Madras High Court
T.A. Balasubramaniam vs Kunjammal And Anr. on 10 August, 1994
Equivalent citations: (1994)2MLJ626
JUDGMENT Govardhan, J.
1. A.S. No. 934 of 1982 has been filed by the defendant in O.S. No. 370 of 1981 on the file of First Additional Subordinate Judge, Salem.
2. Tr. Appeal No. 426 of 1985 has been filed by the plaintiff in O.S. No. 596 of 1981 who is incidentally the defendant in O.S. No. 370 of 1981.
3. O.S. No. 370 of 1981 is a suit for declaration of the plaintiffs' title to the suit properties and for permanent injunction and for dividing the A schedule properties into four equal shares and to allot two such shares in favour of the plaintiffs in the said suit.
4. O.S. No. 596 of 1981 is a suit filed by the plaintiff in the suit for a permanent injunction restraining the respondent from interfering with the plaintiffs possession and enjoyment of the suit properties.
5. The case of the plaintiff in O.S. No. 370 of 1981 is briefly as follows: The father of the plaintiffs and the defendant one Ardhanari Poosari executed a registered Will on 10.5.1975 with reference to his immovable properties and got the same registered in the Sub-Registrar's Office at Tiruvarur. The said Will was executed by him while he was in a sound and disposing state of mind in good health without any influence whatsoever. As per the Will, the ASchedule property was allotted to the defendant and plaintiffs while B schedule was allotted to the first plaintiff and the C schedule was allotted to the second plaintiff along with the other properties. The defendant had filed a suit before the District Munsif at Sankari for bare injunction restraining ~the plaintiffs in this suit from interfering with his possession of the agricultural property. It was dismissed for default and subsequently it was restored and numbered as O.S. No. 93 of 1981 and it is on the file of the District Munsif, Tiruchengode. A schedule properties are in joint and constructive possession of the plaintiffs and the defendant without any actual division by metes and bounds. After the death of Ardhanari Poosari, the plaintiffs have been demanding an amicable partition of the said properties as per the registered Will; but the defendant did not comply with the same. The father Ardhanari Poosari filed an eviction petition in respect of the B schedule property against the tenant in R.C.O.P. No. 14 of 1977 before the Rent Controller (District Munsif) Sankari. On his death, the defendant clandestinely impleaded himself as the only legal heir of Ardhanari Poosari without notice to the plaintiffs. When the plaintiffs filed a petition for impleading them as parties, the defendant has withdrawn the said R.C.O.P. No. l4of 1977. Thedefen-dant is collecting the rent from the tenants in respect of the said property. The second plaintiff is in possession of the C schedule property. The defendant has alleged in O.S. No. 652 of 1979 and in the R.C.O.P. proceedings that by virtue of a Will dated 27.10.1978 executed by his deceased father Ardhanari Poosari, he is the absolute owner of the property. But, no such will had been executed by Ardhanari Poosari. Since the defendant has cast a cloud on the title of the plaintiffs, they have come forward with this suit.
6. In the written statement, the defendant has stated that the will said to have been executed by Ardhanari Poosari on 10.5.1975 is not a genuine one and is not binding on him. He has claimed title to the suit properties by virtue of a Will executed by his father Ardhanari Poosari on 27.10.1978 cancelling the earlier Will dated 10.5.1975. The defendant states that he did the obsequies of his father and since the plaintiffs are interfering with his possession he has filed the suit in O.S. No. 652 of 1979 for injunction.
7. O.S. No. 652 of 1979 was filed earlier, the plaintiff in the said suit has alleged that the defendants with intent to grab the properties had surreptitiously managed to get a Will from the father by force and that he came to know of the same recently. He has further stated that the Will of the year 1975 is not a valid one and is not binding on the plaintiff and since the defendants are trying to interfere with his possession, he has filed the said suit.
8. The defendants in the said suit have contended in their written statement that Ardhanari Poosari, their father had executed a Will on 10.5.1975 while in a sound and disposing state of mind and got the same registered on 7.6.1975 and as per the said Will, the plaintiff is entitled to a half share in the suit property in the said suit. They have also stated that the Will said to have been executed by the father on 10.5.1975 is a fabricated document and the suit is liable to be dismissed.
9. Both the suits were tried by the First Additional Subordinate Judge, Salem and a common judgment was delivered by the learned Subordinate Judge in which the learned Subordinate Judge has upheld the Will executed by Ardharani Poosari in favour of the plaintiff in O.S. No. 370 of 1981 on 10.5.1975 and on that basis, decreed the suit O.S. No. 370 of 1981 as prayed for and dismissed the other suit.
10. Aggrieved over the said judgment, the defendant in O.S. No. 370 of 1981 has preferred the Appeal A.S. No. 934 of 1982. The plaintiff in O.S. No. 596 of 1981 has also filed an appeal which is the transferred appeal A.S. No. 426 of 1985.
11. The point for consideration in both the appeals is:
Whether the finding of the learned First Additional Subordinate Judge, Salem that, the Will executed by Ardhanari Poosari in favour of plaintiffs on 10.5.1975 is true and valid, is liable to be set aside and consequential orders are to be passed in the two suits?
