Madras High Court
Soumady vs Rajasekaran on 14 March, 2024
S.A.No.961of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgement Reserved on 14.12.2023
Judgement Pronounced on 14.03.2024
CORAM
THE HON'BLE MRS. JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.961 of 2016
and C.M.P.Nos.19641 & 19642 of 2016
and C.M.P.Nos.741 of 2023
Soumady
...Appellant
Versus
1. Rajasekaran
2. Shankar
...Respondents
Prayer: This second appeal is filed under section 100 of Code of Civil
Procedure, to set aside the judgment and decree dated 15.07.2014 made in
A.S.No.24 of 2012 on the file of the Principal District Judge, Pondicherry, in
modifying the judgment and decree dated 29.06.2012 made in O.S.No.116 of
2006 on the file of the Additional Sub Judge, Pondicherry.
For Appellant : Mr.R.Natarajan
For Respondents : Mr.G.Krishna Kumar
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S.A.No.961of 2016
JUDGMENT
The second appeal is preferred against the judgement and decree dated 15.07.2014 made in AS No.24 of 2012 on the file of the learned Principal District Judge. Pondicherry, modifying the decree passed in O.S.No.116 of 2006 dated 29.06.2012 on the file of the Additional Sub Judge, Pondicherry.
For the sake of convenience, the parties shall be referred to as per their ranks in the suit.
2.The case of the plaintiff/appellant herein is that, her father Venugopal was a resident of Pondicherry and he married one Bhavani, and due to the wedlock between Venugopal and Bhavani, three children were born. The plaintiff is the daughter and the defendants are the sons of the said Venugopal and Bhavani. According to the plaintiff, the father Venugopal owned suit item Nos.1 to 4 and the mother Bhavani owned the suit item No.5. While so, on 23.07.1998 Venugopal died intestate. The mother Bhavani also died intestate on 24.10.2002. Thereafter, the plaintiff and the defendants as legal heirs 2/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 succeeded to their estates. Inspite of several demands made by the plaintiff the defendants failed to come forward for an amicable partition. Hence, the plaintiff caused legal notices to the defendants calling upon them to effect partition of the properties left by their parents. Even though, the aforesaid notices were received by the defendants they have not chosen to allot the share of the plaintiff. In such circumstances, the plaintiff was constrained to file the above suit for partition and separate possession of 1/3 rd share in the suit properties.
3.Resisting the case of the plaintiff, the defendants filed written statement. The defendants admits that the plaintiff and the defendants were born to the said Venugopal Padayatchi and Bhavani. The said Venugopal Padayatchi and Bhavani died intestate leaving behind the plaintiff and the defendants as their legal heirs. Further, it is submitted that item Nos. 1 & 2 of the suit properties were purchased by their father Venugopal under two sale deeds dated 03.10.1981 and 29.08.1981 respectively, while item Nos.3 &4 devolved upon their father Venugopal Padayatchi by virtue of a partition deed dated 26.12.1982 executed between himself and his brother, Krishnamurthy 3/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 Padayatchi. The defendants further submitted that the parents of the plaintiff and defendants are native of Tamil Nadu and around 1975 they migrated to Pondicherry. Hence, the Pondicherry Customary Law is not applicable to them and they are bound by the law prevailing in Tamil Nadu. Their further submission is that, since the plaintiff was married on 03.05.1987, she is not entitled for any share in the family estate. Hence, prayed for dismissal of the suit.
4.The trial Court framed the following issues:
1. Whether the plaintiff and defendants are native of Pondicherry?
2. Whether the plaintiff and defendants are governed by the Customary Hindu Law in vogue at Pondicherry?
3. Whether the suit properties were in joint possession and enjoyment of the plaintiff and defendants after the death of their parents?
4. Whether the plaintiff is entitled to 1/3rd share equal to the defendants in the suit schedule mentioned properties as claimed by her by partition?4/58
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5. To what other relief, the plaintiff and defendants are entitled to?
5.Before trial Court, the plaintiff examined herself as P.W.1 and Exs.A.1 to A.8 were marked. On the side of the defendants the 2nd defendant examined himself as D.W.1 and no document was marked on the side of the defendants.
6.The trial Court, after analyzing the entire evidence available on record, came to a conclusion that the plaintiff is entitled to 1/3rd share in suit item Nos.1 , 2 &5 and 1/9th share in suit item Nos.3 & 4 respectively. The trial Court held that the plaintiff and the defendants are not governed by the Customary Hindu Law prevailing in Pondicherry, since their parents have migrated to Pondicherry from Tamil Nadu around 1975.
7.The trial Court also held that since the plaintiff was married prior to 1989, she is not entitled for the benefit under the Hindu Succession (Tamil Nadu Amendment) Act 1989, and therefore, she is entitled only for 1/9th share regarding item Nos. 3 & 4, the ancestral properties.
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8. Aggrieved by this, the defendants preferred the appeal suit in A.S.No.24 of 2012.
