JUDGMENT Kaushal Kishore, Member. - This is defendant's second appeal against the judgment and decree dated June 24, 1980 by the learned Additional Commissioner, Faizabad Division, Faizabad, dismissing the appeal against the judgment and decree dated January 29, 1972 by the learned trial court in a case under section 229-B of the U.P.Z.A. and L.R. Act. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The question raised in the suit were whether Durga Prasad formerly defendant number 1 and later joined as plaintiff number 2 was a minor when he executed the sale-deed dated August 3, 1967 in favour of Chhotey Lal and others defendant and earlier sale-deed dated July 31, 1967 in favour of Ratipal and Rampal in respect of his share in the land in dispute, and whether the sale-deeds being invalid Durga Prasad continued to be the tenure-holder of his share. In fact, the relief sough in this case was a declaration various shares of the plaintiff No. 1 in the different sets of plot and thereafter also the shares of the plaintiff No. 2. The learned trial court relied on the age of Durga Prasad given in the order of appointment of his guardian by the District Judge and also on the statements of D.W.s 5, 6 and 7 and held the sale-deeds to be invalid and the transfers void ab-initio, decided the title accordingly and decreed the suit. The learned Additional Commissioner has only considered the effect of the sale-deeds by Durga Prasad and has endorsed the finding that Durga Prasad was minor and below 21 years of age when the executed that the sale-deed. 4. The learned counsel for the appellant has argued that the suit as filed was not maintainable as by the U.P.Act XII of 1965, the declaration share is specifically prohibited, in support cited a ruling reported in 1972 R.D. 186, that the decree was not in accordance with the prayer for relief, that the three admissions by Durga Prasad had been ignored while deciding the question of minority/majority of Durga Prasad, that only the D.Ws. were discussed and not the P.W.s that there was no direct evidence of age, the courts below gave finding of age of insufficient evidence, that the birth register entry was not proved to be of Durga Prasad and identity was not fixed, in support cited a ruling reported in 1962 R.D. 111, that the order appointing guardian is no proof of age as held in AIR 1921 Patna 69 (D.B), that no valid appointment of guardian was established, and that now the advantage of Section 43 of the Transfer of Property Act being available, the sales must be deemed good. 5. The learned counsel for the respondent has argued that no benefit of estoppel on the basis of admission by a minor can be possible and also the benefit of Section 43 of the Transfer of Property Act cannot be availed as transaction by a minor is ab-initio void and in support cited a ruling reported in AIR 1937 Alld. 610. He further argued that there was no plea by the defendant that the suit is not maintainable and this plea cannot be raised now, that the learned trial court's judgment did not decide any shares, so the ruling reported in 1972 R.D. 186 was not applicable. On this point, the learned counsel for the appellant has argued that the question of maintainability can be raised even later in appeals as it raises a question of jurisdiction and cited in support the ruling reported in AIR 1971 S.C. 2012. He argued that the decree as passed was not the same as prayed for and was without consideration, and further that the suit showing Durga Prasad aged 19 years without any guardian itself was not maintainable. 6. In view of the settled law and the cited ruling AIR 1971 S.C. 2012, there is no doubt that the question of maintainability can be and has to be considered even now. In this connection, some sequence my better be stated. The two sale-deeds by Durga Prasad are of dates July 31, 1967 and August 3, 1967. Thereafter mutation case started in which Durga Prasad filed his affidavit dated May 24, 1969 and gave his age as 25 years. In his written statement dated May 30, 1970 he admitted being minor in 1967 in his further application dated September 30, 1970 gave his age as 25 years. Thereafter mutation case started in which Durga Prasad filed his affidavit dated May 24, 1969 and gave his age as 25 years. In his written statement dated May 30, 1970 he admitted being minor in 1967 in his further application dated September 30, 1970 gave his age as 25 years. The present suit by Dayaram was filed on June 3, 1969 i.e soon after the aforesaid affidavit of Durga Prasad and it was by order dated September 25, 1970 that the defendant number 1 was made plaintiff number 2, Since on May 7, 1970 Durga Prasad had admitted his minor and later was transposed as plaintiff the non-maintainability of suit on the ground of having a minor defendant (or plaintiff) without guardian could not be pressed further having been automatically curred during the pendency of the suit, But as regards the clear law laid down in 1972 R.D. 186, there is no answer from the other side and I do not agree that merely because shares were not decided the ruling would not apply, The maintainability of a suit, which involves jurisdiction of the court has to be judged from the plaint and the relief sough and not from the judgment. 