Madras High Court
Kalarani vs Kathirvel ... 1St on 22 October, 2024
Author: M.Sundar
Bench: M.Sundar
2024:MHC:3603
S.A.No.431 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 13 / 08 / 2024
JUDGMENT PRONOUNCED ON : 22 / 10 / 2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A.NO.431 OF 2021
Kalarani ... Appellant / 1st Respondent /
Plaintiff
Versus
1.Kathirvel ... 1st Respondent / Appellant /
2nd Defendant
2.Krishnan ... 2nd Respondent/ 2nd Respondent /
1st Defendant
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside Judgment and Decree dated October
6, 2020 made by the Principal District Court, Namakkal in A.S.No.80 of
2019 partly allowing the Judgment and Decree dated December 11, 2017
made in O.S.No.111 of 2012 by the learned Subordinate Judge, Namakkal.
For Appellant : Mr.S.Saravana Kumar
For Respondents : Served – No appearance
JUDGMENT
https://www.mhc.tn.gov.in/judis
This Second Appeal is directed against the Judgment and
Decree dated October 6, 2020 made by the ‘Principal District Court,
Namakkal’ ['First Appellate Court' for short] in A.S.No.80 of 2019,
whereby the Judgment and Decree dated December 11, 2017 of the
Subordinate Court, Namakkal ['Trial Court' for short] made in O.S.No.111
of 2012 was partly modified. Dissatisfied with the First Appellate Court's
Judgment and Decree, the plaintiff has preferred this Second Appeal.
2.In the Original Suit, the appellant herein is the plaintiff, the
1st respondent herein is the 2nd defendant, and the 2nd respondent herein is
the 1st defendant. Hereinafter, for the sake of convenience, the parties will
be denoted as per their array in the Original Suit.
Plaintiff’s Case in Brief:
3.One Kali Gounder had two sons, Muthusamy and
Seerangan. Muthusamy had one son, namely the first defendant, and one
daughter, namely Kamali. The Suit Properties are ancestral and joint
family properties of Muthusamy (plaintiff’s grandfather). It consists of 19
items, out of which, majority were originally ancestral and joint family
properties allotted to the share of Muthusamy vide Registered Partition
Deed dated July 12, 1972 as ‘A’ Schedule properties; the rest were
https://www.mhc.tn.gov.in/judis
purchased by Muthusamy from and out of the income derived from the
allotted ancestral and joint family properties, and they were enjoyed by
him as ancestral and joint family properties. The said Kamali, who got
married before the year 1989, predeceased Muthusamy. Hence, the said
Kamali has no right in the Suit Properties which are ancestral and joint
family properties. The plaintiff is the daughter of the first defendant while
the second defendant is first defendant’s son. After the demise of
Muthusamy, the Suit Properties are enjoyed as joint family properties by
the plaintiff and the defendants, wherein the plaintiff is entitled 1/3 share.
When the plaintiff approached the defendants on May 25, 2012 for
partition, they refused for the same. Hence, the Suit for partition.
Defendants’ Case in Brief:
4.First defendant was set ex-parte before the Trial Court. No
Written Statement was filed on his side.
5.The second defendant filed Written Statement, wherein it is
averred that not all the items of the Suit Properties are ancestral and joint
family properties and that the plaintiff ought to prove that Kamali and first
defendant are the only children of Muthusamy. Further, he states that his
father’s sister, namely Muthammal predeceased his father before the year
1989. He denies that after the demise of grandfather - Muthusamy, the
https://www.mhc.tn.gov.in/judis
plaintiff and the defendants are jointly enjoying the Suit Properties and
accordingly, he asserts that the Court fee paid under Section 37 (2) of the
Tamil Nadu Court Fees and Suit Valuation Act, 1955 is incorrect.
5.1.According to the second defendant, certain properties
were purchased by Muthusamy as his self-acquired and separate
properties. On December 23, 2005, Muthusamy executed a registered
Settlement Deed in favour of second defendant, pertaining to his self-
acquired and separate properties as well as some of the properties allotted
to him in Schedule ‘A’ under the registered Partition Deed dated July 12,
1972. Upon getting married, the plaintiff has relinquished her right in the
ancestral and joint family properties. Further, whatsoever, the plaintiff has
no right to seek partition in the properties bequeathed by Muthusamy upon
the second defendant vide registered Settlement Deed dated December 23,
2005. Further, the Suit is bad for non-joinder of necessary parties.
Accordingly, he prayed to dismiss the Suit.
