1. ' SYED HAIDER ALI PIRZADA, J.---This High Court Appeal is directed against the order dated 18-1-1989 passed by the learned Single Judge of this Court allowing application under Order VII, Rule 11, C.P.C.
2. And holding that Mst. Tahira Begum and Ayazuddin are not entitled to compensation under the Fatal Accidents Act, 1855 (hereinafter referred to as the 'Act')
3. ' The facts leading to the filing of the above appeal are that Suit No, 288 of 1988 was brought under the Act for compensation for death caused by the negligence of the defendants/respondents. The accident in question took place on 9-4-1981 at about 1220 hours within the area of Mithadar Police Station, Karachi. The Plaintiffs namely Ferozuddin and Naghma Begum are the minor son and daughter of one Aijazuddin and are grand-children of Islamuddin who was killed in the accident represented by their uncle Aijazuddin as their next friend. The deceased Islamuddin left behind the following legal heirs:-- {{TABLE TEXT}} Mst. Tahira Begum. Widow Aijazuddin. Son Nazima (married) Daughter Nasira (married). Daughter Rizuddin (married) Son Ayazuddin (unmarried) Son aged 24 years.
4. ' This suit has been filed in a representative capacity under the provisions of the Legal Representatives Suits Act, 1855 for the benefit of the plaintiff as well as for the benefit and interest of defendant legal heirs, that is, Mst. Tahira Begum and Ayazuddin. The Plaintiffs averred in their plaint that the interest of the Plaintiffs is same and common to the interest of the dependent legal heirs and not adverse to each other. It was their case that the legal heirs at serial Nos.2, 3, 4 and 5 were not dependent at the time of accident,while the legal heirs at Serial Nos.1 and 6 were dependent including the Plaintiffs grandson and grand-daughter.
5. ' The respondents contested the suit by filing written statement, on receipt of summons. The respondent/defendant No,1 filed an application under section 151, C.P.C. Praying for dismissal of the suit. The respondents stated in the application that the alleged accident took place on 9-4-1981 and the suit was filed on 30-3-1988, as such the suit is barred by limitation. The appellants/plaintiffs contested the application. The learned Single Judge, on consideration of the arguments advanced by the learned counsel for the parties, came to the conclusion that the legal heirs, namely Mst. Tahira Begum and Ayazuddin are not entitled to any compensation, as they have allowed time for filing the suit to expire. He held that the Court will proceed to examine the claim of the minor plaintiffs only. Aggrieved by the said order, the plaintiffs have preferred this appeal.
6. ' Mr. Muhammad Maqsood, learned counsel for the appellants urged that the learned Single Judge committed error in holding that the suit of Mst. Tahira Begum and Ayazuddin was barred by time.
7. He submitted that since the plaintiffs Farazuddin and Naghma were disqualified to file suit as they were minors. The accident occurred on 9-4-1981. According to Article 21 of the Limitation Act, the suit for compensation and damages should have been filed within one year of that date. The suit in question was filed on 30-3-1988.
8. Section 6 of the Limitation Act lays down as under:-- "6. Legal disability.--(1) Where a person entitled to institute a suit for proceeding to make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or proceeding or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the First Schedule or in section 48 of the Code of Civil Procedure, 1908 (Act V of 1908).
(2) Where such person is, at the time from which the period of limitation is to be reckoned affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may be instituted the suit or make the application within the same period, after both disabilities have ceased, as would otherwise have been allowed from the time so prescribed.
(3) Where the disability continues up to the death of such person, his legal representative may institute the suit or make the application within the same period after the death as would otherwise have been allowed from the time so prescribed.
(4) Where such representative is at the date of the death affected by any such disability, the rules contained in subsections (1) and (2) shall apply."
9. Section 7 reads as under:-- "7. Disability of one of several plaintiffs or applicants.--Where one of several persons jointly entitled to institute a suit or proceedings or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased."
