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Venkatarama Aiyar Vs. Mirthinjaya Aiyar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtChennai
Decided On
Reported inAIR1931Mad456; (1931)60MLJ521
AppellantVenkatarama Aiyar
RespondentMirthinjaya Aiyar and anr.
Cases ReferredChokhey Singh v. Hardeo Singh
Excerpt:
- - 838 it was held by the lahore high court that the principle of law is perfectly clear that a plaintiff cannot take advantage of the exemption (provided in section 6 of the limitation act) unless he is a minor and in existence at the time when the right to sue accrues and that a minor is not entitled to the benefit of the provisions of section 6 in respect of a right to sue which accrued before his birth......126. on 26th june, 1901, when the alienee took possession of the property the appellant was in his mother's womb and was not born. he was born only on 18th august, 1901. section 6 (1) of the limitation act provides thatwhere 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.3. on behalf of the appellant it is argued that he is entitled to claim the benefit of section 6 of the limitation act and that the plaintiff, though he was not born on 26th june, 1901, should be deemed to be a minor at that date as he was in his mother's.....
Judgment:

Madhavan Nair, J.

1. The plaintiff is the appellant. The only question of law for decision in this Second Appeal is, whether the plaintiff's suit to set aside the alienation made by his father of 45 cents of land included in the sale-deed, Ex. C, is barred by limitation under Article 126 of the Limitation Act.

2. Both the Lower Courts have found that the alienation was not supported by necessity and this finding has not been questioned before me. Article 126 of the Limitation Act provides 12 years as the period of limitation for a suit by a Hindu governed by the law of the Mitakshara to set aside his father's alienation of ancestral property. The starting point of limitation is the date 'when the alienee takes, possession of the property.' The alienation was made on 26th June, 1901, and it is admitted that the alienee took possession of the property on the same date. The suit having been brought only on 16th August, 1922, that is, more than 21 years after the date of taking possession by the alienee, prima facie is barred by limitation under Article 126. On 26th June, 1901, when the alienee took possession of the property the appellant was in his mother's womb and was not born. He was born only on 18th August, 1901. Section 6 (1) of the Limitation Act provides that

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.

3. On behalf of the appellant it is argued that he is entitled to claim the benefit of Section 6 of the Limitation Act and that the plaintiff, though he was not born on 26th June, 1901, should be deemed to be a minor at that date as he was in his mother's womb and that the period of limitation should be reckoned from the date of his birth, 18th August, 1901. If this is permissible, then the suit will be within time having been instituted two days before the lapse of time. The appellant's argument is based on the ground that a child in the mother's womb is supposed to be born for certain purposes such as for partition and the making of a will, etc. He argues why should not, on the same reasoning, a child in the mother's womb be regarded as a minor for purposes of Section 6 of the Limitation Act On the other hand, the respondents argue that the term 'minor' used in Section 6 can be understood only with reference to persons physically in existence and that it is meaningless to apply it with respect to an unborn being in the womb. The question is whether the plaintiff who was born on 18th August, 1901, should be deemed to be a minor on 26th June, 1901, when the alienee took possession of the property.

4. This question has not arisen for decision in this Court. In the Punjab Chief Court, the Lahore High Court and the Allahabad High Court the view of Section 6 suggested on behalf of the appellant has not been accepted. In Kehar Singh v. Hazra Singh (1912) 14 L.C. 60 it was held by Chevis, J., of the Punjab Chief Court, that Section 6 of the Limitation Act does not apply to the case of a son who is born subsequent to the alienation objected to land the minority begins at birth and not at conception. In Mwan Ditta v. Behari Lal (1920) 54 I.C. 838 it was held by the Lahore High Court that

the principle of law is perfectly clear that a plaintiff cannot take advantage of the exemption (provided in Section 6 of the Limitation Act) unless he is a minor and in existence at the time when the right to sue accrues and that a minor is not entitled to the benefit of the provisions of Section 6 in respect of a right to sue which accrued before his birth.

5. In Muhammad Khan v. Ahmad Khan I.L.R. (1928) Lah. 713 the same proposition was again affirmed. The judgment of the learned Chief Justice in this case is very instructive as it deals with the special reasoning on which the appellant's argument is based. He observes thus:

We are aware of the legal fiction by which a child, in the mother's womb is supposed to be born for certain purposes, but the learned Counsel for the appellant has not been able to invite our attention to any authority in support of his argument that this fiction governs the rule laid down by the statute. 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 17 years and a few months old, though he would be a minor at that time for all other purposes.'

'There can be little doubt that a person cannot be held to be a minor until he is born. This proposition is so obvious that it does not require any authority, but 1 find that the matter is by no means res Integra.

6. He then refers to the decision in Miran Ditta v. Behari Lal (1920) 54 I.C. 838 and Kehar Singh v. Hasara Singh (1912) 14 L.C. 60. To the same effect are also the decisions of the Allahabad High Court. See Sankar Narain Pande v. Ram Bharos (1924) 79 I.C. 1010 and Dhanraj Rai v. Ram Naresh Rai (1924) 79 I.C. 1019; and the Oudh Chief Court has also taken a similar view in Chokhey Singh v. Hardeo Singh (1921) 64 I.C. 757. Having regard to the express language of Section 6 of the Limitation Act which in terms refers to a 'minor' I do not think that any other view is possible. In my opinion a person cannot be held to be a minor until he is born. Section 3 of the Indian Majority Act of 1875 relied on by the appellant which states that.Subject as aforesaid, every other 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.

does not in any way help us in deciding this question. Following the decisions referred to above, I hold that the appellant could not be said to have been a minor at the time of the sale though he was in his mother's womb at that time.

7. The rest of the case deals, with only questions of fact.

8. In the result, the second appeal fails and is dismissed with costs.


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