ORDER
Sathasivam, J.
1. Second defendant in O.S. No. 645 of 1980 on the file of Subordinate Judge, Dindigul, is the appellant in the above second appeal. The first respondent herein, plaintiff in the said suit filed the same for partition and separate possession of his 1/3rd share in the suit properties by metes and bounds.
2. The case of the plaintiff is as follows:
The plaintiff and the second defendant are the sons of the first defendant and they belong to an undivided Hindu joint family. The suit properties belonged to the joint family. Items 1 to 3 of the plaint A schedule are the ancestral joint family properties and items 4 to 13 of the plaint A schedule were later acquired out of the joint family income in the name of the first defendant, who is the kartha and Manager of the joint family for the benefit of the family on 19.2.1960. After the purchase, a house was constructed. The suit properties are managed by the first defendant, and some of the suit properties are leased out to the third defendant. The suit lands are yielding a-good income. The plaintiff through some well wishers approached defendants 1 and 2 and demanded partition by metes and bounds on 30.1.1980. Though they have agreed for amicable partition, they are postponing the same. He is entitled to partition and separate possession of his 1/3rd share in the suit properties.
3. The first defendant filed a written statement, which reads as follows:
He was a broker and he was doing business by selling catties. He purchased items 4 to 13 of the plaint A schedule properties from and out of his separate earnings. The allegation that items 4 to 13 were purchased from out of the income of the joint family is incorrect. He celebrated the marriage of the plaintiff, the 2nd defendant and his daughter. He dug one well and deepened another well and installed an electric motor and pump-set. He converted the thatched house into a tiled one by borrowing debts of Rs. 70,000 and he also paid the debt of Rs. 40,000 out of the income derived from the suit lands. He has no objection for partition and separate possession of the plaintiff's 1/3rd share in items 1 to 3 of the suit properties provided he pays his share of the debts.
4. The second defendant filed a separate written statement wherein he has stated that items 4 to 13 of the plaint A schedule properties were purchased from out of the income of items 1 to 3 of the plaint A schedule properties. In the oral partition effected in the year 1971 in the presence of the panchayatdars, items 1 to 3 of the plaint A schedule lands and one well with 3 H.P. electric motor and pump set and 1/3rd share in another well were allotted to the share of the first defendant. The eastern portion of the house and the northern portion of items 4 to 13 of the plaint A schedule properties were allotted to the share of the plaintiff and the western portion of the house and the southern portion in items 4 to 13 were allotted to the share of the 2nd defendant. They are in possession and enjoyment of their respective properties by paying tax ever-since the oral partition. He has improved the lands allotted to him at a cost of Rs. 5,000 and has constructed a house at a cost of Rs. 15,000 in the property allotted to him. The plaintiff has filed the suit at the instigation of the defendants 1 and 3 to grab at the properties allotted to him in which he has made improvements. The first defendant has no debts. There is no necessity for a second partition and as such the suit is liable to be dismissed with costs.
5. Plaintiff himself was examined as P.W.I and he has marked Exs. A-1 to A-4 in support of his case. On the other hand, first defendant was examined as D.W.I and 2nd defendant was examined as D.W.3. Further, one Muthappal Gounder, Rasappa Gounder and Kaliammal were examined as D.Ws. 2, 4 and 5 respectively. They also marked Exs. B-1 to B-14 in support of their defence. Further, through witnesses, Exs. X-1 to X-10 were marked. The learned Subordinate Judge, after framing necessary issues and in the light of the evidence on record, passed a preliminary decree for partition and separate possession of the plaintiff's 1/3rd share in the plaint A and B schedule properties by metes and bounds and in other respects dismissed the suit. Aggrieved by the preliminary decree, the second defendant filed appeal in A.S. No. 163 of 82 before the District Court, Dindigul. The first defendant has also filed another appeal, namely, A.S. No. 2178 of 82 before the same court. After determining necessary points, by a common judgment dated 7.4.1983, the appellate court dismissed both the appeals and confirmed the judgment and decree of the trial court.