10. Section 6 lays down a general rule that time for filing a suit shall not run against a disabled person who may be minor, insane or idiot. Such a disabled person may bring action in Court of law after his disability ceases to exist. Limitation for filing suit shall commence from the date of cessation of the disability. Section 7 is an exception to the general principle enunciated by section A 6. It lays down that if more than one person are jointly entitled to institute a suit and if one of them is disabled, time will not run against any of them until the disability ceases to exist. But if one of the persons entitled to institute the suit is competent to give discharge without the concurrence of the other, then time will run against both. In such an eventuality benefit of section 6 will not be available. The question then arises as to whether Mst. Tahira Begum, grandmother of the two minor plaintiffs or Ayazuddin, paternal-uncle were entitled to give discharge without the concurrence of minor children.
11. ' In Johnson and another v. The Madras Railway Company ILR (1905) Madras Vol. XXVIII page 479, a Division Bench held that the word 'representative' in Act XIII of 1855 does not mean only executors or administrators, but includes all or any one of the persons for whose benefit a suit may be brought under the Act and it makes no difference whether the deceased was a European or Eurasian. It was further held that under Article 21, Schedule II of the Limitation Act, the suit must be brought within one year from the death unless the bar is saved by section 7 or 8 of the Act. The right of the beneficiaries under Act XIII of 1855 is not a joint right, but a distinct and several rights in respect of the same cause of action enforceable at the suit of all or one of them suing for himself, and the rest. The beneficiaries are in the position of joint decree-holders and the right of suit conferred by Act XIII of 1855 is analogous to the right to apply for exemption conferred on one or more of several joint decree-holders by section 231 of the Code of Civil Procedure (Order XXI, Rule 15 of the Code of Civil Procedure,1908). The beneficiaries therefore are not persons `entitled to sue' within the meaning of section 7 of the Limitation Act and limitation will run against all when any one competent to bring the suit. It was further held that they are not joint creditors nor joint claimants under section 8 of the Limitation Act. Joint claimants are persons whose substantive rights are identical and not those whose are permitted to enforce distinct and different rights under one judicial process.
12. ' In Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. (PLD 1959 (W.P.)
13. Karachi 550), a learned Single Judge of the Erstwhile High Court of West Pakistan, Karachi Bench, considered this question in which he came to the conclusion after giving cogent reasons, which are fully supported by the case of Johnson and another (ILR 28 Mad. 479) already referred to hereinabove discussed by him in the said Judgment that there is nothing in this provision (Paragraph 2 of section 1 of the Act) to defeat the suit merely on the ground that the interest of three children of the deceased have been neglected or omitted. Again it was held at page 556 as under:- "I think that the language excludes the possibility of separate actions on the principle that 'the express mention of one thing implies the exclusion of another', but there is nothing in it to import the sense that the reason for such joint action must be a joint substantive right or a joint cause of action and not merely a procedural necessary. Such a joint action may legally necessary to procedural requirements only."
14. ' Again in para. 13 at page 557 it was held as follows:-- "Could the mother of the plaintiffs give a discharge as contemplated by the section, without the concurrence of the minor plaintiffs? The answer to the question must depend on whether the discharge contemplated by the section is a discharge of the claim of that claimant only who would choose to give its discharge or a discharge for more than his own claim. The language of the section is vague in this respect. If the object of the section was to save limitation in those cases only in which a claimant would be unable to give discharge to the extent of his own claim then it would contemplate a situation which is apparently or at least ordinarily not feasible in law.
15. Everybody who is a tenant-in-common with others in respect of a claim is generally entitled to give a discharge to the extent of his interest in such a claim. I must, therefore, hold that a discharge `without the concurrence of such person' means a discharge of a claim in which the person under disability is also interested. Such a dischrage the mother could not give. Time, therefore, did not run against any of the three claimants and the suit is not barred by time."
16. ' The principle laid down in the above case was followed by my learned brother Saleem Akhtar, J. In his unreported Judgment dated 27-10-1987 in Suit No, 879, of 1986 Bakhtawar Shah v. Karachi Transport Corporation.
