IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 SA.No. 41 of 2000(E) -------------------- AS.16/1994 of SUB COURT, MUVATTUPUZHA OS.591/1991 of MUNSIFF'S COURT,MUVATTUPUZHA .................... APPELLANT(S)/APPELLANT/DEFENDANT: ---------------------------------------------------------- CHOTHY, S/O. CHERIAN, INCHOLICKAL HOUSE, OOORAMANA KARA, MEMURY VILLAGE. BY ADV. SRI.P.P.JACOB RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ KARTHIAYAN, W/O. NARAYANAN, PULINAL HOUSE, PRIYARAM KARA, AIKRANADU VILLAGE, KUNNATHUNADU TALUM, ERNAKULAM. ADV. SRI.TPM.IBRAHIM KHAN SMT.R.MEERADEVI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON 14/10/2009 DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 99/2000 IN S.A. 41/2000. DISMISSED. 14.10.2009. SD/- P. BHAVADASAN, JUDGE. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 41 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2009. JUDGMENT The defendant in O.S. 591 of 1991 before the Munsiff's court Muvattupuzha is the appellant. The parties and facts are hereinafter referred to as they were available before the trial court. 2. The facts are not in dispute. The suit was one for partition. The property belong to the father of the plaintiff and defendant, namely, Cherian. Cherian died on 9.9.1991. According to the plaintiff, he died intestate. Parties are governed by the Hindu Succession Act. The plaintiff and the defendant are the only legal heirs left behind by late Cherian and the plaintiff is entitled to one half of the suit property. 3. The defendant put up a contention that late Cherian had executed a will and as per the will the entire property devolved on him. S.A. 41/2000. 2 4. Before the court below, the parties adduced evidence. The questions that arose for consideration was whether the will set up by the defendant had been proved. He was unable to produce the document, because according to him it was not with him. He claims that he was unable to locate the will inspite of his best efforts and he examined D.W.2 in order to prove the execution of the will. The trial court refused to accept the contention put forward by the defendant and decreed the suit passing a preliminary decree for partition. 5. The defendant assailed the decree before the lower appellate court in A.S.16 of 1994. Before the said court, he had produced the will on which he placed reliance before the trial court. He prayed that the question regarding the genuineness of the will may be considered. The lower appellate court noticed that the will had been produced belatedly, and refused to go into that question and confirmed the decree passed by the trial court. It is the said decree that is assailed in this second appeal. S.A. 41/2000. 3 6. The substantial questions of law formulated in this second appeal are as follows: “(i) Is the first appellate court justified in disposing of the first appeal without considering and pass orders on the interlocutory application filed in A.S.16/94 to accept additional evidence ? (ii) Whether the question relates to substance, procedure and evidence has been wrongly decided by the lower court is permissible in law as is mentioned in Order 41 R 27 ? (iii) Whether the non-consideration of the additional evidence by the lower appellate court would substantially affect the right of the parties ? (iv) Whether the court below bound to consider the evidentiary value of the additional evidence produced which is capable to alter the very basis of the contentions raised in the suit touching the relevant issue in the suit ? (v) Whether the rejection of additional evidence by the lower court is essentially an erroneous approach to the relevant facts in issue and if so justifiable ? (vi) Whether the lower appellate court justified in S.A. 41/2000. 4 confirming the finding of the trial court “that the deceased has not executed a Will in favour of the defendant” when the original Will itself is produced for consideration though belated with petition to accept the same ? (vii) Whether the court below bound to declare the rights of the parties in case the additional document will substantially affect the right of parties in order to render justice ?” 7. The limited issue arises for consideration is whether the court below was justified in declining to grant an opportunity to the defendant to prove the Will produced by him at the appellate stage. The appellant had filed the application under Order 41 Rule 27 of the Code of Civil Procedure to receive the Will located by him after considerable effort and consider that document while disposing of the appeal. 8. It appears that there was no justification for the court below to decline the prayer made by the defendant. Even assuming that the court below was disinclined to remand the matter, there is S.A. 41/2000. 5 nothing prevented the court below from directing the parties to adduce evidence before the said court with regard to the Will. It is not as if the defendant had set up the Will for the first time before the appellate court. He had pointed out even before the trial court that late Cherian had executed a Will. He was unable to locate the same. May be that, after locating the Will he had to produced the Will along with the Appeal Memorandum before the appellate court itself. But the mere fact that he produced it later by itself is not a ground to decline without considering the genuineness of the will. It is felt that in the facts and circumstances of the case an opportunity ought to have been given to the defendant to establish his claim based on the Will. In the result, this appeal is allowed, the judgment and decree of the court below are set aside and the matter is remanded to the trial court for fresh consideration in the light of what has been stated above. The parties shall appear before the court below on 12.11.2009. The court below will make every endeavour to S.A. 41/2000. 6 dispose of the suit as expeditiously as possible, at any rate within four months from the date of appearance of the parties. Office will transmit the records to the court below forthwith. P. BHAVADASAN, JUDGE sb. S.A. 41/2000. 7 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 41 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 14.10.2009