Karpagambal vs Alamelu Ammal and two others

Srinivasan, J.—The facts of the case disclose how a fraud would have been perpetrated but for the vigilant insistence of the learned

appellate Judge on the personal appearance of the plaintiff before the Court. The relevant facts are as follows: One Annammal, the admitted

original owner of the property executed a settlement deed in favour of her widowed daughter Vedavalli Ammal giving her a life estate with a

provision that after her lifetime the property should be taken by the grandsons of the settler through her son Lakshmana Mudaliar. Vedavalli

Ammal died in 1972. The appellant in this second appeal and the first respondent are the daughters of Lakshmana Mudaliar. The second

respondent was in possession of the property as a tenant of Vedavalli Ammal. He claims to have put up the superstructure. The third respondent is

his son. In 1974, the appellant and the first respondent claimed rent from the second respondent on the ground that their brother Annamalai alias

Sundararaj who was entitled to the vested remainder was not heard for more than ten years and presumed to be dead. Both of them issued notices

to the tenant in occupation claiming rent from him. The second respondent, who was the tenant in possession, resisted their claim by denying their

right. The appellant filed a suit in the Court of Small Causes in S.C.S.No. 4328 of 1975 for recovery of rent. It was filed both on behalf of herself

and her sister, the first respondent. There was a compromise between the parties and it was agreed that the rent should be deposited by the tenant

into court and the appellant should file a regular suit to establish her title to the property.

As per the compromise, the rent was deposited by the tenant into Court and the appellant herein filed O.S.No. 2010 of 1977 on the file of the

XIIth Assistant Judge, City Civil Court, Madras, for declaration of her title to the suit property a (sic) with her sister, the first respondent he (sic)

and for withdrawal of the rent from the Court deposit. The first respondent herein was the first defendant in that suit. It was alleged in the plaint in

that suit that the brother of the appellant by name Annamalai alias Sundararaj was not heard of since 1966 and, therefore, presumed to be dead

and the appellant and her sister the first respondent became entitled to the property. Even though the suit was contested by the second respondent

herein on the ground that he had seen Annamalai alias Sundararaj alive when he came to Madras, the Court did not accept his case and decreed

the suit as prayed for by the appellant herein. The second respondent filed an appeal which ended in dismissal.

After that decree, the first respondent herein sold her half share in the suit property to the third respondent under a document dated 9.6.1982.

The present suit was filed on 16.4.1984 by the son of the appellant as the power of attorney agent of Annamalai alias Sundararaj. It is the case of

the plaintiff that the brother of the appellant was alive and that he was the owner of the property and when he came to Madras, he executed a

registered power of attorney on 23.11.1982 authorising the son of the appellant to institute proceedings for declaration of title to the property. The

power of attorney is said to have been executed as the brother of the appellant was not in a position to visit Madras frequently and attend to the

litigation. On the strength of the power of attorney, the suit was filed for setting aside the decree in O.S.2010 of 1977, declaring that the sale deed

executed by the first respondent in favour of the third respondent is not valid and for recovering possession of 8 Schedule properties from the

second respondent besides injunction against the second respondent restraining him from interfering with the possession of A schedule property.

The plaint was signed only by the power of attorney agent. The plaint did not contain the address of the plaintiff viz., Annamalai alias Sundararaj.

The appellant and the first respondent remained exparte, and did not even file written statements setting out their version of the facts. The suit was

contested by defendants 3 and 4 who are respondents 2 and 3 herein.

The plaintiff Annamalai alias Sundararaj did not enter the witness box. The power of attorney agent, who is the son of the appellant herein, gave

evidence as P.W.1 and the two attestors to the power of attorney deposed as P.Ws.2 and 3. The learned trial Judge accepted the evidence of

P.Ws.2 and 3 and relying on the Power of attorney marked as Ex.A-3, held that the plaintiff was entitled to a decree as prayed for by him. The

trial court applied the presumption under S.107 of the Evidence Act and refused to invoke the presumption under S.108 of the Evidence Act. The

trial court also relied upon the absence of any death certificate evidencing the death of Annamalai alias Sundararaj.

