Effect of Disability on the Law of Limitation

The ‘Law of Limitation’ prescribes the time-limit for different suits within which an aggrieved person can approach the court for redress or justice. The suit, if filed after the exploration of time-limit, is struck by the law of limitation. It’s basically meant to protect the long and established user and to indirectly punish persons who go into a long slumber over their rights.

The statutory law was established in stages. The very first Limitation Act was enacted for all courts in India in 1859. And finally took the form of Limitation Act in 1963.

A citizen is not expected to master the various provisions which provide for limitation in different matters but certain basic knowledge in this regard is necessary. For instance, Section 12 of the Limitation Act lays down certain guidelines regarding computation of limitation period. It says that 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.

But our topic is related to ‘legal disability’, which is given in section 6 [1] of the Limitation Act, 1963

We also need to understand what is a “minor”. According to the Guardianship and wards Act, 1890, “minor” means a person who, under the provisions of the Indian Majority Act, 1875, (9 of 1875) is to be deemed not to have attained his majority.

Common law legal system might have a statute, for example, limiting the time for prosecution of crimes designated as misdemeanours to two years after the offense occurred. Under such a statute, if a person is discovered to have committed a misdemeanour three years ago, the time has expired for the prosecution of the misdemeanour. While on one hand it may seem unfair to forbid prosecution of crimes that law enforcement can now prove to the standard required by law (cf., e.g., Beyond a reasonable doubt, Clear and convincing evidence, and Preponderance of the evidence), the purpose of a statute of limitations or its equivalent is to ensure that the possibility of punishment for an act committed sufficiently long ago cannot give rise to either a person’s incarceration or the criminal justice system’s activation. In short, unless the crime is exceptionally heinous in nature, social justice as enacted through law has compromised that lesser crimes from long ago are best let be rather than distract attention from contemporary serious crimes.

First lets put some light on the applicability of section 6 of The Limitation Act, 1863.

Applicability

Section 6 is controlled by section 8 which serves as an exception to sections 6 and 7. The combined effect of section 6 and 8 is that where the ordinary period of limitation expires before the cessation of the disability, for instance before the attainment of the majority, the minor will no doubt be entitled to a fresh starting point of limitation from the attainment of his majority subject to the condition that in no case the period extended by section 6 shall by virtue of section 8 exceed three years from the cessation of disability that is, attainment of majority. [2]

Even during the disability period of the person the time will continue to run. It does not gives a new starting point of limitation. The provision only means that the person under the disability is entitled to extension of time till the expiry of the period mentioned in the schedule calculated from the cessation of his disability subject to the limit mentioned in the section 8. [3] Section 6 does not apply to the period of 12 years limitation prescribed by section 48 of Code of Civil Procedure. It applies to proceeding under 209 of U.P Act 1 of 1951, [4] . But it does not apply to the suits under Land Reforms Act, 1950. [5] The section confers a personal privilege on the person under disability, a privilege confined to him and not ensuring for the benefits of his assigns or even his legal representatives, excepting in a case falling under sub-section (3) of the section [6] .

Section 6 is also applicable to Fatal Accidents Act [7] . The law is fairly settled that a son born in a joint Hindu family acquires by birth interest in ancestral property, but does not acquire any interest in any right to sue. Now new cause of action accrues upon the subsequent birth of a son in the family. Consequently, a fresh period of limitation does not start from the date of his birth. When he was not born on the date of transfer, he could not be said to be suffering from any disability on that date and eventually cannot take advantage of section 6. Section 6, 7 and 8 of the Limitation Act must be read together. Section 8 imposes a limitation on concession provided under section sections 6 and 7 to a person under disability to a maximum of three years after the cessation of the disability [8] .

DISABLITY COVERED BY s.6:

The only disabilities covered by s.6 are minority, lunacy and idiocy of the person entitled to sue or file an application for execution. The insolvency of the parties does not attract s.6 [9] .

Applicability of s.6 to the period prescribed special and local laws.

Section 6 has been made applicable to the special and local laws unless expressly excluded in view of s. 29 of the Limitation Act. But when s. 6 expressly states that the extension in that section is limited to the period of the limitation specified in the third column of the Act, s. 6 cannot apply to the period of limitation prescribed under the Code of Civil Procedure [10] . In one decision it has been held that s. 6 does not apply to the limitation prescribed by s. 48, Code of Civil Procedure [11]

Appeals by minor not attracted

Section 6 does not attract to the appeals when minors wants to prefer an appeal against the judgement and decree passed by the trial court during his minority in which he was represented by his guardian. The reason behind exclusion of s. 6 to appeal is that when a suit is instituted the next friend is appointed for a defendant or the plaintiff by the court under Or 32, Code of Civil Procedure and the decree passed in the suit in the presence of the guardian ad litem is binding on the minor and that at best it is only voidable and not viod. However when a judgement and decree was passed during the minority and the minor on attaining majority wanted to prefer appeal against the said judgement and decree, the Kerela High Court has held that even though the appeal is barred by the limitation but making liberal approach to the interpretation of s. 5 of the Limitation Act with special reference to the disability of the minor, the delay in filing the appeal ought to be condoned under s. 5 of the Limitation Act. [12]

EFFECT OF DISABILITY

Statutes of limitations are designed to aid defendants. A plaintiff, however, can prevent the dismissal of his action for untimeliness by seeking to toll the statute. When the statute is tolled, the running of the time period is suspended until some event specified by law takes place. Tolling provisions benefit a plaintiff by extending the time period in which he is permitted to bring suit.

