a registration copy of the sale deed to be produced. That was done and I marked it as Court Ex. I. The question has now to be decided on these facts.
The first defendant, the mortgagor, sold all the properties, some to the appellant and some to the third respondent. He had no interest whatever in the mortgaged properties but he was still liable under a personal covenant. He left India in 1920 and returned in July 1941. The suit was filed on the 5th August 1941. All this time, the third and fourth defendants have been residing in India. The appellant's contention is that the suit is not saved against him and that S. 13 of the Limitation Act on which reliance is placed helps the plaintiff only so far as the absentee defendant is concerned. Both the lower Courts repelled this contention and decreed the suit. The relevant portion of S. 13 runs thus,
“In computing the period of limitation prescribed for any suit the time during which the defendant has been absent from British India……shall be excluded.”
The appellant was throughout in British India and the argument is that the expression “time during which the defendant has been absent from British India” indicates that the suit is saved only against him. Reliance is placed on a decision of this Court in Palaniappa Chettiar v. Veerappa Chettiar(1) where it was held that where one of several partners was away outside British India but the others resided in British India and the suit was filed against all after the return of the absentee, the suit was barred against those who were all along in British India. The learned Judges postulated the question thus:
“One is whether the plaintiff is entitled to claim a reduction of time as against all the defendants by the fact that one of them was absent from British India.”
After stating that the question was not covered by any authority in India, the learned Judges referred to some decisions of the English Courts and pointed out that the liability of several executants of a document was joint and several as laid down under S. 43 of the Indian Contract Act, that S. 249 of the Indian Contract Act enunciated the same principle as regards partners and that consequently the plaintiff could have filed a suit for the recovery of the whole of the amount against the executants who were in British India. It was therefore held that as a suit could have been filed against such defendants, the suit was barred by the plaintiff's inaction for over the statutory period. They held that the bar was not saved merely by reason of the absence of one of the defendants. If was held by Lord Denman C.J in Fannin v. Anderson that if one of the defendants was absent in a foreign country, the plaintiff was entitled to have the period of absence deducted in his favour as against the particular defendant and his co-promisors. To the same effect is the decision of Jervis J. in Towns v. Mead (2). These two decisions were quoted with approval in Roddam v. Morley (3). These decisions were brought to the notice of the learned Judges who decided the case of Palaniappa Chettiar v. Veerappa Chettiar (4). The learned Judges stated that the English statute is not very different from S. 13 of the Indian Limitation Act. After referring to the three decisions of the English Courts above referred to, the learned Judges said this,
“Prima facie therefore, the extreme contention of the learned Vakil for the appellant would seem to derive support from those decisions; but, on examining them, we are of opinion that the plaintiff is not entitled to deduct the time of absence of the first defendant as against the other defendants. Mr. Shephard in his Commentary on the Indian Limitation Act points out that, under the English law, if a co-obligor who is within the jurisdiction is sued, it is open to him to demur to the trial of the action on the ground that the other co-obligors should also be proceeded with at the same trial.”
Then they referred to the passage in Fannin v. Anderson to this effect,
“The plaintiff cannot bring the absent defendant into Court by any act of his; and, therefore, if he be compelled to sue those who are within six years, without joining those who are absent, he may possibly recover against insolvent persons, and lose his remedy against the solvent ones who are absent.”
Seshagiri Aiyar, J. who delivered the leading judgment took this passage from Fannin v. Anderson as the ground of the English decisions and held that as under Ss. 43 and 249 of the Indian Contract Act, a suit would lie against any one of the co-promisors or partners, the English decisions would not apply.
It is urged for the respondent-plaintiff that this decision is open to exception. It is pointed out that the question is not whether a suit would have lain against those present in British India without impleading the absentee defendant and that the only question is whether the terms of S. 13 of the Act are satisfied. He takes the word “defendant” to mean any one of the defendants and urges that if any one of the defendants is absent, the suit is generally saved and that is against all the defendants. On the other hand, it is said that singular includes plural, that in the case of a single defendant, the suit would be saved if he was absent from British India but that where there are several defendants all of them must have been absent from British India and then alone S. 13 would apply. Ayling and Seshagiri Ayyar, JJ. said this in Palaniappa Chettiar v. Veerappa Chettiar .
“Moreover, the language of S. 13 of the Limitation Act, does not lend itself to the extreme contention of the appellant. Although the singular ‘defendant’ would include the plural ‘defendants’ the contention would necessitate our reading into the section some words like these, namely, ‘If there are more defendants than one and any one of them happens to be out of British India.’ We see no reason for adopting such a construction. We must therefore hold that the absence of defendant 1 would not entitle the plaintiff to count the period of his absence in his favour as against defendants 6 and 8.”
It appears to me that this case can be disposed of on a short ground without entering into the larger question how far the decision in Palaniappa Chettiar v. Veerappa Chittiar is right. S. 2(4) of the Indian Limitation Act defines the word “defendant” thus,
“defendant includes any person from or through whom a defendant derives his liability to be sued.”
Here the first defendant sold the property in question to the appellant. The appellant, therefore, derives his liability to be sued from the first defendant. Reading this definition into S. 13, the expression “time during which the defendant has been absent from British India” must be read as “time during which the defendant or any person from or through whom the defendant derives his liability to be sued has been absent from British India.” So read, it is clear that as the first defendant from or through whom the third defendant derives his liability to be sued was absent from British India, S. 13 would apply and save the suit from being barred against the appellant. This was pointed out by the learned District Munsif in this case and I think that this argument is right. As pointed out by the learned District Munsif who has written a very careful judgment, if A executes a document, goes abroad the next day, lives there for a number of years and dies there and the suit is subsequently brought against his son or legal representative who has been however in British India throughout, obviously S. 13 must apply and this result can be reached only by reading the definition given in S. 2(4) into S. 13. In such a case, the sole defendant would be the legal representative of the executant and the suit would be saved against him because the person through whom he derives his liability to be sued was absent from British India. The answer cannot be different in a case where it is not the legal representative that is the defendant in the action but an alienee from the executant. In either case, the defendant derives his liability to be sued from or through the executant and if that person was absent from British India, the suit is saved against the defendant whether he is the personal representative or the alienee.
The second appeal fails and is dismissed with costs of the first respondent.
(No leave).
N.R.R
Alert