Tuesday 1 November 2016

Whether rights of coparceners will be affected if ancestral property is not mentioned in partition deed as coparcenary property?

  Now coming to the facts, as stated above, the parties are

governed by Hindu Mithakshara Law as modified by custom. The recitals

in Ext.A1 clearly indicate that the properties obtained by Veluchami in that

partition were ancestral in nature. Admitted facts would show that the

defendants 3 and 5 were born before commencement of the Act of 1956

and also much prior to Ext.A1. As the properties included in Ext.A1 were

ancestral, the defendants 3 and 5 had acquired a right by birth although

their rights were not recognized in Ext.A1. It is a definite proposition that a

mere non-mentioning of the names of coparceners in a partition deed

should not denude them of their rights. That also would not affect or alter

the nature of property involved in the document. And the property still

would remain as        coparcenary property. In otherwords, a mere non-

inclusion of certain coparceners in a partition deed will not make a



coparcenary property a separate property of the executants. In this case,

another contention is that Ext.B1 release deed, taken from the defendants

3 and 5 by Veluchami and his two wives, also probabilises the case of the

appellants that deceased Veluchami himself had acknowledged the nature

of property as one belonged to a coparcenary.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                     PRESENT:

                             MR. JUSTICE A.HARIPRASAD

                29TH DAY OF SEPTEMBER 2016

                                               RSA.No. 996 of 2009 
 KALI AMMAL ,
Vs
       VALLIYAMMAL, 



              The substantial questions of law arising in this second appeal

are thus:

              i.    Is the finding of the courts below that the plaint schedule

property did not form part of the joint family property of deceased

Veluchami Erappa Kounder (hereinafter, "Veluchami") legally correct in the

light of the available evidence?

              ii.   Does the judgment in Chittur Service Co-operative

Bank Ltd. v. Kumaran (1992 (1) KLT 216) apply to the facts and

circumstances of this case? Does the ratio in the decision have an all

pervasive application, regardless of the facts in each case?

              iii.  Are the findings by the courts below that marriage

between deceased Veluchami and his second wife, the 1st appellant, was

not legally valid and she is not entitled to any share in his properties

correct?

       2.     Defendants 2 and 4 in O.S.No.124 of 1995 on the file of the



Court of Munsiff, Chittur are the appellants.         The plaintiff and other

defendants are the respondents.

       3.      Heard the learned counsel appearing for the appellants and

respondents 1 to 3.

       4.      The suit is one for partition with following averments: The

properties belonged to Veluchami. He had married defendants 1 and 2. His

first wife (1st defendant) died pending the suit. Her legal representatives

are the plaintiff and defendants 3 to 5. No issue was born to Veluchami

through his 2nd wife (2nd defendant). Plaintiff and other contesting

defendants are the children born to Veluchami through the deceased 1st

defendant.

       5.      The  properties  originally   belonged    to  the   family   of

Kumarachami Kounder. On 26.09.1956, Kumarachami Kounder, and his

children, viz., Veluchami and Pazhanichami partitioned the properties as

per Ext.A1 partition deed. It is recited in Ext.A1 that the property devolved

on Kumarachami Kounder as per a partition in 1098 ME (corresponding to

1933 Christian Era). The recitals in Ext.A1 would clearly show that the

properties were ancestral in nature. As per Ext.A1, the plaint items were

set apart to Veluchami in A schedule. Veluchami died in the year 1990.

After his death, the property devolved on the plaintiff and defendants. As

the contesting defendants were not willing to amicably effect a partition, the


suit was filed.

       6.      Defendants 1, 2 and 4 filed a joint written statement opposing

the plaint averments. Veluchami obtained the properties by virtue of Ext.A1

partition deed is an admitted fact. It is contended by the defendants that

even before Ext.A1 partition, the defendants 3 and 5 were born in the

family. They had 2/3 right over the property as the properties set apart to

Veluchami were joint family properties. The defendants 3 and 5 are the

coparceners born in that joint family. They released their rights in the co-

parcenery property in favour of their father Veluchami and mothers, viz.,

defendants 1 and 2, by virtue of Ext.B1 document in the year 1978. By

virtue of Ext.B1 release deed, the property exclusively belonged to

Veluchami and defendants 1 and 2. Neither the plaintiff nor defendants 3

and 5 has any right over the property.      After the release deed, the joint

family ceased to exist and the suit properties are not available for partition.

