Chuhar Singh vs Hari Singh

Passey, J.—Chuhar Singh Plaintiff whose suit has been dismissed by both the courts below has preferred this second appeal. By a registered deed dated 6-2-1983, one Mit Singh of Fanj Grain Kalan, a village in the erstwhile Faridkot State, appointed Hari Singh, his 3rd degree collateral as his heir. The adoptor died on 26-4-2002 and the present suit for a declaration that Hari Singh''s adoption was invalid and for possession of as much land as represented his share, in the property left by Mit Singh, was instituted by Chuhar Singh who is also a third degree collateral of Mit Singh on 26-8-2002. It was stated in the plaint that the land which was contemplated to be transferred through the alleged adoption was ancestral, and that the adopter could not by adopting Hari Singh deprive his other reversionary heirs'' right to succeed to his property on his death. To bring the suit within time benefit of Section 6, Limitation Act, was claimed on the ground that the Plaintiff was a minor when the adoption took place. The adoptee controverted the allegations in the plaint and further urged in defence that the suit was time barred. The following five issues were framed:

Is the suit within limitation? O.P.

Is the suit property ancestral of the Plaintiffs? O.P.

Had Mit Singh no power to adopt Hari Singh according to custom? O.P.

Relief.

Whether in fact Hari Singh Defendant was "adopted by Mit Singh? O.P.

Issues Nos. 1, 3 and 5 were decided by both the ts below in favour of Hari Singh Defendant.

with regard to issue No. 2 it was found that Khasras 1391, 1369, 1374 and 7122 were not ancestral" and that the rest of the land was ancestral. The Appellants'' counsel has attacked the decision of the District Judge on the issues relating to limitation and the validity of the adoption. It has to be mentioned here that on 23-10-1983 Mit Singh had lodged a report with the Patwari of the Circle concerned that he had alienated his proprietary rights in his land to his adopted son Hari Singh, and mutation in respect of that transfer was sanctioned on 4-12-1983 in the presence of Santa Singh, father of the Plaintiff and Kaka son of Bhola Anr. collateral of the donor who had stated that they had no objection to the land being given to Hari Singh.

I will first take up the question whether the appointment of Hari Singh has been proved and was valid. Mit Singh had no issue and it is not disputed by Shri Nehra that according to general custom prevailing amongst agriculturists in this part of the country, a sonless proprietor can appoint one of his kinsmen to succeed him as his heir. He, however, urges that there is a special custom governing Sidhu Jats of village Panj Grain (the parties are Sidhu Jats of that village) which imposes certain conditions without observing which an appointment of an heir remaining invalid. Those conditions are contained in the answer to question No. 16 in the Riwaj-i-Am of the Faridkot State prepared during the Settlement operations held in 1946. The answer to that question is given in column No. 3 and runs as follows:

Jawab: Hamari qaum ka matabiq qaum jat dhilon ke hai yani mutbana banane ki shirait wa shagoon bradari men zarur kiye jawen aur registri bhi bazabta honl wajib hai magar aurat ki mutbana banane ka ilchtiar nahin hai. Mard shirait zabta kar sakta hai baboon is ke najaiz rahe ga.

No special custom was pleaded in the plaint and the Plaintiff failed to produce evidence in the trial court as to what the custom of Dhilon Jats in the matter of appointment of heirs was. He later obtained a copy of the Riwaj-i-Am of the Dhilon Jats and applied to the District Judge to admit it as additional evidence. That application was rejected as apparently there were no grounds for receiving it in evidence at that stage and the. Plaintiff should have been conscious of the grievous lacuna in the trial court. No evidence is thus present on the record to prove the relevant custom- amongst Dhilon Jats. Again evidence is lacking to show as to what conditions and shagoon were necessary to be observed to make an adoption in consonance with custom. In the case under examination, the document of adoption was duly registered and there is overwhelming evidence to prove that Mit Singh had brought up and treated the adoptee as his own son, so much so that he divested himself of his proprietary rights in his land rand invested Hari Singh with them during his own life. No breach of any fundamental or mandatory rule of custom has been proved. Bagga Singh lambardar and Kishan Singh Panch have stated that Gur was distributed when the appointment took place. The Plaintiff has not led any evidence to show as to what else his brotherhood would have required to be performed as indispensable conditions and ceremonies, to make the appointment valid. The Plaintiff did not challenge the alienation of the property in dispute effected by Mit Singh in favour of Hari Singh by mutation dated 4-12-1983. That gift was made about 19 years before the suit, and Hari Singh had by virtue of that gift become the owner of the land and had from the date of the transfer begun to hold it adversely to every claimant. I have, therefore, no hesitation in agreeing with the courts below that the claim of the Plaintiff for a declaration that the appointment of Hari Singh as his heir by Mit Singh was not valid must be dismissed.

