Evidence for determining the date of birth must be sufficient to carry a reasonable conviction. An appellate court cannot adopt a factual conclusion based on a suggestion by counsel without supporting evidence on record.

Judgement

Appeal from a decree of the Judicial Commissioner (September 28, 1900), reversing a decree of the Subordinate Judge of Lucknow (October 13, 1898).

The Subordinate Judges judgment contained the following —

" The plaintiff claims a share in the estate of her father, Darogha Mir Wajid Ali, who died on December 14, 1876, when the plaintiff was a minor. The ordinary period of limitation, computing from the original cause of action, expired during her minority. She claims exception from that period under the last paragraph of s. 7 of the Indian Limitation Act XV. of 1877, by virtue of which she can sue within three years from the cessation of her disability as a minor. Under the Indian Majority Act IX. of 1875, s. 3, paragraph 1, she would be deemed to have attained her age of majority on the completion of her twenty-first year."

On the evidence he found that the plaintiff was born sometime at the close of 1871, and attained the age of majority at the end of 1892. The suit was brought in August, 1896, i.e., after three years from her majority, and therefore was barred.

The Court of the Judicial Commissioner said — " As to the date of the plaintiffs birth and the date on which she attained her majority, it is now urged that in drafting the. plaint, the 1st Zikada, 1289 Hijri, was by mistake inserted for the 1st Zikada, 1290 Hijri, which corresponds to December 22, 1878, the fact that there were two months of Zikada in that year having been overlooked. It is said that the plaintiff attained her majority on September 4, 1894, so that on calculation her birth was in 1873, but the first month of Zikada in that year was wrongly taken as that in which her birth occurred."

They came to the conclusion that the plaint contained a mistake, and that on the evidence December 22, 1873, was the date of the plaintiffs birth.

De Gruyther, for the appellants.

C. W. Arathoon, for the respondent Nanhi Begam.

The judgment of their Lordships was delivered by

SIR ARTHUR WILSON. This appeal raises a single question of fact, upon which the Courts in India have differed. The suit was brought on August 29, 1896, and the object of the suit was to recover the share to which the plaintiff (the first respondent) claimed to be entitled in the estate of her father Darogha Mir Wajid Ali, a Mahomedan of the Shiah sect. Her title was disputed upon many grounds not now in question. The only controversy left is as to whether the suit was barred by limitation. It was undoubtedly barred unless the plaintiff is entitled to the extension of time allowed by s. 7 of the Indian Limitation Act, 1877. The plaintiff during her minority was under the guardianship of her mother, whereby the period of minority was extended to twenty-one years; and the section just referred to gave her three years from the date at which she attained her full age within which to bring her suit. The question, therefore, is whether she has shewn by sufficiently trustworthy evidence that she came of age within three years before commencing her suit. And that is the question on which the Courts in India differed.

There are a few facts, and some dates, about which there is no doubt. The plaintiffs mother Moghal Jan lived for some years under Mutah marriage with Darogha, but on September 11, 1874, he married her by Nikah. Before the latter date she bore him a number of children, of whom some are said to have died in infancy, whilst three, a son and two daughters, survived, the plaintiff being the youngest of the three. Darogha died on December 14, 1876.

On June 21, 1871, Darogha executed a codicil to his will, by which he shewed that he had already made provision in the will for the son of Moghal Jan, Amir Hasan by name, and now made provision for Munni Begam, the elder of the two daughters; and the will is framed in terms which have been rightly held to shew that at that time the plaintiff was not yet born.

On May 29, 1875, Darogha made another will, in which he made provision for the plaintiff,