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Lalchand Dhanalal Vs. Dharamchand and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 560 of 1960
Judge
Reported inAIR1965MP102
ActsLimitation Act, 1908 - Sections 3, 4 to 25; Hindu Women's Right to Property Act, 1940; Gwalior Limitation Act - Sections 6(1); Stamp Act, 1899 - Sections 36; Code of Civil Procedure (CPC) , 1908 - Sections 100-101
AppellantLalchand Dhanalal
RespondentDharamchand and ors.
Appellant AdvocateD.C. Bharuch and ;S.R. Joshi, Advs.
Respondent AdvocateH.K. Maheshwari, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredMaqbul Ahmad v. Onkar Pratap Narain Singh
Excerpt:
.....for consideration that really arises is whether the adopted son who sues subsequently is suing on the same cause of action or on a subsequent cause of action accruing in his favour subsequent to the adoption. clearly laid down that a right of an adopted son would accrue upon his adoption when he would be considered to be born. in the present case, the cause of action was failure of the debtor to pay money on loan......it is clear that it is only the person under disability who must suffer from the disability at the time limitation starts running. any subsequent disability in favour of a person in whom the right of suit does not vest at the starting time would not extend the period of limitation in any manner. their lordships definitely laid down that the fact of assignment did not have the effect of a fresh cause of action accruing. in fact, the cause of action accrued during the life time of the administratrix; and by virtue of section 9 of the limitation act, if limitation once starts running, it cannot be arrested by any subsequent disability.16. however, the learned counsel for the respondent urged that a distinction has to be drawn between the cases referred to above and the cases of an adoption.....
Judgment:

P.K. Tare, J.

1. This appeal is by the plaintiff against the decree, dated 31-8-1960, passed by Shri D. P. Vohra, Additional District Judge, Dewas, in Civil Appeal No. 121 of 1959, reversing the decree, dated 29-9-1959, passed by Shri A. K. Sen, Civil Judge, Class I, Dewas in Civil Suit No. 418 of 1954.

2. There was a shop known as 'Hemraj Dharmalal', which was owned by Dhannalal. He died some time in June 1940 leaving behind his widow, Mst. Sunderbai and his predeceased son, Sohanlal's widow, Mst. Rambhabai. Mst. Sunderbai died some time in November or December, 1945. Before her death, she had adopted the present appellant, Lalchand as a son to her deceased husband by a deed, dated 3-7-1945. Subsequently, the third respondent, Mst. Rambhabai also adopted another son, Mahendrakumar (respondent 2). However, we are not concerned with the adoption made by Mst. Rambhabai, widow of Sohanlal. The appellant's adoption was the subject matter of a former decision of the Madhya Bharat High Court consisting of M. V. Bhide C. J. and Rege J. to First Appeal No. 27 of 1944, dated 17-9-1946. wherein the learned Judges upheld the factum and the validity of the adoption of Lalchand.

3. The first respondent was also carrying on business under the name of 'Dharamchand Dhannalal', which had dealings with the appellant's firm 'Hemraj Dhannalal. On account of such transactions, an amount was due from the first respondent to the appellant's firm. The first respondent, after settling accounts, acknowledged his liability in writing on 16-11-1944 (Ex. D-3) in the account books of the appellant's firm. When this acknowledgment (Ex. D-3) was made by the first respondent, the appellant bad not been adopted and Mst Sunderbai, the appellant's adoptive mother was alive.

4. The appellant filed the present suit on 17-12-1954 on the basis of the accounts as settled. It was alleged that the appellant was born on 18-12-1933. As such, he became a major on 18-12-1981. Therefore, the suit was within time, as the period of limitation was extended by virtue of Section 6 of the Limitation Act, as also by the acknowledgment, dated 16-11-1944.

5. The first respondent's defence was that the appellant's date of birth was not 18-12-1938, but 1-1-1932. Therefore, the suit was barred by time, as it was not filed within 3 years of the plaintiff attaining majority. It was farther pleaded that on 16-11-1944 that is, the date of acknowledgment, the defendant himself was a minor and, therefore, the acknowledgment made by a minor was void.

