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TMI Blog1966 (4) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahabalkumari, the mother of Vijay Kumar Besides denying Vijay Kumar's right to enforce the mortgage, the appellant took various other defences to the action to which it is unnecessary for the purpose of this appeal to refer. 2. The learned District Judge who heard the suit, held that the adoption of Vijay Kumar had not been established and on that ground alone he dismissed it, having rejected the other defences raised by the appellant. Vijay Kumar appealed against that judgment to the High Court of Hyderabad but that appeal was, on a subsequent reorganisation of States, transferred to the High Court of Bombay. Thereafter on November 3, 1958, Vijay Kumar made an application in the appeal for an order adding his mother Mahabalkumari as a co-plaintiff with him as she was willing to be so added, and her sisters Rajkumari and Premkumari who were not available for joining in the suit as plaintiffs , as defendants. He also sought permission to add a new paragraph to the plaint, in which after reiterating his right to enforce the mortgage as the adopted son of Motilal and Tarabai, he stated. In case, however, the plaintiff's adoption is held not to be proved or not to be vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have helped in the decision of any matter in dispute. 5. Now, sub-r. (2) of O. 1, r. (10) permits the addition of both plaintiffs and defendants in certain circumstances. The order however was not sought to be justified under that provision and there was good reason for it. It was conceded - and in my opinion rightly - that in view of s. 22 of the Limitation Act, the suit as regards the parties added under this sub-rule had to be deemed to have been instituted when they were added. This was also the view expressed by the High Court. Now it is not in dispute that a suit filed on the date when the three sisters were added, to enforce the mortgage would have been barred. We may add that there is authority for the view that even the addition of defendants alone may attract the bar of limitation : see Ramdoyal v. Junmenjoy I.L.R. (1887) Cal. 791. Guravayya v. Dattatraya I.L.R.(1904) 28 Bom. 11. I think that the addition of Rajkumari and Premkumari as defendants was of the kind considered in these cases. Therefore, it would have been futile to add any of the parties under this sub-rule. In view of the bar of limitation, such addition would not have resulted in any decree being pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t occasion. 7. It was then said that in the present case there was no substantial addition of parties as the original suit was in the capacity of a proprietor of the firm of Narayandas Chunilal and all that was done was to add persons who might be the real proprietors. This was said in order to get out of the bar of limitation by showing that it was the original suit that was continued in spite of the addition of parties. There seems to be authority for the view that when a suit is filed in a representative capacity, if it turns out to be doubtful whether that capacity existed or had continued, the proper representative or the owner, as the case may be, might be added even after the date when the suit would be barred. I will assume that these cases lay down the law correctly, but they do not, in may view, afford any assistance in the present case. First, a suit by a person claiming to be the sole owner of the properties of a business carried on in a firm name, as Vijay Kumar's suit was, is not a suit in a representative capacity; he represents no one but himself. A firm is not a legal entity which could or had to be represented by any one else. As is well known, a firm means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Kumar is the natural son of Mahabalkumari. On April 23, 1952, Tarabai died. On February 10, 1954, Vijay Kumar claiming to be the adopted son and heir of Tarabai, instituted a suit for foreclosure of the mortgage executed in her favour. The appellant contested the suit. On December 30, 1955, the District Judge, Aurangabad dismissed the suit, holding that Vijay Kumar was not the adopted son and heir of Tarabai. Vijay Kumar preferred an appeal to the former High Court of Hyderabad. After the reorganisation of States, the appeal was transferred to the Bombay High Court. On an application made by Vijay Kumar on November 3, 1958, the High Court on November 4, 1958 made an order for addition of Mahabalkumari as plaintiff and Rajkumari and Premkumari as defendants to the suit and for consequential amendments of the plaint. After the addition of the parties, the appeal came up for final disposal before the High Court. At the hearing of the appeal, the respondents submitted that the question whether Vijay Kumar was the adopted son of Tarabai should not be decided in this litigation and a decree should be passed in favour of the added parties on the footing that they were the heirs of Tarab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw of procedure for enforcement of the mortgage. They did not acquire under art. 133 of the Hyderabad Limitation Act any right for privilege as contemplated by the proviso to s. 6 of the Part-B States (Laws) Act, 1951. No doubt, art. 132 of the Indian Limitation Act, 1908 abridged the period of limitation for the enforcement of the mortgage. But this abridgment did not impair or take away any vested right. Section 30 of the Indian Limitation Act, 1908 inserted by the Part-B States (Laws) Act, 1951 made suitable provision safeguarding vested rights in cases where the period prescribed was shorter than that prescribed by the corresponding law previously in force in the Part-B State. 14. It was argued on behalf of the respondents that art. 147 of the Indian Limitation Act applied to the suit. We are unable to accept this contention. In Vasudeva Mudaliar v. K. S. Shriniwas Pillai, L.R. 34 Ind. Ap. 186, the Privy Council held that Art. 147 applied only to an English mortgage as defined in the Transfer of Property Act before its amendment on 1929, as, in respect of such a mortgage only, the mortgagee could sue for foreclosure or sale. That decision has never been questioned and we s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive 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 Civil Procedure Code provides against the defence 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 be clearly wrong to allow him, for the sake of avoiding the Limitation Ordinance, to take advantage of a suit improperly instituted by B. 18. Similarly, in this case the daughters of Tarabai cannot, for the purpose of avoiding the Limitation Act, take advantage of the suit improperly instituted by Vijay Kumar. 19. In Subodini Devi v. Cumar Ganoda Kant Roy Bahadur I.L.R. (1887) Cal. 400, the Calcutta High Court held that there was a difference between substituting a new person as plaintiff under s. 27 of the Code of Civil Procedure, 1882 and the addition of a new person as defendant under s. 32 of the Code and that the change of parties as plaintiffs did not affect the question of limitation. This decision was followed by Parsons, J. in Ravji v. Mahadev I.L.R. (1897) . But the learned Judges deciding those cases did not refer to s. 22 of the Indian Limitation Act, 1877 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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