12 When the appeals are listed, the appellant has filed C.M.P. No. 8344 of 1993 for reception of certain documents as additional evidence contending as follows: The appellant was working in the Tamil Nadu Electricity Board. For want of time, he was unable to get all material facts and documentary evidence to show that the suit properties are the ancestral and joint family properties and that the testator had no absolute power to bequeath the joint family properties and in the above circumstances, the trial court has decreed the suit filed by the respondents. According to the petitioner, the testator had a very limited right over the A schedule properties and he can bequeath that limited right alone in favour of the respondents and the document dated 4.6.1941 would establish the same. He has also stated that he was unable to get documentary evidence earlier to show that the house was actually built up by him and the same stands in the joint names of himself and his father and these additional documents sought to be filed by him would establish his case. According to the petitioner these documents, are necessary and the petition has to be allowed and unless he is permitted to file them as additional documents he would be put to irreparable loss and hardship.
13. The first respondent in her counter has stated as follows: The reason given by the petitioner that he was unable to find out the documents for want of time because of his employment is false and invented for the purpose of this present petition. The fact that the petitioner was in employment is not sufficient to accept the reason given by the petitioner that he could not find time to gather documents. The petitioner has categorically asserted in his written statement that the suit properties are not joint family properties. He is also claiming title to the suit properties only by virtue of the last Will dated 27.10.1978 executed by his father. If the petitioner himself has claimed title only from his father, it is not open for him to say at the time of the appeal that the properties are joint family properties. No evidence can be looked into on a plea which is not raised. The sale deed, the property tax were all in the name of the father and he enjoyed the property as his absolute property. After the death of the father, the B schedule property was transferred in the name of the first respondent. The copies of the documents sought to be let in as additional evidence were obtained by the petitioner in The year 1983 itself and he has chosen to file them only in 1991. Document Nos. 4, 5 and 6 do not relate to the suit property at all. Document No. 7 is a copy of an advertisement which does not advance the case of the petitioner at all. There is no reason as to why it has not been produced earlier. Document Nos. 8 and 9 should have been obtained by the petitioner using his influence as an employee in the Tamil Nadu Electricity Board. The petitioner wants to cook up a new case in appeal in dire conflict with his case in his written statement. The petition is therefore liable to be dismissed.
14. The point for consideration in C.M.P. No. 8344 of 1993 is:
Whether the documents sought to be adduced as additional evidence by the petitioner could be received as additional evidence.
15. Point in the Appeals and the point in C.M.P. No. 8344 of1993: The learned Senior Counsel appearing for the appellant-petitioner Mr. G. Subramaniam has argued that the dispute is between the petitioner on the one hand and his sisters on the other hand, and that, the sisters of the petitioner-appellant claim right to the suit properties as per the Will executed by their father Ardhanari Poosari and that the appellant has failed to place sufficient materials to show that Ardhanari Poosari has no full right over the suit properties to execute a Will in respect of them and the documents now sought to be filed by the appellant as additional evidence would show that suit properties are the joint family properties of the deceased Ardhanari Poosari and as such, he is entitled to execute the Will under Ex. A-1 only in respect of his half share and he has no right to convey the remaining half share belonging to the defendant and for that purpose the additional documents now sought to be filed by him to receive as additional evidence. The learned Senior Counsel appearing for the petitioner has relied on a decision reported in Bole Naidu v. M. Kothandarama Pillai 100 L.W. 750, in which it has been held as follows:
There may be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interests of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause.
According to the learned Senior Counsel appearing for the petitioner, the above principle has to be applied to the facts of the present case since the additional documents filed by the appellant would clinchingly prove that the properties belonged to the joint family of the appellant and his father Ardhanari Poosari.