9. In the said appeal suit, the first appellate Court held that the plaintiff is entitled to 1/9th share in respect of item Nos.2, 3 & 4 of the suit properties and 1/3rd share in respect of 5th item of the suit property. With regard to the 1st item of the suit property, the 2nd defendant filed an application under Order 41 Rule 27 (aa) r/w Section 151 CPC for reception of additional evidence. The first Appellate Court allowed the said application and remitted back to the trial Court for letting in evidence and to decide the issue in accordance with law.
10.Assailing the said judgment and decree passed by the first Appellate Court on 15.07.2015 in A.S.No.24/2012, the present Second Appeal is before this Court.
11. At the time of admission, the following substantial questions of law were framed which are as follows:
6/58https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 "1 Whether the Court below are correct in holding that the Pondicherry Coromandal Hindu Law is not applicable to the case of the appellant especially when the appellant born in Pondicherry and had her name recorded as per the system of French Pondicherry method in Pondicherry Municipality by her parents?
2.Whether the Courts below are correct in holding that the Hindu Succession (Tamil Nadu Amendment) Act 1989 is not applicable to the appellant on the basis that the marriage of the appellant was prior to the aforesaid Amendment Act 1989 even though the appellant is alive on the date of the implementation of the aforesaid Amendment Act?
3. Whether the lower appellate Court is correct in holding that the Hindu Succession (Amendment) Act 2005 is not applicable as the father of the appellant Venugopal died prior to the Hindu Succession (Amendment) Act, 2005, even though the appellant is alive on the date of implementation of the Hindu Succession (Amendment) Act, 2005 being on 09.09.2005?"7/58
https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 Substantial Question of Law No.1:
12.The main argument advanced by the learned counsel appearing for the appellant/plaintiff is that, the plaintiff and the defendants along with their parents have migrated to Pondicherry even before 1975 and therefore, they are native Hindus of Pondicherry. Hence, the Coromandal Hindu Law is unanimously applicable to them even after introduction of the Hindu Succession Act. It is submitted that the plaintiff is born in Pondicherry and the suit item Nos. 1 & 2 have been purchased in Pondicherry after migration and the family got accustomed to the living mode and Customary practice of Hindus living in Pondicherry and therefore, they are governed by the Pondicherry Coromandal Hindu Law. Hence, the plaintiff is not entitled for any share in the above properties.
13.It is admitted on both sides that the family migrated from Tamil Nadu to Pondicherry in an around 1975. While so, whether the plaintiff and the defendants are governed by the Customary Hindu Law prevailing in Pondicherry or whether they are governed by the Hindu Succession Act has to be examined.
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14.Regarding migration and the law applicable. It is considered by Mulla on the principles of Hindu Law -XV Edition (1982), which is as follows:
"Migration and school of law: 1. Where a Hindu family migrates from one state to another, the presumption is that it carries with its personal law, that is, the laws and customs as to succession and family relations prevailing in the state from which it came. But this presumption may be rebutted by showing that the family has adopted the law and usages of the province to which it has migrated.
It is the law existing at the time of migration which continuance to govern the migrated members until it is renounced. It is the law in force in the state at the time of their leaving it which continues to govern persons who have migrated to another state. Thus they are affected by decisions of the court of their state of origin which declare the correct law of the state up to the time of their leaving it, but not by customs incorporated in its law after they left it."9/58
https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 Dr.Paras Diwan on Hindu Law-1995 edition while dealing with domicile and migration says as follows:
Migration: When a Hindu migrates from one part of India to another, Prima facie he carries with him his personal law, and if it is alleged that he become subject to the local law, then it must affirmatively be proved that he had adopted the local law.
Ordinarily, law of the locality in which the Hindu family is living in its personal law. If such a family migrates to another part of the country, it carries with it law including any custom having any force of law. Thus it is his law in operation at the time of migration which applies. Even though the law is ascertained by decisions, subsequent to migration. However, this is merely a presumption and can be rebutted by showing that the family adopted the law or usage of the place to which it migrated by conforming to the manners. Customs and usages of the people among whom it came to live. Thus, a family migrating from Benares, where Benares school prevails to Bengal. Where the Dayabhaga School prevails, 10/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 will in all personal matters, including succession to immovable property, continue to be governed by the Benares school of law. This rule is an exception to the rule of private international law that immovable property is governed by lex citus.'' Mayne's treatise on Hindu Law and usage 14th Edition (1996) says that for the purpose of considering domicile. We have to consider the provisions of the Constitution and also the provisions of the Indian Succession Act thereafter, at page 170, the learned author says thus:
'' The concept of domicile can be illustrated but is difficult to define. In Craigniah v. Craignish 1892 2 CH 180, Chitty, J. observed that" that a place is properly the domicile of person in which his habitation is fixed without any present intention of removing therefrom. Two elements are necessary for the existence of domicile.
1. A residence of particular kind.
2. An intention of a particular kind. There must be both factum and unimus. Residence need not be 11/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 continuance but it must be definite, not purely fleeting. Intention must be present intention to reside for ever in the country, where the residence has been taken up.
