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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • J.G Shah with H.F Mudiraddi, for the appellant.
  • G.R Madbhavi, for respondent No. 1.
  • K.R Bengeri, for respondents Nos. 2 to 4.
Judges
  • Mr. Sen
  • Mr. Bavdekar, JJ.
Acts
  • ss. 6 and 8 of the Indian Limitation Act.
  • s. 6 of the Indian Limitation Act,
  • s. 3 of the Indian Majority Act,
  • Indian Majority Act in s. 3
  • s. 6 of the Limitation Act.
  • Limitation Act of 1871
  • INDIAN LIMITATION ACT
  • GENERAL CLAUSES ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • J.G Shah with H.F Mudiraddi, for the appellant.
  • G.R Madbhavi, for respondent No. 1.
  • K.R Bengeri, for respondents Nos. 2 to 4.
Judges
  • Mr. Sen
  • Mr. Bavdekar, JJ.
Acts
  • ss. 6 and 8 of the Indian Limitation Act.
  • s. 6 of the Indian Limitation Act,
  • s. 3 of the Indian Majority Act,
  • Indian Majority Act in s. 3
  • s. 6 of the Limitation Act.
  • Limitation Act of 1871
  • INDIAN LIMITATION ACT
  • GENERAL CLAUSES ACT
See more information ...
Smart Summary

Court Opinion Summary — Sen, J.

Factual and Procedural Background

This opinion arises from an appeal against the decision in a second appeal by Mr. Justice Lokur concerning a suit filed by a son to set aside an alienation (a gift) made by his father. The facts, as stated in the opinion, are as follows:

  • The father, Channayya (defendant No. 3), who had been adopted into another family, made a gift of certain inherited property to his two brothers (defendants Nos. 1 and 2) on 29 July 1918.
  • At the date of the gift Channayya had no son; his wife later gave birth to the plaintiff on 23 March 1919.
  • The plaintiff filed the suit on 11 March 1940, which the opinion records was within three years after the plaintiff attained the age of 18 years.
  • Defendants 1 and 2 contended that (a) the plaintiff had not been conceived on the date of the gift, (b) the suit was time-barred under article 126 of the First Schedule to the Indian Limitation Act, and (c) the plaintiff could not claim the benefit of sections 6 or 8 of the Limitation Act.
  • The courts below (the first two Courts) found on the facts that the plaintiff had been conceived 280 days prior to his birth, and therefore that he was in the womb on the date of the alienation; on that basis they held the suit was in time and awarded the plaintiff a decree for possession.
  • Mr. Justice Lokur, in the second-appeal decision under challenge in this appeal, considered two principal legal questions and ruled against the defendants, dismissing their appeal. This opinion is by Sen, J., disposing of the appeal from Lokur J.'s decision.

Legal Issues Presented

  1. Whether an alienation of ancestral property that can be impeached by a son actually born at the date of the alienation can also be impeached by a son who was in his mother's womb (en ventre sa mère) at that date.
  2. Whether the plaintiff, who was in utero at the date of the alienation, could rely on the Limitation Act (in particular sections 6 and 8 and art. 126 of the First Schedule) so that the suit was not barred by limitation.

Arguments of the Parties

Defendants' Arguments (as presented in the opinion)

  • The defendants (Nos.1 and 2) argued that the plaintiff had not been conceived on the date of the gift and therefore could not challenge the alienation on the ground that it was made when he already had rights in utero.
  • They argued the suit was time-barred under article 126 of the First Schedule to the Indian Limitation Act (the 12-year period from the date when the alienee takes possession).
  • Counsel for the defendants (Mr. Shah) advanced two principal contentions relating to sections 6 and 8 of the Limitation Act: (a) that the plaintiff at the date of the alienation could not be said to be a "person" within the meaning of section 6, and (b) that even if he were a person then, he could not be regarded as a "minor" for the purposes of section 6 so as to avail himself of the extension of time provided thereby.
  • Mr. Shah relied on precedent(s) including Muhammad Khan v. Ahmad Khan and Madho Ram v. Dharam Singh (Lahore decisions) to support the contention that computing minority from conception would produce uncertainty and should not be adopted.

