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Tuesday, May 31, 2011

the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. That being the law laid down by the Constitution Bench of this Court on interpretation of Section 50 of the NDPS Act, we do not think that the obligation under Section 50 of the Act has been discharged statutorily by the appellant in this case


                                                                   REPORTABLE

                   IN THE SUPREME COURT OF INDIA

                  CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 1079 OF 2002



NARCOTICS CENTRAL BUREAU                      ... Appellant

                 VERSUS

SUKH DEV RAJ SODHI                            ... Respondent




                            J U D G M E N T
                                     
GANGULY, J.



        Heard   learned   counsel   for   the   appellant.     Despite

notice, none appears for the respondent.




        This   is   an   appeal   by   the   Narcotics   Central   Bureau

impugning judgment and order dated 11.01.2002 passed by the

High Court whereby the High Court, on consideration of the

facts   and   the   legal   position   of   the   case,   was   pleased   to

hold   that   the   mandatory   provision   of   Section   50   of   the

Narcotic   Drugs   and   Psychotropic   Substances   Act,   1985

(hereinafter   referred   to   as   'NDPS   Act')   has   not   been

complied with and the violation of the said Act has vitiated

the   conviction   and   on   that   ground,   the   High   Court   was

pleased to set aside the conviction and did not examine any

other fact of the case.  In this appeal also, we do not go

into other factual aspects.

                                                                     ...2.


CRIMINAL APPEAL NO. 1079 OF 2002
                                    .2.

                  It is not in dispute that pursuant to the High

Court's order, the respondent is set at liberty.




                  Now,   the   learned   counsel   for   the   appellant

submits that in the instant case, from the search notice (at

Annexure   P-1),   it   will   appear   that   the   requirement   of

Section 50 of the NDPS Act has been complied with.  From the

said notice, it appears that the accused was informed that

he has the option of being searched either in the presence

of   gazetted   officer   or   Magistrate   and   it   appears   that   the

accused   wanted   to   be   searched   in   the   presence   of   gazetted

officer.  The learned counsel for the appellant submits that

by   giving   the   option   to   the   accused,   the   appellant   has

complied with the requirement under Section 50 of the NDPS

Act.




                  The   obligation   of   the   authorities   under

Section   50   of   the   NDPS   Act   has   come   up   for   consideration

before   this   Court   in   several   cases   and   recently,   the

Constitution  Bench  of  this  Court  in  the  case  of  Vijaysinh

Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has

settled this controversy.   The Constitution Bench has held

that   requirement   of   Section   50   of   the   NDPS   Act   is   a

mandatory requirement and the provision of Section 50 must

be very strictly construed.

                                                                     ...3.


CRIMINAL APPEAL NO. 1079 OF 2002
                                    .3.

                  From the perusal of the conclusion arrived at

by   this   Court   in  Vijaysinh   Chandubha   Jadeja's   case,   it

appears   that   the   requirement   under   Section   50   of   the   NDPS

Act is not complied with by merely informing the accused of

his   option   to   be   searched   either   in   the   presence   of   a

gazetted   officer   or   before   a   Magistrate.     The   requirement

continues   even   after   that   and   it   is   required   that   the

accused   person   is   actually   brought   before   the   gazetted

officer or the Magistrate and in Para 32, the Constitution

Bench   made   it   clear   that   in   order   to   impart   authenticity,

transparency and creditworthiness to the entire proceedings,

an   endeavour   should   be   made   by   the   prosecuting   agency   to

produce the suspect before the nearest Magistrate.




                  That   being   the   law   laid   down   by   the

Constitution   Bench   of   this   Court   on   interpretation   of

Section   50   of   the   NDPS   Act,   we   do   not   think   that   the

obligation under Section 50 of the Act has been discharged

statutorily by the appellant in this case.   We, therefore,

find   no   reason   to   interfere   with   the   finding   made   by   the

High court.  The appeal is, accordingly, dismissed.



                                                 ................., J.
                                                  [ASOK KUMAR GANGULY]



                                                 ................., J.
                                                          [DEEPAK VERMA]
NEW DELHI;
MAY 20, 2011.


the FIR has been recorded in clear violation of the provisions contained under Section 20(A)(1) of the said Act, as a result whereof, the entire proceeding subsequent thereto has been vitiated and this has also vitiated the judgment and order of the designated court.


                                                             REPORTABLE

                          IN THE SUPREME COURT OF INDIA

                          CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO(s). 2307 OF 2009



  RANGKU DUTTA @ RANJAN KUMAR DUTTA               Appellant (s)

                 VERSUS

  STATE OF ASSAM                                   Respondent(s)



                                   J U D G M E N T



Ganguly, J.



          Heard learned counsel for the parties.




          This is a statutory appeal under Section 19 of Terrorist

and   Disruptive   Activities   (Prevention)   Act,   1987   (hereinafter

referred   to   as   "the   said   Act")   impugning   an   order   dated

10.9.2009   passed   by   the   Designated   Court   TADA.     The   learned

counsel   appearing   for   the   sole   appellant   has   impugned   the

judgment of the designated court (TADA) on various grounds but

at   the   time   of   arguments,   he   made   emphasis   on   a   particular

ground,   namely,   that   in   the   instant   case,   the   FIR   has   been

recorded   in   clear   violation   of   the   provisions   contained   under

Section   20(A)(1)   of   the   said   Act,   as   a   result   whereof,   the

entire proceeding subsequent thereto has been vitiated and this

has   also   vitiated   the   judgment   and   order   of   the   designated

court.


        The material facts of the facts are these.

                                   -2-




        That FIR was lodged on 6.11.1993 by one Ajit Kumar Sarma,

Office-in-Charge   of   Bihpuria   Police   Station   against   several

persons including the appellant.   Of the four accused persons,

no charges were framed against Moni Pathak.  In so far as Bhaben

Gogoi @ Bikram was concerned, he was acquitted by the designated

court   and   Indreswar   Hazarika   @   Babul   Handique   died   during   the

pendency of the proceedings before the designated court.   Only

Rangku   Dutta   @   Ranjan   Kumar   Dutta   was   convicted   and   is   the

appellant before us.  




        The   FIR   which   has   been   lodged   on   6.11.1993   runs   as

follows:-




              "I beg to report that on 5.11.93 at 2150 hrs.
     while SI AQM Zahingir I/C Dholpur O.P. along with the
     PSO   Hav.   Loknath   Konwar   and   other   police   personnel
     were   informed   law   and   order   duty   in   connection   with
     Debraj Theatre show at Dhalpur circle in open place by
     the side of Hill, some ULFA extremist fired at SI AQM
     Zahingir   and   PSO   Hav.   Loknath   under   simultaneously
     from a close range behind them and as a result both of
     them succumbed to injuries.

              Earlier   of   this   incident   on   5.10.93   an
     encounter   took   place   between   the   ULFA   with   Dhalpur
     O.P. Place and under the leadership of SI AQM Zahangir
     I/C Dhalpur O.P. where Lakhimpur Dist. ULFA commander
     Jogen   Gogoi   killed   and   since   them   the   banned   ULFA
     activists associates of Jogen Gogoi were planning with
     criminals conspiracy to liquidate SI AQM Zahingir.


                 On 5.11.93 evening the said ULFA activists with
     the   help   of   Sri   ranku   Dutta   got   identified   SI   AQM
     Zahingir   and   then   ULFA   extremist   namely   (1)   Sri
     Indreswar   Hazarika   @   Babul   Handique   (2)   Sri   Nobel
     Gogoi @ Bikram under the leadership of Sri Moni Pathak
     @   Debo   Pathak   taking   advantage   of   darkness   attacks
     simultaneously   with   fire   arms   and   killed   SI   AQM
     Zahingir and PSO Hav. Loknath Knowar.





                                            -3-



                 So   I   request   to   register   a   case   under   Section
     120(B)/302 IPC R/W 3/4/5 TADA(P) Act, 1987 against the
     (illegible)   ULFA   activist   and   four   others   associates,
     I have already taken up the investigation of the case."

           On   the   basis   of   the   FIR,   a   case   being   Bihpuria   Police

Station   Case   No.   497   of   1993,   was   initiated   under   Section

120B/302 IPC read with Section 3 / 4 and 5 TADA (P) Act and the

designated   court   vide   order   dated   31st  October,   2002   framed

charges   against   the   appellant,   inter   alia,   under   Section

120(B)/302 of the Indian Penal Code and Section 3(2)(1) of the

said Act.  Thereafter, the designated court by impugned judgment

dated 10th  September, 2009 passed in TADA Sessions Case No. 116

of 2000 found the appellant guilty of offences punishable under

Section 120B/302 IPC read with Section 3(2)(1) of the said Act

and sentenced him to undergo imprisonment for life and to pay a

fine   of   Rs.   2000/-,   in   default   further   imprisonment   for   two

months.




           Learned counsel appearing for the appellant urged that in

accordance with the provisions contained under Section 20(A)(1)


of   the   said   Act,   no   information   about   the   commission   of   any

offence   under   the   said   Act   shall   be   recorded   by   the   Police

without prior approval of the District Superintendent of Police.




          Learned   Counsel   submitted   that   the   said   provision   under

Section   20(A)(1)   was   incorporated   by   way   of   an   amendment   vide

Section   9   of   Act   43   of   1993.     The   said   amendment   came   into

effect on 23.5.1993 and the FIR was recorded on 6.11.1993.




                                      -4-




 Therefore, at the time when the FIR was recorded, the provision

of Section 20(A)(1) was clearly attracted.




          It   will   be   in   the   fitness   of   things   that   to   appreciate

the   points   urged   by   the   appellant,   Section   20(A)   is   set   out

below:




          20-A     Cognizance of offence - (1) Notwithstanding
          anything contained in the Code, no information about
          the commission of an offence under this Act shall be
          recorded by the police without the prior approval of
          the District Superintendent of Police.

   (2)No   court   shall   take   cognizance   of   any   offence   under
      this   Act   without   the   previous   sanction   of   the
      Inspector-General   of   Police,   or   as   the   case   may   be,
      Commissioner of Police.

