- 1 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 29TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO.100215 OF 2022 (PAR/POS) BETWEEN: KAMALAWWA D/O. BHEEMAPPA TALAWAI SINCE DECEASED R BY HER LR, RENUKA W/O. BHEEMAPPA TALAWAI, AGE: 31 YEARS, OCC: HOUSEHOLD, R/O. NUGGIKERI, DIST: DHARWAD. …APPELLANT (BY SRI. PRANAV UMESH BADAGI, ADVOCATE FOR SRI. R.H.ANGADI, ADVOCATE) AND: 1. BHEEMAPPA S/O. MAHADEVAPPA TALAWAI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O. NUGGIKERI VILLAGE, AT POST: YARIKOPPA, KURUBAR ONI, DHARWAD, TAL AND DIST: DHARWAD. 2. HANUMANTAPPA S/O. MAHADEVAPPA TALAWAI, AGE: 36 YEARS, OCC: AGRICULTURE, R/O. NUGGIKERI VILLAGE, AT POST: YARIKOPPA, Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.09.03 16:06:11 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 KURUBAR ONI, DHARWAD, TAL. AND DIST: DHARWAD. 3. RAYAPPA S/O. BHEEMAPPA TALAWAI, AGE: 69 YEARS, OCC: AGRICULTURE, R/O. NUGGIKERI DHARWAD. 4. GANGAWWA W/O. HANUMANTAPPA MALLIGAWAD, AGE: 54 YEARS, OCC: HOUSEHOLD, R/O. NUGGIKERI, DHARWAD. 5. VIJAYALAXMI W/O. ARUN ANNIGERI AGE: 43 YEARS, OCC: AGRICULTURE, R/O. ADAVI SOMAPUR, TAL AND DIST: GADAG. 6. MANJUNATH S/O. MAHADEVAPPA DUGGANI, AGE: 32 YEARS, OCC: AGRICULTURE, R/O. YERIKOPPA, TAL AND DIST: DHARWAD. 7. MANJULA W/O. SHIVANNA MENASHINKAI, AGE: 31 YEARS, OCC: HOUSEHOLD, R/O. BAAD, TAL AND DIST: DHARWAD. 8. SHESHIKALA W/O. MUDUKAPPA MALAGI, AGE: 28 YEARS, OCC: HOUSEHOLD, R/O. GAMBYAPUR, TAL AND DIST: DHARWAD. 9. ASHOKA S/O. MAHADEVAPPA DUGGANI AGE: 28 YEARS, OCC: AGRICULTURE, R/O. YERIKOPPA, TQ AND DIST: DHARWAD. - 3 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 10. MANJUNATH S/O. GURUPUTRAPPA ANGADI, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. YERIKOPPA, TAL AND DIST: DHARWAD-580114. 11. MANJAYYA S/O. BASAYYA KADANKOPPAMATT, AGE: 31 YEARS, OCC: AGRICULTURE, R/O. YERIKOPPA, TAL AND DIST: DHARWAD-580114. 12. RAVI S/O. ARJUN HAIBATTI AGE: 45 YEARS, OCC: AGRICULTURE, R/O. YERIKOPPA, TAL AND DIST: DHARWAD-580114. …RESPONDENTS (BY SRI. V.L.KULKARNI, ADVOCATE FOR R4; NOTICE TO R1, 2, 3, 5 TO 12 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.11.2021 PASSED IN O.S.NO.242/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.WITHIN THE PERIOD OF LIMITATION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA - 4 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal arises out of the impugned judgment and decree dated 30.11.2021 passed in O.S.No.242/2013 by the Principal Senior Civil Judge and CJM, Dharwad1. 2. The brief facts giving rise to the present appeal are as under: The original plaintiff Kamalavva filed the aforesaid suit against the respondents - defendants for partition and separate possession of her alleged share in the suit schedule immovable properties and for other reliefs. The said suit was instituted on 21.09.2013 and during pendency of the suit, the original plaintiff Smt.Kamalavva expired on 18.11.2013, prior to the respondents - defendants filing their written statements. Upon demise of the original plaintiff Smt.Kamalavva, the appellant herein claiming to be a legatee under alleged registered Will dated 25.09.2013 filed an application I.A.No.5 dated 01.01.2014 under Order XXII Rule 3 read with Section 151 of the Code of Civil Procedure, 19082 to come on record as the heir and legal representative of the 1 Hereinafter referred to as “the Trial Court” for short 2 Hereinafter referred t as “CPC’ for short - 5 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 deceased original plaintiff Smt.Kamalavva. Meanwhile, the respondents - defendants filed the written statements not only disputing and denying the claim of the original plaintiff Smt.Kamalavva but also objected to the application filed by the appellant under Order XXII Rule 3 of the CPC to come on record as the heir and legal representative of the deceased original plaintiff Smt.Kamalavva. It is a matter of record, vide order dated 06.01.2017, the Trial Court allowed the said application and permitted to the appellant to come on record as the legal representative of the deceased original plaintiff Smt.Kamalavva by keeping open the question regarding execution, attestation, legality and validity of the alleged registered Will dated 25.09.2013 to be decided after full fledged trial. The said order dated 06.01.2017 passed by the Trial Court allowing the application filed by the appellant to come on record as the legal representative of the deceased original plaintiff Smt.Kamalavva reads as under: “ORDER ON APPLICATION FILED UNDER ORDER 22 RULE 3 R/W SECTION 151 OF C.P.C. 1. The applicant filed this application under Order 22 Rule 3 R/W Section 151 of CPC for permission - 6 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 to come on record as a legal heir of deceased Kamalawwa. 