6. On the pleadings of the parties the trial Judge framed the following issues:

Issues

Findings

(1) Whether on Kartik Sudi1, Samvat 2001 after settling his previous accounts at the plaintiff'sHatpiplya Shop the defendant stack the balance of Rs. 5139-2-0 and signed theentry?.......Plaintiff.

Affirmative.

(ii) Whether the defendant No. 1 was minor on KartikSudi 1 Samvat 2001? If so, what is its effect?.... plaintiff.

Negative.

(iii) Whether the accounts of the debits and creditsstanding in the defendant No. 1's name from the years 2002 to 2011 wereannually adjusted at the shop of the plaintiff and thereupon on Kartik Sudi1, 2011 a sum of Rs. 3679-13-0 has been found (sic) against the defendant?.... .... .... Plaintiff.

Affirmative.

(iv) Whether Sundarbai wife of Dhannalal adopted theplaintiff on 3-7-1945 and Rambhabai wife of Sohanlal adopted defendant No. 2(Mahendrakumar) on 1-9-57? .... .... Plaintiff.

Affirmative.

(v) Whether the plaintiff attamed majority on 18-12-1951and whether the suit is within time? ...... . . . . ..... Plaintiff.

Affirmative.

(vi) Relief..

Suit decreed.'

The trial Judge found all issues in favour of the plaintiff and, therefore, decreed his claim. On the other hand, the learned appellate Judge affirmed the findings of the trial Judge on issues 1, 3 and 4; but found against him on issues 2 and 5. In that view of the case, the plaintiff's suit was dismissed. 7. The learned counsel for the appellant challenged the findings of the learned appellate Judge on issues 2 and 5 and also raised two other questions, which had been wrongly decided by the learned appellate Judge. The other question relates to the admissibility of the acknowledgment in evidence. The learned appellate Judge held that acknowledgment (Ex. D. 3) was inadmissible in evidence for want of stamp duly. Therefore, the plaintiff was not entitled to an extended period of limitation by virtue of Section 19 of the Limitation Act. It also appears that the learned Judges of the Courts below, as also the parties took it for granted that if the plaintiff was able to establish his date of birth as 18-12-1933, he would be entitled to the benefit of Section 6 of the Limitation Act. However, in this Court the learned counsel for the first respondent pointedly argued this question contending that Section 6 was not at all attracted. Therefore, this question also will have to be considered, which goes to the root of the case.

8. In my opinion, it is not necessary to consider the two questions decided by the learned appellate Judge with reference to the dates of births of the appellant and the first respondent as contained in issues 2 and 5 referred to above; as in my opinion, apart from the fact that the said findings are findings of fact, the case is conclusively decided by the decision of the question as to the applicability of Section 6 of the Limitation Act.

9. As regards the acknowledgment (Ex. D. 3), the learned Judge of the trial Court had wrongly admitted it in evidence. The same was inadmissible in evidence for want of proper stamp duty. Therefore, unless the document were to be made admissible in evidence, the trial Judge clearly acted erroneously in considering the same. However, even though it might have been wrongly admitted in evidence, the matter was not open to a challenge at the appellate stage by virtue of Section 36 of the Stamp Act, as laid down by Their Lordships of the Supreme Court in V. E. A. Annamalai Chettiar v. Veerappa Chettiar, (S) AIR 1956 SC 12, Therefore, the contention of the learned counsel for the appellant on this point is correct. The learned appellate Judge could not have ruled out this document (Ex. D. 3) from consideration on the wrong premises.

10. However, even that will not help the case of the appellant. I have already indicated that it is not necessary to consider the questions contained in issues 2 and 5. It was wrongly assumed by all concerned in the Courts below that Section 6 of the Limitation Act was attracted merely upon proof of the appellant's date of birth as 18-12-1933. Even if it were to be assumed that that might be dale of his birth, Section 6 of Limitation Act, in my opinion, is not attracted for the simple reason that the present case Joes not come within the ambit of the wording of the said section.

