H THIRTHAPPA Vs. M MURAGENDRAPPA

JUDGEMENT

(1.) heard appellants' learned advocate. The dispute in this case centered around the 1/3rd share claimed by the plaintiff in respect of two items that were not included in the partition of the family properties that took place in the year 1974. The present litigation had been preceded by some other litigation whereby the plaintiff had sought for an injunction in respect of these properties which was denied to him. The defendants who are his brothers had contended that they are entitled to continue in possession of these properties even though admittedly they do not form part of those which were covered by the 1974 partition. The plaintiff moved the trial court for a simple relief namely that as far as these two properties are concerned, since the father had died intestate that he should be awarded 1/3rd share. Various contentions were taken up before the trial court but principally what was sought to be pointed out was that the plaintiff was not entitled to the relief because all the properties had been partitioned in the year 1974 and that nothing was left out. The partition of 1974 has been examined by the learned trial judge who has recorded the finding that there was certain reasons for the exclusion of these two properties. In respect of the first of them, the occupancy rights were granted only after that date and as far as the second one was concerned that it was set aside for the maintenance of the father mallappa. The learned trial judge has therefore rejected the defence and held that the plaintiff was entitled to 1/3rd share. There was a passing reference in the course of the defence made to the fact that the late father mallappa had desired that these two properties should go to his first two sons who were the defendants and not to the plaintiff because they were still living in the village and cultivating the lands, whereas the plaintiff had taken up employment and was living elsewhere. Basically, the defendants had contended that it was the will or intention of their late father that the property should come to them. The learned trial judge has very correctly applied the law insofar as he has held that the intention of the late father cannot be taken cognizance of unless it is interpreted in a document namely the will and that in the absence thereof, since he has died intestate, that by operation of law the plaintiff would still be entitled to his 1/3rd share.

(2.) after the appeal was filed, certain interim applicationshave been taken out for production of additional evidence and explanations have been given in support thereof. In sum and substance, what is sought to be done is that the present appellants against whom the decree is passed have produced a xerox copy of the will that is supposed to have been executed in the year 1982 and they contend that this document was mixed up with certain revenue papers and came to the notice of the appellants only recently. They contend that this document very clearly establishes that these two properties were left to the appellants and that consequently, it goes to the root of the matter. They further contend that since the document did not come to the notice of the appellants earlier, they could not produce it before the trial court and the consequences of the applications are that in the first instance the decree will have to be set aside. Secondly, the written statement will have to be permitted to be amended and thirdly that the suit would have to be virtually reheard.

(3.) it is not the scheme- of the law that such attempts to introduce additional evidence at a belated stage should be permitted. This court has taken the view that such applications will be granted in the rarest of the rare cases and provided, the court is satisfied that the additional evidence would effectively and ultimately vary the verdict. I need to observe here that the grounds on which this document was not produced at any point of time in this or in the earlier litigation are rather weak. It is difficult to believe that in the face of continuing litigation concerning the properties, that for a period of something like 12 years the document if it was in existence and very much in the house would not see the light of the day. Having regard to this infirmity, even if the applications were to be granted the evidentiary value of that document would be so weak, that no court would be justified in relying on it. Under these circumstances, what this court takes cognizance of is that even if the applications were to be allowed and the entire litigation were to be re-routed, that the end of the exercise after a couple of years would still be exactly the same as it is today. This is an aspect of the matter which a court is required to examine before allowing or rejecting the application for additional evidence. These are well defined principles and one, which the appeal court is required to rely on in situations of the present type.