Phool Singh and Others vs Ram Sarup and Others

Rajendra Nath Mittal, J.—This second appeal has been filed by the Plaintiffs against the judgment and decree of the Senior Subordinate Judge, Bhiwani, dated 19th May, 1975.

In order to appreciate the facts, she following pedigree table will be helpful:

Briefly, the facts are that Ramji Lal, a Jat governed by customary law, sold the land in dispute to Defendants Nos. 1 to 3 for a consideration of Rs. 4000/- vide sale-deed dated 29th December, 1953. On the date of sale, Rohtas Defendant No. 4 had born and Phul Singh Plaintiff No. 1 was in embryo, who was later born on 12th April, 1954. Hazari and Mohinder, Plaintiffs Nos. 2 and 3, were born much after the sale. The Plaintiffs filed a usual declaratory suit challenging the sale on the grounds that the land was ancestral qua them and that the sale was without consideration and legal necessity.

The suit was contested by Defendants Nos. 1 to 3 who controverted the allegations of the Plaintiffs and inter alia pleaded that the land was non-ancestral and that the sale was for consideration and legal necessity. They further pleaded that the suit was not within limitation.

The trial Court held that the parties were governed by custom, that the land was ancestral and that the sale was without consideration and legal necessity. However, it held that the suit was not within limitation. In view of the finding on the issue of limitation, it dismissed the suit. In appeal by the Plaintiffs, the only question canvassed was that of limitation. The appellate Court affirmed the finding of the trial Court on the said question and dismissed the appeal. The Plaintiffs have come up in second appeal to this Court.

The only question that arises for determination is whether Phul Singh Appellant No. 1, who was in his mother''s womb and Hazari and Mohinder, who were born after the sale, are entitled to the benefit of Section 6 of the Limitation Act.

Mr. Dhillon has strenuously argued that Section 6 ibid is applicable to the present case as Phul Singh was in the womb on the date of sale and, therefore, he by legal fiction would be deemed to be a minor and that Hazari and Mohinder, who were born subsequently, would be entitled to the same period of limitation to which Phul Singh was entitled. In support of his contention, he places reliance on Harnam Singh v. Aziz AIR 1938 Lah. 1 and AIR 1939 196 (Lahore)

I have given due consideration to the argument of the Learned Counsel but regret my inability to accept it. Sub-section (1) of Section 6 inter alia prescribes that where a person entitled to institute a suit is, at the time from which the prescribed period 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 specified therefor in the third column of the Schedule.

The question now to be seen is whether a child in the womb is considered a minor for the purposes of the said section. The matter is not res Integra. It has been considered by the two Division Benches of Lahore High Court in AIR 1929 254 (Lahore) and AIR 1939 290 (Lahore) In Muhammad Khan''s case (supra), the Bench presided over by Shadi Lal, C.J. observed that a child en ventre sa mare is to be considered as born, and the right of a son to take objection to the alienation made by his father dates not from the hour of his birth, but from that of his conception It was further observed that where a cause of action accrued to a person when he was in embryo, he cannot get the advantage of Section 6 as he cannot be deemed to be a minor in existence on the date of the conception. This case was followed in Firm Chuni Lal Rali Ram''s case (supra). The following observations of the learned Bench may be read with advantange:

Under Section 6, Limitation Act, a minor can get extension of time if he is under a legal disability at the time when a cause, of action, accrued to him

.. The period of limitation runs from the date of the execution of the deed and not from the date of the conception of the Plaintiff Under certain systems of law, such as Hindu Law, a child en ventre sa mare is by a legal fiction and for certain purposes considered to be born in the sense that he has a right of inheritance in his father''s property but such a fiction does not govern the rule laid down by the law of limitation." I respectfully agree with the above observations. It, therefore, emerges that a son, who was in embryo at the time of an alienation by his father, can challenge it after his birth, but he is not entitled to the benefit of Section 6 of the Limitation Act as he cannot be deemed to be a minor. It is well-sattled that if a son of an alienor is alive on the date of an alienation and another son is born after the alienation, the latter is also entitled to challenge the alienation within the same period of limitation within which the son who was in existence on the date of alienation is entitled to do.

In the present case, Phul Singh was not born on the date of sale and, therefore, he is not entitled to the benefit of Section 6 of the Limitation Act. He could file the suit for challenging the sale within six years from the date of sale under Article 1 of the Punjab Limitation (Custom) Act, 1920. Hazari and Mohinder could also file the suit for that purpose within the said period The two cases refer-red to by Mr. Dhillon are distinguishable. In none of those cases, the alienations were challenged by the sons who were in embryo on the date of alienation. In my view, Mr. Dhillon cannot derive any benefit from the ratio in the said cases.

For the aforesaid reasons, I do not find any merit in the appeal and dismiss the same. No order as to costs.