SC: Pending Order 41 Rule 27 Plea Must Be Decided in Appeal

Supreme Court Remits Two Partition Items to High Court Over Undecided Order 41 Rule 27 Application

Published: 29 October 2026 · NyayVidhan

The Supreme Court has partly allowed a defendant's appeal in a partition suit, holding that the High Court was duty bound to decide his pending Order 41 Rule 27 CPC application for additional evidence when it disposed of the appeal before it. Two disputed items, a property the appellant says he holds as a tenant and the business carried on there, go back to the High Court; the joint family finding on the other properties stands (paras 10-13).

Key holdings

The High Court was duty bound to consider the pending Order 41 Rule 27 application when disposing of the appeal (para 10).

The decree on Item 1 of Schedule A and the Schedule C business is set aside and remitted, with all issues on them left open (paras 11, 13).

Property in the karta's name is presumed to be joint family property; the person repudiating that claim bears the onus (para 12).

The decree on the other properties is upheld; the High Court is requested to decide within one year (paras 13-14).

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Brief Facts

The first respondent, the plaintiff, sued for partition. The Trial Court passed a preliminary decree, the High Court confirmed it, and both courts held all the suit properties to be joint family properties (para 2). Schedule A has five items, Schedule B movables, and Schedule C a business carried on in the Item 1 premises (paras 3-4). The second defendant, the appellant, said Item 1 belongs to a temple and he is its tenant, and that his Order 41 Rule 27 application on Item 1 and the business was never disposed of (paras 3, 5). He also sought a benefit for Item 2, a house; the respondents relied on the concurrent findings (paras 6-7).

Court's Findings

The Court confined its interference to Item 1 of Schedule A and the Schedule C business, the properties the appellant's Order 41 Rule 27 application concerned (paras 8-9). Noting that it has explained the provision's ambit time and again, it declined to restate it or to comment on the admissibility, relevancy or proof of the additional documents (para 9). The High Court was duty bound to consider the application when it disposed of the appeal, and had not done so (para 10). The decree on those two items was set aside and remitted, with all issues on them left open (paras 11, 13). For the other properties, the Court applied settled law: property standing in the karta's name is presumed to be joint family property, and the onus to prove otherwise lies on the person who repudiates that claim. With no such evidence, the decision on them was confirmed (para 12). The Item 2 plea under the Hindu Succession Act and the Partition Act was left for the appellant to raise in the manner known to law (para 15). The order cites no decision.

Legal Principle

An appellate court must consider a pending Order 41 Rule 27 CPC application for additional evidence when it disposes of the appeal; if it does not, the decree on the properties concerned may be set aside and remitted. Property standing in the karta's name is presumed to be joint family property, and whoever denies it bears the onus (paras 10-12).

NyayVidhan's view · Practice note

Why It Matters

Where a party applies under Order 41 Rule 27 CPC to bring additional documents on record in an appeal, the appellate court must consider it when it decides the appeal. Here, in a civil appeal of 2012, the High Court's silence on such an application undid the decree on two items, which were sent back to it (paras 10-11, 13). The remand was confined to the properties the application concerned (para 8). On the rest, the presumption that property in the karta's name is joint family property decided the matter, and the party denying it carried the onus (para 12). Compare Revanasiddappa, a Supreme Court ruling on coparcenary property and notional partition.

Editorial comment by the NyayVidhan Editorial Desk. It is not part of the Court's judgment and is not legal advice.