Case: Wali Singh Vs. Sohan Singh

years after attaining majority notwithstanding that the parties may have continued in joint possession. In this view they dismissed the suit.4. Learned counsel for the plaintiff-appellant urges that the mutation proceedings did not purport to be based on any transfer by Kirpal Singh as guardian of Wali Singh and that there is no basis for invoking the application of Article 44 against the plaintiff. The inference of the High Court that the mutation proceedings in 1920 constitute a transfer is based on the narrations therein. It is necessary, therefore, to examine them. The first was the mutation entry No. 167 shown by Ex. D-9 dated 1-6-1920. This entry shows that the mutation was made on certain statements made by Kirpal Singh and Wali Singh.Kirpal Singhs statement is as follows:"I Kirpal Singh have adopted Wali Singh, the grandson of my real brother, as my son, under a registered deed. Pritam Singh his other brother also died. His (Pritam Singhs) son is alive. I wish that during my lifetime my entire movable and immovable property might be entered in the name of Wali Singh and accordingly Wali Singh shall have so concern with the property of Shib Singh. The son of Pritam Singh is a minor. His rights are not affected thereby."Wali Singhs statement is as follows:"My name may be removed from the heritage, of Shib Singh. It may be entered in the name of the son of Pritam Singh. A separate mutation be entered in respect thereof."Mutation No. 174 in Ex. D-4 which was also made on the same date shows the following statement by Wali Singh."My name may be removed from my parental heritage, because Kirpal Singh had adopted me as his son. I now relinquish my right in the heritage of my father."Mutation entry No. 175 shown by Ex. D-8 dated 15-6-1920, was merely the resultant of mutation entries Nos. 167 and 174. These statements relate to Bahuwal. It may be taken that similar statements were made in respect of the villages Mahalpur and Wasuwal. The learned Judges were inclined to treat these statements as showing a transfer by Kirpal Singh of Wali Singhs pre-adoption 1/4th share.It appears to us, however, that they cannot really bear any such interpretation. It is true that the various mutations were brought about by Kirpal Singh and that Wali Singh was a minor at the time to the knowledge of everybody concerned. It is also true that Kirpal Singh intended that Wali Singh should not have any share in his natural fathers property.But in terms, what appears to have been done was to get Wali Singh to make a declaration of relinquishment of his share in Shiv Singhs heritage. The recitals do not purport to be based on any transfer or relinquishment by Kirpal Singh as the guardian of Wali Singh. The purported release by the minor Wali Singh was absolutely infructuous in law. There being nothing by way of release by Kirpal Singh on behalf of Wali Singh, no case for the application of Article 44 of the Limitation Act arose. We are, therefore, of the opinion that the learned Judges of the High Court were in error in thinking that the plaintiffs suit was barred by virtue of Art. 44, Limitation Act.5. Learned counsel for the respondent, however, urges that in view of the course of events appearing on the record the plaintiff is not entitled to any declaratory relief and that the same is barred by limitation under Art. 120, Limitation Act. He urges that even if knowledge of the wrong entries in the revenue records of the year 1920 did not furnish the plaintiff a cause of action since he was then a minor, there are a number of subsequent proceedings which indicate not only that he was perfectly well aware of his situation from at least the year 1928 but also that he throughout conducted himself in his relations with the respondent as an equal sharer and went so far as to become a party to a joint application for partition of the family properties in equal shares between himself and the defendant so late as in the year 1943.Exs. D-10 and D-12 dated 7-12-1928 Ex. D-1 dated 15-7-1937, Exs. A and B dated 26-2-1943, and Exs. D-5, D-6 and D-11 of the year 1944 have been relied on in support of the above contention. It is also pointed out that the averments made by the plaintiff in paras 5 and 6 of the plaint as to when the right to sue accrued and cause of action arose have not been substantiated in the evidence at the trial. It is urged, therefore, that whatever cause of action the plaintiff had or a declaratory relief, it was much more than six years prior to suit and that no fresh cause of action has been made out and that, therefore, the present suit is barred on this ground.6. But we notice that the above aspect has not at all been raised in the Courts below. There is no mention of it in the grounds of appeal to the High Court or in the case filed for the respondent in this court. The above mentioned facts were relied on in the courts below only to make out pleas of acquiescee, estoppel or ratification which have been found against. Besides, it appears from the record that when the issues were framed by the trial Court, it was expressly recorded as follows in a statement signed by counsel for both the parties."There is no other point in dispute or any issue to be framed. We give it up if a mention of it is made in the pleadings."In these circumstances it is too late to allow this point to be raised at this state.Besides, the plaintiff has a subsisting title and his legal right as three-fourth sharer has been denied at least in these proceedings. There is, therefore, no purpose served by dismissing this suit and by driving the parties to another litigation.7.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is true that the various mutations were brought about by Kirpal Singh and that Wali Singh was a minor at the time to the knowledge of everybody concerned. It is also true that Kirpal Singh intended that Wali Singh should not have any share in his natural fathers property.But in terms, what appears to have been done was to get Wali Singh to make a declaration of relinquishment of his share in Shiv Singhs heritage. The recitals do not purport to be based on any transfer or relinquishment by Kirpal Singh as the guardian of Wali Singh. The purported release by the minor Wali Singh was absolutely infructuous in law. There being nothing by way of release by Kirpal Singh on behalf of Wali Singh, no case for the application of Article 44 of the Limitation Act arose. We are, therefore, of the opinion that the learned Judges of the High Court were in error in thinking that the plaintiffs suit was barred by virtue of Art. 44, Limitation Act.But we notice that the above aspect has not at all been raised in the Courts below. There is no mention of it in the grounds of appeal to the High Court or in the case filed for the respondent in this court. The above mentioned facts were relied on in the courts below only to make out pleas of acquiescee, estoppel or ratification which have been found against. Besides, it appears from the record that when the issues were framed by the trial Court, it was expressly recorded as follows in a statement signed by counsel for both the parties."There is no other point in dispute or any issue to be framed. We give it up if a mention of it is made in the pleadings."In these circumstances it is too late to allow this point to be raised at this state.Besides, the plaintiff has a subsisting title and his legal right assharer has been denied at least in these proceedings. There is, therefore, no purpose served by dismissing this suit and by driving the parties to another litigation.