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Smt. Sushila Devi Vs. Prem Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 2588 and 2696 to 2698 of 1972
Judge
Reported inAIR1981All83
ActsLimitation Act, 1908 - Sections 6, 7, 8 and 12; Majority Act, 1875 - Sections 3 and 4
AppellantSmt. Sushila Devi
RespondentPrem Kumar and ors.
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateH.S. Nigam and ;Radha Krishna, Advs.
DispositionAppeal allowed
Excerpt:
.....suit for possession - minor son subsequently filed suit for` possession after becoming major - suit within limitation period - three years to be computed from cessation of minority. - - 1. these four second appeals are like the suits giving rise to them being disposed of by a common judgment. in cases like the present the elder brother's omission to file a suit within three years of his ceasing to be a minor would bar a subsequent suit by the younger brother after his own minority only if the elder brother had been a karta of the family and should be treated as representing the younger brother. this moment is both the end of 18th year and age when calculated in the light of the first part of section 4 as well as the beginning of the 19th years of age. in batuk pra-sad v. after..........3 and 4, indian majority act. the result is that statutorily minority becomes correlated to majority. minority continues till majority is attained. cessation of minority and attainment of majority are simultaneous. it would be incorrect to speak of cessation of minority as something different from the attainment of majority. for there are no rules prescribing when minority will cease. we are therefore left with the portion that it ceases when majority is attained. the relevant parts of the rules prescribing the time of attainment of majority contained in sections 3 and 4, indian majority act, 1875 are as follows.'section 3......... however......... person shall be deemed to have attained his majority when he shall have completed his age of 18 years and not before.section 4. in.....
Judgment:

Murlidhar, J.

1. These four second appeals are like the suits giving rise to them being disposed of by a common judgment. The main second appeal No. 2588 of 1972 is by the defendant. Smt. Sushila Devi and arises out of a suit for possession filed by Prem Kumar for a house property in respect of which Prem Ku-mar's grand-father Bhagwan Singh father Ram Pratap and uncle Kishan Dutta had executed a gift-deed 7-7-39 in favour of a deceased uncle's widow Kaushilya Devi. Prem Kumar was born on 24-4-39. He filed the suit on 25-4-60 (as 24-4-60 was a Sunday) claiming that he was filing it within three years of becoming a major. He alleged in the suit that the property was joint family property and the gift-deed was invalid. Defendants Nos. 2 to 8 were the other members of the family namely his father, uncle and brothers. Defendants Nos. 9 to 11 were tenants in part of this property. These tenants are the respective defendant-respondents in the remaining three appeals. The principal defendant in the suit was Smt. Sushila Devi who claimed the property as successor of her husband Kripa Shanker in whose favour a Will dated 21-3-49 was said to have been executed by Kaushilya Devi. The case of Sushila Devi in brief was that the gift-deed was valid and the property account of the Will dated 21-3-49 in due course had passed to her.

2. The remaining three appeals are also by Sushila Devi but these are plaintiff's appeals. These arise out of three suits filed by her for arrears of rent and ejectment against the three tenants aforementioned who are defendants Nos. 9 to 11 of Prem Kumar's suit.

3. In the main appeal four points were pressed by the learned counsel for the appellant. Three of these have no merit and may be briefly disposed of. This it was urged that (1) the gift-deed should be upheld as part of a family settlement and (2) that Prem Kumar's father Ram Pratap had been adopted in another family and consequently Prem Kumar had ceased to be a member of the joint family and had no right of suit left. Both the courts below have recorded concurrent findings against the existence of any family settlement and adoption of Ram Pratap. No defect that can be taken note of in second appeal would be pointed out in these findings. These must, therefore, be upheld as findings of fact not assailable at this stage. (3) It is next urged that in view of Section 7 of the old Limitation Act, plaintiff had no right of suit left when his elder brother Ram Kumar who admittedly attained majority more than three years before the present suit had not challenged the gift-deed. There is no substance in this contention either. The settled view is that Section 7 operates only if the other persons by whose act the plaintiff is said to be bound was in a position to give a valid discharge on behalf of the plaintiff. In cases like the present the elder brother's omission to file a suit within three years of his ceasing to be a minor would bar a subsequent suit by the younger brother after his own minority only if the elder brother had been a Karta of the family and should be treated as representing the younger brother. This is not the case here for the father Ram Pratap who was and is the Karta of the joint family is alive and was himself an executant to the gift-deed and it is his act that is being challenged by this suit.