Domicile is of three kinds:
(a). Domicile of Origin (b.) Domicile of Choice
(c). Domicile of dependency
(a). Domicile of origin:
Every person receives at birth, a domicile of origin. A legitimate child born during the lifetime of his father, has his domicile of origin in the country in which his father was domiciled at the time of his birth. A legitimate child not born during the lifetime of his father or an illegitimate child has his domicile of origin in the country in which his mother was domiciled at the time of his birth. A founding has his domicile of origin in the country in which he was found."12/58
https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 The learned author has further said that strong proof is required to prove abondement of domicile and more intention of permanent residence cannot be made the basis of wiping off of domicile.
In similar case, the Hon'ble Supreme Court had an occasion to consider this question in the case of Vimla Bai v. Hirlal Gupta, 1990 (2) SCC 22. In paragraph 4 of the said judgment, their Lordships stated that migration is changing one's abode, quitting one's place of abode and settling permanently at another place, and the burden of proving migration lies on the person setting up the plea of migration. In paragraph 6 of the said judgment, their lordships further held that in India, a Hindu is governed by his personal branch of law which he carries with him wherever he goes. It is further held that but the law of the province wherein he resides prima facie governs him and in this sense and to this extent only the law of domicile is of relevance or importance. But if it is shown that a person came from another province, the presumption will be that he is governed in his earlier home at the time of migration. Their Lordships further held that an inference can well be made from the known facts of the chief characteristics of 13/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 the family, the language, observance of customs and rites through they are not sufficient to prove that they are governed by a particular school of law, and the presumption can be displaced by showing that the immigrant had renounced the law of the place of his origin and adopted the law of the place to which he had migrated, and the onus lies on the person alleging that the family had renounced the law of its origin and adopted that prevailing in the place to which he had migrated.
In one of the earliest cases reported in the case of Soorendranath Roy v. Mussumat Heeramonee Burmonesh, 12 MIA 81, it has been held thus:
"The prevalence in any part of India of a special rule of decent in a family. differing from the ordinary course of descent common in the locality among people of the like class or race. stands upon the footing of the usage or custom of the family, which having a legal origin and continuance, regulates the succession."
In that case, a Hindu Family migrated from Mithila and settled down in Bengal. In mithila, Mitakshara School 14/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 prevails whereas in Bengal, Dayabagha School of Hindu Law prevails. The family continued joint and living in Bengal for years together and on the question as to what is the law of succession of the deceased, their lordships said that the Law of succession as that of Mitakshara prevails and not on Dayabhaga.
In Madhai Kumhar v. Sabi Bewa, AIR 1973 Pat. 160 it has been held that the Hindu family, migrating from one part of India to another, is presumed to continue to observe the Shastras by which it was governed, and the presumption can only be displaced by showing that the immigrant has renounced the law of his place of origin and adopted 5the law of the place to which he had migrated. In the said judgment, their lordships followed the decision in Sourendranath Roy v. Mussumat Heeramonee Burmonesh.12 MIA 81 and also the decision reported in the case of Balwant Rao v. Baji Rao, AIR 1921 PC 59.
Similarly, in B.C.Gope v. Manjura Gowel, AIR 1973 Pat.208, it has been held thus:15/58
https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 "To sum up, therefore, the law on the subject is that a Hindu residing in a particular province carries with him the laws and customs relating to succession and family relations prevalent in that province and is subject to the particular doctrines of Hindu Law recognized in that province. But this law is not merely a local law. It becomes the personal law and part of the status of every family which is governed by it. Consequently, therefore, where any such family migrates from one province to another governed by another law, it carries its own law with it as it was at the time of migration. If nothing is known except that a man lived at a certain place, it will be assumed that his personal law is the law which prevailed at that place. But if more is known then his personal law must be determined, unless it could be shown that he had renounced his original law in favour of the law of the place to which he had migrated. The onus to prove it is on the person alleging that the family has renounced the law of its origin and adopted those prevailing in the place where he has migrated.16/58
https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 I do not want to multiply the case law on this point, since the Honourable Supreme Court has settled the legal position. Once it is admitted that the first defendant was born and brought up at Tamil Nadu, even though for the purpose of his employment he might have settled at Pondicherry. unless and until he renounces his domicile in Tamil Nadu and intentionally wants to have the domicile at Pondicherry, he will be governed only by domicile of origin. Absolutely, no evidence has been let in by the plaintiff in that regard. The first defendant is the best person to speak about the relinquishment of the domicile and acquisition of another domicile. He has spoken that he continues to be governed by the Mitakshara Law in Tamil Nadu and not the Pondicherry Customary Hindu Law. That is sufficient for the disposal of this second appeal.''
