Gnanasundari (died) and Others vs Amirthalingam Pillai and Another

G. Rajasuria, J.—This Second appeal is focussed by the deceased plaintiff-Gnanasundari animadverting upon the judgment and decree

dated 14.11.1997 passed by the Principal District Judge, Chingleput, in A.S. No. 80 of 1997, reversing the judgment and decree dated 3.4.1997

passed by the Sub Court, Tiruvallur, in O.S. No. 53 of 1990, which was one for partition. The parties, for the sake of convenience, are referred to

hereunder according to their litigative status and ranking before the trial Court. During the pendency of second appeal, the plaintiff died,

whereupon, her legal representatives were brought on record.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:

(i) The deceased plaintiff-Gnanasundari filed the suit for partition claiming 2/3rd share in the suit property described in the schedule of the plaint on

the main ground that the suit property was in the hands of D2, her husband, as the ancestral property. For the couple D1 and the plaintiff, two

children were born anterior to the commencement of the Hindu Succession Act, which came into vogue with effect from 17.6.1956, and they died

after the commencement of the Hindu succession Act. Whereupon Gnanasundari-the plaintiff being the mother of the deceased children was

entitled to 2/3rd share in the suit property and her husband D2 was entitled to 1/3rd share.

(ii) It appears, D1, on the ground that he purchased the suit property from D2(the husband of the deceased plaintiff), proceeded to take legal

action for recovery of the suit property (as of now it has been clarified that even delivery of the property was get effected by him). As such, the

plaintiff would claim her 2/3rd share in the suit property.

(iii) D2 remained ex-parte. D1 would file the written statement resisting the suit on various grounds, the gist and kernel of them would run thus:

(a) At the instigation of D2, the plaintiff filed the suit purely for the purpose of keeping the litigation alive and to give trouble to Dl, who is none but

the plaintiff''s own brother.

(b) In connection with the mortgage created by D2 in favour of D1 in respect of the suit property, D2 sold the suit property vide sale deed Exhibit

B-7 dated 2.6.1974 and subsequently D2 became the tenant under D1 and thereafter, steps were taken to evict D2 and a suit in O.S. No. 233 of

1981 on the file of District Munsif Court, Ponnery was also filed.

(c) In the meantime, Rent Control Act came into vogue, whereupon rent control proceedings were taken and ultimately possession was taken by

D1.

(d) The allegation in the plaint that D2 gave birth to two male children and that they died after the advent of the Hindu Succession Act are all false.

Accordingly, Dl would pray for the dismissal of the suit.

(iv) Whereupon issues were framed. Up went the trial, during which, the plaintiff examined herself as P.W. 1 along with P.W. 2 and marked

Exhibits A1 and A2. The first defendant examined himself as D.W. 1 along with D.W. 2 and marked Exhibits B1 to B7.

(v) Ultimately, the trial Court decreed the suit ordering partition. As against the said judgment and decree of the trial Court, the appeal was filed by

D1, whereupon, the first appellate Court reversed the findings of the trial Court and set aside the judgment and decree of the trial Court and

dismissed the original suit.

Challenging and impugning the judgment and decree of the first appellate Court, this second appeal has been filed by the plaintiff on various

grounds and also suggesting the following substantial questions of law:

Whether the lower appellate Court''s judgment is not vitiated in not considering the pleading and the evidence of P.W. 1?

Whether the plaintiff could be said to be estopped on the basis of relationship and landlord and tenancy between the first defendant and the 2nd

defendant?

Whether without very pleading of ouster the first defendant could claim adverse possession as against a co-sharer?

Along with the second appeal, C.M.P. No. 13005 of 1999 has been filed under Order 41 Rule 27 of C.P.C. seeking permission to file the

following documents as additional evidence.

(i) The Death Certificate of Loganathan issued by the Corporation of Chennai, dated 31.3.1998;

(ii) The Death Certificate of Shanmugham issued by the Minjur Panchayat Union, dated 19.3.1999.

