IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 SA.NO. 491 OF 1999(A) --------------------- {IN AS.90/1996 OF THE SUB COURT, NEDUMANGAD IN OS.233/1987 OF PRINCIPALMUNSIFF COURT, NEDUMANGAD} .................... APPELLANT(S)/APPELLANT/1ST DEFENDANT: ------------------------------------------------- BHAVANI GOMATHY, AGED ABOUT 61, GEETHA BHAVAN, KALATHUKAL MURI, KARAKULAM VILLAGE, NEDUMANGAD TALUK. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S)/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT: ------------------------------------------------------------------------ 1. SANKARAN KRISHNAN KUTTY, AGED ABOUT 44, KITTANCHERI VEEDU, ANAYARA, KADUKAMPALLY VILLAGE, TRIVANDRUM TALUK FROM GEETHA BHAVAN, KALTHUNKAL MURI, KARAKULAM VILLAGE. 2. BHARGAVAN SARADA, AGED ABOUT 50, ARIMUKATHU VEEDU, KALATHUKAL MURI, KARAKULAM VILLAGE. R1 BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.G.P.SHINOD SRI.RAM MOHAN.G. & SRI.MANU V. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.NO. 491 OF 1999 :: 2 :: ORDER ON C.M.P.NO.2065/99 IN SA.NO. 491 OF 1999 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 29.10.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. --------------------------------------- S.A.No.491 of 1999 --------------------------------------- Dated this the 29th day of October, 2010 JUDGMENT The appeal is directed against the decree and judgment in A.S.No.90/96 on the file of the Sub Court, Nedumangad, which was against the judgment and decree in O.S.No.233/87 on the file of the Principal Munsiff's Court, Nedumangad. Suit was one for partition, filed by the 1st respondent as plaintiff. His claim for 1/4th share in the suit property, having an extent of 50 cents, was partly decreed by the trial court passing a preliminary decree that he is entitled to 1/4th share in 40 cents out of the suit property. The 1st defendant, who alone contested and resisted the claim for partition, challenged that decree preferring an appeal. S.A.No.491 of 1999 :: 2 :: The lower appellate court confirming the decree passed by the trial court dismissed the appeal. Concurrent decision so rendered by the two courts below is challenged by the appellant/1st defendant in this appeal. 2. Facts of the case involved can be summed up thus: Suit property originally belonged to a Nair Tharwad viz., Neelamathara Tharwad. By virtue of the partition in the tharwad, the property devolved upon one Ayyappan Pillai Krishna Pillai. He had executed a mortgage over the property in favour of one Madan Gopalan. Later the Jenmi, Krishna Pillai, executed A1 sale deed in favour of one Sankaran and his wife Bhavani. The abovesaid Sankaran is the father of the plaintiff and both the defendants, who were begotten by him through two wives, both sisters. Bhavani, the mother of the appellant/1st S.A.No.491 of 1999 :: 3 :: defendant, and one among the vendees under A1 with Sankaran, was his first wife. After her death Sankaran married her sister Bhargavi, the mother of the plaintiff and 2nd defendant. Madan Gopalan, the mortgagee over the suit property had assigned his mortgage rights in favour of one Padmanabhan. After the death of that assignee/mortgagee, under B2, his wife and children released their mortgage rights in favour of Bhavani, who obtained title over the property along with her husband Sankaran under A1 sale deed. Both Sankaran and Bhavani executed A2 mortgage in respect of 40 cents of land and also over the trees situate in the rest of the 10 cents of property, but reserving their right of occupation over the building in that 10 cents, in favour of one Kalu, the mother of Bhavani and Bhargavi. The abovesaid Kalu, the maternal grandmother of plaintiff and S.A.No.491 of 1999 :: 4 :: defendants, executed A3 deed assigning her mortgage rights jointly in favour of the plaintiff, who was then a minor, and Bhargavi, the mother of the defendants. The mortgage over the property has become barred by limitation and as such, as legal heirs of Bhargavi, the plaintiff and the 2nd defendant are entitled to 1/4th share each and the 1st defendant, the other assignee in A3 deed, has obtained the remaining one half right in the suit property, is the basis of the claim set up by the plaintiff for partition. The 1st defendant, who alone contested the suit,pleaded ignorance of A3 deed executed by Kalu and, further, disputed her right to execute such a deed. She also contended that by virtue of B2 deed executed by the legal heirs of Padmanabhan, the assignee mortgagee, in favour of Bhavani, her mother, she was in possession and enjoyment of the property and after her S.A.No.491 of 1999 :: 5 :: demise as the sole legal heir, she continues in possession and enjoyment of the property. She also, in the alternative, contended that the right of the plaintiff and the 2nd defendant is lost by adverse possession. 