       7.      Veluchami and his children incurred a debt as per the decree

in O.S.No.221 of 1975 before the Court of Munsiff, Chittur. For discharging

the debt, the properties were possessorily mortgaged in the year 1975 in

favour of the husband of 4th defendant, by name Thankavelu. Later, some

more amounts were received by Veluchami and others from him in order to

discharge another decree debt in O.S.No.372 of 1974 of the same court.

Therefore by virtue of the possessory mortgage, Thankavelu became the



absolute owner of the property, as he prescribed title by adverse

possession and limitation. For that reason also, the suit is not maintainable.

It is the common case of the parties that they are governed by Hindu

Mithakshara Law as modified by custom.         So, in the absence of any

specific custom pleaded and proved, the principles of Hindu Mithakshara

Law will have to be applied to them.

        8.     The case had a chequered career. Originally the suit was

decreed vide judgment dated 20.12.1996. A preliminary decree for partition

was passed directing to divide the plaint schedule properties into six equal

shares and the plaintiff was found to be entitled to one share.          The

defendants were also found to be entitled to one share each in the

property. Aggrieved by the judgment and decree, the defendants 1, 2 and

4 took up the matter in appeal before the District Court, Palakkad as

A.S.No.45 of 1997.     The lower appellate court found that an order of

remand was essential for raising an issue regarding nature of the property

and the rights of defendants 3 and 5 thereon. According to the learned

Additional District Judge, number of shares would change according to the

findings on this issue. The issues cast touching on the non-joinder of

necessary parties and adverse possession and limitation were concluded

in favour of the plaintiff by the lower appellate court in the first round of

litigation and now they have become final. Subsequent to the remand, the



trial court reconsidered the surviving issues and again the suit was

decreed. A preliminary decree for partition was passed. But, this time the

trial court found that the plaintiff was entitled to get 1/4th share in the plaint

schedule properties. The obvious reason was that the 1st defendant,

mother of the plaintiff and defendants 3 to 5, expired in the meantime

resulting in augmentation of their share. That apart, it was found that the

2nd defendant, who claimed to be wife of Veluchami, has no right over the

property as her marriage with Veluchami was in violation of the provisions

of the Hindu Marriage Act, 1955 (in short, Act of 1955").

       9.      Again the matter was taken up in appeal before the District

Court, Palakkad. The learned District Judge re-appreciated the evidence

and dismissed the appeal. Relying on the principles laid down in Co-

operative Bank's case (supra) the lower appellate court found that the

properties in dispute were the self acquired properties of Veluchami.

Therefore, the defendants 2, 3 and 5 have no right over the property. That

apart, the 2nd defendant was found to be not entitled to any share in

Veluchami's property because her marriage with him was invalid. With

these reasonings, the trial court's judgment and decree were confirmed.

       10.     Learned counsel for the appellants contended that the lower

appellate court and the trial court went wrong in deciding the case by

placing reliance on the decision in Co-operative Bank's case. In that



case, the properties belonged to one Mallu.        He had a son by name

Pazhanimala. 1st defendant therein was the son of Pazhanimala.

Pazhanimala died in 1963. The disputed property along with other items

had been partitioned among Pazhanimala's sons in the year 1965. The

properties included in the B schedule to the partition deed were set apart to

the share of the 1st defendant.     Plaintiffs were the children of the 1st

defendant. The parties were Ezhavas of Chittur Taluk, governed by Hindu

Mithakshara Law as modified by custom. Plaintiffs claimed four out of five

shares in the property contending that the property belonged to a joint

family constituted by the 1st defendant and his children. The 2nd defendant,

viz., the Co-operative Bank, filed a written statement contending that the

plaintiffs were not entitled to any share since the property had been set

apart in a partition to the individual share of the 1st defendant.         They

contended that the plaintiffs had no right by birth over the properties. 1st

defendant, while working as Secretary of the Bank, had misappropriated

large amounts and for realising the same, an arbitration proceeding was

initiated before the Joint Registrar of Co-operative Societies.             The

properties belonging to the 1st defendant were attached. It was the definite

contention of the Bank that the plaintiffs were not entitled to any right in the

separate property of the 1st defendant.

       11.     A learned Single Judge of this Court examined the apparent



conflict in the judicial opinions as to whether a property devolved on a

coparcener by partition partakes the character of his separate property or it

retains the character of a joint family property. After surveying various

decisions touching on Sections 4, 6 and 8 of the Hindu Succession Act,

1956 (in short, "Act of 1956") the learned Single Judge in paragraphs 16 to

18 held that a property allotted to a Hindu in a partition of joint family

properties has to be treated as his separate property over which he has a

right of disposition. Statement of facts in the said decision do not reveal a

crucial aspect whether the plaintiffs were born before or after 1965, the

year in which the family properties were partitioned. Learned counsel for

the appellants seriously challenged correctness of the above proposition as

a universal rule, applicable to all situations.

