BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :23/04/2008
CORAM
THE HONOURABLE MR.JUSTICE S.PALANIVELU
S.A.(MD)No.1694 of 2003
and
C.M.P.(MD)No.15497 of 2003
and
M.P.(MD)No.1 of 2006
G.Subramanian ..1st Defendant/1st Respondent/Appellant
Vs.
1.Jahyalakshmi
2.Padmavathi,
3.Pattammal
4.Dayanidhi
5.Suseela
6.GR.Raj Naidu ..Plaintiffs,Defendants 2&3/
Appellants,Respondents 1&2/
Respondents
Prayer
Second Appeal filed under Section 100 of the Civil Procedure Code,
against the judgment and decree made in A.S.No.104/2002 on the file of the Court
of Addl.District Judge/Fast Track Court-1, Thanjavur dated 25.03.2003 in
reversing the judgment and decree made in O.S.No.105/2001 on the file of the
Court of District Munsif, Thiruvaiyaru dated 24.06.2002.
!For Appellant ... Mr.V.K.Vijayaraghavan
^For Respondents ... Mr.K.Kumaravel
:JUDGMENT
The Second Appeal is directed against the judgment and decree made in
A.S.No.104/2002 on the file of the Court of Addl.District Judge/Fast Track
Court-1, Thanjavur dated 25.03.2003 in reversing the judgment and decree made in
O.S.No.105/2001 on the file of the Court of District Munsif, Thiruvaiyaru dated
24.06.2002.
2. The suit has been filed for partition and separate possession of
respondents’ 1/6th share of each in the suit property.
3.The trial Court, namely, the District Munsif Court, Tiruvaiyaru,
dismissed the Suit in O.S.No.105 of 2001, while the First Appellate Court,
namely, the Additional District Judge/Fast Track Court-1, Thanjavur, entertained
the case of the these respondents and set aside the preliminary decree for
partition as prayed for.
4.The first defendant aggrieved by the said judgment, has carried the
matter before this Court in Second Appeal.
5.The allegations found in the plaint briefly are as follows:-
The suit property is called as Arayapuram Thattimal Padugai, which is
inam Punja lands. With regard to properties comprised in the said area,
proceedings were pending before the Hon’ble Supreme Court between the owners and
the cultivating tenants and the orders has been passed directing issuance of
patta in favour of the persons, who are enjoying the property. The plaintiffs’
father Govindasamy was also one of the person in enjoyment. He died intestate
leaving plaintiffs and defendant as his heirs. Hence, the plaintiffs each
entitled for 1/6th share in the suit property. The first defendant has been
denying to give due share to these plaintiffs in spite of their demand. The
plaintiffs issued suit notice to the defendant demanding partition. But no reply
was sent. Hence, the suit for partition.
6. The averments contained in the written statement of the first defendant
succinctly are as follows:-
It is an admitted fact that the father of both the parties by name,
Govindasamy, had been in possession and enjoyment of the property and the
proceedings were going on before the Hon’ble Supreme Court. But after the life
time of Govindasamy, these defendants are in absolute enjoyment of the property
by paying land revenue, etc., The said Govindasamy had executed a ‘Will’ on
30.03.1998 as regards the suit property in favour of these defendants. The suit
is not maintainable, since declaration has not been sought for. Hence, the suit
has to be dismissed.
7.The allegation contained in the reply statement filed by the plaintiffs
are as follows:-
It is incorrect to state that on 30.03.1998, the father of the parties
Govindasamy had executed a ‘Will’ in favour of the first defendant. He had no
right at all to bequeath the property as per the ‘Will’ and hence, the suit has
to be decreed as prayed for.
8. At the time of admission, the following substantial questions of law
have been formulated by this Court:-
“1.When the plaintiffs case that the Honourable Supreme court has directed
the State of Tmil Nadu to issue patta for the suit property to their father in
its judgment Ex.A-1, reported in 1999(2) L.W 617 – 1999(4) SCC 663 is incorrect,
whether the lower appellate court is right in holding that the plaintiffs are
entitled to a share in the suit property?
2. When the plaintiffs failed to prove that their father had titled to the
suit property by issuance of patta by the Government under T.N.Act 27/1963 or
under any other enactment, whether the plaintiffs can maintain a suit for
partition?”
9.Pending the hearing of appeal, the appellant filed an application in
M.P.(MD)No.1 of 2006, seeking to receive the ‘Will” dated 30.03.1998 as
additional document on his side. In the affidavit, the following contentions
are available:-
The sisters of the appellant are well placed in their life and they were
not desirous of taking any share in the suit property. However, suddenly they
filed the suit. They openly stated that even after the decree of lower Court,
they would not claim any right or interest in the property. Hence, he did not
file the ‘Will’ before the Court to support his contention. The ‘Will” is true,
valid and binding. Inspite of his due diligence and care, he could not file the
‘Will’ before the Courts below because of the conduct of the respondents. If
the petition was not allowed, he will be irreparably and seriously prejudiced.
