Judgment:
1. This appeal is filed by the defendant to challenge the judgment and decree in O.S. No. 5014/86 on the tile of the Addl. City Civil Judge (CCH No. 5), Bangalore city, whereby the said City Civil Judge decreed the suit of the respondents for partition and separate possession and further for mesne profits.
2. When the appeal was pending before this Court, one Mahendramma alias Indira, the daughter of the appellant herein had also resorted to an I.A. under Order I, Rule 10(2) of CPC for a direction to respondents to implead her as a parly to the suit. The said I. A. is numbered as LA. No. VI in the appeal. Hence, 1 heard the learned Counsel for the appellant Sri. S.K. V.Chalapgty, Sri. V. Tarakaram, the learned Senior Counsel appearing for the Impleading Applicant, the above said Mahendramma alias Indira and Sri: P,D. Surana, the learned Counsel appearing for the respondents.
3. The case in brief is as follows:
That the respondents had resorted to the suit in O.S. No. 5014/86 on the file of the Addl. City Civil Judge (CCH No. 15), Bangalore City thereinafter referred to for convenience as the 'Court below') for partition and separate possession of house property bearing Khaneshmari No.471 and 472 of Kengeri village within the limits of Kengeri Town Municipality, Bangalore south taluk. That the respondents No. 1 and 2 are the sons of one Appajappaalso known as Muniswamappa and the respondents No. 3 and 4 and the appellant herein are the daughters of the said Appajappa alias Muniswamappa. The case of the respondents as set out in their plaint is that the suit schedule property originally belonged to Appajappa. That during his life time, he had effected a partition of the joint family properties including the suit schedule property amongst his sons, the respondents No, 1 and 2 and there came to be registered a partition deed dated 3-8-1962, Ex. P.1. That the suit schedule property thus fell to the share of Appajappa under the above said partition deed and subsequently he died in the year 1978 leaving behind the appellant and the respondents as his legal representatives to succeed to the same in equal shares. The respondents therefore claimed partition and separate possession of their share 1/5th share each in the suit property in view of the fact that his wife by name Venkatamma (the mother of the appellant and the respondents) also died subsequent to the death of Appajappa. They further claimed that the appellant without consent of the respondents demolished the entire Mangalore tiled roof building originally existing in the suit property during the month of Nov. 1986 and she tried to put up a new structure thereon. Therefore, the suit was filed.
4. The appellant herein had filed her written statement in the suit, wherein while admitting the relationship between the parties, she contended that Appajappa executed a registered will Ex.D.4 on 16-10-1989, whereunder he bequeathed the entire suit property in her name and favour and as such she claimed absolute ownership of the suit property unto herself. She denied the claim of the respondents for partition of the suit schedule property. She further contended that even before the execution of the will, she was in possession and enjoyment of the suit properly along with Appajappa and her mother Venkalamma. She was so living for the reason that she lost her husband young and therefore she returned to her parents to live in the suit property along with her only daughter by name Mahendramma, the impleading applicant herein.
5, Based on the pleadings, the Court below had framed the following six issues :
'1. Whether the plaintiffs prove that they and the defendant are in joint possession of the suit schedule properties?
2. Whether the plainti.ffs further prove that each of them are entitled to 1/5th share in the suit schedule property?
3. Whether the defendant proves that the suit schedule properly was bequeathed to her under the will dated 1-10-1968 executed and registered by Appajappa and his wife Venkalamma?
4. Whether the defendant further proves that she is the absolute owner of the suit schedule property?
5. Whether the suit is properly valued for the purpose of court fee and jurisdiction?
6. What order and decree ?
6. To prove the case of the respondents, the respondent No. 2 (plaintiff No. 2) had examined himself as P.W. I on behalf of himself and on behalf of rest of the respondents and marked Ex.P. 1 -- a certified copy of the partition deed dated 3-8-1982 to show that the s.uit property had fallen to the share of Appajappa in the said partition deed. The appellant had examined herself as D.W. 1 and marked 26 documents including Ex.D.4 -- registered will in support of the case. She had examined further one K.S, Pullanna as D.W., 2 and K.R. Honnappa as D.W. 3. Bom the said two witnesses, D.W. 2 and D.W. 3 were examined by the appellant to speak to the effect that Appajappa alias Muniswamappa had suffered a paralytic stroke to the right side of his body, that he was not having control over his right hand and further to the effect that Appajappa during his life time had informed them that he willed away the subject property to the appellant by executing a registered will.