3. On the materials placed, which consisted of PW.1 and 2 and A1 to A7 series for the plaintiff and B1 and B2 for the contesting 1st defendant the trial court came to the conclusion that the suit for partition is allowable only in respect of the 40 cents of land obtained under A2 mortgage by Kalu, the grandmother of the parties and later assigned by her under A3 deed in favour of the 1st defendant and Bhargavi, the mother of the plaintiff and 2nd defendant. As the legal heirs of Bhargavi, and as A3 mortgage has become barred by limitation, not redeemed within the time prescribed by law, it was held that the plaintiff and the 2nd S.A.No.491 of 1999 :: 6 :: defendant are entitled to 1/4th share each and the 1st defendant who got assignment of the mortgage with Bhargavi, the other half in the 40 cents of the property. In that view of the matter, the plaintiff was granted a decree to have separate possession of his 1/4th share in 40 cents out of the suit property of 50 cents. That decree was challenged by the appellant (1st defendant) preferring an appeal before the lower appellate court. In that appeal, producing a copy of a gift deed purported to have been executed by Sankaran, the father of the parties, and requesting for reception of that document as additional evidence, the appellant canvassed for and, in fact, set up a new challenge to resist the claim for partition of the plaintiff contending that under that gift deed, one half right that Sankaran had over the 50 cents of property was demised in favour of three persons, S.A.No.491 of 1999 :: 7 :: the 1st defendant, Bhavani and the 2nd defendant. So much so, the claim of the plaintiff for partition, if at all it was allowable, according to the appellant (1st defendant) was limited to the fractional right he could have obtained under his mother, with the 2nd defendant, over the 1/3rd share in the 25 cents of land out of the 50 cents, which was covered by the gift deed executed by Sankaran. The lower appellate court, declined to receive the gift deed produced as additional evidence by which such a new case was sought to be introduced by the appellant, to resist the decree granted in favour of the plaintiff. 4. After re-appreciating the materials tendered, the lower appellate court finding that no interference with the conclusion drawn and the decree granted by the trial court was called for, confirmed the decree dismissing the appeal. S.A.No.491 of 1999 :: 8 :: 5. Concurrent decision rendered upholding the claim of partition of the suit property by the plaintiff, but to the limited extent that he is entitled to have only 1/4th share in 40 cents out of the 50 cents described in the plaint schedule, is challenged in the appeal by the appellant/1st defendant. Substantial questions formulated in the appeal relate to the rejection of the certified copy of the gift deed produced in appeal before the lower appellate court from being admitted as additional evidence and the finding entered over the claim of adverse possession of the appellant canvassed for to resist the suit claim for partition. However, at the time of hearing, the learned counsel for the appellant attempted to project a new case that A3 deed executed by Kalu, the grandmother of the parties in favour of Bhavani, her daughter and the appellant/1st S.A.No.491 of 1999 :: 9 :: defendant was only a release of the mortgage right subsisting over the property over which the appellant, as the legal heir of Bhavani, on her death, had already obtained jenmom right to redeem the property. So much so, in such release deed, Bhargavi, the mother of the plaintiff and the 2nd defendant, had been made parties would not confer on Bhargavi any right over the property as she was a stranger having no right over such property, is the challenge raised. The learned counsel placed reliance on Kesavanachi Gopalakrishnan Achari v. Velu Achari Pappukutty Achari {1997(1) Civil LJ 172} to contend that a stranger obtaining release from a mortgagee would not get assignment of mortgagee's interest and in fact by the release, there is an extinguishment of the mortgage right. A stranger, who had volunteered to pay the mortgage debt and obtained a release from S.A.No.491 of 1999 :: 10 :: the mortgagee, it is contended, neither acquire a right of a subrogee, nor of the mortgagee in