JUDGMENT Malik, J. - This case has a chequered history. One Ali Tamkin executed a mortgage for Rs. 5,000 in favour of Bhagwan Das on the 10th June, 1922. Various payments were made by or on behalf of the mortgagor till the 5th November, 1926. For the balance of the amount a suit No. 9 of 1934 was filed by Bhagwan Das in the Court of the Subordinate Judge of Bijnor, district Moradabad, on the 29th May, 1934. Ali Tamkin had die before the filing of the suit and Bnagwan Das impleaded as Defendants to the setion various relations of Ali Tamkin who were his legal representatives under the Mohammadan One of such persons who was impleaded was Syed All Yaqin, son of All Hasan. Ali Yaqin was impleaded as a major and no prayer was made in the plaint for appointment of bis guardian. On the date of suit he was above eighteen years of age but his mother had been appointed a certificated guardian and under the law he was, therefore, not a major till he had attained the age of twenty one. The suit does not appear to have been contested and it was decreed ex parte. Ali Yaqin became a major, that is, completed the age of twenty one, on the 26th August, 1936. He filed a suit, No. 3 of 1940, for setting aside the decree obtained against him in suit No. 9 of 1934 on the ground that he was a minor and that all the proceedings against him were not binding and were nullities. The suit was decreed on the 26th April, 1940. The operative portion of the judgment is as follows: By way of result it is ordered that suit for declaration is decreed such wise that it is declared that decree No. 9 of 1931 of the Court of Civil Judge Bijnor is not binding on the Plaintiff and that the Plaintiff is readmitted to his original lights. Either of the two parties may apply for revival of the said previous suit of 1934.... 2. The very next day, the 27th of April, 1940, Bhagwan Das filed an application for revival of the suit, No 9 of 1934. This was opposed on behalf of Ali Yakin, but the application was granted on the 9th November, 1940, and the suit was revived on that date. 2. The very next day, the 27th of April, 1940, Bhagwan Das filed an application for revival of the suit, No 9 of 1934. This was opposed on behalf of Ali Yakin, but the application was granted on the 9th November, 1940, and the suit was revived on that date. The Defendant, Ali Yakin, filed a written statement and took the following pleas: 1. that the Plaintiff had no cause of action against him, 2. that the Defendant had no knowledge of any such hypothecation bond having been executed by Syed Ali Tamkin and even if there was such a bond it was not executed and completed as a hypothecation bond, 3. that the claim was barred by time, 4. that Bhagwan Das Plaintiff had under a deed of gift transferred the mortgagee rights to his son, Gopi Saran. and that he had, therefore, no right to file a suit, and 6. that Syed Ali Tamkin had no right to hypothecate the property given in the plaint as the said property was a perpetual 'muafi' under tile Pensions Act and that it was not, therefore, transferable or saleable. 3. Though Ali Yaqin had in his written statement raised as many as five points, the learned Civil Judge framed only two issues, the first issue being, whether the Plaintiff has a right to sue, and the second, what rate of interest should be allowed to the Plaintiff under the new Act, 13 of 1940. 4. On the second point, the learned Judge held in favour of the Defendant and gave him the benefit of the Debt Redemution(sic) Act As the Plaintiff hat filed no cross objection, that point is, therefore, set at rest by the decision of the learned Civil Judge. The other issue, whether the Plaintiff has a right to the, was decided by the learned Civil Judge in favour of the Plaintiff as he held that the deed of gift was a fictitious transaction which had not been acted upon and which had not been accepted by Gopi Saran. That finding is challenged in appeal. 5. On the 10th September, 1928, Bhagwan Das executed a deed of gift. One of his sons, Mutsaddi Lal, had died leaving a minor son named Anand Kunwar. He purported to give certain bonds in favour of this minor, Anand Kunwar, under the guardianship of his mother, Mat. Basanti Devi. That finding is challenged in appeal. 