RANGAMMALversusKUPPUSWAMI & ANR.

                    [2011] 6 S.C.R. 835


                     RANGAMMAL                                 A
                         v.
                  KUPPUSWAMI & ANR.
               (Civil Appeal No. 562 of 2003)

                       MAY 13, 2011                            B
    [J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.)

    Evidence Act, 1872:

      s.101 - Burden of proof- Suit for partition - Property of C
 third person (who later got herself impleaded as defendant no.
2), included in plaint-schedule property on the basis of a sale
deed stated to have been executed by the alleged guardian
of defendant no. 2 when she was a minor, on the ground of
legal necessity to pay the debts of her deceased mother - D
Defendant no. · 2 disputing genuineness of the sale deed -
High Court placing the burden on defendant no. 2 that she
should have challenged genuineness of the sale deed -
HELD: The burden of proving a fact always lies upon the
person who asserts - Until such burden is discharged, the E
other party is not required to be called upon to prove his case
- In the instant matter, when the plaintiff pleaded that the
disputed property fell into his share by virtue of the sale deed,
then it was clearly for him to prove that it was executed for
legal necessity of defendant no. 2 while she was a minor - It F
was not defendant no. 2/appellant who claimed any benefit
from the sale deed or asserted its existence,, therefore, the
burden of challenging the sale deed specifically when she had
not even been dispossessed from the disputed share by virtue G
of the sale deed, did not arise at all - Since the High Court
has misplaced the burden of proof, the impugned judgment
of the High Court as also the judgments of the courts below
are clearly vitiated, as it is a well established dictum of the
                            835                               H
    836       SUPREME COURT REPORTS                [2011) 6 S.C.R.


A Evidence Act that misplacing the burden of proof would vitiate
    the judgment.                       ·

          Partition:

          Suit for partition - HELD: In a suit for partition, it is
8 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 i.e. disputed
C property is included in the schedule to the suit for partition,
  and the same is contested by a third party who is allowed to
  be impleaded, 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.
D         Pleadings:

          Suit - Held: A suit has to be tried on the basis of the
  pleadings of the contesting parties filed in the suit before the
  trial court in the form of plaint and wri; 'en statement and the
E nucleus of the case of the plaintiff and the contesting case of
  the defendant in the form of issues emerges out of that - In
  the instant case, the plaintiff/respondent no. 1 has miserably
  failed to prove his case as per his pleadings in the plaint and
  the burden to prove that the sale deed on which he based his
F claim, in fact was valid has not even been cast on him.

          Delay!Laches:

       Suit for partition - Property of a third person (who
G subsequently got herself impleaded as defendant no. 2)
  included in the plaint scheduled property on the basis of a
  sale deed executed 31 years back by the alleged guardian
  of defendant no. 2 while she was a minor- High Court holding
  that delay in challenging the sale deed should have been
H
        RANGAMMAL v. KUPPUSWAMI & ANR.                       837

explained by defendant no. 2 - HELD: It is the plaintiff who         A
based his case on execution of the sale deed of the property
of defendant no. 2, and when there was a dispute about the
genuineness of the sale deed and defendant no. 2 was in
occupation of the property, it is the plaintiff who should have
filed the suit claiming title on the basis of the sale deed,         B
before the said property could be included in the suit for
partition - Thus, there was no cause of action for defendant
no. 2 to file a suit challenging the alleged sale deed as she
asserted actual physical possession of the property and
knowledge of sale deed could not be attributed to her prior to       C
receiving the copy of the plaint disclosing execution of the
alleged sale deed - Cause of action.

     Costs:
                                                                     D
      Suit for partition - Property of third party (who later got
herself impleaded as defendant no. 2) included in schedule
to the plaint - HELD: Defendant no. 2 was unnecessarily
dragged into this litigation at the instance of the plaintiff, who
filed a partition suit which was apparently collusive in nature      E
and was filed clearly with an oblique motive and evil design
- It was a compulsion on the part of defendant no. 2 to contest
the suit for decades wasting time, energy and expenses -
Therefore, a token cost of Rs.25,0001- would be paid to her
by plaintiff.                                                        F
     The plaintiff-respondent no. 1 filed a suit for partition
and separate possession against the principal defendant
(defendant no. 1/ respondent no. 2) including the property
of the appellant in the schedule to the plaint without               G
arraying her as a party to the suit. The case of the plaintiff
was that the share which originally belonged to the
appellant had been sold to the predecessors of the
plaintiff and defendant no. 1 by way of a sale deed dated
24.2.1951 executed by the legal guardian of the appellant            H
   838     SUPREME COURT REPORTS              [2011] 6 S.C.R.