The above C.M.P. was resisted by D1.

Heard both.

The learned counsel for the plaintiff would pyramid his arguments which could succinctly and precisely be set out thus:

(i) After the dismissal of the first appeal and before the filing of the second appeal, the aforesaid additional documents, namely, the death

certificates of the two male children were obtained and filed and the plaintiff being a lady could not obtain those documents and file them earlier

and inasmuch as they are public documents, the same may be allowed to be marked by way of additional evidence.

(ii) If the plaintiff could prove that her two children, who were proved to have been born on 10.5.1956 and 22.8.1953 as per Exhibit A2 and

Exhibit Al, respectively, died after 17.6.1956, so to say, after the advent of the Hindu Succession Act, then the plaintiff would be entitled to her

share.

(iii) The first appellate Court stressed upon the fact that no such evidence was adduced precisely to prove the dates of births of those two male

children.

(iv) The markings of these two documents as additional evidence would be very much necessary for the adjudication of this case and once these

two documents are taken into consideration as evidence, that would tilt the circumstances in favour of the plaintiff, but, in the absence of these

documents, the plaintiff would be deprived of her right.

Whereas, in a bid to torpedo and pulverize the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for D1 would

advance his arguments, the warp and woof of the same would run thus:

(i) The conduct of the plaintiff should be taken note of. The first appellate Court threadbare discussed the evidence.

(ii) D2 deliberately remained ex-parte, because, he who instigated his wife-the plaintiff, with whom he was living all along during the previous

proceedings, to file the present suit, so as to deprive D1 of his right over the suit property.

(iii) The first appellate Court correctly pointed out that no steps were taken by the plaintiff herein for taking redelivery of the property which was

delivered to D1 as per the execution proceedings in E.P. 79 of 1990 in R.C.O.P. No. 29 of 1988. In such a case, if any indulgence is shown

towards the plaintiff, then that would keep the litigation alive perpetually.

(iv) Order 41 Rule 27 of C.P.C. and the decisions emerged there under would mandate and prohibit that during the second appellate stage,

additional evidence cannot be entertained as a matter of course. There should be clear evidence to exemplify and indicate that despite due

diligence, the additional evidence sought to be adduced could not be secured.

(v) Here the plaintiff herself, pulling no punches, would submit that those documents are all public documents. In such a case, there is no reason

much less valid reason found set out in the affidavit accompanying the petition as to what prevented the plaintiff from obtaining those documents

much earlier and file them in Court.

(vi) The second document dated 19.3.1999-the death certificate of Shanmugham would reveal that the death of Shanmugham was got registered

only during the year 1999, so to say, pending litigation and wherefore no importance can be attached to it.

(vii) It is precisely the case of D1 that no male children was born to the couple, namely, the plaintiff and D2, and wherefore, the question of the

children having died after the advent of the Hindu Succession Act does not arise.

(viii) The evidence of D.W. 2 would torpedo the claim of P.W. 1-the plaintiff. There are self-contradictions in the depositions of P.W. 1-the

plaintiff herself. In such a case absolutely there is no merit in entertaining the additional evidence at all.

(ix) The second appeal is a frivolous one and no substantial question of law is involved in this case.

My learned predecessor formulated the following substantial questions of law:

Whether the lower appellate Court''s judgment is not vitiated in not considering the pleading and the evidence of P.W. 1?

Whether without every pleading of ouster the first defendant could claim adverse possession as against a co-sharer?

Whether the C.M.P. No. 13005 of 1999 under Order 41 Rule 27 of C.P.C. has to be allowed in the facts and circumstances of this case.

