Kerala High Court Upholds Trial Court Decree in Long-Standing Partition Suit, Denies Admission of Belated Will Deeds

Ernakulam, Kerala – May 19, 2025 – In a significant ruling underscoring the stringent conditions for admitting additional evidence at the appellate stage, the Kerala High Court today dismissed an appeal in a partition suit that has been winding its way through the courts since 1986. Justice G. Girish , presiding over the Regular First Appeal (RFA No. 176 of 2012), affirmed the preliminary decree of the First Additional Sub Court, Thrissur, finding no merit in the appellants' attempt to introduce two Will Deeds as additional evidence after decades of litigation.

The Court emphasized that parties cannot be permitted to fill lacunae in their case at the appellate stage, especially without demonstrating due diligence or providing necessary pleadings at the trial court level, even after a remand.

Case Background: A Four-Decade Legal Battle

The dispute originated with O.S. No. 1129/1986, a suit for the partition of 'A' & 'B' schedule Thavazhi (joint family) properties. A preliminary decree was first passed on March 31, 1997. This decree was challenged, leading to a Division Bench judgment on December 6, 2010 (in A.S. Nos. 176 & 407/1998), which remanded the matter to the Trial Court for redetermination of shares in the 'B' schedule property, while confirming the findings on the 'A' schedule property.

The Trial Court subsequently passed a revised preliminary decree on July 18, 2011. This revised decree was challenged by defendants No. 18 & 20 in the original suit ( A. Radhakrishnan and Gopakumar ) in the present RFA No. 176 of 2012.

Appellants' Contentions: The Undisclosed Wills

The primary contention of the appellants was that the Trial Court erred in determining the shares by presuming that defendants No. 5 and 6 had died intestate (without a will). They alleged the existence of:

1. Will Deed No. 202/1996: Purportedly executed by the fifth defendant, bequeathing her share to defendants 7, 17 & 18 (one of the appellants).

2. Will Deed No. 51/2001: Purportedly executed by the sixth defendant, bequeathing her share to defendant No. 20 (the other appellant).

The appellants claimed the Trial Court did not provide them an opportunity to prove these Will Deeds. They sought to introduce these documents as additional evidence (Exts B9 & B10) at the appellate stage through I.A.No.7/2016.

Court's Scrutiny: No Diligence, No Pleadings

Justice G. Girish meticulously examined the appellants' plea, noting several critical omissions:

Lack of Pleadings: The Court observed from paragraph 17 of the impugned judgment that "though contentions regarding bequeathal of shares of defendant Nos.5 & 6 were raised, it were not accepted since there were absolutely no pleadings or evidence in that regard." The appellants failed to show any attempt to amend pleadings or any refusal by the Trial Court to accept such applications.

Unexplained Delay: The Will Deeds were dated 1996 and 2001. The Court highlighted that these were not brought to the notice of the Trial Court before the first decree in 1997, nor during the pendency of the first appeals before the Division Bench (which concluded in 2010), nor even after the case was remanded to the Trial Court. > "The appellants have not disclosed the dates of death of the defendant Nos. 5 & 6. Nor had the appellants revealed the exact point of time when they became aware of the execution of the aforesaid Will Deeds... As far as the present case is concerned, the appellants have put everyone in the darkness about all those pertinent aspects relating to the Will Deeds claimed by them." (Para 11)

Order XLI Rule 27 CPC: The Court extensively discussed the provisions governing additional evidence in appeals, concluding that the appellants' request did not meet the criteria:

The Trial Court had not "refused to admit evidence which ought to have been admitted" (Rule 27(1)(a)) because the evidence was not properly presented.

The appellants failed to establish that "notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not... be produced by him at the time when the decree appealed against was passed" (Rule 27(1)(aa)).

The Appellate Court did not require the documents to pronounce judgment or for any other substantial cause (Rule 27(1)(b)).

Reliance on Supreme Court Precedents

The High Court reinforced its decision by citing several Supreme Court judgments:

State of Gujarat v. Mahendrakumar Parshottambhai Desai [(2006) 9 SCC 772]: Additional evidence cannot be used to fill lacunae in a party's case.

State of Karnataka v. K.C. Subramanya [(2014) 13 SCC 468]: A party must prove due diligence and that evidence was not within their knowledge to seek its admission at the appellate stage.

N. Kamalam v. Ayyasamy [(2001) 7 SCC 503]: Courts must be cautious and circumspect in admitting additional evidence after a long lapse of time, especially when it seems like an attempt to "patch up the weak points in the case."

Prataprai N. Kothari v. John Braganza [(1999) 4 SCC 403]: "It is settled law that in the absence of any plea, no evidence is admissible."

Final Decision and Implications

Finding a complete lack of diligence and proper procedural steps by the appellants, the Court stated: > "In the case on hand, it is apparent from the records as well as from the observation of the Trial Court in the impugned judgment, that the appellants did not make any effort to incorporate the necessary pleadings and to adduce evidence about the execution of the Will Deeds... There is absolutely nothing on record to show that the appellants were not in a position to incorporate the necessary pleadings and to adduce evidence pertaining to the execution of the aforesaid Will Deeds in their favour even after decades from the date of execution of those documents. That being so, they cannot be permitted to raise claims on the basis of those documents at this stage and to procrastinate the proceedings further." (Para 19)

Consequently, the Regular First Appeal (R.F.A. No. 176 of 2012) was dismissed, and the request to admit the Will Deeds was denied. The judgment serves as a stark reminder of the importance of timely action, due diligence, and adherence to procedural law in litigation, particularly in long-drawn-out property disputes. Parties cannot expect appellate courts to accommodate belated attempts to introduce evidence that could and should have been presented at the trial stage.