NADHAMUNI IYYAN (DECEASED) Vs. APPU ODAYAN

JUDGEMENT

(1.) The District Judge has based his decision largely on Court Exhibits I and II, which he admitted as evidence produced on the Court s own motion. He states that these documents are conclusive on the point of fact.

(2.) Order XL, Rule 27, of the Code of Civil Procedure makes it imperative that an Appellate Court should record its reasons for admitting additional evidence whenever additional evidence is allowed to be produced.

(3.) Apart from the irregularity arising from the omission to comply with this rule, we think that in fairness these documents should not have been relied on for the purpose of proving that the properties attached by the 3rd defendant (plaintiff in Original Suit No. 133 of 1909) were treated as the joint properties of defendants Nos. 1 and 2 in this case (defendants Nos. 1 and 2 in Original Suit No. 138 of 1909) without giving the 3rd defendant, Who was examined as 1st defence witness at the original trial, an opportunity of explaining the circumstances under which he made the application to attach those properties "and his admission in the application. In considering the other evidence of joint dealing with the property, the District Judge has not considered and met the possibility of the explanation suggested by the District Munsif for the joint execution of the mortgage deed to Abboy Chetti by plaintiff and defendants Nos. 1 and 2 being true; and he also appears to have overlooked the point, which the District Munsif noticed, that the plaintiff s evidence as to the purchase of the plaint properties by sale of ancestral properties must be hearsay, when he spoke to what occurred when he was only 2 years old.