6. Against the dismissal of the appeal, the second defendant alone filed the present appeal before this Court.
7 While entertaining the appeal, this Court has framed the following substantial questions of law for consideration:
1. Whether the 2nd defendant has not discharged the burden cast on him and proved the partition pleaded by him?
2. Whether the plaintiff is not estopped from disputing the oral partition on the basis of the additional documents filed before the court?
8. In the light of the substantial questions of law framed earlier, Mr.S. Parthasarathy, learned Counsel for the appellant fairly submits that in view of the concurrent findings of the court below, he is not seriously challenging the factual findings of the courts below. However, he points out that even at the time of admission of the second appeal i.e., in the year 1983, the appellant has filed C.M.P. No. 9849 of 1983 under Order 41, Rule 27, C.P.C., to receive two registered mortgage deeds dated 21.5.1975 no order to show that there was a prior partition between the parties to the suit. But relying upon the said two registered mortgage deeds in the light of the Order 41, Rule 27, C.P.C., he submits that in order to render substantial justice, the said application may be entertained and matter may be disposed of in the light of the said application. On the other hand, Mr. C. Chinnaswamy, learned senior Counsel appearing on behalf of the first respondent submits that even though under Order 41, Rule 27, C.P.C. this Court has ample power, the appellant (second defendant) has not offered any convincing explanation for not producing the said documents either before the trial court or before the lower appellate court. In other words, he submits that the appellant has not satisfied Sub-clause (aa) in Rule 27 in Order 41, C.P.C. I have carefully considered the rival submissions.
9. Even at the outset as stated earlier the learned Counsel for the appellant fairly submits that in view of the concurrent findings of the courts below, he is not seriously challenging the said findings. However, he brought to my notice the petition i.e., C.M.P. No. 9849 of 1983 filed under Order 41, Rule 27, C.P.C, to receive the documents marked as A and B respectively as additional evidence in Second Appeal No. 1286 of 1983. An affidavit in support of the said C.M.P., has been filed by Ramasamy, second defendant in the suit. The main objection before the trial court was that items 4 to 13 were purchased out of the income from the ancestral properties. There was an oral partition in the year 1971 and his father (first defendant) and other sharers were allotted equal extent of properties. The sharers are in enjoyment of their respective shares. It was also contended that there was no debts to the family and that there was no necessity for the second partition. In the said affidavit, it is also averred that courts below have not properly considered several receipts for payment of house-tax, demand notices issue din his favour which would prove the oral partition pleaded by him. It is also averred that each sharer was borrowing separately by mortgaging the property allotted to him. In para 7 of the affidavit, it is specifically averred that,
On 21.5.1975, both the respondent and myself have mortgaged our respective shares in the suit properties in favour of 'D.D.81, Senankottai Village Co-operative Agricultural Loan Society President' having executed documents individually and borrowed amounts. Reference to partition has been made in these documents and the documents have' been respectively attested by me and the plaintiff. Unfortunately, these documents could not be marked either in the trial court or before the lower appellate court. Similarly, by oversight I did not bring this to the notice of the court and these documents were not marked and evidenceadduced. I realised the mistake only now. I then applied for the registration copy of the two mortgage deeds and obtained the same on 21.6.1983. These documents are vital documents and if these documents are admitted, it would clinch the issue regarding oral partition. The non-filing of these documents before the courts below is neither wilful nor delibrate but due to reasons beyond my control. The authenticity cannot be questioned and the plaintiff himself being a party in one document as executant and in another as attestor cannot deny them and he will not be prejudiced by their production at this stage. Ends of justice therefore require that the documents which are registration copies of mortgage deeds dated 21.5.1975 executed by my brother, the respondent herein and by me, may be marked as Exs. A and B respectively and received as additional evidence in the above appeal. Otherwise I will suffer serious prejudice and loss.