7. On appreciation of the evidence on record and on hearing the arguments of both sides, the Court below in discussing in detail the issues inthe suit as'above had recorded its finding as below:
Issue No. 1: in the affirmative and in favors of the respondents.
Issue No. 2: in favour of the respondents since the finding is that both ihe appellant and the respondents are entitled to for 1/5lh share each in the suit properly.
Issue No. 3and4: held against the respondents holding that they are liable to pay a deficit court fee of Rs. 3.800/-.
8. Finally, in answering Issue No. 6, the Court below had decreed the suit of the respondents as against the appellant. Having been aggrieved with the said Judgment and Decree, the defendant before the court below preferred the instant appeal.
9. The learned Counsel for the appellant Sri. S.K.V. Chalapathy had argued that in view of the fact that the father of the appellant -- Appajappa had willed away the subject property in favour of the appellant under a duly registered will dated 16-10-1968, marked as Ex.D.4 in favour of the appellant and her daughter Mahendramma alias Indira, ihe suit of the respondents had 10 be dismissed by the court below. He had also taken me through the background of the case as to how the suit schedule property was owned by Appajappa and further as to how and ihe circumstances under which Appajappa executed the will in favour of the appellant. He pointed out that Appajappa executed the will 10 bequeath the subject property in favour of the appellant for the reason that she lost her husband when she was very young, that she returned to the parental home and started living with Appajappa and his wife Venkatamma and that she had also taken care of them in their old age. Sri. Chalapaihy also argued that when the subject properly was also bequeathed in favour of the daughter of the appellant Mahendramma, she would have been made a party 10 the suit as she was a necessary party to the suit, as such, according to Sri. Chalapathy, the suit filed by the respondents before the Court below was bad for non joinder of the necessary party in the above said Mahendramma. It is also his argument that under Order 1, Rule 10(2) of CPC. the Court below on its own motion would have added the above said Mahendramma as a necessary party to suit. for according to him such a course was just and necessary to have effective adjudication of all the disputes between the parties once and for all and further to avoid multiplicity of the proceedings, at time leading to contradictory findings on the registered will. Sri. Chalapathy therefore submitted [hat it is just and necessary for this Court to remand the matter to the court below. In support of such an argument. that the daughter of the appellant, the above said Mahcndramma be implied as a parly, Sri. Chalapathy had also cited before mo the following decisions:
: AIR1976Kant62 ; : [1964]6SCR1 ; AIR 1992 Kant 380 (sic).
I advert to the relevancy of the above decisions cited by the learned counsel for the appellant at the appropriate stage here below.
10. On completion of the above argument of Sri. Chalapathy i n part, there came to be filed two I.As., one filed under Order 41, Rule 27 of CPC by the appellant herself with a prayer that she be permitted to adduce additional evidence and another I.A. by Mahcndramma alias Indira. the daughter of the appellant herein with a prayer that the respondents be directed to implead her as defendant No. 2 in the suit, O.S. No. 5014/86 out of which the instant appeal arose. The said impleading applicant is represented by the learned Senior Counsel Sri. V. Tarakaram.
11. Before proceeding further. 1 feel it proper to deal with the above (wo I.As. i.e. I.A. No. 2. and I.A. No. 4.
12. First. I propose to lake up I.A. No. 2. As stated above. I.A. No. 2 is filed by the appellant under Order 41, Rule 27 of CPC. The prayers therein are, firstly that the appellant be permitted to examine witnesses to prove execution and attestation of the will, secondly that she be permitted to produce additional document in support of her case and thirdly that she be permitted to summon records from the Office of the Sub-Registrar where the will was executed and registered. The reasons assigned for resorting to the above I.A. are set out in the affidavit accompanying the same, wherein the appellant had sworn to the statement that court below had given a finding that the will was not proved and that she had examined two persons of the neighbourhood, D.W. 2 and D.W. 3 to speak about their knowledge regarding the execution of the will by Appajappa in favour of the appellant and that after the impugned judgment and decree came to be passed, she had come to know that the children of the attestors of the will and also of the scribe are very much available since the attestorsof the will as well as the scribe are not alive nowand that therefore she be permitted to adduceadditional evidence. She further slated thereinthat unless she is so permitted, she will be put tohardship and injury.