       12.     It is revelant to note that the Supreme Court in Uttam v.

Saubhag Singh and others (2016 (4) SCC 68) has recently considered a

similar question.      The plaintiff in a suit for partition appealed to the

Supreme Court. Along with others, the plaintiff had impleaded his father

and three brothers of his father. Plaintiff claimed 1/8th share in the property

on the footing that the suit property was ancestral property and that he,

being a coparcener, had a right by birth in the suit property in accordance

with the Mithakshara Law. In the written statement filed by the defendants,

including the plaintiff's father, it is contended that the suit property was not



ancestral property and that a partition had taken place earlier by which the

plaintiff's father had become separate. The trial court decreed the suit. The

first appellate court confirmed the finding that the property was ancestral.

However, it held that the plaintiff's grand father, Jagannath Singh, having

died in 1973, and his widow, being alive at the time of his death, share of

Jagannath Singh should be distributed in accordance with Section 8 of the

Act of 1956. The lower appellate court therefore reasoned that no joint

family property remained to be divided when the suit for partition was filed

by the plaintiff. The plaintiff had no right to sue for partition while his father

was alive, as father alone was a Class I heir. Therefore, the suit was

dismissed. The High Court in second appeal confirmed the lower appellate

court's judgment and decree. The Supreme Court took note of the fact that

the plaintiff was born only in 1977. For that reason alone, no share could

be allotted to him in a partition effected after his grand father's death in

1973 and before 1977. The Supreme Court noticed that the plaintiff's case

was that he was entitled to 1/8th share on dividing the entire joint family

property between eight co-sharers. With a specific reference to Section 8

of the Act of 1956, the Supreme Court held that death of Jagannath Singh

would make the property in the hands of plaintiff's father, uncles, et al., no

longer a joint family property. In the decision, the Supreme Court did not

consider the effect of birth of a male child in a Hindu joint family before the


date of division of the coparcenary properties. However, the principles in

the above decision are totally inapplicable to this case as the factual

settings are different.

       13.     Coming to the case on hand, the unchallenged pleadings and

evidence show that the defendants 3 and 5 were born in 1945 and 1949

respectively. On a perusal of Ext.A1 partition deed dated 26.09.1956, it

can be seen that the properties dealt with therein were ancestral

properties. "Ancestral property"      is a technical term. It has a special

meaning. It does not mean property inherited from any ancestor, male or

female, paternal or maternal, near or remote. But, only such property as is

inherited by a male from his father, father's father and father's father's

father. Such inheritor's son, son's son and son's son's son get an interest

in it by birth. Even Veluchami's father Kumarachami Kounder had

acknowledged in Ext.A1 that the properties belonged to a coparcenary

consisted of himself and his two male children. In the light of these clear

recitals in Ext.A1 regarding nature of the properties, that they were

ancestral properties in the hands of Kumarachami and his children

including Veluchami, the pertinent question is whether the principles in Co-

operative Bank's case and Uttam's case can be applied to this case. It is

apposite to note that the facts in both the cases mentioned above do not

show that the plaintiff/plaintiffs concerned was/were born before division of


the properties among the coparceners. In this case, it is an undisputed fact

that as on the date of Ext.A1, both the defendants 3 and 5 were born to

Veluchami, albeit they were not included in Ext.A1.

       14.     At this juncture, it is highly essential to have a revisit to certain

concepts, viz., the nature of joint family and coparcenary and also the right

by birth in a coparcenary property.

       15.     A Hindu joint family consists of male members descended

lineally from a common male ancestor, together with their mothers, wives

or widows and unmarried daughters bound together by the fundamental

principle of "sapindaship" or family relationship which is the essence and

distinguishing feature of the institution. Coparcenary is a body narrower

than a joint family and consists of only those persons who have taken by

birth an interest in the property of the holder for the time being and who can

enforce a partition (see Gowli Buddanna v. C.I.T. - AIR 1966 SC 1523;

