Back
Judges : M.R.HARIHARAN NAIR
C.N.Vijayan - Appellant
Versus
C.T.Rajeswari - Respondent
Case No : SA No 23 OF 2000 (C)
Decided On : 01/21/2002
Advocates Appeared :
For the Petitioner: J. Om Prakash, Advocate. For the Respondent: V.N. Swaminathan, S. Dileep, Advocates.
Civil Procedure Code, 1908 – Order XLI, Rule 27 – Evidence Act 1872, S.58 – Evidence – Admission of – Presumption of – Held, Under sub-r. (2) of O. XLI R.27, whenever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission – Careful perusal of O. XLI R. 27 goes to show that the basic principle requisite for admission of additional evidence is the existence of one or the other of the conditions and not the stage at which the matter is pending. – It is true that normally fresh documents are not admitted in the Second Appeal, the reason being that it is not supposed to go into questions of fact for the first time. – However, there does not appear to be any inhibition in the second appellate court proceeding to admit a fresh document, provided, it is required for the pronouncement of proper judgment and in the interests of substantial justice. – It was found that under O.XLI, R. 27(1) the appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment; but also for any other substantial cause. – There would be cases where even though the court might find that it would be able to pronounce judgment on the state of records as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it might still consider that in the interests of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner – S. 58 of the Evidence Act, according to me, has to be read along with O. 7 R. 14, O. 7 R. 18, O. 13 Rr. 1 and 2 and similar other provisions – As far as properties of marumakkathayies of Travancore area are concerned, there are specific decisions which provide that a presumption does apply in favour of accrual of rights to Thavazhi. – Viewed from that perspective and considering the fact that the defendant was alive then, it is possible that the property actually obtained by ParvathyAmma in the partition of 1950 could be presumed to be the share obtained for and on behalf of her children as well. – Of course, it is possible to rebut the presumption. – It is more so in the present case where very vague statements appear in Ext. B9 as to the manner in which parties thereto got rights in 1090 ME. – Perusal of the said section 58 of the Evidence Act inclusive of the proviso shows that the general principle that admitted facts need not be proved is not absolute or unconditional. – It is hedged in by the limitations mentioned in the section itself. – Even where all those conditions exist, the court still has the discretion to require the facts admitted to be proved otherwise than by such admissions also. – Where questions of title are involved, it is not safe to dispose of the disputed questions merely based on admissions.
M.R. Hariharan Nair, J.
Can a plaintiff in a partition or title suit abstain from production of the documents under which he claims title on the plea that his title remains undisputed by the defendant? Should the court insist that notwithstanding the plea he should produce the relevant title deeds if at all he should get a decree? Can such additional evidence be admitted at the stage of Second Appeal? Is there a presumption that the property obtained by an Ezhava female of the erstwhile Travaacore area, was taken for and on behalf of her Tavazhi? These are some of the questions that arise for consideration in this case.
2. The grievance raised in this Second Appeal by the plaintiff in O.S.Ho.203/96 of the Sub Court, Cherthala, is that as against half share that he claimed over the schedule properties, he was allotted only 3/8 share based on the defence contention that the common predecessor (Parvathy Amma) got it as family property; the parties being governed by the Marumakkathayanm Law.
3. On the arguments advanced by the appellant, the points that arise for decision are:
(1) Whether Parvathy Amma common predcessor of the parties got the properties as Tharwad property?
(2) What exactly is the share due to the plaintiff in view of the statutory partition that came into effect with the enactment of the Kerala Joint Hindu Family (Abolition) Act, 1975.
4. Point No. 1:- At the time when this appeal was admitted, the question of law on which the appeal was admitted was not made clear. Rule 2 of Order 42 of the Code of Civil Procedure provides that at the time of making an order under Rule II of Order 41 for admitting of an appeal, the court should formulate the substantial question of law as required by Sec. 100 of the CPC and in doing so, the court might direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the court given in accordance with the provisions of Sec. 100.
5. Sec.100 aforementioned provides that except when otherwise provided, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. It is further provided under sub-rule (3) of the section that in an appeal under this section the memorandum of appeal shall precisely state the substantial question of law involved in the appeal, 0nder sub-rule (4), where the High Court is satisfied that a substantial question of law is involved in any case, it should formulate that question. Sub-rule (5) is to the effect that the appeal should be heard on the question so formulated and the respondent should, at the hearing of the appeal, be allowed to argue that the case does not involve such question. There is a proviso to Sec.l00 which provides that nothing in the aforesaid provisions shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal, on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question, in view of the above proviso and also in the absence of any argument from the respondent under Sec .100(5) of the CPC that the case does not involve any such question, I consider it fit to raise the substantial question in this case viz., "whether the property obtained by the common predecessor Parvathy Amma who belonged to the Ezhava community of the erstwhile Travancore should take the property gifted to her with incidence of Thavazhi?" The parties were heard on this aspect.
6. During hearing it was revealed that the basic document which is the title deed under which Parvathy Amma got rights over the property was itself not produced in the case either in the trial court or in the first appellate court. It was, however, produced before this Court along with C.M.P.No.137/2002. The question arises whether the document
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
