Section 7. Disability of one of several persons
Section 7. Disability of one of several persons
Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
Explanation I : This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.
Explanation II: For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.
FLARGINAL NOTE: In the earlier Section 7 under Limitation Act, 1908 the Flarginal note read “disability of one of second plaintiff or applicants”.
Marginal note now provision Limitation Act, 1963 reads: “Disability of one of several persons”. This new marginal note is clearly in line with the enacted Section & correctly or truly reflects the law.
ILLUSTRATIONS:- Illustrations given in old Section 7 of Limitation Act, 1908 have been omitted. They were:-
(a) A incur a debt to a firm of which B, C and D are partners. (B- Insane, D- Minor)
D can give a discharge of the debt w/o concurrence of B & C. Time runs against B,C & D.
(b) A incurs a debt to a firm of which E, F & G are partners. (E,F – Insance, G- Minor)
Time will not run against any of them until either E or F becomes runs or G attains majority.
Discharge can be given without the concurrence of such person – Sarda Prasad v. Lal Jumna Prasad & Ors. AIR 1961 SC 1074 – Since the aforesaid two illustrations were in respect of monetary claims, it was contended before Hon’ble Supreme Court that Section 7 had application only for monetary claims. Supreme Court negative the contention observing that had it been (Section 7 been) applicable merely to litigation of monetary claims it would have been unnecessary to exempt pre-emption suits from operation of Section 7. Supreme Court concluded that Section 7 is not limited only to monetary claims. There is now no confusion after Explanation I.
Supreme Court explained “discharge” – to mean to free from liability. The liability may be in respect of taking some order of regards property, may be in respect of monetary claims, may be in respect of possession of property, may be in respect of any other order.
Joint Claim – Section 7 of Limitation Act, 1963 applies to a joint claim. It has no application where each of the persons entitled to compensation has separate cause of action & each of them is entitled to separate award of compensation by reason of status of each of them as relation to the deceased.
Capable of safeguarding the common right OR One who could give full discharge of common right: The test Under Section 7 is not whether all or any of the persons jointly interested can safeguard the common rights or sue for their enforcement, but whether he or they could give a full discharge of the common right. For Section 7, what is required is the competency of a party to give discharge of the right. There is a distinction between competency to give a discharge & capacity to institute a suit.
Examples—A karta of a JHF can realize whole of the decretal amount with the consent of other decree holder.
M.V. Act – Section 7 is not applicable to an application filed by minor sons of the deceased after period of limitation as specified in M.V. Act. No doubt out of the legal representation of deceased, his widow could file an application for compensation but she cannot be said to be competent to give discharge in respect of claim of her minor sons by the deceased.
Tort – Where liability is based on tort, none of persons jointly entitled to sue can give valid discharge without the concurrence of another, in as much as these persons are in the position of tenants-in-common and not joint tenants, each of them having a distinct interest in the substantive right.
Partnership- One partner can give valid discharge in respect of the debt due to the firm. This is based on principle that C partner has implied authority to do everything & usual in the cause of partnership business.
Section 6, 7 & 8 be read together:
Such disability – Section 7 supplements Section 6 of the Act and Section 8 impose a limitation on the concession provided under Section 6 & Section 7 to a maximum of three years after cessation of disability. The three sections, i.e. Section 6, 7 & 8 of Limitation Act should therefore be read together. Section 7 supplements section 6. Section 7 is a proviso to Section 6. Section 6 is an enabling section-must be construed liberally. Section 7 is disabling section – must be strictly construed.
Discharge by Karta- It is now settled that a karta of a joint Hindu Family can give a valid discharge without the concurrence of other members. Now Section 7 Explanation II, makes it clear that if it is shown that the manager of the family property is in management of the same, he shall be deemed to be capable of giving a valid discharge without the concurrence of other members of the family. The idea of giving discharge is that if he had brought a suit for setting aside of alienation and for possession of the property, the decision in that suit would be binding & final on the minors, notwithstanding that they were not joined as plaintiff or were not parties to that suit.
To put it mere simply, Section 7 particulates that where a person capable of giving a discharge of the liability in question without the concurrence of the minor or the person under disability is there, i.e. in existence time will run against all the joint owners, which means that if a suit is not filed within limitation, time will run out and a subsequent suit by a joint owner who is a minor or a person under disability will also be barred.
Limitation is 12 years from when the donee takes possession— To put it differently, this section bars a suit by a younger minor member of a joint hindu family in a case where an elder brother having become major and having therefore, also become manager of joint hindu family has failed to institute a suit within the period of limitation applicable to him.
Note—Karta of a Hindu Joint Family through guardian in the suit cannot give a valid discharge in respect of a claim or a decree for “money or other movable property”. [Order 32 Rule 6CPC]
Sarda Prasad & Others Vs. Lal Jumna Prasad & Others, AIR 1961 SC 1074 – A partition decree was passed in 1938. Execution application was made in 1949. (within 11 years). – Some confusion since Article 136- Limitation is 12 years.
Question raised uses of limitation. It was held that Karta (Manager) of a JHF. Partition decree was passed in favour of manager of JHF & minor members. It was held that manager of JHF can gives valid discharge by accepting delivery of possession on behalf of minors.
Only karta & no other junior member – It is only the karta who can represent all the members of the JHF & has the power to take action which binds the family in connection with all matters of management of family business & property. Karta of the family can of course give a valid discharge on behalf of minor coparcener. But the other junior member of family has no such power either to act as karta or to give a valid discharge on behalf of minor joint decree holders. Such junior members do have a right to question unauthorise alienation of joint family property but such right is an individual & personal right of each member. In exercises of such right, no junior member can give a valid discharge on behalf of other within the meaning of Section 7.
Differences between Sec. 6 & Sec. 7—
Section 6 contemplates a case where there is either one plaintiff or applicant and he is a minor or an insane or an idiotic or where there are several persons/plaintiffs & they all labour under the disability. While the extension of limitation under Section 7 does not take place with references to person under disability alone but with references to the entire body of persons jointly entitled to sue or apply.
Section 7 says, when the legal relation to each other of the several persons jointly entitled to institute a suit or make an application for execution of a decree is such that; One or some of them (if free from disability) can give a full discharge of the whole debt there or claim without the concurrence of other (whether all or some of other are free from disability or under disability) time will run against all and minority, insanity or idiocy of any of these several persons shall not entitle him or his co-plaintiffs to seek extension of time under Section 6. But where one of them cannot give a full discharge of the whole debt or claim without concurrence of others, minority, insanity or idiocy of any of them will entitle all to an extension of time.
Section 6 & Section 7 do not give fresh period of limitation – Both Section 6 & Section 7 does not give a fresh period of limitation. They do not prevent running of limitation but only extend the period of limitation.