          Relying on the said section, the learned Counsel for the

appellant submitted that from the evidence of PW 15 Ajit Kumar

Sarma who recorded the FIR, it is clear that he did not take the


approval   of   the   Superintendent   of   Police   before   recording   the

FIR.  In his cross-examination, PW 15 clearly stated "I did not

obtain   the   approval   from   the   concerned   SP   for   registering   the

case."     From   the   evidence   of   PW   11,   who   is   one   Sanjit   Sekhar

Roy, learned counsel stated that the said PW 11 was working on

22.6.2000 as DSP Headquarter at North Lakhimpur.   In his cross-

examination,   he   stated   that   the   occurrence   took   place   on

6.11.1993   and   prior   to   the   filing   of   the   Ejahar   which   is   the

FIR, the written approval of the SP concerned was not obtained

and   in   the   Ejahar   itself,   There   is   no   approval   of   SP,   North

Lakhimpur.




                                              -5-




         We   have   looked   into   the   original   FIR   Exhibit   P-12.     In

the original FIR, the following endorsement which has been made

by Ajit Kumar Sarma is quoted below:-




                   "Received   and   registered   Bihpuria   PS   Case
      no.   0497/93   u/s   120(B)/302   I.P.C.   R/W   3/4/5   TADA   (P)
      Act, 1987 with the approval of SP(I) NL."

         It is an admitted position in this case that even though

the aforesaid endorsement has been made in the FIR, the SP(I),

North Lakhimpur, whose approval is alleged to have been taken by

PW 15 Ajit Kumar Sarma has not been examined by the prosecution.

Apart from that, in the substantive evidence before the Court,

PW 15, Ajit Kumar Sarma has categorically stated that he has not


obtained approval of SP before registering the case.   He rather

said   that   he   registered   the   case   and   himself   took   up   the

investigation   of   the   case,   prepared   the   seizure   list   and

recorded the statement of witnesses and at that point of time,

the rank of Ajit Kumar Sarma was that of SI of police.




         We have already referred to the evidence of PW 11 who has

also deposed that written approval of SP was not obtained.




         In the background of these facts, the question is whether

in this case the mandatory requirement of Section 20(A)(1) was

complied   with.     Attention   of   this   Court   has   been   drawn   to

certain decisions of the Court where from it appears that there

was a controversy and divergence of judicial view as to whether




                                             -6-




  written   approval   or   oral   approval   is   required.     The   said

divergence of judicial view has been set at rest by the judgment

of   a   three-Judge   Bench   of   this   Court   in  State   of   A.P.  Vs.  A.

Satyanarayana and Others 2001(10) SCC 597.

         A   Three-Judge   Bench   of   this   Court   setting   out   the

controversy in this matter ultimately came to hold as follows in

paragraph 8:-

               "Having   applied   our   mind   to   the   aforesaid   two
      judgments   of   this   Court,   we   are   in   approval   of   the
      latter   judgment   and   we   hold   that   it   is   not   the
      requirement   under   Section   20-A(1)   to   have   the   prior


      approval   only   in   writing.     Prior   approval   is   a
      condition precedent for registering a case, but it may
      be   either   in   writing   or   oral   also,   as   has   been
      observed   by   this   Court   in  Kalpanath   Rai   case  1997(8)
      SCC   732   and,   therefore,   in   the   case   in   hand,   the
      learned   Designated   Judge   was   wholly   in   error   in
      refusing   to   register   the   case   under   Sections   4   and   5
      of TADA.   We, therefore, set aside the impugned order
      of   the   learned   Designated   Judge   and   direct   that   the
      matter   should   be   proceeded   with   in   accordance   with
      law."

         It   is,   therefore,   clear   that   approval   has   to   be   taken,

even   if   it   is   an   oral   approval.     Attention   of   this   Court   has

also been drawn to a decision rendered in Hitendra Vishnu Thakur

and Others Vs. State of Maharashtra and Others 1994(4)SCC 602 as

to   the   requirement   of   the   provision   of   Section   20(A)(1).     The

learned   Judges   of   this   Court   after   considering   various

provisions of the said Act held that the requirement of Section

20(A)(1)   of   TADA   was   introduced   by   way   of   an   amendment   with   a

view to prevent abuse of the provisions of TADA.  We, therefore,

reiterate the principles laid down by this Court in paragraph 12

by   Justice   Dr.   A.S.   Anand(as   His   Lordship   then   was),   which   is

set out below:-

                                     -7-




               "Of late, we have come across some cases where
      the   Designated   Courts   have   charge-sheeted   and/or
      convicted   an   accused   person   under   TADA   even   though
      there   is   not   even   an   iota   of   evidence   from   which   it
      could   be   inferred,   even   prima   facie,   let   alone
      conclusively,   that   the   crime   was   committed   with   the
      intention   as   contemplated   by   the   provisions   of   TADA,
      merely on the statement of the investigating agency to
      the   effect   that   the   consequence   of   the   criminal   act
      resulted in causing panic or terror in the society or
      in   a   section   thereof.     Such   orders   result   in   the
      misuse   of   TADA   Parliament,   through   Section   20-A   of


      TADA has clearly manifested its intention to treat the
      offences   under   TADA   seriously   inasmuch   as   under
      Section 20-A(1), notwithstanding anything contained in
      the   Code   of   Criminal   Procedure,   no   information   about
      the commission of an offence under TADA shall even be
      recorded   without   the   prior   approval   of   the   District
      Superintendent of Police and under Section 20-A(2), no
      court shall take congisance of any offence under TADA
      without   the   previous   sanction   of   the   authorities
      prescribed therein.   Section 20-A was thus introduced
      in   the   Act   with   a   view   to   prevent   the   abuse   of   the
      provisions of TADA."

         Learned counsel appearing on behalf of the State wanted

to   urge   that   in   the   instant   case,   the   requirement   of   Section

20(A)(1)   has   been   complied   with   and   in   support   of   her

submissions, the learned counsel has drawn the attention of this

Court to the evidence of PW 4 and PW 6.   In his evidence, PW 4

Nitul Gogoi has said that on 21.10.94 he was working as D.S.P.

H.Q. at Lakhimpur.  On that day, the S.P. Lakhimpur handed over

the   CD   of   this   case   to   him   to   hold   "remaining   part   of

investigation of the case."




         PW 6 Nirmal Dr. Das also deposed that on 25.9.99, he was

working   as   Head   Quarter   DSP   at   North   Lakhimpur.     On   that   day,

S.P.   Lakhimpur   entrusted   the   investigation   of   the   case   in   his

name and accordingly, he got the CD from R.S.I.

                                     -8-




         Relying on the aforesaid deposition of PW 4 and PW 6, the

learned   counsel   urged   that   in   the   instant   case,   the

investigation   was   conducted   by   the   DSP,   therefore,   the

requirement of section 20(A)(1) has been complied with.   We are


unable to appreciate the aforesaid submission.




        It   is   obvious   that   Section   20(A)(1)   is   a   mandatory

requirement of law.   First, it starts with an overriding clause

and, thereafter, to emphasise its mandatory nature, it uses the

expression   "No"   after   the   overriding   clause.     Whenever   the

intent of a statute is mandatory, it is clothed with a negative

command.     Reference   in   this   connection   can   be   made   to   G.P.

Singh's Principles of Statutory Interpretation, 12th Edition.  At

page 404, the learned author has stated:




              "As   stated   by   CRAWFORD:   "Prohibitive   or
     negative words can rarely, if ever, be directory.  And
     this is so even though the statute provides no penalty
     for   disobedience.     As   observed   by   SUBBARAO,   J.:
     "Negative   words   are   clearly   prohibitory   and   are
     ordinarily   used   as   a   legislative   device   to   make   a
     statute   imperative".     Section   80   and   Section   87-B   of
     the  Code of  Civil Procedure,  1908, section  77 of  the
     Railways Act, 1890; section 15 of the Bombay Rent Act,
     1947; section 213 of the Succession Act, 1925; section
     5-A of the Prevention of Corruption Act, 1947; section
     7 of the Stamp Act, 1899; section 108 of the Companies
     Act,   1956;   section   20(1)   of   the   Prevention   of   Food
     Adulteration   Act,   1954;   section   55   of   the   Wild   Life
     Protection Act, 1972, the proviso to section 33(2)(b)
     of   the   Industrial   Disputes   Act,   1947   (as   amended   in
     1956);   section   10A   of   Medical   Council   Act,   1956   (as
     amended   in   1993),   and   similar   other   provisions   have
     therefore,   been   construed   as   mandatory.     A   provision
     requiring   'not   les   than   three   months'   notice   is   also
     for the same reason mandatory."



                                   -9-




        We   are   in   respectful   agreement   with   the   aforesaid

statement of law by the learned author.


         So   there   can   be   no   doubt   about   the   mandatory   nature   of

the   requirement   of   this   Section.     Apart   from   that,   since   the

said section has been amended in order to prevent the abuse of

the provisions of TADA,  this Court while examining the question

of complying with the said provision must examine it strictly.




         Going by the aforesaid principles, this Court finds that

no information about the commission of an offence under the said

Act can be recorded by the Police without the prior approval of

the   District   Superintendent   of   Police.     Therefore,   the

requirement of prior approval must be satisfied at the time of

recording   the   information.     If   a   subsequent   investigation   is

carried on without a proper recording of the information by the

DSP   in   terms   of   Section   20(A)(1),   that   does   not   cure   the

inherent   defect   of   recording   the   information   without   the   prior

approval of the District Superintendent of Police.   Whether the

Deputy Superintendent of Police is a District Superintendent of

Police or not is a different question which we need not decide

in  this case.   But  one thing  is clear  that the  requirement of

approval   must   be   made   at   the   initial   stage   of   recording   the

information.     If   there   is   absence   of   approval   at   the   stage   of

recording   the   information,   the   same   cannot   be   cured   by

subsequent   carrying   on   of   the   investigation   by   the   DSP.

Reference in this connection is made to the principles laid down

                                     -10-


  by   Lord   Denning   speaking   for   the   Judicial   Committee   of   Privy

Council in Benjamin Leonard MacFoy Versus United Africa Co. Ltd.

[1961(3) Weekly Law Reports 1405].   Lord Denning, speaking for

the unanimous Bench, pointed out the effect of an act which is

void so succintly that I better quote him:




               "If   an   act   is   void,   then   it   is   in   law   a
      nullity.     It   is   not   only   bad,   but   incurably   bad.
      There is no need for an order of the court to set it
      aside.  It is automatically null and void without more
      ado,   though   it   is   sometimes   convenient   to   have   the
      court declare it to be so.  And every proceeding which
      is founded on it is also bad and incurably bad.   You
      cannot put something on nothing and expect it to stay
      there.  It will collapse."

         We are in respectful agreement with the aforesaid view.




         Therefore, the evidence of PW 4 and PW 6 do not come to

any aid of the State Counsel in the facts of the present case.