11. To analyse the facts in their proper perspective, it is to be remembered that the cause of action for the suit accrued before the acknowledgment (Ex. D. 3). But limitation was extended by virtue of Section 19 of the Limitation Act so that the starting point of limitation was for all purposes the dale of the acknowledgment, namely, 16-11-1944. At that time the appellant had not been adopted. His adoption was subsequent. The right of suit vested in Mst. Sunderbai, the appellant's adoptive mother. She was not under any disability, Limitation for filing a suit under the Qanoon Miyad Sama-at, Riyasat Gwalior, Samvat, 1971, started from that date. The counsel for both the parties are agreed that Hatpipliya was previously a part of the Gwalior State. Therefore, at the time the cause of action accrued, the person in whom the right of suit vested, had 6 years' limitation under Article 19 of Schedule 1 of the Gwalior Limitation Act, known as Qanoon Miyad Sama-at, Riyasat Gwalior Samvat 1971. Therefore, according to the said provision, the limitation would expire on 16-11-1950.

At present, we are not concerned with the fad whether the subsequent application of the provisions of Section 4(2) of the Indian Limitation Act Angikaran Vidhan, Samvat 2006, has any effect on this case. At that time Section 6 of the Gwalior Limitation Act wai in force, which was on lines similar to the provisions of Section 8 of the Indian Limitation Act Sub-section (1) of Section 6 of the s&iA; Act was In the following terms:

^^ vxj dksbZ 'k[l tks eqLrkgd ukfy'k djus;k nj[okLr gtjk fMh xqtjkuus dk gS] ml oDr tcls fd fe;kn lek;r 'kq: dh tkuhpkfg;s cctg ukokfyx ;k etuwu ;k Qkkfr:y&vDy; gksus ds] ukdkfcy gks rks mldhtk;t gS fd ckn [kRe gks tkus otg ukdkfcfy;r ds ukfy'k mlh fe;kn ds vUnj nk;jdjsa ;k nj[okLr ns rks njlwjr u gksus fdlh otg ekdkfcfy;r ds ml oDr ls] tkstehus eqUlfydk ds [kkus uEcj esa mlds fy;s fn;k gqvk gS] mldks ehyrh-**

It is pertinent to note that Section 6(1) in terms is applicable when the plaintiff in whom the right of suit vests is under a disability on the date of the stalling point of limitation. In this case the starting point of limitation was the next date of the acknowledgment, that is, 17-11-1944. The right of suit vested in Mst. Sunderbai. Therefore, limitation started running from 17-11-1944. Subsequently the appellant was adopted on 3-7-1945. Any subsequent disalibility of an after-born son will not arrest the running of limitation as provided by Section 9 of the Limitation Act, which is as follows:

'Where once time has begun to run, no subsequent, disability or inability to sue stops it:

Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues.'

12. Further on, Section 6, Sub-section (1) of the Limitation Act is in the following terms:

'Where a person entitled to institute a suit or 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 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'

13. The essential requisites for the applicability of the said provision is that a person entitled to institute a suit should be under a disability of the lime from which the period of limitation starts. Unless these two conditions are fulfilled, Section 6(1) in terms is inapplicable. In the present case, the appellant was not a person entitled to institute a suit on the date when the starting point of limitation was to be computed. His position would be that of a subsequently born son. The right of suit vested in Mst. Sunderbai on that date. The period of limitation already started running from 17-11-1944, when the appellant had no right of suit and, therefore, it could not be said that a person entitled to sue was under any disability on that date.

14. It is absolutely necessary for the applicability of Section 6 of the Limitation Act that the minor, in whom the right of suit might vest, must be in existence on the date when the limitation starts running according. to column 3 of any particular Article in the schedule of the Indian Limitation Act, as laid down by Their Lordships of the Privy Council in Ranodip Singh v. Parmeshwar Prasad, 52 Ind App 69: (AIR 1925 PC 33).

