Decided on February 27,1953



Mack, J. - (1.) Appellants are alienee defendants in four suits instituted by one Sitamma to set her alienations to them aside. The District Munsif of Kovvur dismissed the four suits. In appeal, the learned Subordinate Judge, following a procedure which cannot be defended under Order 41, Rule 23, remanded the suits for fresh- disposal.
(2.) The relevant facts necessary to determine these appeals are briefly these: Sitamma, was the only surviving daughter of one Venka-taramiah, whose estate was a large one comprising about 200 acres of land. After her mother's death in 1932, Sitamma, on the footing that she had only a life estate, executed a surrender deed in favour of her sister's sons one of whom Venkataramana Rao, defendant 1 in all these suits, who subsequently alien ated plots of land to these four different alienees by four sale deeds Exs. D-ll to D-14 in 1938. Altogether 7 acres 82 cents of land were conveyed for a consideration of Rs. 5260. The plaintiff sued to set aside these alienations on the ground that the surrender deed in favour of her nephews under which she got only Rs. 1000 as a lump sum maintenance for renunciation of all her rights was fraudulently taken from her, The learned District Munsif found that there was no material to warrant any such finding. Sitamma had filed a previous suit O. S. No. 26 of 1933 against her sister's sons for a declaration that the surrender deed was fraudulently taken and not valid and binding on her. There was no real contest in that suit in which she obtained a decree Ex. P-5 dated 17-11-1938, which is now attacked as collusive as between herself and her nephews in fraud of alienees. Subsequent to obtaining that decree, Sitamma made alienations, Exs. P-8 to P-11 of certain items of property conveying only her life interest. On the day the learned Subordinate Judge took up the appeals for hearing, an application was made on behalf of Sitamma for the admission of two plain paper and unregistered wills in evidence, supported by the affidavit of someone purporting to be her agent, one will dated 29-12-1890 purporting to be by Venkataramiah bequeathing all his property absolutely to his wife, and the other will dated 18-3-1932 purporting to be by Rukminiamma bequeathing all her property absolutely to Sitamma. The learned Subordinate Judge proceeded to consider these two documents and without even giving time to the respondent's advocate to file a counter, adopted a curious procedure. The only provision under which an appellate Court can admit further evidence in appeal is, as the learned Subordinate Judge himself felt, Order 41, Rule 27. Finding some difficulty in applying the provisions of this order in view of the Privy Council decisions ' Parsotim Thakur v. Lal Mohar Thakur', AIR 1931 PC 143 (A) and - 'Mahomed Akbar Khan v. Mt. Motai', AIR 1948 PC 36 (B) which clearly restricted the powers at an appellate Court to admit further evidence under Order 41, Rule 27(1)(b) to the strict confines of that section, the learned Subordinate Judge got over his difficulty in the following manner shown in this extract from, his judgment: "What their Lordships say in these rulings, as I understand it, is that it is not open to an appellate Court to admit fresh evidence at the appeal stage and dispose of the appeal on that evidence unless the party seeking to rely on the documents comes within the four corners of Order 41, Rule 27. That is not what I propose to do here. I do not propose to admit the documents here and dispose of the case itself on their strength." He then remanded the suits for fresh disposal giving both sides liberty to adduce fresh oral and documentary evidence with a direction that the two plain paper wills filed before him were to be received in evidence by the lower Court subject to proof and relevancy.
(3.) The procedure adopted by the Subordinate Judge is illegal and nowhere contemplated by Order 41, Rule 23, The provision since its amendment in 1930 in this State only has been abused by the lower appellate Court can receive fresh evidence in an appeal, is Order 41, Rule 27; nor can the strict provisions of this section be circumvented and by-passed in this manner by a wholesale remand under Order 41, Rule 23 after a suit has been tried and judgment delivered. The only provision under which the appellate Court can admit fresh evidence on the issues tried and found upon is Order 41, Rule 27. If additional evidence is admitted under this provision of law, it can only be dealt with under the provisions of Order 41, Rr. 28 and 29, and the lower appellate Court should have retained the appeal on its file till its final disposal. Remands such as the one, ordered by the Subordinate Judge cannot be too strongly deprecated encouraging as they do successive cycles of litigation in addition to their being in violation of specific provisions of law.;

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