           We are, however, surprised to find that the Designated

Court in the impugned judgment has come to a finding that there

has been verbal approval from the Superintendent of Police even

after noting that the I.O. In this case (PW 15) admitted that he

did   not   obtain   approval.     It   is   nobody's   case   that   PW   15   was

confronted   with   the   FIR   while   he   was   giving   his   evidence.

Therefore, the prosecution in this case has failed to bring on

record that verbal approval was obtained.   It may be noted that

PW 15 has not been declared hostile.


                                    -11-




         Therefore, having regard to the clear evidence of PW 15,

this Court is constrained to hold that even verbal approval of

the   concerned   authority   was   not   obtained   in   the   case   before

recording the information.




         Therefore,   the   entire   proceeding   right   from   the

reigstering   of   the   FIR,   filing   of   the   charge-sheet   and   the

subsequent trial is vitiated by a legal infirmity and there is a

total miscarriage of justice in holding the trial, ignoring the

vital requirement of law.   We have, therefore, no hesitation in

setting aside the impugned judgment of the Designated Court.




         The appeal is, therefore, allowed.   The appellant who is

in   jail   must   be   set   at   liberty   forthwith,   if   not   required   in

connection with any other case.





                                              ..........................J.
                                              (ASOK KUMAR GANGULY)



                                              .........................J.
                                              (DEEPAK VERMA)

NEW DELHI
MAY 20, 2011


Sunday, May 15, 2011

The appellants are policemen accused of a contract killing in Sessions Case No. 317/2010 which is pending before the Sessions Judge, Greater Bombay. The appellants have been charge-sheeted for offences punishable under Sections 302/34,120-B, 364/34 IPC and other minor offences. The victim of the offence is deceased Ramnaryan Gupta @ Lakhanbhaiyya. The prosecution case is that the appellants were engaged as contract killers by a private person to eliminate the deceased.


                                                                          1


                                                         REPORTABLE


                 IN THE SUPREME COURT OF INDIA


             CRIMINAL APPELLATE JURISDICTION


           CRIMINAL APPEAL NOS.1174-1178_OF 2011

         [Arising out of SLP((Criminal) Nos. 3865-69 of 2011]





Prakash Kadam & etc. etc.                          ..    Appellants


     -versus-


Ramprasad Vishwanath Gupta & Anr.                  ..    Respondents




                             J U D G M E N T




Markandey Katju, J.


     A curse shall light upon the limbs of men;

     Domestic fury and fierce civil strife

     Shall cumber all the parts of Italy;

     Blood and destruction shall be so in use

     And dreadful objects so familiar

     That mothers shall but smile when they behold

     Their infants quarter'd with the hands of war;

     All pity choked with custom of fell deeds:

     And Caesar's spirit, ranging for revenge,

     With Ate by his side come hot from hell,

     Shall in these confines with a monarch's voice

     Cry "Havoc!" and let slip the dogs of war;

     That this foul deed shall smell above the earth

     With carrion mean, groaning for burial.


                         -- (Shakespeare: Julius Caesar Act 3 Scene 1)


                                                                                         2


1.        Leave granted.  Heard learned counsel for the appellants and perused


the record.





2.        This case reveals to what grisly depths our society has descended.





3.        This appeal has been filed against the impugned judgment and order


dated   21.1.2011   passed   by   the   High   Court   of   Judicaure   at   Bombay   in


Criminal Application Nos. 5283-5285 and 5303-5304 of 2010  by which the


High Court has cancelled the bail granted to the appellants by the Sessions


Court.





4.        The appellants are policemen accused of a contract killing in Sessions


Case   No.   317/2010   which   is   pending   before   the   Sessions   Judge,   Greater


Bombay.   The appellants have been charge-sheeted for offences punishable


under Sections 302/34,120-B, 364/34 IPC and other minor offences.     The


victim of the offence is deceased Ramnaryan Gupta @ Lakhanbhaiyya.  The


prosecution case is that the appellants were engaged as contract killers by a


private person to eliminate the deceased.





5.        The case of the prosecution in brief is that the deceased Ramnarayan


Gupta   and   the  accused   No.  14,   Janardan   Bhange   were,   once   upon  a   time,


                                                                                                 3


very close to each other.   Both of them had been working as estate agents


and, mainly their business was to purchase land from the farmers whose land


has been acquired by the Government under the Land Acquisition Act and to


whom 12 percent of the land was given by the Government.  This 12 percent


of   the   land   was   being   purchased   at   meager   price   by   the   deceased   and


accused No. 14, Janardan Bhange and was being sold on premium at later


stage.  During the course of that business, both of them had been exchanging


the files pending with them for disposal pertaining to the said land.





6.      There   were   some   differences   between   the   deceased   Ramnarayan


Gupta and accused No. 14, Janardan and hence it is alleged that the accused


Janardan   decided   to   eliminate   the   deceased   in   a   false   police   encounter.


Hence,   he   hired   the   services   of   the   accused,   and   in   pursuance   of   the   said


conspiracy the deceased Ramnarayan Gupta and his friend Anil Bheda were


abducted   on   11.11.2006   from   near   a   shop   named   Trisha   Collections   at


Vashi,   New   Bombay   by   4   or   5   well-built   persons   who   appeared   to   be


policemen   and   were   forcibly   bundled   into   a   Qualis   car.   The   complainant,


brother   of   the   deceased,   sent   telegrams   and   fax   messages   to   different


authorities   complaining   that   the   said   two   persons   had   been   abducted   by


some persons who appeared to be policemen and were in danger of losing


their lives.


                                                                                                   4





7.      It is alleged that at Bhandup Complex the deceased was shifted to an


Innova vehicle.   The deceased and witness Anil Bheda were taken to D.N.


Nagar police station in two separate vehicles  i.e. one Qualis and the other


Innova.    It   is  alleged  that  the  deceased   was killed  and   his   dead  body  was


thrown near Nana-Nani Park at Versova.   The dead body, after some time,


was   collected   from   the   said   place   by   the   police   to   create   a   false   case   of


police   encounter.     A   case   vide   C.R.   No.   302/2006   was   registered   on


11.11.2006 at Versova  Police  Station  against deceased  Ramnarayan  Gupta


on the complaint made by accused No. 9.   In the said FIR it was shown that


accused No. 9 and other police officers had gone to Nana-Nani Park on the


basis   of   certain   information   and   that   the   deceased   was   asked   to   surrender


before   the   police.     Instead   of  surrendering   before   the   police,   the   deceased


had attempted to kill the police and in retaliation he was shot by them.





8.      It   is   also   alleged   that   witness   Anil   Bheda   was   initially   detained   at


D.N. Nagar Police Station and thereafter he was taken to Kolhapur and he


was further detained at Mid Town Hotel at Andheri.    As such the witness


Anil   Bheda   was   in   custody   of   the   police   for   about   one   month   from


11.11.2006.  His wife had lodged a missing complaint at Vashi police station


on the same day, but she was compelled to withdraw that complaint.


                                                                                                      5





9.      The   complainant   is   the   brother   of   the   deceased   and   is   a   practicing


advocate.     He   came   to   know   within   a   few   minutes   of   the   incident   of


abduction   of   his   brother.     He,   therefore,   along   with   advocate   Mr.   Ganesh


Ayyer, started searching for his brother and in the meantime he had also sent


telegrams to Police Commissioner of Thane, Mumbai and New Bombay of


the   alleged   abduction   of   his   brother   and   indicated   apprehension   that   his


brother would be eliminated in a false police encounter.   On the same day it


was flashed on T.V. channels that the deceased had been killed in a police


encounter.     The   complainant,   therefore,   approached   the   High   Court   on


15.11.2006 by filing a writ petition (WP 2473/2006) to get directions from


the   High   Court   to   the   police   to   register   a   case   in   respect   of   death   of   his


brother.





10.     On the aforesaid writ petition the High Court on 13.2.2008 passed an


order that  the offence of murder be registered against the accused.   During


the   investigation   the   statement   of   Anil   Bheda   and   other   witnesses   were


recorded.  So far, the police have charge-sheeted 19 accused.





11.     After   the   High   Court   by   its   order   dated   13.2.2008   had   directed   the


Metropolitan Magistrate, Railway Mobile Court, Andheri to make an inquiry


                                                                                                6


under   Section   176(1A)   Cr.P.C.,   the   Metropolitan   Magistrate   after   holding


the inquiry submitted a report dated 11.8.2008 that Ramnarayan Gupta was


shot by the police when he was in police custody.  The report also stated that


the death had not taken place at the spot alleged by the police, and that the


deceased had not disappeared from the police custody before he was done to


death,   but   that   the   deceased   was   abducted   by   the   police.     The   report   also


held that a false FIR was lodged by accused No. 9 Police Inspector Pradip


Suryavanshi   of  D.N.   Nagar  Police   Sttion   to  show   that   Ramnarayan   Gupta


was killed in a police encounter at Nana-Nani Park, and this FIR was filed to


cover up the murder of the deceased Ramnarayan Gupta.





12.     After   the   inquiry   report   was   submitted   by   the   Metropolitan


Magistrate, the Division Bench of the Bombay High Court by its order dated


13.8.2009   in   the   aforesaid   criminal   writ   petition   constituted   a   Special


Investigation  Team   for investigation  of this  case.    Mr. K.M.M. Prasanna,


DCP, Mumbai City, was appointed as head of the investigation team, and he


was   directed   to   record   the   statement   of   the   complainant   and   to   treat   that


statement as the FIR.   Copy of the order of the Bombay High Court dated


13.8.2009 is Annexure P-3 to this appeal.   Accordingly, the statement of the


complainant   was   recorded   on   20.8.2009   which   was   treated   as   the   FIR


(Annexure   P4   to   this   appeal)   and   investigation   was   carried   out.     The


                                                                                            7


statement and supplementary statement  of Anil Bheda, which corroborates


the prosecution case, is Annexure P5 to this appeal.





