VENKATARAMA AIYAR Vs. MIRTHINJAYA AIYAR

JUDGEMENT

(1.) The plaintiff is the appellant. The only question of law for decision in this Second Appeal is, whether the plaintiff's suit to set aside the alienation made by his father of 45 cents of land included in the sale-deed, Ex. C, is barred by limitation under Art. 126 of the Limitation Act.

(2.) Both the Lower Courts have found that the alienation was not supported by necessity and this finding has not been questioned before me. Art. 126 of the Limitation Act provides 12 years as the period of limitation for a suit by a Hindu governed by the law of the Mitakshara to set aside his father's alienation of ancestral property. The starting point of limitation is the date "when the alienee takes, possession of the property." The alienation was made on 26 June, 1901, and it is admitted that the alienee took possession of the property on the same date. The suit having been brought only on 16 August, 1922, that is, more than 21 years after the date of taking possession by the alienee, prima facie is barred by limitation under Art. 126. On 26 June, 1901, when the alienee took possession of the property the appellant was in his mother's womb and was not born. He was born only on 18 August, 1901. Section 6 (1) of the Limitation Act provides that Where a person entitled to institute a suit...is, at the time from which the period of limitation 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 prescribed therefor in the third column of the first schedule.

(3.) On behalf of the appellant it is argued that he is entitled to claim the benefit of Section 6 of the Limitation Act and that the plaintiff, though he was not born on 26 June, 1901, should be deemed to be a minor at that date as he was in his mother's womb and that the period of limitation should be reckoned from the date of his birth, 18 August, 1901. If this is permissible, then the suit will be within time having been instituted two days before the lapse of time. The appellant's argument is based on the ground that a child in the mother's womb is supposed to be born for certain purposes such as for partition and the making of a will, etc. He argues why should not, on the same reasoning, a child in the mother's womb be regarded as a minor for purposes of Section 6 of the Limitation Act ? On the other hand, the respondents argue that the term "minor" used in Section 6 can be understood only with reference to persons physically in existence and that it is meaningless to apply it with respect to an unborn being in the womb. The question is whether the plaintiff who was born on 18 August, 1901, should be deemed to be a minor on 26 June, 1901, when the alienee took possession of the property.