2. In the affidavit accompanying the application, the applicant stated that the Plaintiff namely Kamalawwa D/o Bheemappa Talawai has expired on 18- 11-2013 at Nuggekeri, Dharwad. The applicant is the legal heir of deceased Plaintiff by way of registered Will dated 25-09-2013. As she is the only legal heir of the Plaintiff, it is necessary to bring her on record as the LR of deceased Plaintiff. 3. The Defendant No.4 filed objections stating that the application filed by the Plaintiff is not maintainable. The Plaintiff Smt. Kamalawwa Talwai has no legal heir. It is not admitted that she had executed a registered Will dated 25-09-2013 in favour of proposed legal heir ie., Smt. Renuka W/o Bheemappa Talawai. It is submitted that as on the date of the filing of the suit on 21-09-2013 she was not keeping well and was not in sound deposing state of mind and the said Smt. Renuka Talawai taking her helplessness has created bogus Will only with an intention to harash the Defendant No.4 and make an unlawful gain. It may be noted that the suit is filed on 21-09-2013, Will is got executed on 24-09-2013 and she died on 18-11-2013 which creates a suspicious circumstances in the execution of the Will and therefore the present application is to be dismissed. 4. The following Points arise for my consideration: "Whether the present application deserves to be allowed ?" - 7 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 5. I have heard the arguments of both sides on the I.A. I have perused the records of the case. 6. I answer to the above Point in the Affirmative for the following: REASONS 7. Perused the records it reveals that this Suit is filed by Smt. Kamalawwa for partition and separate possession of 1/4th share in the Suit properties. The applicant has contended that the deceased Plaintiff Kamalawwa has executed a Will on 25-09-2013. As per the Registered Will she is the beneficiary In support of her contention she has produced Registered Will dated 25-09-2013 alleged to be executed by deceased Plaintiff Kamalawwa. It also discloses extent of share of the Plaintiff bequeathed in favour of the applicant. 8. On the other hand Defendant No.4 contention that Smt. Kamalawwa has no legal heir and alleged Will dated 25-09-2013 is created and bogus Will to harass the Defendant No.4 and to make unlawful gain. 9. At this stage, it cannot be decided that whether the present applicant is legal heir of the deceased Plaintiff on the basis of Will. To consider this fact full pledge trial is required. Under these circumstancesat this stage by considering the Registered Will Deed I feel that it is just and proper to allow the application and permit the applicant to come on record as legal heir of the deceased Plaintiff Kamalavva in the ends of justice. According I pass the following: - 8 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 ORDER The application filed under Order 22 Rule 3 R/W Section 151 of CPC is allowed. The applicant is permitted to come on record as legal heir of deceased Kamalavva.” 3. Subsequently, based on the pleadings of the parties, the Trial Court framed the following issues: 1. Whether the plaintiff proves that she and defendant Nos.1 to 3 are the member of the Hindu undivided family and scheduled properties are their ancestral and joint family properties? 2. Whether the plaintiff further proves that apsat vatni patra dtd. 21.04.1997 is a created and got-up document? 3. Whether the 3rd defendant proves that already scheduled properties have been divided by metes and bounds few years ago? 4. Whether the 3rd defendant further proves that the suit suffers from non joinder of necessary parties? 5. Whether the 3rd defendant further proves that the suit is hopelessly barred by limitation? 6. Whether the 3rd defendant further proves that suit valuation and payment of court fee are insufficient and incorrect? 