IN THE HIGH COURT OF JUDICIATURE AT MADRAS DATED: 13.06.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NO.1177 of 1994 & C.M.P.No.1372 of 2007 1.Palani Gounder 2.Kanagarasu 3.Ramathal 4.Karunambal @ Kannagi 5.Lakshmi .. Appellants Vs. 1.Rathamani 2.Sarathambal 3.A.R.Samiappan . . Respondents (R3 impleaded as party respondent vide order dated 09.04.2007 made in C.M.P.No.896 of 2007) The First Appeal is filed against the judgment and decree dated 06.09.1994 made in *O.S.No.294 of 1990* on the file of the Subordinate Court, Tiruppur. For Appellants : Mr.G.Bharadwaj for Appellant A1& A2 Mr.M.Sriram for A3 to A5 For Respondents : Mr.S.V.Jayaraman, Senior Counsel for Mr.K.GoviGanesan for R1 and R2 Mr.AR.L.Sundaresan Senior Counsel for Mrs.A.L.Gandhimathi for R3 JUDGMENT The gist and kernel of the case of the plaintiffs as stood exposited from the plaint could be portrayed thus; 2. The Suit agreement to sell Ex.A2 dated 10.01.1990 emerged between the plaintiffs on the one side and the first defendant on the https://hcservices.ecourts.gov.in/hcservices/ other side, whereby the later agreed to sell the suit immovable property to an extent of 6 acres in S.No.28, Rakkipalayam Village, Avinashi Taluk in favour of the former. The suit property was purchased originally by the first defendant, vide sale deed dated 06.04.1962 from out of his own income and it is his self acquired property. Accordingly, he agreed to sell in favour of the plaintiffs as per agreement dated 10.01.1990 for a sum of Rs.85,000/-. The plaintiffs under Ex.A2 paid a sum of Rs.25,000/- and subsequently another sum of Rs.10,000/- also was paid, as revealed by the endorsement (Ex.A3) by the first defendant. The time stipulated for performance under Ex.A2 was nine months. However, the defendants turned turtle and had a volte face. 3. Even though the plaintiffs have been ready and willing to perform their part of the contract, there was no response from the first defendant. The plaintiffs notice dated 28.05.1990 (Ex.A4) issued to the first defendant evoked no positive response from the first defendant. However, the second defendant, son of first defendant sent the lawyer's notice Ex.A6 dated 09.06.1990 contending as though the suit property was the joint family property and the first defendant has no right to sell the entire property. Whereupon the plaintiff filed the suit as against the first defendant for specific performance of the agreement to sell under Ex.A2. During the pendency of suit, the second defendant, the son of the first defendant and the defendants 3 to 5, the daughters of the first defendant were also added as parties. 4. Per contra, denying and refuting, challenging and impugning, the averments and allegations in the plaint, the defendants filed the written statement with the averments the quintessence of them would run thus; 5. The first defendant is the Manager and Kartha of the joint family comprised of all the defendants. As such, the first defendant had only 1/5th share in the suit property and he intended to alienate as per Ex.A2 only his 1/5th share. But taking undue advantage of the first defendant's ignorance and illiteracy, the plaintiffs' husband along with the plaintiffs, managed to get Ex.A2 signed by the first defendant as though the first defendant had agreed to sell the entire 6 acres of land. Ex.A2 was not read over to the first defendant before obtaining his signature in it. The second defendant did not sign Ex.A2 as an attesting witness. But it appears that the plaintiffs forged the signature of the second defendant in Ex.A2. The first defendant was not in receipt of any pre-suit legal notice. The first defendant received only a sum of Rs.25,000/- on 10.01.1990 and Rs.10,000 on 23.04.1990. But the alleged attesting witness Duraisamy was not present at the time of emergence of Ex.A3 endorsement. No attesting witnesses were present at the time of the first defendant signing Ex.A2. The first defendant signed Ex.A2 only under the impression that his 1/5 share was proposed to be sold by him to other plaintiffs. The first defendant was always ready and willing to perform his part of the contract in selling his https://hcservices.ecourts.gov.in/hcservices/ 1/5th share in the suit property, after receiving a sum of Rs.50,000/- which happened to be the remaining part of the sale consideration from the plaintiffs. The plaintiffs had no sufficient funds to pay the said amount of Rs.50,000/-. Accordingly, he prays for dismissal of the suit. 6. After impleadment of