Trial Court:
6.On these pleadings, the Trial Court framed the following
issues:
“(i) Whether the plaintiff is entitled to 1/3 shares from the
https://www.mhc.tn.gov.in/judis
Suit Properties as prayed for?
(ii) To what other reliefs? ”
7.At trial, on the side of the plaintiff, the plaintiff was
examined as P.W.1 and Ex-A.1 was marked. On the side of the defendants,
second defendant was examined as D.W.1 and Ex-B.1 to Ex-B.10 were
marked.
8.After full trial, the Trial Court found that the Item Nos. 14
and 16 of Suit Properties are self-acquired properties of Muthusamy and
accordingly, the registered Settlement Deed dated December 23, 2005,
executed by Muthusamy in favour of second defendant, is valid in respect
of Item Nos. 14 and 16 and hence, the plaintiff has no right to seek
partition in Item Nos. 14 and 16. Further held that except for Item Nos. 14
and 16, the plaintiff is entitled to 1/3 share in all the other items as prayed
for. Accordingly, dismissed the Suit qua Item Nos. 14 and 16 and decreed
the Suit as prayed for qua other items.
First Appellate Court:
9.Aggrieved by the Judgment and Decree dated December
11, 2017 of the Trial Court, the second defendant preferred appeal before
the First Appellate Court under Section 96 of the Code of Civil Procedure,
https://www.mhc.tn.gov.in/judis
1908 ['C.P.C' for short]. During the pendency of the said appeal, the
second defendant, as appellant before the First Appellate Court, filed an
application under Order XLI Rule 27 of C.P.C praying to receive the
certified copy of the registered Sale Deed dated August 29, 1980 and to
permit him to lead additional oral evidence.
10.First Appellate Court heard the said Order XLI Rule 27
Application along with the main appeal. Then, vide its final Judgment
dated October 6, 2020, it partly allowed the said application and marked
the certified copy of the registered Sale Deed dated August 29, 1980 as Ex-
C.1 and denied the prayer for permission to give additional oral evidence
by observing that in view of Section 91 and 92 of the Indian Evidence Act,
1872, oral evidence is not necessary.
11.Considering Ex-C.1 - Sale Deed dated August 29, 1980,
the appeal was partly allowed vide the same Judgment by holding that the
Item No.19 of Suit Properties is also self-acquired property of Muthusamy
and hence, the registered Settlement Deed dated December 23, 2005
executed in favour of the second defendant is valid in respect of not only
Item Nos. 14 and 16 but also Item No. 19. Accordingly, it held that the
plaintiff is entitled to 1/3 share in all items of the Suit Properties except for
Item Nos.14,16 and 19. To that extent, it modified the Judgment and
https://www.mhc.tn.gov.in/judis
Decree of the Trial Court.
Substantial Question of Law:
12.Aggrieved with the Judgment and Decree dated October 6,
2020 of the First Appellate Court, the second defendant filed this Second
Appeal on April 4, 2021 and the same was admitted on July 5, 2021. This
Court deems fit to extract the Admission Board Order dated July 5, 2021
hereunder:
M.SUNDAR, J
Captioned second appeal arises out of a suit for partition and
separate possession. A plaint was presented on 30.05.2012 and this
plaint was taken on file as O.S.No.111 of 2012 on the file of the 'Subordinate
Judge's Court, Namakkal' [hereinafter 'trial Court' for the sake of
convenience and clarity]. There were 19 items of properties in all, in the
plaint. Out of 19 items, preliminary decree for partition was made with
exception of item Nos.14 & 16. Second defendant alone carried the matter
in appeal by way of a regular first appeal under Section 96 of 'The Code
of Civil Procedure, 1908' ['CPC' for brevity] vide A.S.No.80 of 2019 on the
file of the 'Principal District Judge's Court, Namakkal' [hereinafter 'First
Appellate Court' for the sake of convenience and clarity] which after full
contest partly allowed the appeal in and by judgment and decree dated
16.10.2020.
