RANGAMMAL Vs. KUPPUSWAMI

JUDGEMENT

(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 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:

(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 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.