BASHYAM AND ANOTHER Vs. ANANTHAMMAL AND OTHER

JUDGEMENT

(1.) The plaintiffs are the appellants. The suit related to property, which belonged to one Ayyamperumal. The plaintiffs are the reversioners of Ayyamperumal. The 2nd defendant has purchased the property from the 1st defendant, who claims to be the widow of Ayyamperumal. The plaintiff's case was that the 1st defendant was the widow of one Manickam. The case of the defendants on the other hand was that the first defendant was divorced from Manickam according to caste custom and that therefore she married Ayyamperumal. Ayyamperumal died in 1942. Evidence was also produced by the defendants to show that the 1st defendant had borne a child to Ayyamperumal. The plaintiffs on the other hand contended that the 1st defendant had never been married to Ayyamperumal but she had only been married to Manickam. The trial court dismissed the suit. During the course of the appeal the plaintiffs wanted to let in evidence to show that the 1st defendant had been living in Aminjikarai in Madras, that in the electoral roll of the Legislative Assembly relating to Aminjikarai the 1st defendant's name is found and there she is mentioned as the widow of Manickam. They also produced an extract from the birth register showing that the 1st defendant had borne a child to Manickam in 1948 and another extract from the death register showing that the child had died in 1952. Another document, which the appellants produced was the full electoral roll to show that this was not a stray entry in the electoral roll. The lower appellate court dismissed this petition for reception of additional evidence holding that it would be wrong and incorrect to allow the plaintiffs to file these documents, as, if permitted, it would defeat the ends of justice and would result in parties being permitted to cook up and file irrelevant deeds by scanning birth registers. Considering the fact that all the documents sought to be produced by the appellant are public documents. I do not think that the lower appellate court was correct in saying that if admitted it would prompt parties to cook up and file irrelevant deeds.

(2.) The only other question that might arise was as to why these documents were not filed at an earlier stage. The whole of the electoral roll seems to have been sought to be filed, because it was stated that the extract from the electoral roll originally filed by the plaintiffs referred only to one entry. With regard to the birth of a child to the 1st defendant through Manickam and the death of that child documents were produced at that stage, because only during the course of the evidence of the 1st defendant's father he said that Manickam died within three or four months after the dissolution of his marriage with the 1st defendant. I should consider therefore that this is an eminently fit case where the additional documents sought to be produced by the plaintiffs should have been admitted in evidence.

(3.) It is however urged on behalf of the respondents that this court has no power in second appeal to take this fact into consideration, and reliance was placed upon the decision of a Full Bench in Vaithinatha Pillai v/s. Kuppu Thevar (1). But when that decision was rendered O. 41, R. 27 did not contain a clause similar to Cl. (b) of Sub -R. (1) of R. 27 of O. 41 , C.P.C. That sub -rule is as follows: