Section 16 of the Limitation Act, 1963 provides that:
1. Where a person who would, if he were living, have a right to institute a suit or make an application dies before the right accrues, or where a right to institute a suit or make an application accrues only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such application.
Image Source: i.ebayimg.com
ADVERTISEMENTS:
2. Where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues or where a right to institute a suit or make an application against any person accrues on the death of such person, the period of limitation shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application.
3. Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of pre-emption or to suits for the possession of immovable property or of a hereditary office.
The principle of Section 16 of the Limitation Act is that in order that a right of suit or cause of action may exist, there must be in existence of a person capable of suing and another capable of being sued and there can be no limitation until there is a person in existence competent to sue.
The intention of Section 16 is to limit the time during which an action may be brought and not to take away the rights of a person who is a possible defendant to an action and it is not intended to accurate any right of action against such a person.
ADVERTISEMENTS:
The expression ‘capable of suing’ is the equivalent of ‘not being under legal disability to sue’. It cannot refer to in capacity arising from want of means or absence or other physical cause.
Section 16 confines to rights of action accruing after death. It makes it applicable to rights of action accruing either simultaneous on death or thereafter of the person suing or sued.
In order to attract the applicability of Section 16, it is necessary that the death must occur before the right to institute a suit or make an application accrues. If the right to institute a suit or make an application accrues in the life time of the deceased the limitation shall begin to run from the date of the accrual of cause of action and the provisions of Section 16 would not apply.
In Rajja Bibi v. Chhotay Lal, [1996 AIHC 3493 (All.)] it has been held that where after executing a mortgage by conditional sale, the mortgagor died before the period of reconveyance expired, then in view of Section 16(1) the period of limitation would be computed from the time when the legal representative of the deceased became capable of instituting the suit for redemption of the mortgage and recovery of possession.
ADVERTISEMENTS:
An executor or administrator of a deceased person in his legal representative for all purposes. In Section 16 of the Limitation Act, “legal representative” is not intended to be confined to an executor or administrator but also includes as heir.
In Balakrishnudu v. Narayana Swamy, (37 Mad. 175) it has been held that the executor is a legal representative within the meaning of this section even though he has not yet taken probate. Time therefore begins to run against the executor from the date of the testator’s death.
An administrator derives his title solely under his grant, and cannot sue before he gets the letters of administration.
Mere existence of a legal representative of the deceased is not sufficient for the purpose of Section 16. In order that limitation may begin to run under the Section 16, it is necessary that such representative must be capable of instituting a suit and obtaining decree.
Section 16(3) ensures security of title. In L. Singh v. S. Singh, (1990 (1) Civ. LJ 708) it has been held that Section 16(1) does not apply to suits for possession in view of Section 16(3) of the Acts.