Karnataka High Court
Sri S Prabhakar vs Smt. Dhananthibai @ Vitta Bai on 7 June, 2017
*R.F.A.NO.859/2011
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
REGULAR FIRST APPEAL No.859 OF 2011 (PAR)
BETWEEN:
Sri S.Prabhakar
S/o Late J.V.Somanath
Aged about 60 years
R/at Muthappa Block
II Floor, Ganganagar
Bengaluru - 560 032 ...Appellant
(By Sri J.S.Halashetty, Advocate)
AND:
1. Smt. Dhananthibai @ Vitta Bai
W/o Late J.V.Somanath
Aged about 81 years,
2. Sri Hemaji
S/o Late J.V.Somanath
Aged about 51 years,
Both are R/at No.27/4D
Chandra Layout, Ist Cross
Lakasandra
Banneraghatta Road
* Corrected vide Court Order dated:12.07.2017 in header portion in
page Nos.1 to 32.
*R.F.A.NO.859/2011
2
Bengaluru - 560 030
3. Smt. Gun Jyothi
W/o Sri Gangadhar
Aged about 53 years
R/at No.3, Bhavani Nilaya
9th Cross, Park Area
Extension Road
Bengaluru - 560 027
4. Smt. Sathyaprema
W/o Jaganatha Rao
Aged about 55 years
No.13, 15th Cross
N.S.Palya, Abbayappa Layout
Bannerghatta Road
Bengaluru - 560 076 ...Respondents
(By Sri Kestur N.Chandrashekar, Adv. for R-1 to 3,
R-4 served)
This Appeal is filed under section 96 of the Code of
Civil Procedure, against the judgment and decree dated
19.01.2011 passed in O.S.No.6906/2006 on the file of the
XXII Additional City Civil Judge, Bengaluru, decreeing the
suit for the partition and separate possession, etc.
This appeal coming on for further hearing this day,
the Court delivered the following:
*R.F.A.NO.859/2011
3
JUDGMENT
This first plaintiff's appeal arises out of judgment and decree dated 19.01.2011 passed by the XXII Additional City Civil Judge, Bengaluru in O.S.No.6906/2006. By the impugned judgment, the trial Court has dismissed the suit of the appellant/plaintiffs for partition and separate possession of their legitimate share in the suit schedule property, for mesne profits and for permanent injunction against the defendants from interfering with the possession of the properties of their shares.
2. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court. The subject matter of the suit is site bearing old No.10, new Municipal No.15/1 PID No.82-41-15/1 situated at LBS Nagar, 3rd Cross, Indiranagara, Bengaluru measuring 20 x 30 feet with a building situated thereon.
3. The plaintiffs case in brief is as follows: *R.F.A.NO.859/2011 4
The plaintiffs and defendants No.2 and 3 are the sons and daughters of first defendant. Plaintiffs, defendants and their father J.V.Somanath constituted joint family and J.V.Somanath was the kartha of the joint family. They owned ancestral property bearing Sy.No.233/1B situated at Irunampattu village, Vaniyambadi Taluk, Thirupathur Sub Division, Tamilnadu measuring 4.11 cents. J.V. Somnath was employeed in KSRTC as driver. He purchased the suit site on 29.11.1969 in the name of first defendant out of the income of the joint family property and his own salary income. Their father and themselves sold the ancestral property on 13.03.1986 and out of the said sale proceeds and the other joint family income, they constructed the suit house. The first defendant was managing the suit schedule property and off late, she started to mismanage the property. They issued notice to the first defendant demanding for their share in the suit schedule property, which is not complied. Thus the suit. *R.F.A.NO.859/2011 5
4. The defendants filed their written statement. The gist of the same is as follows:
It is denied that the suit schedule property was purchased out of the alleged income of the joint family and defendant No.1 was only a name lender purchaser. It is also denied that there was any income from any joint family properties. Though J.V.Somanath was employed as driver in KSRTC, he was very unsteady in the service and he used to abscond frequently. Ultimately he disappeared since 26.02.1996. Due to such conduct of J.V.Somanath, the first defendant shouldered the responsibility of the family.
