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Judgment
Venkatasubba Rao, J.—(Appeal No. 254 of 1929). This appeal arises out of a suit brought to enforce a mortgage. The Rajah of Kalahasti
is the ex officio trustee of Sri Prasanna Varadaraja Swami Devastanam situated in that village. Thimma Nayanim Bahadur Varu, the late Rajah,
executed in favour of himself as trustee of the temple a mortgage bond dated 19th October, 1908 for about Rs. 27,000 odd. He died in 1919 and
his son, the present plaintiff, succeeded him both as the Rajah of Kalahasti and as the hereditary trustee of the institution. The plaintiff as such
trustee seeks to enforce the mortgage bond as against the defendant into whose hands the properties have passed. One Lakshmikanthamma, a
widow of a previous zamindar obtained in O.S. No. 15 of 1897, a maintenance decree against Akkappa the then holder of the estate. She
executed that decree and brought the suit village to sale. At the Court sale the defendant in 1911 became the purchaser of the two villages in
question. It will be remembered that Thimma Nayanim Bahadur Varu died only in 1919 and that therefore at the time of the sale, he was the
zamindar. The sale was made subject to the mortgage in favour of the temple. To this action, several defences have been raised, but, as, in our
opinion, one of them is fatal to the suit, we propose to deal with that alone. That defence is thus set forth in the defendant''s written statement filed
on 15th September, 1926:
That the suit mortgage was executed after the Impartible Estates Act came into force. The late zamindar who executed the mortgage was
incompetent to mortgage the estate so as to enure beyond his lifetime. The debt is not binding on this defendant a purchaser of the suit village. The
plaintiff is put to strict proof that the debt was true or contracted under circumstances justifying the alienation as provided by Section 4, Impartible
Estates Act. The suit is therefore liable to be dismissed on this ground.
The plea amounts in short to this: The mortgage in favour of the temple was not made by the plaintiff''s predecessor for a justifying necessity
within Section 4, Madras Impartible Estates Act; the mortgage could not therefore be binding beyond the zamindar''s lifetime; the zamindar having
died, the mortgage interest of the temple has come to an end. The first question then that arises is, was the mortgage executed for a purpose which
falls within Section 4? The material part of that section reads thus:
The proprietor of an impartible estate shall be incapable of alienating or binding by his debts, such estate or any part thereof beyond his lifetime
unless the alienation shall be made, or the debt incurred, under circumstances which would entitle the managing member of a joint Hindu family, not
being the father or grandfather of the other coparceners, to make an alienation of the joint property, or incur a debt, binding on the shares of the
coparceners independently of their consent.
The plaintiff has adduced no evidence that the mortgage was executed for any legal necessity as defined by this section; but his counsel suggests
that there is a recital in the deed that the amount was borrowed ""for the expenses of the samasthanam."" This is not a case where a mere recital can
be acted on and this position is not seriously contested; nor is that recital an admission by which the defendant is bound, as it is obvious that ho
does not claim from the mortgagor or derive his right from him. The lower Court, holding that there was no proof of necessity, has nevertheless
held, that the mortgage is binding, on a palpably erroneous ground. The learned Judge says:
I think the recitals must according to the above ruling Venkata Reddi v. Rani Saheba of Wadhwan AIR 1920 P.C. 64 be given in the
circumstances more than the usual weight, as representations of necessity and a presumption of bona fide enquiry into it may be drawn.
How does the question of bona fide inquiry arise? The mortgagor was no other than the mortgagee himself. To hold that the mortgagor made the
representation and that the same person in his capacity as the mortgagee believed and acted upon it, is opposed to common sense. The only
conclusion possible is, that it has not been shown that the mortgagee is protected by Section 4. The plaintiff''s counsel realising this, has requested
us, in the course of his argument, to send the ease back with a view to enable his client to supply the defect. He has had to admit that he cannot
show proper grounds for his request and that it must be treated as one for indulgence. There is no reason for departing from the usual procedure
for the purpose of enabling him now to reopen the ease. The next contention of the respondent (the plaintiff) is, that it is not open to a subsequent
alienee to impeach a prior alienation although it infringes Section 4. This is said to rest on some underlying policy of the Act. It is said that the
object of the Act is to benefit successive heirs and that it would be wrong to extend the protection to a stranger alienee. I confess I am unable to
follow this argument.