7. Whether the plaintiff is entitled to plaint reliefs? - 9 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 8. What order or decree? ADDITIONAL ISSUES 9. Whether the defendant Nos.5 to 8 prove that deceased Mahadevappa Duggani is a bonafide purchaser of suit land bearing Block No.167/1 of Yarikoppa village for valuable consideration? 10. Whether the defendant Nos.5 to 8 further prove that they are in physical possession and enjoyment of Block No. 167/1 measuring 9 guntas and 8 annas? 4. The appellant examined herself as PW.1 and one witness as PW.2 and documentary evidence at Exs.P.1 to P.27 were marked on her behalf. The defendants examined power of attorney holder as DW.1 and Ex.D.1 and D2 were marked on their behalf. 5. After hearing the parties, the Trial Court proceeded to dismiss the suit filed by the appellant herein on the sole ground that after permitting the appellant to come on record as the legal representative of the deceased original plaintiff Smt.Kamalavva, the appellant herein had not got the plaint amended nor introduced any pleadings in relation to the alleged registered Will dated 25.09.2013, said to have been executed by - 10 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 Kamalavva in favour of the appellant. While arriving at the said conclusion, the Trial Court held as under: “11. Issue Nos. 1 to 3 : These issues are inter related and therefore, they are taken for common discussion to avoid repetition. 12. The suit came to be filed on 21.09.2013 by the original plaintiff Kamalavva daughter of Bheemappa Talawai claiming her share in the suit schedule properties. According to the said plaintiff, the suit properties are ancestral joint family properties of herself and defendant Nos.1 to 3. As per the genealogy described the plaint, Bheemappa was the propositus of the family, who died in the year 1958. His wife Bheemavva died in the year 1998. The defendant Nos.1 and 2 are sons, while the plaintiff and defendant No.3 along with one Paravva are daughters of Bheemappa and Bheemavva. The plaintiff has contended that Paravva died issueless. The defendant Nos.1 and 2 have not contested the suit claim, but the defendant No.3 has disputed the claim of the plaintiff by filing written statement. Family genealogy has not been disputed. Besides, it is the specific claim of the defendant No.3 that in the year 1997 itself the suit properties were divided by way of apsat watni and the said defendants got share in the suit property bearing R.Sy. No.167. Out of the total extent of the said property, the defendant No.3 sold 9 acre 8 annas in favour of daughter of the defendant No.4 by name Vijaylakshmi through a registered sale deed. Thus, according to the defendant No.3 the suit properties no more remained as ancestral joint family properties of the plaintiff and the defendant Nos.1 to 3. 13. A perusal of records would reveal that after filing of the suit it was reported that on 18.11.2013 plaintiff - 11 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 Kamalavva died. Then the present plaintiff Smt. Renuka W/o. Bheemappa Talawai filed I.A. No.5 U/o. 22 Rule 3 of CPC to implead her as the plaintiff of the suit claiming that on 25.09.2013 the plaintiff Kamalavva executed the registered Will in her favour bequeathing her share in the suit properties. This court, on 06.01.2017, allowed the said interim application permitting the applicant come on record as the plaintiff. Resultantly, the applicant of the interim application Smt. Renuka W/o. Bheemappa Talawai came on record as L.R of the deceased plaintiff. Accordingly, cause title of the plaint was amended and amended plaint was filed before the court. That apart, absolutely no pleading was inserted in the original plaint disclosing rights of impleaded plaintiff over the suit properties. The plaintiff No.1(a), who came on record after the death of original plaintiff on the basis of alleged registered Will has not chosen to plead about the execution of the Will in her favour by the original plaintiff Smt. Kamalavva. Only in the I.A. No.5 filed U/o. 22 Rule 3 of CPC, it was contended that Kamalavva died on 18.11.2013 at Nuggikeri and the applicant Smt. Renuka W/o. Bheemappa Talawai is legal heir of the deceased plaintiff on the bases of the registered Will dtd. 25.09.2013. As per the registered Will, the applicant is the beneficiary of the will and she is the only legal heir and therefore, it was sought to allow her to come on record as legal representative of the deceased plaintiff. When the said I.A. No.5 was allowed, the applicant of that I.A. Smt. Renuka came on record as the plaintiff (plaintiff No.1(a)) by way of amendment of the cause title of the plaint. Nothing more was introduced in the plaint averments relating to the alleged Will said to have been executed by the original plaintiff Kamalavva in favour of Smt. Renuka W/o. Bheemappa Talawai. 