REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 562 OF 2003

RANGAMMAL

.. Appellant

Versus

KUPPUSWAMI & ANR.

..Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

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:

“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 ?

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/1^st

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

4

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.

4.

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 1^st

defendant –respondent No.2 herein, the appellant filed an

application for impleadment in the partition suit before the

trial court which was allowed.

5.