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2002 DIGILAW 52 (KER)

C. N. Vijayan v. C. T. Rajeswari

2002-01-21

M.R.HARIHARAN NAIR

body2002
Judgment :- 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. 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 can be received in evidence at this stage of Second Appeal where the court, normally is supposed to go into only the substantial question of law. 7. Order 41 Rule 27 of the CPC provides that the parties to an appeal shall not be entitled to produce additional evidence, whether oral. The question arises whether the document can be received in evidence at this stage of Second Appeal where the court, normally is supposed to go into only the substantial question of law. 7. Order 41 Rule 27 of the CPC provides that the parties to an appeal shall not be entitled to produce additional evidence, whether oral. Or documentary, in the appellate court; but if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or where the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge, or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or the appellate court requires any document to be produced to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined. Under sub-rule (2) of Order 41 Rule 27, whenever additional evidence ,is allowed to be produced by an appellate court, the court shall record the reason for its admission. This Court has therefore to give reasons if C.M. P. No. 137/2002 is to be allowed. A careful perusal of Order 41 Rule 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. If any authority is required on the point, reference made to the decisions in Tharavai Kutti v. Kadungon (1959 KLT 1124) and Lakshmikutty Amma v. Cheriyan (1967 KLJ 676). 8. Venkataramiah v. Seetharama Reddy (AIR 1963 SC 1526) also went into a similar question. If any authority is required on the point, reference made to the decisions in Tharavai Kutti v. Kadungon (1959 KLT 1124) and Lakshmikutty Amma v. Cheriyan (1967 KLJ 676). 8. Venkataramiah v. Seetharama Reddy (AIR 1963 SC 1526) also went into a similar question. It was found that under Order 41 Rule 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. Such a case would fall under Order 41 Rule 27(l)(b) of the Code. I am of the view that the case in hand is one such case and that reference to the document now produced is absolutely necessary for arriving at a just decision in the case. 9. Sub-clause (aa) of Order 41 Rule 27 enables reception of additional evidence if the party concerned establishes that notwithstanding the exercise of due diligence he could not produce it in the trial court. When this aspect was put to the counsel for the respondent, his answer was that the burden in that regard was on the plaintiff appellant. As for the plaintiff, the explanation for non-production of this crucial document is that the title of the common predecessor was admitted in the written statement and hence there was no need to produce the title deed. I proceed to examine the correctness of this submission in more detail as it appears that some of the trial courts appear to be labouring under a misapprehension that the said stand of the plaintiff is justified and since it is necessary to draw their attention' to the relevant provisions of law governing the matter. 10. A perusal of the order sheet of the trial court shows that there was no direction from the court to produce the relevant title deed. 10. A perusal of the order sheet of the trial court shows that there was no direction from the court to produce the relevant title deed. Obviously the trial court was under the impression that once the right claimed by the plaintiff was admitted, there was no need for compelling the party to produce document in support of the title. This presumably is based on Sec.58 of the Indian Evidence Act which provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which, by any rule or pleading in force, at the time, are deemed to have admitted by their pleads. Under the proviso to the section, the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions also. 11. A perusal of the said section 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. 12. Where questions of title are involved, it is not safe to dispose, disputed questions merely based on admissions. The case in hand is a classical example. The production of the documents now reveal existence of various facts which would necessitate further probe into the title and in such circumstances the court should not leave the matters to the pleadings in the casse alone. It is also to be mentioned here that there are very many provisions in the Code which make it obligatory for the parties to produce such documents even before the stage of applying Sec.58 aforementioned is reached. Sec. 58 of the Evidence Act, according to me, has to be read along with Order 7 Rule 14, Order 7 Rule 18, Order 13 Rules I and 2 and similar other provisions. 13. Sec. 58 of the Evidence Act, according to me, has to be read along with Order 7 Rule 14, Order 7 Rule 18, Order 13 Rules I and 2 and similar other provisions. 13. Order 7 Rule 14 of the CPC provides that where a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented, and shall, at the same time deliver the document or a copy thereof to be filed with the plaint. Under sub-rule (2) where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support his claim, he shall enter such documents in a list to be added or annexed to the plaint. Rule 18 Order 7 provides that a document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. 