BANERJEE, J. ( 1 ) THE present appeal is directed against the judgment dated 21. 11. 87 and the decree thereof passed by Sri P. K. Banerjee Assistant district Judge, 1st Court, Krishnanagore in T. S. No. 60/85. ( 2 ) THE respondent of the present appeal as plaintiffs filed the suit for partition alleging, inter alia, that the suit property originally belonged to one Sarba Chandra Mondal and his name stood recorded in respect of the suit property in the C. S. record of rights. Sarba Chandra Mondal died in 1356 B. S. leaving behind his two married daughters Subhanga and Basanta bala, both of whom inherited the property of their father and remained in possession of the same. It was further alleged that Subhanga died in the year 1369 B. S. leaving behind the defendants of the suit as her heirs and basanta Bala died in the year 1367 B. S. leaving behind her only daughter dasi Bala. Dasi Bala subsequently died leaving behind the plaintiffs as her heirs. It was further alleged that defendant Nos. 1 and 2 were educated persons and the plaintiffs entrusted them with the work of looking after the recording of the suit property in R. S. operation. Taking this opportunity, the defendants got their names wrongly recorded for the entire suit property. Due to such erroneous recording, plaintiffs were facing difficulty in possessing the suit property jointly and they were constrained to file the suit. ( 3 ) DEFENDANT Nos. 1 and 2 contested the suit by filing a joint written statement admitting that the suit property originally belonged to Sarba chandra, but alleging that Sarba Chandra died in the year 1350 B. S. leaving behind his daughter Subhanga as heir and his other daughter, namely, basanta Bala had pre-deceased her father leaving a daughter Dasi Bala. When Sarba Chandra died, he was survived by his daughter Subhanga, who inherited the suit property left by Sarba Chandra and in this way on the death of their mother Subhanga, the defendants inherited the entire suit property. It was further alleged that the suit property was correctly recorded in the R. S. record of rights and the defendants were in exclusive possession of the suit property and the plaintiffs have got no right, title and interest in the suit property. It was further alleged that the suit property was correctly recorded in the R. S. record of rights and the defendants were in exclusive possession of the suit property and the plaintiffs have got no right, title and interest in the suit property. ( 4 ) ON the basis of the aforesaid pleadings, the learned trial Court raised some issues including the one touching the question whether the plaintiffs had any right, title and interest in the suit property and whether the plaintiffs were entitled to get a decree for partition as prayed for. At the time of disposal of these issues, the learned trial Court pointed out that in this suit for partition both sides admitted that the suit property originally belonged to Sarba Chandra and during C. S. operation the name of the original owner Sarba Chandra was correctly recorded in the suit property (Ext-1 series ). The dispute between the parties arose of subsequent developments. While it is the case of the plaintiffs that Sarba Chandra died leaving behind his two married daughters Basanta Bala and Subhanga who inherited the property equally, it is the case of the defendants that basanta Bala pre-deceased her father and therefore, the plaintiffs who claimed their share over the suit property through Basanta Bala could not inherit the property at all. It is the further case of the defendants that the suit property, in these circumstances was inherited by Subhanga one of the married daughters of the admitted original owner of the property who survived her father and was alive when the succession opened up. In that background, the learned trial Court noted in the judgment impugned that the only question on which the decision of the suit was dependant was whether Basanta Bala died after her father or before her father. In that background, the learned trial Court noted in the judgment impugned that the only question on which the decision of the suit was dependant was whether Basanta Bala died after her father or before her father. In this connection, he examined the respective pleadings and noted that in Para 2 of the plaint it was alleged that Sarba Chandra died in the year 1356 b. S. and in Para 4 of the plaint it was further alleged that Basanta Bala, his daughter died in the year 1367 B. S. whereas in Para 10 of the written statement, it was alleged that Sarba Chandra died in the year 1356 B. S. and in Para 12 of the written statement it was alleged that Basanta Bala died in the year 1344 or 1345 B. S. The trial Court pointed out in the judgment that in this way there were two different versions about the date of death or the original owner of the suit property Sarba Chandra and one of his married daughter Basanta Bala. It further pointed out that there was no document available before the Court to come to a clear conclusion regarding the date of death of either Sarba Chandra or Basanta Bala. So far the oral evidence adduced from the side of both parties are concerned, the learned Court below pointed out that respective parties adduced evidence supporting their respective case on this point and as the matter stood before the trial Court that there was nothing but an oath versus oath. In the absence of any reliable evidence on this point, the learned Court below came to the conclusion with the aid of a presumption that in the circumstances of the case the presumption should be that the death occurred in order of seniority and the younger