1. This appeal was argued by Mr. M. Mohanty for the appellant, who alter placing the evidence of the appellant-plaintiffs witnesses and also that of most of the witnesses of the defendants and some of the material documents exhibited in the case raised the question of adducing additional evidence under Rule 27 of Order 41, C. P. C. Counsel for both sides were heard on this question and we have decided to direct the recording of additional evidence by the lower Court under Rule 27 of Order 41, C. P. C. as prayed for the appellant. We give below our reasons for this decision.
2. This is a simple suit for partition and other consequential reliefs between the parties who are all descended from a common ancestor as will be clear from the geneological tree shewn below :
| | |
Lakhmishankar Narbheram Shyamjee
(died without (died on 21-7-1934) (died in 1918)
issue on 2-3-33) married Mani |
Kumari defdt. 2/a Chunifal
(defdt.1) (defdt.2)The original home of the parties is in a place known as Halvad in Kathiwar. Lakhmishankar and Narb-heram came to Cuttack sometime between 1905-1910, prospered very much in coal and other business and acquired considerable properties including valuable house properties in Cuttack Town. The plaintiff's case was that the family was always joint, that the business in Cuttack was built up out of the original joint family nucleus and that as there was no partition he was entitled to eight annas share of all the properties.
The defendants' case was that sometime in 1913 Lakhmishankar and Narbheram separated from, their brother Shyamji who continued to remain in their ancestral village of Halvad in Kathiwar -- that the Cuttack business was built entirely through the efforts of the two remaining brothers, namely Lakhmishankar and Narbheram and that consequently Shyamji's son Chunilal (plaintiff) had absolutely no interest in the Cuttack properties. The trial court accepted the aforesaid contentions of the defendants and dismissed the plaintiff's suit, holding that in view of the partition of 1913 between the plaintiff's father Shyamji and his two brothers the plaintiff cannot claim any share in the Cuttack properties.
3. From the above summary of the essential points in controversy between the parties it is apparent that the most important question for decision is whether Shyamji separated from his two brothers, Lakhmishankar and Narbheram as alleged by the defendants, or whether the three brothers remained joint and the joint family continued to exist even after the death of the brothers one by one. In the Settlement Khatian of the Current Settlement Records (1929-32) the name of the plaintiff was jointly recorded along with those of Lakhmishankar and Narbheram in respect of most of the Cuttack properties of the family.
According to the defendants, however, the settlement entries were made fraudulently with the connivance of their dishonest servant, one Batakrushna Sahu (since dead). Apart from the current Settlement entry no other document has been proved before the lower court in which the name of the plaintiff Chunilal is associated with that of his uncle Lakhmishankar or Narbheram or his cousin Moolshankar (sic) in any of the transactions relating to Cuttack properties. The plaintiff has therefore prayed for leading additional evidence by proving three sale deeds in which his name has been associated in respect of the Cuttack properties though he was at that time only a minor. The importance of these documents in the litigation will be clear from the following summary of the transactions which they purport to represent.
4. The first sale deed dated 8th January 1923 shows the purchase by the plaintiff Chunilal through his guardian uncle Lakhmishankar of some house properties from one Gani Baksh of Cuttack town. It is also mentioned therein that the said properties had been formerly mortgaged by Gani Baksh with Mani Kumari (deft. 2/A). The 2nd sale deed D/-17th Nov. 1928 shows that Lakshishankar -- on his own behalf and also as guardian of his minor nephew Chunilal -- and Narbheram jointly purchased some other house properties in Cuttack town from one Hadu Das, Padan Das and their cosharers.
In the Settlement Khatians (Exts. 5/a and 5/z-8) this transaction is specially noted. The third document is a sale deed dated 29th May, 1953. By this document Narbheram, acting as the next friend of his own minor son Mulshankar (defendant No. 1) and also as the next friend of his minor nephew Chunilal (plaintiff) sold certain house properties to one Snehalata Dei alleging that the necessity for the sale arose in order to meet the expenses of education and maintenance of the aforesaid two minors. He has further recited in that document that the properties had been originally purchased on the 30th July, 1928 in the names of his minor nephews and minor son and that they were in joint possession of the same till the date of that document. The joint purchase of these properties on the 30th July 1928 from the previous owner has been noted in the Settlement Khatian (Ext. 5/i).
5. The importance of the aforesaid three sale deeds to establish the story of jointness of the brothers family till 1938 is apparent. The plaintiff .alleged that as he was living most of the time in Kathiwar and other places and as the defendants wore living all along in Cuttack, he was not able to trace out these documents during the trial of the suit in the lower Court and that after judgment was delivered he came to know about the existence of these documents and then obtained certified copies of the same.
6. On behalf of the defendants, however, objection was taken to the admissibility of these three documents as additional evidence at this stage on two grounds;
(i) If the plaintiff had exercised due diligence he could easily have come to know about the existence of the second and third sale deeds from the entries made in the Current Settlement Khatians, namely, Exs. 5a. 5/X 8 and 5/i respectively and that he ought to have proved these documents in the lower Court itself.
(ii) In any event, these documents were not necessary for the decision of the case and this Court should not allow the plaintiff at this belated stage to fill up the gaps in the evidence.