14. Of course, it is the specific claim of the original - 12 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 plaintiff Kamalavva that the suit schedule properties are ancestral joint family properties of herself and defendant Nos.1 to 3, but it is not the case of the plaintiff No.1(a) Smt. Renuka that she is natural heir/daughter of the deceased Kamalavva so that she can succeed by way of natural succession to the share of the plaintiff. Nowhere in the I.A. No.5 filed U/o. 22 Rule 3 of CPC, it is mentioned that original plaintiff Kamalavva died issueless. As per the contents of the said application, the present plaintiff No.1(a) Smt. Renuka W/o. Bheemappa Talawai acquired character of legal representative of the deceased Kamalavva on the basis of the registered Will. No effort was made by the plaintiff No.1(a) Smt. Renuka to plead about the alleged will in the plaint. Thus, the plaint averments remain intact except just amendment of the cause title of the plaint. 15. The impleaded plaintiff, who asserts her right over the suit properties on the basis of registered will, is expected to plead about the said will in the plaint so that the defendants can set up their defence about the Will. In the absence of pleadings in this regard, the plaintiff No. 1(a) has deposed as P.W.1 vide as many as three affidavits by reiteratiing the plaint averments. In such affidavits of P.W.1, nowhere it is stated that original plaintiff Kamalavva executed registered Will in favour of P.W.1 bequeathing her share in the suit properties. All the affidavits filed in lieu of examinationinchief of P.W.1 are nothing but replica of the plaint presented by the original plaintiff Smt. Kamalavva. Though P.W.1 did not whisper about the Will in her evidence, she has produced original Will at Ex.P.1 and got examined one of the attesting witnesses as P.W.2. P.W.2 has identified his signature at Ex.P.1(b) and stated that deceased Kamalavva executed the said Will in favour of P.W.1 Smt. Renuka in his presence. Of course, as per the contents of the Will, Smt. Kamalavva executed it in favour of P.W.1 Smt. - 13 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 Renuka bequeathing her share in the suit properties in her favour, but the said Will can not be considered in the absence of required pleadings in the plaint. Unless it is pleaded about the said Will in the plaint, the plaintiff No.1(a) cannot directly rely on the said Will to get its benefits. 16. The defendant No.3, through the written statement, has disputed the will by contending that it is a created document. Initial burden always rests on the plaintiff to plead and prove acquisition of her rights over the suit property on the strength of the disputed Will. It is settled principle of law that pleading is the base for the suit claim and in the absence of pleading no amount of evidence is considerable. With regard to the case on hand, the Will produced at Ex.P.1 by the plaintiff remains without pleadings. Since there is no pleading relating to the Will at Ex.P.1, nothing can be expected on the part of the defendants to counter plead and disclose their defense about the said Will. Therefore, the plaintiff No.1(a) has absolutely failed to prove her rights over the suit schedule properties. It is not proved that the plaintiff No.1(a) Smt. Renuka W/o. Bheemappa Talawai succeeded to the interest of the original plaintiff Smt. Kamalavva immediately after her death on the basis of the alleged will. Basically, the plaintiff No.1(a) has failed to prove her legal right to ask partition in the suit properties. Admittedly, she is not the coparcener of the family of the plaintiff and defendant Nos.1 to 3, but she claimed her rights based on the Will produced at Ex.P.1. On failure of the plaintiff No.1(a) to plead about the Will, she cannot be