CHANDRABHAN Vs. RAJKUMAR

JUDGEMENT

(1.) This appeal arises from a suit brought on the basis of a mortgage, and the only question for determination is whether or not the suit is barred by limitation. A mortgage was executed on 14 April 1910, by two persons Dwarka Das and Jamna Das in favour of Sekhar Chand, father of the plaintiff. The plaintiff was at that time a minor, living jointly with his father. Sekhr Chand died in1912, and on 15 February 1913, Dwarka Das and Jamna Das executed a second mortgage in favour of Son-pal, father of the defendant, including in that mortgage a sum of Rs. 1,511, being the whole amount due as principal and interest on the mortgage of 14 April 1910. Sonpal deposited the sum due on the mortgage of 1910, but for certain reasons, which need not be specified, subsequently withdrew his deposit, and his application was automatically struck off on 10 April 1915. On 26th August 1919, defendant 1, the son of Sonpal, purchased the mortgagor's rights from Dwarka Das, and in the sale-deed credit was allowed for the amount due under the mortgage of 15 February1913. The suit: was brought on 14 March 1928, the plaintiff claiming that he was entitled to sue within three years of attaining his majority. The defence is two-fold. In the first place it is argued that the plaintiff attained his majority more than three years before filing the suit, and secondly that as time had begun to run against the plaintiff from the date of the mortgage, no subsequent disability could stop it as laid down by Section 9, Lim. Act, and consequently the plaintiff cannot claim the period of three years from the date of attaining majority under Section 6, Lim. Act.

(2.) Both parties have given evidence as to the plaintiff's age, he himself stated in accordance with the age in his certificate of guardianship that he became a major on 14 Novembor 1925. He also filed an extract from a register of births showng that he was born in the month of June 1905, in which case he would not attain majority till June 1926. The discrepancy between the two dates is relied upon by the defence as casting doubt on the plaintiff's evidence. We do not however consider that the discrepancy is material. The plaintiff undoubtedly felt himself bound to uphold the date given in the guardianship certificate, but such a certificate is not accepted by this Court as evidence of age, and in our opinion the age of the plaintiff should be determined by reference to the register of births and the oral evidence. The register shows that a son was born to Sakri Sania Saraogi, resident of Ganesh Katra maholla, in the town of Etah. It is now suggested that Sakri and Sekharchand are not the same, but there is nothing in the evidence to indicate that this point was raised in the lower Court. We have no doubt that Sakri represents the more formal name of Sekharchand, and the caste and the mohalla correspond to those of the plaintiff's father.

(3.) The defence witness Gulzarilal, who knew the plaintiff's father and is a member of the same community but wished to make out that the plaintiff was more than 25 years of age at the time of the suit, admitted that the plaintiff and his father lived in mahalla Katra, and that there is no other Sekharchand in the mahalla, and in cross-examination he stated that the plaintiff's father died in the hot weather of the Sambat year of 1970 or 1971 when the plaintiff was a boy of 8 or 9 years. Sambat 1970-71 corresponds to 1913 A.D., and puts the. plaintiff's birth in or about the year 1905, which is the year given in the birth register. We consider that the plaintiff is entitled to rely upon the facts elicited from this witness in cross-examination, and we accept the finding of the lower Court that the plaintiff filed the suit within three years of his attaining majority.