As already stated, the said CM.P. No. 9849 of 1983 has been filed even on 20.7.1983 i.e., along with S.A. No. 1286 of 1983. While entertaining the second appeal, this Court has ordered notice to the respondents herein even on 5.8.1983. Again the said C.M.P., came up for further hearing on 12.12.1983 after completion of service on the respondents. On that date this Court has directed the posting of the said petition along with the main second appeal. As directed earlier, C.M.P. No. 9849 of 1983 also came up for hearing along with the main second appeal. In pursuance of the said petition, the learned Counsel very much insisted that as per Order 41, Rule 27 and more particularly in the interest of substantial cause these two documents1 may be received as additional evidence and justice may be rendered.
10. It is useful to refer Order 41, Rule 27, C.P.C., which is extracted hereunder.
27. 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, 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.
Before amendment Act 104 of 1976, Sub-clause (aa) is not in Rule 27. However, there is an amendment by this Court after Clause (a) and the said amendment was in force as (b). High Court Amendment (Madras) is Sub-clause (b) of Sub-rule (1) reads thus:
(b) the party seeking to adduce additional evidence satisfied the appellate court that such evidence notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed, or.By amendment Act 104 of 1976 Clause (b) has now been incorporated in Rule 27 as (aa). Relying on Clause (aa) to Sub-rule (1) in Rule 27 Mr. C. Chinnaswamy, learned senior Counsel for the respondents submits that unless and until all the conditions provided in Clause (aa) is complied with, it is not open to the appellant herein to insist the court to receive the said two documents A and B as additional evidence. No doubt, it is true that as per Clause (aa), the party who is seeking to produce additional evidence has to establish (1) notwithstanding the exercise of due diligence, such evidence was not within his knowledge (2) or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The explanation offered as seen from para 7 of the affidavit filed in support of the said C.M.P, is that by over-sight he could not bring were not documents to the notice of the trial court and were nut marked as documents. After realising the said mistake, at the time of filing the second appeal in this Court, according to the deponent of the affidavit, namely, Ramasamy, he immediately applied for the registration copy of the two mortgage deeds and obtained the same on 21.6.1983. It is true that on 21.5.1975 the plaintiff and the second defendant have mortgaged their respective shares in favour of D.D.81, Senankottai Village Co-operative Agricultural Loan Society President. In the said documents, a specific reference to partition has been made and documents have been attested by the plaintiff as well as the second defendant. Relying on this the learned Counsel for appellant submitted that these documents are vital and if these documents are admitted, it would clinch the issue regarding the oral partition pleaded by the second respondent. The plaintiff himself is party in one document as executant and in another as attestor. According to the learned Counsel for the appellant, the 2nd Defendant will not be prejudiced by the production at this stage. As stated earlier, even though in the petition for reception of additional documents notice has been ordered to the respondent, till date, that is, even after 13 years, he has not chosen to file counter affidavit opposing the request made reception of additional evidence. Even though the Clause (aa) in Rule 27 of Order 41 has not been fully complied with by the respondent herein, in view of Clause (b) the learned Counsel submits that to render justice and in the interest of substantial cause, the documents may be received as additional evidence. Inasmuch as the respondent has not chosen to file counter affidavit for C.M.P. No. 9849 of 1983 and in view of the Clause (b) to Sub-rule (1) of Rule 27, Order 41, I am satisfied that both the documents may be entertained in order to render substantial justice to the parties. 'At this stage, it is useful to refer 3 judgments cited by the learned Counsel for the appellant.
(1) Sri Madhavaperumal Devasthanam v. Tmt. Dhanalakshmi (1996) 1 L.W. 231.
(2) New India Assurance Co. Limited v. Annakutty : AIR1993Ker299 .
(3) Land Acquisition Officer, Vijayawada v. Chiqupathi Umamaheswara Rao : AIR1993AP8 .
