IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 41 of 2000(E)
1. CHOTTY
... Petitioner
Vs
1. KARTHIAYANI
... Respondent
For Petitioner :SRI.P.P.JACOB
For Respondent :SRI.TPM.IBRAHIM KHAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :14/10/2009
O R D E R
P. BHAVADASAN, J.
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S.A. No. 41 of 2000
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Dated this the 14th day of October, 2009.
JUDGMENT
The defendant in O.S. 591 of 1991 before the
Munsiff’s court Muvattupuzha is the appellant. The parties and
facts are hereinafter referred to as they were available before
the trial court.
2. The facts are not in dispute. The suit was one
for partition. The property belong to the father of the plaintiff
and defendant, namely, Cherian. Cherian died on 9.9.1991.
According to the plaintiff, he died intestate. Parties are
governed by the Hindu Succession Act. The plaintiff and the
defendant are the only legal heirs left behind by late Cherian
and the plaintiff is entitled to one half of the suit property.
3. The defendant put up a contention that late
Cherian had executed a will and as per the will the entire
property devolved on him.
S.A. 41/2000. 2
4. Before the court below, the parties adduced
evidence. The questions that arose for consideration was whether
the will set up by the defendant had been proved. He was unable
to produce the document, because according to him it was not with
him. He claims that he was unable to locate the will inspite of his
best efforts and he examined D.W.2 in order to prove the execution
of the will. The trial court refused to accept the contention put
forward by the defendant and decreed the suit passing a
preliminary decree for partition.
5. The defendant assailed the decree before the lower
appellate court in A.S.16 of 1994. Before the said court, he had
produced the will on which he placed reliance before the trial
court. He prayed that the question regarding the genuineness of
the will may be considered. The lower appellate court noticed that
the will had been produced belatedly, and refused to go into that
question and confirmed the decree passed by the trial court. It is
the said decree that is assailed in this second appeal.
S.A. 41/2000. 3
6. The substantial questions of law formulated in this
second appeal are as follows:
“(i) Is the first appellate court justified in disposing of
the first appeal without considering and pass orders on
the interlocutory application filed in A.S.16/94 to
accept additional evidence ?
(ii) Whether the question relates to substance,
procedure and evidence has been wrongly decided by
the lower court is permissible in law as is mentioned in
Order 41 R 27 ?
(iii) Whether the non-consideration of the additional
evidence by the lower appellate court would
substantially affect the right of the parties ?
(iv) Whether the court below bound to consider the
evidentiary value of the additional evidence produced
which is capable to alter the very basis of the
contentions raised in the suit touching the relevant
issue in the suit ?
(v) Whether the rejection of additional evidence by the
lower court is essentially an erroneous approach to the
relevant facts in issue and if so justifiable ?
(vi) Whether the lower appellate court justified in
S.A. 41/2000. 4
confirming the finding of the trial court “that the
deceased has not executed a Will in favour of the
defendant” when the original Will itself is produced
for consideration though belated with petition to accept
the same ?
(vii) Whether the court below bound to declare the
rights of the parties in case the additional document
will substantially affect the right of parties in order to
render justice ?”
7. The limited issue arises for consideration is whether
the court below was justified in declining to grant an opportunity
to the defendant to prove the Will produced by him at the
appellate stage. The appellant had filed the application under
Order 41 Rule 27 of the Code of Civil Procedure to receive the
Will located by him after considerable effort and consider that
document while disposing of the appeal.
8. It appears that there was no justification for the court
below to decline the prayer made by the defendant. Even assuming
that the court below was disinclined to remand the matter, there is
S.A. 41/2000. 5
nothing prevented the court below from directing the parties to
adduce evidence before the said court with regard to the Will. It is
not as if the defendant had set up the Will for the first time before
the appellate court. He had pointed out even before the trial court
that late Cherian had executed a Will. He was unable to locate the
same. May be that, after locating the Will he had to produced the
Will along with the Appeal Memorandum before the appellate
court itself. But the mere fact that he produced it later by itself is
not a ground to decline without considering the genuineness of the
will. It is felt that in the facts and circumstances of the case an
opportunity ought to have been given to the defendant to establish
his claim based on the Will.
In the result, this appeal is allowed, the judgment and
decree of the court below are set aside and the matter is remanded
to the trial court for fresh consideration in the light of what has
been stated above. The parties shall appear before the court below
on 12.11.2009. The court below will make every endeavour to
S.A. 41/2000. 6
dispose of the suit as expeditiously as possible, at any rate within
four months from the date of appearance of the parties. Office will
transmit the records to the court below forthwith.
P. BHAVADASAN,
JUDGE
sb.
S.A. 41/2000. 7
P. BHAVADASAN, J.
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S.A. No. 41 of 2000
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JUDGMENT
14.10.2009