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  

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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  

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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.

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.   

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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  

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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  

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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  

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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  

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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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