Karnataka High Court

Mr Narayanappa vs Smt Ademma on 13 February, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                         NC: 2024:KHC:6112
                                                      RSA No. 1900 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 13TH DAY OF FEBRUARY, 2024

                                          BEFORE
                           THE HON'BLE MR JUSTICE M.G.S. KAMAL
                   REGULAR SECOND APPEAL NO. 1900 OF 2022 (PAR)
                   BETWEEN:

                   1.    MR NARAYANAPPA
                         AGED ABOUT 79 YEARS
                         S/O CHIKKAVENKATARAMANAPPA

                   2.    MR. KONDAPPA
                         AGED ABOUT 46 YEARS
                         S/O CHIKKAVENKATARAMANAPPA

                   3.    SMT ANJANAMMA
                         AGED ABOUT 54 YEARS
                         D/O NARAYANAPPA

                   4.    ANJANAPPA
                         AGED ABOUT 24 YEARS
Digitally signed
by SUMA B N              S/O NARAYANAPPA
Location: High
Court of
Karnataka          5.    LAKSHMIPATHI
                         AGED ABOUT 23 YEARS
                         S/O NARAYANAPPA

                   6.    SMT. ADILAKSHMAMMA
                         AGED ABOUT 49 YEARS
                         W/O KONDAPPA

                   7.    SMT ADILAKSHMAMMA
                         W/O BALAPPA
                         AGED ABOUT 74 YEARS
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                                    RSA No. 1900 of 2022




8.   ASWATHAPPA
     AGED ABOUT 44 YEARS
     S/O BALAPPA

9.   SMT MANJULAMMA
     W/O ASWATHAPPA
     AGED ABOUT 39 YEARS

10. PRASHANTH
    AGED ABOUT 49 YEARS
    S/O ASWATHAPPA

11. RAVI
    AGED ABOUT 42 YEARS
    S/O BALAPPA

12. SUDHARAKA
    AGED ABOUT 40 YEARS
    S/O BALAPPA

13. SMT AKKALAMMA
    AGED ABOUT 64 YEARS
    W/O NARAYANAPPA

     RESPONDENT NO.1 TO 13 ARE
     R/AT PULASANIVODDU VILLAGE
     KASABA HOBLI, BAGEPALLI TALUK - 561 207.

14. SMT ALUVELAMMA
    AGED ABOUT 49 YEARS
    S/O NARAYANAPPA
    R/AT GOOLURU VILLAGE
    BAGEPALLI TALUK - 561 207
    CHIKKABALLAPURA DIST.
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                                   RSA No. 1900 of 2022




15. MR YUNUS SALEEM
    AGED ABOUT 46 YEARS
    S/O D MOHAMMED ALIKATH
    R/AT 1ST CROSS RAILWAY STATION ROAD
    CHAMARAJPET
    CHIKKABALLAPURA CITY - 560 018.
                                           ...APPELLANTS
(BY SRI. MOHANA CHANDRA P.,ADVOCATE)

AND:

1.   SMT ADEMMA
     AGED ABOUT 64 YEARS
     W/O KRISHNAPPA
     R/AT PUTASANIVODDU VILLAGE
     KASABA HOBLI GUDIBANDE TALUK - 561 209
     CHIKKABALLAPURA DISTRICT.

2.   BAGADEPPA
     AGED ABOUT 41 YEARS
     S/O LATE AKKULAPPA
     R/AT PUTASANIVODDU VILLAGE
     KASABA HOBLI
     GUDIBANDE TALUK - 561 209
     CHIKKABALLAPURA DIST.

3.   SHIVASHANKARA
     AGED ABOUT 42 YEARS
     S/O AKKULAPPA
     R/AT BANDARLAHALLI VILLAGE
     NAGARAGERE HOBLI
     GOWRIBIDANUR TALUK
     CHIKKABALLAPURA DIST - 561 228.

4.   MR. GANGADHARA
     AGED ABOUT 41 YEARS
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                                   RSA No. 1900 of 2022




     S/O AKKULAPPA
     R/AT BANDARLAHALLI VILLAGE
     NAGARAGERE HOBLI
     GOWRIBIDANUR TALUK
     CHIKKABALLAPURA DIST - 561 228.

