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High Court Of Madhya Pradesh
P. K. Tare, J.
LALCHAND DHANALAL - Appellant
Versus
DHARAMCHAND - Respondents
Second Appeal 560 Of 1960
Decided On : 10/31/1962
Where an acknowledgment was wrongly admitted in evidence by the lower Court, it being not property stamped, the matter was not open to challenge in appeal. AIR 1956 SC 12 relied on. [Para 9]
(2) Limitation Act, 1908 - Ss. 6 (1) & 9 - suit by adopted son after attaining majority-cause of action arising before the adoption in favour of the adoptive mother - adopted son not entitled to benefit of section 6 -subsequent disability cannot arrest running of limitation.
The right to sue would accrue to an adopted son upon his adoption when he would be considered to be born in the new family. When the cause of action for a debt accured to his adoptive mother before the adoption, he was not a person entitled to one at the commencement of the period of limitation to claim benefit of section 6(1) of the Limitation Act and his disability of minority was subsequent disability of an after born son, which attracted provisions of section 9 of the Act. [Para 11]
When the cause of action for a debt had already accrued to the adoptive mother before the adoption of a minor son, the adopted son is not entitled to the benefit of section 6(1) of the Limitation in the case, when sues for the debt after attaining majority. [Para 21]
(3) Limitation Act, 1908 - S. 3 - provisions are mandatory-suit on the face of it appearing time barred-point of limitation not considered by lower Courts nor raised before them-second appellate Court not precluded from considering the point.
Where the suit was liable to be dismissed as barred by time on the short ground that section 6 of the Limitation Act was not applicable the fact that the question was not pointedly raised, nor specifically considered by the Courts below in its proper perspective would not preclude the appellate Court from considering the same. If any of the provisions contained in sections 4 to 25 are in applicable the mandatory provisions of section 3 are attracted with the result that the Court is bound to dismiss the suit which on the face of it appears to be barred by time. AIR 1935 PC 85 relied on. [Para 23]
(4) Civil P. C., 1908 - Ss. 100- finding of fact-when not binding on second appellate Court.
Findings of fact cannot be challanged in second appeal in absence of illegality, or a miss apprehension on the part of the Courts below, or the conclusion being found to be such as would be incompatible with the material on record. [Para 23]
( 1 ) THIS appeal is by the plaintiff against the decree, dated 31-8-1960, passed by shri D. P. Vohra, Additional District Judge, Dewas, in Civil Appeal No. 121 of 1959, reversing the decree, dated 29-9-1959, passed by Shri A. K. Sen, Civil Judge, class I, Dewas in Civil Suit No. 418 of 1954.
( 2 ) THERE was a shop known as 'hemraj Dharmalal', which was owned by dhannalal. He died some time in June 1940 leaving behind his widow, Mst. Sunderbai and his predeceased son, Sohanlal's widow, Mst. Rambhabai. Mst. Sunderbai died some time in November or December, 1945. Before her death, she had adopted the present appellant, Lalchand as a son to her deceased husband by a deed, dated 3-7-1945. Subsequently, the third respondent, Mst. Rambhabai also adopted another son, Mahendrakumar (respondent 2 ). However, we are not concerned with the adoption made by Mst. Rambhabai, widow of Sohanlal. The appellant's adoption was the subject matter of a former decision of the Madhya bharat High Court consisting of M. V. Bhide C. J. and Rege J. to First Appeal No. 27 of 1944, dated 17-9-1946. wherein the learned Judges upheld the factum and the validity of the adoption of Lalchand.
( 3 ) THE first respondent was also carrying on business under the name of 'dharamchand Dhannalal', which had dealings with the appellant's firm 'hemraj dhannalal. On account of such transactions, an amount was due from the first respondent to the appellant's firm. The first respondent, after settling accounts, acknowledged his liability in writing on 16-11-1944 (Ex. D-3) in the account books of the appellant's firm. When this acknowledgment (Ex. D-3) was made by the first respondent, the appellant bad not been adopted and Mst Sunderbai, the appellant's adoptive mother was alive.
( 4 ) THE appellant filed the present suit on 17-12-1954 on the basis of the accounts as settled. It was alleged that the appellant was born on 18-12-1933. As such, he became a major on 18-12-1981. Therefore, the suit was within time, as the period of limitation was extended by virtue of Section 6 of the Limitation Act, as also by the acknowledgment, dated 16-11-1944.
( 5 ) THE first respondent's defence was that the appellant's date of birth was not 1812-1938, but 1-1-1932. Therefore, the suit was barred by time, as it was not filed within 3 years of the plaintiff attaining majority. It was farther pleaded that on 1611-1944 that is, the date of acknowledgment, the defendant himself was a minor and, therefore, the acknowledgment made by a minor was void.
( 6 ) ON the pleadings of the parties the trial Judge framed the following issues:
Issues Findings (1) Whether on Kartik Sudi 1, Affirmative. Samvat 2001 after settling his previous accounts at the plaintiff's Hatpiplya Shop the defendant stack the balance of Rs. 5139-2-0 and signed the entry?. . . . . Plaintiff. (ii) Whether the defendant No. Negative. 1 was minor on Kartik Sudi 1 Samvat 2001? If so, what is its effect?. . . . plaintiff. (iii) Whether the accounts of the Affirmative. debits and credits standing in the defendant No. 1's name from the years 2002 to 2011 were annually adjusted at the shop of the plaintiff and thereupon on Kartik Sudi 1, 2011 a sum of Rs. 3679-13-0 has been found (sic) against the defendant?. . . . . . . . . . . . Plaintiff. (iv) Whether Sundarbai wife of Affirmative. Dhannalal adopted the plaintiff on 3-7-1945 and Rambhabai wife of Sohanlal adopted defendant No. 2 (Mahendrakumar) on 1-957?. . . . . . . . Plaintiff. (v) Whether the plaintiff Affirmative. attamed majority on 18-121951 and whether the suit is within time?. . . . . . . . . . . . . . . Plaintiff. (vi) Relief. . Suit decreed. "
The trial Judge found all issues in favour of the plaintiff and, therefore, decreed his claim. On the other hand, the learned appellate Judge affirmed the findings of the trial Judge on issues 1, 3 and 4; but found against him on issues 2 and 5. In that view of the case, the plaintiff's suit was dismissed. 7. The lear
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