Respondents 2 and 3 herein filed an appeal before the IV Additional Judge, City Civil Court, Madras, challenging the correctness of the

judgment and decree passed by the trial court. The appellate Judge insisted upon the appearance of the plaintiff before him as there was a dispute

with regard to his existence itself. When a specific direction was given by the Court to that effect, it was reported to the court that the plaintiff died

at Bombay on 3.2.1987. Thereafter, respondent and 2 and 3 herein summoned the records maintained by Mathunga Police Station as it was

alleged that the plaintiff Annamalai alias Sundararaj died in Napoo Garden within the jurisdiction of Mathunga Police Station. The documents sent

for from Mathunga Police Station, Bombay, were (1) Road Diary maintained by the Police Constable Gaekwad, (2) the inquest report, and (3) the

memorandum issued by the Coronery Court, Bombay. Respondents 2 and 3 filed C.M.P. No. 920 of 1987 before the lower Appellate Court for

marking those three documents as additional evidence in the appeal. As the documents were in Marathi, they were translated into English through

the Translator of the High Court. The appellant herein filed C.M.P.2636 of 1987 for marking the police Report received from Mathunga police

Station and also certain other documents as additional evidence. The appellant also filed C.M.P. No. 1383 of 1987 to record her and her sister,

the first respondent herein as the legal representatives of late Annamalai alias Sundararaj in the appeal before the lower appellate court. The appeal

as well as the miscellaneous petitions were disposed of by the learned IV Additional Judge, City Civil Court, Madras, by common Judgment dated

5.1.1988.

The learned appellate Judge found from the records summoned from Mathunga Police Station, Bombay, that an unclaimed dead body was

found lying at Napoo Garden on 3.2.1987 and the police constable by name Gaekwad conducted an inquest in the presence of two persons by

name Sadanand Shridar Bhule Rao and Sunil Shantaram Shirke. There were no details as to the identity of the body, age of the deceased or any

other particulars about the dead person. In the inquest report (Panchanama), dated 3.2.1987, it was mentioned that the dead body was lying on

the western-eastern direction and the colour of the hair of the head was black and the eyes were open to the extent of 1/4th and the deceased was

wearing half-shirt and a banian inside. The inquest report further read that there was no injury on the body and the witnesses came to know that the

body was lying for two days unclaimed and the death was due to consumption of excess liquor. The memo dated 10.2.1987 to the Coronary

Court, Bombay, read that enquiry was made to ascertain the heirs of the deceased, but none was found. The Police Diary of Mathunga Police

Station also gave those details. It was also seen that instructions were given to preserve the body for seven days at Coronery as no heirs were

found to exist. In the Road Diary of the Police Constable it was entered on 22.9.1987 that enquiry was conducted to trace out the relatives of the

deceased, but no relative was traced and the deceased seemed to have lived at Mathunga Market and his name was reported to be Sunder and on

enquiry it was found that no relative was found. It was also stated that the residence of the deceased was not known and it was not known where

he was taking his food. The learned Appellate Judge rejected the contention of the appellant herein that the body found by the Mathunga Police

was that of Annamalai alias Sundararaj. The Appellate Judge could not find anything in the police records to connect the dead body with the

plaintiff in the present suit. Apart from the circumstances relied on by the learned appellate Judge, there is one more circumstance which would put

the matter beyond doubt. It was claimed in the present suit that the plaintiff Annamalai alias Sundararaj was having so much business in Bombay,

that he could not stay in Madras or attend the Court proceedings in person and that was why he executed a power of attorney. If he was such, a

busy man having so much of work at Bombay so that he could not bother much about the property in Madras, he would not have died like an

orphan. Significantly, there is not even a whisper that there was any correspondence between the plaintiff and the power of attorney agent and if

really the plaintiff was in Bombay and the power of attorney agent was taking care of the litigation on his behalf, there would have been atleast

some exchange of letters. In the absence of any such letters and in the face of the facts referred to by the learned appellate Judge, there is no doubt

whatever that the body found in Napoo Garden by the Mathunga Police was not that of Annamalai alias Sundararaj, who is the plaintiff in the

present suit.