A when she was less than even three years of age. The
  sale deed was claimed to have been executed for legal
  necessity in order to discharge the debt of the appellant's
  deceased mother. The appellant filed an application for
  impleadment and was arrayed as defendant no. 2 in the
B said suit. She pleaded that the suit was collusive in
  nature so as to deprive her of her property by
  fraudulently stating that her deceased mother owed debt
  during her life time and in order to discharge the same,
  the so-called legal guardian executed the alleged sale
C deed dated 24.2.1991. The appellant-defendant no. 2
  further pleaded that since she was a minor and was living
  with her maternal uncle, as she had lost both her parents,
  at the time of the alleged sale deed and, as such, the said
  sale deed ought not to be held legally binding on her so
D as to include her property for partition in the said
  collusive suit. The trial court decreed the suit. The first
  appellate court dismissed the appeal filed by defendant
  no. 2. Her second appeal was also dismissed by the High
  Court holding that it was for the ~'."Pellant (defendant no.
E 2) to prove that the property shown in the sale deed,
  which fell into her share, was not sold for the purpose of
  discharging the liability of her deceased mother.

      In the instant appeal filed by defendant no. 2, the
F questions for consideration before the Court were: (i)
  Whether in a partition suit filed by the plaintiff/respondent
  no. 1 the courts below could shift the burden of proof on
  the 2nd defendant-appellant regarding the validity of a
  sale deed, which was executed when the appellant was
G admittedly a minor, contrary to the pleading in the plaint
  claiming title to the suit land on the basis of the alleged
  sale deed? and (ii) Whether the question of limitation
  could arise against the 2nd defendant/appellant shifting
  the burden on her to challenge the sale deed, when the
H
           RANGAMMAL v. KUPPUSWAMI & ANR.                    839

  case of execution of the alleged sale deed was set up by          A
' the plaintiff/respondent no. 1 in the plaint for the first time
. when he filed partition suit against respondent no. 2,
  without impleading the appellant, but claimed benefit of
  title to the suit land on the basis of the alleged sale deed.
                                                                    B
        Partly allowing the appeal, the Court

       HELD: 1.1. Section 101 of the Evidence Act, 1872
  defines 'burden of proof' which clearly lays down that
  whosoever desires any court to give judgment as to any C
  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
                                                             0
  of proving a fact always lies upon the person who
  asserts it. 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 the burden lies has been able to discharge the E
  same. Until the court arrives at such a conclusion, it
· cannot proceed on the basis of weakness of the other
  party. [Para 14) [853-D-F]

         1.2. In the instant case, it is the plaintiff/respondent
    No.1 who pleaded that the disputed property fell into his       F
    share and 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 the 2nd defendant/
    appellant on the ground that it was bogus and a sham            G
I   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          H
    840      SUPREME COURT REPORTS             (2011) 6 S.C.R.


A 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 2nd defendant/appellant to dislodge the case of the
  plaintiff that the sale deed was not genuine. But when the
B 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
C impugned order that it is defendant no. 2/appellant who
  should have challenged the genuineness of the sale deed
  after attaining majority within the period of limitation,
  when she had not even been dispossessed from the
  disputed share. [Para 14 and 19) (853-G; 857-B-F]
D
      1.3. When the plaintiff-respondent No.1 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 without even the permission of the court,
E therefore, in view of s.101 of the Evidence Act, 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
F 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 does not arise at all
  as per the provisions of the Evidence Act. [Para 17-18)
G (855-E-G]

        Subhra Mukherjee vs. Bharat Coaking Coal Ltd, AIR
    2000 SC 1203 - relied on.

