K. Babu, J.:— The Travancore Devaswom Board (‘the TDB’ for short), the plaintiff in O.S. No. 274/2000 on the file of the Munsiff's Court, North Paravur, is the appellant. The respondent, defendant in the suit, was a Sub Group Officer of Naranam Sub Group of the TDB during the period 1994-1995. The plaintiff instituted the Original Suit for realising a sum of Rs. 84,953.08/-, the amount allegedly misappropriated by the defendant. According to the plaintiff, a crime was registered against the defendant by the Police as Crime No. 64/1997 of Eloor Police Station. Pursuant to the enquiry made against the defendant by the competent authority of the plaintiff, the defendant was dismissed from service with effect from 15.04.1998.

2. The defendant resisted the suit mainly on the ground that the suit is barred by limitation. The defendant also disputed the alleged liability.

3. During the trial, PW1 was examined and Exts.A1 to A7 were marked on the side of the plaintiff. No evidence was adduced on the side of the defendant.

4. The Trial Court dismissed the suit holding that the plaint claim is barred by limitation. The plaintiff challenged the judgment and decree of the Trial Court before the Additional District Court, North Paravur in A.S. No. 188/2004. The First Appellate Court confirmed the judgment of the Trial Court. Therefore, the plaintiff is before this Court in Second Appeal under Section 100 of the Code of Civil Procedure.

5. On 13.03.2007, this Court admitted the appeal on the following substantial questions of law.

“1. Whether the finding of the courts below that the suit is barred by time is sustainable in view of Section 10 of the Limitation Act, 1962 as plaintiff is the Devaswom Board in the light of the decision of the Full Bench in Achuthan Pillai v. State of Kerala (1970 KLT 838).

2. Whether first appellate court was justified in dismissing I.A.535/2004 filed under Rule 27 of Order XLI of Code of Civil Procedure, when that document is necessary to pronounce a better judgment.”

6. Heard Shri. G. Biju, the learned Standing Counsel appearing for the plaintiff.

7. The Travancore Devaswom Board was constituted under Chapter II of the Travancore - Cochin Hindu Religious Institutions Act, 1950 for administration, supervision and control of the religious institutions in the Hindu Religious Endowments and Funds.

8. The case of the plaintiff, the TDB, is that the defendant who was employed as a Sub Group Officer had misappropriated a sum of Rs. 84,953.08/-. Ext. A1 notice dated 31.03.1995 was caused to be issued to the defendant by the plaintiff alleging dishonest misappropriation of funds and directing to offer his explanations. By way of Ext.A2 notice, the plaintiff alleged that the defendant misappropriated the plaint amount, and he was required to pay the amount to the plaintiff. According to the plaintiff, when the defendant did not comply with the directions in Ext.A2 notice, the Original Suit was instituted on 27.03.2000. The Trial Court held that the suit is barred by limitation. The Trial Court also held that the plaintiff failed to establish that the defendant has misappropriated the Devaswom funds, as alleged.

9. In the First Appellate Court, the plaintiff filed I.A. No. 535/2004 and sought admission of a representation submitted by the defendant on 10.10.2001 before the Board wherein he had admitted the alleged misappropriation. The First Appellate Court confirmed the finding of the Trial Court that the suit is barred by limitation. The Court also dismissed I.A. No. 535/2004 on the ground that the additional document sought to be admitted in evidence was made available after the expiry of the period of limitation.

10. The question that falls for consideration is whether the claim is barred by limitation. The learned counsel for the appellant relied on Section 10 of the Limitation Act to contend that the defendant retained possession of the property that belongs to the deity, a perpetual minor, as a Trustee and in a fiduciary capacity, and therefore, the suit is not barred by limitation.

11. Section 10 of the Limitation Act reads thus:—

“10. Suits against trustees and their representatives.-Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

Explanation.-For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”

12. The reason behind Section 10 of the Limitation Act is that an express or implied trust ought not to suffer by the misfeasance or non-feasance of a trustee. The principle behind Section 10 of the Limitation Act is that no plea of limitation can be taken by anybody in a suit pertaining to the properties of trust. Therefore, a suit can be maintained either by the trust or for the trust properties. The Apex Court in Secretary, Department of Education, Government of A.P. v. Sri Ramaraju Ayurveda Ashramam, A Charitable Endowment [2007 SCC OnLine AP 139] held that, as can be seen from Section 10 of the Limitation Act, no plea of limitation can be taken by anybody in a suit pertaining to the properties of the trust.

13. On the scope of Section 10 of the Limitation Act in Wali Mohammed (dead) by LRS v. Smt. Rahmat Bee [(1999) 3 SCC 145 : AIR 1999 SC 1136], the Apex Court held as follows:—

“35. It will be seen that the main part of Section 10 states that no period of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable consideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowments is to be deemed to be trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail.

36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar [AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held that property comprised in a Hindu or Mohammedan religious or charitable endowment was not property vested in trust for a specific purpose within the meaning of the said words in the main section. The reason was that according to the customary law, where property was dedicated to a Hindu idol or mutt or to a Mohammedan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the Shebait, Mahant, Mutawalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Section 10 did not apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees, from these managers, rather difficult.

37. The legislature, therefore, intervened and amended Section 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says:

“The (Civil Justice) Committee's recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami, ILR (1921) 44 Mad 831 : (AIR 1922 PC 123) and Abdur Rahiman v. Narayan Das Aurora [(1922-23) 50 IA 84 : (AIR 1923 PC 44 (2)), which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutawalli or sajjadanashin in whom the management of Mohammedan religious endowment is vested, are not trustees within the meaning of the words as used in Section 10 of the Limitation Act, for the reason that the property does not vest in them. The result is that when a suit is brought against a person, not being an assign for valuable consideration, endowments of this nature, are not protected. The Committee's recommendation is that Section 10 of the Limitation Act should be amended so as to put Hindu and Mohammedan religious endowments on the same footing as other trust funds which definitely vest in a trustee.”