15. Similarly, in The General Accident Fire and Life Assurance Corporation, Ltd. v. Janmahomed Abdul Rahim, 67 Ind App 416; (AIR 1941 PC 6), Their Lordships of the Privy Council laid clown that a suit by an assignee of a bond against sureties who executed the bond with the administratrix of an estate which was filed more than 3 years after the death of the administratrix would be barred by limitation, for the breaking of the conditions of the bond must have taken place during her life time. Therefore, it is clear that it is only the person under disability who must suffer from the disability at the time limitation starts running. Any subsequent disability in favour of a person in whom the right of suit does not vest at the starting time would not extend the period of limitation in any manner. Their Lordships definitely laid down that the fact of assignment did not have the effect of a fresh cause of action accruing. In fact, the cause of action accrued during the life time of the administratrix; and by virtue of Section 9 of the Limitation Act, if limitation once starts running, it cannot be arrested by any subsequent disability.

16. However, the learned counsel for the respondent urged that a distinction has to be drawn between the cases referred to above and the cases of an adoption where ihe adopted son claims the property in his awn right. He is in no sense a representative of the adoptive mother, who is wiped out from the scene on account of the adoption and all rights vest in the adopted son with effect from the date of the adoption. In support of this contention, the learned counsel invited attention to the case of Prabhakar v. Chandrakant, 1LR (19-13) Nag 422: (AIR 1943 Nag 178), decided by a Division Bench consisting of Grille, C.J. and Puranik, J., wherein the learned Judges, referring to the several eases including the Privy Council eases of Basu Kuar v. Dhum Singh, ILR 11 All 47 (PC), Nrityamoni Dassi v. Lakhan Chandm, 1LR 43 Cal 660: (AIR 1910 PC 96) and Mt. Ranee Sumo Moyce v. Shooshee Mokhee Burmonia, 12 Moo Ind App 214 (PC), held that Section 9 of the Limitation Act cannot apply to cases where the cause of action is cancelled by subsequent event. Therefore, it would be necessary to see as to what the cause of action is in a particular case and whether it is cancelled by any subsequent event. So far as a limited owner like a mother is concerned, if the cause of action arises in her favour and subsequent to the accrual to the cause of action, she makes an adoption thereby divesting herself of interest in the property and vesting of interest in the adopted son, the question for consideration that really arises is whether the adopted son who sues subsequently is suing on the same cause of action or on a subsequent cause of action accruing in his favour subsequent to the adoption. The adoption in the present case was made on 3-7-1945. The family of the appellant has been resident of the former Holkar State, where the Indore Hindu Women's Right to Property Act, 1940 was in force. By virtue of the said Act, Mst. Sunderbai got the same interest in her husband's property as the adopted son. Therefore, for her interest, she was not required to depend on the general Hindu Law as a mother, she was not divested of her interest altogether. She got her husband's property as a widow, along with her adopted son, On account of this, the right of suit vested not only in her, but also in the adopted son and it cannot be stated that pursuant to the adoption, she was divested of all interest in the property. Such divesting would have occurred, had Mst. Sunderbai not been entitled to her husband's interest by virtue of Section 8 of the Indore Hindu Women's Right to Property Act, 1940. Therefore, we have to judge the present case in the light of these facts.

17. Coming to the next question as to what a cause of action is, Their Lordships of the Privy Council in Mohammad Khalil Khan v. Mahbub All Mian,' 75 Ind App 121: (AIR 1949 PC 78), while considering the same or distinct causes of action for the purposes of Order 2, Rule 2, Civil Procedure Code observed as follows:

'(i) The correct test in cases falling under Order 2, Rule 2, is 'whether the claim in the new suit is In fact founded upon a cause of action distinct from that which was the foundation for former suit', Moonshee Buzloor Ruheem v. Shumsheroonnissa Begum, 11 Moo Ind App 551: 2 Sar 259.

(ii) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment Read v. Brown, (1888) 22 QBD 128.

(iii) If the evidence to support the two claims is different, then the causes of action are also different. Brunsden v. Humphrey, (1884) 14 QBD 141.

