The Commissioner of Income Tax-III, Hyderabad vs. M/s. Vasant Intermediates Private Limited

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10TH DAY OF AUGUST 2022 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

R. F. A. NO.247 OF 2007 (DEC/INJ)

BETWEEN:

1 . SMT GIRIJA AGED ABOUT 48 YEARS W/O ANANTHA REDDY R/AT 48/15, I CROSS, SOMASWARAPURAM, ULSOOR, BANGALORE – 560 008.

2 . SMT. SARASWATHAMMA AGED ABOUT 64 YEARS W/O LATE VENKATASWAMY No.3, OLD No.27, G No. 8TH STREET JOUGUPALYA, ULSOOR, BANGALORE – 560008 PRESNETLY R/AT No.48/15, I CROSS, SOMESWARAPURAM, ULSOOR, BANGALORE – 560 008. ...APPELLANTS

(BY SRI. ABHINAV R., ADVOCATE)

AND:

1 . SMT. PARVATHAMMA AGED ABOUT 65 YEARS W/O NAGAPPA REDDY

2 2 . SRI. NAGAPPA REDDY AGED ABOUT 71 YEARS S/O LATE KRISHNAPPA

3 . KRISHNAMURTHY AGED ABOUT 44 YEARS S/O NAGAPPA REDDY

4 . NARAYANA REDDY AGED ABOUT 41 YEARS S/O NAGAPPA REDDY

ALL ARE R/AT No.2, G. No.8TH STREET JOGUPALYA, ULSOOR BANGALORE - 560 008. ….RESPONDENTS

(BY SMT. M.D. ANURADHA URS, ADVOCATE FOR SRI. A. RAMESH GOWDA, ADVOCATE FOR R-1 TO R-3 VIDE ORDER DATED 27.7.2009, R-4 HELD SUFFICIENT)

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 07.10.06 PASSED IN OS.NO. 3405/1997 ON THE FILE OF THE V ADDL. CITY CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 15.07.2022, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

3 JUDGMENT

The appellants aggrieved by the judgment and decree dated 07.10.2006, passed in O.S.No. 3405/1997 by the V Addl. City Civil & Sessions Judge, Bangalore City, have filed this appeal.

4 are the children of defendants No.1 and 2. Defendant No.1 is the daughter of Late Munipapaiah, S/o Muniswamiappa who had 3 brothers namely Munipapaiah, Ramaiah and Muniappa. Ramaiah and Muniappa died issueless. Muniswamiappa is no more and died on 03.09.1995. Plaintiff No.2 as well as defendant No.2 are the children of Late Achamma, W/o Late Krishnappa, co-sister of Late Munipapaiah. Achamma died during the year 1984 and her husband Krishnappa predeceased her. Plaintiff No.2 got married to Venkataswamy, whereas her brother Nagappa Reddy got married to defendant No.1, the only daughter of Late Munipapaiah. Munipapaiah died on 27.07.1966 and Venkataswamy died on 14.10.1989. Sons of Muniswamiappa constitute an undivided Hindu joint family and they were having a substantial movable and immovable properties which were joint in nature. Though joint family members,

5 were engaged in building construction work. Substantial loss occurred in their family profession. The demise of Muniswamiappa caused a set back in the family for the constitution of their business, etc. There were serious difference amongst the brothers with regard to discharge of debts and other liabilities which resulted in executing release deed in favour of Late Munipapaiah by the remaining brothers. The said release deed was registered on 06.01.1936. After the execution of the release deed, Munipapaiah took over the charge and managed the entire properties and had taken steps to discharge the debts and cleared most of the liabilities incurred by selling most of the joint family assets. Munipapaiah retained G.No.27, 8th Street, Jogupalya, Ulsoor, Bangalore. After the discharge of liabilities, Late Munipapaiah acquired various properties out of his own efforts. All the said properties are the independent properties of