2.Reverting to the suit that was presented on 30.05.2012, it was
filed by one Kalarani (appellant before this second appeal Court) arraying
her father Krishnan as first defendant and brother Kathirvel as second
https://www.mhc.tn.gov.in/judis
defendant.
3.As already alluded to supra, second defendant alone
carried the matter in appeal and therefore, Mr.I.Abrar Md.
Abdullah, learned counsel for the appellant very fairly submits that
the plaintiff does not raise any issue with regard to item Nos.14 &
16 which were excluded by trial Court and that she is now
concerned only with Item No.19.
4.This takes us to what unfurled in the First Appellate Court. In
the First Appellate Court, second defendant filed an application in I.A.No.2
of 2020 under Order XLI Rule 27 of CPC with a prayer to bring additional
evidence i.e., sale deed dated 29.08.1980 in an attempt to demonstrate
that item No.19 is a self acquired property. The said IA was taken up
along with the main appeal which is in accordance with the procedure to
be followed as laid down by Hon'ble Supreme Court. First Appellate Court
after discussion has permitted the marking of sale deed dated
29.08.1980 as Ex.C1, but has disallowed any oral evidence being let in.
This has been done by placing reliance on Sections 91 & 92 of 'The Indian
Evidence Act, 1872' [hereinafter 'said Act' for the sake of convenience
and clarity].
5.Learned counsel for appellant submits that Section 92 of said
Act is not without exceptions and when a document is pressed into
service at First Appellate Court stage by way of additional evidence by
taking recourse under Order XLI Rule 27, it is only appropriate that the
adversary is given an opportunity qua contentious disputation.
6.The following substantial question of law arises:
'In a first appeal under Section 96 of CPC when
recourse is taken under Order XLI Rule 27, when a new
document is introduced, can the same be permitted to
https://www.mhc.tn.gov.in/judis
be marked as exhibit and decree of the trial Court be
disturbed on the strength of the same without oral
evidence and without giving opportunity to the
adversary, which is raising disputation qua the
document which has been pressed into service?'
7. Admit.
8.Though obvious, it is made clear that the above is substantial
question of law at the admission stage and therefore, is subject to rights
of respondents under Sub-Section (5) of Section 100 of CPC.
9.Notice to respondents returnable in six weeks i.e., 16.08.2021.
Private notice permitted. Private notice through all available electronic
modes of communications also permitted.
10. List on 16.08.2021. “
(emphasis supplied by this Court)
13.Despite service of notice on both the defendants, they have
not appeared before this Court to contest the Second Appeal.
14.Further, from the above Admission Board Order, it is clear
that the contentions of the appellant in this Second Appeal are only with
respect to Item No.19 of Suit Properties.
Arguments:
15.Mr.S.Saravana Kumar, learned Counsel appearing for the
plaintiff (appellant herein) would argue that the First Appellate Court erred
in marking the registered Sale Deed dated August 29, 1980, sought to be
https://www.mhc.tn.gov.in/judis
marked as additional evidence by the second defendant through an
application under Order XLI Rule 27 of C.P.C, as Ex-C.1, by not offering
an opportunity to the plaintiff to rebut the same. The First Appellate Court,
while allowing the Order XLI Rule 27 Application, ought to have
remanded the matter to the Trial Court, either under Order XLI Rule 23 or
Order XLI Rule 25 of C.P.C. The First Appellate Court failed to frame
necessary issue(s) to determine the character of the Suit Properties. The
First Appellate Court erred in relying on Ex-C.1, which is marked without
an opportunity to the plaintiff to rebut the same, to conclude that Item
No.19 is self-acquired property of Muthusamy. First Appellate Court erred
in holding that oral evidence can be excluded for Ex-C.1 as per Sections 91
and 92 of the Indian Evidence Act, 1872. First Appellate Court failed to
follow the procedure contemplated under Order XLI Rule 28 of C.P.C after
the allowing the Order XLI Rule 27 Application which causes much
prejudice to the plaintiff. Accordingly, he prayed to allow the Second
Appeal.
