Madras High Court
B.R.Chandrasekaran vs Subramanian on 22 February, 2010
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/02/2010 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.546 of 2008 and MP(MD)No.1 of 2008 1.B.R.Chandrasekaran 2.Devadoss 3.Kannan 4.Gothavari 5.Lalitha 6.Sulochana 7.Thangam 8.Ganga 9.Vairam .. Appellants/Defendants vs 1.Subramanian 2.Rajendran .. Respondents/Plaintiffs Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 20.03.2007 passed in Appeal Suit No.62 of 2006 by the Principal District Court, Madurai dismissing the appeal in respect of item No.I and modifying the Judgment and decree dated 30.01.2006 passed in Original Suit No.1092 of 2001 by the Third Additional Sub Court, Madurai. !For Appellants ... Mr.R.Subramanian ^For Respondents ... Mr.K.Srinivasan :JUDGMENT
This second appeal has been directed against the Judgment and decree dated 20.03.2007 passed in Appeal Suit No.62 of 2006 by the Principal District Court, Madurai, wherein the Judgment and decree 30.01.2006 passed in Original Suit No.1092 of 2001 by the Third Additional Sub Court, Madurai are modified.
2. The respondents herein as plaintiffs have instituted Original Suit No.1092 of 2001 on the file of the Third Additional Sub Court, Madurai praying to pass a preliminary decree of partition in respect of their 2/11 shares in the suit properties and also for directing the defendants 1 to 9 to render accounts, wherein the present appellants have been shown as defendants.
3. The conspectus of the averments of the plaint can be stated like thus:
The plaintiffs and defendants are the children of B.R.Ramarao and Rajalakshmi. The said Ramarao has started his aluminium business in Door No.27, TS.No.2596, Chinthamani Road, Madurai Town prior to 40 years. The plaintiffs being the eldest male members of the family have rendered their assistance in the said business. The said business has been developed due to unstinted efforts of the plaintiffs. The defendants 1 and 2 have also rendered their assistance to the said business. From the income derived from the said business, the marriages of the defendants 4 to 9 have been conducted and they are living in their marital abode comfortably. The said Ramarao, on 27.06.1969, from the income derived from the joint family business, has purchased suit first item in the name of the mother of the plaintiffs and defendants viz., Rajalakshmi and therefore, the suit first item belongs to joint family. The suit second item has been purchased in the names of the defendants 1 to 3 under a registered sale deed dated 06.03.1995 out of the income derived from joint family business and the same also belongs to joint family. The father of the plaintiffs and defendants as well as their mother have passed away. In the suit properties, the plaintiffs are having 2/11 shares, whereas the defendants are having 9/11 shares. Since the defendants are not amenable to the demand of partition made by the plaintiffs, the present suit has been instituted for the reliefs sought for in the plaint.
4. In the written statement filed by the defendants 1, 3 and 8 it is stated that the present suit is not legally maintainable. It is true that the plaintiffs and defendants are the children of Ramarao and his wife Rajalakshmi. It is false to say that the plaintiffs have lent their support to augment the income of the alleged joint family business. The plaintiffs after their marriages have left the parents and now they are living separately. It is false to contend that the suit first item has been purchased in the name of the said Rajalakshmi by using the income derived from the alleged family business. The mother of the plaintiffs and defendants viz., Rajalakshmi has done a separate business and out of her earnings the suit first item has been purchased in her name. It is also false to contend that the suit second item has been purchased from the income derived from the alleged joint family business. With regard to suit first item, the said Rajalakshmi out of her own volition and also disposing state of mind has executed a will dated 28.11.1981 in favour of the third defendant viz., B.R.Kannan and she passed away on 04.02.2000 and therefore, the said will has come into effect and the third defendant has become the absolute owner of the suit first item. The defendants 1 to 3 have started business separately and out of their separate income, they purchased the suit second item. It is false to contend that the said Rajalakshmi has passed away intestate. There is no merit in the suit and the same deserves dismissal.
5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after contemplating both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants as appellants have preferred Appeal suit No.62 of 2006 on the file of the first appellate Court.
6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal in part and thereby modified the Judgment and decree passed by the trial Court to the extent that the plaintiffs are entitled to get the reliefs sought for in the plaint in respect of the suit first item and dismissed the suit in respect of the suit second item. Against the Judgment and decree passed by the first appellate court, the present second appeal has been preferred at the instance of the appellants as defendants.