Plaintiff's Arguments (as presented in the opinion)

  • The plaintiff relied on sections 6 and 8 of the Indian Limitation Act to avoid the period of limitation; section 6 permits a person who was a minor at the time from which the period is reckoned to institute the suit within the same period after the disability has ceased as would otherwise have been allowed, and section 8 reduces the period in question to three years for the type of suit involved.
  • The plaintiff's case (as accepted by the trial courts and relied upon by Mr. Justice Lokur) was that the plaintiff had been conceived prior to the date of the alienation (280 days before birth), and therefore was en ventre sa mère at the time of the gift; on that basis he claimed the rights of a son and the protection of sections 6 and 8.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mohammad Khan v. Ahmad Khan (Lahore High Court decision) Held (as quoted) that deeming a son in embryo to be a minor from the date of conception would make the 18-year period run from conception and that date cannot be ascertained with certainty; the consequence would be anomalous results in computing majority for limitation purposes. The court (Sen, J., approving Lokur J.'s approach) disagreed with this decision for the purposes of the present case and rejected the reasoning that minority should be computed from conception; the opinion records the passage from the case and explains why it was not followed.
Ranganatha (Rangnath) Reddi v. Ramaswami Mudali Denied the Lahore view in Muhammad Khan and held that a son who was in utero when the alienation took place could be given the benefit of sections 6 and 8 of the Limitation Act, computing minority from birth. The court expressly relied on and followed this decision as supporting the proposition that a person en ventre sa mère is to be regarded as a minor and that minority for limitation purposes is computed from the date of birth.
Madho Ram v. Dharam Singh (Lahore decision) Recorded as a Lahore decision in favour of the view that minority should be computed from conception (no reasons given in the reported passage quoted in the opinion). The court noted this decision but said it did not give reasons on which the view was based and did not follow it, preferring the view of Lokur J. and Ranganatha Reddi.
Udayamuthier v. Shunmugam Chettiar Discussed in the opinion as authority that was not directly on point because it did not relate to persons who were in their mothers' womb at the date of the transactions; it considered rights of persons who had not been in existence at all at the date of the alienation. The court observed that this case did not deal with the en ventre sa mère situation and therefore was not directly applicable to the question before it.
Chiragh Din v. Abdullah Also concerned jurisprudence on rights of persons not in existence at the date of alienation and similarly not directly applicable to en ventre sa mère situations. The court noted this case but treated it as not directly relevant to the specific issue of a son in utero at the date of alienation.
Athey v. Pickerings, Ltd. (English case) Lawrence L.J.'s observation that deeming a child to be born at a certain period does not mean that the child is deemed to have attained a specified age before actually attaining it; one should not introduce the fiction into the facts of ascertainment of age. The opinion (through Lokur J.'s reasoning, cited approvingly) relied on this remark to support the view that the age for majority must be computed from actual birth rather than from conception or from any fictive date.

Court's Reasoning and Analysis

The court's analysis follows the logical sequence of factual findings and the legal questions identified in the earlier appeals. The essential points of reasoning in the opinion are these (stated as the court presents them):