15.Therefore, the Hon'ble Supreme Court has settled the legal position. When a Hindu migrates from one part of India to another, presumption is that, he carries with him his personal law, and if it is alleged that he become subject to the local law, then it must affirmatively be proved that he had adopted the local law. The said presumption can be rebutted by 17/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 showing that the family adopted the law or usage of the place to which it migrated by conforming to the manners, Customs and usages of the people among whom it came to live. Therefore, the Customary Law is applicable only to those Hindus who were adopting the Customary Law prevailing in Pondicherry and it would not apply to Hindus who did not choose to change their personal law which was applicable to them in the place of their origin.
Even in the event of a migration by a Hindu from one Territory to another, the personal law is carried by him and he will be governed thereby.
16.Even assuming that, the family in the present case adopted the law or usage of the place to which it migrated by conforming to the manners, customs and usages of the people among whom it came to live, by virtue of the Pondicherry (Laws) Regulation 1963, the Hindu Succession Act, 1956, was extended to the Union Territory of Pondicherry and the relevant Sections 3 & 4 of the above said Regulation are extracted below:
''3. Extension with amendments of certain laws to Pondicherry and their commencement therein 18/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016
- The Acts as they are generally in force in the territories to which they extend, shall extend to, and come into force in, Pondicherry on the 1st day of October, 1963, subject to the modifications, if any specified in the First Schedule.
4. Repeal and saving - (1) Any law in force in Pondicherry or any area thereof corresponding to any Act referred to in Section 3 shall stand repealed as from the coming into force of such Act in Pondicherry; and all the laws specified in the Second Schedule are hereby repealed.
....''
17. Therefore, it is found that, the Hindu Succession Act having been made applicable to Pondicherry with effect from 01.10.1963 and as per the repeal and saving clause of the above said Regulation, any law in force in Pondicherry or any area thereof corresponding to any Act referred to in Section 3 shall stand repealed as from the coming into force of such Act in Pondicherry and all the laws specified in the 2nd Schedule are hereby repealed, therefore, it is evident that following the introduction of the Hindu Succession Act, 1956 to Pondicherry with effect from 01.10.1963, all the Customary Laws of 19/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 Pondicherry shall stand repealed when provision thereof are incorporated in the Hindu Succession Act, 1956.
18. Further, in 2016 (4) MLJ 562 [M.Kadirvelu and Others Vs. G.Santhanalakshmi and Others.], a learned Single Judge of this Court had held in paragraph Nos.32 to 34 had stated as follows:
''32. Under Section 4(2) of the Pondicherry (Administration) Act, the Central Government was empowered by order to make such adoptions and modifications, for the purpose of facilitating the application of any law in relation to the administration of Pondicherry and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution. But, the Central Government was to pass such an order within three years from the appointed date. Section 8 of the Act empowers the Central Government to issue notifications extending any enactment which is in force in a State, to Pondicherry with such restrictioll modifications as it deems fit.
33. Thereafter, the Pondicherry (Laws) 20/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 Regulation, 1963, was issued by the President in exercise of the powers conferred by Article 240 of the Constitution, with a view to extend certain laws to the Union Territory of Pondicherry. Section 3 of the said Regulation declared that the Acts as they are generally in force in the territories to which they extend, shall also extend to and come into force in Pondicherry on the 1st day of October 1963, subject to the modifications specified in the First Schedule. The First Schedule to the Regulation contained a lot of enactments. The Hindu Succession Act, 1956 is one of the Parliamentary enactments included in the First Schedule to the Regulation of the year 1963. But, as seen from the First Schedule, the Hindu Succession Act, 1956 was extended to Pondicherry and it came into force in Pondicherry on the 1st day of October 1963, subject to one modification.
The modification was that a separate Sub-Section, namely Sub-Section (2A) was inserted under Section 2 of the Hindu Succession Act, 1956. This new Sub-Section reads as follows:
"Section 2(24): Notwithstanding anything contained in Sub-Section (1), nothing contained in this Act shall apply to the renouncants of the Union Territory 21/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 of Pondicherry."
34. Therefore, it is clear that as per Section 3 read with the First Schedule to the Pondicherry (Laws) Regulation, 1963, the provisions of the Hindu Succession Act, 1956, were extended to the inhabitants of the Union Territory of Pondicherry, subject to one restriction namely that in so far as renouncants are concerned, the Hindu Succession Act would not have any application.''