13.      During   investigation,   it   was   revealed   that   accused   No.1   Police


Inspector   Pradip   Sharma   (who   is   described   as   an   `encounter   specialist'),


accused   No.9   -   PI   Pradip   Suryawanshi   and   accused   No.   14   -   Janardan


Bhanage, had entered into a conspiracy to eliminate Ramnarayan Gupta. It


appears   that   accused   No.14   Janardan   Bhanage   had   some   personal   enmity


with Ramnarayan Gupta.  Thereafter other officers and some criminals were


involved in the execution of the said conspiracy. Accused No.4 - Shailendra


Pande , accused No.5 - Hitesh Solanki, accused N0.6 - Akil Khan, accused


No.8   -   Manoj   Mohan   Raj,   accused   No.12   -   Mohd.   Moiddin   and   accused


No.21 - Suresh Shetty and accused  No.7 police constable Vinayak Shinde


had   abducted   Ramnarayan   Gupta   and   Anil   Bheda   from   Vashi,   on


11.11.2006.     Accused   No.1   PI   Pradip   Sharma,   accused   No.2   Police


Constable   Tanaji   Desai,   accused   No.9   P.I.   Pradip   Suryavanshi,   accused


No.15   API   -   Dilip   Palande   were   the   persons   who   actually   fired   and   shot


dead the deceased. Accused No.11 API Nitin Satape and accused no.22 PSI


Arvind   Sarvankar   claimed   to   have   fired   during   the   encounter,   though   the


bullets fired from their fire arms were not recovered. Accused Nos. 13,16,


17, 18 and 19, whose bail orders were cancelled by the High Court, are said


                                                                                               8


to   be   the   members   of   the   team   which   shot   him   dead.   Accused   No.13


Devidas  Sakpal  had  allegedly   guarded   Anil  Bheda  at  Hotel  Mid   Town  on


certain   occasions   and   accused   No.16   Head   Constable   Prakash   Kadam   had


joined   the   abductors   at   about   4.30   p.m.   and   since   then   he   was   with   Anil


Bheda.   He   was   also   with   Anil   Bheda   when   he   was   taken   out   from


D.N.Nagar   Police   Station   in   the   evening   and   also   later   on   at   Hotel   Mid


Town from time to time.





14.     On behalf of the prosecution, it is pointed out that in the FIR lodged


by P.I. Pradip Suryavanshi showing the killing of Ramnarayan Gupta in an


encounter   at   Nana-Nani   Park,   he   had   given   names   of   police   officers   and


police staff, who were in that team.  The names of accused Nos.13,16, 17, 18


and 19 are shown in the said FIR.   On that basis an entry was made in the


station diary, where also the names of these persons were shown. It is also


pointed out that in the magisterial enquiry, which was initially directed by


the Police Commissioner, these persons had claimed to be members of the


encounter   team.   When   the   complainant   filed   the   Writ   Petition   against   the


State   for   taking   action   against   the   culprits,   some   of   these   persons   had


appeared to contest the writ petition. After the writ petition was allowed and


this   Court   directed   investigation,   accused   Nos.   13,   16,   19   and   20   filed


Special   Leave   Petition   challenging   that   order,   which   was   dismissed.


                                                                                                 9


Everywhere they had taken the plea that Ramnarayan Gupta was shot dead


in an encounter and that they were members of the Police team involved in


that   encounter   and   were  also   present   at   the   time  of  the   alleged  encounter.


The learned Counsel also pointed out that there is sufficient material to show


that these persons were involved in the commission of the crime.





15.     The   Sessions   Court   granted   bail   to   the   appellants   but   that   has   been


cancelled by the High Court by the impugned judgment.





16.     It was contended by learned counsel for the appellants before us, and


it   was   also   contended   before   the   High   Court,   that   the   considerations   for


cancellation of bail is different from the consideration of grant of bail vide


Bhagirathsinh   s/o  Mahipat  Singh  Judeja  vs.  State  of  Gujarat  (1984)  1


SCC 284, Dolat Ram and others vs. State of Haryana (1995) 1 SCC 349


and Ramcharan vs. Sta
                                te of M.P.   (2004) 13 SCC 617.





17.     However, we are of the opinion that that is not an absolute rule, and it


will   depend   on   the   facts   and   circumstances   of   the   case.     In   considering


whether   to   cancel   the   bail   the   Court   has   also   to   consider   the   gravity   and


nature of the offence, prima facie case against the accused, the position and


standing of the accused, etc.  If there are very serious allegations against the


                                                                                                     10


accused his bail may be cancelled even if he has not misused the bail granted


to him.   Moreover, the above principle applies when the  same  Court which


granted bail is approached for canceling the bail.  It will not apply when the


order granting bail is appealed against before an appellate/revisional Court.





18.      In our opinion, there is no absolute rule that once bail is granted to the


accused then it can only be cancelled if there is likelihood of misuse of the


bail.   That factor, though no doubt important, is not the only factor.   There


are several other factors also which may be seen while deciding to cancel the


bail.





19.      This is a very serious case and cannot be treated like an ordinary case.


The   accused   who   are   policemen   are   supposed   to   uphold   the   law,   but   the


allegation   against   them   is   that   they   functioned   as   contract   killers.     Their


version   that   Ramnarayan   Gupta   was   shot   in   a   police   encounter   has   been


found to be false during the investigation.  It is true that we are not deciding


the   case   finally   as   that   will   be   done   by   the   trial   court   where   the   case   is


pending,   but   we   can   certainly   examine   the   material   on   record   in   deciding


whether   there   is   a   prima   facie   case   against   the   accused   which   disentitles


them to bail.


                                                                                                       11


20.     Accused   No.   11   API   Nitin   Sartape,   accused   No.17   PSI   Ganesh


Harpude, and accused No.19 PSI Pandurang Kokam, who were attached to


Versova Police Station, as per the station diary entry 33 of Versova Police


Station left Versova Police Station to go to D.N.Nagar Police Station on a


special   assignment.   That   entry   No.33   was   taken   in   the   station   diary   of


Versova Police  Station at 18.05 hours. Entry No.25 in the station diary of


D.N.Nagar   Police   Station   at   18.55   hrs.   shows   that   Police   Inspector


Suryavanshi,   API   Dilip   Palande   (accused   No.15),   PSI   Arvind   Sarvankar


(accused   No.22),   PSI   Patade   (accused   No.18)   and   API   Sartape   (accused


No.11), PSI Harpude (accused No.17) and Police Constable Batch No.26645


i.e.   Pandurang   Kokam   (accused   No.19)   left   the   Police   Station   to   go   near


Nani Nani Park to verify and to arrest a hardened criminal. It appears that 3


police   officers   i.e.   AP   Sartape,   PSI   Harpude   and   Constable   Pandurang


Kokam were specially called from the Versova Police Station and they were


in the team of the police officers and staff who accompanied PI Suryavanshi.


This   team   left   the   police   station   at   18.55   hrs.   as   per   the   said   entry   and   it


appears   that   at   about   8   to   8.15   p.m.   Ramnarayan   was   shot   dead.   At   this


stage,   the   defence   of   the   accused   need   not   be   taken   into   consideration,


because   during   the   investigation,   it   has   been   found   that   there   was   no


encounter and Ramnarayan Gupta was shot dead in a fake encounter. This


                                                                                                   12


station   diary   No.25   of   18.55   hrs.   goes   to   show   that   accused   No.17   PSI


Hapude, accused No.18 PSI Patade and accused No.19 Constable Pandurang


Kokam were the members of the team which killed Ramnarayan. Not only


this, as per the record of D.N.Nagar Police station, on 11.11.2006, at 6 p.m.


Police   Inspector   Suryavanshi,   API   Sartape   and   PSI   Anand   Patade   had


collected weapons and ammunition. Naturally, those weapons were collected


by the said officers to go to some place for a mission. According to them,


they   went   to   at   Nana   Nani   Park   where   Ramnarayan   Gupta   was   killed.   In


view of this, the presence of PSI Patade in the team which executed the said


plan and killed Ramnarayan does not appear to be in doubt. Merely because


accused   No.18   PSI   Patade   himself   did   not   fire   is   not   sufficient.   Accused


Nos. 17 Ganesh Harpude and accused No.19 Pandurang Kokam, as pointed


out above, were also members of that team. It is also material to note that


these accused persons had consistently taken a stand that they were present


at   the   time   of   the   said   encounter   and   this   is   clear   from   their   stand   taken


before the High Court as well as before the Supreme Court in Special Leave


Petition filed by the accused Nos. 13, 16, 19 and 21. In that SLP also they


had   stated   that   accused   Nos.   17   and   18   were   also   in   the   encounter   team.


Hence there is a prima facie case against them.


                                                                                              13


21.    As   far   as   accused   Nos.   16,   17,   18   and   19   are   concerned,   there   is


sufficient material to prima facie establish their role in this conspiracy and


the alleged execution of Ramnarayan Gupta. Accused No.13 was allegedly


given duty of guarding Anil Bheda at Hotel Mid Town where he was being


detained illegally. It is contended by the learned Counsel for the accused that


if any duty of guarding or surveillance is given to a Police Constable by his


superiors,   he   is   bound   to   discharge   that   duty   and   merely   because   he   was


given   the   guarding   duty,   it   cannot   be   said   that   he   was   party   to   the


conspiracy. However, it  cannot be forgotten that accused No.13 was one of


the   petitioners   before   the   Supreme   Court   and   had   claimed   that   he   was   a


member   of  the encounter   team along  with PI  Suryavanshi   and  others,  and


this admission finds corroboration from the contents of the FIR registered by


PI Suryavanshi himself.





22.    In   fact,   the   prosecution   material   collected   during   the   investigation


prima facie indicates that Ramnarayan Gupta was abducted during the day


time and was taken to D.N.Nagar Police Station and from there he was taken


to   some   unknown   place   where   he   was   shot   dead.     At   9   p.m.   some   police


officers   came   back   to   the   police   station   and   deposited   their   weapons   and


kept their blood stained clothes.


                                                                                                     14


23.     In our opinion this  is a very  serious  case  wherein  prima  facie  some


police officers and staff were engaged by some private persons to kill their


opponent i.e. Ramnarayan Gupta and the police officers and the staff acted


as contract killers for them. If such police officers and staff can be engaged


as   contract   killers   to   finish   some   person,   there   may   be   very   strong


apprehension   in   the   mind   of   the   witnesses   about   their   own   safety.   If   the


police officers and staff could kill a person at the behest of a third person, it


cannot   be   ruled   out   that   they   may   kill   the   important   witnesses   or   their


relatives   or   give   threats   to   them   at   the   time   of   trial   of   the   case   to   save


themselves. This aspect has been completely ignored by the learned Sessions


Judge while granting bail to the accused persons.