considered as a person having locusstandi to maintain the suit for partition against the defendants in respect of the suit properties. Thus, it is not proved that the suit properties are ancestral properties of the plaintiff No.1(a). - 14 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 17. The defendant No.3 has pleaded that apsat watni was already effected and as per the said watni she got her share in the suit properties. In order to prove the same, the defendant No.3 did not choose to enter into the witness box, but her son as a holder of her power of attorney has deposed as D.W.1 vide affidavit by reiterating the contents of the written statement. No effort has been made on the part of the defendant No.3 to produce related revenue documents to show that apsat watni was executed and the same was acted upon. On the other hand, the plaintiff No.1(a) has produced M.E. No.716 of Nuggikeri village at Ex.P.14 and as per the said revenue document, on 21.04.1997 apsat watni was taken place among the brothers and sisters i.e., the plaintiff (original) and defendant Nos.1 to 3. Names of the plaintiff and defendant Nos.1 to 3 were mutated into records of some of the suit properties on the basis of the report of apsat watni. The suit property bearing R.Sy. No.167/1 does not appear in the list of the properties said to have been divided by way of apsat watni. That apart, no cogent revenue document has been produced to prove the effect of apsat watni. Moreover, the defendant No.3, who was party to the alleged apsat watni, has not come forward to depose about the apsat watni. Since D.W.1 was not party to the said partition, his evidence is not suffice to prove the disputed apsat watni. 18. That for the reasons discussed earlier, since the plaintiff No.1(a) has failed to prove her nexus with the family of the original plaintiff and with the suit schedule properties, she cannot dispute the alleged apsat watni by contending that the same does not bind her rights over the suit properties. Therefore, the issue Nos.1 to 3 are answered in Negative. 19. Issue No. 4 : There is no dispute that Paravva - 15 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 died issueless, but according to the defendant No.3 nearest relatives of deceased Paravva are necessary parties to the suit. Except bare pleadings, no evidence has been put forth by the defendant No.3 disclosing the names of the nearest relatives and their relationship with the deceased Paravva. In the absence of required pleadings and evidence in this regard, it cannot be considered that the suit suffers from nonjoinder of necessary parties. Hence, the issue No.4 is answered in Negative. 20. Issue No.5 : The defendant No.3 has contended that the suit is hopelessly barred by limitation. As per the plaint averments when the original plaintiff Smt. Kamalavva asked her share in the suit properties in the first week of September 2013, the defendant Nos.1 and 2 declined her request and therefore, only in the year 2013 cause of action arose for her to file the suit. The plaintiff has disputed the alleged apsat watni said to have been taken place in the year 1997 itself. As per her say, no partition has been effected in the family and therefore, cause of action arose only in the year 2013 on denial of her share. Expect bare pleadings, no effort has been made by the defendant No.3 to prove that earlier partition of the suit properties and disturbance of joint possession. In the circumstances, it is not proved that the suit is time barred. In the result, the issue No.5 is answered in Negative. 21. Issue No.6 : It is simply pleaded by the defendant No.3 that suit is not properly valued and payment of court fee is insufficient. What is the different valuation of the suit property and what is the proper court fee have not been pleaded by the defendant No.3. The suit is filed for the relief of partition and there is no dispute that maximum court fee of Rs.200/ has been remitted on the claim that the plaintiff is in joint possession of the suit properties. In the - 16 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 absence of better evidence, it is not proved that the suit is under valued or less court fee is paid. Therefore, the issue No.6 is answered in Negative. 