  1. On the facts, the earlier courts found that the plaintiff had been conceived 280 days prior to birth, and therefore was in the mother's womb at the date of the alienation. That factual finding means the plaintiff was en ventre sa mère on the impugned date.
  2. On the first legal issue (whether a son en ventre sa mère can impeach an alienation made when he was in utero), the court agreed with Mr. Justice Lokur's conclusion. The opinion refers to Hindu law authorities and texts (including a passage from Gautama as applied by commentators) and to Mulla's statement on “rights of a son in his mother's womb” to conclude that ownership and rights can arise from utpatti (conception) under Hindu law. The court considered it unnecessary to set out a full survey of these authorities in the opinion but approved Lokur J.'s approach.
  3. On the second issue (limitation), the court began by stating the statutory framework: the suit was governed by article 126 of the First Schedule to the Indian Limitation Act, which prescribes a 12-year period from the date “when the alienee takes possession of the property.” The plaintiff relied upon section 6 (which allows a person who was a minor at the time from which limitation runs to sue within the same prescribed period after the disability ceases) and section 8 (which, in the type of suit before the court, reduces the 12-year period to three years after the disability ceases).
  4. Mr. Justice Lokur had held that a son in embryo at the date of alienation must be regarded as a “minor” within the meaning of section 6. Lokur J. rejected the reasoning in Muhammad Khan v. Ahmad Khan which ran the risk of making the computation of the 18-year disability period depend on the date of conception (a date the court considered uncertain).
  5. The opinion agrees with Lokur J.'s interpretation of the Indian Majority Act, section 3, which provides that a person “shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.” The court reads the phrase “and not before” as indicating the age must be counted from the date of birth, not from conception, and that minority continues until the 18th birthday is completed.
  6. The court addressed Mr. Shah's contention that a foetus cannot be a “person” under section 6. It noted the General Clauses Act's wide definition of “person” and the Hindu-law position (as interpreted by Lokur J.) that rights of ownership arise from utpatti (conception). The opinion concluded that if ownership rights can accrue from conception under Hindu law, it is difficult to deny that the foetus has sufficient personhood for the purposes of section 6.
  7. The court then addressed the subsidiary contention that even if a foetus is a person, it cannot be a “minor.” The court surveyed authorities and observed that some cited cases (Udayamuthier and Chiragh Din) were not on the point because they did not concern in-womb persons. Two Lahore decisions (Muhammad Khan and Madho Ram) supported the defendants' contention, but the court distinguished or rejected them: Muhammad Khan was disapproved because it relied on running minority from conception; Madho Ram gave no reasons and was not followed. The court reiterated that the Indian Majority Act's language (counting years from birth) and the reasoning in Ranganatha Reddi supported treating an infant en ventre sa mère as a minor.
  8. The court also relied on the English comment (Athey v. Pickerings) to reject the fiction of computing age from any date other than actual birth for the purpose of deciding when majority is attained.
  9. On that basis, the court accepted Lokur J.'s treatment of limitation: the plaintiff, being in utero at the date from which limitation ran and later attaining majority in the ordinary way (counted from birth), was entitled to the benefit of sections 6 and 8 of the Limitation Act, and therefore the suit was not barred by limitation.

Holding and Implications

Holding: The appeal is dismissed. The court upheld Mr. Justice Lokur's conclusions that (a) a son who was in his mother's womb at the date of an alienation can impeach that alienation, and (b) such a son is entitled to the benefit of sections 6 and 8 of the Indian Limitation Act for purposes of claiming relief against the alienation.

Implications (direct effect):

  • The plaintiff's decree for possession (granted by the courts below on the factual finding that he was conceived prior to the gift) stands, and the plaintiff is entitled to rely on sections 6 and 8 of the Limitation Act to avoid the time bar under article 126.
  • The defendants' arguments based on the uncertainty of computing minority from conception and on non-personhood or non-minority of an in‑utero child were rejected in this case.

Broader precedent note: The opinion discusses and applies existing authorities and statutes in reaching its conclusions. The opinion does not state that it intends to create any principle beyond the direct resolution of the issues between these parties; the immediate effect is to dismiss the appeal and to uphold the plaintiff's entitlement to the protections of sections 6 and 8 in the circumstances described.

Appeal dismissed.

(Opinion signed J.G.R., reported as delivered by Sen, J.)

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    Basayya Shivabasayya Kallur v. Baslingayya Channayya Pujar

    Sen, J.:—

    This is an appeal against the decision in a second appeal by Mr. Justice Lokur arising out of a suit which was filed by a son to set aside an alienation made by his father. The plaintiff's father Channayya, defendant No. 3, and his two brothers, defendants Nos. 1 and 2, were the sons of one Shivbasayya, and Channayya was adopted into another family. After his adoption he made on July 29, 1918, a gift of certain property which he had inherited in his adopted family to Defendants Nos. 1 and 2. He had no son at the time; but his wife gave birth to the plaintiff on March 23, 1919. This suit was filed on March 11, 1940, within three years after the plaintiff attained the age of 18 years. Defendants Nos. 1 and 2 contended that the plaintiff had not been conceived on the date of the gift, that the suit was time-barred under art. 126 of the first schedule to the Indian Limitation Act, and that he could not claim the benefit of s. 6 or s. 8 of the Act. The courts on facts found that the Plaintiff had been conceived 280 days prior to his birth, that, therefore, he could challenge the gift made by his father, and that the suit was in time. The plaintiff accordingly was given a decree for possession.