6 Munipapaiah. None of the brothers had any right, title or interest. Achamma was residing with Munipapaiah as her husband passed away when her children were at the tender age. Late Munipapaiah felt that provision be made on behalf of the family of Late Achamma. Munipapaiah executed a Will bequeathing the properties in favour of defendant No.1, his daughter Smt. Parvathamma on 13.06.1936 with regard to ‘A’ schedule property and ‘B’ schedule property was bequeathed in favour of Achamma and ‘C’ schedule property in favour of plaintiffs. Defendant No.2 who married the defendant No.1 was named as an executor for the Will. During the year 1971, sons of Ramaiah, the brother of Late Munipapaiah filed a suit in O.S.No.498/1971 against defendant No.1 as well as another brother M. Ramaiah seeking for partition and separate possession and also challenged the validity of

7 the release deed made in favour of Late Munipapaiah. The said suit came to be decreed vide judgment and decree dated 11.10.1975. Aggrieved by the said judgment and decree, preferred an appeal in R.A.No.67/1975. The said appeal came to be dismissed by judgment dated 25.09.1978. A second appeal was filed in RSA No.307/1979 by defendant No.1 and this Court set aside the judgment passed by the Court below and consequently dismissed the suit. It is pleaded that Munipapaiah had independent right over the property released in his favour on 06.01.1936, and he executed a Will on 13.06.1956. Plaintiff No.1 is the beneficiary under the Will and plaintiff No.2 is having a life interest. Plaintiff No.1 is the only daughter born to the plaintiff No.2, who alone is entitled to the property bequeathed as per Schedule-C of the Will dated 13.06.1956. On the strength of the Will, the plaintiffs approached the

8 Bangalore City Corporation for effecting khatha in favour of plaintiffs. The defendants are aware of the fact that they have no interest in the property by keeping the original Will under their custody, started interfering into the peaceful possession and enjoyment of the plaintiffs. The plaintiffs gave a complaint before the Station House Officer, Ulsoor Police Station, Bangalore. Since the defendants interfered with the possession, plaintiff No.2 filed a suit in O.S.No.10137/1993 against the defendants. The defendants filed written statement in the said suit. The said suit came to be dismissed on 11.04.1997. The plaintiffs are entitled for the property mentioned in the schedule by virtue of Will executed by Munipapaiah. The defendants along with some rowdy elements attempted to dismantle the existing structure put up by the plaintiffs. The plaintiffs obstructed the illegal activities of the

9 defendants as well as the rowdy elements. They threatened the plaintiffs with dire consequences. The plaintiffs approached the jurisdictional police for affording police protection. The police authorities expressed their inability to afford protection and advised the plaintiffs to approach the Civil Court. Hence cause of action arose for the plaintiffs to file the suit. Hence the suit.

3.1. The defendant No.1 filed written statement denying the averments made in the plaint. It is pleaded that the defendants are living in the suit property i.e., property No.27 (old & new No.3) and property bearing No.2 is in the occupation of tenants of defendant No.1. The relationship between the parties is not in dispute. It is denied that Munipapaiah had executed the Will dated 13.06.1956, bequeathing different properties to Achamma and defendant No.1 and suit properties to the plaintiffs and also denied

10 that defendant No.2 was named the executor in the alleged Will. Plaintiff No.2 and Venkataswamy did not reside with the defendants. It is denied that during later part of 1989, i.e., after the death of Venkataswamy on 14.10.1989, trouble started and also denied that there was no controversy earlier that in view of the close affinity and relationship, the marriage of plaintiff No.1 was performed and marriage of defendant No.3 was performed with Smt. Ravikala, by defendant No.2 and others as per the customs prevailing in their community. It is admitted that a suit for partition was filed in O.S.No.498/1971 and the same came to be dismissed by judgment dated 23.08.1989, in RSA No.307/1979. The said suit was filed by the husband of plaintiff No.2 and father of plaintiff No.1. It was not pleaded in the said suit that plaintiff No.2 was given a life estate and remaining to the plaintiff No.1, the present suit is totally