22. Addl. Issue Nos.1 and 2 : There is no dispute that the father of the defendant Nos.5 to 8 purchased the suit property bearing Block No.167/1 during the pendency of the suit in the year 2016. That apart, the defendant Nos.5 to 8 have pleaded that their father is the bonafide purchaser for value. It is further contended that they are in physical possession of the purchased property. Except the pleadings, the said defendants did not choose to give evidence by entering into the witness box. Thus, pleadings of the written statement suffers for want of evidence. Therefore, the additional issue Nos.1 and 2 are answered in Negative. 23. Issue No.7 : After the death of original plaintiff Smt. Kamalavva the plaintiff No.1(a) Smt. Renuka came on record on the basis of alleged registered Will said to have been executed by original plaintiff in her favour in respect of the suit properties. As discussed earlier, absolutely no effort was made by the impleaded plaintiff to insert required pleadings in the plaint about execution of Will. Hence, nexus between the plaintiff No.1(a) and the suit properties has not been established. Therefore, the present plaintiff 1(a) is not entitled for the reliefs claimed. Resultantly, the issue No.7 is answered in Negative. 24. Issue No.8 : That for the reasons discussed supra, the following; O R D E R The suit of the plaintiff is dismissed with costs.” - 17 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 6. As can be seen from the aforesaid findings recorded by the Trial Court, the appellant/LR of deceased original plaintiff was non-suited on the sole ground that there was no requisite pleadings introduced by her by amending the plaint regarding the alleged registered Will dated 25.09.2013, said to have been executed by the original plaintiff Smt.Kamalavva in her favour. Under these circumstances, the appellant has filed I.A.No.1/2025 in the present appeal seeking amendment of the plaint by incorporating paragraph No.2(e) as hereunder: “2e. That Smt. Kamalavva D/o Bheemappa Talawai has executed a register will dated 25.09.2013 infavour Smt. Renuka W/o Bheemappa Talawai bequeathing her share in the joint family properties i.e., the suit scheduled properties, after the death of sole Plaintiff Smt. Kamalavva D/o Bheemappa Talawai i.e., on 18.11.2013, her only legal heir Smt. Renuka W/o Bheemappa Talawai by the way of registered will dated 25.09.2013, is entitled for the share of deceased Smt. Kamalavva D/o Bheemappa Talawai in the suit scheduled properties.” 7. Respondent No.4 – defendant No.3 has vehemently opposed the said application and contends that the aforesaid application having been filed after disposal of the suit is not maintainable and that the appellant had not exercised due diligence in not seeking amendment prior to commencement of - 18 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 the Trial as contemplated under the proviso to Order VI Rule 17 CPC and the proposed amendment would change and alter the nature and character of the suit as well as cause of action and consequently the proposed amendment deserves to be rejected and the application in I.A.No.1/2025 is liable to be dismissed and so also the present appeal deserves to be dismissed. 8. We have given our anxious consideration to the rival submissions and perused the material on record. The following points arise for consideration by this Court in the present appeal. (i) Whether the application in I.A.No.1/2025 filed by the appellant for amendment of the plaint deserves to be allowed? (ii) Whether the impugned judgment and decree passed by the Trial Court was warrants interference by this Court in the present appeal? Regarding Point No.(i) :- 9. A perusal of the material on record will indicate that, as stated sputa, the suit was originally instituted by original plaintiff Smt.Kamalavva on 21.09.2013 and upon her demise on 18.11.2013, the appellant - plaintiff filed an application in I.A.No.5 under Order XXII Rule 3 of CPC dated 01.01.2014 to - 19 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 come on record as the heir and legal representative of the deceased original plaintiff Smt.Kamalavva on the basis of alleged registered Will dated 25.09.2013 said to have been executed in her favour by the original plaintiff Smt.Kamalavva. The respondents – defendants not only disputed the claim of the original plaintiff but also disputed and denied