4. We then come to the main question of limitation. The appellant's stand is that limitation expired on 23-4-60 and therefore, the suit filed on 25-4-60 was beyond limitation by two days. The respondents' claim is that limitation expired on 24-4-60 but that date being Sunday was rightly instituted on 25-4-60. The question turns on the date from which the three years' period under Section 8 of the old Limitation Act is to be computed when the date of Prem Kumar's birth was 24-4-39. The appellants would compute the three years from 23-4-57 on the basis that the cessation on minority occurred on 23-4-57 while respondents desired computation from 24-4-57 on the ground majority was attained on 24-4-57.

5. For deciding between the rival contentions it is proper to begin by clarifying certain preliminary points. Section 6, Limitation Act, 1908 speaks of institution of a suit 'after the disability had ceased' and Section 8 limits the period of limitation to 'three years from the cessation of the disability.' Therefore, there can be no question that the limitation of three years has to be computed from the 'cessation of disability'. In the context in which they occur the word 'after' does not have meaning different from the word 'from' used in Section 8. It is thus clear that under the statute the limitation of three years is to be computed from the cessation of disability or the cessation of the minority in the present case.

6. Now the legal position is that minority has no statutory definition while majority has such a definition under Sections 3 and 4, Indian Majority Act. The result is that statutorily minority becomes correlated to majority. Minority continues till majority is attained. Cessation of minority and attainment of majority are simultaneous. It would be incorrect to speak of cessation of minority as something different from the attainment of majority. For there are no rules prescribing when minority will cease. We are therefore left with the portion that it ceases when majority is attained. The relevant parts of the rules prescribing the time of attainment of majority contained in Sections 3 and 4, Indian Majority Act, 1875 are as follows.

'Section 3......... however......... person shall be deemed to have attained his majority when he shall have completed his age of 18 years and not before.

Section 4. In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of Section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second paragraph of Section 3, at the beginning of the eighteenth anniversary of that day.'

Thus Section 3 speaks of attainment of majority on completion of the age of 18. Now on account of the date of birth being counted as a whole day as laid down in Section 4, Indian Majority Act the age of 18 would be completed only at the end of the day preceding the 18th anniversary of the birth day which is also the beginning of the birth day anniversary or day the beginning of the first day of age 19. Thus the point of time at which the majority comes is the mid-night moment, which is the beginning of the 18th birth anniversary day. This moment is both the end of 18th year and age when calculated in the light of the first part of Section 4 as well as the beginning of the 19th years of age. If the matter were open it could be described as and of the 18th year or beginning of 19th but because of Section 4, Indian Majority Act we can only speak of attainment of majority at the beginning of 18th birth day of 24-4-57 in this case. Even though the point of time is the same we cannot say that majority was attained at the end of 23-4-57. Consequently the moment of cessation of minority has also to be deemed to be the beginning of 24-4-57 in the present case and cannot be described as the end of 23-4-57. It is, therefore, in my opinion not possible to treat the cessation of minority to have occur-red on 23-4-57 and calculate the period of limitation from 23-4-57 after applying Section 12 and excluding 23-4-57. We have to calculate limitation from the beginning of 24-4-57.