the defendants 2 to 5, all the defendants joined together and filed the written statement reiterating the averments as found set out earlier in the written statement of the first defendant and also by setting out the additional averments as under; 7. The suit property was worth Rs.6,00,000/- at the rate of Rs.1,00,000/- per acre, at the relevant time of emergence of Ex.A2. The first defendant never intended to sell the entire six acres of land for the paltry sum of Rs.85,000/-. It is false to allege on the part of the plaintiffs that the first defendant intended to sell, as Ex.A2 for discharging the debt incurred by the first defendant for solemnising the marriage of his daughters, the defendants 4 and 5. 8. The first defendant as the Kartha of the joint family signed Ex.A2. The suit property is not the self- acquired property of the first defendant, but he purchased it from and out of the income of the ancestral properties. 9. The first defendant was working as a Gang man from the year 1944 to 1983 and during the time of his retirement his salary was Rs.730/- per month. After retirement, he got a sum of Rs.40,000/- from the Southern Railway and he generated additional fund by lending those amounts to others and ultimately he put all his earnings into the joint family. Ex.A2 was not entered into for meeting the family necessities. Since the plaintiffs came forward to purchase first defendant's 1/5th share in the suit property for Rs.85,000/-, he felt that such an amount would be an additional contingent for the marriage of his daughters, Karunambal @ Kannagi and Lakshmi. Accordingly they prayed for the dismissal of the suit. 10. The trial Court framed the relevant issues. During the trial, on the plaintiffs side the second plaintiff was examined as PW1 and another one was examined as PW2 and Ex.A1 to Ex.A9 were marked. On the side of the defendants, DW1 and DW2 examined themselves and Ex.B1 to B20 were marked. Ultimately, the trial Court decreed the suit. 11. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendants filed this appeal on the following grounds among others; 12. The judgment and decree of the trial Court are against law and weight of evidence. The trial Court was wrong in holding that the suit property is the self acquired property of the first defendant. The suit property was purchased from and out of the income derived from the https://hcservices.ecourts.gov.in/hcservices/ ancestral properties of the defendants' family. The defendants pleaded that the joint family of the defendants owned and possessed the following properties; 1. 3 acres of Garden lands in Survey No.447/2 2. 3 acres of Garden Lands in S.F.No.468 3. 1 Acre 50 cents of Garden Lands in S.F.No.557 4. 1 Acre of Garden Land in S.F.No.446/2 5. Acre 0.40 Garden Lands in Survey Field No.458/2 13. All situate in Pudupalayam Village and the Joint Family of the defendants at the relevant time was getting an income of Rs.15,000/- to Rs.20,000/- per annum from the suit family properties. But all these facts were not considered properly by the trial Court. Ex.B1 to Ex.B14 which proved the existence of ancestral properties of the defendants were ignored by the trial Court. Ex.B20 the sale deed would prove the plea of defendants that there is a joint family property among the defendants and they possessed 8 ½ acres of Garden Lands at the relevant time. The sale deed Ex.A1 in the name of the first defendant, the kartha of the joint family, is presumed to be the joint family property of all the defendants. The trial Court failed to consider that the first defendant as the Gang Man at the time of emergence of Ex.A1 was earning a sum of Rs.730/- per month and that he could not have purchased as his self-acquired property as per Ex.A1 for a sum of Rs.1500/-. The trial Court was wrong in holding that the second defendant signed Ex.A2 as an attestor. The trial Court was not justified in comparing the signatures of the second defendant and thereby arriving at a conclusion. The trial Court was wrong in understanding the last portion of the cross- examination of DW1 as though DW1 admitted the presence of the second defendant at the time of emergence of Ex.A2. Accordingly, the defendants pray for setting aside the judgment and decree of the court below and for dismissal of the original suit. 14. The sixth defendant the purchaser of the suit property from the defendants 1 and 2, after the judgment and decree of the trial Court, has been impleaded in the appeal. 