19. In 2017 4 CTC 503 [Gowri Vs. Subbu Mudaliar and others], a learned Single Judge of this Court while examining applicability of the Hindu Succession Act, 1956 to residents of Pondicherry had held as follows:-
"36. Therefore, this Court is of the view that in view of Section 4 of the Hindu Succession Act, which is overriding effect of all the customs Hindu Succession Act alone apply to the Hindus residing in the Pondicherry except renouncants who renounced their personal status and adopted French Law".22/58
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20.Thus, in effect, as on date, except Renouncants of Union Territory of Pondicherry, all Hindus are only governed by the provisions of the Hindu Succession Act 1956 with all its amendments. As per Section 2 A of the Hindu Succession Act 1956, notwithstanding anything contained in Sub Section 1 of Section 2, nothing contained in the Act apply to the Renouncants of the Union Territory of Pondicherry with effect from 01.10.1963. Therefore, it is made clear that, Section 3 read with the First Schedule to the Pondicherry (Laws) Regulation, 1963, the provisions of the Hindu Succession Act, 1956, were extended to the inhabitants of the Union Territory of Pondicherry, subject to one restriction namely in so far as renouncants are concerned, the Hindu Succession Act would not have any application.[Ref: (2016) 3 Law Weekly 385]. It is also evident from the above, that if a Hindu died after 01.10.1963, the law of Succession to the properties is as per the Hindu Succession Act and the repealed Customary Hindu Law cannot be applied. The repealed Cusotmary Hindu Law can be applied only when the right or interest over the property had accrued prior to 01.10.1963. In other words, after the application of Hindu Succession Act on 01.10.1963 to the State of Pondicherry, the Hindus domiciled in Pondicherry are governed by the provisions of the Hindu 23/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 Succession Act, whatever be their personal Law before 01.10.1963. In the present case, the parents of the plaintiff and the defendants died only after 01.10.1963. No accrued interest arose to the plaintiff or to the defendants prior to 01.10.1963. Therefore, the parties to the appeal are governed only by Hindu Succession Act and Customary Hindu Law will have no application to their case. Accordingly, this substantial question of law is answered.
Substantial Question of Law Nos. 2 & 321.The learned counsel appearing for the appellant/plaintiff submits that the Courts below erred in holding that the Hindu Succession (Tamil Nadu Amendment) Act, 1989, is not applicable to the plaintiff on the basis that the marriage of the plaintiff was prior to the aforesaid Amendment Act 1989, even though the plaintiff is alive on the date of the implementation of the aforesaid Amendment Act, 1989, and Amendment Act 2005.
22.Admittedly, the suit item Nos.3 & 4 are ancestral properties.
Section 29-A was inserted to the Hindu Succession Act, 1956, with effect from 25.03.1989. By a legal fiction, unmarried daughters were given the same rights 24/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 as that of the sons over the coparcenary property. Since the plaintiff was married to one Velayutham on 03.05.1987, the Courts below held that, the plaintiff is not a coparcenary. However, in the year 2005, Section 6(1) of the Hindu Succession Act, 1956 was amended by the Parliament with effect from 09.09.2005 which gave the rights even to the married daughters on par with sons. As per proviso to Sub Section (1 ) to Section 6, the amendment would not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004.
But the above is no longer res integra and is covered by the decision of the Hon'ble Supreme Court in Vineeta Sharma Vs. Rakesh Sharma and others reported in 2020 (9) SCC 1 which reads as under:
''49. It is apparent that unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It is significant to note that under Section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner's death. Thus, coparcener father need not be alive on 9-9-2005, date of substitution of provisions of Section 6.25/58
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56. The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso of sub-section (1) contains a non obstante clause providing that nothing contained in the sub-
section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20-12-2004.
57. It is apparent from the provisions of Section 6 that the discrimination with the daughter has been done away with, and they have been provided equal treatment in the matter of inheritance with Mitakshara coparcenary. In several States viz. Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra, the State Amendments in the 1956 Act were made to extend equal rights to daughters in Hindu Mitakshara coparcenary property. An amendment was made on 30-7-1994 by the insertion of Section 6-A by Karnataka Act 23 of 1994 in the 1956 Act. In the State of Andhra Pradesh, the amendment was made w.e.f. 5-9-1985, Tamil Nadu w.e.f. 25-3-1989 and Maharashtra w.e.f. 26-9-1994 by 26/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 the addition of Section 29-A in the 1956 Act. In Kerala, the Act was enacted in 1975.
58. Before the amendment, Section 6 provided that on the death of a male Hindu, a coparcener's interest in Mitakshara coparcenary shall devolve by survivorship upon the surviving members of the coparcenary under the uncodified Hindu law and not in accordance with the mode of succession provided under the 1956 Act. It was provided by the proviso to Section 6, in case a male Hindu of Mitakshara coparcenary has left surviving a female relative of Class I heir or a male relative who claims through such female relative of Class I. The Schedule containing categories of Class I heirs is extracted hereunder:
“THE SCHEDULE (See Section 8) heirs in class I and class II Class I Son, daughter, widow; mother; son of a predeceased son; daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter; widow of a predeceased son, 27/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son; son of a predeceased daughter of a predeceased daughter, daughter of a predeceased daughter of a predeceased daughter, daughter of a predeceased son of a predeceased daughter, daughter of a predeceased daughter of a predeceased son.”
59. In view of the provisions contained in Section 6 when a coparcener is survived by a female heir of Class I or male relative of such female, it was necessary to ascertain the share of the deceased, as such, a legal fiction was created. Explanation I provided legal fiction of partition as if it had taken place immediately before his death, notwithstanding whether he had the right to claim it or not. However, a separated Hindu could not claim an interest in the coparcenary based on intestacy in the interest left by the deceased.