14. The above provisions make it obligatory for the plaintiff to produce before court the relevant document at the time of filing the suit itself. In cases where that is not done for some reason, there is a further requirement under Order 13 Rule 1 to produce the document at least at the next stage. Under this provision the parties or their pleaders shall produce at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in court and all documents which the court has ordered to be produced. Under Rule 2 of Order 13 the consequence of non-production as above is dealt with. According to this rule, no documentary evidence in the possession or power of any party which should have been, but has not been produced in accordance with the requirements of Rule 1, shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the court for the non-production thereof and the court receiving any such evidence shall record the reasons for so doing. It is unfortunate that the courts below did not bother to apply the said provisions and blindly proceeded to dispose of the suit for partition without even perusing all the relevant title deeds. It is expected that the trial courts understand the implications of these provisions and apply them appropriately in the proceeding relating to trial and hearing consequences of the failure to apply these provisions in the present case would be clear from the further discussions relating to the next point raised in this judgment. I conclude the discussions in this para with a finding that the document of title produced under cover of C .M .P. No .137/02 by the respondent will be received in evidence and marked as Ext.B9 in view of finding supra that the Court requires the same for passing an effective judgment. 15. Point No.2:- The claim in the plaint is that Parvathy Amma who got title to the schedule properties under the partition deed No. 3001/50 (now marked as Ext.B9) passed away on 24-10-1981 leaving the plaintiff and his sister Thankamma alone as legal heirs; that the said sister also died on 7-10-1987 and thus, her right has devolved absolutely on the defendant who was her only daughter. The contention therefore is that Parvathy Amma's right had devolved equally on the plaintiff and and the defendant and that each of them is hence entitled to equal share over her properties described as Items 1 to 3 in the present schedule. 16. The fact that the parties are Hindu Ezhavas residing in area coming within the domains of the erstwhile Travancore State is admitted in para-1 of the plaint itself. While it is the case of the plaintiff that Parvathy Amma got title on her own and it devolved on her death on the plaintiff and Thankamna and that the defendant succeeded to Thankamma's right on 7-10-1987, the defendant's case is that the property did not belong to Parvathy Amma absolutely; that she got rights thereover under Ext.B9 document for and on behalf of her Tavazhi; that with the commencement of the Joint Hindu Family (Abolition) Act, 1975 in August 1976 there was a statutory partition between Parvathy Amma and her children including descendants on the female line with the result that the plaintiff got only l/4th right and Parvathy Amma, Thankmma and the defendant each got l/4th right in the statutory partition. It is the further case of the defendant that when Thankamma died on 7-10-87 the l/4th right obtained by her in the statutory partition as her own as member of the Thavazi as also the half right over Parvathy Amma's l/4th share also devolved on the defendant and that such being the case she had obtained 5/8th share (including her own l/4th share got in the statutory partition) leaving only 3/8th share to the plaintiff. 17. The question thus is whether the right taken by Parvathy Amma was for herself alone or for and on behalf of her Thavazi as well. To resolve the controversy Ext.B9 document has to be gone into. It is a partition executed on 25-9-1950 between Mochittooli Amma and her two children by name Velu and Parvathy Amma. The derivation of the title traced in Ext.B9 is based on document No.17 of 1090ME. It is stated that the mother Mochittooli Amma and her two children Velu and Parvathy Amma got title as per a gift deed (No.17 of 1090) and some other items were also obtained with the efforts of Velu - the son in the name of himself and Mochittooli Amma and also in the name of all the three parties. It would be useful to quote the relevant portion from the title deed itself in view of the vague and confusing terminology used: 18. In the plaint there is no mention as to which of the plaint iems was got by gift under the 1090 document; which were the items acquired through the efforts of Velu - the first party in the name of himself and his mother who was the second party and which are the other items acquired by him as above in the name of all the three. These are matters for appropriate pleadings and proof. In the instant case the document of 1090 remains unproduced even now. There was also no proper plea on the above aspects. There was not even a replication filed by the plaintiff after the defendant pointed out that the properties were not actually absolute properties of Parvathy Amma and were attained under the document of 1090. In these circumstances, no proper decree for partition can be passed in the present case on the available material. 19. There was not even a replication filed by the plaintiff after the defendant pointed out that the properties were not actually absolute properties of Parvathy Amma and were attained under the document of 1090. In these circumstances, no proper decree for partition can be passed in the present case on the available material. 19. There is controversy between the parties with regard to the aspect whether any presumption is possible that Parvathy Amma obtained the gifted items for and on behalf of her Tavazhi. One glaring aspect here is that the plaintiff and the defendant's mother, Thankamma were both alive as on Ext.B9 date; but neither of them were made parties to the partition deed; nor given specific shares taking into account the per capita share to which they were also entitled as on Ext.B9 date. Neither chose to challenge the partition on that ground. 