13. The said I.A. is opposed by the respondents. In filing a detailed objection statement as against l.A. No. 2. the respondents contended that the appellant did not stale in her I.A. the reasons as to why she could not adduce those evidence which she now sought to adduce and that no grounds were made out in the affidavit about the diligence exercise by the appellant in the matter of adducing evidence in support of her case and further that the reasons arc not staled as to why the appellant was not able to produce the said evidence before the Court below. It is further averred in the objection statement that in the affidavit accompanying the I.A. it is not disclosed; as to what is the nature of the evidence, the appellant desired to produce and that the names of the witnesses are also not disclosed by the appellant and that the summoning of the records from the Office of the Sub-Registrar are not at all necessary as the same arc irrelevant in view of the fact that the original will was produced as Ex.D.4. It is further contended in the said objection statement that when the appellant herself made it clear that the will was not proved by her before the Court below, a new plea was innovated by her now to say that the appellant came to know about the availability of the children of the attestors and the scribe of the will and finally the respondents contended in the objection statement that the appellant resorted to the instant I.A. having failed to establish the execution of the will by Appajappa in her favour when she was called upon to do so.
14. Sri. Surana, the learned Counsel appearing for the respondents addressed his argument on the above lines of the objection statement filed by respondent as against I.A. No. 2. He had also cited before me the following decisions in support of his above argument.
: [1951]2SCR258 on the point that of the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record will have to be ignored, : [1965]1SCR542 on the point that under Order 41, Rule 27, the High Court has the power to allow a document to be produced and a witness be examined, provided the same is limited to those cases found necessary for the Court to pronounce Judgment and that the said provision of law does not entitle the appellate Court to let in fresh evidence at the appellate stage, where even without such evidence it can pronounce a judgment in a particular way; : [1991]3SCR548 , wherein the Supreme Court held that when it was not the ease of the appellant that he was prevented to adduce evidence in that behalf before the Court below, an order to remand the matter cannot be made to adduce fresh evidence, when though available was not adduced: 1970 (2) Mys LJ 549. to the effect that an appellate court can remand and that no order of remand can be made by the appellate Court when the Court had not gone into the merits of the appeal; ILR 1991 Kant 3260 on the point that when document is produced as additional evidence in appeal under Order 41. Rule 2S, the appellate Court may decide the appeal itself and that there is no need to set aside the judgment of the trial Court and remand the matter for fresh trial and lastly ILR 1991 Kant 3257, wherein the learned single Judge of this Court held that there should not be remand without considering the merits of the appeal unless the findings on the issues are materially insufficient. The said decision is under Order 41, Rule 25 of CPC.
15. In the light of the above arguments addressed by both sides on I.A. No. 2. the point for my consideration is whether LA. No. 2 filed by the appellant be entertained by this Court in the instant appeal. Before proceeding further, 1 feel that it is relevant here to quote what Rule 27 of Order 41 of CPC reads. I quote here below the said provision of law.
'Order 41, Rule27, 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 waspassed, 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 the produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.'
16. From the above provision of'law. it is clear that for entertaining an I.A. for production of additional evidence in an appeal, any one or more of the three conditions as above have to be fulfilled. In the instant case in hand, it is not the case of the appellant that the court below hud refused to admit evidence which ought to have been admitted by it or despite there being due deligence, such evidence could not be produced for want of knowledge or that this Court being the Appellate Court requires any document to the produced or any witness to be examined, to enable to pronounce judgment or for any other substantial cause. Unfortunately, in the instant case in hand, none of the above circumstances is made out in I. A. No. 2 to resort to the same by the appellant. It has to be observed in this context that in the written statement fi led by the appellant before the Court below she never whispered anything about the names of the attestors and of the scribe, least of it, she never spoke about the availability or non-availability of the said persons. Further more, she had not even pleaded about the knowledge of execution of the will by D.W. 2 and D.W. 3 and despite there being no pleading thereto she had examined the saidwitnesses. What is strange is that the appellant was not even knowing in whose name the subject property was bequeathed by late Appajappa. for in no part of the written statement she referred to bequeathing of the suit schedule property to her daughter. As could be seen in the written statement filed by the appellant, very well available on the records of the Court below, what she had averred with reference to the will in question is that the subject property was bequeathed to her and that therefore she herself had become the absolute owner of the subject property, furthermore, even in the evidence of the appellant examined as D.W. I before the Court below, she never spoke even a word about the attestors or for that matter anything about the scribe or with regard to their availability or otherwise.
