Case: Rangammal Vs. Kuppuswami &amp; Another

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 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 Naicker4. 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 allowed5. 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 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 dismissed6. 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 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 deed7. The appellants 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 appellants 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 later impleaded as 2nd defendant after she filed an application for her impleadment8. 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 appellants 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 plaintiffs father and defendant No.1s father in respect of the entire property of Rangammal and this was done ostensibly as the appellants mother had to discharge certain debts which she was owing to the plaintiffs father during her lifetime. 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.

Reasoning: 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.