(iv) The causes of action in the two suits may be considered to be the same if in substance they are identical. (1884) 14 QBD 141.

(v) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour, Must, Chandkoer v. Partab Singb, 15 Ind App 156: ILR 16 Cal 98 (PC). This observation was made by Lord Walson in a case under Section 43 of the Act of 1882 (corresponding to Order 2, Rule 2), where plaintiff made various claims in the same suit.' Therefore, in the light of the principles laid down by Their Lordships of the Privy Council it has to be seen in the present case whether the adopted son's suit is based on a different cause of action arising in his favour or on the same cause of action which accrued in his adoptive mother's favour and regarding which he might claim extension of time by virtue of Section 6(1) of the Limitation Act. The effect of Section 9 of the Limitation Act coupled with Section 3 of the same has to be considered.

18. The learned counsel for the appellant invited attention to the case of Hari Vithal v. Waman Hari, 2 Bom LR 411, wherein Jenkins, C.J. and Candy, J. had to consider the case of an alienation by a widow and subsequent adoption by her with reference to the right of the adopted son to challenge the alienation and the adverse possession claimed by the alienee. There can be no doubt that any adverse possession, as against a limited owner will not be adverse possession as against the reversioner or the adopted son, for the simple reason that the adverse possession prescribed against the limited owner would be of a limited nature and the right of the adopted son being in full ownership, adverse possession as against him will start only from the date of the adoption, and not earlier. Similarly the reversioner not being entitled to possession during the life time of the widow, any adverse possession of a limited Interest will not affect the right of the reversioner to claim possession when he becomes entitled to It. In such a case there is no doubt that the rights of the adopted son accrue after his adoption.

19. To the same effect was the view expressed by a Division Bench of the Calcutta High Court consisting of Harington and Mookerjee, JJ. in Harek Chand v. Bijoy Chand, 2 Cal LJ 87. Sir Asutosh Mookerjee, J. clearly laid down that a right of an adopted son would accrue upon his adoption when he would be considered to be born. It is true that an adopted son does not derive his right from the adoptive mother, but in his own right and any adverse possession against the adoptive mother cannot constitute adverse possession against the full owner. So far as this proposition is concerned, there can be no doubt about it. But, in my opinion, cases where an adopted son sues on a cause of action accruing in favour of his adoptive mother have to be distinguished from cases where a cause of action may accrue in favour of the adopted son in his own right. So far as possession of property is concerned, the fact that there might have been adverse possession of a stranger against the limited owner will not bar a suit by the adopted son, who can claim possession in his own right. The cause of action accruing in his favour will certainly be a distinct and separate one, which is not In any sense based on the cause of action accruing in favour of his adoptive mother But we have to consider the position where a cause of action has already accrued In favour of the previous male owner or the previous limited owner and the adopted son wants to bass his suit on that cause of action.

So far as an earlier cause of action accruing In favour of a male owner is concerned, the view it unanimous that the adopted son cannot take advantage of Section 6(1) of the Act, as the cause of action having accrued earlier when the adopted son was not in existence, he would be bound by the same period of limitation as was applicable to the previous male owner, that is, his predecessor. But, we have to consider a case where a cause of action accrued in favour of a limited owner, who adopts a son subsequent to the accrual of cause of action and who is either partly or wholly divested of her interest in the family property. Can it be said that a fresh cause of action accrues in favour of the adopted son by virtue of action than the one that accrued to his adoptive mother (sic).

20. Here the question whether the adopted son is suing on the same cause of action or on different cause of action becomes very material. Beaumount C. J. In Annu Bajaba v. Dadu Tukaram, AIR 1941 Bom 197, had to consider the question In a slightly different form. In that case the widow had made alienations of family property in the years 1901 & 1904. She adopted a son who died as a major in the year 1918. Subsequently she adopted another son, namely, the plaintiff in the year 1984, who after his adoption, challenged the alienations made by her. The learned Chief Justice held that since the right of the first adopted ion had already become barred by time, the second adopted son could not challenge the alienations. This was a case where the cause of action had accrued in favour of an earlier full owner. But, in my opinion, the observations of the learned Chief Justice with reference to Sections 6, 7, 8 and 9 of the Limitation Act are useful to indicate that the second adopted son did not get any fresh cause of action. If he was suing on the same old cause of action, he would be bound by the period of limitation applicable to the previous owner.