7. Before discussing the case law dealing with the principles governing the production of additional evidence before the appellate Court, I may point out that although in Rule 27(1) of Order 41, C. P. C. there were formerly only two clauses (a) and (b) limiting the circumstances under which additional evidence may be given, nevertheless, by virtue of the amendment made by the Patna High Court to the said Rule (which is in force in Orissa), the original Clause (b) was renumbered as Clause (c) and a new Clause (b) was added. The Rule, with the amendment made by the Patna High Court, reads as follows :
'27 (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
(b) the party seeking to adduce additional evidence satisfies the appellate court that such evidence, notwithstanding the exercise o the diligence was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or
(c) 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 witnesses to be examined.'
The case law obviously does not deal with the construction of the new Clause (b) (as introduced by the Patna High Court) which came into force much later.
8. So far as the first sale deed is concerned the petitioner is entitled to rely on the aforesaid Clause (b) of Rule 27(1), Order 41, C. P. C. His father died when he was a child hardly one year old. It is the defendants' case that the plaintiff remained mostly in Halvad in Kathiwar except for a period of two years for his study in the Gijarathi School at Cuttack from 1931 to 1933, and that, he had absolutely no interest in the Cuttack properties. However diligent the plaintiff might have been it was difficult for him to trace out the existence of the sale deed of 1923 by which his uncle Lakhmishankar purchased some properties in Cuttack in his name. In any view of the case, additional evidence must be permitted so far as this document is concerned.
9. As regards the second sale deed of 1928 I agree with the contention raised on behalf of the defendants that the plaintiff could easily have known about its existence if he had cared to scrutinise the entry in the Settlement Khatian, Exts. 5/a and 5/z (8), of which he had obtained copies prior to the institution of the suit. The aforesaid document is referred to in the Khatian and having noticed the entry he ought to have made enquiries and obtained certified copies of the same from the Sub-Registrar's Office and proved the document In the lower court itself.
10. Similarly, as regards the third sale deed of the year 1933, though there is some force in the contention of the learned Advocate for the respondent -- defendants that if the plaintiff had cared to see the entries in the Khatian (Ext. 5/1) (of which also he had obtained certified copies prior to the institution of the suit) -- he would have noticed the reference in it to the sale deed of 30th July 1928 by which certain properties were purchased in his name and in the name of Moolshankar.
This should have put him on enquiry and if he had pursued the matter with a view to find out what happened to the property purchased by that sale deed, he might have come to know about the existence of the subsequent sale deed of 1933 and obtained copies of the same from the Sub-registrar's Office. There has thus been want of due diligence on the part of the plaintiff in respect of the second and third documents. But I think they came within the scope of 'any other substantial cause'' referred to in cause (c) of Rule 27(1) of Order 41 C. P. C. quoted above.
No doubt, as pointed out by their Lordships of the Privy Council in AIR 1931 PC 143, Parsotim Thakur v. Lal Mohar Thakur -- which was cited with approval by their Lordships of the Supreme Court in AIR 1951 SC 193, Arjan Singh v. Kartar Singh the power of an appellate Court under Order 41, Rule 27 C. P. C. should not be used to enable a litigant to patch up the weak parts of his case and fill up omissions and that it should be used only when, after examining the evidence as it stands, some inherent lacuna or defect becomes apparent.
But their Lordships also pointed out that the evidence sought to be adduced 'should have a direct and important bearing on the main issue in the case'. It has however been pointed out in some of the decisions that the power under Clause (c) (old Clause (b) ) of Rule 27 (1) of Order 41, C. P. C. can be exercised if any document is required to enable an appellate Court to pronounce judgment or for any other substantial cause.
It was held in ILR 36 Mad 477, Andiappa Pillai v. Muthu Kumara Thevan, that the words 'other substantial cause' should not be construed ejusdem generis and that the power of the appellate Court can be invoked if necessary for the ends of justice. This view was followed in ILR 38 Mad 414: (AIR 1916 Mad 816), Ambuja Animal v. Appadurai. In (S) AIR 1956 Raj 1. Ram Jiwan v. Roop Chand the learned judges admitted an additional evidence in the appellate stage a document which though not produced by the party in the lower court was considered by them to be 'useful for disposing of the appeal.'
11. I am satisfied that the second and third sale deeds are required in. Order to clear up an important matter, namely, whether the association of the plaintiffs name in the Current Settlement Khatian, was brought about by the fraudulent action of the defendants' servant Batakrushna Sahu, as alleged by him, or else whether it was brought about at the instance of the defendants' father and uncle. A decision on this question is very necessary for the purpose of enabling this Court to come to a proper finding in this appeal on the most fundamental issue in the case, namely whether the plaintiff's father had separated from his brothers, Lakhmishankar and Narbherem in 1913 as alleged, or whether the family remained joint all along.
It was pointed out in AIR 1951 SC 1 at p. 4, Kamala Ranjan v. Baijnath that where an appellate Court requires a piece of evidence to clear up a matter for the purpose of enabling it to come to a proper decision on the point, that Court was entitled to allow additional evidence under Rule 27 of Order 41, C. P. C. Considering the large extent of the properties involved, the fact that in any case the first document will have to be admitted in evidence and the necessity of the other two documents for a proper decision of the case, I think the plaintiff should not be deprived of the opportunity or proving them at the appellate stage.
12. The prayer of the plaintiff for leading additional evidence in respect of the aforesaid three sale deeds under Rule 27 of Order 41, C. P. C is therefore allowed. The additional evidence should be strictly combined on the side of the plaintiff, to the proof of the aforesaid three sale deeds and of the circumstances under which they were executed. The defendants also should be given adequate opportunities of adducing rebutting evidence, if any. The Lower Court is directed to record the Additional evidence and submit the same to this Court within three months from to-day. The appeal should be listed for hearing as soon as the report of the lower court is received.
13. I agree.