That the sale to the defendant was made for legal necessity (within Section 4) is admitted. For the purpose of the present argument, it is equally
admitted that there was no such necessity for the mortgage in favour of the temple, but still the plaintiff''s counsel maintains that the policy of the Act
requires that the valid alienation should be defeated by the invalid one. Let me examine what this contention amounts to. The Act declares that an
alienation for an improper purpose enures only for the lifetime of the holder. Supposing such an alienation has been made, according to the
plaintiff''s contention, the holder would be incapable of passing a good title by a subsequent proper alienation required by compelling necessity. Is
such a construction calculated to advance what is professed to be the policy of the Act? The necessity may be pressing and urgent; to preserve the
estate from extinction, to defend it from hostile claims, to maintain the members having a legal claim on the zamindar monyes may be required for
these and similar purposes, but they cannot be raised if the contention be correct, as an invalid alienation already made would defeat the intended
valid alienation. Such a construction would be repugnant to the so called policy of the Act and must be rejected. The cases relied on by the
respondent, far from supporting him, go exactly to the opposite effect. I may refer to the observations of Odgers, J., and my learned brother (the
other member of the Bench) in Rajah of Kalahasti v. Venkatadri Rao AIR 1927 Mad. 911. Nor do the dicta in Ramachandra Suru v.
Venkatalakshminarayana [1919] 50 I.C. 577 lend the slightest support to the argument. It is next contended, that if the subsequent alienation is an
out and out sale as in the present case, in that event, at any rate, it cannot prevail. For this, support is sought in the terms of Section 7 of the Act,
which runs thus:
This Act shall not affect alienations made or debts incurred before the coming into force of this Act and shall cease to apply to estates or parts of
estates which may hereafter be lawfully alienated otherwise than by temporary transfer.
It is the second part of this section that is relied on. These villages having ceased to be parts of the zamindari, it is contended that the provisions
of the Act do not apply to them. The section means, that when once a lawful sale has been effected, the estate so sold or the part so severed
ceases to be governed by the Act; that is to say, after it passes into the hands of a stranger purchaser, it is no longer to be treated as being subject
to the restrictions under the Act. But the point of time that matters is, when the alienation is made. The question is at the time of the second, as of
the first transfer, were the provisions applicable or not? If they were, it is futile to say that subsequent to the sale, the estate ceases to be governed
by the Act.
The plaintiff''s learned Counsel next contends, relying upon the same section, that in so far as the mortgage in favour of the temple was for debts,
incurred before the coming into force of the Act, the transaction should be held to be binding. Assuming that in law this proposition is correct, he
has had to admit, that no evidence has been given to show what part of the debt, if any, was incurred before the Act. For this purpose again, he
repeats his request, that the case should be sent back with a view to enable his client to give fresh evidence. For reasons already stated, that
request cannot be complied with. It remains to add, that the sale by the defendant was made subject to the mortgage in favour of the temple. That
condition has received full effect, for the mortgage is under the Act binding for the lifetime of Timma Nayanim Bahadur Varu; the defendant, as has
been pointed out, became the purchaser in 1911 and the zamindar died in 1919. I mention this to refute the argument advanced in the lower Court,
but not pressed here, namely, that the defendant cannot question the previous mortgage subject to which he made the purchase. That mortgage
was not wholly bad; only it ceased to be effective on the death of the then holder. In the result, the appeal is allowed and the suit is dismissed with
costs throughout.