16. The learned Counsel appearing for the respondents would on the other hand argue that the main document relied by the appellant as additional evidence viz., registration copy of the sale deed dated 4.6.1941 has been referred by Ardhanari Poosari in his Will executed by him in favour of his daughters and in that Will the testator had also referred to the fact that the father and son were not in cordial terms and as to why he had executed the said Will and therefore, it cannot be stated by the appellant that he did not find time to trace the copy of the sale deed which he now wants to file as additional evidence. Ex. A-1 is the will executed by Ardhanari Poosari in favour of his children where-under he had conveyed a half share in favour of his son and daughters. The testator has stated that on 4.6.1941, he had purchased the property described in A schedule in the said Will in the name of his father out of respect to the father and it was purchased from his own earnings and it was in his possession ever since the purchase in the year 1941. Therefore, it cannot be stated that the property is a joint family property of the father and son viz., Ardhanari Poosari and the appellant herein for the reason that the sale deed is in the name of the father of Ardhanari Poosari. Ardhanari Poosari has referred to the source for purchasing the property, the reason for purchase of the property in the name of his father and the fact of the said property being in his possession in the Will and the claim of the appellant that he came to know of the importance of this document dated 4.6.1941 only at the appellate stage and he traced the copy of the same only now is far-fetched. In the Will, Ardhanari Poosari has stated that his son Balasubramaniam viz., the appellant herein has joined with his in laws and wife and he is giving trouble to him and that he is causing much trouble and has even issued-a notice through an Advocate and has become in inimical terms and yet he does not have any such ill-feeling towards his son. One of the additional documents now sought to be filed by the petitioner is an advertisement in a Tamil Newspaper dated 4.4.1978 in which the Advocate of Ardhanari Poosari has notified that the properties described there under are the self-acquired properties of Ardhanari Poosari and constructed by him without the help of any other person and his son Balasubramaniam has no right or possession over the same. Ex. A-7 is a copy of the registered notice given by the same Advocate to the advocate for the appellant herein on 15.4.1979 in which it is specifically mentioned that the paper publication was made by Ardhanari Poosari and he is in possession and enjoyment of the properties. Since Ex. A-7 refers to the paper publication made by Ardhanari Poosari, it is not open for the appellant to say that he came to know of the paper publication only recently and realised the importance of the same. Above all, in the written statement, the specific case of the defendant is that he claims title to the suit property by virtue of the will executed by his father on 27.10.1978 thereby indicating that he has put forward a case that it is the self-acquired property of Ardhanari Poosari and not the joint family properties. Ex. B-5 is a piece of paper in which Ardhanari Poosari is said to have written that all his properties should devolve on his son. The learned Counsel appearing for the appellant has conceded that Ex. B-5 cannot be considered as a Will executed by Ardhanari Poosari. The learned Counsel also does not dispute that Ex. A-1 will has been proved. In the above circumstances, there appears to be no basis for considering the plea of the appellant that it is the joint family property of the father and son.
17. The learned Counsel appearing for the appellant-petitioner would no doubt say that ground Nos. 11 and 12 are the basis for his version. It is no doubt true that in ground No. 11 the appellant has; chosen to say that the lower court has erred in coming to the conclusion that the properties are the self-acquired properties of Ardhanari Poosari. In ground No. 12 the appellant has stated that the learned Judge has failed in not going into the history of the property especially when the character of the property is vital and that the property is the ancestral property which has comedown in the light. But the defendant in his written statement, has not pleaded that the property is the ancestral property of Ardhanari Poosari, Raising a ground which has not been pleaded cannot form the basis for allowing the petition for reception of additional documents as additional evidence. The petitioner-appellant wants to set up a new plea by seeking to file the documents as additional evidence. It cannot be appreciated at all. If the documents sought to be let in as additional evidence, are in support of the case of the appellant as per the plea before the trial Court, the appellant can request the Court to apply the principles laid down in Bole Naidu v. M. Kothandarama Pillai 100 L.W. 750, which I have referred above, but not in a case where the appellant wants to set up a new plea and put up a new case. The Supreme Court has held in the decision reported H.M. Isaq and Ors. v. M. Iqbal and Ors. , as follows:
The amendment of the written statement sought was on such facts which, if permitted to be introduced by way of amendment would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken up either at the time of the dealing between the parties or in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. The High Court rightly rejected all those petitions and we need not mention in any detail the reasons thereof.
In the present case, even though there is no amendment application for amendment of the written statement, the attempt made by the applicant through this petition is only to effect that the petitioner has put forward a new plea and therefore, the additional documents cannot be permitted to be received as additional evidence. In this connection, I wish to recollect the principle of law laid down by the Apex Court in the decision reported in Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi , as follows:
The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the determination of the issue.
In the present case, none of the above requirements are satisfied. Further under Order 41, Rule 27 of Code of Civil Procedure, additional evidence could be permitted to be let in only if the court wants additional evidence to enable it to pronounce judgment in a more satisfactory manner. The learned Counsel appearing for the petitioner-appellant has conceded that only if the additional documents are ordered to be received as additional evidence, the appellant can attempt to make out a case and if they are not ordered to be received as additional evidence, the appellant has no case. The appellant who has come forward with this petition for reception of additional documents, has failed to show sufficient reasons as to why the I additional documents now sought to be filed by him have not been produced at the time of trial and on the other hand, the materials placed before it shows that the appellant wants to put a new case than the one which he has put up before the trial court and for that purpose he wants to let in additional evidence. I am of opinion that it is not a ground to admit the additional evidence. In that view, I am of opinion that the appellant is not entitled to an order by which the additional documents could be received as additional exhibits. I hold on the point in C.M.P. No. 8344 of 1993 accordingly.
18. Since the learned Counsel appearing for the appellant himself has conceded that the appellant has no case if these documents are not received as additional evidence. I am of opinion that the appellant is not entitled to set aside the judgment passed by the trial court in which the validity and genuineness of the Will executed by Ardhanari Poosari has been upheld by the trial court. I hold on the point in both the appeals that there is no reason to interfere with the finding of the trial Court and it has to be upheld.
19. In the result the appeal A.S. No. 934 of 1982 is dismissed with costs. The Tr. Appeal No. 426 of 1985 is dismissed with costs. C.M.P. No. 834 of 1993 is dismissed.