Subbiah Ambalam Servai vs Unnamalai Achi and Others

King, J.—The petitioner in this case sued in the Court of the District Munsif of Devakottai to recover a sum of Rs. 150 which was entrusted

by him at Penang on the 24th November, 1934 with one Mariappan, the agent of Ramaswami Chettiar, for the purpose of remitting that money to

British India. The suit was filed on the 24th November, 1937 on the last day permitted by limitation on the assumption that the limitation began to

run from the date of the entrustment. Ramaswami Chettiar was then dead and his widow was impleaded as defendant and a decree was sought for

against the assets of Ramaswami Chettiar in her hands. While the suit was pending, it was brought to the notice of the plaintiff that Ramaswami

Chettiar had left a will executed on the 17th of September, 1936 in which two persons were appointed as executors of his estate. Thereupon an

application was made by the plaintiff to implead these executors as defendants 2 and 3 and on the 6th July, 1938 they Were duly impleaded.

The only point which requires decision in this petition is whether the claim of the plaintiff is barred by limitation as against defendants 2 and 3.

The learned District Munsif has held that the suit is barred by limitation and in so holding he relies upon the language of Section 22 of the Limitation

Act which runs as follows:

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.

The question, therefore, for me to decide is whether Section 22 has been rightly applied by the learned District Munsif to the facts of this case.

Clearly if the second and third defendants are new defendants within the meaning of Section 22, the suit was barred on the date when they were

ordered to be impleaded. But it is argued for the petitioner that they are not really new defendants, but merely new representatives of the same

estate which was already represented by the impleading of the first defendant at the time when there was no bar of limitation. It seems to me that

this argument must prevail. It is quite clear that the plaintiff in the present suit was not suing either the first defendant or the second and third

defendants in their personal capacity. Although it is true that the estate of a deceased person must, be represented in any suit by some living

person, the real defendant in* this suit may rightly be said to be the estate of Ramaswami Chettiar. It was Ramaswami Chettiar? who was

plaintiff''s debtor and plaintiff seeks to recover the amount of the debt from whosoever may represent Ramaswami Chettiar''s estate. It seems to

me reasonable therefore, on general principles to argue that as the first defendant and defendants 2 and 3 were all impleaded as representing

Ramaswami Chettiar''s estate, there is in essence the same defendant ''throughout.

It is, however, argued for the respondents here that if a wrong legal representative is impleaded, the estate against which the suit is laid cannot

be said to be properly represented and therefore is not represented at all. On the facts of the present case, it would follow that the estate of

Ramaswami Chettiar was never represented until defendants 2 and 3 were added. Therefore, the estate of Ramaswami Chettiar was sued against

for the first time on a date when the suit was barred by limitation. This argument cannot be upheld in the face of two decisions of Benches of this

Court, Sanna Govappa v. Rodda Sanna Govappa (1928) 30 L.W. 778 and Chathurbujadoss Kushaldoss & Sons v. Rajamanicka Mudaliar

(1930) 60 M.L.J. 97 These decisions are directly in point, although in one sense they do not deal with exactly the same question. They are cases in

which a decree had already been granted against the estate of a deceased person represented by a legal representative who turned out after the

decree not to have been the rightful legal representative of the deceased. It was held in both these cases that if the suit had been bona fide brought

by the plaintiff against the person whom he reasonably thought to be the real legal representative, the estate was sufficiently represented by that

person, and the decree, in the absence of anything to suggest fraud or collusion, was binding upon the true legal representative. It follows on an

analysis of those cases that whoever may be impleaded as the representative of an estate--if impleaded bona fide--the estate is represented.

Therefore, if at onetime in the same suit one defendant who is not the real representative is impleaded, and at another time the rightful legal

representatives are also impleaded the same estate has been represented throughout the suit. It is true that there are two cases cited before me,

which hold that in circumstances similar to those with which I am now concerned, a suit would be barred by limitation. One of these is Kavasji

Sorabji v. Barjorji Sorabji (1873) 10 Bom. H.C.R. 224 a decision given so long ago as 1873. This decision deals with Section 14 of the

Limitation Act then in force and not with Section 22. There is also a decision reported in Northern Bank v. Ramachander AIR 1932 Lah. 314. But

it is significant that the learned Judges in that case gave as their final and clinching reason for their decision that a decree passed without the addition

of the true legal representative to the estate of a defendant could in no manner have been binding upon that legal representative. That is directly

contrary to the decisions of this Court in Sanna Govappa v. Rodda Sanna Govappa (1928) 30 L.W. 778 and Chathurbujadoss Kushaldoss &

Sons v. Rajamanicka Mudaliar (1930) 60 M.L.J. 97 to which I have already referred. I cannot therefore be asked in disposing of this petition to

follow this ruling of the Lahore High Court, and with great respect I see no reason why I should follow the decision of the Bombay High Court

which does not apparently seem to have been followed during the long interval which has elapsed since 1873.