This judgment was ready some time ago, but we deferred delivering it at the request of Mr. Govindaraghava Ayyar who intimated to us, that he
would make an application Under Order 41, Rule 27. He now applies on behalf of the plaintiff for permission to produce certain additional
evidence. The same request was made, but in an informal way, when the appeal was being heard and I have dealt with that request in the body of
my judgment. A formal petition has now been filed and the question fully argued. It is contended that, in any event, that portion of the debt
borrowed before the date of the Act should be held binding and the plaintiff should be now permitted to show by evidence how much that portion
was. The plaintiff proposes to rely upon certain documents for this purpose. One of them is said to be a memorandum bearing the signature of the
Court of Wards and showing that a certain amount was due on 30th June 1900. Another writing is produced which is said to show the state of
account between the zamindar and the Devastanam from 30th June 1900, to 30th March 1908. This writing, it is alleged bears the signature of one
Kommandur Venkatavaradachari, who was then a clerk of the zamindar, but is now (the plaintiff states) in the service of the defendant. The
defendant urges, that being a stranger to these transactions, he proposes to call in question not only the genuineness of the documents but also the
truth of the statements they contain. Mr. Govindaraghava Ayyar then suggests, that he is prepared, if necessary, to produce the account books of
the Devastanam to confirm the recitals in the documents mentioned above. Is the plaintiff to be allowed, in these circumstances, to produce
additional evidence? No attempt was made by the plaintiff in the lower Court to differentiate any part of the debt on the ground that it is traceable
to amounts borrowed before the date of the Act; in other words, a new point is raised in the appellate Court, in . support of which additional
evidence is sought to be put in. If the point were merely a question of law, we should have most probably allowed the plaintiff to raise it; but the
question is not, whether the point should be allowed to be raised, but whether, at this stage, additional evidence should be permitted. The
documents now proposed to be filed have throughout been in the plaintiff''s possession. The zamindar, in his capacity as trustee has been in
possession of the documents and accounts belonging to the temples and as the proprietor of his estate of the papers pertaining to his zamindari. He
occupies the dual position of mortgagor and the mortgagee. Order 41, Rule 27, refers to a ""substantial cause"" and Order 47, Rule 1, to a
sufficient reason."" In this case, there is no question of substantial or sufficient ground, for it is conceded that there is no ground of any kind,
substantial or otherwise. Nor can it be overlooked, that, on the plaintiff''s own showing, the additional evidence now sought to be adduced, would
have a bearing even on the question of necessity for the loan a point actually taken in the lower Court if so, why was this evidence kept back? Mr.
Govindaraghava Ayyar, beyond stating that the plaintiff and his advisers were negligent, has offered no kind of explanation. It is urged that the fact
that the party in default is not a private individual, but represents a public trust, is an element that ought to be taken into consideration. But the kind
of evidence that is proposed to be adduced is another factor. If there are grounds for believing that the evidence is not open to serious attack, the
Court may be inclined, in such a case, to grant the application. The following observations of Jessel, M.R. in Sanders v. Sanders [1882] 19 Ch. D
380, C.A. apply to the facts of the present case:
The appellant has applied for leave to adduce fresh evidence, but I am of opinion that it ought not to be granted. The application is for an
indulgence. He might have adduced the evidence in the Court below. That he might have shaped his case better in the Court below is no ground
for leave to adduce fresh evidence before the Court of appeal. As it has often been said nothing is more dangerous than to allow fresh oral
evidence to be introduced after a case has been discussed in Court. The exact point on which evidence is wanted having thus been discovered to
allow fresh evidence to be introduced at that stage would offer a strong temptation to perjury.
Seven years after the filing of the suit and four years after the passing of the decree this application is made. ""We are practically asked to allow
the case to be re-opened and evidence to be given afresh. It has been repeatedly pointed out by the Judicial Committee that the power conferred
on an appellate Court to take additional evidence, should be exercised ""sparingly"" or ""with much caution:"" Sreemanchunder Dey v. Gopalchunder
Chuckerbutty [1867] 11 M.I.A. 28, Mahomed Khaleel Shirazi v. Le Tannerices Lyonnaises AIR 1926 P.C. 34 In the latest case on the point AIR
1931 143 (Privy Council) their Lordships lay down:
The provisions of Section 107, Civil P.C., as elucidated by Order 41, Rule 27, are clearly not intended to allow a litigant who has been
Unsuccessful in the lower Court to patch by the weak parts of his case and fill up omissions in the Court of appeal.
