Bhim and others vs Harish Chander

C.G. Suri, J.—A suit to pre-empt a sale of land effected by two real brothers was filed on 26th December, 1967 on behalf of Shri Harish Chander respondent who is the son of one of the vendors. The suit had been filed by his mother acting as the next friend. It had been alleged in the plaint that the Harish Chander was a minor on the date of filing of the suit. If the plaintiff''s mother had delayed the filing of the suit for another two days, the period of limitation would have run out.

The appellant-vendees filed a written statement denying Harish Chander''s relationship with the vendors. Latter on they came to know from the school records that Harish Chander had attained the age of majority a few months before the filing of the suit for pre-emption. The vendees, therefore, made an application to the trial Court on 15th April, 1968 that there was no properly presented plaint before the Court and that the mother was not duly authorised to file a suit as the next friend of her son as he had attained majority and that the pre-emption suit should, therefore, be dismissed. A reply signed by the plaintiff''s counsel was filed to this application and it was mentioned therein according to Harish Chander''s horoscope his date of birth was 14th August, 1951, and that the date of birth 10th August, 1949 had been wrongly given at the time of Harish Chander''s admission to the school. Another application bearing signatures which read as ''Harish Chander'' and which is signed by the plaintiff''s counsel was filed on 10th April, 1969 under Order XXXII, rule 12 of the CPC in which it was mentioned that the plaintiff had attained the age of majority on 10th August, 1968 and that he may be allowed to continue the proceedings on his own and independently of his mother whose name may be struck off as the next friend. According to this application, Harish Chander''s date of birth would be 10th August, 1950. The father and mother of Harish Chander went into the witness box and appeared to be very definite that Harish Chander''s date of birth was 14th August, 1950. It may, therefore, appear that the parents of the boy have been giving different dates of birth of their son Harish Chander at different places and that their evidence, oral and documentary, is highly discrepant, if not knowingly false. The pandit who had prepared the horoscope Exhibit P. 1 had not been called into the witness box to prove the document. The name given is different and there is nothing in the document to suggest that it relates to Harish Chander plaintiff. The appellants had summoned the Headmaster of the Government Middle School to prove the dates of birth given by the parents at the time of toe admission of Harish Chander and his five brothers and sisters, Exhibit D.W. 1/1 is an extract prepared on the basis of the entries in the school records.

The trial Court had framed the necessary issues but on the date fixed for the examination of the evidence, an application dated 24th April, 1969 signed by the plaintiff''s Advocate was filed for the amendment of the plaint. The exact date of birth of Harish Chander is not given in this application and it has not even been made clear as to what definite position was being taken up as regards. Harish Chander''s minority or majority on the date of the filing of the suit. It cannot be said that this application establishes the bona fides of the plaintiff or his mother because the deception practised on the Court had already been exposed in an application made by the appellants about a year earlier.

Relying on the date of birth given in the school records, the trial Court felt satisfied that the plaintiff had attained the age of majority when the suit was filed and that there was no proper presentation of the plaint and that the provisions of Order XXXII, rule 12 of the Code were not applicable. As the circumstances of the case suggested that the mistake made by the plaintiff or his mother was not bona fide, the application for the amendment of the plaint was rejected and the suit was dismissed on the ground that there was no proper plaint before the Court and that the suit could not proceed.

An appeal was filed on behalf of Harish Chander and the description of the appellant in the memo of appeal filed in the lower appellate Court may appear rather unconventional. Even at this stage the plaintiff or his mother were not taking up any definite position as to whether Harish Chander was a minor or a major. The learned Additional District Judge, Ambala who heard the appeal filed by or on behalf of Harish Chander has not come to any definite finding as to whether Harish Chander was or was not a major on the date of the filing of the suit but he has somehow accepted the appeal and remanded the case to the trial Court for a decision on merits. He has also allowed the plaintiff to amend the plaint on payment of Rs. 100/- as costs. This part of his order may seem to concede that Harish Chander actually was a major on the date on which the suit had been originally filed.