20. AS regards the presumption, the learned counsel for the appellant relied on the decision in Mudigowda v. Ramachandra (AIR 1969 SC 1076). The said decision is not a case of identical facts. What was involved there was co-parcenary property. 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. 21. Gouri v. Narayani (1958 KLT 310) which is a Bench decision dealt with such a case. It was provided that the gift obtained from a near relative by a female following Marumakkathayam Law, will enure to her Thavazi. Sarojini Amma v. Abubacker (1986 KLT 944) which again is a Bench decision also lays down the same principle. That was an acquisition in favour of mother and her children. It was held that even in the absence of evidence of existence of a nucleus, it would be presumed to have been obtained by mother for and on behalf of her Thavazhi. 22. Saraswathy amma v. Radhamma (1990 (2) KLT 183) was a case where share was allotted to a female who did not have children as on the date of such allotment. Subsequently children were born and the question whether the subsequently born children would get right over the property arose. It was held that though the female was single as on the date of partition in the family, the moment children are born to her it would become her Thavazhi property. 23. Subsequently children were born and the question whether the subsequently born children would get right over the property arose. It was held that though the female was single as on the date of partition in the family, the moment children are born to her it would become her Thavazhi property. 23. During hearing today my attention was drawn by the learned counsel for the appellant to another decision of a Bench of this Court in Kalliani amma v. Rugmini (1999 (3) KLT 98) where it was held that there could be no presumption unless the acquirer is shown to have been not provided with means to acquire and that in the absence of proof of nucleus it cannot be held that the acquisition of a junior member partakes the character of Tharwad property. The said decision has no application to the facts of this case as what was involved in the said case was the nature of acquisition by a junior member and also because the case related to the Malabar area. As far as the present case is concerned, the parties are Ezhava residing in Cherthala and the law as prevalent in Travancore area is the law applicable to them. Viewed from that perspective and considering the fact that the defendant was alive then, it is possible that the property actually obtained by Parvathy Amma in the partition of 1950 could be presumed to be the share obtained for an 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. 24. As already mentioned, several items of properties are allotted to Parvathy Amma and it is mentioned that they were obtained under gift deed of 1090. That document itself is not before .Court and even during hearing the learned counsel could not explain which exactly was the item so obtained jointly by the three persons in the partition of 1090. 24. As already mentioned, several items of properties are allotted to Parvathy Amma and it is mentioned that they were obtained under gift deed of 1090. That document itself is not before .Court and even during hearing the learned counsel could not explain which exactly was the item so obtained jointly by the three persons in the partition of 1090. Likewise, which are the items acquired by Velu - the first party, in the name of himself and his mother, and which are the other items which according to Ext.B9 were acquired by Velu in the name of all the three persons through sale deeds are all matters on which there is neither any pleading nor proof. 25. In these unsatisfactory state of affairs, it is not possible to pass any effective decree now even with the aid of Ext.B9. A replication is certainly necessary and thereafter proper additional pleadings also would be required if at all a satisfactory decree for partition is to be passed in the present case. I am aware that the lis started way back in the year 1991. However, in the nature of this case, I find no way to dispense with a remand. Accordingly, the impugned judgments are set aside and the matter is remitted to the trial court with the following directions: (a) The trial court will give further opportunity to both sides to produce the relevant title deed of 1090 ME. They will also have opportunity to produce other documents, if any, to support their respective contentions. There will be need for oral evidence also in view of the vague statement in Ext.B9 with regard to the nature of acquisition. Hence after affording sufficient opportunity to both sides to adduce evidence as above and after due hearing alone a fresh judgment will be passed. While doing so, the trial court will do well to remember that as far as the items allotted to Parvathy Amma in Ext.B9 as obtained as per gift deed of 1090 are concerned, there will certainly be a presumption that the acquisition was in favour of her Thavazhi. As regards the other acquisitions mentioned in Ext.B9, the, matter will have to be decided based on the prospective evidence. The costs of the parties shall come out of the estate. The parties are directed to appear before the Sub Court, Cherthala, on 6-3-2002. As regards the other acquisitions mentioned in Ext.B9, the, matter will have to be decided based on the prospective evidence. The costs of the parties shall come out of the estate. The parties are directed to appear before the Sub Court, Cherthala, on 6-3-2002. There will be no direction for refund of court fee in view of the laches on the part of the plaintiff.