          1.4. Since the High Court has misplaced burden of
H
       RANGAMMAL v. KUPPUSWAMI & ANR.                841

proof, it clearly vitiated its own judgment as. also the A
judgments of the courts below since it is well established
dictum of the Evidence Act that misplacing of burden of
proof would vitiate the 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, B
but while appreciating the question of burden of proof,
misplacing of burden of proof on a particular party and
recording the findings in a particular way definitely
vitiates the judgment, as it has happened in the instant
matter. [Para 20) [857-G-H; 858-A]                         C
    Koppu/a Koteshwara Rao vs. Koppula Hemant Rao,
2002 AIHC 4950 (AP); State of J & K vs. Hindustan Forest
Company, 2006 (12) SCC 198; Corporation of City of
Bangalore vs. Zulekha Bi, 2008 (5) SCR 325 = 2008 (11) D
sec 306 (308), relied on.
     1.5. The law on burden of proof as laid down in
various decisions is, when a person after attaining
majority, questions any sale of his property by his         E
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. [Para 15] [854-
C-D]
                                                            F
     Roop Narain vs. Gangadhar, 9WR 297; and Anna Malay
vs. Na U Ma, 17C 990 -referred to.

     1.$. The plaintiff/respondent No.1, therefore, has
miserably failed to prove his case as per his pleading In   G
the plaint and the burden to prove that the sale deed In
fact was valid has not even been cast on him that the
share of appellant had been sold out by the de facto
guardian by sale deed dated 24.2.1951 for consideration
                                                            H,
   842      SUPREME COURT REPORTS                [2011] 6 S.C.R.

A without permission of the court when the appellant was
  a minor. [Para 16] [855-A-B]

       2.1. It is further well-settled that a suit has to be tried
  on the basis of the pleadings of the contesting parties
  filed in the suit before the trial court in the form of plaint
8
  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. In the instant case,
  this basic principle, seems to have been missed not only
C by the trial court but consistently by the first appellate
  court which has been compounded by the High Court.
  [Para 24] [859-B-C]

        2.2. The basic case pleaded by the plaintiff had been
  misconstrued and the burden to prove genuineness,
D veracity and legal efficacy of the sale deed dated
  24.2.1951 was shifted on the appellant clearly missing that
  it is the plaintiff/respondent No.1 who was bent upon to
  include the appellant's property also for partition by
  relying upon the story of execution of sale deed when the
E partition suit was between the plaintiff and defendant
  No.1. [para 26] [859-F-G]

       2.3. The High Court as also the courts below have
  clearly misconstrued the entire case of the plaintiff and
F 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, the High Court has
  fallen into a crystal clear error as it has patently missed
G that the suit had not been filed by the appellant as she
  was the 2nd defendant who was later impleaded in the
  suit. [para 11] [851-G-H; 852-A]

         3.1. The High Court has held that the delay in
        RANGAMMAL v. KUPPUSWAMI & ANR.                   843

challenging the sale deed of 1951 should have been              A
explained at the instance of the 2nd defendant-appellant
when it is the plaintiff who brought the story of execution
of the sale deed of appellant's property in their favour. In
fact, if there was a dispute about the genuineness and
veracity of the sale deed and the appellant was in              B
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 the appellant when she
was a minor before the said property could be included          C
in the suit for partition between the plaintiff and the
defendant excluding the 2nd defendant/appellant and the
consequence of not doing so or the delay in this regard,
obviously will have to be attributed to the plaintiff/
respondent no. 1. [Para 27) [859-H; 860-A-D]                    D

     3.2. 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                  E
unambiguously an admitted factual position that it is the
plaintiff/respondent No.1 who had filed a suit for partition
against defendant No.1 /respondent No.2 and in that
partition suit it was plaintiff/respondent No.1 who banked
upon the story that the sale deed had been executed by          F
the legal guardian of the appellant, for legal necessity
which was to discharge the debt of the appellant's
deceased mother. The High Court has clearly missed that
the suit had not been filed by the appellant but she was
merely contesting the suit as the 2nd defendant by              G
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/
                                                                H
    844     SUPREME COURT REPORTS               [2011] 6 S.C.R.


A respondent No.1 and the 1st defendant/respondent No.2
  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. Therefore, there was no cause of
  action for her to file a suit challenging the alleged sale
B deed, as knowledge of the same cannot be attributed to
  her in this regard as she asserted actual physical
  possession on her share. [Para 17 and 28) [855-C-D; 860-
  E-H]

c      4.ln 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
D thereby, a 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
E 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. [Para 31)
F [861-F-H; 862-A]

       5.1. In the result, the judgment and order of the High
  Court in so far as the share of the 2nd defendant/appellant
  is concerned, Is set aside and, consequently, the decree
G passed by the trial court, upheld by the first appellate
  court and the High Court In so far as It Illegally Includes
  the share of the appellant 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
H deed which could not be proved either by evidence or
       RANGAMMAL v. KUPPUSWAMI & ANR.                    845

law, is set aside. However, it is made clear that the decree    A
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 intact.
The trial court accordingly shall modify the decree passed
in O.S. No.255 of 1982 by excluding the share of the            B
appellant claimed on the basis of the sale deed dated
24.2.1951. [Para 30 and 32) [861-D-E; 862-A-D]

      5.2. It is a matter of concern of this Court that the
appellant who was in actual physical and peaceful               c
possession of her property which she had inherited from
her deceased parents, was unnecessarily dragged into
this litigation at the instance of the plaintiff, who flied a
partition suit which was apparently collusive in nature as
it included the share of a third party to which the plaintiff   o
and 1st defendant's family had no clear title. It was clearly
a compulsion on the part of 2nd defendant/appellant to
contest the collusive suit for decades wasting time,
energy and expense over a litigation which was started
by the plaintiff clearly with an oblique motive and evil        E
design. Therefore, a token cost of Rs.25,000/- shall be
paid by plainitiff/respondent No.1 to the appellant. [Para
33) [862-F-H; 863-A-B]

                     Case Law Reference:
                                                                F
    9WR 297                     referred to       para 15
    17C 990                     referred to       para 15
    AIR 2000 SC 1203            relied on         para 18
                                                                G
    2002 AIHC 4950 (AP)         relied on         Para 20
    2006 (12) sec 198           relied on         para 21
    2008 (5 ) SCR 325           rel:ed on         Para 22
                                                                H
    846      SUPREME COURT REPORTS                  [2011] 6 S.C.R.

A        CIVIL APPELLATE JURISIDCTION: Civil Appeal No. 562
    of 2003.

        From the Judgment & Order dated 11. 7.2002 of the High
    Court of Judicature at Madras in S.A. No. 703 of 1992.
B         Jayanth Muth Raj, T.N. Rao for the Appellant.

          Krishnamurthi Swami, Prabha Swami, S.J. Aristole, Prabu
    Ramasubramani, L.A.J. Selvan, Priya Aristotle, V.G. Pragasam
    for the Respondents.
c
          The Judgment of the Court was delivered by

       GYAN SUDHA MISRA, J. 1. 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
D of the High Court of Judicature at :'v1adras 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
E 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 ?

F       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
G 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
H
                                                                  -
        RANGAMMAL v. KUPPUSWAMI & ANR.                          847
             [GYAN SUDHA MISRA, J.]

against the defendant/appellant shifting the burden on her to           A
challenge the sale deed, when the story of execution of the
alleged sale deed wa~ 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      B
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. C
 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 D
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- E
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/ F
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. G
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           H
    848      SUPREME COURT REPORTS                   [2011] 6 S.C.R.


A 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
B 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
C   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
D   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
E   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
F   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
G 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
H
        RANGAMMAL v. KUPPUSWAMI & ANR.                         849
             [GYAN SUDHA MISRA, J.]

 Naicker-the common ancestor of contesting parties who had            A
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            B
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          C
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
                                                                      0
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               E
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    F
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           G   I
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 impleadment.
                                                                      H
    850     SUPREME COURT REPORTS                  (2011) 6 S.C.R.


A      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
8 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-
c called legal guardian of the appellant who was Kumara Naicker
  executed a sale deed in favour of the plaintiffs 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
0
  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
E 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
F 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.
G 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
H deed executed by the so-called de facto guardian Kumara
        RANGAMMAL v. KUPPUSWAMI & ANR.                         851
             [GYAN SUDHA MISRA, J.]