I have also been referred by the learned advocate for the respondents to two Madras cases. Seerangathuni Vs. Bava Vaithilinga Mudaliar, and

Venkatasubbamma Vs. Pulipulla Reddy and Another, in which Section 22 has been applied. In Seerangathuni Vs. Bava Vaithilinga Mudaliar,

plaintiff who was one of the executors under a will brought a suit on behalf of the estate of the deceased testator. He did not join with him the other

executor nor did he implead him as a defendant. Finally the co-executor was impleaded as a defendant on a date on which the suit would have

been barred by limitation. It was held in Seerangathuni Vs. Bava Vaithilinga Mudaliar, , that as the sixth defendant had not been impleaded within

time, the suit must be barred. In Venkatasubbamma Vs. Pulipulla Reddy and Another, , a suit was filed by the daughter of a deceased person

claiming as heir to him. On an inspection of the will of the deceased, it was discovered that another person was appointed executor and therefore

the executor alone was competent to file the suit. The executor was then added as an additional plaintiff but at the time when the executor was

added, the suit was barred by limitation. It was held that Section 22 applied to this case and plaintiff''s suit was barred. It seems to me that these

rulings have nothing to do with the particular problem before me. They are both cases--as will be seen--of plaintiffs who have filed suits which they

were incompetent to file. It cannot be denied that when a plaintiff, claiming to be the representative of a deceased person, files a suit, he is filing it

as an individual and that anybody else who is joined in the suit later must be a separate individual from him. Clearly therefore Section 22 applied

and a second plaintiff or any person who ought to be a plaintiff , or impleaded as a formal defendant is a new plaintiff or a new defendant within the

meaning of that section. There is no case here of an estate as such suing for any benefit. Where, however, a plaintiff, as in this case, is suing to

recover money on the allegation that the money was a debt due to him by a deceased person, and that it should be paid by the legal representative

of that deceased person if his estate has come into his hands, he is in essence suing not the representative as an individual but the estate. As already

mentioned, an analysis of the principles upon which Sanna Govappa v. Rodda Sanna Govappa (1928) 30 L.W. 778 and Chathurbujadoss

Kushaldoss & Sons v. Rajamanicka Mudaliar (1930) 60 M.L.J. 97 were decided makes it clear to my mind that where in the same suit first one

legal representative and then another is impleaded, the estate which is the object of the suit has been represented throughout and there is no change

of defendants in the real sense of the word.

I hold accordingly that Section 22 does not apply to the present case and that the suit was brought within time. The decree of the learned

District Munsif will therefore be set aside.

It is argued for the respondent that there is no clear finding in the present case that the suit was brought in the first instance against the first

defendant in the genuine belief on the part of the plaintiff that the first defendant was the true legal representative of Ramaswami Chettiar. On the

other hand, there is no finding to the contrary and it seems to me extremely probable that any contention of this kind contesting the honesty of the

plaintiff must necessarily have been raised during the proceedings for the adding of defendants 2 and 3 to the suit. The affidavits filed in connection

with those proceedings are not available before me at the present time. But it seems to me reasonable to argue that if the Court had any reason to

suspect that the plaintiff had known of the existence of defendants 2 and 3 as the executors of Ramaswami Chettiar at the time when he filed his

suit, it would never have permitted these defendants to be impleaded at all. I am not prepared in these circumstances to accept the contention of

the learned advocate for the respondents that the suit should be remanded to the District Munsif for a further finding on the point of limitation to

depend upon the finding whether the action of the plaintiff in filing the plaint only against the first defendant was or was not bona fide. I am

convinced, as I say, that it must have been bona fide in this sense. All other defences to the suit have been duly considered and found against the

defendants by the learned District Munsif.

It follows therefore that in allowing this petition, a decree must be granted to the plaintiff with costs throughout against defendants 2 and 3

payable out of the estate of Rawaswami Chettiar with interest at six per cent. per annum from the date of plaint to the date of realisation.