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Second Appeal from order No. 25 of 1956, decided on 30th January 1957, from the order of Sh. Farooq Ahmad, Additional District Judge, Gujrat, dated the 9th June 1956.

O. XLI, rr. 27 & 23‑A‑Negligence of next friend of minor‑Next friend not producing necessary evidence‑Court can remand case for record ing additional evidence.

S. 6‑Declaratory suit under custom by son who had been conceived but not begotten on date of alienation‑Plaintiff cannot get advantage of S.6.

Ranodip Singh v. Parmeshwar Parashad A I R 1925 P C 33 and Muhammad Khan v. Ahmed Khan A I R 1929 Lah. 254 (2) rel.

Said Akbar for Appellants.

Ghulam Haider Shah for Respondents.

Date of hearing: 22nd January 1957.

This appeal arises out of a suit filed by Fazal Haq alias Abdul Khaliq respondent impeaching a sale made by his father Gulab Khan of occupancy rights in 8 kanals and 2 marlas of land in village Bher Khurd, Tahsil Kharian, District Gujrat. in favour of Ali Muhammad and Muhammad Ilahi respondents, on the ground that the land sold was ancestral and the sale was without consideration and necessity and was, therefore, invalid under custom. The suit was contested on a number of points which will appear from the following issues which were framed:‑

(1) Whether the plaintiff is the son of the alienor

(2) Whether the plaintiff's suit is within time

(3) Whether the suit land is ancestral qua the plaintiff and the alienor

(4) Whether the common ancestor of the plaintiff and the alienor occupied the suit land If not, with what effect

(5) Whether the sale id suit was made for consideration and necessity

(6) Whether the plaintiff's suit is collusive and with what effect

(7) Whether the plaintiff has no right to sue in the presence of the other heirs of the alienor

All the issues, except the first, were decided in favour of the plaintiff. The suit, however, had to be dismissed on account of the finding on issue No. 1. It may be mentioned that the plaintiff was a minor when the suit was filed and continued to be a minor at the time of the appeal. On appeal, the learn ed District judge remanded the case for allowing to the plaintiff a further opportunity to produce evidence with respect to the question whether the birth entry produced by him related to him. The learned District judge, held that the negligence of the next friend of the minor in not producing evidence which obviously was needed should not be allowed to prejudice the minor. This is an appeal by the defendants against the order of remand.

The alienation which is oral had in this case been made on the 30th of August 1938, the mutation having been sanctioned

The alienation which is oral had in this case been on the 30^th of August 1938, the mutation having been sanctioned on the 20th of September 1938. The plaintiff produced an entry of a register of births relating to Jhelum town according to which a son, named Abdul Khaliq, had been born to one Gulab Khan, son of Nizam Din, caste Jat, by the plaintiff alleged that this entry related to him. Gulab Khan, the vendor, is no doubt the son of Nizam Din and his caste is Jat, but he belong ed to village Mehr Khurd of Tehsil Kharian. No evidence had been led at the hearing by the plaintiff to show that Gulab Khan vendor was living in Jhelum on the 26th of February 1939, in order to connect the birth entry with himself. It should be explained here that although a finding has been given on issue No. 1 against the plaintiff, it is not the case for the defendants (as has been admitted before me by learned counsel, for the defendants) that the person on whose behalf the suit had been filed is not the son of Gulab Khan at all. They admit that Fazal Haq is a son of Gulab Khan. What they contend is that there is no son of Gulab Khan, who is Fazal Haq alias Abdul Khaliq and to whom this birth entry relates. The finding of the trial Court on issue No. 1 is really only the acceptance of the contention of the defendants that the birth entry is not proved to relate to the plaintiff, and is not intended to mean that the plaintiff Fazl‑i‑Haq is not the son of Gulab Khan at all. There is a finding of the learned District judge too agreeing with the finding of the trial Court on issue No. 1, but that finding should also be regarded only as meaning that the entry is not proved to relate to the plaintiff.

The learned District judge was of the opinion that the next friend of the plaintiff was negligent in leading no evidence at all as to whether the father of the plaintiff was living at Jhelum at the time when the plaintiff is alleged to have been born. He remanded the case, therefore, for further evidence on the point.

If this case were to be decided only on the question as to whether in view of the negligence of the plaintiff a further opportunity for evidence should have been given, I would certainly agree with the learned District Judge. As far as possible a minor should not be allowed to be prejudiced by the conduct of his next friend. Learned counsel for the appellants has however urged that the remand is useless for even if the entry be held to relate to the plaintiff, the suit would still be time‑barred and to allow the order of remand to stand would only mean further and unnecessary expenses to the parties. He contends that the learned District Judge should, before he ordered a remand, have considered the question whether even if the plaintiff was held to be Abdul Khaliq and to have been born on the 26th of February 1939, the suit would not be time‑barred.

Admittedly the plaintiff was not born on the date when the sale was made and even on the date when the mutation of sale was sanctioned. Limitation had already begun to run when he was born and section 6 of the Limitation Act is of no avail in such a case. Although on account of the fact that the plaintiff had already been conceived on the date of the alienation, he would have a right .of suit he cannot claim an extended period of limitation by virtue of section 6 of the Limitation Act. That is not a question on which there can be two opinions. The section is clear. It applies only to al case where at the time from which limitation is to be reckoned, a person is under any disability. In this case the person was) not in existence at all. If any authority were needed for this, proposition, I would refer to Ranodip Singh v. Parmeshmar Parashad (AIR 1925 P C 33) and Muhammad Khan v. Ahmed Khan (A I R 1929 Lah. 254 (2)). The last‑mentioned case is on all fours with the present case, being a declaratory suit under custom by a son who had been conceived but not begotten on the date of alienation.

Under the circumstances, it is no use prolonging these proceedings by a remand. I accept this appeal and dismiss the plaintiff's suit, but direct that the parties shall bear their own costs throughout.

K. M. A. Appeal accepted.

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