BASAYYA SHIVABASAYYA Vs. BASLINGAYYA CHANNAYYA

JUDGEMENT

(1.) 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.Be had no son at the time: but his wife gave birth to the plaintiff on March 28, 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 Article 126 of the first schedule to the Indian limitation Act, and that he could not claim the benefit of Section 6 or Section 8 of the Act. The Courts of 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.

(2.) 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 bom 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.

(3.) 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 Section 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. "