17. In the Electricity Board, U.P. State. v. Shero Nath Singh and another (AIR 1976 All. 118) it was held: "The term "persons jointly entitled to institute a suit" connoted persons whose substantive right is joint and not persons whose substantive rights are several. It is immaterial that persons who have distinct several substantive rights arising out of the same cause of action may join together instituting a suit under Order I, Rule 1 of the Code of Civil Procedure. Similarly, it would also not make any difference that in view of the provisions of section 2 of the Indian Fatal Accidents Act only one suit may be filed. For recovery of Compensation a suit can no doubt be filed in a representative capacity for the benefit of all the persons who are entitled to compensation, but they would not be covered by the term `persons jointly entitled to institute a suit' under section 7 of the Limitation Act, if the substantive right of those persons is not joint but several. Under the Indian Fatal Accidents Act, the substantive right of the wife, husband, parent and child, if any, of the deceased person is not joint. Each of them has a distinct several right, and the Court while passing a decree in a suit filed under The Indian Fatal Accidents Act has to apportion the amount payable to each of those persons. Such persons are, therefore, not "jointly entitled to sue" within the meaning of section 7 of the Limitation Act. Consequently, the question as to whether one of them can give a valid discharge in such a case would not arise. However, where the liability is based on tort none of the persons jointly entitled to sue can give a valid discharge without the concurrence of others, inasmuch as these persons are in the position of tenants-in-common and not joint tenants--each of them having distinct interest in the substantive right. The fact that only one suit can be filed for recovery of compensation is not conclusive of the question that a discharge can be given by one of those persons without the concurrence of the other persons who is under disability. The discharge contemplated by section 7 of the Act is a discharge given by a joint claimant in his own right as such joint claimant."
18. We are in respectful agreement with the views expressed in the above decisions. We hold that the heirs of a victim of accidental death are tenant-in- common and not joint tenants. Interest of each one of them is distinct and separate, none of them is competent to give discharge in respect of the right of the other. Where one of such persons is under disability, section 7 of the Limitation Act would come into play and extend the period of Limitation for the entire body of co-heirs who had a joint right to sue. Section 7 of the Limitation Act would apply when the right to sue is joint irrespective of whether the substantive right is joint or not. Section 7 makes a distinction between a joint substantive right and a joint right to sue.
19. ' In our opinion, the learned Single Judge committed error. The suit was filed under the Fatal Accidents Act, claiming compensation for the pecuniary loss on account of the death of Islamuddin. Section 2 of the Act lays down that no more than one suit shall be brought in respect of the same subject-matter of complaint. This provision makes it clear that under the Act, only one suit can be brought for damages for loss of expectation of life by the persons who may be entitled to damages. The two minor children as well as their grandmother Mst. Tahira Begum and uncle Ayazuddin, each of them was entitled to claim compensation for the death of Islamuddin in their own right. They were entitled to institute a claim in Court of law jointly but they could not file more than one suit. Since the minors were disabled they could not bring an action in Court of law for compensation.
20. ' The question whether Mst. Tahira Begum and Ayazuddin could give a discharge without the concurrence of two minor children who were under disability, may now be examined. In case of fatal accident, the interest of legal representatives and heirs is distinct. Each one of them is entitled to claim separate amount of damages. One person can give discharge in respect of his own right but he cannot give discharge in respect of the right of other claimant. Since both children were minors, they were incapable of giving their consent to their grandmother and paternal-uncle and they (grandmother and paternal-uncle) could not without their consent give discharge. Mst. Tahira Begum and Ayazuddin could not give a valid and legal discharge on behalf of two minor children who were entitled to the damages in their own right. We are, therefore, of the opinion that the period of limitation could not run against the minors. The suit was, therefore, within time.
21. ' Mr. Umar Qureshi urged that Mst. Tahira Begum and Ayazuddin could file suit within time. We find no merits in this contention for the reasons stated above.
22. In the result we allow the appeal, set aside the order dated c 18-1-1989. In the circumstances of the case, the parties are directed to bear their own costs.