The adoption and its validity have been abundantly proved. In the event of the declaratory relief being declined to the Plaintiff, his suit for possession based on the alleged invalidity of adoption, must also fail. I will, however, not close without deciding the question of limitation argued by Shri Nehra. It is necessary for every Plaintiff whose suit would be prima facie barred by limitation, to give in his plaint the ground or grounds of exemption, and if no ground is shown, the plaint would be liable to be .rejected. An inartistically drawn up plaint may not defeat the cause of action if it shows on the face of it the grounds of exemption. Courts might even overlook omission of a specific statement regarding the ground of exemption if that ground otherwise appears from the wording of the plaint, but it must be apparent from the plaint that exemption is claimed on a particular ground. In the present case, it was stated by the Plaintiff that he was a minor in existence on the date of the adoption by Mit Singh and that his suit was within time because of his minority. It was found during the trial of the suit however that the averment of the Plaintiff was not correct, that he had not been born on 26-2-1983 when the deed of adoption was executed by Mit Singh and that his date of birth was 14-6-1983. In spite of that proof concerning his birth, the Plaintiff did not amend the plaint so as to include the ground on which exemption from limitation could still be claimed. An after-born son under custom, can maintain a suit of this nature provided on the date of the impugned alienation some collaterals of the alienor competent to challenge the alienation were alive and they had not ratified it.

It was not urged in the plaint that the collaterals of Mit Singh were in existence on 26-2-1983 and that they had not ratified the adoption by their conduct or explicit consent. There was no assertion regarding the competency of the after-born Plaintiff to sue. The evidence examined in the case however revealed that some collaterals of Mit Singh were alive when he appointed Hari Singh and that Santa Singh father of the Plaintiff and Kaka Singh were two of them. The order dated 4-12-1983 on mutation No. 1734 shows that Santa Singh and Kaka Singh did not object to the transfer of the suit property by Mit Singh in favour of Hari Singh. Santa Singh consented to the alienation which implied his. Consent to the adoption of Hari Singh as well, as it was in consideration of his being his adopted son that Mit Singh had surrendered his rights in his favour. The Plaintiff, unless he could show that the con sent given by his father Santa Singh was mala fide would be bound by that consent. About Santa: Singh''s mala fides there is not even an allegation much less any proof. Neither the appointment of Hari Singh as his heir by Mit Singh nor the alienation made by Mit Singh by means of mutation No. 1734 was challenged by any collateral for 19 years. It was stated in the plaint that the cause of action had arisen on 26-2-1983. That being so, time had begun to run against all the collaterals of Mit Singh in existence on the date of the adoption and it had run out by the lapse of 6 years.

Shri Nehra urges that the limitation to challenge an invalid adoption under custom commences from the date of the knowledge of the claimant entitled to attack the adoption. No a date of knowledge was specified in the plaint and there Is no credible evidence that the collaterals of Mit Singh who were alive on the date of the adoption had not come to know of the adoption There is no evidence again as to when they came to know of it. In the presence of the specific allegation in the plaint that the cause of action had arisen on 26-2-1983, and in the absence of any proof that the collaterals of Mit Singh had not come to know of the adoption till within six years of the suit, the suit would be out of time as it was brought after 19 years of the adoption and the birth of the Plaintiff. If the Plaintiff in spite of his being an after-born son claimed a right to sue on the ground that the collaterals of the appointer competent to challenge the appointment of Hari Singh were in existence and had not ratified the adoption, he had to face the bar of limitation in that case also. If the suit by those reversioners had become time barred on account of the running of time from the date of the adoption as alleged in the plaint, and there is no material on the record suggesting that those reversioners had not come to know of the adoption from 26-2-1983, the Plaintiffs suit would also be barred as his subsequent birth and inability on account of minority could not stop the running of time that had once begun to run. In that view of the law the Plaintiff''s suit is hopelessly time barred.

It was next urged by Shri Nehra that since the Plaintiff was in his mother''s womb when the document of adoption was executed, he should be taken to have been a minor from the date of his conception. The Plaintiff would in that case have an independent right to sue irrespective of the existence of the other collaterals who may have even ratified the adoption. I am unable to accept that argument. A person can be said to be a minor only after he takes his birth in this world. Minority is the period between his birth and his attaining majority, and is never arterial. Shri Nehra has given an instance that a Hindu who is governed by the rule of survivorship, gets all the rights of a coparcener with his father from the date of his conception. That rule, no doubt, obtains by a legal Action and for certain purposes. Even in cases like the one cited as an instance by Shri Nehra the child is taken to be born in the sense only that he is given the right of inheritance in his father''s property. But that fiction cannot be extended to govern the rules prescribed by the law of limitation. Minority for purposes of limitation begins from date of the birth of a person and not from the date of his conception which it is impossible to determine exactly. If a cause of action accrues to a person in embryo he cannot claim the benefit of Section 6, Limitation Act, as he cannot be deemed to be a minor as stated above. Section 6 does not apply to the case of a minor who was born subsequent to the alienation impeached, because the law of limitation does not permit the computing of the period in which the child remains in embryo as the period of minority which begins from the date of his birth. A minor is a person who has not completed his age of 18 years and in reckoning the age of a person his ante-birth period cannot and is never counted. His age has to be computed from the date of his birth and for counting his age reference cannot be made to the time when he was conceived.

For all these reasons it must be held that the Plaintiff was not a minor when the adoption of Hari Singh took place, although he had been conceived. He is thus not entitled to the benefit of Section 6 as time had begun to run from the date of the adoption which happened when he was in embryo. The suit was obviously time barred. The appeal is dismissed with costs.