16.He would rely on the following Judgments of the Hon'ble
Supreme Court in support of his contentions:
(i) Akilesh Singh’s Case - [Akilesh Singh alias
Akhileshwar Singh -vs- Lal Babu Singh and others,
https://www.mhc.tn.gov.in/judis
reported in (2018) 4 SCC 659].
(ii) Parthasarathy’s Case - [Corporation of Madras and
another -vs- Parthasarathy and others, reported in
(2018) 9 SCC 445].
Discussion and Decision:
17.Heard the learned Counsel for the plaintiff (appellant
herein) and perused the materials available on record.
18.The Suit Properties consist of 19 items, out of which,
according to the plaintiff, majority were originally ancestral and joint
family properties allotted to the share of Muthusamy vide Registered
Partition Deed dated July 12, 1972 as ‘A’ Schedule properties; the rest
were purchased by Muthusamy from and out of the income derived from
the ancestral and joint family properties allotted to him, and enjoyed as
ancestral and joint family properties. According to the defendants, not all
the items of the Suit Properties are ancestral and joint family properties.
The Trial Court held that the registered Settlement Deed dated December
23, 2005, executed by common ancestor - Muthusamy in favour of second
defendant, is valid with respect to Item Nos.14 and 16, as Item Nos.14 and
16 are his self-acquired and separate properties; that the other items of Suit
Properties are ancestral and joint family properties in which the plaintiff
has right to partition. Accordingly, decreed the Suit as prayed for qua all
https://www.mhc.tn.gov.in/judis
the items of Suit Properties other than Item Nos. 14 and 16. Notably, the
plaintiff accepted the said decision of the Trial Court which is evident from
the fact that she neither preferred an appeal nor a cross objection, nor did
she raise an objection under Order XLI Rule 22 of C.P.C [See Ravinder
Kumar Sharma -vs- State of Assam, reported in (1999) 7 SCC 435].
Further, the plaintiff side has fairly agreed that their contentions in this
Second Appeal are limited to Item No.19 of Suit Properties (See Paragraph
No.14 supra). Thus, the findings in respect of Item Nos.14 and 16 have
attained finality and need not be dealt with in this appeal.
19.Thereafter, the second defendant filed an appeal under
Section 96 of C.P.C on July 25, 2018 before the First Appellate Court,
assailing the Judgment and Decree of the Trial Court. The same was taken
on file on December 2, 2019. Notices were served on the plaintiff and the
first defendant. Both of them appeared through Counsels. Pending the
appeal, the second defendant filed an application under Order XLI Rule 27
of CPC on March 16, 2020 before the First Appellate Court and the same
was taken on file as Interlocutory Application No.2 of 2020 on March 16,
2020. The plaintiff, as respondent 1 therein, filed counter on September 18,
2020. The said Interlocutory Application was heard along with the main
appeal by the First Appellate Court. The First Appellate Court, vide its
https://www.mhc.tn.gov.in/judis
final Judgment dated October 6, 2020, allowed the said Order XLI Rule 27
Application in part, marking the registered Sale Deed dated August 29,
1980 as Ex-C.1 while rejecting the prayer qua permission to lead
additional oral evidence and then, vide the same Judgment, by placing
reliance on Ex-C.1, disposed of the main appeal partly in favour of the
second defendant who was the appellant before it.
20.The course adopted by the First Appellate Court in
hearing the said Order XLI Rule 27 Application along with the main
appeal is, no doubt, the right procedure. In this regard, it is apposite to cite
Ibrahim Uddin’s Case [Union of India vs. Ibrahim Uddin and Another,
reported in (2012) 8 SCC 148], wherein the Hon'ble Supreme Court has
held as hereunder:
“52.Thus, from the above, it is crystal clear that an
application for taking additional evidence on record at an
appellate stage, even if filed during the pendency of the
appeal, is to be heard at the time of the final hearing of the
appeal at a stage when after appreciating the evidence on
record, the court reaches the conclusion that additional
evidence was required to be taken on record in order to
pronounce the judgment or for any other substantial cause. In
case, the application for taking additional evidence on record
has been considered and allowed prior to the hearing of the
appeal, the order being a product of total and complete non-
application of mind, as to whether such evidence is required
https://www.mhc.tn.gov.in/judis
to be taken on record to pronounce the judgment or not,
remains inconsequential/inexecutable and is liable to be
ignored.”