24.     In our opinion, the High Court was perfectly justified in canceling the


bail to the accused-appellants.   The accused/appellants are police personnel


and it was their duty to uphold the law, but far from performing their duty,


they appear to have operated as criminals.  Thus, the protectors have become


the predators.   As the Bible says "If the salt has lost its flavour, wherewith


shall it be salted?", or as the ancient Romans used to say,"Who will guard


the Praetorian guards?" (see in this connection the judgment of this Court in


CBI    vs.    Kishore   Singh,   Criminal   Appeal   Nos.2047-2049   decided   on


25.10.2010).


                                                                                                15





25.     We   are   of   the   view   that   in   cases   where   a   fake   encounter   is   proved


against policemen in a trial, they must be given death sentence, treating it as


the   rarest   of   rare   cases.     Fake   `encounters'   are   nothing   but   cold   blooded,


brutal   murder   by   persons   who   are   supposed   to   uphold   the   law.     In   our


opinion   if   crimes   are   committed   by   ordinary   people,   ordinary   punishment


should be given, but if the offence is committed by policemen much harsher


punishment should be given to them because they do an act totally contrary


to their duties.





26.     We   warn   policemen   that   they   will   not   be   excused   for   committing


murder in the name of `encounter' on the pretext that they were carrying out


the   orders   of   their   superior   officers   or   politicians,   however   high.     In   the


Nuremburg   trials   the   Nazi   war   criminals   took   the   plea   that   `orders   are


orders', nevertheless they were hanged.   If a policeman is given an illegal


order by any superior to do a fake `encounter', it is his duty to refuse to carry


out such illegal order, otherwise he will be charged for murder, and if found


guilty   sentenced   to   death.     The   `encounter'   philosophy   is   a   criminal


philosophy,   and   all   policemen   must   know   this.     Trigger   happy   policemen


who think they can kill people in the name of `encounter' and get away with


it should know that the gallows await them.    


                                                                                                16





27.     For the above reasons, these appeals are dismissed.





28.     Before   parting   with   this   case,   it   is   imperative   in   our   opinion   to


mention   that  our  ancient   thinkers   were  of  the   view   that   the   worst   state   of


affairs possible  in society is a state of lawlessness.   When the rule of law


collapses it is replaced by Matsyanyaya, which means the law of the jungle.


In Sanskrit the word `Matsya' means fish, and Matsyanyaya means a state of


affairs where the big fish devours the smaller one.  All our ancient thinkers


have   condemned   Matsyanyaya   vide   `History   of   Dharmashastra'   by   P.V.


Kane   Vol.   III   p.   21.     A   glimpse   of   the   situation   which   will   prevail   if


matsyanyaya comes into existence is provided by Mark Antony's speech in


Shakespeare's `Julius Caesar' quoted at the beginning of this judgment.





29.     This idea of matsyanyaya (the maxim of the larger fish devouring the


smaller ones or the strong despoiling the weak) is frequently dwelt upon by


Kautilya,   the Mahabharata and other works.   It can be traced back to the


Shatapatha Brahmana XI 1.6.24 where it is said "whenever there is drought,


then the stronger seizes upon the weaker, for the waters are the law," which


means   that   when   there   is   no   rain   the   reign   of   law   comes   to   an   end   and


matsyanyaya beings to operate.


                                                                                                    17





30.     Kautilya says, `if danda be not employed, it gives rise to the condition


of   matsyanyaya,   since   in   the   absence   of   a   chastiser   the   strong   devour   the


weak'.   That in the absence of a king (arajaka) or when there is no fear of


punishment,   the   condition   of   matsyanyaya   follows   is   declared   by   several


works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30


and   67,16.     Kamandaka   II.     40,   Matsyapurana   225.9,   Manasollasa   II.


20.1295 etc.





31.     Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:-


        "Raja chen-na bhavellokey prithivyaam dandadharakah

        Shuley matsyanivapakshyan durbalaan balvattaraah"





32.     This shloka means that when the King carrying the rod of punishment


does not protect the earth then the strong persons destroy the weaker ones,


just   like   in   water   the   big   fish   eat   the   small   fish.     In   the   Shantiparva   of


Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse


in the world than lawlessness, for in a state of Matsyayaya, nobody, not even


the evil doers are safe, because  even the evil doers will sooner or later be


swallowed up by other evil doers.


                                                                                         18


33.    We have referred to this because  behind the growing lawlessness  in


the country this Court can see the looming danger of matsyanyaya.





34.    The appeals are dismissed, but it is made clear that the trial court will


decide   the   criminal   case   against   the   appellants   uninfluenced   by   any


observations   made   in   this   judgment,   or   in   the   impugned   judgment   of   the


High Court.





                                                     .................................J.

                                                     (Markandey Katju)




                                                     .................................J.

                                                     (Gyan Sudha Misra)

New Delhi;

13th May, 2011


The appellant's case is that the suit was instituted between the plaintiff-respondent No.1 herein and 1st defendant- respondent No.2 herein under the pretext of partition but in fact the idea behind institution of the suit was to oust the appellant who continued to be in possession of half of the share of the property being the sole legal representative of the younger son of Laksmi Naicker who was Andi Naicker. As already stated, the appellant in fact was not even made a party in the partition suit initially but was 8 later impleaded as 2nd defendant after she filed an application for her impleadment. "Whether the sale deed executed by the de facto guardian on behalf of the minor without the permission of the court could be held to be valid ?


                                                       REPORTABLE


            IN THE SUPREME COURT OF INDIA

            CIVIL APPELLATE JURISDICTION



            CIVIL APPEAL NO. 562 OF 2003




RANGAMMAL                                                  .. Appellant



                               Versus



KUPPUSWAMI & ANR.                                         ..Respondents




                        J U D G M E N T





GYAN SUDHA MISRA, J.


            This appeal by special leave has been filed by the



appellant   Tmt.   Rangammal   against   the   order   dated



11.07.2002 passed by the learned single Judge of the High



Court   of   Judicature   at   Madras   in   Second   Appeal   No.



703/1992   by   which     the   appeal     was   dismissed   by



practically     a   summary   order   although   the   substantial



question   of   law   which   was   formulated   at   the   time   of



admission of the appeal was as follows:




            "Whether   the   sale   deed   executed  by   the

          de facto  guardian on behalf of   the minor

          without   the   permission     of   the   court

          could be held to be valid ?


2.            However,     on   hearing   the   appeal   in   the   light   of



the   prevailing     facts   and   circumstances     of   the   instant



matter,   we   are   of   the   view     that   the   question     also   arises



whether  in a partition suit  filed by the plaintiff/respondent



No.1   herein,   the   courts   below   could   shift   the   burden   of



proof  on the defendant - appellant regarding the validity  of



a   sale   deed,   which   was   executed   when   the   appellant     was



admittedly   a minor,  contrary  to  the  pleading     in  the  plaint



filed   in   a   suit     for   partition,   who   claimed     title   to   the   suit



land on the basis of the  alleged sale deed.    Still further the



question   arises   whether   the   question   of   limitation   could



arise   against   the     defendant/appellant   shifting   the   burden



on   her   to   challenge   the   sale   deed,   when   the   story   of



execution     of   the   alleged     sale   deed   was   set   up     by   the



plaintiff/respondent   No.1     in   the   plaint   for   the   first   time



when   he   filed   partition   suit     against   his   brother,   without



impleading the appellant,  but claimed benefit of title to the



suit land on the basis of the alleged sale deed.


3.           In order to  decide the aforesaid  controversy, it is



necessary  to relate the facts  giving rise  to  this  appeal  in



so      


far as   it is relevant which disclose that the appellant Tmt.



Rangammal   was   impleaded   as   second   defendant   in   a   suit



for   partition   bearing   O.S.   No.   255/1982   which   had   been



filed by    one   Kuppuswami  plaintiff-respondent  No.1   herein



in   the   court   of   District   Munsif,   Palani,   against   his   brother



Andivelu          who         was           the         principal         defendant/1st



defendant/respondent   No.2   herein     for     partition   and



separate   possession,   but   the   plaintiff   also     included     the



property    of the  appellant-Rangammal    in the schedule   to



the plaint  without including  her as a party to the suit as  it



was pleaded   by the plaintiff-respondent No.1-Kuppuswami



that  the  share   which  originally     belonged  to   the   appellant-



Rangammal,     was     transferred   to   their   predecessors,   who



were     father     and   uncle     of   the   plaintiff   and   defendant



No.1/Respondent   No.1   Andivelu,     by   way   of   a   sale   deed



dated     24.2.1951   executed   in   their     favour   by     Kumara



Naicker     who   claimed   to   be     the   legal   guardian   of   the



Rangammal              when          the          appellant/Rangammal                 was



admittedly a minor and was barely  few years old, less than



even three years.   The sale deed was claimed   to have been





                                                                                        4


executed  for  legal  necessity   in  order  to  discharge   the



debt          





of     the   deceased   mother   of   the   appellant   in   the   year   1951



which according to the case of the plaintiff-respondent No. 1



had   been   transferred   to   their   branch   by   virtue   of   the



aforesaid sale deed   executed on   24.2.1951 by the   alleged



guardian of the appellant  Kumara Naicker.  



4.           Since   the   appellant   had   not   been   impleaded   in



the suit for partition although her property was included in



the   partition   suit   between   the   two   brothers   i.e.   plaintiff



Kuppuswami-respondent   No.1   herein     and   Andivelu   1st



defendant   -respondent   No.2   herein,   the   appellant   filed   an



application for impleadment in  the partition suit  before the



trial court which was allowed.



5.             The   appellant   herein   who   was   impleaded   as   a



second   defendant     in   the   suit     clearly     pleaded   that   the



partition     suit     filed   by   Kuppuswami-plaintiff   against   his



brother   Andivelu   1st  defendant   -respondent   No.2   herein,



was collusive   in nature as this was   clearly to deprive the




                                                                             5


appellant from her share by  relying on an alleged sale deed



dated 24.2.1951 by fraudulently   stating that the deceased



mother of the appellant  was owing  certain debt  during her



lifetime     and     in     order     to     discharge     the     same,   the   so-



called                    





legal guardian  of the appellant Kumara Naicker executed a



sale deed  in favour of   the father  and uncle  of the plaintiff



and   defendant   No.1   who   are   respondents   herein.     It   was,



therefore,  submitted  by the appellant/2nd defendant  in the



suit       that   the sale deed   dated 24.2.1951 alleged to have



been     executed     in   order   to     discharge     the   debt   of   her



deceased   mother,     when   the   appellant   was   a  minor,   ought



not to be held   legally binding on her   and so as to include



her   property   for   partition     in   the   partition   suit   which   had



been     instituted     by   an   altogether   different   branch     of   the



family   who     had   separated     more   than   three   generations



ago. Hence she specifically pleaded   that the   partition suit



including her property was clearly collusive in nature   and



therefore the suit was fit to be dismissed.





                                                                                   6


6.            In   order   to   appreciate   whether   the   courts   below



were   justified   in   depriving   the   appellant   Tmt.   Rangammal



from   her   share,   it   appears   necessary   to   relate   some   other



salient   facts   of   the   case   leading   up   to   the   filing   of     this



appeal.   The   schedule-property   comprising   an   area   of   4



acres  and  10 cents    described in various    survey numbers



originally   belonged   to   one     Laksmi   Naicker-the   common



ancestor   of   contesting   parties   who   had   two   sons     and   an



oral partition had taken place between them in regard to the



properties   of   the   joint   family   including   the   schedule-



property.     Thereafter,   a   sale   deed   dated   24.2.1951   in



respect   of   the   schedule-property   was   executed   by   Kumara



Naicker   -alleged   legal   guardian     of   appellant-Rangammal



who was   one of the sons of late Kumara Naicker   and wife



of the elder son of Laksmi Naicker-Thottammal a cousin  of



her son, who was descendent of  Kumara Naicker.  Kumara



Naicker,     i.e.   the   son   of   the   elder   son   of   Laksmi   Naicker



executed   the   sale   deed   on   behalf   of   the   appellant   herein,



who   was   the   daughter   of     younger   son   of   Laksmi   Naicker



and   Andi   Naicker     was   admittedly   a   minor,   representing



himself  as her guardian since she had lost both  her father





                                                                                 7


and   her   mother   at   the   time   of   the   execution   of   the   sale



deed.     However,   the   appellant   according   to   her   case



continued   in   possession     of     half   of   the   schedule   property



according   to   the   oral   partition   which   had   fallen   into   the



share of her father since the  only brother of the appellant/



Rangammal   had   died   unmarried.     Thus,   the     appellant



continued to be in possession of half of the property without



any  knowledge about the alleged sale deed.  



7.           The appellant's case  is that   as she was a minor



and   had   lost   both   her   parents,   she   was   living   with   her



maternal   uncle   even   at   the   time   of   the   alleged   sale.       The



appellant's case is that the suit was instituted between  the



plaintiff-respondent   No.1   herein   and   1st                 defendant-



respondent   No.2   herein  under   the  pretext   of   partition   but



in   fact  the   idea   behind  institution  of  the   suit  was     to   oust



the appellant  who continued to be in possession of  half of



the share of the property being the sole legal representative



of   the   younger   son   of     Laksmi   Naicker   who   was   Andi



Naicker.       As already stated, the appellant in fact was not



even   made     a   party   in   the   partition   suit   initially   but   was





                                                                               8


later   impleaded   as   2nd  defendant     after   she   filed     an



application for her impleadment.



8.           However,   the High Court   while dealing with the



second   appeal   arising   out   of   the   partition   suit,   cast   the



burden     completely     on   the   appellant/2nd  defendant     to



prove   that the property shown in the sale   deed which fell



into the share of the   appellant, was not for the purpose of



discharge   of   the     liability   of   her   deceased   mother   who



according   to   her   case   was   not   owing   any   debt   to   anyone



including   Kumara   Naicker.     But   the     suit   was   finally



decreed   in   favour   of   the   plaintiff/respondent   No.1   holding



therein   that   the   appellant's   deceased   mother     was   owing



certain   debts   and   for   discharge   of   the   same,   the   so-called



legal   guardian   of   the   appellant   who   was   Kumara   Naicker



executed   a   sale   deed   in   favour   of   the   plaintiff's   father   and



defendant No.1's  father       in  respect of  the   entire    property



of     Rangammal     and     this   was   done   ostensibly     as   the



appellant's   mother     had   to   discharge   certain   debts   which



she   was   owing   to   the   plaintiff's   father   during   her   lifetime.



Thus, the District Munsif, Palani, decreed the suit in favour



of   the   plaintiff/1st  respondent   herein   Kuppuswami.     While





                                                                               9


doing   so, the trial court   recorded a finding   that the sale



deed dated 24.2.1951 by which  half  share  of the appellant



in   the   suit   property     was   transferred   when   the   appellant



was a minor had been executed  by legal guardian   Kumara



Naicker     for   legal   necessity       according   to   the   case   of   the



appellant   herein,   Kumara   Naicker   the   so-called   legal



guardian   was   neither   her   natural   guardian   nor   guardian



appointed   by   the   court   and   hence     the   sale   deed  executed



by him to the extent of half share of the schedule property



of appellant-Rangammal was clearly void, illegal, inoperative



and   hence not binding on her.   The trial court decreed the



suit against which the appeal before the 1st  appellate court



was dismissed.  The matter then came up to the High Court



by way of a second appeal.  



9.           Learned   counsel   for   the   appellant   while



challenging   the     judgment   and   orders   of   the   courts   below



submitted   that   the   sale   deed   executed   by   the   so-called  de



facto guardian Kumara Naicker and Thottammal  cannot be



held to be binding         on   her     as   she   was   a   minor   in   the



custody   of   her   maternal   uncle   and  not  Kumara     Naicker   -



father   of   the   respondent   No.2     and   hence   the   sale   deed





                                                                              10


executed by him on her behalf was not binding on her   as



the same was executed   in order to deprive  her of her  half



share   in     the   disputed   property     which   is   situated   on   the



eastern portion of the schedule property.



10.           The   learned   single   Judge   of   the   High   Court



however was pleased to dismiss the second appeal   holding



therein   that   the   present   suit       out   of   which   the     second



appeal arose was filed in the year 1982 which was after 31



years   of   the   execution   of   the   sale   deed   dated     24.2.1951.



The   single   Judge   further   observed     that   if   the   appellant



Tmt. Rangammal   was aggrieved   of the sale deed executed



by the de facto  guardian,   she   ought   to   have   challenged   it



within three years  from the date of  attaining majority.  The



High Court  went  on to hold  that until the date  of filing of



the present  suit by the  1st  respondent and even thereafter,



the   appellant   had   not   chosen   to   challenge   the   sale   deed



executed   by   the  de   facto  guardian   and   she   never   asserted



any   title   in   respect   of   the   suit   property   irrespective   of   the



sale   deed   in  order   to   establish  that  she     was     aggrieved  of



the  sale deed and hence it was too late for the appellant to





                                                                               11


raise   such   a   plea   in   the   High   Court     by   way   of   a   second



appeal.



11.          We have heard learned counsel for the parties  at



length and on   a consideration of their   submissions in the



light   of   the     judgments   and   orders   of   the   courts   below,



specially the High Court, we are clearly of the view that the



High   Court   as   also   the   courts   below   have   clearly



misconstrued  the entire case of the plaintiff  as well as the



respondents   and   tried   it   contrary   to   the   pleadings.     The



High Court has recorded that   "the present suit which  was



filed in the year 1982, is after 31 years" i.e. after 31 years of



the execution of the sale deed dated 24.2.1951.   But it can



be     instantly   noticed   that  the   High  Court   has  fallen   into  a



crystal clear error   as it has   patently   and unambiguously



missed   that   the   suit     had   not   been   filed   by   the   appellant



Tmt. Rangammal   as she was   the 2nd   defendant   who was



later impleaded in the suit  but the partition  suit had been



filed   by   the   plaintiff-Kuppuswami-respondent   No.1   herein



against   his   brother   the   2nd             respondent-Andivelu-1st



defendant     which   was   a   suit   for   partition     of   the   property



but   while   doing   so   he     included   and   asserted     title   to   the





                                                                              12


property in the schedule of the plaint which  admittedly had



fallen   into     the   share     of   the   appellant's   deceased-father



which     devolved     upon   her     after   the   death   of   her   father,



mother   and   brother     who   died   unmarried.     But   it   is     the



plaintiff/respondent No.1 who came up with a   case   in the



plaint   that this property was transferred for legal necessity



by   the   so-called   legal   guardian     of   the     appellant   by



executing   a   sale   deed   on   24.2.1951   in   favour   of   the



respondents predecessors who were father and uncle  of the



plaintiff  and 1st defendants/respondents herein.



12.          The  learned  single   Judge     of  the   High   Court     as



also the trial court  and the lower appellate court  thus have



lost sight of the fact that  it is the plaintiff/respondent No.1



herein who had come up with a case that the half share of



the     disputed   property     which   on   partition   had   fallen   into



the   share     of   the   appellant's   father     was   sold     out   by



Kumara   Naicker   as   guardian   of   the   appellant-who   was   a



minor in order to discharge some debt which the appellant's



deceased   mother   was   alleged   to   be   owing.     However   the



disputed property which was sold in order to discharge  the



alleged burden of debt vide sale deed dated 24.2.1951 was





                                                                            13


purchased  by the plaintiff-1st  respondent's father Arumuga



Gounder     and   their   uncle     Kumara   Naicker   which   means



that the legal guardian Kumara Naicker claims the property



of the appellant who was minor and then sold it  to himself



and     nephew     Arumuga   Gounder.     Furthermore,   it   is   also



the plaintiff's case   that the property which had fallen into



the   share     of   Tmt.   Rangammal   had   been   sold   out   by



Kumara   Naicker   to   the   father   of     Kuppuswami-Arumuga



Gounder and Andivelu who was his own  son.



13.           Therefore,   it   is   more   than   apparent     that   when



the   plaintiff/respondent   came   up   with   a   case   of   execution



of   sale   deed   on   24.2.21951   for   half     of     the   schedule



property/disputed   property     alleged   to   have   been   sold   out



for   legal   necessity   which   had   fallen   into   the   share   of



appellant   Rangammal,   the   burden   clearly       lay   on   the



plaintiff/respondent   No.1   to   discharge   that   the   sale   deed



executed   by     Kumara   Naicker   to   his   own   son   and   nephew



Arumuga   Gounder     in   regard   to   the   share   which   had



admittedly     fallen     into   the   appellant     share     Rangammal



who was a minor, was sold  for the legal necessity.  But this



burden   by   the   trial     court   was   wrongly   cast   upon   the





                                                                         14


appellant/Rangammal     to   discharge,   although,     it   is   well-



settled   that  the     party     who  pleads    has  also to  prove  his



case.