    On the finding of the first two Courts as to the time when the plaintiff was conceived, it must be deemed that he was in the womb of his mother on the date of the alienation which he impugned. The only two questions that were argued before Mr. Justice Lokur were (1) whether an alienation that can be impeached by a son actually born at the time of the alienation can also be impeached by one who was in his mother's womb at that time, and (2) the question of limitation. On both these questions Mr. Justice Lokur found against the defendants, and dismissed the appeal.

    There is no dispute before us as regards his first conclusion, which was based on examination of the authorities as well as the texts of Hindu law. It is unnecessary to refer to any part of such authorities or texts, except perhaps one which would be useful in connection with the second question. One of the texts relied on by Mr. Justice Lokur was a passage from the text of Grautama, relied upon by Vijnanesvara in commenting on a sentence in the Mitakshara, which has been thus translated:

    “For the text of Gautama expresses “let ownership of wealth be taken by birth, as the venerable teachers direct’.”

    His conclusion on this point is the same as stated by Mulla in his Hindu law at s. 270 (p. 329, 10th edition), under the heading “rights of a son in his mother's womb.” On the question of limitation the argument to be found in his judgment is this. The suit was admittedly governed by art. 126 of the first schedule to the Indian Limitation Act, under which a suit by a Hindu governed by the law of Mitakshara to set aside his father's alienation of ancestral property must be instituted within 12 years from the date “when the alienee takes possession of the property.” Normally, therefore, the period of limitation would expire in 1930. The Plaintiff who filed the suit just before he reached the age of 21 years relied upon s. 6 of the Indian Limitation Act, the material part of which reads as follows:—

    “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.”

    That section, therefore, by itself would entitle the Plaintiff in such a suit as the present one, if he was a minor at the time from which the period of limitation is to be reckoned, to file the suit within 12 years from the date on which the disability had ceased. That period of 12 years is cut down to three years under the provisions of s. 8 of the Act. Mr. Justice Lokur held that the plaintiff in this case, though he was a son in embryo at the date of the alienation from which the limitation has started, must be held to be a minor within the meaning of s. 6. He did not agree with the decision in Muhammad Khan v. Ahmad Khan, where it was thought that in that case the period of 18 years which would determine the Plaintiff's disability would run from the date of his conception and that date would never be ascertained with any degree of certainty. On this point Mr. Justice Lokur relied on s. 3 of the Indian Majority Act, which provides inter alia that every 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.” In his opinion the expression “and not before” clearly indicates that the minority does not terminate until the age of 18 had been completed, and that the age is to be counted from the date of the birth of the person in question and not from the date of his conception. This view agrees with the view taken in Ranganatha Reddi v. Ramaswami Mudali, which dissented from the opinion of the Lahore High court in Muhammad Khan's case and gave the benefit of ss. 6 and 8 of the Act to a son who was attacking an alienation made by his father when he had been in his mother's womb, computing his minority from the date of his birth and not from the date of his conception.