She maintained the family by doing tailoring work and saree vending business and she acquired the suit property out of such income. Thus, she is the absolute owner of the suit schedule property. As the second defendant suffered physical disability due to accident and out of her love for defendants No.2 and 3, the first defendant has gifted the suit schedule property to them. The suit is hit by the *R.F.A.NO.859/2011 6 provisions of Benami Transactions (Prohibition) Act, 1988 and not properly valued and the Court fee paid is insufficient.
5. On the basis of the above pleadings of the parties, the trial Court framed the following:
ISSUES
1. Whether the plaintiffs prove that the suit property is joint family property having acquired in the name of defendant No.1 out of joint family funds?
2. Whether plaintiffs have a share in the suit property?
3. Whether plaintiffs are entitled for mesne profits?
4. Whether plaintiffs are entitled for permanent injunction sought for?
5. Whether Court fee paid is insufficient? *R.F.A.NO.859/2011 7
6. Whether defendant No.1 proves that suit property is self acquired property of defendant No.1?
7. Whether defendants prove that registered gift deed dated 04.05.2006 is valid?
8. Whether defendants prove that the suit is hit by Benami Transactions Prohibition Act?
9. What Decree or Order?
6. In support of their case, the first plaintiff got examined as PW-1 and got marked Exs.P.1 to P.6. The defendants did not lead any evidence.
7. The trial Court after hearing both sides, dismissed the suit on the following grounds:
i. The plaintiffs have failed to prove their case that the suit schedule property is acquired out of the joint family income and the first defendant is only a name lender.
ii. The suit is hit by Section 3(2) of Benami Transactions (Prohibition) Act.*R.F.A.NO.859/2011
8
8. Sri J.S.Halashetti, learned counsel appearing for the appellant/first plaintiff seeks to assail the judgment of the trial Court on the following grounds:
a) The defendants did not dispute that J.V.Somanath was employed in KSRTC and the joint family owned ancestral property at Irunampattu in Tamilnadu State;
b) The defendants did not adduce any evidence to establish their case that the first defendant was doing tailoring and saree vending business and had income to acquire the plaint schedule property;
c) The defendants did not dispute that the suit schedule house is constructed in the year 1986 and Ex.P.2 shows that at the same time, ancestral property is sold and the recital in Ex.P.2 specifically states that the property is sold for the purpose of constructing residential house for the family, despite the aforesaid circumstances and evidence, the trail Court holds that the case of the plaintiffs is not proved, which is against the principles of appreciation of the evidence;*R.F.A.NO.859/2011
9
d) Section 3(2) of the Benami Transactions (Prohibition) Act, is not applicable to the joint family properties.
In support of his contentions, he relies upon the following judgments:
i. J.S.Subramanya Gupta vs. Dr. J.S.Rajendra and Ors. 2001(4) KCCR 2393;
ii. Valliammal (D) by LRs vs. Subramaniam and Ors. AIR 2004 SC 4187;
iii. Smt. Rabti Devi vs. Ram Dutt and Anr. AIR 1998 SC 310;
iv. Appasaheb Peerappa Chandgade vs. Devendra Peerappa Chandgade and Ors AIR 2007 SC 218;
v. Smt. M.Printer and Ors. Vs. Marcel Martins AIR 2002 Kant 191;
vi. Sri Marcel Martins vs. M.Printer and Ors. AIR 2012 SC 1987 vii. Mr. Adesh Kanwarjit Singh Brar vs. Ms. Babli Brar and Ors. In CS(OS) No.647/2010 of Delhi High Court (unreported) *R.F.A.NO.859/2011 10 viii. K.G.Narasimha Murthy vs. Smt. Venkatalakshmamma (D) by LRs and Ors. in RFA No.1300/2008 connected with RFA No.963/2008 (PAR) disposed on 31.05.2013 (unreported) ix. Vidhyadhar vs. Manikrao & Anr AIR 1999 SC 1441;
9. As against that, learned counsel for respondents No.1 to 3 seeks to support the impugned judgment on the following grounds:
a) Though the plaintiffs contended that the suit property is purchased in the year 1969 out of the joint family income, the plaintiffs have not adduced any evidence to show that the ancestral joint family property was generating any income much less, such income was sufficient to acquire the suit property;
b) The alleged income of the father out of his employment is not proved, *R.F.A.NO.859/2011 11
c) No evidence is adduced to show what was the income of the father and how much he saved out of that and how much he contributed,
d) The very fact that the father went missing shows that he was irresponsible and was not caring for the family and under such circumstances, he purchasing the property in the name of first defendant or constructing the house is a far fetched idea,
e) Even assuming that the plaintiffs have contributed anything for construction of the house, since the suit site was the absolute property of the first defendant, their entitlement if proved so was only to seek recovery of the amount allegedly contributed by them,
f) The claim of the plaintiffs that the father purchased the suit in the name of their mother and she is only a name lender is hit by Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 as rightly held by the trial Court,
g) Even otherwise, since the property is purchased in the name of the mother, by operation of Section *R.F.A.NO.859/2011 12 14(1) of the Hindu Succession Act, she becomes absolute owner of the property, In support of his contentions, he relies upon the judgment of the Supreme Court in Jupudy Pardha Sarathy vs. Pentapati Rama Krishna and others. (2016)2 SCC 56.