survived and died later than his senior. For coming to such a conclusion the Court below has placed reliance on a reported case of Madras High Court (AIR 1957 Madras, Page-270 ). With the aid of such presumption the learned Judge came to a firm conclusion that when the succession opened due to the death of admitted original owner Sarba Chandra Mondal, his two married daughters were alive and both of them inherited the property equally. With the aid of such presumption the learned Judge came to a firm conclusion that when the succession opened due to the death of admitted original owner Sarba Chandra Mondal, his two married daughters were alive and both of them inherited the property equally. In coming to such a conclusion the learned Court below, brushed aside the argument advanced by the learned Advocate for the defendant that even then Basanta Bala who admittedly was a widow with a daughter having no son could not inherit the property left by her father. With these findings, the learned Court below further held that Basanta Bala got her 8 annas share in the suit property on the death of her father and the plaintiffs, who claimed property through basanta Bala had their legal right over the same. Thus, he decreed the suit in the preliminary form and declared 8 annas share of the plaintiffs over the suit property, further declared 8 annas share over the suit property of the defendants and directed the parties to effect amicable partition of the suit property within a specified time in default the plaintiffs got the liberty to pray for final decree in the suit. ( 5 ) DURING the pendency of the appeal, the appellant/ petitioners filed an application under Order 41 Rule 27 of the Code of Civil Procedure for an order allowing acceptance of two documents by way of further evidence. The first document is a relevant entry in the Death Register maintained at jaygata Union Board No. Ill showing the death of Sarba Gh. Mondal son of Umesh Mondal. a resident of Jaygata, P. S. Krishnagunge, District-Nadia. The other one is also a relevant entry dated 15. 5. 1345 B. S. of a Death register maintained in Matiary Union Board No. V recording the date of death of Basanta Bala Mondal wife of Gokul Mondal whose death was recorded on 15. 5. 1345 and date of death (as per entry) as 6. 5. 1345. We propose to dispose of this application before entering into the merit of the appeal. For the purpose of disposal of the application, we should go through the language of the provision which runs as follows :" Order 41 Rule 27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. (stress is supplied ). For the purpose of disposal of the application, we should go through the language of the provision which runs as follows :" Order 41 Rule 27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. (stress is supplied ). But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence such evidence was not within the 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 (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it 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. " ( 6 ) THE very language of the aforesaid provision indicates that the relevant law does not encourage production of additional evidence in course of an appeal and for that reason the relevant provision clearly laysdown the circumstances under which production of additional evidence is permissible. In their application, the appellants have stated that in spite of their best efforts those two documents (relevant entries in the death register)maintained by two Union Boards were not available so long and the instant application has been filed for acceptance of those documents as additional evidence after those documents have been made available. The O. P. / respondent Nos. 1 to 5 have contested this application by filing an affidavit-in-opposition. ( 7 ) AT the very outset, it should be noted that the application under order 41 Rule 27 appears to us vague like anything. Nowhere it has been alleged what attempt the petitioners made to obtain those documents which they want to tender as additional evidence, during the pendency of the suit. It is not the case of the petitioners that they were oblivious of the fact that the deaths of the father and daughter had been recorded in the register of Union Board in the State of Bangladesh and they came to know all about those facts later on from any individual. It is not the case of the petitioners that they were oblivious of the fact that the deaths of the father and daughter had been recorded in the register of Union Board in the State of Bangladesh and they came to know all about those facts later on from any individual. There is also nothing to indicate how the documents issued by the authorities in a foreign land came to their custody. Considering the aforesaid background and the relevant facts and circumstances, it cannot be said that the petitioners could establish that notwithstanding the exercise of due diligence such evidence was not within the knowledge or could not, aftet the exercise of due diligence, be produced by them at the time when the decree appealed against was passed. Therefore, it cannot be said that the case under consideration comes within Clause (aa) of Rule 27 or Order 41 C. P. Code. Now, the only question is whether this Court requires the documents to be produced for the purpose of pronouncing the judgment or for any other substantial cause? As we have already noted that through the present application, the petitioners want to tender two documents one stated to be issued by Joygata Union Board No. Ill and the other stated to be issued by No. V Matiyari Union Board. The copy of