the alleged registered Will propounded by the appellant by filing of their statement of objection dated 03.07.2014 to I.A.No.5 filed by the appellant – plaintiff. As stated supra, the Trial Court vide order dated 06.01.2017 allowed I.A.No.5 filed by the appellant – plaintiff and permitted her to come on record as the legal representative of the deceased original plaintiff Smt.Kamalavva for the limited purpose of representing the estate of the deceased plaintiff and in order to enable her to continue to prosecute the suit on behalf of the deceased original plaintiff Smt.Kamalavva. The said order dated 06.01.2017 would also indicate that the Trial Court has recorded a categorical finding that the question / issue as regards the Will would be kept open to be decided after full fledged trial. The said order dated 06.01.2017 allowing I.A.No.5 filed by the appellant under Order XXII Rule 3 of CPC and thereby permitting the appellant to come - 20 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 on record as legal representative of the deceased original plaintiff Smt.Kamalavva and by leaving the question / issue regarding the alleged registered Will dated 25.09.2013 has attained finality and become conclusive and binding upon the respondents and defendants. In other wards, having not challenged the said order dated 06.01.2017 passed by the Trial Court allowing application I.A.No.5, the respondents – defendants are precluded / estopped from now contending that, the appellant was not entitled to not only continue the suit on behalf of the appellant – plaintiff but also put forth a claim on the basis of the alleged registered Will said to have been executed by Smt.Kamalavva in favour of the appellant. 10. Under these circumstances, we are of the considered opinion that the Trial Court completely misdirected itself in dismissing the suit on the erroneous premise that the requisite pleadings regarding the alleged Will dated 25.09.2013 were not pleaded / got amended by the appellant after allowing I.A.No.5 without appreciating that the aforesaid order allowing I.A.No.5 by itself keeps open the question of the Will to be decided after full fledged trial, thereby obviating / dispensing with their - 21 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 requirement of additional pleadings in this regard, which would be clearly a surplusage and was not required in the facts and circumstances of the instant case. 11. At any rate, out of abundant caution and in order to over come the findings recorded by the Trial Court, the appellant – plaintiff has filed I.A.No.1/2025 in the present appeal seeking to put forth pleadings in relation to alleged registered Will said to have been executed by Smt.Kamalavva in her favour. In the affidavit in support of her application, the appellant – plaintiff has specifically stated that due to oversight and inadvertence, she could not get the plaint amended and incorporate necessary pleadings as regards the alleged registered Will upon allowing of I.A.No.5 by the Trial Court. 12. Though the said application is vehemently opposed by learned counsel for respondent No.4 – defendant No.3, in light of the order dated 06.01.2017, leaving open the question regarding the alleged registered Will to be decided after full fledged trial, we are of the considered opinion that the proposed amendment at appellate stage was relevant, necessary and essential for the purpose of adjudication of the issue in - 22 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 controversy between the parties, in particular, the alleged Will propounded by the appellant – plaintiff and said to have been executed by the original plaintiff Smt.Kamalavva in favour of the appellant. 