Wali Singh vs Sohan Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 26 October 1953

Coram: Jagannadhadas J., B.K. Mukherjea

In this matter, the Supreme Court of India considered an appeal filed on 26 October 1953, authored by Justice B.K. Mukherjea and reported as judgment of Justice Jagannadhadas. The appeal originated from a suit seeking a declaration that the immovable property described in the plaint was jointly possessed and owned by the plaintiff and the defendant, with the plaintiff entitled to three-quarters of the interest and the defendant to one-quarter. The trial court had granted a decree in favour of the plaintiff, but that decree was set aside by the High Court of Punjab on appeal. Consequently, the parties appealed to the Supreme Court. The factual background presented to the Court indicated that the suit properties were admittedly the assets of a man named Kahan Singh, who was the common ancestor of both litigants. A pedigree diagram showed Kahan Singh at the apex, with his two surviving sons, Kirpal Singh and Mohar Singh, and a grandson, Shiv Singh, beneath him. The plaintiff, Wali Singh, was the son of Shiv Singh and was adopted by Kirpal Singh. The dates of Wali Singh’s birth and adoption had been disputed, but the trial court determined that he was born on 2 March 1904, during Kahan Singh’s lifetime, and was adopted on 24 August 1918, which was after Kahan Singh’s death on 12 November 1906. Both the trial court and the appellate court accepted these findings, and they were not contested before the Supreme Court. At the time of Kahan Singh’s death, he was survived by only one son, Kirpal Singh, and two great-grandsons, Wali Singh and Pritam Singh (the latter also a son of Shiv Singh). Both Mohar Singh and Shiv Singh had predeceased Kahan Singh. Following Kahan Singh’s death, a mutation of his lands was entered in the revenue records. Exhibit P-11, dated 28 March 1907, recorded that one half-share of the property was allotted to Kirpal Singh, while the other half-share was allotted jointly to Wali Singh and Pritam Singh. The family owned lands in three villages – Mahalpur, Bahuwal and Wasuwal – and although Exhibit P-11 pertained only to the mouza of Mahalpur, it was not disputed that comparable mutations were effected for the lands in the other two villages.

Subsequently, Pritam Singh died on 19 May 1920, leaving the defendant, Sohan Singh, as his sole heir. It is noteworthy that approximately two years before that death, the plaintiff, Wali Singh, had been adopted by Kirpal Singh. In consequence of these two events, Kirpal Singh initiated further mutations in the revenue registers concerning the properties situated in the three villages. The mutations affecting the mouza of Bahuwal are documented in Exhibits D-9 and D-4, dated 1 June 1920, and Exhibit D-8, dated 15 June 1920. Exhibit D-9 shows a mutation in which Wali Singh’s name was entered in place of Kirpal Singh’s. Exhibit D-4 records the removal of Wali Singh’s name from the register as a co-sharer with Pritam Singh in respect of Shiv Singh’s half-share. By creating an entry that listed Pritam Singh as the sole sharer of Shiv Singh’s half-share, the register subsequently recorded the substitution of Sohan Singh’s name for that of Pritam Singh, as reflected in Exhibit D-8 dated 15 June 1920. The net effect of these sequential mutations was to show, in the revenue records for the lands in mouza Bahuwal, that the plaintiff, Wali Singh, held the half-share originally belonging to Kirpal Singh, while the defendant, Sohan Singh, held the half-share originally belonging to Pritam Singh. The plaintiff contended that these mutations were effected while he was a minor, completely disregarding his legal rights, and therefore should be deemed ineffective to alter his lawful share in the properties.

According to the document identified as Exhibit D-8 dated 15-June-1920, the name of Sohan Singh was entered in place of the name of Pritam Singh. The cumulative effect of the series of mutations that were carried out resulted in the revenue records for the lands situated in mouza Bahuwal showing that the plaintiff, Wali Singh, held the half-share that previously belonged to Kirpal Singh, while the defendant, Sohan Singh, held the half-share that had formerly belonged to Pritam Singh. This outcome was achieved through three successive steps that had been described earlier. Concerning the other two villages, namely Mahalpur and Wasuwal, the entries displayed in Exhibits D-3 and D-7, both dated 15-June-1920, correspond only to the second step of the process, yet it is not contested that the mutations in those villages followed the same sequence and ultimately produced revenue entries that named Wali Singh and Sohan Singh as equal half-sharers of the property.

The plaintiff contended that the mutations were effected while he was still a minor and that they entirely disregarded his legal rights, rendering them ineffective to alter his lawful share in the lands. He pointed out that at the time of Kirpal Singh’s death he was alive but had not yet been adopted, and therefore his 1907 mutation recorded in Exhibit P-11 correctly reflected his joint entitlement with Pritam Singh to Shiv Singh’s half-share. He argued that the subsequent adoption by Kirpal Singh merely added Kirpal Singh’s half-share to his interest and could not divest him of the one-quarter share that he had already acquired as Shiv Singh’s son. Although the revenue records displayed his interest as only a half-share rather than three-quarters, the plaintiff asserted that his legal rights remained unchanged because both parties had continued to possess the land jointly up to the filing of the suit.