17. When the above is the diligence shown to prove Ex. D 4 will it is very difficult for me to accept- the contention of the appellant in the instant I.A. that she had come to know now and after the impugned Judgment and Decree was passed, that the attestors and the scribe who have set their respective hands to Ex.D.4 -- will are dead and that their children are available to be examined as witnesses.
18. It therefore appears to me that there was nn diligence worth the name on the pan of the appellant to produce the required evidence both oral and documentary to prove Ex.D.4 -- will before the Court below. All the more, even when she had claimed in her evidence that she had papers to show as to how Appajappa's L.T. M. looked like and appeared, she did not produce the same before the Court below.
19. In that view of the matter, I hold that there is no merit in the instant I.A. No. 2 filed by the appellant and the same does not deserve any favourable consideration by this court at this belated stage. 1 therefore, reject the I. A. No. 2 of the appellant accordingly.
20. Now I proceed to consider I.A. No. 4 filed by the impleading applicant Smt. Mahendramma alias Indira, the daughter of the appellant herein, filed under Order 1. Rule 10(2) of CPC. The prayer in the said I.A. is to direct the respondents herein to implead her as the defendant No. 2 in the suit O.S. No. 5014/86. It should be noted here that the said imp leading applicant did not choose to challenge the impugned Judgment and the preliminary decree now under challenge before this Court in the hands of her mother, the appellant herein, but she resorted to the instant I.A. instead, no matter that there is no suit now pending before the Court below. It appears to me that by resorting to the instant application, what the imp leading applicant intended to do is to reopen the case by a remand of the matter to the Court below. As a matter of fact, such an argument was very vehemently advanced by the learned Counsel for the appellant as pointed out by me as above. The argument was that vehement that, instead of citing the decision in support of I.A. No. 2 filed by the appellant the appellant's Counsel chose to file as many as nine citations in support of the instant I.A. filed by the impleading applicant. As a matter of fact, major part of his argument was (debated) for impleading the impleading applicant by directing the respondents to implead her as defendant No. 2 to suit. The argument sounded more like a plea advanced on behalf of Imp leading applicant as in I.A. No. 4.) could understand the predicament of the appellant for certain lapse on her part in the matter of proving the will, which I deal in detail here below.
21. The learned Counsel for the impleading applicant had taken me through the backdrop of the case and the purpose for which I.A. No. 4 is now filed by the impleading applicant. Avenging to the registered will -- Ex. D.4, Sri. Tarakaram, the learned Senior Counsel appearing for the impleading applicant argued that under the said will, it is not only that the appellant herein who was bequeathed with the suit property, but the impleading applicant was also equally bequeathed with of the same, for according to him, of course as could be made out in the registered will, Ex, D.4, the suit property is bequeathed by late Appajappa in the joint names of the appellant and her daughter, the impleading applicant herein. Therefore. Sri. Tarakaram pointed out that the impleading applicant was a necessary party to the suit when the same was pending before the Court below. According to him, the respondents herein would have impleaded the impleading applicant as a necessary party to the suit if not at the stage of institution of the same, at least at the later stage when the will was produced before the Court below showing that the suit property was bequeathed in the joint names of the appellant and the impleading applicant. Sri. Tarakaram also argued that Ihe Court below on its own motion would have as well impleaded or directed the respondents to implead the impleading applicant as a necessary party to the suit, for it was borne on the will that the impleading applicant was also bequeathed with the subject property along with the appellant. He further argued that in view of the fact that the necessary party in the impleading applicant was not impleaded as a necessary party to the suit, obviously, the very suit of the respondents was bad for non joinder of necessary parly and that it is to make the same good, the impleading applicant herself had now come before this Court to resort to the instant I.A. It is his submission that in the event of non-allowance of the impleading application, the result would be the multiplication of the proceedings which may as well lead to contradictory findings by yet another Court. Therefore, Sri. Tarakaram prayed that the impleading application be allowed and the respondents be directed to implead the impleading applicant as the defendant No. 2 to the suit. Sri. Tarakaram had also called before me almost all the decisions cited by the learned Counsel for the appellant referred to above in para 9 (nine) supra. The Cited decisions are :
: [1959]1SCR1111 on the point that the question of addition of parties under Order I, Rule 10 of CPC is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of particular case; : AIR1976Kant62 on the point that when the plaintiff is agreeable to the impleading applicant to come on record 10 cure the defect of non-joinder of the co-owners by preferring an application under Order 1. Rule 1.0. the application deserves allowance, AIR 1974 Kant 115, wherein it was held that where in a suit for ejection of a trespasser was filed without impleading the other co-sharers and when a contention was raised in the Court of the first instance that Ihe impleading of the other co-sharers is a must to maintain the suit, it is very appropriate to give an opportunity to the plaintiff to amend his plaint to implied Ihe other co-sharers as parlies, ILR 1993 Kant 851 (sic) on the point that the trial court was in error in passing the preliminary decree by dismissing the impleading application filed on the ground that the deceased had left a will and that impleading applicants were the legatees under the will Sri. Tarakaram had also cited before me an unreported decision of this Court in R.F.A. No. 822/1987, where the learned single Judge of this Court allowed an impleading application of the unmarried sisters having right of share in the subject property in an appeal and remanded the matter to the Court below by selling aside the Judgment and Decree to afford an opportunity to commute (sic) the suit.
