Defendants 4 to 9 in the original suit are in appeal.
2. The suit was instituted by one Pathumma Kutty Umma.
She died while the suit was pending and the first respondent was impleaded as her legal heir. The suit was for partition and separate possession of plaint schedule property with mesne profits, with the following allegations:
One Kunheethutty, the husband of the plaintiff, obtained the plaint schedule property as per sale deed no.963 of 1935 of S.R.O, Kalpakanchery. Kunheethutty had two brothers, namely, Moidutty and Parambil Koya (the first defendant). Kunheethutty died at Indonesia on 1.11.1949. The legal heirs of Kunheethutty are the plaintiff, Moidutty and Parambil Koya (the first defendant). Moidutty expired on 22.5.1957. Defendants 2 and 3 are the children of Moidutty. The plaintiff and defendants 1 to 3 are conjoint partners of the suit property. The plaintiff is entitled to 6/24 shares, the first defendant is entitled to 9/24 shares, the second defendant is entitled to 6/24 shares and the third defendant is entitled to 3/24 shares. When the plaintiff demanded partition, the first defendant sent a reply stating that Kunheethutty divorced the plaintiff and she is not the legal heir of Kunheethutty and further that Kunheethutty had orally gifted the property to the first defendant.
3. The appellants, who are the defendants, resisted the suit contending as follows:
Kunheethutty left for Indonesia in the year 1945. He divorced Pathumma Kutty Umma in the year 1949 and married another lady in Indonesia. The specific case of these appellants is that Kunheethutty died in 1966 and since Pathumma Kutty Umma was re-married in the year 1955, she is not at all entitled to claim any share in the plaint schedule property. The further contention is that Moidukutty, the father of the second and third respondents herein died on 22.5.1957 i.e. before the death of Kunheethutty. Hence, they were not entitled to claim any share since Kunheethutty died in the year 1966.
4. The trial court after raising proper issues for trial, permitted both sides to adduce evidence and at the trial, PW1 and DW2 were examined and Exts.A1 to A3 were marked. The trial court after considering the evidence granted a preliminary decree for partition. The property was ordered to be divided into 96 equal shares by metes and bounds. It was found that the second plaintiff is entitled to get 6 shares. It was further directed that the second plaintiff is entitled to get future mesne profits according to his shares from the date of institution of the suit upto 3 years from the date of passing final decree or till he gets separate possession of his share, whichever happens earlier from defendants 4 to 9. However, the quantum was left open to be decided at the final decree stage.
5. Though the matter was taken in appeal by the contesting defendants, the first appellate court confirmed the decree and dismissed the appeal. It is with this background, the appellants have come up before this Court.
6. Though notice was served on the respondents, they have not chosen to enter appearance and contested the appeal.
7. I have heard the learned counsel for the appellants.
8. The material question to be decided in the suit is the date of death of Kunheethutty.
9. The appellants would contend that they were trying to get the death certificate from the Republic of Indonesia even in the year 1992 itself. They allege that so many communications were sent to the Embassy of the Republic of Indonesia. Ultimately, the Republic of Indonesia issued the death certificate stating that Kunheethutty died on 6.1.1996.
10. The learned counsel for the appellants points out that immediately on receipt of the said document, the appellants produced the same before the first appellate court along with an I.A under Order XLI Rule 27 of CPC. The appellate court has failed to accept the said document issued by the Republic of Indonesia. If the said document was accepted as additional evidence, the claim put forwarded by the respondents are only to be rejected and the suit is liable to be dismissed; so submitted the learned counsel for the appellants. However, I am not making any comments regarding the result of the suit in the event of marking the additional document.
11. Under Order XLI Rule 27, the court below ought to have admitted the death certificate issued by the Republic of Indonesia into file as additional evidence. Therefore, this Court is of the view that the appellate court was not at all justified in dismissing I.A No.75 of 2004 filed in view of the provisions contained in Order XLI Rule 27 CPC.
12. The date of death of Kunheethutty is a crucial aspect in this case. The appellants have produced the death certificate issued by the Republic of Indonesia as well as the true translation of the death certificate into English as Annexures E and F respectively. As the appellants are now armed with sufficient documents to prove their case that Kunheethutty died on 6.1.1966, this court feels that it is only just and proper to remit the case back to the first appellate court for fresh consideration after taking into account Annexures E and F now produced before this Court. For that, the impugned judgment has to go.
In the result, the appeal is allowed. The decree of the lower appellate court is set aside and the matter is remitted back to the District Court, Manjeri for fresh consideration in the light of what has been stated above. The additional documents produced by the appellants as Annexures E and F in this appeal shall be returned to the appellants for producing the same before the District Court.
The District Court on production of the aforesaid documents shall admit the same in evidence and complete the exercise of reconsideration of the case within a period of six months from the date of appearance of the parties and on the basis of the evidence adduced by them. Parties shall appear before the District Court, Manjeri on 15.1.2015.
krj sd/-
A.V.RAMAKRISHNA PILLAI JUDGE /True Copy/ P.A to Judge