21. So far as a case is concerned where the previous' owner has a limited interest, the position, in my 'opinion, is not at all changed because the cause of action is the earlier one which had accrued in favour of the limited owner. In the present case, the cause of action was failure of the debtor to pay money on loan. This cause of action accrued in favour of Mst, Sunderbai, and it was extended by virtue of the acknowledgment, dated 16-11-1944. At that time the present appellant had not been adopted. His birth will be deemed to have taken place on 3-7-1945, as per the observations of Sir Asutosh Mookerjee J. In 2 Cal LJ 87 (supra), his suit is essentially based on the previous cause of action accruing in favour of the limited owner. What the plaintiff in the present case wants is that the period of limitation for the cause of action accruing in favour of Mst. Sunderbai should be held to have been extended in his favour by virtue of Section 6 of the Limitation Act. Therefore, there can be no doubt that on account of the appellant's adoption, he does not get any fresh cause of action, but his suit Is based on the same old cause of action for which he claims an extended period of Limitation Act. It is clear that Section 9 of the Limitation Act would come in his way, with the result that Section 6(1) of the Limitation Act cannot be availed of by him.

It is pertinent to note that in the first instance a person entitled to institute a suit must suffer from disability at the time from which the period of limitation is to be reckoned. Therefore, if the suit be based on the earlier cause of action, the plaintiff was neither born, nor was a person said to be suffering from a disability. It is for this reason that Section 6(1) of the Act becomes inapplicable to the present case. Any subsequent disability on his part will not stop the running of limitation. Consequently, he will be governed by the same period of limitation as the earlier limited owner, The fact that he might have got the property in his own right, and not as a representative of the limited owner will not help him, if his suit is based on the same old cause of action, However, the same consideration will not be applicable, if he has an independent cause of action, such as, claiming possession of the property against the transferee or a trespasser. In my opinion, the observations of Their Lordships of the Privy Council in 52 ind App 69: (AIR 1925 PC 33) (supra) and 67 ind App 416: (AIR 1941 PC 6) (supra), would conclude the matter against the plaintiff.

22. The cause of action not having accrued subsequent to the adoption, nor the acknowledgment having been made subsequent to the adoption, I am of opinion that Section 6(1) of the Limitation Act is not at all attracted. Had even an acknowledgment been made subsequent to the adoption, I might have been inclined to follow the dictum laid down by Their Lordships of the Supreme Court in Hiralal v. Badkulal, AIR 1953 SC 225, in holding that the acknowledgment furnished a fresh cause of action for the plaintiff to file a suit, in which case Section 6(1) of the Limitation Act would undoubtedly have been attracted.

23. The suit was liable to be dismissed as barred by time on the short ground that Section 6 of the Limitation Act was inapplicable. That is the position that emerges out. Therefore, in spite of the fact that this question was not pointedly raised, not specifically considered by the Courts below in its proper perspective will not preclude this Court from considering the same. If the said section is inapplicable, the provisions of Section 3 of the Limitation Act are attracted, with the result that the Court is bound to dismiss a suit, which on the face of it, appears to be barred by time. The provisions of Section 3 of the Limitation Act are mandatory, as laid down by Their Lordships of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, 62 ind App 80: (AIR 1935 PC 85). As a result, this appeal fails on this ground alone, and consideration of the other questions becomes wholly unnecessary apart from the fact that these are findings of fact, which cannot be challenged at the second appellate stage in the absence of an illegality, or a misapprehension on the part of the Courts below, or the conclusion being found to be such as would be incompatible with the material on record.

24. Consequently, this appeal fails and is dismissed with costs. Counsel's fee in this Courtaccording to schedule or certificate, whichever beless. The costs of the Courts below shall be borneas directed by the first appellate Court.


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