11 inconsistent with the previous plaint. It is denied that the suit property had fallen to the share of plaintiffs and plaintiffs have been exercising their right of ownership in regard to the suit property. It is denied that the defendants have no right, title, interest or possession in or over the suit schedule property. It is denied that the plaintiffs are paying the property tax to BBMP. It is denied that the defendants are aware of the facts that they are not having any interest in the suit property or that they are keeping the so- called original Will under their custody or that they started interfering with the alleged peaceful possession and enjoyment of the property bequeathed in their favour. It is pleaded that plaintiff No.2 has filed a suit in O.S.No.10137/1993 for the relief of permanent injunction. In the said suit, plaintiffs asserted their possession over the suit property on the basis of the Will said to have been executed by

12 Munipapaiah. The said suit came to be dismissed. In the said suit, plaintiffs could have sought the relief of declaration of their title. The plaintiffs have failed to seek the relief of declaration of title. Therefore the present suit based on the Will once again, is barred under Order II Rule 2 of CPC. It is also pleaded that the plaintiffs failed to establish the Will. Therefore, plaintiffs cannot seek for the relief of declaration of title on the basis of the very same Will. It is pleaded that by the time suit for partition in O.S.No.498/1971 was filed, the relationship between the families was strained. It is pleaded that defendant No.1 spent huge amount for renovating the schedule property. The plaintiffs became jealous of her and in order to intimidate and coerce the defendants, the plaintiffs filed the suit. It is pleaded that suit filed by the plaintiffs is not maintainable. Hence prayed to dismiss the suit.

3.2. Defendants 2 to 4 filed written statement and stated that they have gone through the written statement filed by defendant No.1 and adopt the same and they do not hold any right in the suit property. Hence prayed to dismiss the suit.

3.3. The Trial Court, on the basis of pleadings, framed the following issues: 1. Do the plaintiffs prove that they have acquired absolute title over the schedule property by virtue of the Will said to have been executed by Munipapaiah on 13.06.1956? 2. Do the plaintiffs prove that they are entitled for possession of the schedule properties? 3. Do the plaintiffs prove that the interference caused by the defendants with their possession?

14 4. Does the first defendant prove that the succeeded to the schedule property being the daughter of Munipapaiah? 5. Does the first defendant prove that this suit is a bar under O.II R.2 Civil Procedure Code and not maintainable in view of judgment and decree in O.S.10137/1993? 6. Do the plaintiffs prove that they are entitled for the relief claimed by them? 7. What order or decree?

3.4. The power of attorney holder of plaintiff No.2 has examined himself as PW-1 and got marked documents Ex.P1 to Ex.P41.

Defendant No.1 examined herself as DW-1 and got marked documents at Ex.D1 to Ex.D36. The Trial Court after recording the evidence and considering the material on record, held that the plaintiffs have failed to prove that they have acquired absolute title over the schedule property by virtue of Will said to have been executed

15 by Munipapaiah on 13.06.1956. The Trial Court has observed that issue Nos. 2 and 3 do not arise for consideration and held that defendant No.1 has proved that defendant No.1 succeeded to the schedule property being the daughter of Munipapaiah and further held that the defendant No.1 has proved that the suit is barred under Order II Rule 2 of CPC and not maintainable in view of the judgment and decree in O.S.No.10137/1993 and further held that the plaintiffs are not entitled for the relief claimed by them and consequently dismissed the suit of the plaintiffs. The plaintiffs aggrieved by the dismissal of the suit, have filed this appeal.