The learned appellate Judge rejected the application filed by the appellant herein for marking three other documents as additional evidence. One

of the documents sought to be marked was the death certificate issued by the Sub Inspector of Police, Mathunga Police Station, dated

15.11.1987. The certificate mentions that deceased Sundararaj Lakshmana Mudaliar, aged 58 was staying at Mathunga and was found dead on

3.2.1987 at Napoo Garden, Mathunga and the dead body was taken possession with Panchanama as unclaimed and was sent to the Coronary

Court for post-mortem. The learned appellate Judge has rightly held that the certificate was not admissible not only for the reason that the Sub

Inspector was not examined to speak in support but also for the fact that the certificate contained false particulars. If at the inquest held by the

Coronery Court it was found that the dead body was not identifiable, it is not known how the Sub Inspector of Mathunga Police Station could

have identified the body as that of Sundararaj Lakshmana Mudaliar, nine months after the death had taken place and the body had been disposed

of. The second document which was sought to be marked was a photograph of Sundaraj with another person. The learned Judge rejected it on the

ground that it would not prove the date of death of the said Sundararaj. The third document was an affidavit of the power of attorney agent

Natarajan, filed by him for obtaining the death certificate of the deceased. The affidavit will not in any way help the appellant and the learned

appellate Judge rightly refused to accept the same as additional evidence.

The learned Judge considered the evidence on record and after detailed discussion found that Annamalai alias Sundararaj was not alive on the

date of the suit. Apart from the circumstances set out earlier, he also relied on the fact that in the notice Ex.A-6 purported to be issued by

Annamalai alias Sundararaj prior to suit to the tenants, his address at Bombay was not given and it was simply stated that the was a person

ordinarily residing at Bombay but had then come to Madras. It is only in the power of attorney Ex.A-3, the Bombay address and the temporary

address at Madras, of Annamalai alias Sundararaj were given. The second respondent herein sent notices to both the addresses under Ex.B2 and

B4 and they were returned with the endorsement that there was no such person. The learned appellate Judge rightly drew an inference therefrom

that the addresses given in the Power of attorney were really false.

Reliance was placed on behalf of the appellant on Ex.A-1 which is a copy of a mortgage deed executed in 1966 by Sundararaj alias Annamalai

in favour of Ammaji Ammal alias Alamelu. The original thereof, which must have been in the custody of the first respondent herein not having been

produced, the learned appellate judge refused to place any reliance thereon. The learned Judge has given sound reasons for rejecting the evidence

of P.Ws.2 and 3. Ultimately, the learned Judge came to the conclusion that Annamalai alias Sundararaj who was named as plaintiff in the suit was

not alive on the date of suit and, therefore, the suit was not maintainable. As a consequence thereof the learned Judge dismissed the application

C.M.P. 1335 of 1987 to record the appellant and the first respondent herein as legal representatives of the deceased Annamalai alias Sundararaj.

In this second appeal, it is vehemently argued by learned counsel for the appellant that the learned Appellate Judge erred in law in not applying

the presumption under S.107 of the Evidence Act. Learned counsel submitted that in view of the deed of mortgage executed in 1966, a copy of

which is marked as Ex. A-1, there is a presumption that Annamalai alias Sundararaj was alive and that the burden of proving that he was dead is

on respondents 2 and 3. Learned counsel placed reliance on the following statement of law found in the judgment of Ratnam, J. in R. Gopala

Pathar v. M. Jayalakshmi Ammal:

...In such a situation, as per S.108 of the Evidence Act, a presumption could be raised that not having been heard of for a period of seven years,

by those who would naturally have heard of Govindaswami, if he had been alive, Govindaswami was dead. But S.108 of the Evidence Act is silent

about the precise point of time when such a person who had not been so heard for 7 years, could be presumed to be dead. In other words, S.108

of the Evidence Act merely enables the raising of a presumption with reference to the death of a person generally, but there is no such presumption

that he had died at any particular time during the period 7 years or at the end of the period of 7 years from the date from which he was not heard

of. In Taylor on Evidence (12th Ed. Para 200 at page 181) the legal position is summed up in the following passage;

But, although a person, who has not been heard of for seven years, is presumed to be dead, the law raises no presumption as to the time of his

death; and therefore, if any one has to establish the precise period during those seven years, at which such person died, he must do so by

evidence, and can neither rely, on the one hand upon the presumption of the continuance of life.

In Halsbury''s Laws of England, 4th Ed. Vol.17, para 116 at page 86, the rule as to the proof of life or death at a particular point of time is set out

as under:

He who asserts that a person was alive on a given date, or dead on that date, must prove the fact by evidence, since there is no presumption of

continuance of life, and generally, no presumption of death at a particular time.

