Additional evidence in appellate proceedings is only permissible under specific conditions, which were not met by the appellants.

JUDGMENT :

1. The defendant Nos. 18 & 20 in O.S. No. 1129/1986 on the files of the First Additional Sub Court, Thrissur, have filed this appeal challenging the preliminary decree and judgment rendered by the said Court on 18.07.2011.

2. Two members of the Joint Hindu Family who had been following Cochin Nair Act, had instituted the suit on 20.10.1986 for partition of the plaint ‘A’ & ‘B’ scheduled properties which they claimed to be Thavazhi properties. On 31.03.1997, the learned Sub Judge had passed a preliminary decree and judgment directing the partition of plaint ‘A’ & ‘B’ scheduled properties into 910 shares allotting 56 shares each to the first plaintiff and defendants 39, 2, 3, 5, 6 & 7. The defendants 19 to 28 were allotted 49 shares each, whereas 35 shares each were set apart to plaintiff No.2, defendants 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18. The above decree and judgment were challenged before this Court in A.S.No.176/1998 by the 37^th defendant, and A.S.No.407/1998 by the defendants 7 & 18. A Division Bench of this Court, as per the judgment rendered on 06.12.2010, allowed the appeal, set aside the preliminary decree and remanded the matter to the Trial Court for passing a preliminary decree taking into consideration the fact that the legal heirs of Kunjiyamma (the common ancestor) are entitled only to one half share in plaint ‘B’ scheduled property excluding sales conducted under Exts B2 to B4. So far as the plaint ‘A’ schedule property is concerned, the findings of the learned Sub Judge, and the allotment of shares were confirmed. Thus, the suit was remanded only for the purpose of redetermining the shares due to the respective parties in terms of the modified decree to be passed in tune with the observations of this Court in the said judgment.

3. In accordance with the aforesaid direction, the Trial Court afforded sufficient opportunities to both parties to adduce evidence and advance arguments, and passed the impugned decree and judgment dated 18.07.2011. The operative portion of the said judgment is extracted hereunder for the sake of convenience and easy reference.

“In the result, a preliminary decree for partition of B schedule property left after Ext.B2 and B4 is passed. In the following terms.

a) Property in plaint B schedule left after Exts.B2 and B4 document is directed to be divided into 420 equal shares.

b) 2^nd plaintiff, D8 to 10 and 12 are entitled to get 6/420 shares each.

c) 39^th defendant is entitled to get 240/420 share.

d) Defendants 40 to 45 are entitled to get 5/420 shares each.

e) 3^rd defendant is entitled to get 30/420 share.

f) D19 to 23 are entitled to get 6/420 shares each.

g) D24 to 28 are entitled to get 6/420 shares each.

h) D17 and 18 are entitled to get 15/420 shares each in the property.

i) As far as A schedule property is concerned, the parties are entitled to get the shares as declared in the judgment of this court dated 31.03.1997.

j) Parties who have paid court fees are entitled to apply for final decree.

k) Cost of the suit shall come out of the estate.

l) The suit is adjourned sine die.”

4. The substantial challenge in the present appeal is that the Trial Court went wrong in determining the shares presuming that the defendant Nos.5 & 6 had died intestate. According to the appellants, the fifth defendant had executed Will Deed No.202/1996 of SRO, Anthikkad, bequeathing her share in the plaint ‘A’ & ‘B’ scheduled properties to defendants 7, 17 & 18 with a liability to pay a sum of Rs.25,000/- to defendant No.12. It is further contended that the 6th defendant had executed Will Deed No.51/2001 of SRO, Anthikkad, bequeathing her share in the plaint ‘A’ & ‘B’ scheduled properties to defendant No.20. The appellants would allege that the Trial Court did not provide opportunity to defendant Nos.18 & 20 (appellants) to prove the aforesaid Will Deeds. The other challenges which are beyond the scope of the findings of the Division Bench of this Court in the judgment dated 06.12.2010 in A.S.Nos.176 & 40