16 of the Will dated 13.06.1956 in the earlier proceedings. He further submits that in view of the admission of defendant No.1 about the execution of the Will, question of examining the attesting witnesses would not arise. He submits that existence of Will is not disputed by any party. He submits that the plaintiffs have filed an application for production of additional documents. The plaintiffs have produced a Will executed by M.Muniyappa S/o Late Muniswamiappa dated 10.10.1970. It is a registered Will. In the said Will dated 10.10.1970, there is a reference to Munipapaiah bequeathing the suit schedule property in favour of plaintiffs’ mother i.e., Saraswathamma for her maintenance. He submits that the Trial Court has committed an error in recording a finding that the plaintiffs have failed to prove the Will dated 13.06.1956. He submits that the Trial Court has recorded a finding that the suit filed by

17 the plaintiffs is barred under Order II Rule 2 of CPC, is incorrect. The said suit in O.S.No.10137/1993 was filed by the plaintiff No.1 and not by the plaintiff No.2. He submits that the plaintiff No.2 can maintain a suit. Hence he submits that the Trial Court has committed an error in dismissing the suit of the plaintiffs. The judgment and decree passed by the Trial Court is perverse and arbitrary and same is liable to be set aside. Hence on these grounds, he prays to allow the appeal.

Per contra, learned counsel for the defendants submits that the plaintiffs have failed to prove the execution of the Will, no attesting witnesses were examined by the plaintiffs. He submits that the plaintiffs have not produced the original Will. He submits that the plaintiff No.2 filed a suit based on the alleged Will. The said suit came to be dismissed. No appeal is filed against the said judgment and decree.

18 The said judgment and decree has attained finality. He further submits that the plaintiff No.1 has filed the suit for bare injunction based on the Will. The plaintiff ought to have claimed a relief of declaration of title, the plaintiff omitted to claim a relief of declaration. Hence the suit filed by the plaintiffs is barred under Order II Rule 2 of CPC. The Trial Court after considering the material on record, was justified in dismissing the suit of the plaintiffs. He submits that the judgment and decree passed by the Trial Court is just and proper and does not call for any interference. Hence prays to dismiss the appeal.

The following points arise for my consideration:

19 (1) Whether the plaintiffs prove that they have acquired absolute title over the suit schedule property by virtue of the Will said to have been executed by Munipapaiah on 13.06.1956? (2) Whether the plaintiffs prove that PW-1 can act as a witness on behalf of the Principal? (3) Whether the defendants prove that suit is barred under Order II Rule 2 of CPC? (4) Whether the plaintiffs have made out grounds to allow the application for production of additional evidence ? (5) Whether the plaintiffs prove that the judgment and decree passed by the Trial Court is perverse and arbitrary? (6) What order or decree?

20 immovable properties which were joint in nature. The said Muniswamiappa died on 03.09.1935. After the demise of Muniswamiappa, there were serious differences amongst the brothers with regard to discharging of the debts and other liabilities which resulted in executing a release deed in favour of Late Munipapaiah. The said deed was registered on 06.01.1936. On the strength of release deed, Late Munipapaiah taken over the charge and managed the entire properties released in his favour by treating the same as his self-acquired property. All the properties were the independent properties of Munipapaiah. None of his brothers had any sort of right, title or interest over the property. Plaintiffs and Achamma were residing with Munipapaiah for considerable time and Munipapaiah had performed the marriage of plaintiff No.2 with his younger brother Late Venkataswamy. Munipapaiah executed a Will on

21 13.06.1956 and he died on 27.07.1966. Under the Will he has bequeathed the properties in favour of his daughter Smt. Parvathamma, the defendant No.1. As per the Will ‘A’ schedule property was bequeathed in favour of defendant No.1 Parvathamma, ‘B’ schedule property in favour of his sister Achamma, ‘C’ schedule property in favour of plaintiffs. Nagappa Reddy was named as the executor for the Will. Nagappa Reddy instead of apportioning the property as per the Will, went on postponing the same on one or the other ground. The plaintiff No.2 as well as her Late husband Venkataswamy were residing together along with the family of defendants. Trouble started during the later part of 1989 i.e., after the demise of Venkataswamy who died on 14.10.1989. During the year 1979, sons of Ramaiah, the brother of Late Munipapaiah filed a suit in O.S.No.498/1971 against defendant No.1 and others seeking for a partition and separate possession