10. The respondents filed IA No.1/2017 to adduce additional evidence. In the said application they seek to produce the Xerox copies of the following documents:
1. Contemporaneous Agreement dated 05.05.2000
2. Registered Sale Deed dated 29.11.1969
3. Affidavit dated 13.11.2003
4. Equitable mortgage deed dated 24.08.2009
5. Accounts statement dated 13.05.2000 from the Bengaluru City Co-operative Bank Limited,
6. Khatha certificate dated 20.06.2006
7. Khatha Extract dated 20.06.2006
8. Lawyer's notice dated 31.03.2006 *R.F.A.NO.859/2011 13
9. Postal acknowledgment dated 04.04.2006
10. Application for loan given by Smt. Dhanavanthi Bai (defendant No.1), to the Bengaluru City Co-operative Bank Limited.
11. In the affidavit filed in support of the said application, the third respondent contended that, she traced the said documents recently in the house of her mother. She contends that as defendant No.1 was ignorant of legal procedure and defendant No.2 suffered major physical disability in the motor accident and as she is a married daughter living separately the documents could not be produced before the trial Court and they are required for adjudication of the matter. The first plaintiff/appellant opposed the application on the ground that the production of documents is highly belated and since all the documents are copies, they cannot be admitted in evidence. They further contended that the documents are not genuine and they are sought to be *R.F.A.NO.859/2011 14 produced only to improve the case of the defendants/respondents No.1 to 3.
12. Having regard to the above rival contentions of the parties, the question that arises for consideration of this Court is;
Whether the trial Court is justified in holding that the suit schedule property is the absolute property of the first defendant and dismissing the suit of the plaintiffs?
13. Some of the undisputed facts of the case are as follows:
The plaintiffs and defendants No.2 and 3 are the sons and daughters of defendant No.1 Dhanavanthi Bai @ Vitta Bai and J.V.Somanath. The suit site is purchased under the sale deed Ex.P.5 on 29.11.1969 and the said sale deed stands in the name of first defendant. The only ancestral property owned by J.V.Somanath was the land measuring 4.11 cents situated at Irunampattu village in Tamilnadu *R.F.A.NO.859/2011 15 State. J.V.Somanath, plaintiff No.1 and defendant No.2 sold the said land under Ex.P.2 on 13.03.1986 for a consideration of Rs.48,500/-. There is a recital in Ex.P.2 that they are selling the said property for the purpose of construction of residential house, for discharging the family debts and for family necessity. The construction of the suit house is subsequent to 13.03.1986.
REGARDING NUCLEUS FROM THE ANCESTRAL PROPERTY:
14. As per Ex.P.5 the first defendant is the purchaser and she has paid consideration of Rs.500/-. J.V. Somnath has not even attested the said document. Therefore, if plaintiffs expect the Court to believe anything contrary to contents of Ex.P.5, it is for them to prove that the true purchaser is some body else and the sale consideration is paid by him.
15. Normal rule of evidence is that, when a transaction is reduced to the form of document, it excludes *R.F.A.NO.859/2011 16 the oral evidence to prove anything contrary to the contents of the same. Therefore, if any one wants to prove some thing contrary to the contents of the same the burden lies upon him to prove the same. Therefore burden of proving that the acquisition of the suit property under Ex.P.5 was by J.V. Somnath for the family benefit lies on the plaintiffs. On discharging such burden then only onus shifts to the defendants.
