Shri Prakash vs Shri Vaddar Gangamma, Shri Vaddar Yankappa and Shri Jitendra Kumar

Ravi Malimath, J.—In the suit by the 1st respondent for partition and separate possession and consequential reliefs, the petitioner/defendant No. 3 filed an application I.A. No. 9 under Order 14 Rule 5 and 6 read with Section 151 of CPC, to frame an additional issue, which was rejected by the trial Court. Hence the present petition. Learned counsel for the petitioner contends that the impugned order is erroneous and liable to be set aside and that the additional issue sought to be framed is not covered by the issues already framed in the suit. Hence he prays that the application be allowed.

On hearing learned counsel I do not find any merit in the submission. The petitioner seeks for framing of an additional issue as to "whether the defendant No. 2 and 3 proves that, the parties to the suit belong to Kadu Vaddara Caste and they are not following Hindu Rituals, as such as per sub section (2) of Section II of Hindu Succession Act, excludes the parties to the suit from the application under the section Hindu Succession Act." Whereas, issue No. 4 already framed in the suit is to the effect as to "whether the defendant further proves that Hindu Succession Act is not applicable to the parties, further as plaintiff has re-married after death of her first husband late Vaddara Guruvappa, she is not entitled to succeed to estate of her husband." Therefore the trial Court was of the view that the very issue sought to be framed by the petitioner, is covered by issue No. 4 already framed. The order of the Court below is just and appropriate. Since the additional issue now sought to be framed by the petitioner is covered by the issue No. 4 already framed, I do not find any merit in the petition. Consequently, the petition is dismissed as being devoid of merit.