22 and challenging the validity of the release deed made in favour of Late Munipapaiah. The said suit was decreed. Aggrieved by the judgment and decree passed in the aforesaid suit, preferred an appeal in R.A.No.67/1975. The said appeal came to be dismissed vide judgment dated 25.09.1978. Aggrieved by the judgment and decree passed by the courts below, preferred second appeal before this Court in RSA No.307/1979. This Court allowed the appeal and set aside the judgment and decree passed by the courts below and consequently dismissed the suit of the plaintiffs.

23 “63. Execution of unprivileged wills.— Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:—

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be

24 necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

25 the same time in the presence of each other and the testator. The need and necessity for stringent requirements of clause (c) to Section 63 of the Indian Succession Act, has been elicited and explained in several decisions. In H.VENKATACHALA IYENGAR VS. B.N.THIMMAJAMMA & ORS., reported in AIR 1959 SC 443, dilating on the statutory and mandatory requisites for validating the execution of the Will. Hon'ble Apex Court had highlighted the dissimilarities between the Will which is a testamentary instrument and other documents of conveyancing, by emphasizing that the Will is produced before the Court after the testator who has departed from the world cannot say that the Will is his own or it is not the same. The propounder to succeed and prove the Will is required to prove by satisfactory evidence, (1) the Will was signed by the testator; (2) the testator at the time was in a sound and disposing state of mind; (3)

26 the testator understood the nature and effect of dispositions; and (4) that the testator had put his signature on the document of his own free. Ordinarily, when the evidence adduced in support of a Will is disinterested, satisfactory and sufficient to prove the sound and disposition state of mind of the testator and his signature as required by law, Court should be in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, it is necessary to remove the suspicious circumstances surrounding the execution of the Will. In the present case, the plaintiffs have not examined the attesting witnesses in order to prove the execution of the Will as required under Section 63(c) of the Act. Further the plaintiffs have also not stated whether the attesting witnesses are alive or dead. The Hon'ble Apex Court in the case of JAGADISH CHAND SHARMA

27 VS. NARAIN SINGH SAINI (DEAD THROUGH LRS.) & ORS., in Civil Appeal arising out of SLP NO.36111- 12/14 dated 01.5.2015 referring to Section 68 and 71 of the Evidence Act, it was observed as under: “15.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of Court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a Will, if the same has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a Will. The proof of a Will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least

28 one of the attesting witnesses, if alive, and subject to the process of the Court concerned and is capable of giving evidence. 15.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient it would be, to scrutinize the evidence adduced by the parties. XXXXX 45.1 Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section

29 63 of the Act and Section 68 of 1872 Act. The distinction between failure on the part of a attesting witness to prove the execution and attestation of a Will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies /deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under

30 cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of Act 1872 cannot be invoked to bail him (propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63 (c ) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour 45.2 Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. This underlying principle is inter alia embedded in the decision of this Court in the

31 Commission of Income Tax Versus Ajax Products Limited.”

Section 68 of the Evidence Act gives a concession to whose who want to prove and establish a Will in the Court of law by examining atleast one attesting witness who could prove the execution of the Will. As observed above, the plaintiffs have failed to prove the execution of the Will by examining attesting

32 witnesses as per Section 68 of the Evidence Act. Thus the plaintiffs have failed to prove that Munipapaiah executed a Will dated 13.06.1956. In view of the above discussion, I answer point No.1 in negative.

33 "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”

The Hon'ble Apex Court held that power of attorney cannot depose for the principal in respect of the matter in which only principal can have the personal knowledge. Admittedly in the present case, PW-1 has no personal knowledge in the present case. The evidence of PW-1 cannot be considered. In view of the above discussion, I answer point No.2 in negative.