At the outset itself, I would like to fumigate my mind with the following decision cited by the learned counsel for D1

Basayya I. Mathad Vs. Rudrayya S. Mathad and Others,

I would also like to cite the following decision of the Honourable Apex Court:

Union of India (UOI) Vs. Ibrahim Uddin and Another, an excerpt from it would run thus:

State of consideration

An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the

documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence

does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at

an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to

pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate Court is able to pronounce judgment on

the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on

examining the evidence as it stands the Court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court (vide

Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others,

No doubt, a mere running of the eye over those decisions would reveal that additional evidence if to be taken, then the appeal itself has to be

taken and heard and for reasons to be recorded only, additional evidence could be entertained. However that it does not mean that whenever

additional evidence is entertained, the Court should refrain from giving opportunity to the respondent in the appeal to adduce rebuttal evidence. It

all depends upon facts and circumstances involved in a case.

The Honourable Apex Court would mandate that without hearing the appeal, if M.Ps or interlocutory applications under Order 41 Rule 27

C.P.C. are entertained, de hors the hearing on merits the appeal, then it would lead to non-appreciation of facts and available evidence already on

record and non-application of mind also on the relevant issues.

With that in mind alone, the Honourable Apex Court had occasion to repeatedly highlight that the applications under Order 41 Rule 27 should

be heard along with the appeal.

It is obvious and axiomatic that as a matter of course additional evidence should not be entertained.

Here the singularly singular circumstance should not be lost sight of. The deceased plaintiff was an aged lady and it is an undisputed fact that

the whereabouts of D2-Manickam Pillai-the husband of plaintiff are not known. It is nobody''s case that Manickam Pillai is very much available to

the knowledge of any one in a particular address.

Out of the two additional documents, the first document would reveal that the death of the child Loganathan was got registered on 20.8.1956

itself and as per that the child died on 3.8.1956. However, the extract was obtained only after the first appeal was disposed of. There is nothing to

indicate that the said lady i.e. the plaintiff could have deliberately refrained from obtaining the said document even though it was very much ex facie

in her favour.

At this juncture, I recollect and call up Section 17(2) of the Tamil Nadu Registration of Births and Deaths Act, 1969, which is extracted

hereunder for ready reference:

Chapter-IV

Maintenance of Records and Statistics

16.

Search of births and deaths register- (1) Subject to any rules made in this behalf by the State Government, including rules relating to the

payment of fees and postal charges, any person may-

...

...

(2) All extracts given under this Section shall be certified by the Registrar or any other officer authorised by the State Government to give such

extracts as provided in Section 76 of the Indian Evidence Act, 1872 (I of 1872) and shall be admissible in evidence for the purpose of proving the

birth or death to which the entry relates.

However, in respect of the second document is concerned, that would reveal that the child-Shanmugham died on 10.12.1958, but his death

was got registered only during the year 1999, so to say, after the disposal of the first appeal, and in such a case that document should be looked

askance at and unless independent evidence is available relating to the date of death of Shanmugam, the said document cannot ex facie be taken as

one revealing the actual date of death of Shanmugam.

Proving the actual dates of deaths of the two sons referred to in Exhibits A-2 and A-1 would certainly have pivotal effect in this case. Even

though in the affidavit accompanying the petition the petitioner has not gone to the extent of furnishing all details about the circumstances under

which she could not obtain the documents earlier, yet, in the facts and circumstances of this case, the argument as advanced on the side of the

deceased plaintiff for the delay could rightly be appreciated. Extending one more opportunity to adduce additional evidence in that regard is

absolutely necessary to put justice in an even keel in this case. I am also of the considered view that in the peculiar facts and circumstances of this

case, shutting some evidence from being adduced may not be in the interest of justice, in view of the maxims (i) Justitia non est neganda, non

differenda'' -Justice is not to be denied or delayed, (ii) Justitia nemini neganda est''-Justice is to be denied to no one. Hence, with this in view, I

would like to condone the delay in filing such documents subject to payment of cost of Rs. 5,000/- (Rupees five thousand) payable by the

petitioners to D1 and accordingly it is ordered. Accordingly, C.M.P. No. 13005 of 1999 is ordered.