22. I have gone through all the above decisions cited before me by the Learned Senior Counsel Sri Tarakaram. In my considered view, none of the more decisions is applicable to the instant case in hand, for the set of facts in the reported case and the set of facts in the instant case in hand are totally different.
23. The impleading applicant is no doubt one of the legatees under the registered will -- Ex. I, (sic) nevertheless, she is also living along with the appellant considerably for long time. As a matter of fact, in the affidavit accompanying the impleading applicant in no part thereof she hadaverred that she was not knowing anything about the suit that was pending before the Court below and that she had come to know all about the'suit only at the belated stage, now, when the instant appeal is pending before this .Court. Another aspect of the case is that, when the appellant had filed her detailed written statement, in no part thereof she had averred that her daughter, the impleading applicant herein is also to succeed to the estate of the deceased Appajappa along with her. As stated above, her one line case is that, it is she who had been bequeathed with the suit schedule property by Appajappa and that it is she therefore, who is the absolute owner in possession. Further more, in her evidence she had also produced and marked Ex. D 3-- khata endorsement, Ex. D. 5 10 Ex. IX 15 -- tax paid receipts and Ex. D. 16 -- khata certificate depicting her name as the owner of the subject property, It is therefore, crystal clear that the appellant had totally suppressed the said fact not only from the respondents, but also from the Court below. Had it been otherwise, she would have definitely contended that the impleading applicant is a necessary party to the suit and therefore the respondents be directed to implead the impleading applicant as a necessary party to the suit at the very earlier stage of the proceedings. In the facts and circumstances, of case in hand, I am in no way left, with doubt that the I.A. No. 4 has now been filed by the daughter at the instigation of the appellant herself for the obvious reason that she is desperately trying to reopen the case once again by one way or other, probably by now she is convinced something had gone wrong somewhere in the matter of proving the registered will -- Ex. D. 4 by her before the Court below. When the appellant had not raised any objection in her written statement that the impleading applicant is also a necessary party to suit, she cannot now have any grouse as against the respondent to say that the respondents be directed to implead the impleading applicant as a necessary party to the suit. Further more, 1 am convinced to say that when the impleading applicant herself was very much aware about the suit on the file of the Court below, nothing prevented her 10 resort to the instant application before the Court below when the suit was pending. Let apart, in my considered view, for a suit for partition filed by Ihe respondents before the Court below, the impleading applicant could not not be a necessary party, for her position is not that of the appellant, for the appellant was imp leaded to suit not because she was a legatee, but she was one of the co-sharers to share along with the respondents in the suit schedule property. In the above background, now let me see whether the impleading application filed by Mahendramma @ Indira, the daughter of the appellant is sustainable.
24. In the Civil Procedure Code of 1882 (old code), the term 'decree' had been defined thus : (only relevant portions quoted), decree means, a formal expression of an adjudication upon any right claimed or defence set up in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit (or appeal). The explanation in Section 2(2) of the present Code (Act No. V of 1908) has been newly added and so also the provisions in the main definition that a decree may be either preliminary or final.
25. Section 97 was enacted for the first time in the present Code, which lays down that where any party aggrieved by a preliminary decree passed after the commencement of this Code docs not appeal from such decree, he or she shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. But under the old code, objections to a preliminary decree could be raised in appeal against the final decree. Consistent with the new provisions under Section 2(2) and Section 97, Order 20, Rule 18(2) of C.P.C. was newly introduced. It prescribes that where the Court passes a decree for partition of property or for separate possession of a share therein, then, if and in so far as such decree relates to any other immoveable property or to a moveable property, the Court may, if the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the parties interested in the property and giving such further directions as. may be required.
26. The above provisions were newly introduced for the first time in the present Code to bring into an important change that in a preliminary decree, certain rights are conclusively determined and unless the preliminary decree of a Court is challenged in appeal, the rights so determined become final and conclusive and cannot be questioned in the final decree.
27. In that sense, the preliminary decree now passed by the Court below in favour of the respondents itself is a final decree in so far as those rights are concerned; it is therefore obvious that certain rights have already accrued to the respondents under the said preliminary decree. Hence, in my view, this Court cannot give tardy recognition of that right that had already enured in favour of the respondent. In this regard, the effect of a preliminary decree for partition what was authoritatively pronounced by the Supreme Court in : AIR1963SC992 can beneficially be quoted. The same reads as follows at Page 995 :
'Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permits reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision ora review application as is permitted by the Codc. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it arc concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree -- the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree.'
28. From the above, it is clear that what the impleading applicant would have normally done is to challenge the impugned judgment and decree by way of appeal, if she is in any way aggrieved with. Having not done that, in my view, it is late in the day to resort to the instant application by her before this Court with a prayer that the respondents be directed to implead her as defendant No. 2 in the suit when the very suit is no more pending. If we advert 10 Order I, Rule 10(2) of C.P.C., it is clear that the impleading either as a plaintiff or a defendant is only when the suit is pending before the Court and when that stage'had totally crossed, in my considered view, the impleading applicant cannot now resort to the instant application with a prayer that the respondents be directed to implead her as a defendant No. 2 in the suit.
29. All the more, it is not, as if the impleading applicant is not without any relief, for the proceedings in a suit for partition does not come to an end till the final decree is passed and as such, it appears to me that she can as well resort to such an application in the final decree proceedings which is yet to be commenced in the case. As I sec. it should be noted in this context that in the instant suit filed by the respondents for partition, separate possession and for mesne profits, as against the appellant, the impleading applicant herein may be a proper party being a person interested in the subject property, but, it cannot be said that she is a necessary party to the very suit as originally framed as above. A necessary party is one without whom noordercan effectively be made, whereas a proper party is one in whose absence an effective order can be made, but whose presence is necessary for complete and final decision on the question involved in the proceedings. The provisions in Order 1, Rule 10(2) of C.P.C. gives jurisdiction to the Court to order that the name of any person who ought to have been joined or whose presence before the Court may he necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit be added at any stage of the proceedings. If that is so, I do not think the instant I.A. No. 4 resorted to by the impleading applicant can be entertained by this Court at this stage. In the event of the same being entertained by this Court, in my view that will cause embarrassment and difficult situation to the respondents when their suit, one for partition, separate possession and for mesne profits as against the appellant had already been decreed in view of the fact that the appellant who had propounded the will -- Ex. D. 4 in her defence had miserably failed to prove the same. One should not forget for a moment that, certain rights have already been accrued to the respondents with the passing of the preliminary, decree by the Court below in their favour.
30. In that view of the matter, I do not find any merit in the instant application and therefore, I have got no hesitation to reject the same; accordingly, I reject LA. No. 4 filed by the impleading applicant.
31. To come once again back to the merits of the instant appeal and to take the thread from the, argument of the learned Counsel for the appellant Sri. Chalapathy, I point out that it is his argument that when the attestors as well as the scribe were dead and gone it was not possible for the appellant to examine the said witnesses to prove the registered will Ex. D4. It is for that reason it was the lot of the appellant to examine the neighbours of the appellant, D; W. 2 and D. W. 3 who had first hand knowledge about the execution of Ex. D. 4-- will in favour of the appellant- According to Sri Chalapathy, the appellant had proved the will in a way how it could be proved by the appellant in the above given situation. Having proved the will, according to Chalapathy, the Court below would not have decreed the suit for partition of the respondents, therefore, he prayed that the impugned Judgment and Decree be set a side and the suit of the respondents be dismissed, or in the alternative the matter be remanded to the Court below to afford an opportunity to the appellant to adduce additional evidence by allowing LA. No. 2 filed by the appellant.