Narendranath v. C.W.T. - AIR 1970 SC 14). Coparcenary commences

with a common ancestor and includes a holder of joint property. It takes in

only those males in his male line who are not removed from him by more

than three degrees. Thus, while a son or grandson or great-grandson is a

coparcener with the holder of the property, the great-great-grandson cannot

be a coparcener with him, because he is removed by more than three

degrees from the holder. The reason why coparcenership is so limited is to



be found in the peculiar tenet of the Hindu religion that only male

descendants upto three degrees can offer spiritual ministration to an

ancestor. Rights of coparceners can be enlisted as follows: (1) Right by

birth, (2) Right by survivorship, (3) Right to partition, (4) Right to joint

possession and enjoyment (5) Right of alienation (6) Right to make self-

acquisitions (7) Right to restrain unauthorised acts and (8) Right to

accounts. The learned          author N.R.Raghavachariar in "Hindu Law -

Principles and Precedents", 8th Edition, illustrates the concept of "right by

birth" at page 230 as follows:

                     "Right by birth.-Every coparcener gets an

               interest by birth in the coparcenary property. This

               right by birth relates back to the date of

               conception]. This, however, must not be held to

               negative the position that coparcenary property

               may itself come into existence after the birth of the

               coparcener concerned.         For instance where A

               having a son B, and a grandson C, has a self-

               acquired property, that property cannot be said to

               be a property in which B and C have a right by

               birth.   But the moment A dies intestate, that

               property descends to his son B and the grandson C

               gets interest in it as coparcenary property even

               though the character of coparcenary property

               attached to it long after C's birth."



        16.    Another principle of inheritance under the pristine Hindu Law

is that a son or a grandson, whose father is dead, and a great grandson,

whose father and grandfather are both dead all succeed simultaneously as

one heir. On a partition in the family consisting of other members, among

the aforementioned persons, they take per stripes and not per capita.

Further, an interest of a coparcener is a fluctuating interest, capable of

being enlarged by deaths in the family and liable to be diminished by births

in the family. So, whilst the joint family remains undivided, no coparcener

can predicate his exact share in the family properties.

        17.    Indisputably, in this case Section 6 of the Act of 1956, as it

stood before substitution in 2005, is the law applicable. It read as follows:

                    "Devolution of interest in coparcenary

              property.-When a male Hindu dies after the

              commencement of this Act, having at the time of his

              death an interest in a Mitakshara coparcenary

              property, his interest in the property shall devolve

              by survivorship upon the surviving members of the

              coparcenary and not in accordance with this Act:

                    Provided that, if the deceased had left

              surviving him a female relative specified in Class I

              of the Schedule or a male relative specified in that

              class who claims through such female relative, the

              interest of the deceased in the Mitakshara

              coparcenary property shall devolve by testamentary


              or intestate succession, as the case may be, under

              this Act and not by survivorship.

                     Explanation 1.-For the purposes of this

              section, the interest of a Hindu Mitakshara

              coparcenar shall be deemed to be the share in the

              property that would have been allotted to him if a

              partition  of   the   property    had  taken   place

              immediately before his death, irrespective of

              whether he was entitled to claim partition or not.

                     Explanation 2.-Nothing contained in the

              proviso to this section shall be construed as

              enabling a person who has separated himself from

              the coparcenary before the death of the deceased

              or any of his heirs to claim on intestacy a share in

              the interest referred to therein."

The provision consisted of four paragraphs. First paragraph dealt with

enunciation of the previous law regarding devolution by survivorship in a

Hindu coparcenary. Second paragraph, in the form of a proviso, provided

for the exemptions to the survivorship by devolution. It said that if the

deceased had left surviving him a female relative specified in Class I of the

Schedule or a male relative, specified in that Class who claimed through

such female relative, the interest of the deceased in Mithakshara co-

parcenery      property    should   devolve by testamentaty or     intestate

succession, as the case may be, under the Act and not by survivorship. In



this context, relevance of Section 8 of the Act of 1956 comes to the fore.

Third paragraph, by way of an explanation, provided that the interest of a

coparcener for the purpose of devolution should be considered to be the

share which would be allotted to him, if there was a partition immediately

before his death. The last paragraph prevented a divided member from

claiming the interest of a deceased coparcener on intestacy. In this context,

it is relevant to note that substitution of this Section by the Hindu

Succession (Amendment) Act, 2005 has no effect in the case on hand

mainly for the reason that the Kerala Joint Hindu Family System (Abolition)

Act, 1975 (in short, "Act of 1976") has come into effect in the State on

01.12.1976, much before the death of Veluchami. The State Act of 1976

has made sea changes in the matter of rights in all forms of Hindu joint

families, including Mithakshara coparcenary. By virtue of the provisions in

the Act of 1976, a notional partition had taken place on the date of

commencement of the Act and therefore, no joint family survived thereafter.