14.           Section   101   of   the       Indian   Evidence   Act,   1872



defines   `burden   of   proof'   which     clearly   lays   down       that



whosoever     desires   any   court     to   give   judgment   as   to   any



legal right or law  dependent on the existence of facts which



he   asserts,   must   prove   that   those   facts   exist.     When     a



person is  bound to prove  the        existence     of  any  fact it is



said  that the burden of proof lies on that person.  Thus, the



Evidence   Act   has   clearly   laid   down   that   the   burden   of



proving     fact     always   lies   upon   the   person   who   asserts.



Until   such   burden   is   discharged,   the   other   party   is   not



required  to be called upon to prove his case.  The court has



to examine   as to whether   the person upon whom burden



lies     has   been   able   to   discharge   his   burden.     Until       he



arrives at such conclusion, he cannot proceed on the basis



of weakness of the other party.  In view of this legal position



of   the   Evidence   Act,   it   is   clear   that   in   the   instant   matter,



when   the   plaintiff/respondent   No.1   pleaded   that   the



disputed   property     fell   into   the   share   of   the   plaintiff   by





                                                                               15


virtue of the sale deed dated 24.2.1951, then it was clearly



for   the   plaintiff/respondent   No.1   to   prove     that   it   was



executed  for  legal necessity of the appellant-while she was



a   minor.       But,   the   High  Court   clearly   took     an   erroneous



view     while   holding   that   it   is   the   defendant/appellant   who



should   have   challenged   the   sale   deed   after   attaining



majority   as   she   had   no   reason   to   do   so   since   the   plaintiff



/respondent No.1   failed to first of all discharge the burden



that   the   sale   deed   in   fact   had   been   executed     for   legal



necessity   of   the   minor's   predecessor   mother   was   without



permission           of         the         court.         It         was         not         the



defendant/respondent who  first of all claimed benefit of the



sale deed  or asserted its genuineness, hence the burden of



challenging the sale deed specifically when she had not even



been dispossessed from the disputed share, did not arise at



all.



15.          Plethora of commentaries   emerging from   series



of case  laws  on burden of proof  which are too  numerous



to   cite,   lay   down   that  when   a   person   after   attaining



majority, questions any sale of his property by his guardian



during   his   minority,   the   burden   lies   on   the   person   who





                                                                                               16


upholds/asserts the purchase not   only to   show that   the



guardian   had the power to sell   but further that the whole



transaction   was   bona   fide.    This     was   held   in   the   case   of



Roop   Narain  vs.    Gangadhar,   9WR   297,  as   also     in  Anna



Malay      vs.     Na   U   Ma,      17C   990.   Thus   when   the



plaintiff/respondent   No.1   came   up   with   a   case   that   the



minor's share/appellant herein was sold for legal necessity



by   her   uncle   Kumara   Naicker,   then                  it   was   the



plaintiff/respondent   No.1   who   should   have   discharged   the



burden to prove that the minor/appellant's share had been



sold   of   by   the  de   facto  guardian   Kumara   Naicker   without



permission of the court, could be held to be legal and valid



so as to include the same in the partition suit between two



brothers,   which   has   not   been   discharged   at   all   by   the



plaintiff/respondent   No.1.     In   fact,   the   real   brother   of



plaintiff   Kuppuswami   who   is   defendant   No.1/respondent



No.1 herein Andivelu has also not supported the case of the



plaintiff that the half share of appellant/Rangammal in the



disputed   property     was   sold   out   vide   sale   deed   dated



24.2.1951   for   legal   necessity   without   permission   of   the



Court and hence  defendant No.1/respondent No.2 also has





                                                                            17


not supported  the  case  of the  plaintiff/respondent  No.1  on



this count.



16.             The   plaintiff/respondent   No.1   therefore   has



miserably  failed to prove his case as per his pleading in the



plaint   and   the   burden   to   prove   that   the   sale   deed   in   fact



was   valid   has   not   even   been   cast   on   plaintiff/respondent



No.1 that the share of appellant-Rangammal had been sold



out by Kumara Naicker vide sale deed  dated  24.2.1951 for



consideration   without   permission   of   the   Court   when   the



appellant was a minor.



17.             The   High   Court,   therefore,     has   fallen   into   an



error   while  observing  that  the  appellant/defendant   No.2  in



the suit  should have assailed the sale deed and  cannot do



so  after 31 years of its execution when it is unambiguously



an          admitted         factual         position         that         it         is         the



plaintiff/respondent  No.1  who had  filed a suit for partition



against his brother defendant No.1/respondent No.2 and in



that   partition   suit     it   was     plaintiff/respondent   No.1   who



banked upon the story  that a sale deed had been executed



by his Uncle Kumara Naicker who claimed it to be the legal



guardian of the appellant-Rangammal who admittedly was a





                                                                                                  18


minor for legal necessity which was to discharge the debt of



the appellant's deceased mother.   Hence, in view of Section



101   of   the   Indian   Evidence   Act,   1872   it   is   the



plaintiff/respondent   No.1     who   should   have   first   of   all



discharged   the   burden     that  in    fact   a  sale   deed  had   been



executed   for   the   share   which   admittedly   belonged   to



appellant-Rangammal   in   order   to   discharge   the   burden   of



debt for legal necessity and for the benefit of the appellant



who admittedly was a minor.



18.          When the plaintiff-respondent  No.1-Kuppuswami



came with a specific pleading for the first time in a partition



suit  that the appellant's share had been sold out by her de



facto guardian Kumara Naicker without even the permission



of     the   court,   it   was   clearly   the   plaintiff/respondent   No.1



who should have discharged the burden that the same was



done for legal necessity   of the minor in order to discharge



the   debt   which   the   deceased   mother   of   the   appellant   was



alleged   to   have   been   owing     to   some   one.     When   the



plaintiff/respondent   No.1   failed   to   discharge     this   burden,



the   question   of   discharge   of   burden     to   disprove     the   sale



deed     by   the   2nd  defendant/appellant-Rangammal   do   not





                                                                            19


arise  at all as per the provisions of Evidence Act.  It may be



relevant at this stage to cite  the ratio of the decision of this



Court     delivered   in   the   matter   of  Subhra   Mukherjee  vs.



Bharat   Coaking   Coal   Ltd,   AIR   2000   SC   1203,  whether   the



document in question was genuine   or sham   or bogus, the



party who  alleged it to be bogus had to prove nothing until



the   party   relying     upon     the   document   established       its



genuineness.  This  was the view expressed by this Court in



the   matter   of  Subhra   Mukherjee  vs.  Bharat   Coaking   Coal



Ltd,  AIR   2000   SC   1203   =   2000   (3)   SCC   312.      This   case



although did not relate   to a suit   for partition or question



relating   to   minority,     it   was   a   case   wherein   the   appellant



refused   to   hand   over   possession   of   property   to   the



respondent-government   company     when   ordered   to   do   so.



Instead she filed a suit for declaration of  title in respect of



property.     The   evidence   of   plaintiff/appellant   indicated



several     discrepancies     and   inconsistencies     due   to   which



the trial court dismissed the suit but the 1st appellate court



and     the   High   Court,     had   allowed   the   appeal   which   was



upheld by the Supreme Court  as it was  held  that the High



Court   rightly   allowed   the   respondent's/government





                                                                           20


company's second appeal and rightly found that the sale in



favour of the appellant was not bona fide   and thus confer



no  rights on them.  



19.           Application   of     Section   101   of   the   Evidence   Act,



1872 thus came up for discussion in this matter and while



discussing the law on the burden of proof in the context of



dealing   with     the   allegation   of       sham   and   bogus



transaction, it was held that   party which makes allegation



must   prove   it.     But   the   court   was   further   pleased   to   hold



wherein   the     question   before   the   court   was   "whether     the



transaction in question   was a bona fide and genuine one"



so that the party/plaintiff relying  on the transaction had to



first of all prove  its genuineness and only  thereafter would



the defendant  be required to discharge the burden in order



to   dislodge   such   proof   and   establish     that   the   transaction



was   sham   and   fictitious.     This   ratio     can   aptly     be   relied



upon     in   this   matter   as   in   this   particular   case,   it   is   the



plaintiff/respondent   No.1-Kuppuswami     who   relied   upon



the   alleged   sale   deed   dated   24.2.1951   and   included   the



subject-matter of the property which formed part of the sale



deed and claimed partition.   This sale deed  was denied by





                                                                               21


the   defendant/appellant   on   the   ground   that   it   was   bogus



and   a  sham transaction  which   was  executed  admittedly   in



1951   when   she   was   a   minor.                Thus,   it   was   the



plaintiff/respondent   No.1   who   should   have   first   of   all



discharged   the   burden   that   the   sale   deed   executed   during



the minority of the appellant  was  genuine and was fit to be



relied upon.   If the courts below   including the High Court



had   felt   satisfied     on   this   aspect,     only   then     the   burden



could   be     shifted   on   the   defendant/appellant   to     dislodge



the case  of the plaintiff  that the sale deed was not genuine.



But   when   the   plaintiff   merely     pleaded   in   the   plaint     but



failed  to lead any evidence - much   less proof, that the sale



deed   was   genuine   and   was   executed   in   order   to   discharge



the burden of legal necessity  in the interest of  minor, then



the   High   Court     clearly   misdirected   itself     by   recording   in



the   impugned   order   that   it   is   the   defendant/appellant



herein who should  have challenged  the genuineness of the



sale   deed   after   attaining   majority   within   the   period   of



limitation.



20.            Since  the  High  Court  has  misplaced    burden  of



proof,   it   clearly   vitiated   its   own   judgments   as   also   of   the





                                                                             22


courts   below  since   it   is   well   established   dictum   of   the



Evidence Act that misplacing  burden of proof would vitiate



judgment.       It is also equally   and undoubtedly   true that



the burden of proof may not be of much consequence  after



both   the   parties     lay   evidence,   but   while     appreciating   the



question of  burden of proof, misplacing of  burden of proof



on a particular party and recording  findings in a particular



way definitely  vitiates the judgment  as it has happened in



the   instant   matter.     This   position   stands   reinforced     by



several authorities   including the one   delivered in the case



of    Koppula     Koteshwara   Rao  vs.    Koppula   Hemant   Rao,



2002 AIHC 4950 (AP).



21.          It has been further held  by the Supreme Court in



the case   of   State  of J & K  vs.  Hindustan  Forest Company,



2006 (12) SCC 198, wherein  it was held that the onus is on



the plaintiff  to positively   establish its case on the basis of



material   available   and   it   cannot   rely   on   the   weakness   or



absence of defence to discharge onus.