This second appeal has been filed by the vendees, to challenge the lower appellate Court''s order remanding the case to the trial Court for fresh decision. A large number of rulings have been cited before me but the crux of all these rulings is that we have to keep in mind whether the mistake made by the plaintiff or his mother was bona fide or whether ends of substantial justice would be served by allowing an amendment even where it is found that a party had resorted to a clever device or trickery to keep alive the period of limitation or to practise deception on the Court and the opposite party. I am not in agreement with the learned Court of first appeal when it observes that the plaintiff or his mother could not have any motive for wrongfully showing the appellant as a minor on the date of the institution of the suit. One obvious reason could be that the plaintiff was himself not available any where near the territorial limits of the Court having jurisdiction and it was felt that the period of limitation may expire before the plaintiff''s presence could be secured to sign and verify the plaint and to institute the suit. The plaintiff or his mother are seeking to enforce a piratical right after the head of the family, jointly with his real brother, had made a sale under the ordinary law of contract. A right which is a clog on freedom of contract is sought to be exercised by a close family member of the vendors and this right is generally used as an instrument to relieve the Vendee of an additional sum of money over and above the price mutually agreed upon. If there are reasons to believe that there have been deliberate misrepresentations and that there was no bona fide mistake as regard the plaintiff''s age at the time of the filing of the suit, than the Courts would not be advancing the cause of substantial justice if they were to become parties to the enforcement of a piratical right by allowing an amendment after the period of limitation. The highly discrepant evidence about the plaintiff''s age examined by his own parents who had every reason to know the correct date of birth of their son is an indication of their mala fides in the present case. Throughout the proceedings they have not taken a definite position as to whether the plaintiff was or was not a major when the suit was filed. The rulings that have been cited would be applicable only if we are trying to do substantial justice between the parties and this would not be so if there was no bona fide, mistake in the filing of the suit. Rulings that are applicable to other cases where a plaintiff may be trying to get back the property of which he has been unlawfully deprived of would not be applicable to a case in which a right described as a piratical right was being enforced. In Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, it was observed that while assessing the value of an entry in the school admission register as to a date of birth, it should be kept in mind that in actual life it often happens that persons give false age of the boy at the time of his admission to school so that later in life he would have an advantage when seeking public service for which a minimum age of eligibility is often prescribed. These observations would imply that the tendency generally is to understate the age of a child at the tune of his admission to a school. If any such considerations had prevailed in the case in hand, then we would be entitled to presume that Harish Chander on whose behalf the suit was filed by his mother had attained even a higher age than could have been worked out on the basis of the date of birth given at the time of his school admission. In Brij Mohan Singh''s case (supra), the entry about the date of birth in a school admission register was relied upon by the election petitioner in support of his plea that the successful candidate, whose election was being challenged on that ground, had not attained the prescribed minimum age of 25 years on the date of filing of the nomination papers. This piece of evidence was rejected on the ground that as it actually happens very often in life the date of birth could have been wrongly given to show a lower age at the time of the admission to the school and that while assessing the value of such a piece of evidence; it would be improper to base any conclusion on such an entry where it had been alleged that false information had been supplied with the motives mentioned above. If the ratio in Brij Mohan Singh''s case is rightly applied in the present case, we would be justified in assuming that Harish Chander could not in any case have been a minor at the time of the filing of the suit. On the basis of the date of birth given in the school admission register, Harish Chander had attained majority four or five month, before the suit had been filed and if there had been any tendency at understanding his age at the time of his admission to the school, then his age could easily exceed the age of majority, by a wider margin than the one worked out on the basis of the entry in the school admission register. In Shiv Ram Vs. Shiv Charan Singh, , Abdul Majeed (Meera Sahib) Vs. Bhargavan (Krishnan) Member, Legislative Assembly and Others, , Vishnu Maheswaran Nampoothiri Vs. Kuruvilla Kochitty Kuruvila and Others, , In Re In Re: Siram Reddi Simhachalam, and AIR 1940 217 (Nagpur) the importance of this type of evidence has been emphasised by observing that admission registers of which government or public institutions are maintained by the head of the institution in accordance with duties imposed and instructions issued by the Government and that the date of birth as entered in such official records would be a relevant fact u/s 35 of the Evidence Act. If such a piece of evidence was not relied upon in Hoak Saing v. Ma E. Hla AIR 1940 Rang. 191, it was only because there was no clear evidence on record as to whether the school was a government run or a privately run institution. In the case of Vishnu Maheswaran Nampoothiri (Supra), it was further observed that a horoscope has by itself very little evidentiary value and that the date of birth as entered in such a document cannot be accepted as true and correct unless the person who prepared it is able to testify as to the correctness as given in that document. It does not cost much to get a horoscope of this type prepared at any time and the Pandit has naturally to accept the date and time of birth of the child as given by a near relation who comes to have the horoscope prepared.

In the present case the conduct of the plaintiff and his parents has been inconsistent with any bona fides or good faith on their part. They have all the time been giving us different dates of birth of Harish Chander plaintiff and none of these dates may appear to be correct. In this suit involving a question of limitation, we shall have to adopt the definition of ''good faith'' as given in section 2(h) of Limitation Act, 1963, rather than the definition of the expression given in section 22 of the General Clauses Act. In this connection, reference could be made to Madhavrao Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu and Others, and Jai Bhagwan Vs. Om Prakash and Others, . According to the definition given in the Limitation Act, nothing shall be deemed to be done in good faith which is not done with due care and attention.

We have also to keep in mind the fact that the means adopted for enforcing a piratical right in the present case have been no less dishonest and deceitful. The rulings which say that the sympathy of the Court should in such cases be exercised in favour of the party who would be hard hit and that the Court should try to do substantial justice between the parties cannot be taken advantage of by a plaintiff employing deceitful means in the enforcement of clog on freedom of contract. Pre-emption may be a statutory right but it admits of abuse at the hands of a close family member of the vendor who can force the vendee to part with a substantial amount over and above the price of the property that had been fixed by mutual agreement under a contract of sale freely negotiated. Substantial justice would not be served by exercising the discretion in plaintiff''s favour in such a case and it cannot be said that the plaintiff has been deprived of the right to get back any personal property that be had lost by a wrongful act of his adversary. Where a piratical right is being enforced by such deceitful means, there could be no question of the proceedings being allowed to continue under Order XXXII, rule 12 of the CPC or the plaint being allowed to be amended at the appellate stage under Order, VI Rule 17 of the Code of Civil Procedure. In Bishan Singh and Others Vs. Khazan Singh and Another, , it was observed that pre-emption being a very weak right can be defeated by all legitimate means. It was similarly held in Sant Singh etc., v. Sucha Singh, etc. C.L.J. 1968 P&H. 62 that pre-emption being a piratical right, the Court should lean in favour of the view which allows the vendee to rethin the land purchased under a lawful contract if it is possible to have two alternative interpretations.

I, therefore, accept this appeal and set aside the order of the lower appellate Court remanding the case for fresh trial. The pre-emption suit filed on behalf of Harish Chander is dismissed with costs throughout.