       18.     This development of law, exclusively prevailing in the State of

Kerala, completely different from other parts of the country, gave rise to

three situations in respect of the right to joint family properties. Firstly, a

situation which existed prior to commencement of the Act of 1956 on

17.06.1956. Second situation related to a period after commencement of

the Act of 1956, but before the Act of 1976 came into effect. The third


situation arose after commencement of the Act of 1976, ie., on or after

01.12.1976. Before commencement of the Act of 1956, the rule of

survivorship prevailed among coparceners in respect of ancestral

properties. In otherwords, when a male Hindu died before commencement

of the Act of 1956 and had he an interest in Mithakshara coparcenary

property, then his interest in the property would have devolved by

survivorship upon the surviving members in the coparcenary. This principle

had been recognised in the previous Section 6 of the Act of 1956. So,

there is no room for any doubt as to the rule of inheritance with respect to

the coparcenary properties, prevailed before 17.06.1956.

       19.     After commencement of the Act of 1956, Section 6 of the Act

made an inroad into the succession of a coparcener and the

aforementioned state of affairs were put in place. The rule of survivorship,

which applied earlier, had been deviated.       If a deceased Hindu had a

female relative in Class I of the Schedule or a male relative in that Class,

who claimed through such a female relative, was available, then the

interest of the deceased in the co-parcenery property devolved by

testamentary or intestate succession, as the case may be, and not by

survivorship. In such a situation, Section 8 of the Act of 1956, providing the

general rules of succession in the case of males, would have been applied.

It is evident from Section 4 of the Act of 1956 that the Act has overridden



any text, rule or interpretation of Hindu Law or any custom or usage as part

of that law in force immediately before its commencement.

       20.     The peculiar situation in the State of Kerala, brought out by the

Act of 1976, is also relevant. By a legal fiction, all the Hindu joint families,

existed in any form as mentioned therein, stood disrupted by the statutory

provisions. Therefore, after the said Act, there is no question of any Hindu

joint family continuing, so much so, there can be no question of anyone

claiming a right by birth.

       21.     Now coming to the facts, as stated above, the parties are

governed by Hindu Mithakshara Law as modified by custom. The recitals

in Ext.A1 clearly indicate that the properties obtained by Veluchami in that

partition were ancestral in nature. Admitted facts would show that the

defendants 3 and 5 were born before commencement of the Act of 1956

and also much prior to Ext.A1. As the properties included in Ext.A1 were

ancestral, the defendants 3 and 5 had acquired a right by birth although

their rights were not recognized in Ext.A1. It is a definite proposition that a

mere non-mentioning of the names of coparceners in a partition deed

should not denude them of their rights. That also would not affect or alter

the nature of property involved in the document. And the property still

would remain as        coparcenary property. In otherwords, a mere non-

inclusion of certain coparceners in a partition deed will not make a



coparcenary property a separate property of the executants. In this case,

another contention is that Ext.B1 release deed, taken from the defendants

3 and 5 by Veluchami and his two wives, also probabilises the case of the

appellants that deceased Veluchami himself had acknowledged the nature

of property as one belonged to a coparcenary.

       22.     From the above discussion, it is clear that the Munsiff and the

District Judge did not properly appreciate the marked distinction between

the facts in Co-operative Bank's case and this case. Both the courts failed

to notice that the ratio in Co-operative Bank's case was distinguishable on

facts. The principle of law pronounced in a different set of facts was

wrongly applied to this case. Hence, I have no hesitation to hold, in the

facts and circumstances of this case, that the defendants 3 and 5 have

acquired a right by birth in Ext.A1 property set apart to the name of

Veluchami. Although the contesting respondents have disputed validity of

Ext.B1, I find no merit in that contention. As the defendants 3 and 5 had

acquired a right by birth in the property set apart to Veluchami as per

Ext.A1 and in recognition of their rights Veluchami and others had

purchased their right through Ext.B1, it cannot be gainsaid by the

respondents that Ext.B1 should be eschewed from consideration. This

contention of the respondents is devoid of any merit. In the light of the

above findings, points (i) and (ii) are to be found in favour of the appellants.



       23.     Upshot of the discussions made above takes me to an

irresistable conclusion that the ratio in Co-operative Bank's case can be

applied only to a situation where a person, who stakes a claim of right by

birth in a property set apart to his father in a partition, has failed to plead

and prove that the property devolved on his father was ancestral property,

that he was born before division of the property and insofar as the scenario

in this State is concerned, that he was born before 01.12.1976, the

commencement date of the State Act of 1976.            The law on the point is

definite that a person could have claimed a right by birth only in respect of

ancestral property in the hands of his father and the right claimable was

only per stripes. In otherwords, no coparcener could have ever claimed a

right by birth over the entire joint family properties on per capita basis.

