H MURALI Vs. A R SEYAD MARIAM

JUDGEMENT

(1.) THE plaintiffs 2 to 4 are the appellants, who have filed the suit for declaration that the defendants 1 to 3 have only life interest in the suit property bearing Door No. 78 Old No. 158, Coral Merchant Street, Muthialpet, Madras, and thereafter, it shall vest with the plaintiffs absolutely and for a consequential permanent injunction and the second appeal is filed by them having failed in both the Courts below. Pending the first appeal it is true that the said plaintiffs have filed in I. A. No. 874 of 2000 for receipt of deed of revocation of settlement dated 21. 05. 1969 marked as Ex. A. 5 in the appellate stage, the appellate court dismissed the application on the basis that the said document is not maintainable in law.

(2.) ONE of the main contentions raised by the learned counsel for the appellants / plaintiffs is as to the correctness of the dismissal of I. A. No. 874 of 2000 filed by the plaintiffs / appellants before the First Appellate court for receipt of additional evidence, while disposing of the appeal with reference to Order 41 Rule 27 C. P. C. The additional document sought to be filed is stated to be a deed of revocation of settlement dated 21. 05. 1969 by which one Girija Bai Ammal, who has as earlier executed a settlement deed dated 15. 07. 1964 marked as Ex. A. 1 stated to have cancelled the said Ex. A. 1. It is true that the Trial Court while dealing with that aspect has stated that the said revocation deed dated 21. 05. 1969 was not produced but nevertheless has held even at the time of rendering the judgement that the said Girija Bai Ammal is not legally entitled to execute such revocation deed dated 21. 05. 1969 since her earlier settlement deed dated 15. 07. 1964 marked Ex. A. 1 cannot be revoked.

(3.) IN fact the learned first appellate judge has also held that such revocation deed is not valid in law, even though he has allowed the said revocation deed executed by Girija Bai Ammal dated 21. 05. 1969 to be marked as Ex. A. 5 in the first appellate stage but rejected the application for receiving the additional evidence. The contention of the learned counsel for the appellant in this regard is that under Order 41 Rule 27 of the C. P. C. , when the appellate court allows the said document to be produced as additional evidence by marking as it Ex. A. 5, it is incumbent on the part of the first appellate court to take evidence by itself or direct the court which has passed decree against which the appeal is preferred or any other subordinate court send to the appellate court thereafter and then decide the issue.