Seerangathuni vs Bava Vaithilinga Mudaliar

John Wallis, C.J.—This is an appeal from the revised judgment of the Subordinate Judge of Negapatam after the remand order of this court

in appeal No. 114 of 1916 the finding that the 6th defendant had not renounced his executorship under the testator''s will has not been seriously

questioned before us, and it is accordingly necessary to deal with the question of limitation in the light of that finding. The property sued for is partly

in the hands of a Receiver appointed in this suit. He had previously been appointed Receiver in a former suit filed by the present 4th defendant the

2nd daughter of the testator in which the will which is the subject of this suit was ignored and the testator''s widow the present 1st defendant was

impleaded as representing the estate of her deceased husband. It was the Receiver''s duty in both suits to get in the estate of the deceased and he

must now be taken to hold the assets collected by him subject to the orders of the court for the benefit of the persons entitled under the Will of the

deceased. No question of limitation therefore arises about them and as regards them there is no sufficient reason for differing from the finding of the

Subordinate Judge that the suit is not barred.

The next question is as regards the immovable properties belonging to the deceased which were in adverse possession of his widow, the 1st

defendant for less than twelve years before the institution of the present suit by the plaintiff but for more than twelve years before the 6th defendant

was added as a party defendant. It was held by this court in the order of remand that the 6th defendant as a co-executor was a necessary party to

a suit for the recovery of these properties if he had not renounced probate. It has been found that he had not renounced, and he has been added as

a party defendant as he was not willing to be added as a plaintiff. Now it is provided by Section 22 of the Limitation Act that ""where after the

institution of a suit, a 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."" It is quite clear on the wording of the section that when a wrong plaintiff sues and the right plaintiff is afterwards substituted,

the suit must be regarded as instituted when the right plaintiff is substituted. Similarly as regards the 6th defendant here, if he had been brought in as

a co-plaintiff, the suit must, by the terms of the section, have been regarded as instituted so far as he was concerned when he was made a party,

and would therefore have been barred as to him. If this be so, the fact that he has been brought on, as a defendant, in consequence of his

unwillingness to join as a plaintiff, does not make the case any better. The effect of the section appears to be that to save the bar of limitation a

properly constituted suit must be filed within the prescribed period. In Meyyappa Chetty v. Subramaniam Chetty (1916) (1) A.C. 603. (P.C.)

Lord Parker of Waddington in delivering the judgment of the Privy Council with reference to this section as reproduced in a Straits Settlements

Ordinance observed. "" Their Lordships are of opinion that Section 22 contemplates cases in which the suit is defective by reason of the person or

one of the persons in whom the right of suit is vested not being before the court. Section 133 of the (Straits) CPC provides against the defeat of a

suit on this ground and enables the proper party to be added or substituted. If A is the right person to sue, it would clearly be wrong to allow him,

for the sake of avoiding the Limitation Ordinance, to take advantage of a suit improperly instituted by B."" This is a case in which one of the persons

in whom the right of suit has been held to be vested was not before the court when the suit was at first instituted, and therefore by virtue of the

section it must be deemed to have been instituted when he was first brought before the court, in which case it is barred. The earlier judgment of the

Privy Council delivered by Lord Macnaughten in Peary Mohun Mukerjee v. Narendar Nath Mukerjee ILR (1909) Cal. 229 (P.C ) is in no way

inconsistent with this ruling. There was in that case no addition or substitution either of plaintiffs or defendants to bring Section 22 into operation

and consequently there is no direct ruling as to the effect of the section where parties are added or substituted. The suit was within time and was

properly brought by the executors of a deceased Shebait who had succeeded to the office under the Will of an ancestor for relief against the

debutter estate and all the surviving descendants of the ancestor were made parties in the first instance. Subsequently, at a date when the suit

would have been barred, the plaint was amended by adding a prayer that it might be determined which of such descendants was the Shebait and

that the debutter estate might be represented by the person declared to be entitled to the Shebaitship. Their Lordships held that the suit as

amended was not barred ""in as much as the amendment directed by the High Court did not alter the character of the suit and no new defendant

was brought upon the record. The object of the amendment was to determine judicially which of the living descendants of the original testator, all

of whom were parties to the suit, was to be considered Shebait."" This certainly suggests that, if it had been found necessary to add a fresh

defendant after the prescribed period, the suit would have been barred u/s 22. I am therefore unable with great respect to accept the view taken in

Subramania Aiyer v. Subba Naidu (1912) 25 M.L.J. 452 and allowed in Konda Ponnappa Naicken v. Venkatasesha Aiyar (1919) 9 L.W. 377

that this decision of the Privy Council is authority for the proposition that in suits by an alleged trustee of a temple to recover moneys belonging to a

temple the real trustee may be substituted for the alleged trustee and the suit continued, notwithstanding that the period of limitation had expired at

the date of its institution. This is in my opinion opposed to the provisions of Section 22, a d to the decision of the Privy Council in Meyyappa

Chetty v. Subramaniam Chetty (1916) (1) A.C. 603 and Peary Mohun Mukerjee v. Narendra Nath Mukerjee ILR (1909) Cal. 229. We must

therefore modify the decree of the lower court by holding the suit barred as regards the immovable properties in the possession of the 1st

defendant. Certain immovable properties which the testator had inherited but had not reduced into possession at the time of his death are also the

subject of the suit. As regards these the suit is only for a declaration and is barred under article 120.

The only other question for decision relates to the construction of the Will. Paragraph to directs that the balance left after making certain

payments shall be accumulated to form a "" fund "" and paragraphs 11 and 12 provide that when the balance amounts to Rs. 10,000 it is to be

utilised for certain purposes and that any balance that may be left is to be added to the ""fund "". The word ""fund "" is used in both cases in the

original Tamil, and it is perfectly clear that the intention of the testator was that the balance left over after the expenditure provided for in paragraph

11 was to be added to the fund already mentioned. The appellant''s contention that there was an intestacy as to this balance must be overruled. In

the result the appeal must be allowed as regards all the immovable properties in the plaint schedule but otherwise dismissed.

Parties to pay and receive proportionate costs.

Ramesam, J.

I. concur with my Lord''s judgment just delivered. The only other point argued by the appellant, viz that Ex. A does not operate as a devise of

such of the immovable properties as were acquired by the testator after its execution need not be decided in view of our decision of the question of

limitation. I may, however, express my opinion on it. The words ''my landed property'' in paragraph 8 are sufficient to cover all the Immovable

properties belonging to the testator at his death. The words "" such properties as might have been omitted by mistake"" (there is a mistranslation in

the printed papers--the words ''by mistake'' being omitted) refer to properties and cannot be used to cut down the plain significance of the words

my landed property on the date of the testator''s death."" The decision in Kunthalammal v. Suryaprakasa Mudaliar ILR (1915) Mad. 1036 does

not therefore apply.

No order is necessary on the memo of objections.