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Basayya Shivabasayya Vs. Baslingayya Channayya - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 22 of 1944
Judge
Reported in(1947)49BOMLR775
AppellantBasayya Shivabasayya
RespondentBaslingayya Channayya
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), article 126, sections 6, 8-'person'-'minor'-whether a child en ventre sa mere is person and minor-hindu law-ancestral property-alienation by father-whether son in grernio matris can challenge such alienation-indian majority act (ix of 1875), section 3-'and not before,' meaning of.;on july 29, 1918, defendant no. 8 made a gift of his ancestral property to defendants nos. 1 and 2. a son was bom to him on march 23, 1919. the son having sued, on march 11, 1940, to set aside the alienation, defendants nos. 1 and 2 contended that the suit was barred under article 126 of the indian limitation act, 1908, as more than 12 years had elapsed from the date of the alienation before the suit was brought. the plaintiff asserted in reply that he was in gremio matris at..........nos. 1 and 2 contended that the plaintiff had not been conceived on the date of the gift, that the suit was time-barred under article 126 of the first schedule to the indian limitation act, and that he could not claim the benefit of section 6 or section 8 of the act. the courts of facts found that the plaintiff had been conceived 280 days prior to his birth, that, therefore, he could challenge the gift made by his father, and that the suit was in time. the plaintiff accordingly was given a decree for possession.2. on the finding of the first two courts as to the time when the plaintiff was conceived, it must be deemed that he was in the womb of his mother on the date of the alienation which he impugned. the only two questions that were argued before mr. justice lokur were (1) whether an.....
Judgment:

Sen, J.

1. This is an appeal against the decision in a second appeal by Mr. Justice Lokur arising out of a suit which was filed by a son to set aside an alienation made by his father. The plaintiff's father Channayya, defendant No. 3, and his two brothers, defendants Nos. 1 and 2, were the sons of one Shivbasayya, and Channayya was adopted into another family. After his adoption he made on July 29, 1918, a gift of certain property which he had inherited in his adopted family to defendants Nos. 1 and 2. Be had no son at the time: but his wife gave birth to the plaintiff on March 28, 1919. This suit was filed on March 11, 1940, within three years after the plaintiff attained the age of 18 years. Defendants Nos. 1 and 2 contended that the plaintiff had not been conceived on the date of the gift, that the suit was time-barred under Article 126 of the first schedule to the Indian limitation Act, and that he could not claim the benefit of Section 6 or Section 8 of the Act. The Courts of facts found that the plaintiff had been conceived 280 days prior to his birth, that, therefore, he could challenge the gift made by his father, and that the suit was in time. The plaintiff accordingly was given a decree for possession.

2. On the finding of the first two Courts as to the time when the plaintiff was conceived, it must be deemed that he was in the womb of his mother on the date of the alienation which he impugned. The only two questions that were argued before Mr. Justice Lokur were (1) whether an alienation that can be impeached by a son actually bom at the time of the alienation can also be impeached by one who was in his mother's womb at that time, and (2) the question of limitation. On both these questions Mr. Justice Lokur found against the defendants, and dismissed the appeal.

3. There is no dispute before us as regards his first conclusion, which was based on examination of the authorities as well as the texts of Hindu law. It is unnecessary to refer to any part of such authorities or texts, except perhaps one which would be useful in connection with the second question. One of the texts relied on by Mr. Justice Lokur was a passage from the text of Gautama, relied upon by Vijnanesvara in commenting on a sentence in the Mitakshara, which has been thus translated:

For the text of Gautama expresses 'let ownership of wealth be taken by birth, as the venerable teachers direct.'

His conclusion on this point is the same as stated by Mulla in his Hindu Law at Section 270 (p. 329, 10th edition), under the heading 'rights of a son in his mother's womb.' On the question of limitation the argument to be found in his judgment is this. The suit was admittedly governed by Article 126 of the first schedule to the Indian Limitation Act, under which a suit by a Hindu governed by the law of Mitakshara to set aside his father's alienation of ancestral property must be instituted within 12 years from the date 'when the alienee takes possession of the property.' Normally, therefore, the period of limitation would expire in 1930. The plaintiff who filed the suit just before he reached the age of 21 years relied upon Section 6 of the Indian Limitation Act, the material part of which reads as follows:-

Where a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, he may institute the suit 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.

4. That section, therefore, by itself would entitle the plaintiff in such a suit as the present one, if he was a minor at the time from which the period of limitation is to be reckoned, to file the suit within 12 years from the date on which the disability had ceased. That period of 12 years is cut down to three years under the provisions of Section 8 of the Act. Mr. Justice Lokur held that the plaintiff in this case, though he was a son in embryo at the date of the alienation from which the limitation has started, must be held to be a minor within the meaning of Section 6. He did not agree with the decision in Muhammad Khan v. Ahmad Khan I.L.R.(1928) Lah. 713 where it was thought that in that case the period of 18 years which would determine the plaintiff's disability would run from the date of his conception and that that date would never be ascertained with any degree of certainty. On this point Mr. Justice Lokur relied on Section 3 of the Indian Majority Act, which provides inter alia that every person domiciled in British India shall be 'deemed to have attained his majority when he shall have completed his age of eighteen years and not before.' In his opinion the expression 'and not before' clearly indicates that the minority does not terminate until the age of 18 had been completed, and that the age is to be counted from the date of the birth of the person in question and not from the date of his conception. This view agrees with the view taken in Ranganatha Reddi v. Ramaswami Mudali I.L.R(1935) Mad. 886. which dissented from the opinion of the Lahore High Court in Muhammad Khan's case and gave the benefit of Sections 6 and 8 of the Act to a son who was attacking an alienation made by his father when he had been in his mother's womb, computing his minority from the date of his birth and not from the date of his conception.