21.In this case, the First Appellate Court has dealt with the
Order XLI Rule 27 Application in Paragraph Nos.18 to 20 of its final
Judgment. It has observed therein that the registered Sale Deed dated
August 29, 1980 was not within knowledge of the second defendant and
that, though the plaintiff and first defendant, as respondents before it,
objected to allow the petition, the said Sale Deed is essential in order to
arrive at a just conclusion. Accordingly, it allowed the Order XLI Rule 27
Application and it itself marked the same as Ex-C.1 without any recourse
to Order XLI Rule 28 of C.P.C.
22.As stated supra, it is trite law that Order XLI Rule 27
Application should be heard along with the main appeal. While
appreciating the evidence on record, if the Appellate Court deems it
appropriate to dismiss the Application under Order XLI Rule 27, although
not obligatory, it is desirable that the dismissal Order is included in its final
judgment [See Selvaraj’s case cited infra]. But if the Appellate Court
thinks fit to allow the Order XLI Rule 27 Application, the Appellate Court
shall pass a separate Order allowing the application and then resort to the
https://www.mhc.tn.gov.in/judis
procedure under Order XLI Rule 28 of C.P.C. This procedure of passing
separate Order while allowing Order XLI Rule 27 Application, can be
waived under certain circumstances, such as (i) when the parties to the Suit
consent to mark the documents sought to be marked [See Selvaraj’s case
cited infra], (ii) when sufficient pleadings and/or evidence is already
available on record to appreciate the additional evidence sought to be
marked such that no oral or documentary evidence is further required, (iii)
when the document sought to be marked as additional evidence is of
unimpeachable character, such that in the facts and circumstances of the
case, it cannot be disputed by the other side at all.
23.In the Judgment of this Court dated April 28, 2015 passed
in Selvaraj’s case [Selvaraj -vs- Ravichandran and others - Second Appeal
(MD) No. 653 of 2014], the learned Single Judge, namely Hon’ble Justice
P.R.Shivakumar, by placing reliance on Ibrahim Uddin’s Case (supra) ;
K.R.Mohan Reddy’s Case [K.R.Mohan Reddy -vs- Network Inc., reported
in (2007) 14 SCC 257] ; and Jayamoorthy’s Case [Jayamoorthy and others
-vs- Palani and others, reported in (2013) 7 MLJ 471], has held as
hereunder:
“11.Of course, the learned lower Appellate Judge has
adopted the correct procedure in hearing the application with
https://www.mhc.tn.gov.in/judis
the Appeal. But it shall not be desirable to incorporate the
order allowing such an application in the judgment itself.
There cannot be any quarrel over the proposition that, if the
Court comes to the conclusion that an application under
Order 41 Rule 27 C.P.C deserves to be dismissed, the same
can be incorporated in the judgment and the judgment in the
appeal on merits may be pronounced. When the Court comes
to the conclusion that such an application is to be allowed,
the normal procedure is to pass a separate order, follow the
procedure for recording additional evidence and thereafter
decide the appeal after giving an opportunity to the parties to
advance arguments based on the evidence already available
and the additional evidence recorded in the appeal. This
procedure can be dispensed with under only one
circumstance, that is when the parties consent for not only
allowing the application but also for marking those
documents, without there being any necessity to examine any
witness in proof or disproof of such document. In such cases
alone, the additional documents can be marked as additional
evidence and the Appellate Court can proceed with the
pronouncement of the judgment incorporating the order
allowing the application under Order 41 Rule 27 C.P.C and
also the factum of marking those documents by consent and of
hearing the arguments advanced on both sides on the basis of
the additional documents also.”
23.1.While this Court concurs with the other views of the
learned Single Judge, this Court is of the opinion that parties’ consent
cannot be the sole exception to Order XLI Rule 28 of C.P.C. As stated
supra, this Court is of the considered view that there can also be other
https://www.mhc.tn.gov.in/judis
exceptions to Order XLI Rule 28, depending upon the specific facts and
circumstances of the cases.
