P.N. Mookerjee, J.
1. This appeal raises an interesting question, a question which has not arisen and has not been considered by this Court, strictly speaking, in any of the cases, which have been brought to our notice. There are, however, decisions of other High Courts on this particular point but they are conflicting and that gives an added interest to the said point before us.
2. The suit was brought, on February 18, 1952, by the present appellant for declaration of his title to the suit-lands and recovery of possession of the same from the defendants, or, in the alternative, for cancellation and setting aside of a certain Kobala (Deed of Sale), obtained from his mother by the defendant No. 1, with the consequential relief of possession. Upon the above reliefs, further relief in the shape of mesne profits was also prayed for. The suit was contested by the defendants. The learned trial Judge decreed the suit but, on appeal, it was dismissed, primarily, on the ground of limitation and It is this point of limitation, which is the real and stubbornly contested point before us.
3. The facts, giving rise to the present litigation, lie within a short compass and they may be stated as follows: The suit lands belonged to the plaintiff's father Bibhuti Bhusan Pan, who died in Ashar 1340 B. S., leaving him surviving his widow pro forma defendant No. 9, who was pregnant at the time, and eventually, gave brith to the present plaintiff, as a poshumous child, on 10th Aswin 1340 B. S. During the interval, however, that is, in Bhadra 1340 B. S., several fraudulent and collusive documents were obtained by the defendants from the plaintiffs mother, including a Kobala, dated 9th Bhadra 1340 B. S., in favour of defendant No. 1 in respect of the present suit tends, and they went into possession of the said lands on the basis of the same. The plaintiff attained majority on 10th Aswin 1358 B. S. and, on the 26th following, he demanded back possession from the defendants and, upon their refusal, brought the instant suit on 18th February 1952.
4. In the plaint, various allegations were made against the above Kobala, on which, primarily, the defendants rested their claim of title. It was alleged by the plaintiff that there was no legal necessity for the same, that the said Kobala was vitiated by fraud and mis-representation and, further; that it was without consideration.
5. The defence was a denial of the plaintiff's above allegations, namely, that there was any defect in the Kobala in question, as. alleged by the plaintiff, and a specific assertion that it was a Kobala for legal necessity, that it was also for full and adequate consideration and that it was not affected by any mis-representation or fraud or by any infirmity whatsoever. It was further alleged that the plaintiffs suit was barred by limitation although there was no dispute that the plaintiff was in his mother's womb at the time, when the disputed Kobala came into existence, and that he was actually born on 10th Aswin 1340 B. S., as alleged by him.
6. On the question of legal necessity, both the Courts below have concurrently found against the defendants and that point is thus concluded by the said concurrent finding of fact of the two Courts below against the present respondents.
7. On the question of consideration also, both the Courts badow have agreed that there was consideration for the Kobala in question, although, according to the trial Courts view, the consideration was not adequate. That, however, would not, by itself, be a ground for avoidance of the disputed Kobala, and, in any event, the lower appellate Court's finding that the consideration was adequate must be taken as final.
8. On the question of fraud and mis-representation, at least the Court of appeal below, as the final Court of fact, has found against the plaintiff and in favour of the defendants, and, in this second appeal, that finding has to be accented.
9. On the point of limitation, the two Courts below have differed in the sense that, before the trial Court, this point was not ultimately pressed and, after stating that fact, it recorded a distinct finding in favour of the plaintiff on this part of the case on a prima facie consideration of the materials before it, and held that the suit was not barred by limitation. The lower appellate Court, however, has arrived at the contrary finding upon the view that as, admittedly, the suit had been instituted, prima facie beyond the maximum period of limitation, unless Section 6 of the Indian Limitation Act could be availed of by the plaintiff, and as the said section (section 6) had no application to the instant case in the view of the said learned Judge, the plaintiffs suit must fail on the ground of limitation. Upon this view, the suit was dismissed by the lower appellate Court and, against that decision, primarily, the present appeal has been taken by the plaintiff.
10. So far as mesne profits are concerned, the learned trial Judge gave the plaintiff a preliminary decree for three years prior to the suit and, then, until recovery of possession, directing ascertainment of the actual figure by a Commissioner for purposes of the final decree. This, however, was reversed by the lower appellate Court upon its finding that the plaintiff's suit was barred by limitation and was liable to dismissal, and the plaintiff's cross-objection for a longer period of mesne profits, namely from the date of his birth, extending over a period of more than twelve years, also, necessarily, failed before that Court by reason of its aforesaid decision.
