Maintainability of procedure for admitting two fresh document in a case remanded for retrial.

Appellants are alienee-defendants in four suits instituted by one Sitamma to set her alienations to them aside. The District Munsif of Kovvur dismissed the four suits. In appeal, the learned Subordinate Judge, following a procedure which cannot be defended under Order 41, rule 23, remanded the suits for fresh disposal.

The relevant facts necessary to determine these appeals are briefly these:Sitamma was the only surviving daughter of one Venkataramiah, whose estate was a large one comprising about 200 acres of land. After her mother’s death in 1932, Sitamma, on the footing that she had only a life estate, executed a surrender deed in favour of her sister’s sons one of whom Venkataramana Rao, the first defendant in all these suits, who subsequently alienated plots of land to these four different alienees by four sale deeds Exs.D-11 to D-14 in 1938. Altogether 7 acres 82 cents of land were conveyed for a consideration of Rs.5,260. The plaintiff sued to set aside these alienations on the ground that the surrender deed in favour of her nephews under which she got only Rs.1,000 as a lump sum maintenance for renunciation of all her rights was fraudulently taken from her. The learned District Munsif found that there was no material to warrant any such finding. Sitamma had filed a previous suit, O.S.No.25 of 1938 against her sister’s sons for a declaration that the surrender deed was fraudulently taken and not valid and binding on her. There was no real contest in that suit in which she obtained a decree Ex.P-5, dated 17th November, 1938, which is now attacked as collusive as between herself and her nephews in fraud of alienees. Subsequent to obtaining that decree, Sitamma made alienations Exs.P-8 to P-11 of certain items of property conveying only her life interest. On the day the learned Subordinate Judge took up the appeals for hearing, an application was made on behalf of Sitamma for the admission of two plain paper and unregistered wills in evidence, supported by the affidavit of some one purporting to be her agent, one will dated 29th December, 1890, purporting to be by Venkataramiah bequeathing all his property absolutely to his wife, and the other will, dated 18th March, 1932, purporting to be by Rukminiamma bequeathing all her property absolutely to Sitamma. The learned Subordinate Judge proceeded to consider these two documents and without even giving time to the respondent’s Advocate to file a counter, adopted a curious procedure. The only provision under which an Appellate Court can admit further evidence in Appeal is, as the learned Subordinate Judge himself felt, Order 41, rule 27. Finding some difficulty in applying the provisions of this order in view of the Privy Council decisions Parsotam Thakurain v. Lal Mohar Thakur1 and Mohammad Akbar Khan v. Mussamat Motai2, which clearly restricted the powers of an Appellate Court to admit further evidence under Order 41, rule 27(1)(6), to the strict confines of that section, the learned Subordinate Judge got over his difficulty in the following manner shown in this extract from his judgment:

“What their Lordships say in these rulings as I understand it, is that it is not open to an Appellate Court to admit fresh evidence at the appeal stage and dispose of the appeal on that evidence unless the party seeking to rely on the documents comes within the four corners of Order 41, rule 27. That is not what I propose to do here I do not propose to admit the documents here and dispose of the case itself on their strength”.

He then remanded the suits for fresh disposal giving both sides liberty to adduce fresh oral and documentary evidence with a direction that the two plain paper wills filed before him were to be received in evidence by the lower Court subject to proof and relevancy.

The procedure adopted by the Subordinate Judge is illegal and nowhere contemplated by Order 41, rule 23. The provision since its amendment in 1930 in this State has only been abused by Lower Appellate