15. C.M.P.No.1372 of 2007 was filed by the plaintiffs under Order 41 Rule 27 CPC for adducing additional evidence by producing the certified copy of the sale deed dated 01.12.2004 executed by the defendants 1 and 2 in favour the the sixth respondent herein so as to prove that even in that sale deed which emerged after the judgment and decree of the trial Court, defendants 1 and 2 averred candidly and categorically that the suit property was purchased by the first defendant as his self acquired property as per Es.A1 and that the value of the suit property even during the year 2004 was only Rs.3,80,500/- and that it could not be Rs.6,00,000/- on the date of emergence of Ex.A2 dated 10.01.1990. https://hcservices.ecourts.gov.in/hcservices/ 16. However, the respondents filed counter affidavit contending that such an additional document should not be entertained and that the plaintiff should not allowed to fill up the lacuna. 17. The points for consideration in this appeal are;- 1) Whether the additional document dated 01.12.2004 can be entertained as an additional evidence; 2) Whether the finding of the trial Court that the suit property is the self acquired property of the first defendant is contrary to the evidence adduced by the defendants; 3) Whether the first defendant signed Ex.A2 without knowing the contents of Ex.A2, but under the impression that he was intending to sell only his 1/5th share in the suit property, for a sum of Rs.85,000/-; and 4) Whether there is any infirmity in the judgment and decree of the trial Court. Point No1: 18. The additional document, i.e., the certified copy of the sale deed dated 01.12.2004 would reveal that the defendants 1 and 2, the father and the son, apparently after the judgment and decree dated 06.09.1994, which are under challenge in this appeal, alienated the suit property and hence the plaintiffs would rely upon the recitals in the said document so as to highlight the conduct of the defendants as well as the falsity of their plea. In the said document, the defendants 1 and 2 averred clearly and categorically to the effect that the subject matter of the suit was the self-acquired property of the first defendant by virtue of sale deed Ex.A1 and such a stand of the defendants 1 and 2 as found set out in the additional document, supports the plea of the plaintiffs that in fact the suit property belongs to the first defendant exclusively as his self acquired property. As such, it is ex facie and prima facie clear that the said additional document could rightly be allowed to be marked as Ex.A10 and be taken as additional evidence as per Order 41 and Rule 27 CPC. 19. Whereas the learned senior counsel for the defendants 1 and 2 would place reliance on various precedents and develop his arguments to the effect that the additional documents could not be entertained as a matter of course. Therefore, it is just and necessary to consider those judgments cited by him. 20. An excerpt from the decision reported in (2001) 1 SCC 309 (MAHAVIR SINGH v. NARESH CHANDRA) would run thus; "5. Before we proceed further we would like to refer to the scope of an application under Order 41 Rule 27 CPC. Section 107 CPC enables an appellate https://hcservices.ecourts.gov.in/hcservices/ court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order 41 Rule 27 CPC. The principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower Court and cannot take evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly. The scope of Order 41 Rule 27 CPC was examined by the Privy Council in Kessowji Issur V. Great Indian Peninsula Rly.Co 1 ILR (1907-08)31 Bom 381 in which it was laid down clearly that this rule alone can be looked to for taking additional evidence and that the Court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order 41 Rule 27 CPC envisages certain circumstances when additional evidence can be adduced: (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) 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 (iii) 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." 20. A perusal of the said Judgment would clearly indicate that the additional documents in this case could be entertained for the reasons cited supra, as it is absolutely necessary to enable the Court to understand clearly the intention of the party, over and above the evidence available on record. 