38. Thus, in view of the Explanation to Section 10 of the Limitation Act, 1963 the respondent's father who was managing the property must be “deemed” to be a trustee in whom the properties vested specifically and inasmuch as the respondent was a donee and was not a transferee for valuable consideration, Section 10 applies and possession could be recovered from the defendant without any limitation as to time.”

14. In Achuthan Pillai v. State of Kerala [1970 KLT 838 KB.] a Full Bench of this Court held that Section 10 of the Limitation Act, 1963 provides no period of limitation for a suit against a person in whom the trust property has become vested for any specific purpose or against his legal representatives or assigns for the purpose of following in his or their hands such property. The Full Bench further held that the object of Section 10 is to protect the interest of religious institutions.

15. In Basil's Commentary on Law on Limitation Act, 1963 - [8 Edition, Page No. 190], the learned author comments thus:—

“Any one getting possession of property whether movable or immovable in a fiduciary capacity whether as a servant or a trustee is estopped as long as he continues to be in possession in that capacity from asserting his own title, or which comes to the same thing questioning the title of the person from whom he got the possession. This is a basic principle of estoppel and is ultimately derived from the fundamental principle of justice that no law court should put a premium on dishonesty or breach of trust.”

16. In Mohammad Shah v. Fasihuddin Ansari [AIR 1956 SC 713], while dealing with a property comprised in Wakf estate, the Apex Court applying Section 10 of the Limitation Act held that no question of limitation can arise in respect of those parts of the property in dispute, which are comprised in the wakf estate.

17. In G.K. Engineering Works (M/s.) v. St. John the Baptist Church, Aluva [2011 (1) KHC 438], a Division Bench of this Court held that the relationship between the church and the parishioner is fiduciary relationship.

18. The TDB, constituted under Chapter II of the Travancore Hindu Religious Institutions Act, 1950, is an authority answering the definition of a ‘Hindu Religious or Charitable endowment’ under the Explanation to Section 10 of the Limitation Act. Admittedly, the property involved comprised in the plaintiff's religious endowment. Resultantly, the property/funds allegedly misappropriated, shall be deemed to be property vested in trust for the benefit of the religious endowment. The defendant, being the Manager of the property, shall be deemed to be the trustee thereof. The defendant was holding the funds in a fiduciary capacity. Therefore, it cannot be held that the suit is barred by limitation.

19. Inasmuch as the defendant is a trustee in respect of the amount in his possession for the plaintiff, Section 10 of the Limitation Act applies. Accordingly, the plaintiff is entitled to recover the amount without any limitation as to time. The finding of the Trial Court and the First Appellate Court that the suit is barred by limitation is therefore liable to be set aside.

20. The First Appellate Court dismissed I.A. No. 535/2004 on the ground that the document sought to be admitted as additional evidence was made available after the period of limitation.

21. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in addition. However, as an exception, Order XLI Rule 27 CPC, enables the appellate court to take additional evidence in exceptional circumstances. Order XLI Rule 27 reads thus:—

“27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

22. An appellate court may permit additional evidence only if the conditions laid down in the above extracted rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. The matter is entirely within the discretion of the Court and it is used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitations prescribed by the rule itself.

23. In Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. ((1978) 2 SCC 493) the Apex Court held that the appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. The Apex Court further held that where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce the judgment.

24. In Union of India v. Ibrahim Uddin [(2012) 8 SCC 148] considering the provisions of Order 41 Rule 27 CPC, the Apex Court held thus:—

“48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.”

25. In paragraph 5 of the judgment in M/S. Neldon Company v. P.V Radhakrishnan & Another [1990 KHC 202 : (1990) 1 KLJ 313], this Court held thus:—

“Even when the first two grounds under Order XLI Rule 27 are not satisfied, the court can always admit additional evidence which it may require to pronounce judgment or for any other sufficient cause. Ability to pronounce a judgment refers not to ability to pronounce any judgment but to the ability to pronounce a satisfactory and fair judgment to the satisfaction of the court delivering it and which is capable of doing justice between the parties. ‘Any other substantial cause’ also cannot be given a narrow interpretation”.

26. The First Appellate Court had no opportunity to consider the principles discussed above, as it had dismissed I.A. No. 535/2004 on the ground that the document sought to be admitted originated after the period of limitation.

27. In view of the finding that the suit is not barred by limitation, the order dismissing I.A. No. 535/2004 is also liable to be set aside.

28. The question of liability of the defendant to the plaintiff was not effectually adjudicated by the Trial Court. There is only a casual reference in the judgment of the Trial Court that the plaintiff failed to establish that the defendant has misappropriated the funds of the plaintiff. The First Appellate Court, being the final fact appreciating Court, has also not recorded any finding on the liability of the defendant to the plaintiff. There has not been effectual adjudication of the facts in issue or the lis before the Courts below. The matter is therefore liable to be remanded.

29. In the result, the Regular Second Appeal is allowed. The impugned judgments of the Trial Court and the First Appellate Court are set aside. The order dismissing I.A. No. 535/2004 is also set aside. The Original Suit is remitted back to the Trial Court for trial afresh. The parties are at liberty to lead additional evidence. The parties are directed to appear before the Trial Court on 28.02.2022.

30. Parties are directed to bear their respective costs in the appeal.

31. Pending interlocutory applications, if any stand closed.