7. As agreed by the learned counsels appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.
8. On the side of the appellants/defendants, the following substantial questions of law have been raised for consideration:
(i) Whether in law has not the lower appellate court after finding that the plaintiffs are not entitled to any share in item 2 erred in granting a preliminary decree for item 1?
(ii) Whether in law the lower appellate Court wrong in holding that the defendants have not proved the execution of will when the execution has not been proved by PW1?
(iii) Has not the lower appellate Court failed to see that since the attestors are dead the execution has been proved as required under Section 69 of the Act?
9. The sum and substance of the case of the plaintiffs is that the plaintiffs and the defendants are the children of B.R.Ramarao and his wife Rajalakshmi and the said Ramarao has started aluminium business prior to 40 years and since the plaintiffs being the eldest members of the joint family, have rendered their assistance in developing joint family business and subsequently the defendants 1 and 2 have rendered their assistance. Out of the income derived from joint family business, the suit first item has been purchased in the name of the said Rajalakshmi and likewise, the suit second schedule has also been purchased and thus the suit properties are the properties of the joint family. The parents of the plaintiffs and defendants have passed away intestate and the plaintiffs are having 2/11 shares in the suit properties and since the defendants have failed to concede the demand of partition made by the plaintiffs, the present suit has been instituted for the reliefs sought for in the plaint.
10. But it has been contended on the side of the defendants that it is false to say that the suit first item has been purchased by utilising the income of the alleged joint family business and the mother of the plaintiffs and defendants viz., Rajalakshmi has done her business separately and she purchased the suit first item under a registered sale deed dated 27.06.1969 and therefore the suit first item is her separate property and the defendants 1 to 3 have also done their business separately and they purchased the suit second item and the suit second item is not the joint family property and further on 28.11.1981 the said Rajalakshmi has executed a will in respect of the suit first item in favour of the third defendant and she passed away in the year 2000 and therefore, the will dated 28.11.1981 has come into effect and thus, the third defendant has become the absolute owner of the suit first item and under the said circumstances, the plaintiffs are not having right of partition in respect of the suit properties and altogether the present suit deserves dismissal.
11. The trial Court has decreed the suit as prayed for. But the first appellate Court has dismissed the suit in respect of the suit second item and confirmed the Judgment and decree passed by the trial Court in respect of the suit first item. Against the Judgment and decree passed by the first appellate Court in respect of the suit first item, the present second appeal has been preferred.
12. The learned counsel appearing for the appellants/defendants has laconically contended that the suit first item has been purchased under a registered sale deed dated 27.06.1969 in the name of the mother of the plaintiffs and defendants viz., Rajalakshmi out of her separate earnings and therefore, suit first item is her separate property and out of her own volition and also disposing state of mind, she executed a will dated 28.11.1981 in favour of the third defendant and she passed away in the year 2000 and after her demise, the same has come into effect and thus, the third defendant has become absolute owner of the suit first item, in which neither the plaintiffs nor the remaining defendants are having any semblance of right and in the trial Court, a registration copy of the said will dated 28.11.1981 has been marked as Ex.B1. In the will dated 28.11.1981 the father of the plaintiffs and defendants viz., B.R.Ramarao has put his signature as one of the attesting witnesses and he passed away and in order to secure the other attesting witness by name Balakrishnan, best efforts have been taken on the side of the defendants and ultimately failed and the Courts below have concurrently found that the alleged will dated 28.11.1981 has not been proved on the side of the defendants as per law and in the present second appeal on the side of the appellants/defendants MP(MD)No.1 of 2008 has been filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 along with the original will dated 28.11.1981 and under the said circumstances, in order to prove the said will dated 28.11.1981 the Judgments and decrees passed by the Courts below with regard to suit first item are liable to be set aside and the appellants/defendants may also be permitted to adduce additional evidence.
13. In order to repel the argument advanced by the learned counsel appearing for the appellants/defendants the learned counsel appearing for the respondents/plaintiffs has also equally contended that the suit first item is not the separate property of the mother of the plaintiffs and defendants viz., Rajalakshmi and the same has been purchased by using the income derived from the joint family business and thus, the suit first item belongs to joint family. Under the said circumstances the respondents/plaintiffs have instituted the present suit so as to work out their remedy and the trial Court has rightly decreed the suit in respect of the suit first item and the first appellate court has also rightly confirmed the Judgment and decree passed by the trial Court and further the specific case of the appellants/ defendants is that with regard to suit first item, the mother of the plaintiffs and defendants has executed a will dated 28.11.1981 in favour of the third defendant. But on the side of the appellants/ defendants a registration copy of the same has been marked as Ex.B1 and even they have chosen to mark the alleged original will dated 28.11.1981 and further the same has not been legally proved on the side of the appellants/defendants. Under the said circumstances, the Courts below have rightly rejected the contention put forth on the side of the appellants/defendants and further, on the side of the appellants/defendants, MP(MD)No.1 of 2008 has been filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 and the same is not inconsonance with the conditions mentioned in Order 41 Rule 27 of the said Code and therefore, the appellants/defendants cannot be permitted to adduce additional evidence and altogether the present second appeal deserves dismissal.
