JUDGMENT : 1. The defendant Nos. 18 & 20 in O.S. No. 1129/1986 on the files of the First Additional Sub Court, Thrissur, have filed this appeal challenging the preliminary decree and judgment rendered by the said Court on 18.07.2011. 2. Two members of the Joint Hindu Family who had been following Cochin Nair Act, had instituted the suit on 20.10.1986 for partition of the plaint ‘A’ & ‘B’ scheduled properties which they claimed to be Thavazhi properties. On 31.03.1997, the learned Sub Judge had passed a preliminary decree and judgment directing the partition of plaint ‘A’ & ‘B’ scheduled properties into 910 shares allotting 56 shares each to the first plaintiff and defendants 39, 2, 3, 5, 6 & 7. The defendants 19 to 28 were allotted 49 shares each, whereas 35 shares each were set apart to plaintiff No.2, defendants 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18. The above decree and judgment were challenged before this Court in A.S.No.176/1998 by the 37 th defendant, and A.S.No.407/1998 by the defendants 7 & 18. A Division Bench of this Court, as per the judgment rendered on 06.12.2010, allowed the appeal, set aside the preliminary decree and remanded the matter to the Trial Court for passing a preliminary decree taking into consideration the fact that the legal heirs of Kunjiyamma (the common ancestor) are entitled only to one half share in plaint ‘B’ scheduled property excluding sales conducted under Exts B2 to B4. So far as the plaint ‘A’ schedule property is concerned, the findings of the learned Sub Judge, and the allotment of shares were confirmed. Thus, the suit was remanded only for the purpose of redetermining the shares due to the respective parties in terms of the modified decree to be passed in tune with the observations of this Court in the said judgment. 3. In accordance with the aforesaid direction, the Trial Court afforded sufficient opportunities to both parties to adduce evidence and advance arguments, and passed the impugned decree and judgment dated 18.07.2011. The operative portion of the said judgment is extracted hereunder for the sake of convenience and easy reference. “In the result, a preliminary decree for partition of B schedule property left after Ext.B2 and B4 is passed. In the following terms. The operative portion of the said judgment is extracted hereunder for the sake of convenience and easy reference. “In the result, a preliminary decree for partition of B schedule property left after Ext.B2 and B4 is passed. In the following terms. a) Property in plaint B schedule left after Exts.B2 and B4 document is directed to be divided into 420 equal shares. b) 2 nd plaintiff, D8 to 10 and 12 are entitled to get 6/420 shares each. c) 39 th defendant is entitled to get 240/420 share. d) Defendants 40 to 45 are entitled to get 5/420 shares each. e) 3 rd defendant is entitled to get 30/420 share. f) D19 to 23 are entitled to get 6/420 shares each. g) D24 to 28 are entitled to get 6/420 shares each. h) D17 and 18 are entitled to get 15/420 shares each in the property. i) As far as A schedule property is concerned, the parties are entitled to get the shares as declared in the judgment of this court dated 31.03.1997. j) Parties who have paid court fees are entitled to apply for final decree. k) Cost of the suit shall come out of the estate. l) The suit is adjourned sine die.” 4. The substantial challenge in the present appeal is that the Trial Court went wrong in determining the shares presuming that the defendant Nos.5 & 6 had died intestate. According to the appellants, the fifth defendant had executed Will Deed No.202/1996 of SRO, Anthikkad, bequeathing her share in the plaint ‘A’ & ‘B’ scheduled properties to defendants 7, 17 & 18 with a liability to pay a sum of Rs.25,000/- to defendant No.12. It is further contended that the 6th defendant had executed Will Deed No.51/2001 of SRO, Anthikkad, bequeathing her share in the plaint ‘A’ & ‘B’ scheduled properties to defendant No.20. The appellants would allege that the Trial Court did not provide opportunity to defendant Nos.18 & 20 (appellants) to prove the aforesaid Will Deeds. The other challenges which are beyond the scope of the findings of the Division Bench of this Court in the judgment dated 06.12.2010 in A.S.Nos.176 & 407/1998, being per se unsustainable, are not stated hereunder for the sake of brevity. 5. The other challenges which are beyond the scope of the findings of the Division Bench of this Court in the judgment dated 06.12.2010 in A.S.Nos.176 & 407/1998, being per se unsustainable, are not stated hereunder for the sake of brevity. 5. The additional respondents 34 & 35 who claimed to be pendente lite transferees of shares of the suit property, were impleaded in the appeal, as per order dated 01.11.2024 in I.A.No.1/2023. 6. Heard the learned counsel for the appellants and the learned counsel for the additional respondents 34 & 35. The other contesting respondents did not choose to advance any arguments. 7. The factual matrix of this case has been narrated in the judgments dated 31.03.1997 and 18.07.2011 of the Trial Court and the judgment dated 06.12.2010 of the Division Bench of this Court in A.S.Nos. 176 & 407/1998. The reproduction of the aforesaid facts is totally unnecessary in view of the nature of the challenge raised in this appeal. 8. As already stated above, the substantial challenge in this appeal is that the Trial Court did not give opportunity to the appellants to bring on record Will Deed No.202/1996 & Will Deed No.51/2001 of SRO, Anthikkad, by virtue of which the defendants 5 & 6 are said to have bequeathed their shares over the suit properties in favour of the appellants. However, it could be seen from paragraph No.17 of the impugned judgment of the Trial Court 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. It is pertinent to note that there is no case for the appellants that they had sought to incorporate pleadings pertaining to the aforesaid execution of Will Deeds by the defendant Nos. 5 & 6, and it was rejected by the Trial Court. Nor had the appellants put forward a specific contention that any application filed by them before the Trial Court for bringing on record the aforesaid Will Deeds, was rejected by the said Court. Apart from a casual and superficial contention in the appeal memo that the court below did not give opportunity to the appellants to prove the Will Deeds claimed by them, the appellants are not in a position to show that the Trial Court refused to admit evidence which ought to have been admitted. 