10. In the counter affidavit for the application to receive the additional
document, it is alleged that it is not true to state that Govindasamy executed
the ‘Will’ dated 30.03.1998. There is no proper reason assigned in the affidavit
for non-production of the ‘Will’ before the Courts below. It is also false to
contend that these respondents have represented before the appellant that after
the appellate Court decree, they would not claim any right or interest in the
suit property. The reasons assigned in the affidavit do not fulfil the
requirements of the law. On the pleadings of the appellant in the written
statement before the Court below, the finding was rendered. Hence, the
additional document could not be received before this Court. Hence, the
petition has to be dismissed.
11.First of all, this Court has to decide whether the document sought to
be received as additional evidence, can be received as additional evidence in
the Second Appeal stage. No doubt, if the party is prevented from reasonable
cause and if the document could not be produced before the lower Courts in spite
of his exercise of due diligence before the lower courts, the party may be
justified in placing the request before the Appellate Court to receive the
additional evidence and if the party, who seeks to receive any document as
additional evidence before the Appellate Court does not satisfy the requirements
of the Provisions under Order 41 Rule 27, he has to be non-suited for the
relief prayed for. Order 41 Rules 27 would reads as follows:-
“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, establishes 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, the Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate
Court, the Court shall record the reason for its admission.”
12.In the first place, in the written statement, the appellant has pleaded
that there is a ‘Will’ in his favour executed by his father on 30.03.1998, with
respect to the suit property. The attention of the Courts below were drawn to
this pleading and sufficient findings have been rendered. Even though, the
appellant was not able to produce the document before the trial Court, there was
no obstacle for him to file the same before the lower Appellate Court. In the
affidavit, it is stated that after the decree passed by the lower appellate
Court, his sisters informed him that they would not claim any right over the
property. This is not the best reason for his failure to produce the document
before the Courts below. The affidavit should have contained the reason for the
inability of the appellants to produce the documents before the trial Court or
the first appellate Court. It cannot be stated that notwithstanding the
exercise of due diligence, the evidence could not be produced before the Courts
below. The ‘Will’ dated 30.03.1998 is an unregistered ‘Will’. The learned
counsel for the respondent Mr.K.Kumaravel, would assail the same by contending
that while the case was before the Courts below, the appellant could not find
out any individual to support his claim by deposing in favour of the ‘Will’ and
hence, he has made fervent attempt before this Court for receipt of additional
evidence in this case. The said contention is accepted. The reason found in
the affidavit for non-production of the document on the part of the appellant
before the lower Court is not at all convincing and satisfactory. Hence, the
petition has to suffer dismissal and the additional document could not be
received in this case.
13.Coming to the merits of the case, it is an admitted fact that the suit
property is Inam Punja lands and so many persons have been in possession and
enjoyment of the property either as cultivating tenant or in the capacity in
other category. It is also stated that the Hon’ble Supreme Court has directed
issuance of patta, to the persons in possession of the property. It is also
admitted that the deceased Govindasamy was in possession and enjoyment of the
property cultivating the same. Both the parties are siblings, who are none
other than the daughters and sons of the said Govindasamy. The trial Court has
rendered a finding that since the Government has not passed any notification,
the Civil Court cannot grant a decree for partition. The lower Appellate Court
has observed after hearing the contentions of the both parties that in the
absence of production of such notification, it is clear that Govindasamy was in
exclusive possession and enjoyment of the suit property till his date of death,
and after his death, the defendants 1 and 2 are entitled to the suit property as
legal heirs of the deceased Govindasamy. In the view of this Court, the above
said observation is quite appropriate. It is a simple logic that when the father
of the parties had been in possession and enjoyment of the suit property, after
his death, in the absence of claim of anybody else with respect to the right of
the property, including the Government, his heirs may be considered for
partition. There is nothing illegal in the decision of the lower appellate
Court. It has rightly passed the preliminary decree.
14.In the circumstances above mentioned, it has been stated that the
respondents are entitled for the partition as per their contention. The appeal
is devoid of merits which has to face dismissal.
15. In fine, the Second Appeal is dismissed. Consequently, the connected
miscellaneous petitions are also dismissed. No costs.
Mpk
To
1.The Addl.District Judge/
Fast Track Court-1,
Thanjavur.
2.The District Munsif,
Thiruvaiyaru