11. The present appeal is by the plaintiff against the lower appellate Court's decree of dismissal of his entire claim, including the claim for mesne profits from in is birth.
12. The crucial point that requires decision in this case is thus one, touching upon, the true scope, interpretation and applicability of the aforesaid Section 6 of the Indian Limitation Act. On the admitted facts that the disputed Kobala was executed sometime in Bhadra 1340 B. S. when the plaintiff was in his mother's womb and had not been actually or physically born, the point arises whether he could be held to be a person in existence in the eye of law, so as to be entitled to the benefits under Section 6 of the Indian Limitation Act. This is a question, on which judicial opinion has differed. !n a series of cases of the Lahore High Court, starting with Muhammad Khan v. Ahmad Khan, AIR 1929 Lah 254 (2) : ILR 10 Lah 713, and continuing up to Madho Ram v. Dharm Singh, AIR 1930 Lah 394 and Firm Chuni Lal-Rali Ram v. Altaf-ul Rahman, AIR 1939 Lah 290, the view has been taken that the theory or fiction that a child in the mother's womb is deemed to be in existence (child en venire sa mere) has no relevancy or application when one is considering the question of applicability of Section 6 of the Indian Limitation Act. On the other hand, the latest view of the Allahabad High Court in the casa of Audhesh Singh v. Rajeswari Singh, : AIR1951All630 , of the Bombay High Court in Basayya Shivabasayya v. Baslingayya Channayya, AIR 1948 Bom 150 and of the Full Bench of the Madras High Court in AIR 1935 Mad 839, Ranganatha Reddi v. Ramaswami Mudali, seem to favour the contrary view. The Privy Council case, reported in Ranodip Singh v. Parmeshwar Pershad , the two earlier Allahabad cases, reported in Sankat Narayan Pande v. Ram Bharos, AIR 1924 All 677 : 79 I. C. 1010, and Sita Ram Singh v. Cheddi Singh, AIR 1924 All 798, the later Andhra Pradesh case, reported in Sreerama Sarma v. Krishnavenamma, AIR 1957 Andh-Pra 434, and the very early Full. Bench decision of this Court, reported in Raja Ram Tewary v. Luchmun Pershad, 8 Suth WR 15, do not really touch the present question but are all distinguishable. None of them was concerned with a child en ventre sa mere or with the application of Section 6 of the Indian Limitation Act to its case and all of them may be safely put aside on that ground. We may point cut further that the later Lahore Full Bench case of Dharu Indar Pal Singh v. Firm Badri Das Sohan Lal, AIR 1943 Lah 281 (FB), which, in the above connection, considers inter alia Section 6 of the Indian Limitation Act, sufficiently explains the underlying reasoning of the above cases, which will support the exclusion of the aforesaid Section 6 in those cases and distinguish them from the present. In the Madras High Court, there was an earlier decision in Venkatarama Ayar v. Mirthinjaya Aiyar, 60 Mad LJ 521 : (AIR 1931 Mad 456), which followed the Lahore view, first above mentioned, but which was, in effect, overruled by the later Full Bench case of that Court in AIR 1935 Mad 839 (supra). In the Andhra Pradesh case of Seshamma v. Venkayya, (S) AIR 1957 Andh-Pra 386 also, there was an expression, of opinion, -- though no more than an obiter dictum, -- somewhat similar to the said Lahore view. On account of this acute divergence of judicial opinion, we decided to consider the matter on principle and our inclination was, even before we had seen the different cases, which support, our point of view, to differ from the above Lahore view and hold that Section 6 of the Indian Limitation Act would apply to the case of a child in the mothar's womb.