16. Section 102 of the Indian Evidence Act requires that, "the person who desires any Court to give judgment in his favour as to any legal right or law, dependent on the existence of the facts which he asserts, must prove that these facts are exist." Since in Ex.P.5 the first defendant is shown as purchaser. Initial burden to prove the fact that funds for the purchase of the property under Ex.P.5 were provided by J.V.Somanath, is upon the plaintiffs. Only then, onus shifts to the *R.F.A.NO.859/2011 17 defendants to show that the first defendant had source to purchase the suit property. Though the plaintiffs contended that in the year 1969, J.V.Somanath was employed in KSRTC and was earning salary, no material is produced to show what was his income and what was his savings etc.
17. Under Hindu Law, though the presumption is in favour of existence of a joint family, there is no presumption that the property standing in the name of member of the joint family belongs to the family. The Mulla's principles of Hindu Law 17th edition Vol.I at Page 344 to 346, deals with presumption as to the coparcenary and coparcenary property. It says that there is no presumption that a joint family possesses joint family. The person who claims that the property standing in the name of a member of the joint family is purchased out the nucleus by joint family property has to prove the existence of such joint family property. Secondly he has to *R.F.A.NO.859/2011 18 prove that the such property was generating income which was sufficient to acquire the property. Existence of some nucleus is not a sole criteria. What is to be shown is that the family had sufficient surplus from such nucleus out of which subsequent acquisitions could be made. The nature and relative value of the nucleus itself is not sufficient."
18. The nature of the property owned by a female member of the joint Hindu family or a widow is dealt with at Section 140 of the said Book, which reads as follows:
140. Presumption as to property found in widow's possession--"Where a widow is found in possession of property of the acquisition of which no account is given, then the mere fact that her husband died possessed of considerable property raises no presumption that the property found in her possession was originally that of her husband. Nor is there any presumption that the money with which a widow in possession of her husband's estate makes a purchase of property *R.F.A.NO.859/2011 19 came out of the savings from her husband's estate.
Generally, where a woman has been in possession of property, there is no presumption that she had only a limited estate in it."
19. The plaintiffs contend that the site is purchased in the year 1969, out of the salary income of J.V.Somanath and house is built out of the income of the ancestral property situated at Tamilnadu state.
20. To prove the existence of the ancestral/joint family property, the plaintiffs have produced Ex.P.2 the translation of which is at Ex.P.2(a). Plaintiff No.1/appellant is also a signatory to the said document. A perusal of Ex.P.2(a) shows that the property sold under said document is an uncultivated land measuring 4.11 cents and it is sold for a consideration of Rs.48,500/-. That itself shows that the land was not under cultivation and therefore the question of that yielding any nucleus does not arise. Even the extent of land is in Ex.P.2(a) as 4.11 cents. Learned counsel for the appellant contends *R.F.A.NO.859/2011 20 that is 4 acres and 11 guntas and there is a mistake in the translation.
21. Firstly, it is the document of the plaintiffs themselves and the said document was marked on 08.07.2010. For the first time after about 7 years, learned counsel for the appellant is raising the contention that the translation is incorrect.
22. Even otherwise the tenor of the document itself shows that the land was not under cultivation. Except that, the plaintiffs did not produce RTC or any other document to show, prior to 1969 or thereafter the land was being cultivated and that was generating any income and out of such income any surplus was saved for the purpose of purchase of suit site in the year 1969.
23. Though the plaintiffs contended that their father was working as a Driver in KSRTC and he purchased property out of the income in the name of the *R.F.A.NO.859/2011 21 first defendant, except the self serving statement of PW-1, no evidence is adduced as to when he joined the service and whether he was in continuous service, what was his monthly salary and whether he could save anything out of his income. The records show that J.V.Somanath had four children to bring up. Under Ex.P.2 it is stated that the property is being sold for triple purpose viz., a) for construction of residential house, b) for legal necessity of the family and c) for discharging the family debts. If the pressure of family debts is to the extent of driving J.V. Somanath to sell the property then it goes hard to believe that he had any surplus by way of savings to acquire the property.
