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1950 Supreme(All) 371
IN THE HIGH COURT OF ALLAHABAD
Sankar Saran and Bind Basni Prasad, JJ.
B.AUDHESH SINGH - Appellant
Versus
B.RAJESHWARI SINGH - Respondents
Second Appeal 389 Of 1946
Decided On : 11/23/1950
H.C.Mukherji, S.C.KHARE, SHAMBHU PRASAD, Vishwanath Mehrotra
A child in the womb is a person in existence for certain purposes and can take advantage of Sections 6 and 8, Limitation Act.
Headnote:
LIMITATION ACT - SECTIONS 6 AND 8 - CHILD IN WOMB - ANCESTRAL PROPERTY - SALE - VOID UNDER PARA. 11 OF SCHEDULE 3, CIVIL P. C. - COMPENSATION UNDER SECTION 65, CONTRACT ACT.
Fact of the Case:
The plaintiff, born 19 days after his father and uncle executed a deed of sale for ancestral property, brought a suit to set aside the sale on the grounds of want of consideration and legal necessity, and that the sale in respect of a portion of the property was void under para. 11 of Schedule 3, Civil P. C. The lower courts dismissed the suit, holding that the sale was for consideration and legal necessity, that the property in certain portions was non-ancestral, but that the sale in respect of a portion of the property was void under para. 11 of Schedule 3, Civil P. C., but the plaintiff could not avoid it because the suit was time-barred under Article 126, Limitation Act.
Finding of the Court:
The court held that the plaintiff was entitled to the benefits of Sections 6 and 8, Limitation Act, and that the suit was within time. The sale in respect of the portion of the property in dispute was void under para. 11 of Schedule 3, Civil P. C., and the vendees were entitled to compensation under Section 65, Contract Act.
Issues: 1. Whether a child in womb can take advantage of the provisions of Sections 6 and 8, Limitation Act? 2. Whether the sale in dispute in respect of 3 pies share in Khata khewat No. 8 is invalid, having regard to the provisions of para. 11 of Schedule 3, Civil P. C.? 3. Whether the defts. vendees are entitled to any compensation under Section 65, Contract Act, if the sale is held to be void in regard to 3 pies share o khata khewat No. 8 ? If so, to what amount ?
Ratio Decidendi: 1. A child in the womb is a person in existence for certain purposes and can take advantage of Sections 6 and 8, Limitation Act. 2. A sale of ancestral property made without the written permission of the Collector under para. 11 of Schedule 3, Civil P. C., is void. 3. The vendees are entitled to compensation under Section 65, Contract Act, if the sale is held to be void.
Final Decision: The appeal was allowed in part, the decree of the lower appellate court was modified, and the plaintiff's suit for the setting aside of the sale in respect of the three pies share in khata-khewat no. 8 in village Fatehpur, Dist. Deoria, was decreed on payment by him of such compensation in respect of that property as may be assessed by the trial court within such time as may be fixed by it. In the event of the failure in payment of the compensation by the plaintiff-appellant within the time fixed by the trial court, the appeal was to stand dismissed with costs. The case was remanded to the trial court for the determination of the compensation payable to the vendee-defendants by the plaintiff-appellant within the time fixed by the trial court.
( 1 ) THE following three points arise for determination in this appeal; (1) Whether a child in womb can take advantage of the provisions of Sections 6 and 8, Limitation Act ? (2) Whether the sale in dispute in respect of 3 pies share in Khata khewat No. 8 is invalid, having regard to the provisions of para. 11 of Schedule 3, Civil P. C. ? and (3) Whether the defts. vendees are entitled to any compensation under Section 65, Contract Act, if the sale is held to be void in regard to 3 pies share o khata khewat No. 8 ? If so, to what amount ?
( 2 ) THE material facts are as follows: On 13-10-1922, the pltf. s father and uncle executed a deed of sale for Rs. 6,926 in favour of the defts. in regard to zamindari property situated in khata khewat nos. 5, 8, 21, 33 and 35 of village Fatehpur in the district of Deoria. The pltf. was born 19 days later on 2-11-1922. We brought the suit from which this appeal arises on 11-5-1943, for the setting aside of the sale on two grounds: (1) that the sale was of ancestral property and was without consideration and legal necessity; (2) that so far as the zamindari in Khata Khewat No. 8 was concerned the sale was void because it was in contravention of para. 8 of Schedule 3, Civil p. C.
( 3 ) BOTH the Cts. below have held that the sale was for consideration and legal necessity, that the property in khata khewat Nos. 5, 21, 33 and 35 was non-ancestral but that in khata khewat No. 8 was ancestral. They further held that the sale in respect of khata khewat No. 8 was void because of para. 11 of Schedule 3, Civil P. C. , but the pltf. could not avoid it because the suit was time barred under Article 126, Limitation Act, The suit was accordingly dismissed by both the Cts. below. The pltf. comes in appeal.
( 4 ) IT may be stated at the outset that the applt confines his claim in this Ct. as he did in the lower appellate Ct. , only to the 3 pies share in khata khewat No. 8.
( 5 ) THE first point for consideration is as to whether the claim in regard to this portion of the zamindari in suit is time barred. The pltf. s case was that he was entitled to the benefits of sections. 6 and 8, Limitation Act. The relevant portion of Section 6 (1) is as follows : "where a person entitled to institute a suit or make an appln. for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor. . . he may institute the suit or make the appln. 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. " the relevant portion of Section 8 provides:
"nothing in Section 6. . . . . . . . . . . . . . . shall be deemed to extend, for more than three years from the cessation of the disability,. . . . . . . . . . . . . . . . . the period within which any suit must be instituted. . . . . . . . . . . . . . . . . . "
The lower appellate Ct. has relied upon Muhammad Khan v. Ahmad Khan, A. I. R. (l6) 1929 lah. 254 : (10 Lah. 713) in support of its view that Section 6 is not available to the pltf.-applt. because he was not born on the date on which the disputed sale took place. The learned Judges held in this case that where a cause of action accrues to a person when he is in embryo, be cannot get the advantage of Section 6 as he cannot be deemed to be a minor in existence on the date of the conception. Their Lordships observed: "if a son in embryo is deemed to be a minor in existence on the date of the conception, the period of 18 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 pltf. 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. " wi