60. The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right.
28/58https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son". Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9-9-2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20-12-2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.
61.The prospective statute operates from the 29/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 date of its enactment conferring new rights. The retrospective statute operates backwards and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended Section 6, since the right is given by birth, that is, an antecedent event, and the provisions operate concerning claiming rights on and from the date of the Amendment Act.
65. Section 6(2) provides that when the female Hindu shall hold the property to which she becomes entitled under Section 6(1), she will be bound to follow the rigours of coparcenary ownership, and can dispose of the property by testamentary mode.
66. With respect to a Hindu who dies after the commencement of the 2005 Amendment Act, as provided in Section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares 30/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a son; even surviving child of predeceased daughter or son are given a share in case the child has also died then the surviving child of such predeceased child of a predeceased son or predeceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a sea-change in substituted Section 6. In case of death of coparcener after 9-9-2005, succession is not by survivorship but in accordance with Section 6(3). The Explanation to Section 6(3) is the same as Explanation I to Section 6 as originally enacted. Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, granddaughter, or great-granddaughter, as the case may be, is equally bound to follow the pious obligation under the Hindu law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of the 2005 Amendment Act. The provisions contained in Section 6(4) also make it clear that provisions of Section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act.
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67. The proviso to Section 6(1) and Section 6(5) saves any partition effected before 20-12-2004. However, Explanation to Section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of “partition” in the Explanation.
69. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9-9- 2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9-9-2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3).
32/58https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 In re: Effect of enlargement of daughter's rights
70. Under the proviso to Section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to Section 6 as it stood before amendment.
74. The argument raised that if the father or any other coparcener died before the 2005 Amendment Act, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is 33/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended Section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to Section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to Section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted Section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of Section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in Section 6, she has been made a coparcener. The precise declaration made in Section 6(1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been 34/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 abrogated with effect from 9-9-2005 by Section 6(3).
76. It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to Section 6(1). When we read the provisions conjointly, when right is given to the daughter of a coparcener in the same manner as a son by birth, it became necessary to save the dispositions or alienations, including any partition or testamentary succession, which had taken place before 20-12-2004. A daughter can assert the right on and from 9-9-2005, and the proviso saves from invalidation the above transactions.
80. A finding has been recorded in Prakash v.
Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36 :
(2016) 1 SCC (Civ) 549] that the rights under the substituted Section 6 accrue to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a 35/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends.
Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] . In our opinion, the daughters should be living on 9-9-2005. In substituted Section 6, the expression “daughter of a living coparcener” has not been used. Right is given under Section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9-9-2005 and as provided in Section 6(1)(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in Section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of Section 6(1) leave no room to entertain the proposition that coparcener should be living on 9-9-2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.'' 36/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016
23.Applying the principles laid down in Vineeta Sharma vs. Rakesh Sharma and Others reported in 2020 (5) CTC 302, the plaintiff would essentially have a right by birth to seek partition. Moreover, in the said judgment it is held that, it is not necessary that there should, a living coparcener or father as on the date of the amendment to whom the daughter would succeed.
The daughter would step into the coparcenary as that of a son by taking birth before or after the Act.
24.Both the Courts below have lost sight of the law governing the property at the relevant point of time and had erroneously concluded that the plaintiff is not entitled for the benefit under the 2005 Amendment Act. In view of the above, the rights of married daughter as a coparcener stands recognized under Section 6 (1) of the Hindu Succession Act, 1956, w.e.f 09.09.2005.
Therefore, it is noticed that the first Appellate Court has wrongly allotted 1/9th share in the suit item Nos.2, 3 & 4 to the plaintiff. The property was to be divided into three equal shares. In view of the above, the plaintiff is entitled to 1/3rd share in the suit item Nos.2, 3, 4 & 5 respectively. Accordingly, the impugned judgment and decree of the Appellate Court is partly modified.
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25.In the light of the above, the substantial questions of law Nos.2 & 3 raised in this appeal are answered.
Additional Substantial Question of Law:
Whether the 1st appellate Court is correct in allowing the application filed under Order 41 rule 27 CPC and in remanding the matter to the trial Court to record evidence in respect of the 1st Item?
26. The contention of the learned counsel for the plaintiff is that the 1st appellate Court wrongly resorted to remand the suit to the trial Court in respect of the 1st item of the suit property based on the submission made by the 2nd defendant that, the 1st defendant and the plaintiff along with their mother jointly executed a release deed in favour of the 2nd defendant. The 2nd defendant filed an application under Order 41 Rule 27 (aa) CPC for receiving the alleged release deed as additional document before the First appellate Court without complying the requirements of law warranted under Order 41 Rule 27 CPC and that too without any pleadings in the written statement. The learned 38/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 counsel for the plaintiff would further submit that, before the trial Court, the existence of the alleged release deed was not even whispered neither in the pleadings nor in the evidence. His further submission is that the 2 nd defendant failed to establish that inspite 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. Therefore, the first Appellate Court erred in allowing the said application for production of additional evidence in Appellate Court and by remanding the case to the trial Court for recording additional evidence is contrary to the provisions under Order 41 Rule 23 and Rule 23 (A) of CPC. Therefore, the said First Appellate Court is not justified in ordering remand in respect of 1 st item of the suit property which has to be set aside.