24. PW-1 in his cross examination at Para 19 gives sweeping admission as follows: "my mother purchased suit item No.1 in the year 1969". It is the contention of the defendants that J.V.Somanath was very irregular in his service and ultimately he disappeared and mother *R.F.A.NO.859/2011 22 shouldered the responsibility of the family. According to them, she was doing tailoring and saree vending business. PW-1 in his deposition states that he has not produced any document about the employment of his father and he says that it was not required. When it was suggested that his father was working as driver under Minister Sri Hucha Mastigowda, he states that such service was under
deputation from KSRTC. Again there is no material to prove such deputation order. When it is suggested to him that his father was suspended at the time of purchase of the suit site in the year 1969, he says he does not deny that, but he only states that he was not aware of that.
25. PW-1 himself admits that his mother borrowed loan twice and he was surety for such loan. It is not made clear, if father was capable of maintaining the family why mother had to borrow the loan. He has admitted the suggestion that defendant No.1 had borrowed the loan from City Co-operative Bank, Bengaluru by mortgaging the *R.F.A.NO.859/2011 23 suit property. That goes to show that she was exercising the right of ownership over the property.
26. According to the plaintiff/PW-1 himself, he was born in 1951, in the year 1969, his age would be around 17-18 years. Though he contends that he was doing some sundry jobs, contributed for purchase of site and construction of house which is denied, no evidence is adduced to prove his employment or income. So far as the construction, he has admitted that even before the commencement of the construction he had separated from the family.
27. It is contended that the defendants have neither entered the witness box to prove that the, mother defendant No.1 was doing tailoring work and saree business and she had her own income to purchase the site or construct the house. As already pointed out, the initial burden of proving the fact of any contribution to purchase the site or construction is on the plaintiffs. The aforesaid *R.F.A.NO.859/2011 24 discussed evidence shows that the plaintiffs failed to discharge that initial burden. Further the admission of PW-1 that defendant No.1 borrowed loan goes to show that she was independently carrying on the financial transaction and she was not an ignorant simple home maker.
28. So far as the contributions to the construction of house as pointed out above, the plaintiffs are required to prove the nucleus and that a surplus was saved from such nucleus to acquire the property. As already pointed out Ex.P.2(a) states that the property is being sold for constructing residential house, for legal necessity of the family and for discharging the family debts. Out of the sale consideration of Rs.48,500/-, what was the amount applied for the legal necessity of the family and discharge the family debts and for construction of the house, is neither pleaded nor proved. It is not even stated what was the extent of family debts and what is the amount incurred *R.F.A.NO.859/2011 25 for construction of the residential house. PW-1 is not specific about the aforesaid aspects. As against that his evidence demonstrates that he had/has the scant bondage for the family. He is not able to tell the address of plaintiff No.2, his own sister. He admits that his mother borrowed loan to perform the marriage of his sister defendant No.3. Though he admits that defendant No.2 met with an accident on 19.10.1992 and claims that he is taken care of him, he says he does not know how much expenditure is incurred for the treatment. He is not able to tell the employment and salary particulars of his brother. Having regard to all these facts, the trial Court has held that the initial burden of contributing funds for the purchase of property in the name of the first defendant or for construction of the house is not proved.
29. In Valliammal's case referred to supra, relied upon by the appellant's counsel himself, it is held as follows:
*R.F.A.NO.859/201126
"There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami holder." Therefore, this presumption of ownership of the first defendant is not rebutted by the plaintiffs. Therefore, the said decision is not helpful to advance their case.
30. A perusal of the judgment passed in K.C.Narasimha Murthy's case, referred to supra shows that, in that case, the plaintiffs had pleaded and proved the particulars of employment of his father and his monthly income and quantum of his retirement benefits. The judgment further indicates that there was material to show *R.F.A.NO.859/2011 27 that the father was earning interest by lending money and he had saved lot of income. It was also demonstrated that the agricultural land generated income. That is not the fact in the present case. Therefore, the said judgment cannot be applied to the facts of this case.
31. Regarding the judgment of the Hon'ble Supreme Court in Vidhyadhar's case referred to supra, learned counsel for the appellant contends that the defendants did not enter the witness box and state their own case and afforded the plaintiffs an opportunity to cross examine them. Therefore, an adverse inference is to be drawn and their case cannot be believed. The question of drawing adverse inference against the defendants for not entering the witness box could have been raised, if the plaintiffs discharged the initial burden cast on them to prove their case.