24.In the instant case, there is no serious dispute between the
parties that Item Nos.1 to 12 are ancestral and joint family properties
allotted to Muthusamy under Ex-A.1 - Registered Partition Deed.
According to the plaintiff, the Item Nos.14, 15 and 16 of Suit Properties
are also joint family properties purchased by Muthusamy from and out of
the income derived from the other ancestral and joint family properties.
According to the second defendant, the properties covered under Ex-B.1 -
registered Settlement Deed, executed in his favour by Muthusamy, are all
separate and self-acquired properties of Muthusamy. The Trial Court in
Paragraph No. 14 of its Judgment, observed that though the registered Sale
Deed dated August 28, 1980, was referenced in Ex-B.1, the defendants
failed to establish which items of the Suit Properties are covered under the
said Sale Deed. Consequently, the Trial Court determined that, except for
Item Nos. 14 and 16, the plaintiff is entitled to 1/3 share in all other items
of the Suit Properties. Relevant extract of the Trial Court’s Judgment is
hereunder:
“14.nkYk; gp.rh.M.y; Kj;Jrhkp ft[z;lh;
nkYk; 29.8.1980 njjpapy; mde;juhkd;
https://www.mhc.tn.gov.in/judis
brl;oahh; tifauhtplkpUe;J fpiuak; Vw;gl;l
gj;jpuk; rhh;gjpthsh; mYtyfj;jpy; gjpt[
bra;ag;gl;Ls;sJ vd;W Twg;gl;Ls;snj jtpu
nkw;go mde;juhkd; brl;oahh;
tifauhtplkpUe;J ve;j rh;nt vz;zpy;
vt;tst[ tp!;jPuzk; cs;s brhj;Jf;fs;
fpiuak; bgwg;gl;lJ vd;gij gpujpthjpfs;
jug;gpy; epUgzk; bra;a jtwpa[s;sdh;.
,e;epiyapy; mde;juhkd; brl;oahh;
tifauhtplkpUe;J Kj;Jrhkp ft[z;lh;
fpiuak; bgw;w brhj;Jf;fs; ve;j mapl;lr;
brhj;Jf;fs; vd;gJ gpuhpthjpfs; jug;gpy;
epUgzk; bra;ag;gltpy;iy. ,e;jr;R{H;epiyapy;
jhthtpy; Fwpg;gpl;Ls;s 14 kw;Wk; 16 mapl;lr;
brhj;Jf;fs; eP';fyhf ,ju brhj;Jf;fspy; thjp
jd; jhthtpy; nfhhpago 1/3 g';F ghfk; bgw
mUfija[ilath; vd;nw jPh;khdpj;J nkw;fz;l
1tJ vGtpdhtpw;F ,e;ePjpkd;wk; jPh;t[
fhz;fpwJ.”
25.Be that as it may, as stated supra, the said Sale Deed dated
August 29, 1980 was subsequently produced through an Order XLI Rule
27 Application before the First Appellate Court. Perusal of the said Sale
Deed / additional evidence would reveal that, Item No. 19 of Suit
Properties, which remains the core issue in this matter, was purchased
under it by Muthusamy for a sale consideration of Rs. 4,600/- on August
https://www.mhc.tn.gov.in/judis
29, 1980, that is after the execution of Ex-A.1 - Registered Partition Deed.
Contentions in this matter, revolve around the question, whether
Muthusamy purchased the property covered under the said Sale Deed i.e.,
Item No. 19, from and out of the income derived from ancestral and joint
family properties allotted to him in Schedule ‘A’ under Ex-A.1. If
answered in the affirmative, Item No.19 would gain ancestral character and
the plaintiff would gain right to partition over it. If not, Item No. 19 would
be self-acquired property of Muthusamy and consequently, Ex-B.1 -
registered Settlement Deed executed by Muthusamy in favour of the
second defendant would be valid in respect of Item No.19. To decide on
the question, the said Sale Deed / additional document is essential and
hence, the First Appellate Court is right in concluding so, but it has failed
to follow the right procedure thereafter.