13. We put it on the short ground that, in law, a child in the mother's womb is deemed to be in existence, at least for purposes of inheritance, which alone are relevant here, and) has thus a right to challenge any transaction which affects its interest at the time. If so, it has a right of action or a cause of action in respect of the said transaction and is entitled to institute a suit upon the same and, as such a child, as aforesaid, cannot, under the Indian Majority Act, be held to be a major, it must be held to be a minor, that is, a person, suffering from disability, as contemplated in the aforesaid Section 6 of the Indian Limitation Act. This, we may respectfully add, has been rightly pointed out In the above three decisions of the Madras, Bombay and Allahabad High Courts, namely, AIR 1935 Mad 839 (FB) (supra), AIR 1948 Bom 150, and : AIR1951All630 , already cited, and their Lordships have sufficiently demonstrated in those three decisions that there is nothing in the Indian Majority Act or in the Indian Limitation Act either, which conflicts with the view that a child in the mother's womb is a person in existence and is a minor. Indeed, so far as this latter part is concerned, namely, that such a child, if it be a person in existence, must be a minor, the relevant statute (the Indian Majority Act) carries its own confirmation, as, obviously on the terms of Section 3 and/or Section 4 of the said Act, a person is a minor until he attains the relevant age of majority, be it eighteen or twenty-one years, as the case may be, and as, so far as the theory of a child en ventre sa mere is concerned, if it otherwise applies to a particular case, as here, which is a case of inheritance, neither of the above two statutes would exclude it or render it inapplicable.
14. To explain ourselves, we would refer at onceto the aforesaid Sections 3 and 4 of the Indian MajorityAct and to the relevant Sub-section (1) of Section 6 of theIndian Limitation Act. These sections run as follows : Section 3 of the Indian Majority Act :
'*** every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age, shall, notwithstanding anything contained in the Indian Succession Act (X of 1865), or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years, and not before :
Subject as aforesaid, every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years, and not before'.
Section 4 of the Indian Majority Act :
'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 tne beginning of the eighteenth anniversary of that day.'
Section 6(1) of the Indian Limitation Act :
'Where a person entitled to institute a suit .....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 ..... within the same period afterthe disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule.'
15. The quoted Section 3 makes it clear that a minor attains majority on completion of eighteen years generally and twenty-one years in the special cases, mentioned therein, and not before, thus obviously implying and emphasising that a person remains a minor until he attains the relevant age of majority, as aforesaid. A child in the womb, as we have seen above, is deemed to be in existence, at least for purposes of inheritance, with which alone we are here concerned, and there is nothing in the aforesaid Section 3 which militates against the said view or theory of law. Section 4 also which deals with the computation of the age of majority by equating it with the beginning of the eighteenth or the twenty-first anniversary, as the case may be, of the day of birth of the person concerned, does not conflict with the' above theory of a child 'en ventre sa mere'. Birth as the starting point of tha above computation, no doubt, refers to actual birth and the day, on which the person concerned is torn within the meaning of the above Section 4, is, no doubt, the day of his actual birth or the day, on which he is actually born, as, otherwise, the anniversary of that day, be it the eighteenth or the twenty-first, whichever is relevant, will not be determinate or easily determinable in practice, but that would not, necessarily, militate against the child's existence, before actual birth, that is, during its period of gestation, and the fiction of law of its existence during that period, as involved in the theory of a child 'en ventre sa mere', would, in no way be inconsistent with the computation of its age of majority from the day or date of its actual birth. The policy of law to so compute it would only mean that for that particular purpose, that is, for the purpose of determination of its age of majority or its attainment of majority, the computation of age would start from the said particular point of time. Its previous existence, how-ever, that, is, its existence during the period of its gestation, is not nullified or contradicted by the statute, it is not even ignored by it except in the matter or for the purpose of computation of the relevant age of majority. The child in the womb would then be in existence and would thus be a person but would not be one, who has completed any years of age, be it eighteen or twenty-one, or has reached the beginning of either of the two relevant anniversaries, eighteenth or twenty-first, of its day of birth, within the meaning of the statute. It would thus be not a major under the statute and so a minor necessarily, as the statute, obviously, contemplates, as Section 3, by its language, sufficiently shows, that a per-son would be either a major or a minor, if that is so, we have here a minor, who, at the time he was entitled to sue, was suffering from necessary disability and, accordingly, on the terms of the aforesaid Section 6, will be clearly entitled to its benefit.
