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
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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
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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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