    Mr. Shah has contended that this view is not correct. The grounds on which he has based his contention are, first, that the plaintiff at the date of the alienation could not be said to be a person within the meaning of s. 6 of the Act, and, secondly, that even if he was a person, he could not be said to be a minor. The word “person” has been defined in the General Clauses Act as including any company or association or body of individuals whether incorporated or not. This meaning, therefore, is not confined to any individual, and has been made to include even inanimate entities like companies or other associations. I have already referred to the text of Gautama saying that the ownership of property or wealth arises on utpatti, which has been interpreted, rightly in our opinion, by Mr. Justice Lokur, following Smritichandrika, as birth in the mother's womb, that is to say, conception. According to the Hindu law, therefore, the right to property accrues from the date of a person's conception. It seems to us difficult to see, when a person acquires the right of ownership from the date of his conception and not merely from the date of his birth, why he should not in law be regarded as a person from the date of his conception. The definition in the General Clauses Act is a wide definition as I have already stated, and not merely confined to individuals who are already born. We, therefore, think that it cannot be said that the plaintiff in this case, at the date of the alienation, though he was in his mother's womb at the time, was not a person at all, the element of personality being one of the elements within the meaning of the expression “minor.”

    Mr. Shah has next contended that even if the plaintiff was a person at the time in question, he was not a minor. He has referred to several decisions on this point besides Muhammad Khan v. Ahmad Khan, but we find that some of them, for instance, Udayamuthier v. Shunmugam Chettiar and Chiragh Din v. Abdullah, did not relate to persons who were in their mothers' womb at the date of the transactions which were challenged in those cases. Those two cases considered the right of a person to bring a suit when he had not been in existence at all at the date of the alienation. Leaving these two cases out, there remain two Lahore decisions which can be said to be in favour of the view for which Mr. Shah has contended, namely, Muhammad Khan v. Ahmad Khan and Madho Ram v. Dharam Singh. I have already stated the ratio of the decision on this point. In the first of those cases the passage relied on reads thus (p. 716):—

    “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 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 seventeen years and a few months old, though he would be a minor at that time for all other purposes.”

    The second Lahore case relied on does not give any reasons on which the view which was taken was based. Mr. Justice Lokur disagreed with the opinion of the Lahore High Court on the ground that the Indian Majority Act in s. 3 provides that every person domiciled in British India shall be “deemed to have attained his majority when he shall have completed his age of 18 years and not before.” It seems to us clear that the age referred to in this passage must be counted from the date of birth and cannot be counted from the date of conception. In this connection, Mr. Justice Lokur rightly relied on a remark in an English case, Athey v. Pickerings, Ltd. where Lawrence L.J observed, p. 253:—

    “It seems to me to be a fallacy to suppose that, because a child is to be deemed to be born at a certain period, therefore the child attains its age of twenty-one or in this case fifteen or is deemed to attain that age, before it actually attains that age. There is no requirement at all in the Act or in any of the circumstances to introduce the fiction into the actual facts of the ascertainment of the age of that child.”

    Mr. Shah, however, has contended that the word “minor” has not been defined in the Indian Minority Act. We find it stated in Chitaley's Limitation Act that in the Limitation Act of 1871 a minor was actually defined as “a person who has not completed his age of eighteen years.” For some reason this definition was not incorporated in the present Limitation Act, and the Legislature contented itself by saying when a person should be deemed to have attained his majority.

    Mr. Shah has argued that it cannot be said that if a person is not found to be a major, he would necessarily be a minor, contending that the period of minority must be confined strictly to the period from birth up to the attainment of the age of 18 years, after which the period of majority begins, and that the period that a person spends in the womb of his mother cannot be called a period either of minority or of majority. We are unable to accept this contention. In Rangnath Reddi v. Ramaswami Mudali it was remarked by Beasley C.J (p. 891):—

    “A person in existence must be either a minor or a major, and obviously an infant en ventre sa mere cannot be a major and must therefore be a minor.”

    It is impossible to accept the suggestion that a state in which the person concerned is neither a minor nor a major can exist and that a person who is in that state cannot, therefore, take the benefit of s. 6 of the Limitation Act. It also seems obvious that the age of a person must be reckoned from the date of his birth, and cannot have any reference to the time when he was conceived.

    That being our view, we hold that Mr. Justice Lokur rightly dealt with the question of limitation in holding that the plaintiff was entitled to the benefit of ss. 6 and 8 of the Indian Limitation Act. The appeal must, therefore, be dismissed with costs.

    Appeal dismissed.
    J.G.R
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    Basayya Shivabasayya Kallur v. Baslingayya Channayya Pujar
    (Jan 15, 1947)