5. On the 10th September, 1928, Bhagwan Das executed a deed of gift. One of his sons, Mutsaddi Lal, had died leaving a minor son named Anand Kunwar. He purported to give certain bonds in favour of this minor, Anand Kunwar, under the guardianship of his mother, Mat. Basanti Devi. He had three surviving sons of whom Babu Ram was an adult and Prakash Chandra and Gopi Saran were minors. By the deed he purported to give the bond in suit to Gopi Saran minor, under the guardianship of Gopi Saran's mother, Mat. Jwala Dei. He gave certain other documents to Babu Ram and the puported to give a few others to the other minor son, Prakash Chandra. One of the documents given to Babu Ram was another mortgage deed executed by Ali Tamkin on the 10th June, 1922, for album of Rs. 600 only Bhagwan Das's case now about this deed of gift is that it was a fictitious document and was never intended to be given effect to and that the deeds of gift and the various bonds which he purported to give remained all along in his possession and the donees never accepted them. This case of his has been accepted by the Court below though it has been strongly challenged by learned Counsel in appeal. 6. Though this deed of gift was executed on the 10th September, 1928, we find that Bhagwan Dag filed a suit. No. 7 of 1933, on the 29th May, 1933, on mortgage of the 1st June, 1921, for Rs. 4,200 executed by Najmul Hasan and Badrul Hasan, Defendants 1 and 2. In this case Bhagwan Das impleaded his sons and grandsons and alleged in paragraph 3 of the plaint that they had no light, title and interest in the mortgage and were impleaded as proforma Defendants merely as a precautionary me sure. The suit was decreed in favour of Bhagwan Das. He filed another suit as well, No. 8 of 1935, against certain other mortgagees. In paragraph 4 the alleged that the deed of gift was fictitious and that his son, Prakash Chandra, who was impleaded as Defendant No. 6 was being impleaded as a proforma Defendant and he had no interest in the deed. This suit too was decreed. He filed another suit as well, No. 8 of 1935, against certain other mortgagees. In paragraph 4 the alleged that the deed of gift was fictitious and that his son, Prakash Chandra, who was impleaded as Defendant No. 6 was being impleaded as a proforma Defendant and he had no interest in the deed. This suit too was decreed. The Respondents have got printed statement of Prakash Chandra admitting paragraph 4 of the plaint, but learned Counsel for the Appellant has urged that this is not admissible in evidence. The document itself is not exhibited and we can find nothing on the record to show that is was ever proved. After having filed these two suits which were decreed in his favour, Bhagwan Das filed the present suit out of which this appeal has arisen on the 29th May, 1934 claiming to be entitled to the mortgage money, but in this suit he did not implead Gopi Saran, minor. 7. During the pendency of this suit, however, a suit was filed by Mst. Prem Dei, widow of Babu Ram claiming to be entitled to the money due on the other mortgage dated the 10th June, 1922, for Rs. 600 execute- by Syed Ali Tamkin (suit No. 810 of 1984). To this suit she impleaded Bhagwan Das and Gopi Saran and she claimed that she was entitled to the money. During the pendency of the suit Met Prem Dei applied for a succession certification and that application was opposed by Bhagwan Das on the 29th September, 1931. He alleged that the gift deed was fictitions and was never intended to transfer property to his minor Bons, nor had it ever been acted upon On the date of hearing, however, he did not appear and an exparte order issuing a succession certification in favour of Mst. Prem Dei was passed by the learned Munsif of Nagina on the 9th March, 1935. Bhagwan Das has now given an explanation that the lady was entitled to maintenance and as the amount was only Rs. 600 he gave it to her by way of-maintenance and did not, therefore, raise any further dispute. 8. Prem Dei was passed by the learned Munsif of Nagina on the 9th March, 1935. Bhagwan Das has now given an explanation that the lady was entitled to maintenance and as the amount was only Rs. 600 he gave it to her by way of-maintenance and did not, therefore, raise any further dispute. 8. We have the conduct of the parties in connection with the previous suits and the evidence of Bhagwan Das and of Gopi Saran and a few other circumstances pointed out by learned Counsel for the Respondents on the basis of which to consider whether the deed of gift dated the 18th September, 1928, was or was not a genuine document intended to be acted upon. Learned Counsel for the Respondents has pointed out that the original deed of gilt was with the doner and he has produced the same. He has further urged that there was no overt act which would go to show that the deed of gift had ever been acted upon or that the debtors had ever been informed that the debts had been transferred to other persons to whom the amounts were to be paid. The original mortgage deeds on which the two suits were filed in the year 1933 and this suit in 1931 were in the possession of the Plaintiff who filed the same. Besides the