14. Before analysing the legal point arises in the present second appeal, the court has to look into the relationship between the parties and also the contentions urged on either side with regard to the will dated 28.11.1981.
15. It is an admitted fact that the plaintiffs and defendants are the children of B.R.Ramarao and Rajalakshmi. The said B.R.Ramarao and Rajalaksmi have passed away. The defendants 1 to 9 are the brothers and sisters of the plaintiffs. The specific contention of the plaintiffs is that the suit first item is a joint family property even though the same has been purchased in the name of their mother viz., Rajalakshmi. The contention of the contesting defendants is that the suit first item is the separate property of the said Rajalakshmi and she purchased the same by utilising her separate funds and further, out of her own volition and also disposing state of mind has executed the will dated 28.11.1981 in favour of the third defendant with regard to the suit first item. Except the plaintiffs, the defendants have admitted the execution of the will dated 28.11.1981 by their mother viz., Rajalakshmi in favour of the third defendant. As rightly pointed out by the learned counsel appearing for the respondents/plaintiffs, on the side of the appellants/defendants the original will dated 28.11.1981 has not been marked. But a registration copy of the same has been marked as Ex.B1. It has been contended on the side of the appellants/defendants that in the will dated 28.11.1981 their father viz., B.R.Ramarao has put his signature as one of the attesting witnesses and he passed away and in order to secure other attesting witness by name Balakrishnan, best efforts have been taken and ultimately failed.
16. Of course it is true that in the present second appeal, on the side of the appellants/defendants MP(MD)No.1 of 2008 has been filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 along with the registered will dated 28.11.1981, wherein it is prayed to permit the appellants/defendants to adduce additional evidence. The main averments made in MP(MD)No.1 of 2008 are that at the time of adducing evidence in the trial Court, with regard to the will dated 28.11.1981, a mortgage has been created and due to that the same has not been marked in the trial Court. But in the counter filed on the side of the respondents/ plaintiffs, it is stated that all the averments made in MP(MD)No.1 of 2008 are false and therefore the same cannot be allowed.
17. On the basis of the rival contentions raised on either side, the only legal point that now arises in the present second appeal is as to whether the appellants/defendants can be permitted to adduce additional evidence as per the provision of Order 41 Rule 27 of the Code of Civil Procedure, 1908.
18. Order 41 Rule 27 of the said Code reads as follows:
27.Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate Court. But if
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
19. The provision of Order 41 Rule 27 of the said Code can be dissected as follows:
(a) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary evidence in the Appellate court. But permission to adduce additional evidence can be given on the following circumstances.
(i) If the Court from whose decree the concerned appeal has been preferred has refused to admit evidence which ought to have been admitted.
(ii) If the party seeking to produce additional evidence, has established the fact that out of due diligence the concerned evidence has not been with his knowledge or has not been able to produce at the time when the decree in question has been passed.
(iii) If the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, or for any other substantial cause, the appellate Court can allow such evidence or document to be produced or witness to be examined.
(b) If additional evidence is allowed to be produced by an appellate court, the Court should record the reason for its admission.
20. The main reason given on the side of the appellants/defendants in MP(MD)No.1 of 2008 is that at the time of adducing evidence in the trial court, the will dated 28.11.1981 is not under the custody of the third defendant and in respect of the property mentioned therein a mortgage has been created. As stated earlier, Ex.B1 is a registration copy of the said will. For proving a will or settlement as per law, original document has to be marked. In the instant case, Ex.B1 is nothing but a registration copy. Even if one of the attesting witnesses has been secured, his evidence would not be helpful and fruitful so as to prove the due execution as well as attestation of the concerned will.
21. In the instant case, as stated in many places, the specific contention of the defendants is that with regard to the suit first item, the will dated 28.11.1981 has been executed in favour of the third defendant by the mother of the plaintiffs and defendants viz., Rajalakshmi. Except the plaintiffs, the remaining defendants have not raised any objection with regard to the will dated 28.11.1981.
