Introduction

The principle of Section 16 of the Limitation Act, 1963 is that, where a right to file a suit or a cause of action may exist, there must be in existence a person capable of suing and another capable of being sued. The limitation period cannot commence until there exists a person who is legally capable of bringing a lawsuit.

Section 16 of the Limitation Act, 1963 - Effect of death on or before the accrual of the right to sue —

(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.

(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.

• Period of Limitation – As defined by Section 2(j) of the Act it means the period of limitation prescribed for any suit, appeal or application by the Schedule of the Act.
• Section 16 (1) of the Act provides that the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting the suit or application in question whereas Section 16(2) the limitation shall be computed from the time when there is a legal representative of the deceased capable of being sued.
• The expression ‘capable of suing’ is the equivalent of ‘not being under legal disability to sue.’ It cannot refer to incapacity arising from want of means or absence or other physical cause.
• The intent of Section 16 is to limit the time during which an action may be brought and not to take away the rights of a possible defendant to an action.

Applicability

• According to Section 16(3), it does not apply to following suits:
  • To enforce right of pre-emption
  • For possession of immovable property
  • For the possession of the hereditary office

Essential Conditions of Section 16

• 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.
• The 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 Section 16, it is necessary that such representative must be capable of instituting a suit and obtaining decree.

Case Law

• Rajja Bibi v. Chhotay Lal, (1996): The Allahabad High Court in this case 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.