5.   MR RAJAGOPALA
     AGED ABOUT 44 YEARS
     S/O NANJUNDAPPA
     R/AT BANDARLAHALLI VILLAGE
     NAGARAGERE HOBLI
     GOWRIBIDANUR TALUK
     CHIKKABALLAPURA DIST - 561 228.

6.   SMT BHAGYAMMA
     AGED ABOUT 42 YEARS
     W/O RANGAPPA
     R/AT CHARLOPALLI VILLAGE
     GOOLURU HOBLI BAGEPALLI TALUK
     CHIKKABALLAPURA DIST - 561 207.

7.   SMT GANGAMMA
     AGED ABOUT 36 YEARS
     W/O NARASIMHAPPA
     R/AT CHARLOPALLI VILLAGE
     GOOLURU HOBLI BAGEPALLI TALUK - 561 207.

8.   MR. B. KRISHNAPPA
     AGED ABOUT 64 YEARS
     S/O BOGADEPPA
     R/AT PULASANIVODDU VILLAGE
     KASABA HOBLI GUDIBANDE TALUK
     CHIKKABALLAPURA DIST - 561 209.

9.   SMT MUNEMMA
     AGED ABOUT 64 YEARS
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                                 RSA No. 1900 of 2022




    W/O ADEPPA
    R/AT PULASANIVODDU VILLAGE
    KASABA HOBLI
    GUDIBANDE TALUK - 561 209.

10. MR AKKULAPPA
    AGED ABOUT 73 YEARS
    S/O RAMAPPA
    R/AT HAMPASANDRA VILLAGE
    GUDIBANDE TALUK - 561 209.

11. MR. LAKSHMIPATHI
    AGED ABOUT 74 YEARS
    S/O L. KRISHNAPPA

12. MR. K. LOKESH KUMAR
    AGED ABOUT 69 YEARS
    S/O L KRISHNAPPA

    NO.11 AND 12 ARE
    RESIDENT OF ADUGODI, 273
    HOSUR MAIN ROAD ADUGODI
    BANGALORE - 560 030.

13. MR BALAPPA
    AGED ABOUT 75 YEARS,
    S/O VENKATASHAMI

14. MR NARAYANAPPA
    AGED ABOUT 73 YEARS
    S/O VENKATASHAMI

15. SMT SHANTHAMMA
    AGED ABOUT 40 YEARS,
    W/O SHIVAREDDY
    R/AT GUNDLAHALLI VILLAGE
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                                          NC: 2024:KHC:6112
                                      RSA No. 1900 of 2022




    KASABA HOBLI
    GUDIBANDE TALUK - 561 209.

16. SMT LAKSHMIDEVAMMA
    AGED ABOUT 54 YEARS
    D/O MUNIYAPPA
    R/AT MADHUREPALLI VILLAGE
    CHILAMATHUR PANCHYATH
    HINDUPUR TALUK - 515 341
    ANANTHAPURA DISTRICT.
                                            ...RESPONDENTS
(BY SRI. NAVEEN J N., ADVOCATE)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 15.09.2022
PASSED IN RA.No.17/2018 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, CHIKKABALLAPURA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 23.01.2018 PASSED IN OS No.243/2007 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
CHICKBALLAPUR.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal is by the defendants 2, 3, 10 to 22

aggrieved by the judgment and decree dated 23.01.2018

passed in O.S.No.243/2007 on the file of Principal Senior

Civil Judge & CJM, Chickballapur (hereinafter referred to as

'Trial Court' for short) which is confirmed by the judgment

and order dated 15.09.2022 passed in R.A.No.17/2018 on

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the file of Principal Judge, Family Court, Chikkaballapura

(hereinafter referred to as 'First Appellate Court' for

short).

2. The above suit in O.S.No.243/2007 is filed by

the plaintiffs who are respondent Nos.1 to 8 in this appeal

seeking relief of partition and separate possession of the

suit schedule properties. It is the case of the plaintiffs

that one Balappa the original propositus had 4 sons by

name; (1) Bavanna, (2) Chikkadeppa, (3) Kondappa and

(4) Venkatashamy.

(1) Bavanna had 3 sons namely, (a) Pedda

Venkataravanappa, (b) Adeppa and (c) Chikka

Venkataravanappa.

(2) Chikkadeppa had two daughters namely,

(a) Chikkamma and (b) Chikkademma.