22. Under Order 41 Rule 27 of the Code of Civil Procedure, 1908, one of the conditions for seeking permission to produce additional evidence is that party seeking to produce additional evidence must establish that despite of exercise of due diligence, the concerned evidence has not been able to secure or has not been able to produce at the time when decree of the trial Court has been passed. The other condition is that if the appellate Court in suo motu requires any document to be produced or any witness to be examined to enable it to pronounce Judgment or for any other substantial cause, party can be directed to produce additional evidence.
23. In the instant case, as pointed out earlier, Ex.B1 is nothing but a registration copy of the will dated 28.11.1981. As per the provision of Order 41 Rule 27 of the Code of Civil Procedure, 1908, the appellate Court is having enormous power to direct any party to produce any document or to examine any witness for rendering proper Judgment. But in the instant case, the first appellate Court has not done anything.
24. The learned counsel appearing for the appellants/defendants has drawn the attention of the Court to the followings decisions:
(a) The first and foremost decision is reported in (2004) 10 Supreme Court Cases 507 (Jayaramadas & sons Vs. Mirza Rafatullah Baig and others) wherein the Honourable Apex Court has held that "in the petition filed under Order 41 Rule 27 (1) (aa) of the Code of Civil Procedure, sufficient grounds should be specifically set out so that opposite party could better meet the plea. However, ends of justice demanded, given that effect of adduction of such additional evidence would have a material bearing on the crucial issue arising for decision between the parties, that the application be allowed dehors the deficiency in it".
(b) The second decision is reported in (2008) 5 Supreme Court Cases 444 (Lachhman Singh (deceased) through Legal representatives and others Vs. Hazara Singh (deceased) through legal representatives and others), wherein also the Honourable apex Court has held that "the jurisdiction of the appellate Court is to be exercised not only when Clause (a) or (aa) of sub- rule (1) of Rule 27 of Order 41 of the Code, is attracted but also when such a document is required by the appellate Court itself to pronounce Judgment or for any other substantial cause."
25. From the cumulative reading of the dictums given by the Honourable Apex Court, the following aspects can easily discerned.
(a) Even the petition filed under Order 41 Rule 27 1(a) and (aa) of the Code of Civil Procedure, 1908, suffers deficiency, the same can be allowed on the basis of ends of justice.
(b) Order 41 Rule 27 1(a) and (aa) of the said Code is attracted when such a document is required by the appellate Court itself to pronounce Judgment or for any other substantial cause.
26. In MP(MD)No.1 of 2008, the only reason assigned by the appellants/defendants is that at the time of adducing evidence in the trial Court, a mortgage has been created in respect of the property mentioned in the will dated 28.11.1981 and the original will is not under the custody of the third defendant. Of course, it is true that the reason given in MP(MD)No.1 of 2008 is not at all sufficient to attract the provision of Order 41 Rule 27 1(aa) of the said Code. But at the same time, as per the decision reported in (2004) 10 Supreme Court Cases 507 (Jayaramadas & sons Vs. Mirza Rafatullah Baig and others), for the ends of justice, the same can be allowed.
27. The learned counsel appearing for the respondents/plaintiffs has also befittingly drawn the attention of the court to the evidence given by DW1. The first defendant has been examined as DW1. During the course of cross examination he would say that the original will dated 28.11.1981 is under the custody of the third defendant. But as pointed out earlier, in MP(MD)No.1 of 2008, the only reason given is that at the time of adducing evidence in the trial Court a mortgage has been created in respect of the property mentioned in the said will and the will is under the custody of mortgagee. Even at the risk of repetition, the court would like to point out that as per the dictum given by the Honourable apex Court in (2004) 10 Supreme Court Cases 507 (Jayaramadas & sons Vs. Mirza Rafatullah Baig and others), for the ends of justice, the court can allow MP(MD)No.1 of 2008 so as to enable the appellants/defendant to adduce additional evidence.
28. The learned counsel appearing for the respondents/plaintiffs has also relied upon the following decisions:
(a) In 2008 (4) CTC 507 (T.Paramasivam Vs. N.Babu and another), this Court has held that "When appellant had knowledge of existence of documents sought to be produce as additional evidence and appellant failing to produce it before trial Court as well as first appellate Court, appellant is not entitled to an order when no acceptable explanation or sufficient reason has been given for not marking documents at an earlier stage."