13. It is also relevant to state that the proposed amendment does not in any way, challenge or alter the nature and character of the suit or its cause of action, since the same is related to amplifying and elaborating the plea regarding the registered Will already put forth by the appellant plaintiff in I.A.No.5 and the order dated 06.01.2017 allowing the appellant to come on record by keeping open the question regarding the registered Will to be decided only after full fledged trial. Under these circumstances, in the light of the principles governing amendment of pleadings as held by the Apex Court and this Court in various judgments including in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and another3 and the findings recorded by the Trial Court that, the suit was liable to be dismissed on the sole/solitary ground that necessary pleadings were not put forth 3 AIR 2022 SC 4256 - 23 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 as regards the alleged registered Will, we are of the considered opinion that I.A.No.1/2025 filed by the appellant – plaintiff deserves to be allowed, especially when no prejudice would be caused to the respondents – defendants by allowing amendment since they would entitled to file their additional written statement and contest the amended pleadings in accordance with law. Point No.(i) is according answered in favour of the appellant and I.A.No.1/2025 filed by the appellant – plaintiff for amendment of plaint is accordingly allowed. Regarding Point No.(ii) :- 14. The next point that arises for consideration is the course to be adopted by this Court for the purposes of disposal of the present appeal. 15. As stated herein above, while answering point No.(i), we have already come to the conclusion that the appellant - plaintiff is to be permitted to amend the plaint by incorporating necessary pleadings as regards the alleged registered Will dated 25.09.2013 propounded by her and alleged to have been executed by the original plaintiff Smt.Kamalavva in favour of the - 24 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 appellant. As stated supra, the Trial Court proceeds to dismiss the suit on the sole / solitary ground that no pleadings were forthcoming as regards the alleged Will. In this regard it is necessary to state that the Trial Court does not record any finding on the merits / de-merits of the rival contentions as regards the alleged Will and the rights of the parties in the suit schedule properties, which would necessarily have to follow by recording a finding on the legality, execution, attestation, genuineness and validity of the alleged Will propounded by the appellant. 16. Under these circumstances, since the Trial Court has not recorded any finding on the merits / de-merits of the rival contentions, we deem it just and appropriate to exercise our powers under Section 107 read with Order XXIII-A Rule 33 of the CPC and set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh in accordance with law within a stipulated time frame having regard to the advance stage of the parties. The point No.(ii) is accordingly answered in favour of the appellant. 17. In the result, the following : - 25 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 ORDER (i) The appeal is hereby allowed. (ii) The impugned judgment and decree dated 30.11.2021 passed in O.S.No.242/2013 by the Trial Court is hereby set aside. The matter is remitted back to the Trial Court for reconsideration afresh in accordance with law. (iii) The appellant and respondents are directed to appear before the Trial Court on 22.09.2025 without awaiting any further notice from the Trial Court. (iv) I.A.No.1/2025 filed by the appellant for amendment of the plaint is hereby allowed on cost of Rs.10,000/- payable by the appellant to respondent No.4 – defendant No.3 – Gangawwa on the date of appearance of the parties before the Trial Court on 22.09.2025 as stated supra. (v) On 22.09.2025, the Trial Court shall permit the appellant to carryout the amendment of the plaint and permit the respondents – defendants to file additional written statement to the same. (vi) Liberty is reserved in favour of both parties to adduce additional, oral and documentary evidence in support of their respective claims. - 26 - HC-KAR NC: 2025:KHC-D:10946-DB RFA No. 100215 of 2022 (vii) It is made clear that the appellant shall not be entitled to seek amendment of pleadings pursuant to this order. (viii) The Trial Court shall endeavor to dispose of the suit as expeditiously as possibly and at any rate on or before 31.03.2026. (ix) All rival contentions on all aspects of the matter including the alleged Will dated 25.09.2013 said to have been executed by the deceased original plaintiff Smt.Kamalavva, in favour of the appellant are kept open and no opinion is expressed on the merits / de-merits of the rival contentions. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE EM Ct:vh List No.: 1 Sl No.: 20