B AUDHESH SINGH Vs. B RAJESHWARI SINGH

JUDGEMENT

(1.) The following three points arise for determination in this appeal; (1) Whether a child in womb can take advantage of the provisions of Sections 6 & 8, Limitation Act ? (2) Whether the sale in dispute in respect of 3 pies share in Khata khewat No. 8 is invalid, having regard to the provisions of para. 11 of Schedule 3, Civil P. C. ? & (3) Whether the defts. vendees are entitled to any compensation under Section 65, Contract Act, if the sale is held to be void in regard to 3 pies share o khata khewat No. 8 ? If so, to what amount ?

(2.) The material facts are as follows: On 13-10-1922, the pltf.'s father & uncle executed a deed of sale for Rs. 6,926 in favour of the defts. in regard to zamindari property situated in khata khewat Nos. 5, 8, 21, 33 & 35 of village Fatehpur in the district of Deoria. The pltf. was born 19 days later on 2-11-1922. We brought the suit from which this appeal arises on 11-5-1943, for the setting aside of the sale on two grounds: (1) that the sale was of ancestral property & was without consideration & legal necessity; (2) that so far as the zamindari in Khata Khewat No. 8 was concerned the sale was void because it was in contravention of para. 8 of Schedule 3, Civil P. C.

(3.) Both the Cts. below have held that the sale was for consideration & legal necessity, that the property in khata khewat Nos. 5, 21, 33 & 35 was non-ancestral but that in khata khewat No. 8 was ancestral. They further held that the sale in respect of khata khewat No. 8 was void because of para. 11 of Schedule 3, Civil P. C., but the pltf. could not avoid it because the suit was time barred under Article 126, Limitation Act, The suit was accordingly dismissed by both the Cts. below. The pltf. comes in appeal.