       24.     The third point was decided by the courts below against the

appellants. It was found that the 1st appellant (2nd defendant) is not the

legally wedded wife of Veluchami.         Learned counsel for the appellants

contended that denial of her right is legally unjustifiable. Act of 1955 came

into effect on 18.05.1955. Section 5(i) of the Act specifically states that a

marriage may be solemnised between any two Hindus, if neither party has

a spouse living at the time of marriage. Violation of this condition makes a

marriage void by virtue of Section 11 of the said Act. It inter alia says that

any marriage solemnised after commencement of the Act shall be null and



void, if it contravenes Section 5(i) of the Act. Learned counsel for the

appellants contended that going by the age of the parties, the 1st appellant

must have been married to Veluchami much before commencement of the

Act of 1955. The learned counsel for the contesting respondent opposed

this submission. It is to be noticed that there is no averment in the

pleadings indicating the date of marriage between Veluchami and 1st

appellant. It is true, there is a presumption in favour of a marriage, if

continued co-habitation between a man and a woman has been

established.

       25.     Before commencement of the Act of 1955, there was no

prohibition among Hindus following various caste systems, especially those

who were governed by customary law, in having plurality of wives. In

otherwords, polygamous marriages were recognized among many Hindu

communities. However, this, being a question of fact, can be decided only

on adducing sufficient evidence. While appreciating the evidence, the

aforementioned presumption also can be considered. Both sides admit

that this question was not properly addressed at the time of trial.

       26.     Learned counsel for the appellants contended that the lower

appellate court did not consider I.A.No.1186 of 2007 in A.S.No.201 of 2004.

Three documents were produced along with an application filed under

Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short, "Code").



One is a Will said to have been executed on 18.01.1992 by the defendants

1 and 2 in favour of the 4th defendant. This document, being a Will, has to

be proved under Section 68 of the Evidence Act. It assumes importance

for the reason that pending suit the 1st defendant died and if this is a

genuine Will, a part of it must have come into effect. However, that can be

decided only on proving this document. Another one is an unregistered

document styled as a mortgage deed. It is dated 03.10.1977. The recitals

in this document would show that the 4th defendant's husband Thankavelu

advanced a sum of `19,500/- to Veluchami and others for discharging their

liabilities. This document is legally inadmissible in evidence as it is in direct

conflict with Section 17(1)(b) of the Indian Registration Act, 1908. This

document cannot be regarded as a mortgage deed for want of registration

and no right emanating from this document could be conceded to

Thankavelu. Therefore, this document, at the most, could only be used for

any purpose other than establishing a mortgage right in favour of

Thankavelu. Another document is a registered power of attorney executed

by the defendants 1 and 2 in favour of Thankavelu. It is not clear as to why

it was produced. However the lower appellate court should have

considered the acceptability of these documents under Order XLI Rule 27

of the Code. Failure to do so is a breach of duty on the part of the lower

appellate court.    The lower appellate court not even considered the need



of these documents.

       27.     Learned counsel for the contesting respondents argued that

Thankavelu's right, which has been concluded, shall not be reopened.

That submission is acceptable and therefore the findings of the courts

below that Thankavelu has not acquired any right over the property is

confirmed.

       28.     To sum up, the points (i) and (ii) are decided in favour of the

appellants for the aforementioned reasons. However, on account of the

glaring mistakes committed by the lower appellate court, a remand of the

case has become inevitable. The Will produced along with I.A.No.1186 of

2007 should have been considered by the lower appellate court. The Will

can only be proved by adducing evidence under Section 68 of the

Evidence Act. Hence for certain limited purposes, the matter is remitted to

the lower appellate court.

               In the result, the appeal is allowed. I set aside the judgment

and decree passed by the lower appellate court. The matter is remitted

back to the lower appellate court for a fresh disposal on question No.(iii)

and also for determining genuineness of the Will produced before it under

Order XLI Rule 27 of the Code.            The parties shall be afforded an

opportunity to adduce evidence in support of their contentions. The appeal

shall be disposed of within a period of six months from the date of



production of a copy of this judgment. The parties shall appear before the

lower appellate court on 21.11.2016.

               All pending interlocutory applications will stand closed.




                                               A. HARIPRASAD, JUDGE.


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