his favour when such person had no obligation to pay off the mortgage debt and has no interest in the property. The above aspect involved in the case, which has crucial value and merit in adjudicating the real dispute in the case, according to the counsel, could not be brought to the notice of both the courts below, and that has resulted in upholding the claim of the plaintiff for partition of the suit property, though he had no legal right to make such claim. The learned counsel also contended that the lower appellate court went wrong in declining to accept the copy of the gift deed produced as additional evidence, the recitals of which over and above showing that late Sankaran, the father of the parties had gifted his one half right over the suit property in favour of his wife S.A.No.491 of 1999 :: 11 :: Bhargavi and two defendants, begotten through his two wives disclosed that, the mortgage subsisting over the property had also been redeemed on the date of execution of that instrument. No more mortgage liability was subsisting over the property as it had been redeemed by Sankaran on the date of execution of the gift deed is evident from the recitals in that deed, and so much so, the claim for partition as if the mortgage over the property subsisted and it is barred by limitation, according to the counsel, was erroneous and incorrect and liable to be set aside. 6. Per contra, the learned counsel appearing for the 1st respondent/plaintiff contended that the new case attempted to be projected by the appellant to assail the concurrent decision of the two courts below, which has not been raised as a ground, nor any S.A.No.491 of 1999 :: 12 :: substantial question of law formulated thereof in the second appeal, deserve to be taken note of only for its rejection. What has been pleaded in the written statement of the first defendant/appellant is ignorance of A3 assignment deed executed by Kalu in favour of Bhargavi, with a challenge against partition setting forth a plea of adverse plea of possession. The case now advanced that A3 assignment deed executed by Kalu is only a release of the mortgage and one among the parties in whose favour the deed was executed, Bhargavi, the mother of the plaintiff and 2nd defendant, was a stranger having no right over th property, it is submitted, is unworthy of any value or merit. As against the ground canvassed against the rejection of additional evidence, placing reliance on Baby v. Sathy {1993 (2) KLT 731}, it is contended by the counsel that no S.A.No.491 of 1999 :: 13 :: party as of right can claim reception of additional evidence in appeal and it is only where the grounds covered under Rule 27 of Order XLI of the Code are made out, the appellate court will be justified in receiving materials tendered as additional evidence. At any rate, a party who has suffered an adverse decision in his appeal cannot be permitted to fill up the lacuna or gaps in his evidence without showing sufficient ground as covered by the above rule. In a case where the court finds that the matter can be satisfactorily decided on the basis of the materials already on record, the request for reception of additional evidence is liable to be rejected and that alone was followed by the first appellate court in the case and such being the position, the discretion exercised by that court cannot be a subject matter of an appeal under Section 100 of the Code of Civil S.A.No.491 of 1999 :: 14 :: Procedure, is the submission of the counsel, stressing upon that the concurrent decision rendered by the two courts in the suit upholding the claim of partition by the plaintiff/1st defendant to the extent granted under the decree deserve only to be confirmed. 7. Going through the memorandum of appeal filed before the lower appellate court, it is seen that the challenge against the decree passed by the trial court was sought to be assailed on the basis of the gift deed purported to have been executed by late Sankaran, copy of which was produced in appeal requesting for its reception as additional evidence. The only other ground then canvassed was built upon the plea of adverse possession raised by the appellant/1st defendant to resist the claim for partition. So far as that plea of adverse possession, it was evidently not pressed before the lower S.A.No.491 of 1999 :: 15 :: appellate court, and further on the materials also, the finding of the trial court negativing that plea is unassailable. The new case attempted to be projected in the second appeal by the counsel that A3 deed executed by Kalu in favour of Bhargavi