9. Apart from a casual and superficial contention in the appeal memo that the court below did not give opportunity to the appellants to prove the Will Deeds claimed by them, the appellants are not in a position to show that the Trial Court refused to admit evidence which ought to have been admitted. 9. The Will Deed Nos.202/1996 & 51/2001 of SRO, Anthikkad, were sought to be received in evidence as Exts B9 & B10, respectively, as per I.A.No.7/2016 filed before this Court. On 01.11.2024, this Court passed an order in the aforesaid I.A. directing that the said documents shall be received to files, but the admissibility of the same will be decided at the time of final hearing. Thus, the pertinent aspect to be decided in this appeal is about the admissibility of the aforesaid Will Deeds which the appellants seek to bring on record as Exts B9 & B10, respectively. 10. As already stated above, Will Deed No.202/1996 of SRO, Anthikkad, is said to have been executed by the fifth defendant on 30.10.1996. It could be seen from the records that the Sub Court, Thrissur, heard the suit for the first time on 17.03.1997 and rendered the judgment for the first time on 31.03.1997. The fifth defendant did not bring it to the notice of the Trial Court during that time that she proposed to set apart her shares in favour of defendant Nos.7, 17 & 18 by virtue of a Will Deed executed on 30.10.1996. Though the matter stood consideration of the Division Bench of this Court in A.S.Nos.176 & 407/1998 till 06.12.2010, the execution of such a Will Deed was not disclosed either by the testator or by the legatees. Even after the remand of the case to the Trial Court, there is absolutely nothing on record to show that the first appellant (defendant No.18) filed any application before the said Court for the acceptance of the said Will Deed in evidence. Likewise, the execution of Will Deed No.51/2001 was not disclosed by any of the parties during pendency of A.S.Nos.176 & 407/1998 before this Court. Nor had the second appellant (defendant No.20) filed any application before the Trial Court after the remand of the case, to accept the aforesaid Will Deed in evidence. Likewise, the execution of Will Deed No.51/2001 was not disclosed by any of the parties during pendency of A.S.Nos.176 & 407/1998 before this Court. Nor had the second appellant (defendant No.20) filed any application before the Trial Court after the remand of the case, to accept the aforesaid Will Deed in evidence. Now, for the first time, it has been contended in this appeal, without any records to substantiate, that the Trial Court did not permit the appellants to prove the aforesaid Will Deeds. 11. In this context, it is very important to note that 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. It is only after ascertaining the dates of death of the testators, and the dates when the legatees are said to have received knowledge about the execution of the Will Deeds, could it be ascertained whether they have raised the claim on the basis of the said Will Deeds within a reasonable time. 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. 12. Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short ‘CPC') governs the law relating to production of additional evidence in Appellate Court. For the sake of convenience and easy reference the aforesaid provision of law is extracted hereunder. “Production of Additional Evidence in Appellate Court (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. 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 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. (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. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for its admission.” 13. It is well settled that the permission to allow evidence or document to be produced before the Appellate Court, could be granted only in those cases coming under clauses (a), (aa) or (b) of sub-Rule 1 of Rule 27 of Order XLI of the CPC. 14. In a case like this where the litigation has been pending for about four decades, the request for admitting additional evidence at the appellate stage, that too after a second round of trial pursuant to the remand of the case, could be allowed only after subjecting such request to meticulous scrutiny to ascertain whether it comes within the contours of Order XLI Rule 27 CPC. In State of Gujarat v. Mahendrakumar Parshottambhai Desai , (2006) 9 SCC 772 , the Hon’ble Supreme Court had held that when there was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the party concerned, the request for adducing additional evidence at the stage of appeal cannot be allowed. Paragraph Nos. 11 & 12 of the judgment of the Hon'ble Apex Court in the said case are extracted hereunder: “11. We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the government records and they could have been produced in the suit. 12. Mr Sorabjee appearing on behalf of the respondents rightly submitted that Order 41 Rule 27 of the Code of Civil Procedure cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. 