039-NLR-NLR-V-39-TILLAINATHAN-v.-NAGALINGAM.pdf
118
Tillainathan v. Nagalingam.
1937Present: Poyser and Soertsz J.J.
TILLAINATHAN v. NAGALINGAM68—D. C. Jaffna, 5,753
Prescription—Mortgage bond in favour of ,P and after his death his minor
son—Death of P—Action brought by minor’s next friend.
A mortgage bond dated January 12, 1934, whereby the mortgageebound himself to pay P and, after his death, his son, T, did not specifythe time when payment should be made. P died in September, 1930.T, who was a minor, sued on the bond through his next friend in February,1934.
Held, that prescription commenced-to run on the bond from the dateof its execution and was not interrupted by the disability of T on theground of minority.
Sinnatamby v. Viravy (1 S. C. C. 14) and Sinnatamby v. Meera Levvai(6 IV. L. R. 50) followed.
A PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera, for plaintiff, appellant.
Nadesan, for respondent.
Cur. adv. vult.
SOERTSZ J.—Tillainathan v. Nagalingam.
119
March 23, 1937. Soertsz J.—
This appeal was pressed on two grounds, one of law and one of fact.The point of law taken was that the plaintiff is not barred by the Statuteof Limitations (Ordinance No. 22 of 1871), from maintaining this actionon the bond, even if the two payments of interest alleged to have beenmade on the bond, in 1926 and 1929, are disregarded. The bondwhich is dated January 12, 1924, contained a clause to the effect thatthe mortgagor would “pay the said Pootatamby (i.e., the mortgagee)and after this lifetime to his son Tillainathan” (i.e., the plaintiff).Pootatamby died in September, 1930. At the time Tillainathan was aminor. He was a minor at the time this case was instituted too, i.e.,on February 26, 1934.
On these -facts Mr. Ferera contends (a) that the cause of action so far asthe plaintiff is concerned, arose only on failure of payments after Poota-tamby’s death in 1930, and that the plaintiff was well within time whenhe came into Court in 1934, (b) alternatively, that even if, in view of theterms of section 6 of the Prescription Ordinance, the cause of action onthis particular bond, must be considered, to have/arisen on the very daythe bond was executed, then prescription did not begin to rim againstthe plaintiff in view of section 15 of the Ordinance, because he was aMninor at the time. Mr. Nadesan for the respondent contended, thatthere was only one cause of action on the bond and that prescription havingbegun to rim against the mortgagee Pootatamby was not interrupted bythe minority of the plaintiff.
In my opinion, the appellant’s contention is untenable. Section 6 of thePrescription Ordinance says that in the case of a hypothecation or mort-gage payable at a definite time, an action to be maintainable should becommenced within ten years of the expiration of such time, and in allother cases within ten years of the date of such instrument of mortgageor hypothecation. The mortgage bond in this case did not providefor payment within any definite time. Therefore to use the commonphrase, prescription began to run against Pootatamby from the date of theexecution of the bond, and section 15 of the Ordinance does not availthe present plaintiff for .the reason that that section is intended to serve- a person who is under a disability at the time the cause of action firstarose. In this case, when the cause of actionorthe right to suefirst
arose, the person entitled to sue upon itwasPootatamby and hewas
under no. disability whatever. The words of section 15.are quite dear :
“ Provided that if at the time when the right of action in respect of- anyof the causes referred to in sections 6,7, 8,9,11, and 12 . ..
shall accrue, the person so entitled to sueshallbesubject to any of the
said disabilities, &c.„ then the several periods of limitation ….,
shall nbt commence to run un,til the removal of such disability.”
The Full Bench in the year 1878 considered a similar question in thecase of Sinnatamby v. Viravy and Clarence J. who delivered the judg-ment of the Court said: “ It would certainly be a matter for surprise tofind the Legislation enacting that prescription after once commencingto run against a party could be afterwards interrupted by the‘disabilityof his successor. On considering the clause, it appears to us that we39/131is.g.c.14.
120SOERTSZ J.—Tillainathan v. Nagalingam.
cannot interpret the words “ time of the right of such action or such,claim accruing” (the words iri the present section 15 are the time whenthe right of action …. shall accrue) to mean the time when theactual plaintiff or defendant became personally entitled to sue. Itappears to us that the time meant is the time when the cause of actionfirst accrued. The effect of the clause then is, that if at the time theparty now claiming was the party to sue or be sued, and was thenunder disability, prescription does not begin to run until his disabilityhas been removed. This appears to us to be the most rationalinterpretation of the clause. We cannot read it so as to stop therunning of prescription already started, by reason of the disability of aperson succeeding to the right . . . . ” See also Sinnatamby v.,Meera Levvai
His Lordship, after discussing the question of fact, set aside thejudgment and sent the case back for further trial on the issue of fact.
Poyser J.—I agree.
Case sent back.
» 0 N. L. H. 50.