It is thus manifestly clear that though a presumption regarding death could be generally drawn if a person had not been heard of for seven years by

those who would have ordinarily heard of him, had he been alive, yet, there is no presumption whatever regarding the precise date of death. The

presumption under S.108 of the Evidence Act could be raised to extend generally to the fact of death at the expiration of seven years and not to

the date of death at any particular period, for, as pointed out earlier, there is no presumption that death took place at the end of seven years or at

any particular time within that period of seven years. The precise date of death cannot be a matter of presumption on the language of S.108 of the

Evidence Act, but one of proof by evidence and undoubtedly, the onus of proving that death did take place at a particular point of time within the

period of seven years or even later lies on the person who seeks to establish a right based on that fact. Equally on the language of S.108 of the

Evidence Act, death cannot be presumed to have occurred on the date on which the suit was filed, though it may perhaps be presumed that the

person was not alive on the date of the institution of the suit. There cannot however, be a presumption that the person was dead on the date of the

suit. That this is the position in law is indeed well settled. The Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir (1926) 50 Mad 239.

AIR 1926 PC 9 observed thus:

Now, upon this question there is, their Lordships are satisfied, no difference between the taw of India as declared in the Evidence Act and the

Law of England,"" and searching for, an explanation of this very persistent heresy, their Lordships find it in the words in which the rule both in India

and in England is usually expressed. These words taken originally from In Re. Phene''s Trusts (1870) LR 5 Ch. App. 139 run as follows:

If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a

matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the

person who claims a right to the establishment of which that fact is essential.

Following these words, it is constantly assumed not perhaps unnaturally that where the period of disappearance exceeds seven years, death, which

may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This, of course, is not so.

The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four

periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking

of a person who had not been heard of for seven years, it described the period of disappearance as one of not less than seven years.

It is evident from the passage above extracted that the question of presumption could arise only when the question whether a person is alive or

dead is raised. Again in In Re. V. Seshi Ammal (1958) 2 Mad. LJ 53 (AIR 1958 Mad. 463)=71 LW 445 Subrahamanyam, J. had occasion to

refer to the presumption under S.108 of the Evidence Act and stated clearly that the presumption would extend only to the fact of death and not to

the time of death at any particular period. The exact time of death, according to the learned Judge, was not a matter of presumption, but of proof

by evidence by a person who claims a right for the establishment of which that fact is essential. To similar effect is the decision in Gnanamuthu

Udayar and Another Vs. Anthoni and Others, .

After an analysis of the provisions of Section 107 and 108 of the evidence Act, it has been laid down that the presumption under S.108 of the

Evidence Act would only be regarding the fact of the death at the time the question is raised and not at any particular anterior point of time. In

Narayana Pillai Vs. Velayuthan Pillai, Ramachandra Iyer, Chief Justice, had occasion to consider this question. After referring to the decisions of

the Privy Council in Lalchand Marwari v. Ramrup Gir (1920) 50 Mad. LJ 289, in Re. V. Seshi Ammal 71 L.W. 445: (1958)2 Mad. 53: AIR

1958 Mad. 463 and Gnanamuthu v. Anthoni AIR 1960 Mad. 430, the learned Judge pointed out that it is beyond doubt that it is always for the

party who pleads that a man died at a particular time to show the date on which the death took place and that it would make no difference whether

he date of death pleaded is within or beyond the period of seven years from the time the person was last heard of. In the course of the judgment,

reference has been made to the decision in Bal Naicken Vs. Achama Naicken, and an unreported judgment of Madhavan Nair, J. in Second

Appeals Nos.55 to 58 of 1922 and C.R.P. No. 79 of 1922 Deva Gangula Kanakamma v. Deva Gangula Narasamma (1924) 47 Mad. L.J. (SN)

23.

In the first of the decisions the rule that there was a presumption that a person was dead when he or she was not heard of for seven years and that

there was no presumption as to the particular date on which he or she died has been referred to. But, thereafter the following observations occur:

But these remarks apply only when the point of time at which the death has to be placed falls necessarily within the seven years. In our opinion in a

case where the point of time to which the death has to be referred, may be placed indifferently either during the seven years or after the lapse of the

seven years (it not: being necessary for the plaintiff to show that the person lived during the seven years), there is a presumption after the lapse of

the seven years in favour of the death and it is for the other side to displace the presumption and the party relying on the presumption is entitled to

succeed if no evidence is offered by the other side.