11. First I shall consider the decision reported in Sri Madhavaperumal Devasthanam v. Tmt. Dhanalakshmi and Ors. (1996) 1 L.W. 231. In the said case, petition under Order 41, Rule 27, C.P.C., has been filed pending second appeal for admitting additional evidence on behalf of the appellant, a temple by its Executive Officer. After holding that idol being in the position filed under Order 41, Rule 27. While interpreting the said provision, Justice Srinivasan, as he then was, observed thus:
It is no doubt true that the requirements of Order 41, Rule 27, C.P.C. should be strictly complied with before any document is admitted as additional evidence in any appeal and in particular, in a second appeal. A view was also being taken in this Court that no additional evidence can be admitted in a second appeal, as it involves only a question of law. But the matter has been considered in detail and it has been held by a Division Bench that in appropriate cases additional evidence can be admitted even in second appeals. Vide: Kumaraswamy Gounder v. D.R. Nanjappa Gounder 1977 T.L.N.J. 375.
12. In New India Assurance Co. Limited v. Annakutty : AIR1993Ker299 , a Division Bench of the Kerala High Court permitted the Insurance Company to mark policy of insurance at the appellate stage by invoking Order 41, Rule 27, C.P.C. In this regard, it is useful to mention hereunder the conclusion reached by the Division Bench while permitting the insurer to mark the policy at the appellate stage:
We are of the view that a duty was cast on the owner of the vehicle, at least to let in prima facie evidence that the vehicle was covered by a comprehensive policy and the liability of the insurer is unlimited. The owner of the vehicle cannot simply fold the hands and assume the role of an onlooker in a case where a claim for compensation is made against him and rival pleas are put forward before the Tribunal regarding the quantitative and qualitative liability of the owner of the vehicle as also the insurer. It is true that the appellant-insurer should have been more vigilant and circumspect and could have procured the true copy of the policy produced before this Court even before the Claims Tribunal to substantiate its plea, that its liability was limited. But the want of circumspection or prudence on the part of the appellant-insurer will not and cannot affect the jurisdiction of this Court to admit the true copy of the policy as additional evidence, if this Court requires the same to be produced to enable it to pronounce judgment or for any other substantial cause. The appellant-insurer cannot insist for the production of the additional evidence under Order 41, Rule 27(1)(a) or (aa) of the Code of Civil Procedure. The mere fact that Order 41, Rule 27(1)(a) or (aa) is inapplicable in a particular case will not disable this Court to direct or receive any document in evidence of this Court is satisfied that the interest of justice requires or be lives the court to invoke the provisions of Order 41, Rule 27(1)(b) of the Code of Civil Procedure. In this case, the appellant-insurer and the first respondent before the claims tribunal (the owner) have put forward rival pleas as to whether deceased Kuruvilla was a passenger or not at the time of the accident. The plea of the claimants in column 28 of the petition would suggest that Kuruvilla was a passenger at the time of the accident. The plea of the appellant-insurer that they were under the bona fide belief that the owner will produce the policy and so, they did not produce the policy due to inadvertence is plausible. The owner did not produce the policy. The number of the policy was mentioned even in the claim petition. There was no dispute about the same. Even in this Court, in C.M.P. Nos. 1604 of 1992 and 1605 of 1992, the document produced, the true copy (office copy) of the policy is not disputed. The facts and circumstances in this case require or need a definite finding as to whether deceased Kuruvilla was a passenger or not at the time of the accident. It is on the basis of the said finding, the exact nature of liability of the appellant has further to be fixed. On the above aspects, the over-all picture remains obscure. There is inherent lacuna or defect, which hinders a proper evaluation and appraisal in meeting out justice to the parties. In order to pronounce a more satisfactory and meaningful judgment and in the interest of justice, considering the totality of the circumstances in this case, we are satisfied that the true copy of the policy produced by the appellant-insurer along with C.M.P. Nos. 1604 and 1605 of 1992 is needful and should be admitted as additional evidence in this appeal, in exercise of the powers vested in this Court under Order 41, Rule 27(b) of the Code of Civil Procedure. Unless it is to be done, it will not enable this Court to satisfactorily and completely deal with all aspects necessarily arising in the case and which requires adjudication. The mere fact that the appellant-insurer was imprudent or was less circumspect in not producing the true copy of the policy before the Claims Tribunal or that the defect was realized only later and pointed out by a party, will not deter this Court from invoking the provisions of Order 41, Rule 27(1)(b) of the Code of Civil Procedure, if, in the interest of justice, this Court is satisfied that the powers vested to this Court under the said provision should be invoked. We are fortified in this view by the decisions of the Supreme Court in K. Venkataramiah v. Seetharama Reddy : [1964]2SCR35 and the Patna High Court in Ganesh Sahi v. Ramdeni Sahi : AIR1953Pat316 , we allow C.M.P. Nos. 1604 and 1605 of 1992. We admit the office copy of the policy produced before this Court as additional evidence in the appeal and mark the same as Ex. B-2.