the documents at Pages-9 and 12 of the supplimentary paper book prepared in connection with the appeal show that both the certifying authorities were within the P. S. Krishnagung District-Nadia. But strangely enough this was issued by the authorities in Bangladesh. ( 8 ) WE can take judicial notice of the fact that one of the sub-divisions of Nadia District was transferred to the then East Pakistan at the time of partition. But there is nothing to show that the area where the death of the aforesaid two persons occurred was within the territories of East Pakistan which became Bangladesh after independence. On the other hand, the documents go to indicate that the area was within P. S. Krishnagunge which is within the District of Nadia of the State of West Bengal and therefore there cannot be any question of issuing the certified copy of the relevant documents by Bangladesh authority, as has been done in connection with the aforesaid documents. On the other hand, the documents go to indicate that the area was within P. S. Krishnagunge which is within the District of Nadia of the State of West Bengal and therefore there cannot be any question of issuing the certified copy of the relevant documents by Bangladesh authority, as has been done in connection with the aforesaid documents. It is significant to note that the petition under order 41 Rule 27 fails to disclose the circumstances under which the documents were obtained from the Bangladesh authority, the procedure adopted for that and how Bangladesh authority could issue the certified copy of death register, registering the death at a place which is within indian Republic. For all these reasons, it can be said that the documents sought to tender by way of additional evidence are not at all reliable documents and therefore no Court requires such suspicious documents to be produced to enable it to pronounce the judgment. The application therefore stands rejected. ( 9 ) WE have already seen that the trial Court examined the question whether the plaintiffs had any right, title and interest over the suit property and thereby whether they could claim any partition in respect of the suit property, by examining the question whether at the time of death of the admitted original owner of the property Sarba Chandra Mondal, his two daughters Subhanga and Basanta Bala were alive or not. Through the impugned judgment, the learned Judge clearly noted down that if it was found that at the time of death of the said Sarba Chandra Mondal, his two daughters were alive then both the surviving daughters would inherit the properties left by Sarba Ch. Mondal in equal shares and it followed that the plaintiffs who were the son and daughters of Dasi Bala daughter of basanta Bala would inherit the said 50% share in the suit property through their predecessor-in-interest Basanta Bala. But if it was found that the said Basanta Bala pre-deceased her father Sarba Chandra when the succession opened the only daughter of the original owner Subhanga would inherit the entire suit property and in this way the defendants of the suit being the heirs of said Subhanga would be entitled to get the suit property exclusively to the exclusion of the plaintiffs. The learned Judge on discussing the evidence on record noted that the plaintiffs of the suit led evidence to show that the said Basanta Bala died after the death of his father Sarba Ch. Mondal. In the similar way the defendants led evidence in support of their case that the said Basanta Bala pre-deceased her father. The learned Judge came to the ultimate conclusion, after weighing the evidence-on-record that both parties have only led oral evidence in support of their respective claim, and therefore he could not place reliance on the evidence thus adduced by the parties. He has further noted that neither of the parties could tender any document to establish their specific case in this respect. In that background, the learned Judge took the help of a presumption under Section 114 of the Evidence Act that deaths occurred in order of seniority and the younger survived the older. Relying on the two decisions noted in his judgment (AIR 1944 Privy Council Page 100 and AIR 1957 Madras 270), the learned Counsel for the defendants has submitted that the learned Court below has drawn the presumption in an inappropriate way as such presumption can be drawn only in case of death in common calamity (as for example death in earthquake of two individuals ). But on going through the reported case of the Privy Council (AIR (31)1944 Privy Council 100), we find that the Privy Council in that case did not express any view as noted by the Court below. The relevant observation is at Page-102 of the reported decision runs as follows :" The learned Counsel, however, urged that though there is no presumption in law the survivorship of the younger should be considered as "an element in the evidence" bearing on the question as to who died first. As to this, their Lordships need only observe that the distinction which the learned Counsel seeks to draw is very thin; it is obvious, that in a disaster like an earthquake, it is a matter of pure chance whether the younger or the elder would be killed first. It may well be that the younger might receive injuries which cause instantaneous death, while the elder might merely be buried under the debris and eventually die of suffocation. It may well be that the younger might receive injuries which cause instantaneous death, while the elder might merely be buried under the debris and eventually die of suffocation. " ( 10 ) IN the Madras case, Manorama Bai v. Rama Bai and Others, air 1957 Madras 269, the