The plaint proceeded on the footing that the two children, namely, Shanmugam and Loganathan were born on 22.8.1953 and 10.5.1956

respectively, and died subsequent to the advent of the Hindu Succession Act and the plaintiff happened to be the Class-I heir of her children,

whereby she got 2/3rd share in the suit property along with her husband, who was having 1/3rd share in the said property.

That is the only point canvassed by the plaintiff in the plaint.

However on D1''s side various points have been canvassed and the first appellate Court expressed its inability to decide the lis in the absence

of precise evidence highlighting the dates of deaths of those two children. As such, I am of the considered view that due opportunity has to be

given to the plaintiff to prove the said fact and rebuttal evidence can certainly be adduced by D1 in that regard.

In view of the fact that no evidence was adduced relating to the dates of deaths of those two children, the first appellate Court in paragraph

No. 21 went to the extent of observing that once the plaintiff was found to be not a co-sharer, then she could not claim to be a co-sharer and press

into service the point that possession by one co-owner, so to say D1, who stepped into the shoes of D2, would amount to possession by another

co-owner.

Regarding the fact that the plaintiff slept at the switch or slept at the wheel without raising her little finger as against the litigation initiated by D1,

by way of asserting her right, what I would like to point out is that merely because she happened to be the wife of D2, she cannot be non-suited by

mulcting her with all and whole knowledge about the details of the previous litigation.

The first appellate Court also considered that the principle of estoppel would not be applicable. Soon after the execution of the sale deed by

D2 in favour of Dl, earlier litigation erupted and that had been pending till the filing of the present suit.

Relating to the fact that when the plaintiff was living along with D2, delivery was taken by D1 by filing E.P. by way of executing the RCOP

proceedings, I would like to point out that in view of the maxim '' Ubi jus, ibi remedium '' - Where there is a right, there is a remedy, the Court is

enjoined to decide the legal rights of the plaintiff and if the plaintiff is found to be having a right, then that should be enforced unless there is any

evidence to show that such right of plaintiff got extinguished as per law.

Inasmuch as the first appellate Court felt that the plaintiff did not prove that she was a co-owner, it held that D1 acquired title by adverse

possession. The concept adverse possession proposes the right of the plaintiff and unless there is specific pleading and evidence concerning ouster

the question of holding D1 having acquired prescriptive title by adverse possession would not arise. As such, the finding of the first appellate Court

as of now has to be set aside and if all depends upon the additional evidence to be adduced on either side as envisaged supra.

Accordingly, the substantial questions of law are decided as under:

In view of the matter being remanded, the substantial question of law No. (i) is decided to the effect that the first appellate Court could not decide

on the main points raised by the plaintiff because proper evidence was not adduced by P.W. 1 -the plaintiff.

Substantial Question of Law No. (ii) is decided to the effect that the first appellate Court has not decided directly on the ouster plea. The first

appellate Court has decided that the plaintiff lost her right in view of adverse possession of D1, because the plaintiff did not adduce proper

evidence concerning the dates of deaths of her two children.

Hence, in view of my discussion, I would like to set aside the judgment and decree of the first appellate Court with the mandate that the first

appellate Court shall give due opportunity to both sides to adduce additional oral and documentary evidence only relating to the dates of deaths of

the two children, namely, Shanmugam and Loganathan and decide the lis, as per law, within a period of three months from the date of receipt of a

copy of this order and accordingly it is ordered.

In addition to the sum of Rs. 5,000/-(rupees five thousand) awarded as cost relating to the delay in filing the additional documents, I would like

to impose a cost of Rs. 5000/- (rupees five thousand) payable by the petitioners/appellants to Dl in this second appeal, in view of the fact that

because of the plaintiffs conduct alone the matter has to be remanded back to the first appellate Court. As such, the total sum of Rs. 10,000/-

(Rupees ten thousand) shall be payable by the appellants to D1 on or before 24.4.2013. Both the parties shall appear before the first appellate

Court on 26.4.2013. If there shall be any default in paying the costs, this judgment will not ensure to the benefit of the plaintiff and the second

appeal shall stand dismissed. The second appeal is disposed of accordingly.