(3) Kondappa had two daughters namely

(a)ChikkaVenkatamma and (b) Chinnanjamma.

(4) Venkatashamy had two sons by name (a)

Balappa, who is defendant No.6 and (b) Narayanappa who

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is defendant No.7 in the suit. Balappa and his aforesaid

four sons passed away.

(i) Peddavenkataravanappa first son of

Bavanna died unmarried. Second son of Bavanna by name

Adeppa died leaving behind his wife Munemma the

defendant No.1 and his third son Chikkavenkataravanappa

died leaving behind his two sons namely (a) Narayanappa

and (b) Kondappa who are defendant Nos. 2 and 3 in the

suit.

(ii) Chikkamma, the first daughter of

Chikkadeppa (the second son of Balappa) had two children

namely, (a) Narasamma who is plaintiff No.1 and (b)

Thimmappa who died issueless. Said Narasamma had only

one daughter by name Ademma. Husband of the Ademma,

B. Krishnappa who is the plaintiff No.8 in the suit.

(iii) Chikkademma, the second daughter of

Chikkadeppa died leaving behind his four children namely,

(a) Akkalappa, (b) Nanjundappa, (c) Adinarayanappa and

(d) B.Krishnappa. Akkalappa died and his sons are

Bagadeppa, Shivashankarappa and Gangadhara are the

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plaintiffs 2 to 4 in the suit. Nanjundappa died leaving

behind his two daughters namely Bhagyamma and

Gangamma who are the plaintiffs 6 and 7 respectively.

3. It is further case of the plaintiffs that plaintiffs

and defendant Nos. 1 to 7 and 9 to 21 are the joint family

members enjoying the suit schedule properties consisting

12 items of the ancestral properties. That on 24.07.2002,

Balappa the defendant No.6 had sold suit item No.5 in

favour of Smt. Shanthamma wife of Shivareddy without

there being any family necessity. It is further case of the

plaintiffs that sale deed executed in favour of defendant

No.8 by defendant No.6 is also not binding on the

plaintiffs. That defendant Nos. 2, 3, 6 and 7 having

obtained change of katha in their names as per partition

dated 02.06.2005 which does not create any right, title

interest on their favour and the same is not binding on

plaintiffs. When the plaintiffs requested for partition and

allotment of their share the request was rejected by

defendants constraining them to filing of the suit.

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4. Defendants 5, 9 to 21 despite service of

summons did not appear and they were placed exparte.

That the defendant Nos. 2, 3, 6 and 7 have filed the

written statement denying the relationship of plaintiffs

with defendant Nos. 1 to 7 and 9 to 21. They have also

denied the averments of the plaint. It specifically pleaded

by the defendants that plaintiffs are strangers to the

original propositus of the family of the defendants and

they having no share, right, title and interest in any of the

suit schedule properties. It is specifically pleaded by the

defendants that there was a division of properties on

02.06.2005 amongst the family members (representing

the legal heirs of Bavanna, Kondappa and Venkatashamy

(the first, third and fourth sons of Balappa). That in terms

of said division of the schedule properties revenue records

have been mutated in their names in respective of shares

allotted to them. It is specifically contended by the

defendants that Genealogical tree furnished by the

plaintiffs is created for the purpose of the case only with a

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malafide intention of grabbing the property belonging to

the defendants. Hence, sought for dismissal of the suit.

5. Defendant No.22 in the written statement

pleaded that plaintiffs are not entitled for relief as claimed

by them. It is contended that he is the absolute owner in

possession and enjoyment of item No.11 of the suit

schedule properties having obtained a registered deed of

sale dated 05.04.2008 executed by the defendant Nos. 1

to 3, 6 and 7 for a valuable sale consideration and for

their family necessity. That he is the bonafide purchaser

without notice of the pendency of the case. In the

alternate the said defendant had pleaded that if the court

finds plaintiffs are entitled for their share in an equitable

general partition of all the properties, item no.11 be

allotted to defendant Nos. 1 to 3, 6 and 7, so that the

purchaser of the property remains unaffected.

6. Based on the above pleadings the Trial Court

framed the following issues for its consideration;

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1) Whether the plaintiffs prove that, plaintiffs and the defendants No.1 to 21 are the members of Hindu undivided joint family?

2) Whether the plaintiffs prove that, suit schedule properties are the ancestral and joint family properties of plaintiffs and defendants No.1 to 21?.