They then explain their earlier decision in Indrajit Pratab Sahi v. Amar Singh AIR 1923 P.C. 128 and point out that the expression ""for any
other substantial cause"" in Order 41, Rule 27(b) must be read along with the word ""requires"" preceding it that being ""the plain grammatical reading
of the sub-clause."" It follows from this construction that the requirement referred to in the sub-clause is the requirement of the Court. That is
declared in the following words:
It may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect but the requirement must be
the requirement of the Court upon its appreciation of the evidence as it stands.
I must hold that there are no grounds for showing the plaintiff the indulgence which he seeks. The application is therefore dismissed with costs.
Curgenven, J.
I agree in rejecting the construction which the learned advocate for the respondent asks us to place upon the terms of Section 4, Madras
Impartible Estates Act. It is one thing to hold as Odgers, J., and I held in Rajah of Kalahasti v. Venkatadri Rao AIR 1927 Mad. 911, that
prohibition against alienation being grounded on considerations of public policy cannot be waived by the parties interested. It is quite another thing
to read into Section 4 some restriction or qualification not therein expressed in order to bring it into conformity with the intention supposed to
underlie the enactment. Section 4 is clear enough; it says of transactions not supported by necessity;
The proprietor of an impartible estate shall be incapable of alienating or binding by his debts, such estate or any part thereof beyond his own
lifetime.
Thus upon his death and with effect from it any such alienation or encumbrance becomes void for all purposes and in respect of all persons and
the rights of a subsequent alienee for neceseity of the property are as much protected against it as are those of a successor. But even assuming that
it is permissible to look beyond the plain terms of the section to the policy which may be supposed to have inspired it the desire to protect these
estates from dissipation by an improvident proprietor: it is not clear how the suggested construction would advance that object. It must surely be
apparent that any concession made to an alienee otherwise than for necessity must tend to encourage such alienations and to weaken the
protection which the Act is designed to afferd to the estates of this kind against them. The effect of Section 4 is that in no circumstances can such
an alienee obtain a title which survives the proprietor who created it. Section 7 has been referred to but that section only means that the restrictions
imposed by the Act cease to operate from the time that the property by force of a permanent alienation lawfully made ceases to form part of an
impartible estate. It will not retrospectively affect alienations made before that happens and to these the other provisions of the Act continue to
apply.
With regard to the other use to which Mr. Govindaraghava Ayyar has proposed to put Section 7 to raise the contention that since some of the
debt is pre Act in origin the mortgage will pro tanto escape the provisions of the Act: I agree with my learned brother that it is not permissible at the
stage matters have now reached, to admit the evidence upon which such an argument could be founded. The point is an entirely new one being
quite distinct from the issue as to necessity from which point of view alone the past history of the indebtedness of the mortgagor was considered by
the lower Court. Whatever may be its substance it is quite clear to me that if we allowed fresh evidence now to be adduced in support of it we
should offend against the provisions of Order 41, Rule 27, Civil P.C, as interpreted in the latest Privy Council decision AIR 1931 143 (Privy
Council) . In that judgment their Lordships advert to the duty which Order 13, Rule 1, Civil P.C., lays upon the parties or their pleaders to
produce their documentary evidence at the first hearing of the suit and observer that in the case before them ample opportunity existed for the
production of the evidence before the trial Court. So here the only excuse which has been offered to us for failure to adopt this course is that the
plaintiff was not alive to the possibility of supporting his'' claim in this manner. To allow him an opportunity now of repairing the omission would be
to permit him in their Lordships'' words:
to patch up the weak parts of his case and fill up omissions in the Court of Appeal.
Additional evidence, their Lordships lay down, should only be omitted at the requirement of the Court upon its appreciation of the evidence as
it stands. It is no part of the duty of an appellate Court to raise fresh issues and it is not possible to contend that evidence needed to support such
issues will fall within the category as indicated above of evidence which the Court may require to be admitted. We must therefore dismiss the
application. I agree with my learned brother''s conclusion upon the other points raised in this'' appeal and with the order which he proposes.