26.Whenever an application under Order XLI Rule 27 is
allowed, recourse to Order XLI Rule 28 is a must. The First Appellate
Court cannot by itself mark the additional evidence. The First Appellate
Court ought to have made recourse to Order XLI Rule 28 and ought to
have marked the said Sale Deed / additional evidence through the second
defendant or person claiming through second defendant [See Selvaraj’s
case (cited supra)]. If not, the First Appellate Court, after allowing the
https://www.mhc.tn.gov.in/judis
Order XLI Rule 27 Application, ought to have remanded either the entire
matter to the Trial Court under Order XLI Rule 23 of CPC, or the matter
qua the additional evidence to the Trial Court while retaining the main
appeal for the purpose of recording evidence under Order XLI Rule 25 of
C.P.C. Since the First Appellate Court failed to make recourse to Order
XLI Rule 28, the other side i.e., the plaintiff lost an opportunity to rebut
the contentions of the defendants that are based on the additional
document. Consequently, the plaintiff’s valuable right to property which is
a constitutional right under Article 300A of the Constitution of India, was
jeopardized / exposed to risk. For ready reference, Order XLI Rule 28 is
extracted hereunder:
“28.Mode of taking additional evidence - Wherever
additional evidence is allowed to be produced, the Appellate
Court may either take such evidence, or direct the Court from
whose decree the appeal is preferred, or any other
subordinate court, to take such evidence and to send it when
taken to the Appellate Court.”
27.The First Appellate Court would rely on Sections 91 and
92 of the Indian Evidence Act, 1872 to substantiate its decision. Sections
91 and 92 are not applicable to the instant case as, in this case, as stated
https://www.mhc.tn.gov.in/judis
supra, the primary concern is whether the Item No.19 was purchased
through income derived from ancestral and joint family properties or not.
Leading oral / documentary evidence to determine the said question would
not be a bar under Section 91 and 92 of the Indian Evidence Act, 1872.
28.In a nut shell, this Court is of the considered view that the
procedure adopted by the First Appellate Court in partly allowing the
Order XLI Rule 27 Application vide its final Judgment, thereby denying
opportunity to the plaintiff to rebut the additional evidence sought to be
marked is an erroneous approach causing prejudice to the parties and
against the principles of natural justice and therefore, not sustainable in
law.
29. The Substantial Question of Law is answered accordingly
in favour of the plaintiff (appellant herein).
Conclusion:
30. Resultantly, the Second Appeal is allowed in the
following terms:
(i) The Judgment and Decree dated October 6,
2020 of the First Appellate Court is hereby
set aside;
(ii) The matter (including I.A.No.2 of 2020 in
https://www.mhc.tn.gov.in/judis
A.S.No.80 of 2019 on the file of the First
Appellate Court) is remitted to the First
Appellate Court for fresh adjudication duly
on merits qua Item No.19 of the Suit
Properties. Needless to mention, the
observations made by this Court are only
for the purpose of disposing of this Second
Appeal. The First Appellate Court shall
consider the matter qua Item No.19 afresh
duly on merits uninfluenced by the
observation made by this Court on the
merits of the case;
(iii) On receipt of a copy of this judgment, the
First Appellate Court shall issue notice to
both the parties, fix the hearing date and
pass judgment as stated supra in para
30(ii);
(iv) If the application under Order XLI Rule
allowed, the First Appellate Court shall
make recourse to Order XLI Rule 28 of
C.P.C subject to the exceptions as stated
supra;
https://www.mhc.tn.gov.in/judis
(v) The plaintiff (appellant herein) is entitled
for refund of Court Fee as per rules;
(vi) No Costs.
(vii) Registry is directed to consign the
Records to the First Appellate Court within
15 days from today;
(viii) Registry is directed to send a copy of this
Judgment in an expeditious manner, so as
to enable the First Appellate Court to
dispose the matter as early as possible.
22 / 10 / 2024
Index : Yes
Internet : Yes
Neutral Citation : Yes
Speaking Order
TK
To
1.The Principal District Judge
Principal District Court
Namakkal.
2.The Subordinate Judge
Subordinate Court
Namakkal.
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.431 OF 2021
22 / 10 / 2024
https://www.mhc.tn.gov.in/judis