3) Whether the defendant No.22 proves that he is the bonafide purchaser of Item No.11 of the suit schedule property?

4) Whether the plaintiffs are entitled for the relief as claimed?

5) What decree or order?

Additional Issue Dt.28.03

1) Whether the defendant No.8 proves she is bonafide purchaser of Item No.5 of suit schedule property?

Recasted Additional Issue No.2 Dt.08.09

proves that, on 02.06.2005 there was written Panchayath Vibhaga Patti between themselves and by virtue of which they are in possession and enjoyment of suit schedule properties as their legitimate share and for legal necessity they sold the same to one Shantamma and others?

7. From perusal of pleadings, it reveals that 7th defendant is not belonging to family of the plaintiff and defendants No.1 to 7, 9 to 21 and she is a purchaser of suit Item No.5. So by oversight Issue No.1 and 2 framed as if 8th defendant is also joint family member. So Issue No.1 and 2 should be read as:-

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1) Whether the plaintiffs prove that, plaintiffs and defendants No.1 to 7 and 9 to 21 are members of Hindu undivided joint family?

2) Whether the plaintiffs prove that, suit schedule properties are ancestral and joint family properties of defendants No.1 to 7, 9 to 21?".

7. Plaintiff No.8, B.Krishnappa examined himself

as PW.1 and two witnesses namely Narasimha Reddy and

Chinnappaiah have been examined as PW2 and PW3 and

exhibited in all 43 documents marked as Ex.P1 to P43.

Four witnesses have been examined on behalf of the

defendants as DW Nos. 1 to 4 exhibited 58 documents

and marked as Ex.D1 to D.58.

8. On appreciation of pleadings, oral and

documentary evidence the Trial Court answered the issues

and decreed the suit as under;

"The plaintiffs 1 to 8 are together entitled for 1/4th share on Chikka Adeppa son of Balappa in the suit schedule properties.

The defendants No.1 to 3, 9 and 13 are together entitled to 1/4th share of Bavanna son of Balappa in suit schedule properties.

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The defendants No.4 and LR of deceased Chinnanjamma by name Lakshmipathi and Lokesh Kumar are together entitled to 1/4th share of Kondappa son of Balappa in suit schedule properties.

The 1/4th share of defendants No.1 to 3,6 and 7 respectively in suit Item No.11 shall be allotted to the share of defendant No.s22 by way of equitable partition.

The defendants No.6, 7, 10 to 12 and 14 to 21 are together entitled to 1/4th share of Venkataswamy son of Balappa in suit schedule properties.

Considering the relationship of the parties, I direct the parties to bear their respective costs.

Office is directed to draw preliminary decree accordingly".

9. Being aggrieved by the same,

appellants/defendants filed regular appeal in

R.A.No.17/2018 before the First Appellate Court. The First

Appellate Court considering the grounds urged in

memorandum of appeal framed the following points for

consideration;

1) Whether the plaintiffs have proved their relationship with the deceased Chikka Adeppa?

2) Whether and 7 have proved that 2.6.2005, there was aparition in respect of the schedule

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properties, therefore, plaintiffs are not entitled for share in the properties ?

3) Whether the judgment and decree of the trial court is apparent, illegal, perverse and capricious, therefore requires interference by this court?

4) What order?"

and on re-appreciation of evidence dismissed the appeal.

10. Appellants had also filed an application in

I.A.No.2 under order 41 Rule 27 of CPC seeking production

of additional evidence. The said application has also been

rejected by the first appellate Court. Being aggrieved by

the aforesaid judgment and decree of the Trial Court and

confirmed by the first appellate court appellants are before

this Court.

11. Sri.Mohana Chandra P, learned counsel for the

appellants reiterating the ground urged in the

memorandum of appeal submits that;

(a) the Trial Court and the first appellate Court

grossly erred in casting the burden of proof of

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relationship of plaintiffs with that of the family of

Balappa on the appellants calling upon them to prove

and produce negative evidence. It is his further

submission that the burden of proving the

relationship ought to have been casted on the

plaintiffs. Thus, he submits that the said issue not

having been adequately framed and addressed by

the Trial Court and the First appellate Court has

resulted in erroneous finding and conclusion by Trial

Court and the First appellate Court.

