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Kuntappa Vs. Aiyappa Kuntappa Desai and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. No. 65 of 1972 and C/W R.S.A. No. 86 of 1968
Judge
Reported inAIR1973Kant50; AIR1973Mys50; (1972)2MysLJ415
ActsLimitation Act, 1963 - Sections 6 and 12
AppellantKuntappa
RespondentAiyappa Kuntappa Desai and ors.
Appellant AdvocateB.B. Mandappa, Adv.
Respondent AdvocateV. Krishna Murthy, Adv.
DispositionAppeal dismissed
Excerpt:
- code of civil procedure, 1908. order 21: [n.k. partil, j] execution proceedings application filed by the petitioner under section 114 read with section 151 to review the order passed by the execution court - petitioners repeated applications one after another only to trouble the respondent rejection of - held, it is the case of the respondents before the execution court that petitioner is not the legal representative of puttamadamma or nanjamma and hence, he has no locus standi to intervene in the above proceedings and by a considered order, the execution court has rejected the affidavit filed by petitioner and no revision or review has was taken up against the said order and therefore, the execution court has observed that, petitioner cannot re-agitate against the said order once..........for filing the suit was 7-12-1958 which was sunday as per the calendar of the year 1958 and the suit filed on the next day- that is. on 8-12-1958 was therefore in time. on these among other grounds, he urged for the reversal of the decree under appeal.6. mr. krishna murthy counsel for the respondents submitted that the cessation of minority of the appellant was on 5-12-1955 and not on 6-12-1955. the suit according to him ought to have been filed on 6-12-1958 and not on any day thereafter.7. the controversy in the appeal appears to be simple provided one knows the general rule in computing a period of time or the principle in calculating a person's age. often, the parties commit mistakes in giving their age either out of ignorance or with a deliberate design to gain time......
Judgment:
ORDER

K. Jagannatha Shetty, J.

1. By my judgment dated 25-10-1971, the Second appeal was dismissed. The appellant filed a review petition which was admitted on 10-3-1972 and the matter is set down for hearing today after notice to counsel for the respondents.

2. Heard counsel for both the parties. I recall my judgment dated 25-10-1971 and now proceed to dispose of the second appeal by the following judgment

3. The plaintiff is the appellant He has lost in both the courts below. His suit was for possession of certain lands and also for partition and possession of two third share in a house and site. In 1951, the plaintiff was a minor. He was represented by his mother in a compromise entered into with defendant No. 1 in respect of the suit properties amongst others. After attaining majority, the plaintiff has challenged the compromise on the ground that it was not beneficial or binding on him. He instituted Civil Suit No. 15 of 1959 out of which this second appeal arises.

4. The suit was dismissed on the ground, among others, that it was barred by time, as it was not brought within three years after the plaintiff attained majority. The courts below have stated that the plaintiff completed his eighteen years of age on the midnight of 5-12-1955 and he was a major on 6-12-1955. The end of three years from the date of attaining majority would be 5-12-1958 and the suit ought to have been filed on 6-12-1958 at the latest and the one filed on 8-12-1958 was therefore beyond the period.

5. Mr. Mandappa for the appellant urged that it is not the correct way of computing a person's age. He said that the three years period must be counted not from the date of attaining majority but from the date of the cessation of minority. He placed reliance on the decision of the Patna High Court in Batuk Prasad Bhagat v. Rudra Das Chakravarthy : AIR1950Pat206 . According to him, the plaintiff who was born on 6-12-1937 would cease to become a minor on 6-12-1955 and he would be completing three years therefrom on 6-12-1958. He added that the last date for filing the suit was 7-12-1958 which was Sunday as per the calendar of the year 1958 and the suit filed on the next day- that is. on 8-12-1958 was therefore in time. On these among other grounds, he urged for the reversal of the decree under appeal.

6. Mr. Krishna Murthy counsel for the respondents submitted that the cessation of minority of the appellant was on 5-12-1955 and not on 6-12-1955. The suit according to him ought to have been filed on 6-12-1958 and not on any day thereafter.

7. The controversy in the appeal appears to be simple provided one knows the general rule in computing a period of time or the principle in calculating a person's age. Often, the parties commit mistakes in giving their age either out of ignorance or with a deliberate design to gain time. Chandrashekhar, J. in G. Vatsala Rani v. Selection Committee 1966 (2) Mys LJ 606 - (AIR 1967 Mys 135), said thus:--

'But in the absence of any express provision, we think, it is well settled that any specified age in law has to be computed as having been attained or completed on the preceding the anniversary of the birthday, that is. the day preceding, the day of the calendar corresponding to the day of birth of the person.'

8. This principle finds support from the passage in Halsbury's Law of England. Simond Edition, Volume 37, paragraph 178, page 100. The said paragraph reads thus:--

'178. The general rule. In computing a period of time, at any rate when counted in years or months no regard is, as a general rule, paid to fractions of a day, in the sense that the period is 'regarded as complete although it is short to the extent of a fraction of a day.

*****

Similarly, in calculating a person's are the day of his birth counts as a whole day; and he attains a specified age on the day next before the anniversary of his birthday.'

9. Let me now apply the principles to the case on hand. The plaintiff was born on 6-12-1937. He had attained his eighteenth year on the day next before the anniversary of his birthday, i.e., on 5-12-1955, Under Section 12 of the Limitation Act, the day from which such period is to be reckoned shall be excluded. This would exclude 5th December, 1955. The period of three years would commence on the 6th December. 1955 and, would expire on the last moment of 5th December, 1958. Therefore. 8th December; 1958 was too late for filing of the suit.

10. It is true that the three years period mentioned in Section 8 of the Limitation Act must be counted not from the date of attainment of majority but from the date of cessation of minority. That is clear from a reading of Sections 6 and 8 of the Limitation Act, 1908. But the result would be the same if the three years period is counted therefrom. The suit ought to have been filed on or before 6-12-1958.

11. In the above view, it is not necessary to consider the other contentions urged by Mr. Mandappa.

12. In the result, the appeal fails and is dismissed with costs in this court.


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