High Court in the circumstances or that case came to a finding that in the State of divided evidence, two witnesses supporting the plaintiff and two witnesses supporting the defendants and both sets of whom the trial Court had no reason to criticise and in the circumstances that from the evidence on record it emerged that one set of people had gone under the water and their bodies could not be recovered and another set of people had been struggling and keeping themselves above water and had been netted and brought ashore and of whom one actually recovered, and in that background the presumption could be drawn that the deaths occurred in the order of seniority and the younger was the survivor and he died later than the others. But in the instant case, the circumstances are totally different. Here no doubt both sides have tried to adduce evidence in support of their respective cases regarding the death of the father and the daughter, but none of the witnesses were competent enough to depose about the death which took place long back and the learned trial Court had no reason to accept any of the versions furnished by the evidence of the parties. ( 11 ) BEING faced with such a situation, the learned Advocate for the appellant/defendants submits that onus to prove that Basanta Bala was alive when her father died is on the plaintiff/respondents relying on the principle that he who alleges a fact must prove it. In this respect he has referred to the provisions contained in Sections 101 and 102 of the Evidence act. It is his specific contention that if the plaintiffs fail to tender cogent evidence to show that their predecessor-in-interest Basanta Bala was alive when the succession opened due to the death of her father, they would not be entitled to get the decree as prayed for as the same is very much dependant on the question whether Basanta Bala at all inherited any share of the property from her father or hot. But it is now settled law that the question of burden of proof loses its importance when both sides have got the opportunity to lead the evidence. In the reported case of Narayan bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Others, AIR 196q Supreme Court 100, the Hon'ble Court in Para 10 of the judgment explained the meaning of burden of proof and its importance when both sides have led evidence in the following words :"the expression burden of proof really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence. Whichever way one looks, the question is really academic in the present case, because both parties have introduced their evidence on the question. . . . . . . . . . . . . . . . . . . . . The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. " ( 12 ) BE that as it may, in the facts and circumstances of the case, we do not find any reason to support the finding of the trial Judge that the real question involved in the suit touching the question of inheritance by the daughters of the admitted owner of the suit property, was dependant upon answer to the question whether the daughter survived the father or she pre-deceased her father. ( 13 ) IN the instant case, it is not disputed that the original owner sarba Chandra Mondal had two daughters Subhanga and Basanta Bala. Subhanga had sons and daughters when she became widow but Basanta bala became widow with only daughter Dasi Bala through whom the plaintiffs are claiming the property. ( 14 ) HERE the real question would be whether under the prevalent hindu Law of Succession under Dayabhaga School of Law which of the daughters could succeed to the property of the original owner. Mr. ( 14 ) HERE the real question would be whether under the prevalent hindu Law of Succession under Dayabhaga School of Law which of the daughters could succeed to the property of the original owner. Mr. S. P. Roychowdhury learned Senior Advocate appearing for the respondents has raised his objection to consider the question mooted here for disposal of the suit on the ground that there was no issue raised by the learned trial court at the time of disposal of the suit and the question in fact was never considered by the Court below. In that background, he has submitted that if this Court considers the question of inheritance of fathers property by the widowed daughter who had sons in preference to the widowed daughter who had only a daughter, the Court should send the case back on remand to the trial Court for raising a suitable issue and for disposal of the same after affording an opportunity to the parties to lead evidence. We do not find any reason to send back the case on question involved is a question of law. In our considered opinion, the evidence on record and other undisputed circumstances are sufficient to dispose of the said question. That apart, the parties of the suit could not be oblivious of the question at issue which would be evidence from the judgment of the learned trial Court in the last line appearing at Page-48 of P. B. and the beginning of Page-49 of the P. B. The learned Court below noted the argument advanced by the learned advocate for the defendant to the effect that sonless widowed daughter could not inherit the property left behind by her father. The learned Judge practically avoided to enter into that question by observing that admittedly after the death of her father Basanta inherited the property as she died after her father and at that critical point there was every chance for her to bring male issue. But the learned Judge did not advert to the plaintiffs' own case that Basanta Bala was didow with a minor daughter at the time of death of her father and whether she had any permission from the husband to