Naicker and Thottammal cannot be held to be binding on her             A
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 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       B
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        C
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              D
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     E
deed in order to establish that she was aggrieved of the sale
deed and hence it was too late for the appellant to 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      F
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      G
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             H
    852      SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A 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
B a suit for partition of the property but while doing so he included
  and asserted title to the 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
C 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/
D 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 "lo.1 herein who had
E   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
F   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
    father Arumuga Gounder and their uncle Kumara Naicker which
    means that the legal guardian Kumara Naicker claims the
G   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
H   Andivelu who was his own son.
        RANGAMMAL v. KUPPUSWAMI & ANR.                       853
             [GYAN SUDHA MISRA, J.]

      13. Therefore, it is more than apparent that when the          A
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 bu.rden
clearly lay on the plaintiff/respondent No.1 to discharge that the   B
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 appellant/Rangammal        C
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 D
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 E
that the burden of proving fact always lies upon the person
who asserts. Until such burden is qischarged, 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 F
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 virtue of the sale deed dated G
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
                                                                    H
    854      SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A who should have challenged the sale deed after attaining
  majority as she had no reason to do so since the plaintiff I
  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
B 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.
c
         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,
D   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 Malay vs. Na U Ma, 1··c 990. Thus when the
E   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
F   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
G   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 not supported the case of the
H
        RANGAMMAL v. KUPPUSWAMI & ANR.                         855
             [GYAN SUDHA MISRA, J.]

plaintiff/respondent No.1 on this count.                               A
      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         B
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    C
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
                                                                       0
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
minor for legal necessity which was to discharge the debt of           E
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           F
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   G
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        H
    856      SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A   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
B   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
C   nothing until the party relying upol'l' 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
D   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
E   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
    company's second appeal and rightly found that the sale in
F   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
G 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
;
        RANGAMMAL v. KUPPUSWAMI & ANR.                         857
             [GYAN SUDHA MISRA, J.]
genuine one" so that the party/plaintiff relying on the transaction    A
 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-       B
 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 the defendant/appellant on the ground that
it was bogus and a sham transaction which was executed                 C·
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       D
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                 E
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.                    F

      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          G
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
                                                                       H
    858      SUPREME COURT REPORTS                   [2011] 6 S.C.R.

A 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).
B
         21. It has been further held by the Supreme Court in the
    case of State of J & K vs. Hindustan Forest Company, 2006
    (12) sec 198, wherein it was held that the onus is on the
    plaintiff to positively establish its case on the basis of material
c   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)
D SCC 306 (308) that it is for the plaintiff to prove 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
E 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
F 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
G 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
H
        RANGAMMAL v. KUPPUSWAMI & ANR.                      859
             [GYAN SUDHA MISRA, J.]

failed not to cast this burden on the plaintiff/respondent No.1 A
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 8
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 C
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 D
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 E
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 F
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 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 G ·
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 H
    860      SUPREME COURT REPORTS                   [2011] 6 S.C.R.


A 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
B predecessors was the de facto guardian of the appellant
  Rangammal. In fact, if there was a dispute about the
  genuineness and veracity of the sale deed and the appellant
  wa-; 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
C 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,
D obviously will have to be attrib11+ed 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
E 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
F 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-
  And ivelu and when she received the copy of the plaint,
G 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
H share.
        RANGAMMAL v. KUPPUSWAMI & ANR.                      861
             [GYAN SUDHA MISRA, J.]

     29. The appellant who claimed to be in occupation and A
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 B
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 C
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 D
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 E
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.
                                                                   F
      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 G
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
thA hurden of oroof for establishinq that the disputed property H
    862     SUPREME COURT REPORTS                   [2011] 6 S.C.R.

A 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.

s      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
c 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
o of the appellant -Rangammal claimed on the basis of the sale
  deed dated 24.2.1951. Therea1ter, 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,
E 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
I

   the suit property, situated on the eastern portion is concerned,
   stands allowed with a token cost Vvhich 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
G 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
H clear title. Under the facts and circumstance of the instant case,
          RANGAMMAL v. KUPPUSWAMI & ANR.                    863
               [GYAN SUDHA MISRA, J.]

it was clearly a compulsion on the part of the appellanUTmt.       A
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.          B

       34. Accordingly, this appeal stands allowed with costs.

R.P.                                           Appeal allowed.