fact that there is this deed of gift and the fact that Mst. Prem Dei brought a suit relying on this gift and obtained a succession certificate, there is nothing else in favour of the Defendant, It is impossible in these circumstances to hold that the judgment of the lower Court on this point is wrong it is a very common atttempt made by Assessees, who want to pay income tax at a lower rate or to avoid payment of Incom-tax to divide the property among the various members of the family. Gopi Saran has appeared as a witness in the case and has dsposed that he had no interest in the mortgage. To the same effect is the statement of Bhagwan Das himself. It is not a case where for the purpose of this suit the father and the son may he said to have colluded to set up a false case. To the same effect is the statement of Bhagwan Das himself. It is not a case where for the purpose of this suit the father and the son may he said to have colluded to set up a false case. As early as 193.1 Bhagwan Das had alleged that the deed of gilt was fictitious and that position had been accepted by his sons and by his debtors. We, therefore, feel satiefied that the finding of the learned Judge that the deed of gift was factitions and was not acted upon is correct. On that finding no question of its acceptance by the donee arises. 9. Learned Counsel for the Appellant has taken as many as twelve grounds of appeal all of which relate, directly or indirectly, to the question whether the deed of gift was a genuine document and whether the Plaintiff Bhagwan Das could, after the execution of the deed, bring a suit for realisation of the money due on the mortgage." Besides the twelve grounds raised in the grounds' of appeal, learned Counsel for the appeallant wished to raise three other grounds by an application dated,the 9th April, 1946. Those grounds are as follows: 13. Because the suit is barred by limitation. 11. Because the order of revival in suit No. 9 of 1934 was without jurisdiction and illegal. 15. Because the learned Civil Judge failed to strike proper issues arising out of the suit. 10. Learned Counsel for the Appellant has admitted before us that grounds Nos. 13 and 14 may be treated one and the same, bis contention being that the learned Civil Judge had no jurisdiction to revive the suit after the expiry of the period of limitation. We feel most reluctant to allow learned Counsel to raise this plea. It is true that a plea of limitation was taken by the Defendant in the written statement. He, however, did not press for an issue and we have therefore, not had the benefit of a judgment on the point by the learned Civil Judge. If we were not satisfied that the suit could in no case he barred by limitation, we would have found it necessary to frame an issue and remit it to the Court below for proper decision. This suit was filed, as we have said, on the 29th May, 1934. If we were not satisfied that the suit could in no case he barred by limitation, we would have found it necessary to frame an issue and remit it to the Court below for proper decision. This suit was filed, as we have said, on the 29th May, 1934. The last payment made on behalf of the mortgagee of interest as such was on the 24th January, 1926, It is not clear from the endorsement dated the 5th November, 1926, whether the last payment was towards interest or was a payment on account. In any case after the payment dated the 29th January, 1926, of Rs. 100 on account of interest the limitation for filing the suit was extended to the 5th November, 1938. The present suit was filed well within limitation on the 29th May, 1934. It is true that Syed Ali Yaqin was a minor and no guardian was appointed of the minor and he was not shown as a minor in the array of parties in the plaint. The result, was that all proceedings taken against him, so long as he was a minor after the filing of the plaint, were not binding on Ali Yaqin. The decree passed against him was a nullity and it could not he said that the suit had been disposed of as against Syed Ali Yaqin. He attained majority on the 26th August, 1936, about two years prior to the expiry of the period of limitation and on the revival of the suit, on the 9th November, 1940, it must be held that the suit remained pending all the time and therefore Syed Ali Yaqin was properly impleaded as a party after the 26th August, 1936. No question of limitation can, therefore, arise under the circumtances. 