The decision of Madhavan Nair, J. held that at the end or seven years from the date of disappearance of a legatee, the presumption of death arose

and the onus(sic) would be on the party who challenges the will to prove that he died at some later date. Even in those cases, a presumption under

S.108 was raised and applied only when the question actually arose for decision before the court and these cases cannot, therefore, be pressed

into service in support of the proposition that there is a rigid and inflexible rule that a person died immediately after the lapse, of seven year from

the date of not having been heard of or his disappearance. Besides, the decisions in Bal Naicken Vs. Achama Naicken, and in Devagangula

Narasamma S.A. 55 of 1922 = 47 MLJ 23 S.N. had been decided prior to the decision of Privy Council in Lalchand Marwari v. Ramrup Gir

AIR 1926 PC 9: 50 Mad. L.J. 289. In Narayana Pillai Vs. Velayuthan Pillai, after referring to the decisions in Bal Naicken Vs. Achama Naicken,

and Devaganugula Kanakamma v. Devaganugula Narasamma 1924 47 MLJ (SN) 23, Ramchandra Iyer, Chief Justice, held at p.386 as follows:

S.108 lays down a presumption when the question as to a person''s existence is raised in issue before the court. If the question is raised before

court at a particular point of time, and more than seven years has elapsed by that time from the time when a man was last heard of, the

presumption will be that he had died before the date when the question was raised. That is not the same thing as saying that where such a question

is raised long after the seven years period is over there is a further presumption that he had died at any particular time during that period or at the

end of seven years from the date of disappearance.

I respectfully agree with the above reasoning. In Tadepalli Ram Rathnam Vs. Kantheti Varadarajulu and Others, , J., considered the scope of the

presumption under Ss.107 and 108 of the Indian Evidence Act and pointed out that it would be erroneous to seek to apply both Ss.107 and 108

to one and the same case as at the same time, a person cannot both be alive or dead. It was also further pointed out that the exact time of death is

not a matter of presumption, but one of evidence and the onus of proving that fact is not cast under S.108, but under the principles of burden of

proof. According to the learned Judge, that death took place at any particular time whether prior to seven years before the suit was laid or within

seven years prior to the said suit ties upon the person who claims a right to the establishment of which the exact date of death of the said person is

essential, that there is no presumption that death took place at the close of seven years or earliest on the date of the institution of the suit and that

there is no provision of law which warrants any such presumption. The matter is now put beyond any doubt by the decision of the Supreme Court

in Gurdit Singh and Others Vs. Munsha Singh and Others, . In that decision, the Supreme Court had to consider whether the suits had been

instituted in time within three years after the death of one Kishan Singh who had not been heard of for more than seven years since 15.8.1945. In

dealing with the scope of the presumption under S.108 of the Indian Evidence Act, the Supreme Court, after referring to Napeoan v. Deo Knight

(1837) 2 M & W 894; 7 LJ Ex.335 Lal Chand Marwari v. Rampur Gir AIR 1926 PC 9 Jiwan Singh Vs. Kuar Reoti Singh and Another,

Kottapalli Vcnkateswarlu Vs. Kotta-palli Bapayya and Others AIR 1931 582 (Lahore) and AIR 1934 298 (Oudh) pointed out at Page 646 that

under S.108 of the Evidence Act, the precise time of the death is not a matter of presumption, but of evidence and the onus of proving that the

death took place at any particular time within seven years lies upon the person who claims a right for the establishment of which the proof of the

fact is essential and that the plaintiff in that case had not only to prove that Krishnan Singh had not been heard of for a period of seven years, but

also to prove particularly the point of time within seven years when Krishnan Singh''s death had occurred and as they had failed to prove it, the suit

cannot be held to have been brought within three years of the accrual of the right to sue.

Learned counsel also made a reference to the following decisions, though he did not either bring the books or draw my attention to any

passage in those Judgments:

Lal Chand Marwari v. Mahant, Ramrup (A.I.R. 1926 P.C. 9);

Suryia Kumar Deo Chaudhuri v. Jayanarayan DEB ( AIR 1926 Cal 1857);

Narasingh Rao Ramakrishnayya v. Veerayya Rajanna (A.I.R. 1953 Hyd 196).;

Gnanamuthu Udayar and Another Vs. Anthoni and Others,

Mukunda Behera and Others Vs. Subarna Bewa and Another, and

Tadepalli Ram Rathnam Vs. Kantheti Varadarajulu and Others,

The principle decided in those cases is that there is no presumption as to the exact time of death and that it is a matter of evidence. It has been held

that the presumption under S.107 and S.108 of the Evidence Act is rebuttable. It is also laid down in one of the decisions that the presumption

embodied in S.108 of the Evidence Act is by way of proviso to S.107 of the Evidence Act.