12. Mr Sorabjee appearing on behalf of the respondents rightly submitted that Order 41 Rule 27 of the Code of Civil Procedure cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellant State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case.” 15. As far as the present case is concerned, the appellants did not care to disclose the relevant aspects relating to the time when the Will Deeds claimed by them came into effect, and the time when they came to know about the existence of the aforesaid Will Deeds, to enable the Court to ascertain whether there was exercise of due diligence on their part in putting forward claims on the basis of those documents. 16. In State of Karnataka v. K.C. Subramanya , (2014) 13 SCC 468 , the Hon’ble Apex Court held that a party can seek liberty to produce additional evidence at the appellate stage only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence, and that the evidence could not be produced as it was not within his knowledge. Paragraph Nos.4 & 5 of the judgment of the Hon’ble Apex Court in the said case read as follows: “4. However, we do not feel impressed with this argument and deem it fit to reject it in view of Order 41 Rule 27(1)(aa) which clearly states as follows: “ 27. Paragraph Nos.4 & 5 of the judgment of the Hon’ble Apex Court in the said case read as follows: “4. However, we do not feel impressed with this argument and deem it fit to reject it in view of Order 41 Rule 27(1)(aa) which clearly states as follows: “ 27. (1)( a ) *** ( aa ) 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 (b) ***” On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum. 5. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will.” 17. As regards the long and unexplained delay in setting forth the claim for letting in additional evidence, the Hon’ble Supreme Court held in N. Kamalam v. Ayyasamy , (2001) 7 SCC 503 that Courts shall have to be cautious and must always act with great circumspection in dealing with claims for letting in additional evidence at the appellate stage after a long lapse of time. The relevant paragraph in the aforesaid decision is as follows: “19. Incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal — it does not authorise any lacunae or gaps in evidence to be filled up. Incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal — it does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in Municipal Corpn. of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 : 67 Bom LR 782 has been candid enough to record that the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In para 9 of the judgment, this Court observed: (AIR p. 1012) “This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports ‘in a large measure’ the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under clause (b) of sub-rule (1) of Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision.” Further in Pramod Kumari Bhatia v. Om Prakash Bhatia, (1980) 1 SCC 412 : AIR 1980 SC 446 this Court also in more or less an identical situation laid down that since an application to the High Court has been made very many years after the filing of the suit and also quite some years after the appeal had been filed before the High Court, question of interfering with the discretion exercised by the High Court in refusing to receive an additional evidence at that stage would not arise. The time-lag in the matter under consideration is also enormous and the additional evidence sought to be produced was as a matter of fact after a period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April 1983 but the application for permission to adduce additional evidence came to be made only in August 1993. Needless to record that the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time. In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the will and in our view contextually, the justice of the situation does not warrant any interference. The attempt, the High Court ascribed it to be a stage-managed affair in order to somehow defeat the claim of the respondents — and having had the privilege of perusal of record we lend our concurrence thereto and the finding of the High Court cannot be found fault with for rejecting the prayer of the appellants for additional evidence made in the belated application. In that view of the matter, the first issue is answered in the negative and thus against the plaintiffs, being the appellants herein.” 18. Another important aspect to be looked into in this case is that the appellants did not make any effort to incorporate the necessary pleadings about their claim relating to the execution of the Will Deeds by the defendants 5 & 6. Another important aspect to be looked into in this case is that the appellants did not make any effort to incorporate the necessary pleadings about their claim relating to the execution of the Will Deeds by the defendants 5 & 6. It is well-settled that in the absence of the necessary pleadings, no evidence could be permitted to be adduced in support of the claims set forth by such parties. The proposition of law in this regard has been laid down by the Hon’ble Supreme Court in Prataprai N. Kothari v. John Braganza , (1999) 4 SCC 403 as follows: “10. Reliance was sought to be placed on the additional evidence admitted by the learned Single Judge during the pendency of the appeals to prove that the appellant had title to the property. It is settled law that in the absence of any plea, no evidence is admissible. The Single Judge of the High Court overlooked that when there was no plea or issue on the question of title, no evidence whatever was admissible regarding the same. He acted beyond his jurisdiction in permitting additional evidence to be filed in appeals.” 19. 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 which they seek to bring on evidence as Exts B9 & B10. 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. Therefore, I am of the view that the request of the appellants to permit them to bring the Will Deeds mentioned above in evidence and to have the matter re-opened again for the redetermination of the shares, cannot be entertained. Needless to say that the appeal is devoid of merit. 20. Resultantly, the R.F.A. stands dismissed.