21. The decision of this Court reported in AIR 2003 Madras 54 (PUSHPA BAI STALIN v. DHAYA POOMKAMAZH) is not applicable to the facts and circumstances of this case as in the cited decision, it is found stated that the parties seeking to file additional evidence should not https://hcservices.ecourts.gov.in/hcservices/ at the stage of appeal make fresh allegations of facts and call upon the other side to admit or deny the same. But here the case is different, as the defendants 1 and 2 virtually issue additional document dated 01.12.2004 had given a go bye to the stand before the trial Court. Hence, the additional document is relevant. 22. The decision reported in AIR 2005 Madras 431 (PAPPAYAMMAL v. PALANISAMY) is not applicable to the facts and circumstances of this case. In the cited case, this Court held that the disputed documents cannot be for the first time entertained during the appellate stage and that too when oral evidence is required. Here the additional document is an admitted document, but not a disputed document. Hence, I am of the considered opinion that the additional document could rightly be allowed to be marked as Ex.A10 as already nine documents were marked on the plaintiffs side. 23. The learned counsel for the plaintiffs also would submit that Ex.A2 emerged on 10.01.1990 whereas after 14 years the additional document emerged during the year 2004; but the additional document would refer to the value of the suit property only as Rs.3,85,000/- and in such a case, the defendants were not justified in contending that during the year 1990 the suit property was worth Rs.6,00,000/- at the rate of Rs.1,00,000/- per acre. 24. In view of clinching additional evidence available in the additional document, the said additional document is marked as Ex.A10. 25. Points 2 and 3. These points are taken together for discussion as they are inter-linked and inter-woven with each other. 25. The learned counsel for the defendants 1 and 2 would contend that Ex.B1 to B4, the revenue records such as patta, chitta adangal etc., would clearly demonstrate that the defendants owned joint family properties; but ignoring the same, the trial Court rejected the plea of the defendants. Whereas, the learned senior counsel for the plaintiffs would advance his arguments to the effect that merely because certain properties are stated to be available in the name of the ancestors of the defendants, there is no presumption that the suit property is the joint family property and the alleged income from such properties enabled the first defendant to purchase the suit property as per Ex.A1 during the year 1962. 26. The learned counsel for the plaintiffs cited the decision of this Court reported in 1983 (1) MLJ 36 (POOCHAMMAL v. CHINNASAMY THEVAR). An excerpt from it would run thus; "8.The other decision is that the Supreme Court in Balmukand V.Kamlawati ((1921) ILR 44 Mad). In that case 'Balmukund entered into a contract with the https://hcservices.ecourts.gov.in/hcservices/ kartha of a joint family for purchase of a family property. The property consisted of a fractional share in a large plot of land. Earnest money was paid to the kartha. The kartha did not execute a sale deed and therefore, Balmukund instituted a suit for specific performance. The other members of the family were the brothers of the kartha. They were all adults at the time of the contract. They were impleaded as defendants. The suit was resisted on the ground that there was no legal necessity and that the contract for sale would not be for the benefit of the family. The trial Court as well as the High Court upheld these contentions regarding the absence of legal necessity and benefit to the family. Before the Supreme Court it was contended that even though there was no legal necessity, the transaction was for the benefit of the family and that the Kartha, as a prudent owner, was entitled to enter into a contract for the benefit of the family. The Supreme Court pointed out that no part of the joint family property could be parted with by the manager on the ground of the alleged benefit of the family when the transaction was opposed by the adult members of the family and that the granting of specific performance also was always in the discretion of the Court. In that case it was found that the trial Court as well as the appellate Court were justified in refusing to order specific performance. I do not find that this case is of any assistance to the problem before me. As I have already pointed out, the recitals in Exhibit A-1 remain uncontradicted. Hence the kartha was competent to enter into a contract for sale of the property to discharge an earlier mortgage, to incur expenses for the marriage