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TMI Blog2011 (5) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the District Munsif, Palani, decreed the suit in favour of the plaintiff/1st respondent herein Kuppuswami. While 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 purchased by the plaintiff-1st respondent's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile 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 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 Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant-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 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 happene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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