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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. Sounthar, J.
Saraswathi (died) & Others - Appellant
Vs.
Thangavel & Others - Respondent
C.R.P. (PD). Nos. 2226 & 2227 of 2021 & CMP. No. 16924 of 2021
Decided On : 06-03-2024
Additional Evidence - Will - The court allowed the production of additional evidence, namely the original Will and examination of legal representatives of the attestor, to ensure complete adjudication of the dispute.
Fact of the Case:
The petitioners filed a suit for partition against the respondents, who relied on a Will executed by Subbaiya Gounder. The trial Court decreed the suit, stating that the Will could not be considered without the production of the original and examination of the attestors.
Finding of the Court:
The First Appellate Court allowed the applications for production of additional evidence, considering that the original Will was in the custody of the Court and that it was necessary for complete adjudication.
Issues: The main issue was the production of additional evidence, specifically the original Will and examination of the legal representatives of the attestors, to enable effective adjudication of the dispute.
Ratio Decidendi: The Court's decision was influenced by the need for complete adjudication and the availability of the original Will in the custody of the Court, which warranted its production and examination of the attestors' legal representatives.
Final Decision: The Civil Revision Petitions were dismissed, and the order allowing the production of additional evidence was upheld.
ORDER :
(Prayers: Civil Revision Petition filed under Section 115 of CPC, praying to set aside the orders of the learned IV Additional District and Sessions Judge of Coimbatore, dated 10.11.2020 in I.A.No.1 of 2019 in A.S.No.41 of 2018 and allow the above Civil Revision Petition.
Civil Revision Petition filed under Section 115 of CPC, praying to set aside the orders of the learned IV Additional District and Sessions Judge of Coimbatore, dated 10.11.2020 in I.A.No.2 of 2019 in A.S.No.41 of 2018 and allow the above Civil Revision Petition.)
1. These Civil Revision Petitions are filed challenging the order passed by the First Appellate Court allowing the applications filed by the petitioners to produce additional evidence under Order 41 Rule 27 of CPC and lead oral evidence by examining legal representatives of attestors to Will dated 19.07.1966.
2. The petitioners herein filed a suit for partition against the respondents. The respondents 1 and 2 who were arrayed as defendants 3 and 4 filed their written statement and resisted the suit inter alia by relying on the Will executed by Subbaiya Gounder dated 22.07.1965 in favour of their mother Kuppathal. A certified copy of the Will was marked as Ex.B3 before the trial Court. However, the original Will was not marked and the attestors to the Will were also not examined. The Trial Court decreed the suit by observing that the Will relied on by the petitioners could not be taken into consideration in the absence of production of original Will and examination of attestors to the Will.
3. Aggrieved by the judgment and decree passed by the trial Court, the petitioners preferred First Appeal in A.S.No.41 of 2018 on the file of the IV Additional District and Sessions Judge, Coimbatore. Pending First Appeal, the petitioners filed two applications under Order 41 Rule 27 and 28 of CPC in I.A.Nos.1 and 2 of 2019. The I.A.No.2 of 2019 was filed for production of original Will dated 19.07.1966 which was already in the custody of the trial Court and xerox copy of the said Will attested by State Bank of India. The I.A.No.1 of 2019 was filed for examining the legal representatives of the attestors of the Will who are no more. The said applications were opposed by the petitioners on the ground that the respondents 1 and 2 cannot be allowed to fill up lacuna by resorting to applications under Order 41 Rule 27 and 28 of CPC. The First Appellate Court on consideration of the rival submissions came to the conclusion that the original Will was already in the custody of the Court and hence in the interest of justice and to have effective and complete adjudication, the petition for production of additional evidence filed by the respondents 1 and 2 shall be allowed.
4. The learned counsel appearing for the petitioners submitted that the respondents 1 and 2 failed to mark the original Will before the trial Court by examining the attestor and hence they cannot be allowed to fill up the lacuna in evidence by resorting to applications under Order 41 Rule 27 and 28 of CPC.
5. The learned counsel appearing for the petitioners submitted that the Will relied on by the respondents 1 and 2 were referred to in the written statements and at the relevant point of time, the original Will was not available with the respondents 1 and 2 and the same was deposited in State Bank of India and hence it could not be marked at the time of trial. The learned counsel further submitted that on applications filed by the respondents 1 and 2, the original Will was sent to the Court and the same was in the custody of the Court. However, it was not marked as exhibit.
6. The suit for partition was filed by the petitioners and the same was resisted by the respondents 1 and 2 by relying on the Will dated 19.07.1966. The certified copy of the Will was marked as Ex.B3. On application filed by petitioners, the original Will was produced by the State Bank of India before the trial Court and the same is already in the custody of the Court. In such circums
The production of additional evidence, such as the original Will and examination of legal representatives of the attestor, may be allowed to ensure complete adjudication of a dispute.
The appellate court cannot admit additional evidence to fill gaps in a party's case; the party must demonstrate due diligence in presenting evidence at the trial stage.
Defendants claiming title via Will must prove it as per law; plaintiff's production application premature.
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The admissibility of additional evidence at the appellate stage depends on whether the appellate court requires the evidence to enable it to pronounce judgment or for any other substantial cause.
The court affirmed that allowing additional evidence is within the inherent powers of the court under Section 151 of the CPC, provided it serves the ends of justice and is not actuated by malafide in....
The central legal point established in the judgment is the enabling power of the Appellate Court to allow additional evidence for any substantial cause and the need for such evidence to pronounce jud....
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