7. The next question then arises is about the impact of Section 12, Limitation Act on the computation. The relevant clause Section 12 (1) dictates that in computing the period of limitation prescribed for any suit 'the day from which such period is to be reckoned shall be excluded.' I am inclined to think that the rule would apply only where the commencement of limitation is from a date without specification of an hour or specification of an intermediate hour of the day. But would not apply where it is specifically stated that limitation is to run from the beginning of a day. The reason for Section 12 is merely to avoid taking into account part of day so that in calculating a year two dates of the same number are not included. This reason does not exist where limitation has to be computed not from a day but from the beginning of a particular day or for that matter from the end of a particular day. I would, therefore, hold that Section 12, Limitation Act will not come into play in computation of limitation under Section 8, Limitation Act and in such cases the first day from the beginning of which the limitation starts does not have to be excluded.

8. It may be added that this approach avoids the distinction between the day of cessation of minority and the day of attainment of majority. This also avoids any conflict between the provisions of Sections 6 to 8, Limitation Act and the illustrations appended thereto, While the sections speak of limitation running from the cessation of minority Illustrations (a) and (c) of Section 6 and illustration (a) of Section 8 state that the person may institute his suit within the given time 'from the date of his attaining majority. In Illustration B of Section 6 the note is that time runs 'from the date when his insanity and minority ceased.' If cessation of minority is taken to have occurred on 23rd and attainment of majority on 24th the conflict between the sections and illustration would become substantial.

9. It remains to consider the cases on the point, cited before me. In Batuk Pra-sad v. Rudra Das : AIR1950Pat206 it was held without much discussion that limitation ran from the completion of the age of 18 years which was assumed to be the cessation of minority. Same position was adopted in Kuntappa v. A. K. Desai (AIR 1973 Mys 50). In both these cases Section 12 was applied to exclude the last day of 18th year. While the result on the actual period of limitation of this new and my approach is the same I am respectfully unable to agree with the reasoning in these cases. In Vatsala Rani v. Selection Committee, (AIR 1967 Mys 135) the question was merely whether a person born on 2nd October had attained 16 years of age on the 1st October preceding the 16th birth day. After citing Halsbury and certain English cases as well as referring to Section 4, Indian Majority Act the Court held that this was so. The precise point in the present case did not arise for decision in that case but it is noticeable that the Bench observed that in Section 4, Indian Majority Act it was expressly provided that a person shall be deemed to have attained majority at the beginning of the 21st or 18th anniversary of the birth day. They went on to state but in the absence of any such express provision we think it is well' settled that the specified age in law has to be computed as having been attained or completed on the day preceding the anniversary of the birth day. This observation fully supports the view taken by me namely that the specified provisions of the Indian Majority Act rules out consideration of 23-4-57 as pertinent to the cessation of minority. I would, therefore, hold differing from the courts below that the suit was time barred.

10. The learned counsel for the appellant has rightly pointed out that this is a case in which a gift-deed was executed by all the three adult members of the family and is being attacked after 20 years by the son of one of the executants who was born only a few months before the gift-deed. Therefore, there is no equity in favour of the plaintiff and the rule of limitation should be rigorously applied.

11. The other three suits to which appeals Nos. 2696, 2697 and 2698 of 1972 relate were ejectment suits filed by Smt. Sushila Devi against the three tenants on the ground of default. In all these cases relationship of the landlord and tenant was challenged by the tenant on the basis of want of title in Sushila Devi. On the finding about Sushila Devi's title the trial court found that there was no relationship of landlord and tenant between the parties. Although it held the notice of ejectment served in the three cases to be valid it did not record any finding on the issue regarding rate of rent and finally dismissed the suit. In view of the reversal of the finding on the issue of title, these cases will have to be sent back for decision, after consideration of the other points involved therein including the matter of wilful default in payment of rent.

12. All the four appeals are, therefore, allowed. Judgments and decrees of the courts below are set aside. Suit No. 12 of 1960 filed by Prem Kumar is dismissed. But the parties are left to bear their own costs of that suit throughout. Suits Nos. 209, 210 and 211 of 1959 are sent back to the trial court for a fresh decision in the light of the decision on the question of title and other observations in this judgment parties in these cases shall be allowed an opportunity to amend their pleadings and lead such further evidence at they may desire. The parties of these suits bear their own costs in the lower appellate court and this Court and the costs of the trial court shall abide the final result.


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