adopt a son or not. Before we enter into the question we should reproduce the following passage from Mayne's Hindu Law and Usage Twelvth edition:" 607. Before we enter into the question we should reproduce the following passage from Mayne's Hindu Law and Usage Twelvth edition:" 607. Daughter-ln default of the widow, the daughter succeeds as an heir. Her right was put upon the ground that she produced sons who could present oblation, Jimuta Vahana therefore laid down that no daughter could inherit unless she had, or was capable of having, male issue, and the logical result was the exclusion of daughters who were sonless widows, or barren, or who appeared to have an incapacity for bringing any but daughters into the world. A married daughter who is likely to adopt a son must be regarded as one who is likely to have male issue. It has been accordingly held that a daughter, who is past childbearing age, at the time of the death of her widowed mother and whose husband was willing to adopt a son even during the lifetime of the mother and in fact adopted a son shortly after her death is entitled to succeed to the property of her father in preference to his other remote agnates. Precedence among daughters According to the doctrine of the Bengal School the unmarried daughter is first entitled to the succession; if there be no maiden daughter who has, and the daughter who is likely to have, male issue are together entitled to the succession, and on failure of either of them the other takes the heritage. In no circumstance can the daughter who are either barren, or widows destitute of male issue, or the mothers of daughters only, inherit the property. " ( 15 ) IN the instant case, it is not disputed that both the daughters became widows during the lifetime of the father. It is also not disputed that both the daughters died as widows. Basanta Bala at the time of her death left her child daughter as her only heir. In that background, it can be said that Basanta Bala died as a widow having only a daughter. In a very old decision of our High Court, Uma Kanta Bhattacharjee v. Bedbati Debi and anr. Basanta Bala at the time of her death left her child daughter as her only heir. In that background, it can be said that Basanta Bala died as a widow having only a daughter. In a very old decision of our High Court, Uma Kanta Bhattacharjee v. Bedbati Debi and anr. reported in 46 CWN Page 113, it has been decided that in giving the preferential right of succession to that one among the married daughters who is the mother of male issue or is likely to become so, the Dayabhaga contemplates an adopted son as much a natural son and accordingly the expression "likely to become the mother of male issue" includes a daughter, adoption by whom of a son to her husband is a possibility. In furnishing the reasons in favour of adopted son, for determining the rights of succession, the Hon'ble Court made the following observation. "the act of adoption is really the act of the husband and not of the wife. In the case of a married daughter, if the husband is willing to adopt a son and is not incapable of making an adoption by reason of any physical or mental defect, we can at once say that there is likelihood of the married daughter getting an adopted son and she should be allowed to succeed in preference to a remoter heir. If she actually adopts a son, such son if living would succeed to the property after her death. "this particular case law was cited by the learned Senior Advocate for the respondents in support of his contention that the widowed daughter Basanta bala was capable of having a son naturally or through adoption when the succession opened and therefore there was no bar for her in succeeding to the properties of her father in equal share with the other sister who had sons. But we do not find any reason to accept such argument, in view of the circumstances, disclosed in the case made out in the plaint. When succession opened due to death of Sarba Chandra Mondal his two daughters were already widows (vide para-2 of the plaint ). But we do not find any reason to accept such argument, in view of the circumstances, disclosed in the case made out in the plaint. When succession opened due to death of Sarba Chandra Mondal his two daughters were already widows (vide para-2 of the plaint ). It follows that there was no possibility of Basanta Bala having a son naturally or through adoption as it was nobody's case that the husband of Basanta Bala before his death was willing to adopt a son and in fact had adopted a son or permitted the wife to adopt. It follows that amongst the two widowed daughter one, namely, Subhanga Bala through whom the defendants of the suit claimed the property had sons but the other Basanta Bala through whom the plaintiffs have claimed the half share of the property had only a daughter and no son. Therefore, as per the law of inheritance prevalent at that point of time Subhanga inherited the property in suit to the exclusion of her sister Basanta Bala. That being the position we find that the learned court below improperly decreed the suit in preliminary form in contravention of the customary Hindu Law obtaining at that material point of time. Thus, considering all the facts, circumstances and evidence on record, we find that the appeal should succeed and the suit in question should be dismissed. In the result, the appeal is allowed but having regard to the facts and circumstances we make no order as to cost. The judgment and decree passed by the Court below are hereby set aside. The suit being t. S. No. 60/83 of the Court of Assistant District Judge, Krishnanagore, nadia stands dismissed.