SHRINIWAS ABAJI DESAI Vs. DAMODAR APPAJI

JUDGEMENT

(1.) This is an appeal from an order passed by the District Judge of Bijapur remanding the respondent's darkhast to the executing Court. The respondent Damodar Pote is a subject of Jamkhandi State and is domiciled in that State. He was born on June 29, 1916, and during his minority, the Court of Wards, Jamkhandi, took over superintendence of his estate, and obtained a mortgage decree in the Court of the First Class Subordinate Judge at Bijapur against the appellants in Suit No. 69 of 1929 on July 24, 1930. The Court of Wards then gave a darkhast to execute the decree in 1932, but it proved infructuous and the darkhast was disposed of on January 31, 1934. The provisions of the Indian Majority Act, 1875, having been adopted by the Jamkhandi State, the respondent attained majority at the age of twenty-one on June 29, 1937, The Court of Wards then withdrew its superintendence on July 1, 1937, and the respondent presented this darkhast on February 9, 1940, to recover the decretal amount by sale of the mortgaged property. Although the decree itself showed that it had been obtained by the Court of Wards, the executing Court did not apply its mind to the question whether the respondent attained majority at the age of eighteen or twenty-one, and dismissed the darkhast as time-barred, with the bare remark that " it was not shown how the darkhast was in time." The respondent appealed against that order and the learned District Judge held that the darkhast would be in time if the superintendence of the decree-holder's estate was assumed by the Court of Wards of Jamakhandi State before he attained the age of eighteen years, and if the darkhast was presented within three years of his having attained the age of twenty-one years. The respondent has put in an extract from the birth register to show that he was born on June 29, 1916, but as these questions were not considered by the executing Court, the darkhast was remanded for disposal according to law.

(2.) It is now urged on behalf of the appellants that even assuming that the respondent was born on June 29, 1916, he should be deemed to have attained majority on June 29, 1934, since he, not being domiciled in British India, is not entitled to the benefit of Section 3 of the Indian Majority Act, 1875. There is no doubt that the Indian Majority Act, 1875, is intended "to prolong the period of non-age" and fix the age of majority " in the case of persons domiciled in British India." Hence the Act is not applicable to those who, though residing or having dealings in British India, are not domiciled there. In the case of such persons the age of their majority is to be determined by the law of their domicile. In Udny V/s. Udny (1669) L.R. 1 H.L. Sc. 441 decided by the House of Lords in 1869, Lord Westbury observed (p. 457): The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his, majority or minority, his marriage, succession, testacy, or intestacy, must depend.

(3.) In Rokilkhand and Kumaun Bank V/s. Row (1885) I.L.R. 7 All. 490 it was held that the Indian Majority Act, 1875, being not applicable to European British subjects not domiciled in India, the law of their domicile determined their age of majority, and that in spite of Section 3 of the Act, they did not attain majority till the age of twenty-one. It obviously leads to inconvenience and confusion if a person be a minor in one place and a major in another. Hence the civil status is always to be determined by unless there is any statutory provision to the contrary. The benefit of the Extended period of limitation under Section 6 of the Indian Limitation Act can be claimed by a "minor" and under that section read with Section 8 he can file a darkhast within three years after attaining majority. The word " minor " is not defined in that Act. Those sections do not specify the age of majority, and if the Indian Majority Act, 1875, is not applicable, the age of majority must be determined according to the law of domicile. Mr. Gumaste for the appellants contends that since the respondent cannot claim the benefit of the first part of Section 3 of the Indian Majority Act, he must be deemed to have attained his majority at the age of eighteen under the second part of that section, whatever be his age of majority in the Jamakhandi State. If the respondent s, age of majority be twenty- one in the place of his domicile, the Indian Majority Act,. 1875, is not intended to reduce the period of non-age of foreigners not domiciled in British India. If the first part of Section 3 is not applicable to the respondent, the second part also is equally inapplicable. It is, therefore, necessary to see what is his age of majority according to the law of his domicile. In the Allahabad full bench case cited above, Oldfield J. observed (p. 501): .. .the Legislature would appear, - by limiting the operation of the [Indian Majority} Act (Act IX of 1875) to persons domiciled in British India, to have intentionally excluded, from its operation persons not domiciled there, and to have left such persons to be governed by the law of their domicile.