32. As already pointed out, when the sale deed stands in the name of a female member of the *R.F.A.NO.859/2011 28 family/widow, that too when she is in possession, the presumption is that she is the owners. That initial presumption is not rebutted. Therefore, the said judgment cannot be applied to the facts of this case.
33. Having regard to the evidence in the case discussed supra, the trail Court has arrived at the conclusion that the plaintiffs have failed to prove that either J.V.Somanath or the plaintiffs contributed for purchase or construction of the house and discussed it. No fault can be found in that finding.
REGARDING SUIT IS HIT BY BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988:
34. The defendants contended that the suit is hit by The Benami Transactions (Prohibition) Act, 1988. The trial Court held that the suit is hit by Section 3(2) of the said Act. Section 3(1) of the Benami Transactions (Prohibition) Act, 1988 prohibits any person entering into benami transaction. Sec. 3(2) states that sub-section (1) is not *R.F.A.NO.859/2011 29 applicable to purchase of the property by a person in the name of his wife or unmarried daughter, unless contrary is proved it shall be presumed that the suit property had been purchased for the benefit of the wife or unmarried daughter.
35. The trial Court held that even assuming that the property is acquired by the husband in the name of first defendant, then under Section 3(2), the presumption is that, that acquisition for her benefit and thereby she becomes the absolute owner. The trial Court held that the plaintiffs failed to rebut the said presumption by adducing cogent evidence and therefore held that defendant No.1 is the absolute owner.
36. But, the learned counsel for the appellant relying upon Section 4(3) of the Benami Transactions (Prohibition) Act, 1988 contends that, the coparceners of a Hindu undivided family are not prohibited from bringing a suit to recover the property held benami. Sections 3 *R.F.A.NO.859/2011 30 and 4 of the said Act have to be read conjunctively. Only if the plaintiffs rebuts the presumption that the property was acquired for the benefit of the first defendant, then Section 4(3)(a) of the Act operates against her.
37. The evidence on record shows that the first defendant borrowed loan mortgaging the suit property/she was in possession of the property all along. PW-1 states that the first defendant asked him to vacate the house, therefore he started to live separately. Further, he states as follows; "My father was also residing with my mother". He states he does not know whether his father residing subsequent to 1986 till his death. That goes to show that the first defendant exercised the absolute right over the property which further strengthen the presumption available under Section 3(2) of the Act.
38. Section 4(3)(a) of the Act can be invoked only if it is proved that the property was held for the benefit of the coparceners in the family. The fact of PW-1/plaintiff No.1 *R.F.A.NO.859/2011 31 himself vacating the property on the direction of the first defendant goes to show that the property was not intended to be held nor held for the benefit of the coparceners. Therefore, the trial Court has rightly applied Sec. 3(2) and held that Sec. 4(3)(a) is not applicable. Having regard to these facts, the judgments relied upon by the counsel for the appellant on the question of Benami Transactions (Prohibition) Act cannot be applied to the facts of this case.
39. Learned counsel for respondents /defendants No.1 to 3, relying upon Section 14(1) of the Hindu Succession Act, contended that even assuming that the property was purchased by J.V.Somanath in the name of first defendant, the same gets enlarged into the absolute estate. He relies upon the judgment of the Supreme Court reported in (2016)2 SCC 56, between Jupudy Pardha Sarathy vs. Pentapati Rama Krishna and others. Since this Court has already held that the property was acquired by the first defendant herself, it is not required to get into *R.F.A.NO.859/2011 32 the question of operation of Section 14(1) of the Hindu Succession Act.
40. So far as the application under Order 41 Rule 27 of CPC filed by the respondents/defendants, the documents produced are all Xerox copies and they are not admissible in evidence. Secondly, the contention that the said documents could not be produced due to ignorance of defendant No.1 and as defendant No.3 was not aware of the availability of those documents is unacceptable. Thirdly, since the appeal can be disposed of on the existing material, those documents by way of additional evidence are not required for adjudication of the appeal.
For the aforesaid reasons, both the appeal and IA No.1/2017 are dismissed. Having regard to the relationship between the parties, no order as to costs.
Sd/-
JUDGE KMV*