JAGANNADHADAS - (1.) THE Judgment of the court was delivered by :
(2.) THIS appeal arises out of a suit for declaration that the property, details of which are given in the plaint, are jointly possessed and owned by the plaintiff and the defendant, the plaintiff owning the share and defendant 1/4th Share. The suit was decreed by the trial court. But on appeal, the High court of Punjab reversed the decree. Hence the appeal to this court. The facts out of which this litigation arises are as follows: The suit properties admittedly belonged to one Kahan Singh who is the common ancestor of both the parties. The following pedigree shows the relationship: JUDGEMENT_263_AIR(SC)_1954Image1.jpg The plaintiff. Wall Singh, son of Shiv Singh was admittedly adopted by Kirpal Singh. The dates of birth and -adoption of Wall Singh were both matters in dispute in the suit. But it was found by the trial' court that Wall Singh was born on 2/3/1904, during the life-time of Kahan Singh and that he was adopted on 24/8/1918, long after Kahan Singh's death which occurred on 12/11/1906. These findings have been accepted by the appellate court and are no longer in dispute before us. Kahan Singh left him surviving only one' of his sons, Kirpal Singh and two great-grandsons. Wall Singh and Pritam, Singh, sons of Shiv Singh. Both Mohar Singh and Shiv Singh predeceased him. On Kahan Singh's death there was mutation regarding his properties in the Revenue Records. Ex. P-11 dated 28/3/1907, shows that the mutation was made in favour of Kirpal Singh for one half share and Wall Singh and Pritam Singh together for the other half share. The family appears to have properties In three villages, Mahalpur, Bahuwal and Wasuwal. Ex. P-11 relates only to mouza Mahalpur. But it is not disputed that similar mutations were then made to respect of properties to the other two villages Pritam Singh died on 19-5-1920, leaving the defendant, Singh, as his sole heir. it is to be noticed that about two years prior thereto, Wall Singh, the plaintiff, had been adopted by 265 Kirpal Singh. In view of these two events, Kirpal Singh brought About mutations in the Revenue registers in respect of the properties in the three villages. The mutations in respect of mouza Bahuwal are to be gathered from Exs. D-9 and D-4, dated 1/6/1920 and Ex. D- 8 dated 15/6/1920. By Ex. D-9, Wall Singh was mutated for Kirpal Singh. By Ex. D-4, Wall Singh's name was removed from the register as a coisharer with Pritam Singh in respect of Shiv Singh's half share Having thus brought about the entry showing Pritam Singh as the sole sharer of Shiv Singh's half share, Sohan Singh's name was thereafter substituted for that of Pritam Singh by Ex. D-8 dated 15/6/1920. The net result of these mutations was finally to show in respect of the lands in mouza Bahuwal the plaintiff Wall Singh, as owning the half share of Kirpal Singh and the drfendant, Sohan Singh, as the owner of the hall share of Pritam Singh. It will be seen that this result was brought about by means of three steps in the order specified above. As regards the other two villages namely Mahalpur and Wasuwal, the entries in Exs. D-3 and D-7 both dated 15/6/1920 which correspond only to the second step have been exhibited. But it is not diluted that the mutations in respect of these two villages also went through the same course bringing about finally the entries in the Revenue Records in the name of Wall Singh and Sohan singh as equal half-sharers. The case of the plaintiff is that these mutations were made during his minority completely ignoring his rights and that they are Ineffectual to alter his lawful share to the properties. He points out that by the date of Kahan Singh's death he was-born but not adapted and therefore he was lightly mutated in 1907 under Ex. P-11 as being entitled jointly with Pritam Singh to the hall share of Shiv Singh and that .his subsequent adoption by Kirpal Singh. entitled him to get Kripal Singh's half share in addition. He says that adoption could not dives' him of the other 1/2th share which he had become already entitled to as the son of Shiv Singh. His case is that though the Revenue records show his intrest to the landed properties only as hall and not as 2/4ths, his legal rights have not to any way become altered thereby since both the parties have been to joint possession throughout until the date of suit The main defence is that the enjoyment of parties since 1920 was on the box is that, each was entitled to a hall share and that the plaintiff not only did not take steps to get the Revenue records rectified but consciously acquiesced in it 'and admitted it and that the suit is barred by limitation. The trial court held that the suit was not barred under Art. 44, Limitation Act. In the view of the High court, the mutations effected to the year 1920 to respect of three villages amounted to a transfer Of the pre-existing 1/4ith share of Walf Singh by Kirpal Singh as his guardian, It was acordingly held that it was Incumbent upon Wali Singh to get the. transfer set aside with to three years after attaining majority notwithstanding that the parties may have continued to joint possession. In this view they dismissed the suit. Learned counsel for the plaintiff appellant urges that the mutation proceedings did not purport to be based on any transfer by Kirpal Singh condition of Wall Singh and that there is no for 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 thereto. 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 Wall Singh, Kirpal Singh's statement is as follows: "I Kirpal Singh have adopted Wall Singh, the grandson of my real brother, as my son, under a registered deed. Pritam Singh his other brother also died. His (Pritam Singh's) son is alive. I wish that during my lifetime my entire movable and Immovable property might 'be entered to the name of Wall Singh and accordingly Wall Singh shall have no concern with the property of Shib Singh. The son of Pritam Singh is a minor. His rights are not affected thereby." Wall Singh's statement is as follows: "My name may be removed from the heritage of Shib Singh. It may be entered to the name of the son of Pritam Singh. A separate mutation be entered to respect thereof." Mutation No. 174 to Ex. D-4 which was also made on the same date shows the following statement by Wall Singh. "My name may be removed from my parental heritage, because Kirpal Singh has adopted me as his. son. I now relinquish my right to 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 to respect of the villages Mahalpur and Wasuwal. The learned Judges were inclined to treat these statements as showing a. transfer by Kirpal Singh of Wall Singh's pre-adoption it 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 ended that Wall Singh should not have any are to his natural father's property. But to terms, what appears to have been done is to get Wall Singh to make a declaration of reliquishment of his share in Shiv Singh's heritage. The recitals do not purport to be based on any transfer or relinquishment by Kirpal Singh as the guardian of Wall Singh. The purorted release by the minor Wall Singh was absolutely infructuous to 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 to error in thinking that the plaintiff's suit was barred by virtue of Art. 44, Imitation Act. Learned counsel for the respondent, however, urges that to view oft the course oft 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 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. 266 he throughout conducted himself to 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 16/2/1943 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 for 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.
(3.) BUT we notice that the above aspect has not at all been raised to 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 to this court. The above mentioned facts were relied on in the courts below only to make out Pleas of acquiescence estoppel or ratifration which have been found, against. Besides, it appars 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 to no other point to dispute or any issue to be framed. We give it up it a mention of it is made to the pleadings." In these circumstances it is too late to allow this point to be raised at this stage. Besides, the plaintiff has a subsisting title and his legal right as three-fourth sharer has been dented at least to these proceedings. There is, therefore, no purpose served by dismissing this suit and by driving the parties to another litigation. In the result the appeal to allowed and the declaration ranted by the trial court restored. In the circumstances the parties will bear their own costs throughout;