(b) In 2005 (3) CTC 292 (Pappayammal Vs. Palanisay and others), this Court has held that "appellate Court can receive additional evidence if the conditions mentioned in Order 41 Rule 27 of Code of Civil Procedure 1908 are present."
(c) In 2006 (5) CTC 733 (K.Kallan (died) and others Vs. M.Kallan and another) it has been held that "Order 41 Rule 27 of the Code of civil Procedure can be invoked only the conditions mentioned therein are present."
(d) In 2008 (1) CTC 97 (J.Naval Kishore Vs. D.Swarna Bhadran), the Division Bench of this Court has held that "glaring discrepancies found in two documents, application for additional evidence can be rejected."
(e) In 2008 (1) CTC 537 (Basayya I. Mathad Vs. Rudrayya S.Mathad and others), the Honourable Apex Court has held that "the appellate Court is not having power to accept a document as an additional evidence at the time of argument dehors to Rule 27 of Order 41 of the Code of Civil Procedure."
(f) In 2005 (3) MLJ 626 (Bhuvaneswari Vs. Saraswathi Ammal), the Division Bench of this Court has held that "an order of remand should be made so as to fill up lacuna."
(g) In 1997 (II) CTC 369 (Mohammed Mohideen Vs. Muthukumara Thevar and another), this Court has held that "in a case of will, when attesting witnesses are not available, the same can be proved by way of examining the concerned scribe."
29. It is a well settled principle of law that an application under Order 41 Rule 27 of the Code of Civil Procedure 1908, can be allowed if the same is inconsonance with the conditions mentioned therein. In the instant case, on the side of the appellants/defendants it is mentioned in MP(MD)No.1 of 2008 that at the time of adducing evidence in the trial Court, the original will dated 28.11.1981 is under the custody of a mortgagee. Of course it is true that the reason given in MP(MD)No.1 of 2008 may not be sufficient to invoke the provision of Order 41 Rule 27 1 (aa) of the code of Civil Procedure 1908. But at the same time, the Honourable Apex Court in the decision reported in (2004) 10 Supreme Court Cases 507 (Jayaramadas & sons Vs. Mirza Rafatullah Baig and others) has held that for the interest of justice, such petition can be allowed, dehors the deficiency in it.
30. The entire case of the defendants hinges upon the will dated 28.11.1981, alleged to have been executed by the mother of the plaintiffs and defendants viz., Rajalakshmi in favour of the third defendant. It is true that DW1 has admitted that at the time of giving his evidence, the will in question is under the custody of the third defendant. The third defendant has not given any evidence in the present case. The non examination of third defendant as well as non production of the original will dated 28.11.1981, might have occurred only due to failure on the part of the Advocate, who appeared for the appellants /defendants in the trial Court. For the lapses on the part of the concerned Advocate, the party to a proceeding should not be penalised.
31. Even at the risk of jarring repetition the Court would like to point out that as per the dictum given by the Honourable Apex court reported in (2004) 10 Supreme Court Cases 507 (Jayaramadas & sons Vs. Mirza Rafatullah Baig and others), an application under Order 41 Rule 27 of the Code of Civil Procedure can be allowed for the ends of justice even though sufficient reasons are lacking. In view of the discussion made earlier, it is very clear that MP(MD)No.1 of 2008 can be allowed and the appellants/defendants can be permitted to adduce additional evidence. Since the appellants/defendants can be permitted to adduce additional evidence, it is needless to say that the Judgment and decree passed by the first appellate court in respect of the suit first item are liable to be set aside and Appeal Suit No.62 of 2006 is liable to be remitted to the file of the first appellate court and to that extent the present second appeal can be allowed. Since Appeal Suit No.62 of 2006 is liable to be remitted to the file of the first appellate court, the substantial questions of law raised in the present second appeal cannot be decided now.
32. In fine, this second appeal is allowed without cost at the stage of admission. The Judgment and decree passed in Appeal Suit No.62 of 2006 by the Principal District Court, Madurai are set aside in respect of the suit first item and Appeal Suit No.62 of 2006 is remitted to the file of Principal District Court, Madurai. The application filed in MP(MD)No.1 of 2008 is allowed and the appellants/defendants are permitted to adduce additional evidence. The Principal District court, Madurai is directed to take additional evidence as per the mode mentioned in Order 41 Rule 28 of the Code of Civil Procedure, 1908 and pass Judgment on merits. The Court fee paid on the appeal memorandum is ordered to be refunded to the appellants/defendants.
mj To
1.The Principal District court, Madurai
2.The Third Additional Sub Court, Madurai