and the 1st defendant is a release of her mortgage rights and so much so, Bhargavi, a stranger having no right over the property, could not get any right by virtue of that deed, placing, reliance on Kesavan Achari and another's case, referred to above, as rightly contended by the learned counsel for the respondent, cannot be countenanced at all in the second appeal under Section 100 of the Code of Civil Procedure. Further more, after going through A3 deed, it is seen that it was an assignment of the mortgage right by Kalu in favour of Bhargavi, her daughter, and the 1st defendant, her granddaughter through Bhavani, S.A.No.491 of 1999 :: 16 :: the appellant herein. Bhavani, the mother of the appellant, much before A3 was executed by Kalu, had obtained title and right to redeem the mortgage is no ground to interpret that A3 as a release deed when the recitals therein clearly demonstrate that it is only an assignment of the mortgage right by Kalu in favour of two persons named therein, Bhargavi and the appellant. The executant Kalu had specifically authorised the assignees to hold and enjoy the properties as mortgagees with the liability of the mortgagor to redeem it on payment of the mortgage debt. When such be the case, reliance placed on Kesavan Achari and another's case, (cited above) to dispute and discard the mortgage right obtained by Bhargavi under A3 deed contending that she was a stranger as if the deed was one of release of the mortgage right by the mortgagee Kalu, is unworthy of any merit. S.A.No.491 of 1999 :: 17 :: 8. There is absolutely no merit on the challenge raised by the appellant to impeach the claim of partition of the plaintiff and the decree granted in his favour, on the basis of the gift deed executed by Sankaran, the copy of which was sought to be introduced as additional evidence in the appeal before the lower appellate court. Even if that gift deed was accepted in evidence, it would not have improved the case of the 1st appellant in any manner without there being documentary evidence establishing that the mortgage over the suit property assigned in favour of Bhargavi and appellant under A3 by Kalu had been redeemed within the period as provided by law. The recitals in the gift deed executed by Sankaran indicate that on the date of its execution, mortgage was also got released by the executant, is hardly sufficient to hold that there was S.A.No.491 of 1999 :: 18 :: extinguishment of the mortgage which subsisted over the property. So much so, the gift purported to have been executed by Sankaran in favour of the persons referred to above, has no decisive effect or value in deciding the claim raised in the suit for partition. Further more, there is nothing to indicate that the court below, has exercised its discretion improperly in declining the request for receiving the copy of the gift deed produced in the appeal as additional evidence. A new case not pleaded in the written statement of the 1st defendant evidently was sought to be urged in appeal producing the copy of the gift deed, and it was rightly and correctly rejected by the lower appellate court. 9. Though in the judgments rendered by both the courts, there is some apparent mistake with respect to the right flowing to the parties S.A.No.491 of 1999 :: 19 :: under the various deeds produced as if the parties thereto had obtained sub-mortgage rights, I find, that has not, in any way, materially affected the decision rendered with respect to the claim of partition by the plaintiff over the suit property. The 1st respondent/plaintiff had challenged the exclusion of 10 cents out of the suit property from being partitioned filing cross objections in the appeal preferred by the 1st defendant/ appellant before the lower appellate court. That cross objection had been dismissed and there is no further challenge thereto. So, the decree granted that the plaintiff is entitled to 1/4th share in 40 cents out of the suit property alone, which is challenged in this appeal by the 1st defendant alone survive for consideration. As indicated earlier, the challenge mooted by the appellant/1st appellant to assail the S.A.No.491 of 1999 :: 20 :: concurrent decision of the two courts below, granting a decree to the plaintiff declaring his right to have 1/4th share in the 40 cents out of the 50 cents described in the plaint schedule, is meritless. No question of law leave alone any substantial question of law is involved in this appeal. The appeal is dismissed, directing both sides to suffer their costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//