22.          It   was     still   further   held     by   this   Court   in   the



matter of   Corporation  of City  of Bangalore  vs.  Zulekha   Bi,



2008 (11) SCC 306 (308)  that it is for the plaintiff   to prove





                                                                              23


his   title   to   the   property.     This   ratio   can   clearly   be   made



applicable  to the facts of this case for it is the plaintiff who



claimed title to the  property  which was a subject-matter of



the alleged sale deed of 24.2.1951 for which  he had sought



partition   against   his  brother   and,  therefore,     it  was   clearly



the plaintiff who should have first of all established his case



establishing   title   of   the     property   to   the   joint   family   out   of



which     he   was   claiming   his   share.     When   the   plaintiff



himself failed to discharge the burden to prove that the sale



deed   which   he   executed     in   favour   of   his   own   son   and



nephew     by     selling   the   property     of   a  minor   of   whom     he



claimed   to   be   legal   guardian     without   permission   of   the



court,   it was clearly   fit to be set aside by the High Court



which   the     High   Court     as   also   the   courts   below     have



miserably  failed to discharge.  The onus was clearly on the



plaintiff     to   positively   establish     his   case     on   the   basis     of



material available   and could not have been allowed by the



High Court to rely on the weakness   or absence   of defence



of  the defendant/appellant herein to discharge  such onus.



23.           The   courts   below   thus   have   illegally   and



erroneously   failed   not   to   cast   this   burden   on   the





                                                                                 24


plaintiff/respondent   No.1   by   clearly   misconstruing   the



whole   case   and   thus   resulted   into   recording   of   findings



which   are   wholly   perverse   and   even   against   the   admitted



case of the parties.



24.          It   is   further   well-settled   that   a   suit     has   to   be



tried on the basis of the pleadings  of the contesting parties



which is filed   in the suit before the trial court in the form



of     plaint   and   written   statement   and   the   nucleus     of   the



case   of   the   plaintiff     and   the   contesting   case   of   the



defendant   in the form of issues emerges out of   that.   This



basic  principle,  seems to have been missed not only by the



trial   court     in   this   case   but   consistently   by   the   first



appellate   court   which   has   been     compounded   by   the   High



Court.



25.          Thus, we are of the view,  that the whole case out



of which   this  appeal arises had been  practically made  a



mess  by  missing  the  basic     principle     that the  suit  should



be     decided   on   the   basis   of   the   pleading   of   the   contesting



parties   after  which  Section  101  of The  Evidence  Act  would



come  into play  in  order   to determine  on  whom  the  burden



falls for proving the issues which have been determined.





                                                                              25


26.          We   further   fail   to   comprehend   as   to   how   the



basic   case   pleaded   by   the   plaintiff   had   been   misconstrued



and   the   burden   of   discharge   of   genuineness,   veracity   and



legal   efficacy of the sale deed dated 24.2.1951 was shifted



on the appellant-Rangammal   clearly missing   that it is the



plaintiff's/respondent   No.1   case   who   was   bent   upon   to



include   Rangammal's   property   also   for   partition   by   relying



upon the story of execution of sale deed  when the partition



suit     was   between   the   two   brothers     who   were   plaintiff-



Kuppuswami and defendant No.1-Andivelu.



27.          Coming now to the next question, we are unable



to   appreciate   as  to   how  the   High   Court     has  held  that  the



delay   in   challenging   the     sale   deed   of   1951   should   have



been   done   at   the   instance   of   the   2nd  defendant-appellant



herein     when   it   is   the   plaintiff     who   brought   the



theory/story   of     execution   of     the   sale   deed     of   appellant



Rangammal's             property         into         the         branch         of



plaintiff/respondents'     branch   by   pleading   and   asserting



that  this had fallen into the share of  their predecessor  as



one of the predecessors was the  de facto  guardian     of   the



appellant Rangammal.  In fact, if there was a dispute about





                                                                                 26


the   genuineness   and   veracity   of   the   sale   deed   and   the



appellant   was   in   occupation   of   her   share,   then   it   is   the



plaintiff  who should  have filed  a suit claiming title on the



basis   of     the   sale   deed   which   was   claimed   to   have       been



executed   in   their   favour   by   the  de   facto    guardian   of



Rangammal   when   she   was   a   minor   before   this   property



could   be   included   in   the   suit   for   partition   between   the



brothers excluding the 2nd  defendant/appellant Rangammal



and   the     consequence   of   not   doing   so   or   delay   in   this



regard,   obviously   will   have   to   be   attributed   to   the



plaintiff/respondent.



28.           Thus, the High Court fell into a clear error when



it observed that the suit was barred by limitation as it had



been   filed   after   31   years   of   the   execution   of   the   sale   deed



which   on   the   face   of   it   is   factually   incorrect.     The   High



Court has clearly erred while recording   so,   as it seems to



have     missed   that   the     suit   had   not   been   filed   by   the



appellant herein  but she was merely contesting the suit as



the   2nd  defendant   by   getting   herself   impleaded   in   the



partition   suit   when   it   came   to   her   knowledge   that   the



property   which   is     in   her   occupation   and   possession   has





                                                                               27


also been included in the schedule in the suit   for partition



between   plaintiff/respondent   No.1   herein-Kuppuswamy



and   the   1st  defendant/respondent   No.2   herein-Andivelu



and when she received   the copy of the plaint, execution of



the   alleged   sale   deed   way   back   in   1951   was     disclosed   to



her for the first time.   Hence, there was no cause of action



for   her     to   file   a   suit   challenging   the   alleged   sale   deed   as



knowledge   of   the   same   cannot   be   attributed   to   her   in   this



regard   as   she     asserted   actual   physical   possession   on   her



share.



29.           The   appellant   who   claimed   to   be   in   occupation



and peaceful possession of   her share   to the extent of half



which   is   situated   on   the   eastern     side   of   the   schedule



property,   had   no     reason   to   file   a   suit   assailing     the   sale



deed   when   she   was   in   actual   physical   possession   of   her



share   and   suddenly   out   of   the   blue,   a   partition   suit     was



filed by  the  plaintiff/respondent  No.1 wherein the property



of   the   appellant   also   was   included   in   the   schedule   of   the



partition suit which was to be partitioned  between the two



brothers by metes and bounds by setting a cooked up story



that   the   appellant's   share,   who   belonged   to   an   altogether





                                                                                28


different branch of the family, had been   given away by her



de facto guardian Kumara Naicker by executing a sale deed



in   favour   of   the   respondents'   predecessor   way   back   on



24.2.1951 when the appellant admittedly was  a minor.



30.          We are, therefore,  constrained to  partly set aside



the  judgment  and  order  of  the  High Court   in so  far   as  the



share   of   the   appellant   Rangammal   is   concerned   and



consequently  the  decree  passed   by  the   trial   court,  upheld



by   the   first   appellate   court   and   the   High   Court   which   had



been illegally decreed   including the share   of the appellant



-Rangammal   which   had   not   devolved   on   the   family   of   the



plaintiff/respondent   No.1   and   defendant   No.1/respondent



No.2,   but   was   claimed   on   the   basis   of   a   sale   deed   which



could not be proved either by evidence or law, is fit to be set



aside.



31.          It hardly needs to be   highlighted   that  in   a suit



for partition, it is   expected of the plaintiff   to include only



those properties for partition to which the family has clear



title and unambiguously  belong to the members of the joint



family   which   is   sought   to   be   partitioned   and   if   someone



else's     property     meaning   thereby     disputed   property     is





                                                                           29


included   in the  schedule  of  the  suit for partition,  and the



same   is   contested   by   a   third   party   who   is   allowed   to   be



impleaded   by   order   of   the   trial   court,   obviously   it   is   the



plaintiff who will have to first of  all discharge the burden of



proof     for     establishing   that   the   disputed   property   belongs



to   the   joint     family   which   should   be   partitioned   excluding



someone   who   claims   that   some   portion   of   the   joint   family



property   did   not   belong   to   the   plaintiff's   joint   family   in



regard to which decree for partition is sought.



32.              However, we make it clear that the decree which



has   been   passed   by   the   trial   court   in   so   far   as   partition



between           plaintiff/respondent          No.1         and         defendant



No.1/respondent   No.2   is   concerned,   shall   remain   in   tact



but   the   said   decree   shall   exclude   the   property   which   had



fallen   into   the   share   of     appellant-Rangammal   but   was



claimed   to   have   been   transferred     to   the   branch   of     the



plaintiff   and   1st  defendant-respondents   herein   vide   sale



deed     dated   24.2.1951     The   trial   court   being   the   court   of



District Munsif, Palani, accordingly shall modify the decree



passed   in   O.S.   No.255   of   1982   by   excluding     the   share   of



the appellant -Rangammal claimed on the basis of the sale





                                                                                30


deed dated 24.2.1951.   Thereafter,   if the decree   is put to



execution,   the   executing   court     shall   ensure   that   such



portion     of   the   property   which   is   in   occupation     of



Rangammal   which   was   alleged  to   have   been  sold  vide   sale



deed dated 24.2.1951, shall not be put into execution while



partitioning   the   remaining   property   between   the   plaintiff-



Kuppuswami   and   1st  defendant   -Andivelu   -   respondent



No.2.



33.          Thus,   this   appeal   in   so   far   as   the   claim     of   the



appellant- Rangammal to the  extent  of half of the share in



the   schedule   to   the   suit   property,   situated   on   the   eastern



portion   is   concerned,   stands   allowed   with   a   token   cost



which   is   quantified     at   rupees  twenty   five   thousand   as   we



are   of   the   view   that   the   appellant   who   was   in   actual



physical and peaceful possession of her property which she



had inherited from her deceased parents, was unnecessarily



dragged into this litigation at the instance of   the plaintiff-



Kuppuswami   who   filed   a   partition   suit     which   was



apparently collusive in nature as it included the share of a



third party to which the plaintiff and 1st  defendant's family



had   no   clear   title.         Under   the   facts   and   circumstance   of





                                                                               31


the instant case, it was clearly a compulsion on the part of



the appellant/Tmt. Rangammal to contest the collusive suit



for   decades   Kwasting   time,   energy   and   expense   over   a



litigation  which  was  started by the plaintiff  clearly  with  an



oblique motive and evil design. Hence the cost shall be paid



by   the   respondent   No.1-Kuppuswami   to   the   appellant-



Rangammal as indicated above.



34.         Accordingly,   this   appeal   stands   allowed   with



costs.





                                        ..................................J

                                           (J.M. Panchal)





                                        ..................................J

                                         (Gyan Sudha Misra )



New Delhi,

May 13, 2011





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