13. In Land Acquisition Officer, Vijayawada v. Chiqurupati Umamaheswara Rao : AIR1993AP8 , is a land acquisition case, a Division Bench of Andhra pradesh High Court, by applying Order 41, Rule 27 read with Section 107, C.P.C., permitted the Land Acquisition Officer and Sub Collector, Vijayawada allowed some of the documents to be marked as Exhibits. For the said purpose, the Division Bench directed the trial Judge to record evidence in this regard and after giving opportunity to both parties, directed to submit a report to the High Court within a period of two months from the date of receipt of the copy of the said order. The Andhra Pradesh High Court after perusing the four sale deeds came to the conclusion that the same are necessary to enable the court to pronounce judgment.
14. In the light of the decisions mentioned above, I am of the view that the two mortgage deeds produced before this Court as documents A and B dated 21.5.1975 support the case of the second defendant regarding oral partition. If these documents are proved and marked in accordance with law, the cause of both parties can be disposed of in the proper manner. When once it is found that the aforesaid documents are relevant for a just decision, the question whether the said documents are in favour of one party or the other becomes irrelevant. In the decision reported in Sri Madhavaperumal Devasthanam v. Tmt. Dhanalakshmi (1996) 1 L.W. 231, Justice Srinivasan as he then was has remitted the matter to the trial court in view of pendency of other connected suits as well as to consider the whole issue once again in the peculiar facts and circumstances of the case. In New India Assurance Co. Limited v. Annakutty, : AIR1993Ker299 inasmuch as the additional evidence sought to be produced is only a policy of Insurance, the Bench therein after perusing the same, admitted as additional evidence and quantified the compensation in terms of the said policy in the appellate court itself: In Land Acquisition Officer, Vijayawada v. Chiqupathi Umamaheswara Rao : AIR1993AP8 , since the Division Bench expressed that the documents sought to be adduced have to be proved and marked as exhibits, directed the trial Judge to record evidence in that regard and to send a report after affording opportunity to both parties to adduce evidence in rebuttal. As per the above referred three decisions and inasmuch as the learned Counsel for the appellant has not seriously disputed the findings of the courts below on other issues. I am of the view that there is no need to remit the matter to the trial court once again for fresh disposal. However, since I am of the view that the two documents produced here as A and B go to the root of the matter with regard to the oral partition pleaded by the second defendant, in the interest of justice, it is but proper that a report can be obtained from the trial court with regard to the above referred documents.
15. In this view, I propose to call for a report from the trial Judge. Accordingly C.M.P. No. 9849 of 1983 is allowed. Unless the documents are duly proved and marked as exhibits, they cannot be looked into by this Court as held by the Supreme Court vide: Periyar and Pareekanni Rubbers Limited v. State of Kerala : AIR1990SC2192 . Therefore, the petitioner in C.M.P. No. 9849 of 1983, appellant in the above second appeal is permitted to bring on record the two documents-registered mortgage deeds in favour of D.D.81, Senankottai Village Cooperative Agricultural Loan Society President dated 21.5.1975 (referred as documents A and B in earlier paragraphs) and the learned Subordinate Judge, Dindigul, is directed to record the evidence in this regard and also afford an opportunity to both parties to adduce evidence is rebuttal, but confined only to the aspects covered by the aforesaid two documents. The learned Subordinate Judge shall submit his report in this regard to this Court within two months from the date of receipt of a copy of this Order. The two mortgage deeds along with the original records received are herewith returned to the trial court. The same shall be returned to this Court along with the report.