34 plaintiffs could have sought for the relief of declaration in the said suit. The plaintiffs have omitted from seeking the relief of declaration. The plaintiffs cannot maintain the suit under Order II Rule 2 of CPC. Before examining the rival contentions of the parties, it is necessary to extract relevant provision of Order II Rule 2 of CPC which reads as under:

“2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim.— Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

35 (3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Exaplanation.—For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

The scope of the above mentioned provision came up for consideration before the Hon'ble Apex Court in the case of STATE BANK OF INDIA VS. GRACURE PHARMACEUTICALS LTD., reported in (2014) 3 SCC 595 wherein Hon'ble Apex Court has held as under: “Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. Respondent is not

36 entitled to split the cause of action into parts by filing separate suits. We find, as such, that respondent had omitted certain reliefs which were available to it at the time of filing of the first suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of sub- rule 2 of Order 2 Rule 2, CPC. The object of Order 2 Rule 2 is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process. The object enunciated in Order 2 Rule 2, CPC is laudable and it has a larger public purpose to achieve by not burdening the court with repeated suits.”

37 alleged Will. Hence the plaintiffs have omitted to claim the said relief in O.S.No.10137/1993. Further, the said suit came to be dismissed vide judgment and decree dated 11.04.1997 as per Ex.D36. Plaintiffs have admitted that plaintiffs have not challenged the judgment and decree passed in the aforesaid suit and the said judgment has attained finality. Under this circumstances, the defendants have proved that the suit filed by the plaintiffs is barred under Order II Rule 2 of CPC. Thus, in view of the above discussion, I answer point No.3 in affirmative.

38 10.10.1970 and there is a reference about the execution of registered Will by Muniswamy. In order to prove the execution of the Will dated 13.06.1956, the proposed documents are necessary for the purpose of deciding the real controversy between the parties. The defendants 1 and 3 filed objections to the said application and denied the averments made in the application filed by the plaintiffs. It is contended that the father of defendant No.1 executed a Will in favour of defendant No.1 bequeathing the suit schedule properties. It is contended that the application is filed only with an intention to protract the proceedings. The defendants have specifically denied about the execution of the Will dated 13.06.1956, by Munipapaiah. The plaintiffs failed to prove the execution of the Will alleged to have been executed by Munipapaiah by examining the attesting witnesses. Even if the proposed document is placed

39 on record, it would not prove the execution of Will alleged to have been executed by Munipapaiah. Though the said document was available when the case was pending before the Trial Court, the plaintiffs have not produced the said documents before the Trial Court. The said documents are produced by the plaintiffs with an intention to fill up the lacuna. Further, the Hon'ble Apex Court in the case of N.KAMALAM (DEAD) & ANR. VS. AYYASWAMY & ANR., reported in (2001) 7 SCC 503, held that additional evidence cannot be permitted to be produced to fill up the lacuna or gaps in evidence or to patch up omission in appeal. In the instant case, the appeal was filed in the year 2007 and the plaintiffs have filed the application for production of additional evidence after 15 years after the filing of the appeal. I would like to place reliance on the judgment of the Co-ordinate Bench of this Court in the case of SRI. THIMMA NAIKA

40 VS. SRI. PAPANNA @ KEMPEGOWDA & ORS., reported in ILR 2012 (2) KAR 2643, wherein it is held that the claim for production of additional evidence is made almost 12 years after the institution of the suit and 8 years after filing of First Appeal before the Lower Appellate Court and hence rejected the application. In view of the law laid down by the Hon'ble Apex Court and by this Court, the application filed by the plaintiffs is liable to be rejected. Accordingly, I answer ponit No.4 in the negative.

41 18. Point No.6: In view of the above discussion, I proceed to pass the following: ORDER

The appeal is dismissed.

I.A.No.1/2022 for production of additional evidence is rejected.

No order as to the cost.

SD/- JUDGE RD