Horace Owen Compton Beasley, Kt., C.J.
1. The question under reference arises out of a suit by a son to set aside various alienations by his father. One of the alienations sought to be set aside was effected on 12th August, 1902 and the other on 5th June, 1902. The Subordinate Judge found that the plaintiff was born on 31st December, 1902 and was therefore a child en ventre sa mere at the time of the alienations. The suit was filed in forma pauperis on the day before the three years' period of limitation from the date of the plaintiff's attaining majority had expired. The question that arose in the lower Court and arises before us is whether Section 6 of the Limitation Act can be taken advantage of by the plaintiff. The Subordinate Judge dismissed the suit as barred by limitation relying on Muhammad Khan v. Ahmad Khan I.L.R.(1928) 10 Lah. 713. The learned Chief Justice of the Punjab High Court expressed the opinion that, if a person is not in existence, he cannot well be described as a minor. But Hindu Law does recognise that in certain cases a child in the womb of his mother should be regarded as a person in existence Sabapathi v. Somasundaram < : (1892)2MLJ244 and Deo Narain Singh v. Ganga Singh I.L.R.(1914) 37 All. 162. That being recognised, it is difficult to see why he should not have the benefit of Section 6 of the Limitation Act as the Indian Majority Act says that a person becomes a major after the lapse of 18 years after his birth and is until that time a minor. 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. The view that an infant en ventre sa mere is for certain purposes a person in existence is not peculiar to the Hindu Law as our learned brother Ramesam, J. correctly points out in his order of reference in which he refers to some English decisions, namely, In re Wilmer's Trusts. Moore v. Wingfield (1903) 2 Ch. D. 411 and Villar v. Gilbey (1907) A.C. 139. In addition to these, we were referred to Scho field v. Orrell Colliery Co., Limited (1909) 1 K.B.D. 178 where the Court of Appeal held that a posthumus illegitimate child of a workman may be a dependant within the Workmen's Compensation Act, 1906. There, the workman was killed by an accident arising out of and in the course of his employment some months before the birth of an illegitimate child, the paternity of which he admitted, and it was proved that he was engaged to be married to the mother and intended to provide for the maintenance of the child, and the accident occurred very shortly before the date fixed for the solemnization of the marriage. In the course of the judgment reference was made by Cozens-Hardy M. R. to Williams v. The Ocean Coal Co., Ltd. (1907) 2 K.B. 422 and on page 181 he says in speaking of that decision:
The view of the Court was that the posthumus child had an independent right of its own, the principle being that a child en ventre sa mere is to be deemed to be born so far as is necessary for the benefit of that unborn child.
2. This was also the view expressed by the House of Lords in Villar v. Gilbey (1907) A.C. 139 to which reference has already been made. Another case cited was Athey v. Pickerings, Ltd. 96 L.J.K.B.D. 250 another case under the Workmen's Compensation Act, in which the facts were identical with those in Schofield v. Orrell Colliery Co., Limited (1909) 1 K.B.D. 178 except that the posthumus child was a legitimate one. The child was held to be entitled to a sum calculated by taking 15 per cent, of 2 a week over a period from the death of the workman to the date when the child in fact would attain the age of fifteen which under the Act was the terminus ad quern which, in the case of this posthumus child, was some ten weeks more than fifteen years, the terminus a quo being the date of the death of the wrokman. Lawrence, L.J., in his judgment on page 253 says:
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 that child attains its age of 21, 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 fiction into the actual facts of the ascertainment of the age of that child.
3. This disposes of Shadi Lal, C.J.'s objection in Muhammad Khan v. Ahmed Khan I.L.R.(1928) 10 Lah. 713 where he states that there can be little doubt that a person cannot be held to be a minor until he is born. He therefore considers that if a child in embryo is deemed to be a minor in existence on the date of the conception, the period of eighteen years' minority, which would determine the disability, would run from that date. In my view, therefore, Section 6 of the Limitation Act can be taken advantage of by the plaintiff. The case must, therefore, be sent back to the Referring Court to be disposed of in accordance with this answer. The costs of the reference will be costs in the appeal.
4. I agree.
5. I agree.