27.On the other hand, the learned counsel appearing for the defendants would submit that, the plaintiff and the 1st defendant along with their mother Bhavani, executed a release deed dated 25.04.2001 relinquishing their entire right over the 1st item of the suit property in his favour. But the same was suppressed by the plaintiff at the time of filing the suit. Hence, the 2 nd 39/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 defendant was constrained to file the above application under Order 41 Rule 27 CPC for receiving the said release deed as additional evidence before the 1st appellate Court. The 1st appellate Court considering the above aspects in a right perspective manner, allowed the application and remitted back the matter to the trial Court, since the existence of the release deed was not brought to the notice of the trial Court.
28.The learned counsel would further submit that, admissibility of additional evidence under Order 41 Rule 27 CPC does not depend upon the relevancy of the issue on hand, or whether, the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. In this case, the 2nd defendant intended to mark a release deed alleged to have been executed by the plaintiff and the 1st defendant relinquishing their share in the 1st item of the property in favour of the 2nd defendant without adjudicating the same, there cannot be a fair decision.40/58
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29.To support his contention, he has relied upon the Judgement in the case of Sanjay Kumar Singh Vs. State of Jharkhand reported in (2002) 7 SCC 247.
30.Whether the 1st Appellate Court was right in allowing the application filed under Order 41 Rule 27 of the CPC and wrongly resorted to remand the suit to the trial Court has to be examined.
31. No doubt, Order 41 Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. If the additional evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.
32.The First Appellate Court by its impugned judgement and decree has considered the application filed under Order 41 Rule 27 of the CPC and allowed the same. By allowing the said application, the first appellate Court remanded the case to the trial Court for letting in evidence in respect of the 41/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 additional document (release deed) filed before the First Appellate Court.
33.In a decision in P. Purushottam Reddy and another Vs. Pratap Steels Limited 1, reported in (2002) 2 SCC 686 the Hon'ble Supreme Court has held that unless the decree in appeal is reversed by the First Appellate Court and retrial is considered necessary, wholesale remand cannot be made by the First Appellate Court. It has been held as under-
''10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23 A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act. 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41 of CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try 42/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in at much as the subordinate Court can try only such inner at are referred to it for treat and having done so, the evidence recorded, together with findings and reasons therefore of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre- eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of Sub- rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23 A has been inserted in Order 41 which provides for a remand by an appellate Court 43/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR 1965 SC 364), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand de hors the Rules 23 and 23-A. To wit the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An 44/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.''
34. The Code empowers the Appellate Court to order remand in three situations. These three situations are covered by Order 41 Rule 23, Order 41 Rule 23 A and Order 41 Rule 25 of the CPC, which reads as under:
''23. Remand of cute by appellate court Where the court from whose decree an appeal is preferred has dispored of the suit upon a preliminary poot and the decree is reversed in appeal the appellate Court may it it thinks fit by order remand the care and may further direct what we or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred with directions to readmit the suit under its original number in the register of creil suits, and proceed to determine the suit and the evidence (if any) recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand 45/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 23A. Remand in other cases - Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate Court shall have the same powers as it has under Rule 23
25. Whether appellate Court may frame issues and refer them for trial to Court whose decree appealed from Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required, and such Court shall proceed to try such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons therefore within such time as may be fixed by the appellate Court or extended by it from time to time."46/58
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35.Therefore, Order 41 Rule 23 of the CPC is invokable by the Appellate Court where the appeal has arisen from the decree passed on a preliminary point; in other words, where the entire suit has been disposed of by the trial Court on a preliminary point and such decree is reversed in appeal and the Appellate Court thinks proper to remand the case for fresh disposal. While doing so, the Appellate Court may issue further direction for trial of certain issues.
36. Order 41 Rule 23-A of the CPC has been inserted in the Code by Act 104 of 1976 w.e.f. 01.02.1977. According to Order 41 Rule 23-4 of the CPC the Appellate Court may remand the suit to the trial Court even though such suit has been disposed of on merits. It provides that where the trial court has disposed of the suit on merits and the decree is reversed in appeal and the Appellate Court considers that retrial is necessary, the Appellate Court may remand the suit to the trial Court. Thus, on twin conditions being satisfied, the Appellate Court can exercise the same power of remand under Order 41 Rule 23-A of the CPC.
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37.In so far as Order 41 Rule 25 of the CPC is concerned, the Appellate Court continues to be in seisin of the matter, it calls upon the trial Court to record the finding on some issue or issues and to send that finding to the Appellate Court. The power under Order 41 Rule 25 is invoked by the Appellate Court, where it holds that the trial Court which passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The Appellate Court, while remitting some issue or issues, may direct the trial Court to take additional evidence on such issue (S).