(b) Referring to the deposition of PWs.1 to 3

counsel for the appellants submits that there is no

proof of relationship between plaintiffs and Balappa's

family which is acceptable particularly when the

same is specifically denied by the appellants. He

submits that the trial Court without adverting to the

same merely relying upon certain documents in the

nature of Election identity cards and voter list of

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plaintiff No.8 and his children have come to the

conclusion that relationship have been established.

filed an application under 41 Rule 27 of CPC before

the first appellate court seeking to produce additional

evidence with regard to relationship of the plaintiffs

the genealogical tree of the family of the Balappa,

the first appellate Court without adverting to the

grounds urged therein has rejected the same. Thus,

he submits that the issue of relationship has

remained inconclusive warranting reconsideration at

the hands of this Court.

(d) His next submission is with regard to oral

partition which according to the appellants had taken

place on 06.06.2005. He submits that Trial Court and

the First appellate Court ought to have taken into

consideration the oral partition which has taken place

on 06.06.2005 and which was also acted upon by the

revenue entries having been effected in the names of

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the sharers which aspect has lost sight of by the Trial

Court and the First appellate Court.

(e) His further submission is with regard to sale of

one of the items of the suit schedule properties

namely item No.5 made by the defendant No.7 in

favour of defendant no.8 in terms of deed of sale

dated 24.07.2002. He submits that since alienation

had taken place much prior to coming into force of

Section 6 of Hindu Succession Act, the Trial Court

and the First Appellate Court ought to have excluded

the said property from the partition. Thus, he

submits that non-consideration of the aforesaid facts

gives rise to substantial question of law warranting

consideration at the hands of this court.

12. In response, Sri.Naveen J.N, learned counsel for

the respondents /plaintiffs justifying the judgment and

decree of the trial court and confirmed by first appellate

court submits that;

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(a) trial court has rightly framed the issues with

regard to relationship of the parties. He refers to the

issue No.1 framed by the trial court and submits that

the said issue castes the burden on plaintiffs to prove

the relationship.

(b) He further submits that since said issue is casts

burden on the plaintiffs, they have examined 3

witnesses and two of them namely PW.2 and PW.3

have been examined to produce the relationship. It is

his submission that the deposition of PW2 and 3 has

remained unchallenged as there has been no cross-

examination conducted by the respondents disputing

the deposition of PWs. 2 and 3 with regard to the

relationship of the parties.

cards, ration card and voter list produced by the

plaintiffs to submit that the plaintiffs have been the

permanent residents of the said village and they are

not the strangers to the village. Thus, he submits

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that there has been complete compliance of law with

regard to proving of the relationship of the parties.

(d) He submits that the contention of the oral

partition has not been proved by producing any

satisfactory evidence, in any case the said partition is

not binding on the plaintiffs.

(e) As regards the sale deed is concerned he

submits that the alienation in respect of item No.5 of

the property is not binding to the extent of the share

as they were not parties to the sale deed. Thus he

submits that Trial Court and the First Appellate Court

have adverted to all these matters and had come to

the just conclusion, warranting no interference and

no substantial question of law would arise for

consideration. Hence, sought for dismissal of the

appeal.

13. Heard. Perused the records.

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14. From the submissions and the counter

submissions made, the only point which is strenuously

urged and fairly conceded by learned counsel for the

appellants is with regard to the relationship of the parties,

if relationship stands proved even as fairly admitted by

learned counsel for the appellants nothing remains in the

matter for consideration. Plaintiffs have approached the

court claiming themselves to be the members of family of

one Balappa having specific share in the joint family

properties. There is no dispute of the fact that Balappa had

four sons by name Bavanna, Chikkadeppa, Kondappa and

Venkatashamy. Plaintiffs represent the branch of

Chikkaadeppa while defendants represent the branches of

Bavana, kondappa and Venkatashamy.

15. From the documents produced at Exs.P27

to 32 being the election identity cards, ration cards and

voter list what stands proved is that the plaintiffs are local

residents of the said village. As pointed out by the learned

counsel for the appellants that they may not per-se

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establish the relationship between the Balappa's family

and the plaintiffs family, nevertheless as rightly taken note

of by the Trial Court and the First Appellate Court the said

documents stand proof of the fact that the plaintiffs are

the residents of pulasanivoddi village, Kasaba Hobli,

Gudibande taluk, Chickaballapura District. The fact of the

plaintiffs being residents of that village has been further

fortified by the evidence of PWs.2 and 3. That the PW.2

even as stated in the affidavit appears to be a person

active in the social life and is from the same village. PW.3

belonged to the same community in the same village.

