1. The appeal is frivolous. In execution of a mortgage-decree obtained by Jhunai Lal against Madan Lal certain property was proclaimed for sale. Madan Lal had two brothers Onkar Das and Murli Dhar, out of whom Onkar Das had 'been adopted in another family and Murli Dhar had died leaving a son Natha, who is a minor. On the death of Madan Lal Onkar Das and Natha were impleaded as his legal representatives in the execution proceeding. Onkar Das filed an objection claiming that as his adoption was found to be invalid he reverted to his natural family and continued to live jointly with Madan Lal and that the mortgages made by Madan Lal, on foot of which the decree in execution had been obtained, were not binding on him. That objection was disallowed. A regular suit was then filed by him for a declaration of his title to the disputed property, which was dismissed on the 9th February 1923 on the ground that it was barred by time and that Onkar Das had failed to establish that he was the owner of the property in dispute and had been in possession of it within limitation, or that he had been living jointly with Madan Lal at the time of the mortgagee in question.
2. The present objection was filed in the same execution proceeding by Natha, reiterating what had been urged by Onkar Das before. The Court below has disallowed the same. Its finding in this case is that there had been a separation between Murli Dhar, the father of Natha and Madan Lal in 1903, in evidence whereof a deed of partition was executed and registered by Madan Lal and Murli Dhar on the 14th December 1903, that Murli Dhar had subsequently ratified the partition in the course of certain alienations which had been made by him in respect of some of the properties allotted to his share, and that the decision in the suit filed by Onkar Das, to which Natha was also a party as a defendant, operated as res judicata.
3. It is urged on behalf of Natha that Murli Dhar was a minor on the date of the partition aforesaid. Bat there is nothing to show that he was a minor at that time. On the other hand the deed of partition appears to have been executed and registered by Madan Lal and Murli Dhar personally, as if they were adults, and both parties subsequently made alienations of different portions of the properties allotted to their respective shares in pursuance of that partition. The property in dispute was allotted to Madan Lal. In the face of that deed of partition it cannot be said that Murli Dhar and Madan Lal were living jointly or that Natha, the son of Murli Dhar was entitled to question a transaction entered into by Madan Lal after separation.
4. In the application filed by Natha on the 15th November 1922 he described himself as 12 years old. The mortgages in question were effected in 1906 and 1908 so that he was not apparently even in existence when the mortgages were made, and in view of the decision of their Lordships of the Privy Council in Randip Singh v. Parmeshwar Pershad , Natha cannot take advantage of his minority or plead Sections 6 and 7 of the Indian Limitation Act, when limitation had already begun to run before his birth. The Court below moreover finds that Natha has not been in possession of the property in dispute from over 12 years and has no interest in it. The question of res judicata hardly arises. The appeal is dismissed.