of a daughter and to maintain the family itself. Even assuming that anyone is entitled to object to the absence of benefit to the family, it is Chellappa, the son of Perumal. Chellappa has not come forward with any appeal and it is not for Poochammal, to set up herself as if she could challenge the finding of benefit to the family. She is only a usufructuary mortgagee. Her rights as mortgagee are intact under the alienations. In these circumstances, there are no merits in the second appeals. They are dismissed. There will be no order as to cost." 27. He would also cite the decision of this Court reported in 1993 (II) MLJ 275. An excerpt from it would run thus; "8. I have considered the rival submissions. https://hcservices.ecourts.gov.in/hcservices/ First of all, admittedly the property purchased under Ex.A-1 was in the name of Kathan. So, even assuming that there was a joint family of the above said both the branches, it is for the defendant to plead and prove that the above said purchase under Ex.A-1 was for the family of the said two branches. In other words, even assuming that Karthan remained a member of the said family, there is no presumption in law that Ex.A-1 property purchased exclusively in Kathan's name was only purchased by the family of the said two branches. It is settled law that there is no presumption that any property standing in the name of the Kartha or a member of the family is a joint family property. The person who wants to set up the case that the property purchased in the name of a coparcener is that of the family, must plead and prove the existence of a joint family nucleus with sufficient surplus income on the date of purchase." 28. As such, placing reliance on the aforesaid two judgments, the learned senior counsel for the plaintiffs would develop his argument that the onus of proof would not automatically get shifted to plaintiffs herein, simply because the defendants pleaded that defendants owned joint properties and that they should have initially proved that those properties were income bearing properties and from out of that alone the first defendant purchased the suit property as per Ex.A1. He would also develop his arguments to the effect that simply because certain properties are available, there is no presumption that those properties are joint family properties. As such, except the deposition of DW1 (D1) and DW2, the father and the son, there is no iota or shred of evidence to prove that the income was derived from those alleged joint family properties, for purchasing the suit property in the name of the first defendant, as per Ex.A1 as alleged by the defendants. 29. Whereas the learned senior counsel for the defendants 1 and 2 would try to torpedo the argument of the learned senior counsel for the plaintiffs, by pointing out that there is a presumption that once the joint family is owning properties and the Kartha of the joint family purchases, a new property, it is presumed that such property shall form part of the joint family property. According to him, Ex.B1 to Ex.B13, Ex.B14 and Ex.B20 would establish the facts in favour of the defendants and that the trial Court failed to consider it. It is therefore just and necessary to consider those documents relied on by the defendants. Ex.B1 is the patta bearing No.1656 which would show that in S.No.446/2H to an extent of 0.035 hectares standing in the name of Muthammal W/o Angappa Gounder. Ex.B2 is the patta bearing No.1666 which would show that in S.No.507/4 to an extent of 3.80 hectares and .5 acres standing in the name of Appu Kutti S/o Angappa Gounder. https://hcservices.ecourts.gov.in/hcservices/ Ex.B3 is the patta bearing No.1849 which would show that in S.No.447 to an extent of 4 hectares 2.5 acres standing in the name of the plaintiffs and 6 other persons. Ex.B4 is the patta bearing No.594 which would show that in S.No.468/1A to an extent of 1 hectare 28.0 acres standing in the name of Palaniappan S/o Chinnappa Gounder. Ex.B5 relating to patta bearing No.1666 which would show that in S.No.507 to an extent of 3 hectares 80.5 acres standing in the names of Appukutti S/o Angappa Gounder, Palani Gounder and Marappa Gounder S/o Chinnaya Gounder. Ex.B6 is the patta bearing registration No.1656 which would show that in S.No.446 to an extent of 2 hectares 28.5 acres standing in the names of Palaniappa Gounder and Marappa Gounder S/o of Chinnaya Gounder. 30. Simply because those documents reveal that the first defendant along with others had certain rights over the