Thus, from these two aspects of the matter it cannot be

said that the plaintiffs are the strangers to the village but

they are very much the residents of the said village.

16. Adverting to the issue of relationship is

concerned, plaintiffs have examined PW.2 and PW.3 who

have in their affidavit described Balappa and his

descendants in explicit detail.

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17. Per contra, in the cross-examination as rightly

taken note of by the Trial Court and the First Appellate

Court there is not even a suggestion disputing the details

of the lineage given by PWs.2 and 3 in the deposition. The

suggestions put forth do not even remotely suggest denial

of the depositions of the plaintiffs witnesses. The Trial

Court and the First Appellate Court have also taken note of

legal proposition that the cross-examination is not a

procedure, it is substance if not denied or if the case

proposed by opponent is not suggested to the witness it is

deemed that the deposition of the witness stands

accepted, which is the clear case in the instant case as

well. Nothing prevented the defendants to cross-examine

the witnesses extensively who tendered themselves to

cross-examination pursuant to the detailed affidavit filed

by them.

18. As regards the contentions of the appellants

that they were not having opportunity to lead evidence as

Trial Court did not framed the issue also cannot be

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countenanced. This is for the reason that it is the case of

the defendants that plaintiffs are strangers and not related

to the family. When the plaintiffs in response to the denial

have caused examination of two witnesses-PWs 2 and 3

only for the purpose of establishing of their relationship,

nothing prevented the defendants from leading their

rebuttal evidence. This lacuna on the part of the

defendants cannot be filled in by production of additional

documents as sought to be done at the appellate stage as

there is no satisfactory explanation, which prevented the

defendants from leading evidence at the first instance.

Defendants cannot be heard to say that they were taken

by surprise with regard to relationship of plaintiffs when it

is their specific and categoric case that the plaintiffs are

not related to the defendants. No error can be found with

the reasoning assigned by the First Appellate Court

rejecting the application filed by the defendants in that

regard.

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19. The First Appellate Court has also found that

documents sought to be produced by the defendants were

apparently secured during pendency of the appeal and no

explanation is provided what, as to why they did not

secured the same at earlier point of time. For the aforesaid

reasons and analysis and also in view of the specific

finding by the Trial Court confirmed by the First Appellate

Court on the relationship of plaintiffs with that of the

father of the Balappa which is a question of fact this Court

under Section 100 of CPC does not find any justification to

interfere with.

20. As regards the contention of oral partition is

concerned the Courts have found except the revenue

entries purportedly made in the names of the defendants,

the defendants have not produced any evidence with

regard to the oral partition dated 06.06.2005. It is also

relevant to note that proviso to Section 6 of the Hindu

Succession Act, 2005 only save alienations including

partition effected in accordance with law prior to the cut-

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off date i.e., 20.12.2004. In that view of the matter

defendants ought to have adduced cogent and acceptable

evidence to sustain their contention of partition having

taken place on 06.06.2005. In the absence of which, it

cannot be accepted that there was a partition.

21. Contention with regard to the sale of the suit

properties by defendant No.7 in favour of defendant No.8

is concerned, defendant No.7 is the second son of

Venkatashamy (who is the fourth son of Balappa). Nothing

on record to show that the sale was for family necessities

as a kartha of family. In view of the law laid down by the

Apex Court in the case of VINEETA SHARMA VS

RAKESH SHARMA reported in AIR 2020 SUPREME

COURT 3717, AIRONLINE 2020 SC 676 the right of the

female heir relates back to the introduction of the Hindu

Succession Act. Therefore, alienation made excluding their

share would not be binding to the extent of their share.

22. The appellants have filed application in

I.A.No.1/2024 under Order 41 Rule 27 r/w 151 of CPC

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seeking to produce additional evidence in the nature of

copy of the genealogical tree, copy of the voter list of the

family of the defendants 1 to 7, 9 to 21 issued by the

Tahsildar.

23. Production of additional documents is governed

under the provisions of Order XLI Rule 27 of CPC, which

reads as under;

"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, established 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,