Case: Rangammal Vs. Kuppuswami &amp; Another

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 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 appellants 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 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 elses property meaning thereby disputed property is 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 plaintiffs 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 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 defendants family had no clear title. Under the facts and circumstance of 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 determined26. 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 plaintiffs/respondent No.1 case who was bent upon to include Rangammals 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-AndiveluThus, 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 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 shareThus, 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 defendants family had no clear title. Under the facts and circumstance of 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.