7. The question relating to benefit of Section 43 of the Transfer of Property Act and of estoppel due to admission appear to have been decided under a prejudice. No doubt, a correct principle is laid down in the ruling reported in AIR 1937 Alld. 610 but it has a prerequisite that the minority should have already been proved. The defendant appellant would need the benefit of Section 43 only if Durga Prasad was found to be minor an such benefit is ruled out. But the case of estoppel is different. It must first be seen if minority has been already established. Since the learned Trial court relied on the date of birth given during the appointment of guardian by order dated December 21, 1954 by the District Judge and the learned Additional Commissioner has also placed reliance on this evidence as well as on age given in case No. 612 of 1953 filed by Durga Prasad through his mother as guardian, in view of the rulings cited this requires further consideration. 8. In AIR 1921 Patna 69 (D.B.), it was held that the order appointing guardian is not evidence of minority. 8. In AIR 1921 Patna 69 (D.B.), it was held that the order appointing guardian is not evidence of minority. By Durga Prasad's own version, his mother's mind was unsound (vide para 14 of the written statement dated May 30, 1970), therefore, the age given by his mother could be no reliable guide. In view of non-consideration of the settled law and basing their conclusion on non-reliable document by the two courts below, the finding of age is vitiated and interference in the second appeal become necessary. These two documents being unacceptable as evidence of minority, the only other document riled upon by the learned Additional Commissioner remains the extract from Kutumb register showing the date of birth of Durga Prasad in 1974. This document is not available in the record. The plaintiff have also failed to file any document to show a definite date of birth. The date July 15, 1948 as in the application for appointment of guardian, differs from the year 1947 in the Kutumb register. Further, apart from the discrepancy is year, if no date and month are shown in the Kutumb register its authenticity is far more reduced. When extract Kutumb register which is no longer on record, is no satisfactory guide, only oral evidence remains and selective consideration by the courts below leads to prejudiced finding. D.Ws. 1, 3 and 4 gave the age between 25 and 30 years in 1971 while D.Ws 5, 6 and 7 gave the age about 20 years in 1971. There is no reason to leave out some D.Ws. who spoke in favour of lower age of Durga Prasad. The finding was clearly vitiated, being on insufficient, unreliable and unacceptable evidence. 9. By presupposing minority, the learned courts below put the cart before the horse. Now, in view of no finding that Durga Prasad was minor when executing the two sale-deeds, the question about admission and estoppel can be considered in the right perspective. Estoppel is no applicable only when admission is made by an established minor. Such is not the case of Durga Prasad. As stated earlier, his admission on two occasions in witting exists which would place his age about 23 years in July/August, 1967. Estoppel is no applicable only when admission is made by an established minor. Such is not the case of Durga Prasad. As stated earlier, his admission on two occasions in witting exists which would place his age about 23 years in July/August, 1967. His implied admission by way of executing the sale-deed added, there should be no doubt that he was major on rather above 21 years of age and he is estopped from claiming his minority in July/August, 1967. As a result the vendee defendants including the appellant also become co-tenure-holders. It may further be observed that none of the two courts below has discussed the question as to who was the father of the plaintiff number 1. Suraj or Ramnath and decreed the suit on incomplete and incorrect considerations. In view of these considerations now, it must be held that the suit was not only wrongly decreed on an incorrect finding of sale-deeds being void ab initio, but was also not maintainable for declaration of shares, and deserves to be dismissed. The ruling reported in 1972 R.D. 186 fully applies to the present case. 10. Accordingly, this appeal is allowed, the judgment and decrees by the two courts below dated June 24, 1980 and January 29, 1972 are hereby set aside and the suit of the plaintiff is dismissed with costs throughout.