32. The learned Counsel for the respondents Sri P. D.Suranahoweverargued that the appellant had miserably failed to prove Ex. D. 4 -- will in favour of the appellant. He pointedly argued that it is for that reason, the appellant had resorted to LA. No. 2 knowing fully well that she did not prove Ex. D. 4 -- will before the Court below. When Ex. D. 4 -- will was not proved by the appellant before the Court below, the result was obvious that the suit for partition of the respondents had to be decreed as against the appellant.
33. It is to be observed here that the relationship of panics and the ownership of the subject property by Appajappa was not in dispute at all. All that what the appellant had contended in the written statement is that because of the registered will Ex. D. 4, the. entire property had devolved upon her. But unfortunately, though she did not plead in so many words that the suit property had devolved upon her daughter, Mahendramma, the impleading applicant in I.A. No. 4, it is revealed in the very will Ex. D.4 that the subject properly was bequeathed by Appajappa in the joint names of the appellant as well as the above said Mahendramma @ Indira. But, unfortunately for the appellant, she did not prove the said registered will -- Ex. D. 4, for the signatures of the attestors and so also the signature of the scribe was never proved by the.,appellant before the Court below as contemplated under Section 63 of the Indian Succession Act and further as contemplated under Section 68 of the Evidence Act. AH that she had done before the Court below to prove Ex. D. 4 -- will is only to examine D.W. 2 and D.W. 3 who according to her had knowledge about the execution of the will by Appajappa in the name of the appellant. Even that evidence cannot be believed, for, it turned out to be that under Ex. D. 4 -- registered will, the suit schedule properly was bequeathed not in the name of the appellant alone, but in the joint names of the appellant and her daughter -- Mahendramma @ Indira. Even the evidence of appellant -- D.W. I is that the suit schedule property was bequeathed to her by Appajappa. When that is the case, it cannot be held that the appellant had discharged the burden of proving Ex. D. 4 -- Will before the Court below. In the said facts and circumstances of the case, it is obvious that the suit of the respondents was decreed by the Court below as against Ihe appellant.
34. In this regard, I should observe that the appellant herein had cared least either to know the contents of Ex. D. 4 -- Will or to get the same proved before Court in accordance with law, more particularly under Sections 67 and 68 of the Evidence Act and Sections 59 and 63 of Indian Succession Act. Here, I feel that it is appropriate for me to quote what the Hon'blc Supreme Court held in Ihe following two decisions with regard to proof of a will.
35. In Girija Datt Singh v. Gangotri Datt Singh reported in : AIR1955SC346 , the Supreme Court held as follows at Page 351 :
'In order to prove the due execution of the will, Ihe propounder of will has to prove that 'A' and 'B' the two witnesses saw the test at or signed the will and they themselves signed the same in the presence of the testaior.'
36. In H. Venkatachala Iyengar v. B. N. Thimmajjamma reported in : AIR1959SC443 , once again the Supreme Court held with regard to proof of will as follows at Page 451:
'The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is lo be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Eivdence' Act are relevant for this purpose. Under Sections 67, if a document is alleged lo be signed by any person, the signature of Ihe said person must be proved to be in his handwriting, and for proving such a hand-writing under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Sec.tion 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribed the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of Law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to wether the will set up by the propounder is proved to be the last will of the test at or has to be decided in ihe tight of these provisions. It would prima facie be true lo say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents, so in the case of proof of wills it would be idle to except proof with mathematical certainty. The lest to be applied would be the usual test of the satisfaction of the prudent mind in such matter.'
37. If the evidence on record adduced by the appellant in the instant case before the Court below is appreciated in the light of the above two reported decisions of the Supreme Court, it cannot be in any way be held that the appellant had proved the will -- Ex. D. 4 before the Court below.
38. Yet another situation I have to point out at the cost of repetition here is that the appellant had not even produced certain papers stated to be in her possession, wherein the appellant claimed contained the L.T.M. of Appajappa. This, the appellant would have done the least to show that Ex. D. 4 -- will in fact was executed by Appajappa; of course that would noi have conclusively proved the execution of the will by Appajappa. in a way the same had to be proved under law.
39. In that view of the mailer, I do not find any merit in the instant appeal too. Therefore, I pass the following resultant order.
The I.A. No. 2 filed by the appellant under Order 41, Rule 27 of C.P.C. and I.A No 4 filed by the Impleading Applicant under 0rder l, Rule 10(2) of C.P.C. stand rejected.
The appeal stands dismissed.
40. Appeal dismissed.