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.
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 in the year 1982 which was after 31 years of the execution of the sale deed dated 24.2.1951.
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 .
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 number 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 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.
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 number even been cast on plaintiff respondent No.1 that the share of appellant Rangammal had been sold out by Kumara Naicker vide sale deed dated 24.2.1951 for companysideration without permission of the Court when the appellant was a minor.
The schedule property companyprising an area of 4 acres and 10 cents described in various survey numbers originally belonged to one Laksmi Naicker the companymon ancestor of companytesting 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.
However, the appellant according to her case companytinued 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.
The matter then came up to the High Court by way of a second appeal.
Thus, the appellant companytinued to be in possession of half of the property without any knowledge about the alleged sale deed.
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 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 appellants deceased father which devolved upon her after the death of her father, mother and brother who died unmarried.
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 companyrts below companyld 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, companytrary 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.
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 companytinued 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.
The trial companyrt decreed the suit against which the appeal before the 1st appellate companyrt was dismissed.
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 companylusive 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.
This sale deed was denied by the defendant appellant on the ground that it was bogus and a sham transaction which was executed admittedly in 1951 when she was a minor.
Since the appellant had number 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 companyrt which was allowed.
Thus, the District Munsif, Palani, decreed the suit in favour of the plaintiff/1st respondent herein Kuppuswami.
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 companyrt companyld be held to be valid ?
If the companyrts below including the High Court had felt satisfied on this aspect, only then the burden companyld be shifted on the defendant appellant to dislodge the case of the plaintiff that the sale deed was number genuine.
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 respondents father Arumuga Gounder and their uncle Kumara Naicker which means that the legal guardian Kumara Naicker claims the property of the appellant who was minor and then sold it to himself and nephew Arumuga Gounder.
In order to decide the aforesaid companytroversy, 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.
As already stated, the appellant in fact was number even made a party in the partition suit initially but was later impleaded as 2nd defendant after she filed an application for her impleadment.
The single Judge further observed that if the appellant Tmt.
Learned companynsel for the appellant while challenging the judgment and orders of the companyrts below submitted that the sale deed executed by the so called de facto guardian Kumara Naicker and Thottammal cannot be held to be binding on her as she was a minor in the custody of her maternal uncle and number Kumara Naicker father of the respondent No.2 and hence the sale deed executed by him on her behalf was number 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 eastern portion of the schedule property.
Still further the question arises whether the question of limitation companyld 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.
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.
While doing so, the trial companyrt 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 number guardian appointed by the companyrt 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 number binding on her.
255/1982 which had been filed by one Kuppuswami plaintiff respondent No.1 herein in the companyrt 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.
However, the High Court while dealing with the second appeal arising out of the partition suit, cast the burden companypletely on the appellant/2nd defendant to prove that the property shown in the sale deed which fell into the share of the appellant, was number for the purpose of discharge of the liability of her deceased mother who according to her case was number owing any debt to anyone including Kumara Naicker.
Rangammal from her share, it appears necessary to relate some other salient facts of the case leading up to the filing of this appeal.
Rangammal was impleaded as second defendant in a suit for partition bearing O.S. No.
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 companysin 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.
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.
But it is the 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 respondents herein.
In order to appreciate whether the companyrts below were justified in depriving 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 attaining majority.
GYAN SUDHA MISRA, J. This appeal by special leave has been filed by the appellant Tmt.
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.
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.