11. Lerned counsel for the Appellant has relied on a number of rulings of this Court and a decision of their Lordships of Judicial committee. The first was the case of Rashid-unnisa v. Muhammad Ismail Khan. (1809) 31 All 572 (P.C.). In that case a proper guardian was not appointed of a minor and a decree was obtained against him and the property was sold. After the sale he filed a suit for a declaration that the decree and the execution sale and all the proceedings in the suit were invalid and were not binding on him as he was not properly represented. After the sale he filed a suit for a declaration that the decree and the execution sale and all the proceedings in the suit were invalid and were not binding on him as he was not properly represented. The question arose in that case whether a separate suit would lie by reason of Section 244 of the CPC Code, now Section 47 of the Code (Act v. of 1908), and their Lordships of the Judicial Committee held that the minor had a right to file a suit as he was not properly represented in the suit and that the decree and other proceedings as against him, must be held to be nullities and it could not be said that the minor was a party to the same. The same view was followed in the case of Daulat Singh Vs. Maharaj Raja Ramji, AIR 1926 All 387 ., and in Dwarka Halwai v. Sita Prasad 1940 A.W.R (HC) 253. There can be no doubt that a minor is not bound by any proceedings taken as against him where he is not properly represented and a guardian is not appointed of such a minor, but the question for decision in this case is not whether the minor was or was not properly represented as it has always been held that he was not but the question is whether it should be held that there was no suit filed against him on the 29th May, 1934, because no guardian had been appointed of the minor. In every suit where the Defendant is a minor the right of appointing his guardian is not given to the Plaintiff but to the Court. The Plaintiff can only suggest who should be appointed his guardian and it is for the Court, on being satisfied of the fact of the Defendants minority, to appoint a proper person to be guardian for the suit for such minor (O. 32, r. 3 C.P.C) It is, therefore, obvious that the question of appointment of a guardian must come after the institution of the suit, but when a guardian is appointed the suit is not deemed to have been instituted against the minor on the date of such appointment but on the date when the suit was filed. If, before such appointment is or can be made, the minor attains majority, the suit would not be deemed to be filed against him on the date when he attained majority but on the original day when it was filed in Court Even if we were to hold that it should be deemed to have been filed on the day when the Defendant attained majority in the present case the suit must be deemed to have been Bled within time as the Defendant attained majority on the 26th August, 1936. In the case of Talib Ali Shah v. Piarey Lal (1930) 52 All 934. a minor was impleaded as a major and no guardian was appointed. An ex-parte decree was obtained against him and later the decree was put in execution. It was in the executing Court that an objection was filed that the Defendant had all along been a minor and had not been properly repre seated and the decree was, therefore, a nullity. This objection was allowed by the executing Court and then the Plaintiff filed an application for the restoration of the suit to its original number and for its being proceeded with after the appointment of a guardian-ad-litem of Talib Ali Shah. The Court acceded to this request and the suit was tried on the merits. On an appeal being filed to this Court on behalf of the minor it was held that the minor must be deemed to have been a Defendant to the suit from the very beginning, the only defect being that no proper guardian was appointed for him, and that the date of institution was the date when the suit was filed and not the date when the guardian-ad-litem was appointed. We respectfully agree with this decision and must held that the suit must be deemed to have been filed on the 29th of May, 1934, as against Syed Ali Yaqin though all subsequent proceedings against him were null and void as no proper guardian had been appointed. 12. We respectfully agree with this decision and must held that the suit must be deemed to have been filed on the 29th of May, 1934, as against Syed Ali Yaqin though all subsequent proceedings against him were null and void as no proper guardian had been appointed. 