In my view, these decisions do not help the appellant in the present case. As rightly pointed by the learned Appellate Judge in this case there is

already a decree in O.S. No. 2010 of 1977 which was affirmed by the appellate court and that decree was passed at the instance of the appellant

herein. In that suit, it was held that the presumption under S.108 of the Evidence Act was applicable and that Annamalai alias Sundararaj must be

taken to have been dead. The question in the present proceeding is whether the judgment and decree in the earlier proceedings should be set

aside. When the plaintiff has sought to set aside the judgment in the earlier proceedings, on the ground that he was alive not only at that time but

also continues to be alive even during the present proceedings, the burden is on him to prove that he is alive. This is a very simple fact to be proved

by the plaintiff and the question of applicability of Ss.107 and 108 of the Evidence Act does not arise in the present proceedings. There is a

specific assertion by the plaintiff that he is the brother of the appellant herein and that he is very much alive. Having come to court with that specific

case, the burden is on the plaintiff to prove the same. The learned appellate Judge has, after considering the entire evidence on record, found as a

fact that Annamalai alias Sundararaj was not alive on the date of the suit and the suit was not sustainable. I do not find any error in the appreciation

of evidence and the finding of fact cannot be challenged in second appeal.

Learned counsel for the appellant places reliance also on the power of Attorney marked as Ex.A-3 and submits that when the plaintiff had

executed a power of attorney in 1982 the court cannot insist upon his personal appearance and the learned appellate judge was clearly in error in

directing the plaintiff to appear before Court. This argument is, to say the least, without any substance. When the contesting defendants assert that

the plaintiff, whose name is found in the plaint, is not a person in existence, the easiest thing for the plaintiff is to appear before court and prove his

existence. When he has not chosen to do so by himself, it is open to the Court to direct him to appear in person. It is really surprising that an

argument of this kind has been advanced before this Court. It has only to be stated to be rejected.

Learned counsel submitted that the lower appellate court erred in disposing of the appeal without ordering the application C.M.P. No. 1383 of

1987 to record the appellant and her sister as the legal representatives of the deceased Annamalai alias Sundararaj. According to learned counsel,

the decree passed by the lower appellate court will be only against the dead person and, therefore, a nullity. I do not agree. Both the appellant and

her sister who is the first respondent herein were already on record as respondents 2 and 3 in the appeal before the lower appellate court. In

C.M.P. No. 1383 of 1987 they wanted only a formal order recording them as legal representatives of deceased Annamalai alias Sundararaj. Even

if the application had been ordered, they were the persons to contest the appeal on merit. In their presence, the appeal was heard and their counsel

was also heard. The matter was canvassed fully on merits and the learned appellate judge decided the matter after going through the entire

evidence. There is no error in his dismissing C.M.P.1383 of 1987, as the learned Judge came to the conclusion that Annamalai alias Sundararaj

was not alive even on the date of suit and the suit itself was not sustainable. There was, therefore, no question of recording the appellant and the

first respondent herein as the legal representatives of late Annamalai alias Sundararaj as if he died only during the pendency of the proceedings.

The last contention urged by learned counsel for the appellant is that the learned appellate Judge erred in not admitting the documents

produced by the appellant herein as additional evidence in the appeal. I have already discussed that matter while referring to the documents which

were sought to be made by the appellant herein. The reasons given by the learned appellate Judge for rejecting those documents are quite valid

and there is no fallacy therein.

It is clear from what has been stated above that the appellant herein has attempted to effect a fraud with the aid of her son as if her brother

Annamalai alias Sundararaj was alive and that he had given power of attorney in favour of her son. Had not the appellate Judge directed the

appearance of the plaintiff in person in court, the appellant would have successfully achieved her goal. Obviously, this procedure has been adopted

by the appellant in order to deprive respondents 2 and 3 of the benefits of the transactions which they had with the appellant and the first

respondent on the footing that they were the owners after the death of their brother Annamalai Alias Sundararaj . In the circumstances, there is no

justification whatever for admitting the second appeal. The second appeal is dismissed in limine.