Case at a Glance
A woman who claimed to be the only daughter of a landowner who died around 1963, when she was a small child, sued for her share in 58 kanals 11 marlas of land, challenging a 1966 mutation attested exclusively in favour of another woman. The trial court decreed her suits in 2004, but the first appellate court reversed in 2012 on limitation and paternity. In second appeal, Justice Shahzad Azeem held that a minor cannot be imputed with knowledge of an adverse revenue entry so as to start limitation, that the defendants carried the burden on limitation and led no evidence, and that paternity was proved by other cogent evidence. The trial court’s decree was restored.
The appellant claimed to be the only daughter of Sonu of Village Machail Padder, Kishtwar, who died around 1963 when she was about six or seven. Mutation No. 43 dated 15 October 1966 was attested exclusively in favour of Smt. Shib Devi, who denied the appellant’s status as Sonu’s daughter and turned her out of the house. The appellant filed Suit No. 65/Civil on 14 September 1982 for a declaration of her share in land measuring 58 kanals 11 marlas (Khewat No. 01), a declaration against the mutation to the extent of her share, and possession; after Shib Devi’s death she filed Suit No. 61/Civil on 27 August 1991. The suits were clubbed.
On 9 March 2004 the Sub Judge, Kishtwar decreed both suits, finding her to be Sonu’s daughter on the basis of oral evidence, revenue entries proved by the Patwari and some admissions by the defence. On 7 November 2012 the District Judge, Kishtwar reversed, mainly on limitation and non-proof of paternity, fixing her year of birth as 1953–54. The High Court admitted the second appeal on 27 March 2023 on two substantial questions of law: whether the appellate court could go beyond the pleaded cause of action without contrary material, and whether limitation could be decided against the plaintiff when the defendants led no evidence on it.
The Key Question Before the Court
Does limitation for a daughter’s inheritance claim run from an adverse mutation entered while she was a minor, and can a first appellate court decide limitation against a plaintiff when the defendants, who bore the burden, led no evidence on it?
Minority, Burden of Proof and the Pleaded Cause of Action
The Court reiterated that “Section 6 of the Limitation Act provides that limitation does not run against a minor until he attains majority”, and that “A minor cannot be imputed with the knowledge of an adverse revenue entry in a manner that starts limitation against her”. The appellant was a minor both at her father’s death and when the mutation was attested, and the first appellate court had fixed the date of accrual on surmise. Relying on Mst. Rukhmabai v. Lala Laxminarayan, (1959) 11 SC CK 0018, AIR 1960 SC 335, the Court held that the right to sue accrues on a clear and unequivocal threat to the right, not on every ineffective denial, and that fresh refusals after Shib Devi’s death could give a fresh cause of action. The plaint pleaded that the defendants had refused to admit her rights and hand over possession, and the appellate court could not depart from that pleaded case without contrary material.
On burden, the Court noted that the limitation issue had been cast on the defendants, who led no evidence: “Where the defendants fail to lead evidence on a mixed issue of limitation, the issue must be decided against them.” If the appellate court thought the burden wrongly placed, it should have re-cast the issue and followed Order XLI Rules 25, 27 and 31 CPC. On paternity, the Court held that Section 50 of the Evidence Act had been misapplied, relying on Chowdamma v. Venkatappa, (2025) 08 SC CK 0185, 2025 SCC OnLine SC 1814, for reliance on witnesses with long-standing familiarity with the family, and added: “Non-examination of the mother is a relevant circumstance but is not fatal when other cogent evidence is available.”
What the Court Actually Held
- Limitation does not run against a minor until majority, and a minor cannot be imputed with knowledge of an adverse revenue entry so as to start limitation.
- The right to sue accrues on a clear and unequivocal threat to the right; fresh refusals can give rise to a fresh cause of action.
- Where the defendants bear the burden on a mixed issue of limitation and lead no evidence, the issue must be decided against them; paternity can be proved by oral evidence and conduct under Section 50 of the Evidence Act even without the mother’s testimony.
- Both substantial questions were answered for the appellant; the first appellate decree of 7 November 2012 was set aside as perverse and the trial court decree of 9 March 2004 restored; parties to bear their own costs.
Why This Judgment Matters
- Daughters are often left out of mutations made when they are children; the ruling protects their claims from being defeated on limitation.
- It reiterates that revenue entries made during minority do not by themselves start the limitation clock.
- It clarifies how burden of proof on limitation operates in appeals, and how paternity may be proved by relationship evidence.
What Should Advocates Take Away From the Judgment?
For Heirs
- If a mutation excluding you was made while you were a minor, limitation does not start from that entry alone.
- Relationship can be proved through witnesses familiar with the family and revenue records, even without a parent’s testimony.
For Counsel
- Plead the cause of action clearly, including refusals to admit the plaintiff’s rights; appellate courts cannot go beyond it without contrary material.
- Check on whom the limitation issue is cast; a party bearing the burden who leads no evidence will lose that issue.
Key Takeaways
- No limitation against a minor until majority (Section 6, Limitation Act).
- Adverse mutation during childhood does not start the clock.
- Defendants who bear the burden on limitation must lead evidence.
- Trial court decree in the daughter’s favour restored.
Frequently Asked Questions
Can an inheritance claim be time-barred because of an old mutation?
Not where the mutation was entered while the claimant was a minor. The High Court held that a minor cannot be imputed with knowledge of an adverse revenue entry so as to start limitation.
Why did the first appellate court’s decision fail?
It fixed the date of accrual on surmise, went beyond the pleaded cause of action, wrongly shifted the burden on limitation to the plaintiff, and misapplied Section 50 of the Evidence Act on paternity.
Is the mother’s testimony essential to prove paternity?
No. The Court said non-examination of the mother is a relevant circumstance but not fatal when other cogent evidence is available.
Conclusion
Mst. Themu v. Ram Nath ends litigation that began in 1982 over land mutated away when the claimant was a child. The High Court held that limitation could not be counted from an entry she could not have known of or challenged as a minor, and restored the trial court’s finding that she is her father’s daughter and heir.
Practical takeaway: When defending an heir’s claim against a limitation plea, establish the claimant’s age at the time of the adverse entry and place the burden on limitation where it belongs.
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