Various events or circumstances will toll a statute of limitations. It is tolled when one of the parties is under a legal disability—the lack of legal capacity to do an act—at the time the cause of action accrues. A child or a person with a mental illness is regarded as being incapable of initiating a legal action on her own behalf [13] . Therefore, the time limit will be tolled until some fixed time after the disability has been removed. For example, once a child reaches the age of majority, the counting of time will be resumed. A personal disability that postpones the operation of the statute against an individual may be asserted only by that individual. If a party is under more than one disability, the statute of limitations does not begin to run until all the disabilities are removed. Once the statute begins to run, it will not be suspended by the subsequent disability of any of the parties unless specified by statute.

Mere ignorance of the existence of a cause of action generally does not toll the statute of limitations, particularly when the facts could have been learned by inquiry or diligence. In cases where a cause of action has been fraudulently concealed, the statute of limitations is tolled until the action is, or could have been, discovered through the exercise of due diligence. Ordinarily, silence or failure to disclose the existence of a cause of action does not toll the statute. The absence of the plaintiff or defendant from the jurisdiction does not suspend the running of the statute of limitations, unless the statute so provides.

The statute of limitations for a debt or obligation may be tolled by either an unconditional promise to pay the debt or an acknowledgement of the debt. The time limitation on bringing a lawsuit to enforce payment of the debt is suspended until the time for payment established under the promise or Acknowledgment has arrived. Upon that due date, the period of limitations will start again.

Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefore in third column of the schedule [14] . The word suit has not been defined in the Limitation Act, 1963. The suit according to the section 26 of the Code of Civil Procedure is instituted by the presentation of plaint or such or in such other manner as may be prescribed. Sub-section (2) of the section 29 of The Limitation Act, 1963 clearly provides that provisions of the section 4 to 24 apply to all the enactments. It means that aforesaid provisions are also the part of the Act. The main question for determination is whether the claim filed by the appellant falls within the definition of the words.

Now the question is whether the section 6 of the Limitation Act, 1963 is applicable to such cases the limitation of which are provided in the schedule or it applies to other cases also of which the limitation is not provided in the schedule. Sub section (2) of the section 29 of the Limitation Act provides that where any local or special law prescribes for any suit, appeal or application, a period of limitation different from the limitation prescribed by the schedule, the provisions of the section 3 shall applies as if such periods were prescribed by the schedule. As the schedule is amended by the virtue of the sub section (2) of the section 9 by the provisions of the act, the claimed application can be dismissed under section 3 of the Limitation Act, if it is not filed within.

APPLICABILLITY TO CHILD IN WOMB

For the computation age the starting age the starting point is the date of birth: but the law nowhere provides the time spend by the child in the womb is not to be regarded as a period of minority. A child in the womb can take advantage of the provisions of section 6 and 8. [15]

Section 6 of the Limitation Act would apply to the case of a child in the womb. A child in the mother’s womb is deemed to be in existence, at least for purpose of inheritance and thus has a right to challenge any transaction which affects its interest at the time. If so, it has a right of action or cause of action in respect of the said transaction and is entitled to institute a suit upon the same and, as such a child, as aforesaid cannot, under the Indian Majority Act be held to be a minor that is, a person suffering from disability, as contemplated in the section. [16]

CALCULATING THE PERIOD

For calculating the period of limitation for a minor, the date on which the minor attains majority must be excluded from calculation. [17] But in the case of Batuk v. Rudra [18] it was held that that the three years must be counted, not from the date of attainment of majority, but from the date of cessation of minority.

The minor is also entitled to the benefit of section 4, if he brings a suit after attaining majority. Therefore, if on the last day after three years from the date when the minor attained majority, when he ought to have filed a suit, the court is closed, ha can file his suit on the reopening day. [19] Section 6 does not prevent running of limitation but only extents the period of limitation.

The privilege given to the minor or others under the section is not that can be availed of by the persons in disability alone. But his guardian can also file a suit or make an execution application within three years from the date on which the disability of the person concerned ceases even though the normal period of limitation of such application has expired [20] . The plaintiff as minor or lunatics can bring a suit during their disability and no objection can be taken that the suit is barred by limitation. They are protected by section 6 of the Limitation Act, 1963. The mere fact that there was a guardian on his behalf who could have filed the suit earlier would not deprive a minor of the protection given by the section. [21]

CONCLUSION

The section 6 of the Limitation Act, 1963 applies only to the cases of initial, not subsequent, disability. Besides no cause of disqualification other than those mentioned in this section is admissible to save limitation, thus ignorance of the cause of action accrued does not give the plaintiff a longer time for suing, so also absence by reason of transportation does not.

In the limitation act, 1963 the word ‘minor’ has also been used, the word minor according to the section 3 of the Indian Majority Act, 1875, a person is a minor until he attains a relevant age of majority begins from the date of person and not from the date of his beginning which it is impossible to determine exactly. If a cause of action accrues to a person in embryo he cannot claim the benefit under section 6 of the Limitation Act, 1963.

The general principle of the law is that the time does not run against any minor. The section 6 of the Limitation Act, 1963 does not provide for a fresh starting point of limitation. It means that the person under the disability is entitled to an extension of time till the expiry of the period mentioned in the Schedule calculated from the cessation of disability. Ant the only disabilities covered under the section are minority, lunacy and idiocy of the person entitled to sue for execution. The section is not concerned by the insolvency of the party.