The principal defence advanced by the defendant was that, since 1920, each party had enjoyed the property on the basis of a half-share, that the plaintiff had taken no steps to have the revenue records corrected, that he had knowingly acquiesced to the half-share arrangement and even acknowledged it, and that the suit was therefore barred by limitation. The trial court held that the suit was not barred under Article 44 of the Limitation Act. The High Court, however, interpreted the 1920 mutations affecting the three villages as a transfer of the pre-existing one-quarter share of Wali Singh by Kirpal Singh acting as his guardian. It therefore held that Wali Singh was required to set aside that transfer within three years of attaining majority, regardless of the parties’ continued joint possession, and consequently dismissed the suit.

The appellant’s counsel argued that the mutation proceedings were not premised on any transfer by Kirpal Singh as guardian of Wali Singh and that there was no basis for applying Article 44 against the plaintiff. The High Court’s inference that the 1920 mutation entries amounted to a transfer was predicated on the narrations contained in those entries, an issue that required further examination.

In reviewing the claim that Article 44 of the Limitation Act applied against the plaintiff, the Court noted that the High Court had inferred that the mutation proceedings of 1920 amounted to a transfer on the basis of the statements recorded therein. The Court therefore examined those statements in detail. The first relevant entry was mutation No 167, reproduced as Exhibit D-9 and dated 1-6-1920. That entry recorded that the mutation was effected on the basis of statements made by both Kirpal Singh and Wali Singh. Kirpal Singh’s statement read 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 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 no concern with the property of Shib Singh. The son of Pritam Singh is a minor. His rights are not affected; thereby.” Wali Singh’s accompanying statement said: “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.” The second entry, mutation No 174, shown as Exhibit D-4 and dated the same day, recorded a further declaration by Wali Singh stating: “My name may be removed from my parental heritage, because Kirpal Singh has adopted me as his son. I now relinquish my right in the heritage of my father.” The third entry, mutation No 175, reproduced as Exhibit D-8 and dated 15-6-1920, was simply the logical consequence of entries 167 and 174. Those statements pertained to the village of Bahuwal, and the Court inferred that similar declarations were made for the villages of Mahalpur and Wasuwal. The learned Judges of the High Court had been inclined to treat these declarations as indicating that Kirpal Singh had transferred Wali Singh’s pre-adoption one-quarter share. The present Court, however, found that such an interpretation was not supported by the records. It acknowledged that the mutations were initiated by Kirpal Singh and that Wali Singh was a minor at the time, a fact known to all parties. It also accepted that Kirpal Singh intended that Wali Singh should not retain any share in his natural father’s property. Nonetheless, the Court concluded that what actually occurred was that Wali Singh was asked to make a declaration relinquishing his share in Shiv Singh’s heritage. The recitals did not indicate any transfer or relinquishment made by Kirpal Singh in his capacity as guardian of the minor. Consequently, the purported release by the minor Wali Singh was legally ineffective. Because there was no release effected by Kirpal Singh on behalf of Wali Singh, no ground existed for applying Article 44 of the Limitation Act. Accordingly, the Court held that the High Court erred in concluding that the plaintiff’s suit was barred by virtue of Article 44, Limitation Act. 5. Learned

The counsel for the respondent argued that, based on the sequence of events recorded in the case file, the plaintiff was not entitled to any declaratory relief because the claim was barred by the limitation period prescribed in Article 120 of the Limitation Act. He further contended that, even if the plaintiff’s knowledge of the erroneous entries in the Revenue records of 1920 did not give rise to a cause of action at that time because the plaintiff was a minor, a series of later proceedings demonstrated that the plaintiff had been fully aware of his position from at least 1928 onward. Moreover, the plaintiff had consistently dealt with the respondent as an equal co-sharer and had even joined the respondent in a joint application for partition of the family property on the basis of equal shares as late as 1943. To support this contention, the respondent relied upon Exhibits D-10 and D-12 dated 7-12-1928, Exhibit D-1 dated 15-7-1937, Exhibits A and B dated 26-2-1943, and Exhibits D-5, D-6 and D-11 of 1944. The respondent also pointed out that the plaintiff’s statements in paragraphs 5 and 6 of the plaint, concerning the moment when the right to sue accrued and when the cause of action arose, were not corroborated by any evidence presented at trial. Consequently, the respondent maintained that any cause of action the plaintiff might have had for declaratory relief dated back more than six years before the filing of the suit, that no new cause of action had been established, and that, on this basis, the suit was barred by limitation. The Court observed, however, that this limitation argument had never been raised before the lower courts; it did not appear in the appellant’s grounds of appeal to the High Court nor in the respondent’s pleadings before this Court. The same facts had been invoked earlier only to support pleas of acquiescence, estoppel or ratification, all of which had been rejected. The trial Court record further showed that, when issues were being framed, both parties signed a statement declaring that no other point was in dispute and that any such point would be abandoned if raised in the pleadings. In view of that statement, the Court held that it was too late to introduce the limitation argument at this stage. Additionally, the plaintiff possessed a subsisting title and his legal right as a three-fourths sharer had been denied in the earlier proceedings; therefore, dismissing the suit would serve no useful purpose and would only precipitate fresh litigation. Accordingly, the appeal was allowed, the declaration granted by the trial Court was restored, and each party was ordered to bear its own costs throughout the proceedings.