16. What now, would be the effect of applying the said Section 6 to the instant case? Without expressing ourselves on the exact point of time, when the divesting of the mother, to wit, the widow of the deceased owner, takes place by the birth of a posthumous son, and keeping it open whether such divesting takes place en actual birth, or, at the time, when the child or the son concerned is begotten in the womb, it is perfectly clear that if the latter view be correct, then, upon what we have said above, Section 6 would apply and extend the period of limitation, so far as the posthumous son is concerned, to three years after cessation of his minority or attainment of majority by him, that is, to three years after his completion of 18 years of age, as computed from the date of his actual birth, in view of Section 3 of the Indian Limitation Act. If, on the other hand, the divesting takes place on actual birth, it is only at that point of time, that is, at and from that moment, that the cause of action accrues or the right of suit accrues to the child (son) and, obviously, then, at the relevant time, that is, when the right to sue or to institute the suit accrues, the particular child (son) in question, must be held to be suffering from disability, as contemplated in the aforesaid Section 6, and that section, on its own terms, would clearly apply, so as to attract Section 8 of the Act to extend the period of limitation to an exactly similar point of time. On either view, therefore, Section 6 of the Indian Limitation Act, read with Section 8, would apply to give the present plaintiff three years from his attainment of majority, or, in other words, three yews from his completion of 18 years of age from the date of his actual birth, to wit, three years from the beginning of the eighteenth anniversary of the day, on which he is (actually) born, to institute the present suit. Admittedly, the instant suit was filed within the aforesaid time and, accordingly, it cannot be held to be barred by limitation.
17. In the premises, we would hold, disagreeing with the learned Judge of the Court of appeal below, that the plaintiff's suit is not barred by limitation, and, as, upon the other points, so far as the main or primary relief of title and possession is concerned, the effective findings are all in favour of the plaintiff; he is entitled to a decree in that respect, as given by the learned trial Court.
18. Then comes the question of mesne profits. Upon our above findings, the plaintiff is, obviously, entitled to mesne profits and the lower Appellate Court's decision to the contrary is wrong and it must be overruled. The point, however, still remains, as to the period, for which mesne profits are to be allowed. That he (the plaintiff) will be entitled to mesne profits upto the data of recovery of possession cannot be seriously questioned. What, however, will be tha starting point of the period of mesne profits? The learned trial Judge gave the plaintiff a decree from a point of time, three years prior to the suit. The plaintiff's claim was from an earlier joint of time, namely, from his birth. That was also his cross-objection before the lower Appellate Court and that is his claim before us. Prima facie, this contention has some force, inasmuch as, if Section 6 of the Indian Limitation Act is available, to him, as held above by us, it will apply to his suit, be it in respect of title or possession or mesne profits. In the instant case, however, the plaintiff is under one disadvantage, in the plaint, the claim for mesne profits was made on the footing that the disputed Kobala was voidable at the instance of the plaintiff and he made the demand for possession only a few months before the suit. It also appears, as found by the Court of appeal below, that the defendant or defendants concerned paid good money or consideration for their purchase and the facts before us do not Indicate that the plaintiff derived no benefit from that money. In the circumstances, we think that justice would be done by giving the plaintiff a decree for mesne profits from three years before the suit up to the date of his recovery of possession, as given by the learned trial Judge. In holding as above, we have not overlooked thai decision of the Supreme Court in Mummareddi Nagi Reddi v. Durairaja Naidu, : 2SCR655 , to which our attention was drawn by Mr. Janah and which holds that there is no law, which lays down that a claim of mesne profits cannot be made except where the transaction in question is absolutely void, and sustained a reversioner's claim for mesne profits against an alienee from a Hindu widow, when there was no justifying cause for the particular alienation, from the date of the widow's death. We do not think, however, that that decision has any application to the present case and, moreover, even apart from anything else, we feel that, in the special facts and circumstances before us, to which we have specifically referred hereinbefore, we would be fully justified in limiting the period of mesne profits to three years before suit. In the premises, we would give the plaintiff-appellant mesne profits only to the extent, granted to him by the learned trial Court, and restore and affirm its decree in that respect too.
19. The appeal, accordingly, succeeds and it is allowed, as indicated hereinbefore. The judgment and decree of the learned Court of appeal below will be set aside and those of the learned trial Judge will be restored subject to this that, In the circumstances of this case and having regard to the manifest uncertainty of the law on the point of limitation, involved herein, In view of the divergence of judicial opinon, noticed above, and also the absence of an authoritative decision, or, of any relevant decision whatsoever, on the said point, so far is this Court Is concerned, the parties will bear their own costs throughout