12. The reason why we are most reluctant to allowing the Appellant to raise this plea of limitation at this stage when he did not insist on an issue on the point in the trial Court and made no grievance of it in his grounds of appeal is because we find that there were certain proceedings taken by some of the Defendants under the Encumbered Estates Act. It appears that some of the legal representatives of Ali Tamkin filed an application or applications under the Encumbered Estates Act which remained pending for several years, and in an application dated the 5th April, 1941 (paper No. 94-C) the information is given to the Court that the Special Judge, II Grade, had dismissed the application under the Encumbered Estates Act. During the pendency of the proceedings under the Encumbered Estates Act, by reason of Section 7 of that Act, no fresh suit could be filed and any suit filed had to remain stayed. All that period has, therefore, to be excluded u/s 43 of the Encumbered in considering the period of limitation available for the suit. 13. The only other point urged on behalf of learned Counsel for the Appellant is that the mortgage-deed is not proved according to law. This is a ground which was not taken in the grounds of appeal or even in the application dated the 9th April, 1946. Learned Counsel has, however, urged with great force that unless we are satisfied that the mortgage-deed was proved according to law we ought not to give the Plaintiff a decree on the basis thereof- As we have already said, the Court below had framed only two issues and there was no issue as regards the execution or consideration of the mortgage-deed, though the learned Judge has, in dealing with issue No. 1, said as follows: The execution of the mortgage bond in suit was duly proved by Sheo Nath Singh attesting witness and passing of consideration is proved by Bhagwan Das as also from the documents, Exhibits 1 and 11. 14. 14. We must say that this case was tried in a very perfunctory manner by the learned Civil Judge. We looked at the back of the original mortgage-deed and we could not find any admission or denial on behalf of the Appellant Ali Yaqin. It is true that the suit had once been decreed exparte and the other legal heirs of Ali Tamkin had submitted to the decree, but yet as against Ali Yaqin the suit had to be tried according to law. In the written statement the Defendant had no doubt taken a plea which, though not very clearly worded, may be taken to be a specific denial of the execution of the mortgage-deed. It is true that it does cot appear that the Defendant ever pressed for an issue on the point. He did not make a grievance of this fact even in the grounds of appeal filed by him in this Court, though he had taken as many as twelve grounds of appeal, Three years after the filing of the appeal when the case was actually listed for hearing learned Counsel for the Appellant filed an application already mentioned by us above on the 9th April, 1946, and even in this application no such ground was taken. 15. On the evidence on the record, however, it is urged by learned Counsel for the Respondent that even if it was necessary to prove the mortgage-deed, the mortgage deed was proved according to law. That Bhagwan Das Plaintiff went intra the witness-box and stated that Ali Tamkin had borrowed Rs. 5,000 from him and had executed and signed the mortgage bond which was Ex. 1 in suit. It does not appear, however, from the Judge's notes of the evidence of Sheo Nath, attesting witness, whether his attention was at all drawn to the mortgage-deed. We have new a single record system which means that the Judge takes short notes of the evidence in English while the witness is giving his evidence in the vernacular. The notes of evidence recorded by the learned Judge are neither as full nor as complete as we would expect them to be. The fact, however remains that there was neither any clear issue on the point nor was there any ground of appeal clearly taken in this Court. 16. The notes of evidence recorded by the learned Judge are neither as full nor as complete as we would expect them to be. The fact, however remains that there was neither any clear issue on the point nor was there any ground of appeal clearly taken in this Court. 16. Learned Counsel for the Respondent has relied on the case of Chiranji Lal v. Poorna (1914) 12 A L J 1114., and has urged that there was sufficient compliance with the requirements of Section 68 of the Indian Evidence Act. It is not necessary for us at this stage to go into this question as we feel that it would be proper if a clear issue is framed on the point and the lower Court is asked to record a finding on the same. Before, however, we finally dispose of this case, we direct that the lower Court may remit a finding to this Court on the issue whether the mortgage-deed in suit was executed by Ali Tamkin and was duly attested by the attesting witnesses. The parties would be entitled to produce fresh evidence. The finding is to be remitted within three months from this date and ten days time will be allowed to the parties to file objections on receipt of the finding.