38.In the case on hand, the trial Court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate Judgment under appeal herein, the 1st Appellate Court has recorded its finding on some of the issues, leaving a point on additional evidence to be tried and decided by the trial Court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23 A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence under that Rule. The validity of remand has to be tested by reference to Rule 25. In fact, the first Appellate Court did not 48/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 frame any issue while referring the same for trial to the Court from whose decree the appeal is preferred. Even otherwise the question could have been gone into by the 1st Appellate Court and a finding could have been recorded on the available material in as much as the 1st Appellate Court being the Court of First Appeal, all the questions of fact and law arising in the case were open before it for consideration and decision. The first Appellate Court was required formulate points for determination under Order 41 Rule 31 of the CPC. The First Appellate Court being the final Court of facts has to formulate the points for determination and weigh the evidence on the issues, which arise for adjudication and record reasons for its decision on the said points. The 1st Appellate Court has remanded the case to the trial Court merely by granting an application under Order 41 Rule 27 of the CPC, which the 1st appellate Court itself can record the evidence and marked document, if any, as provided in Section 107 of the CPC. Section 107 of CPC reads as follows:
"107. Power of Appellate Court :-
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-49/58
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(a) to determine a case finally,
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken;
2. Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts or original jurisdiction in respect of suits instituted therein."
39.The first infirmity committed by the First Appellate Court is that there is no specific finding and reason for reception of additional documents at the Appellate stage and the Appellate Court failed to consider the claim of the appellants therein in terms of Order 41 Rule 27 (1) (aa) and (2), CPC. Another infirmity is that inspite of considering the document, after satisfying the above mentioned provisions, viz., Order 41 Rule 27 (1) (aa) and (2), it is open to the 50/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 Appellate Court to consider the additional document or additional evidence and record evidence and marked the document as mentioned in Order 41 Rule 27 (1) CPC. Here again, the Appellate Court failed to follow the said procedure. In a matter like this, there should be always endeavour to dispose of the case by the appellate Court itself. Thus, keeping in view the above facts, mere reception of the additional evidence, if any, by the first Appellate Court cannot be a ground for remanding the matter to the trial Court. Moreover, the order granting the application under Order 41 Rule 27 of the CPC also suffers from illegality for one or more reasons. Order 41 Rule 27 of the CPC provides as under:
" Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether or Court 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 51/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 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) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission."
In a recent decision in Union of India vs. Ibrahim Uddin and another 6, reported in 2012 (8) SCC 148 while dealing with an application under Order XLI Rule 27 of CPC, the Hon'ble Supreme Court held as under
"26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh 52/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).
27. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those 6 2013 AIR SCW 2752 cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors (supra)|"53/58
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40.In the case of State of U.P. Vs., Manbodhan Lal Shrivastava, reported in AIR 1957 SC 912 it is held that, ''In the absence of satisfactory reasons for the non production of the evidence in the trial Court, additional evidence should not be admitted in appeal as a party guilty of remissness in the trial Court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the trial Court but failed to do so or elected not to do so, cannot have it admitted in appeal.''
41.In the present case, neither in the written statement nor in the evidence it is stated that the plaintiff along with the 1 st defendant relinquished their rights in the 1st item of the suit property in favour of the 2nd defendant under the alleged release deed. It is settled law that no amount of evidence can be entertained without pleadings Therefore, the order of remand passed by the 1st appellate Court deserves to be set aside. The order of the 1st appellate Court granting application under Order 41 Rule 27 also cannot be sustained and is hereby set aside. The appellate Court shall hear the above civil appeal and while hearing, if it feels that the 2nd defendant has made out a case for 54/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 reception of additional evidence after rendering a specific finding without any influence of the observation made by this Court, shall record evidence and mark the document and shall thereafter, dispose of the appeal one way or the other on this specific point with regard to the 1st item of the suit property. The application under Order 41 Rule 27 of the CPC is also restored to its original number for fresh consideration and disposal in accordance with law, expeditiously preferably within a period of three months from the date of receipt of certified copy of this judgment. Parties are directed to appear before the 1st Appellate Court on 15 April 2024.
42. In the result, the Second Appeal is Partly Allowed. No order as to costs. Consequently, connected miscellaneous petitions are closed.
14.03.2024 vsn Internet:Yes/No Index:Yes/No Speaking/Non-speaking order To 55/58 https://www.mhc.tn.gov.in/judis S.A.No.961of 2016
1.The Principal District Judge, Ppndicherry,
2.The Additional Sub Judge, Pondicherry.
56/58https://www.mhc.tn.gov.in/judis S.A.No.961of 2016 K.GOVINDARAJAN THILAKAVADI,J.
vsn PRE- DELIVERY JUDGEMENT MADE IN S.A.No.961 of 2016 and C.M.P.Nos.19641 & 19642 of 2016 and C.M.P.Nos.741 of 2023 57/58 https://www.mhc.tn.gov.in/judis