5. Mr. Shah has contended that this view is not correct. The grounds on which he has based his contention are, first, that the plaintiff at the date of the alienation could not be said to be a person within the meaning of Section 6 of the Act, and, secondly, that even if he was a person, he could not be said to be a minor. The word 'person' has been defined in the General Clauses Act as including any company or association or body of individuals whether incorporated or not. This meaning, therefore, is not confined to any individual, and has been made to include even inanimate entities like companies or other associations. I have already referred to the text of Gautama saying that the ownership of property or wealth arises on utpatti, which has been interpreted, rightly in our opinion, by Mr. Justice Lokur, following Smritichandrika, as birth in the mother's womb, that is to say, conception. According to the Hindu law, therefore, the right to property accrues from the date of a person's conception. It seems to us difficult to see, when a person acquires the right of ownership from the date of his conception and not merely from the date of his birth, why he should not in law be regarded as a person from the date of his conception. The definition in the General Clauses Act is a wide definition as I have already stated, and not merely confined to individuals who are already born. We, therefore, think that it cannot be said that the plaintiff in this case, at the date of the alienation, though he was in his mother's womb at the time, was not a person at all, the element of personality being one of the elements within the meaning of the expression 'minor.'

6. Mr. Shah has next contended that even if the plaintiff was a person at the time in question, he was not a minor. He has referred to several decisions on this point besides Muhammad Khan v. Ahmed Khan, but we find that some of them, for instance, Udayamuthier v. Shunmugam Chettiar : AIR1935Mad431 and Chiragh Din v. Abdullah A.I.R[1925] . Lah. 654 did not relate to persons who were in their mothers' womb at the date of the transactions which were challenged in those cases. Those two cases considered the right of a person to bring a suit when he had not been in existence at all at the date of the alienation. Leaving these two cases out, there remain two Lahore decisions which can be said to be in favour of the view for which Mr. Shah has contended, namely, Muhammad Khan v. Ahmad Khan and Madho Ram v. Dharam Singh A.I.R.[1930] Lah. 394. I have already stated the ratio of the decision on this point. In the first of those cases the passage relied on reads thus (p. 716):-

If a son in embryo is deemed to be a minor in existence on the date of the conception, the period of eighteen years, which would determine his disability, would run from that date. But it is clear that that date can never be ascertained with any degree of certainty, and the contention urged by the learned Counsel would lead to the absurd result that the plaintiff would attain the age of majority for the purposes of the law of limitation when he was only seventeen years and a few months old, though he would be a minor at that time for all other purposes.

7. The second Lahore case relied on does not give any reasons on which the view which was taken was based. Mr. Justice Lokur disagreed with the opinion of the Lahore High Court on the ground that the Indian Majority Act in Section 3 provides that every person domiciled in British India shall be 'deemed to have attained his majority when he shall have completed his age of 18 years and not before.' It seems to us clear that the age referred to in this passage must be counted from the date of birth and cannot be counted from the date of conception. In this connection, Mr. Justice Lokur rightly relied on a remark in an English case, Athey v. Pickerings, Ltd. (1927) 96 L.J.K.B. 250 where Lawrence L.J. observed (p. 253):-

It seems to me to be a fallacy to suppose that, because a child is to be deemed to be born at a certain period, therefore the child attains its age of twenty-one, or in this case fifteen or is deemed to attain that age, before it actually attains that age. There is no requirement at all in the Act or in any of the circumstances to introduce the notion into the actual facts of the ascertainment of the age of that child.

8. Mr. Shah, however, has contended that the word 'minor' has not been defined in the Indian Minority Act. We find it stated in Chitaley's Limitation Act that in the Limitation Act of 1871 a minor was actually defined as 'a person who has not completed his age of eighteen years.' For some reason this definition was not incorporated in the present Limitation Act, and the Legislature contented itself by saying when a person should be deemed to have attained his majority.

9. Mr. Shah has argued that it cannot be said that if a person is not found to be a major, he would necessarily be a minor, contending that the period of minority must be confined strictly to the period from birth up to the attainment of the age of 18 years, after which the period of majority begins, and that the period that a person spends in the womb of his mother cannot be called a period either of minority or of majority. We are unable to accept this contention. In Ranganatha Reddi v. Ramaswami Mudali I.L.R.(1935) Mad. 886. it was remarked by Beasley C.J. (p. 891):-

A person in existence must be either a minor or a major, and obviously an infant en ventre sa mere cannot be a major and must therefore be a minor.

10. It is impossible to accept the suggestion that a state in which the person concerned is neither a minor nor a major can exist and that a person who is in that state cannot, therefore, take the benefit of Section 6 of the Limitation Act. It also seems obvious that the age of a person must be reckoned from the date of his birth, and cannot have any reference to the time when he was conceived.

11. That being our view, we hold that Mr. Justice Lokur rightly dealt with the question of limitation in holding that the plaintiff was entitled to the benefit of Sections 6 and 8 of the Indian Limitation Act. The appeal must, therefore, be dismissed with costs.


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