Andhra HC (Pre-Telangana)
Smt. Kolluri Kusuma Kumari vs Grandhi Surya Bhagawan, Smt. Maddula ... on 13 September, 1995
Equivalent citations: 1995(3)ALT132, 1996 A I H C 2627
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT M.N. Rao, J.
1. Against the common judgment of a learned Single Judge of this Court in A.S. No. 77 of 1988 and cross objections and also C.R.P. Nos. 6986 of 1980 and 919 of 1983, these two Letters Patent Appeals were filed by the plaintiff (L.P. A. No2 of 1989) and Defendant Nos. 3 and 4 (LPA No. 100 of 1989).
2. One Padmaraju, a leading businessman of Visakhapatnam, is the father of the parties to the suit - O.S. No. 160 of 1978 instituted by Smt. Kolluri Kusuma Kumari in the Court of the III Additional District Judge, Visakhapatnam seeking a decree for division into four shares of 'stridhana properties' - gold and silver jewellery-belonging to her late mother and for delivery of one share to her. Grandhi Surya Bhagavan, the first defendant in the suit, is her brother and Smt. Maddula Savitri, Kolluru Parvati and Kanitheti Mahalaxmi, defendants 2 to 4 respectively are her sisters. Of the three sisters, Maddula Savitri, the second defendant, remained ex parte in the suit; Defendants 3 and 4, although entered appearance through a Counsel, did not file their written statements. The suit was dismissed in so far as the silver articles were concerned on the ground that they were not in existence but a decree was granted in favour of the plaintiff by the trial judge for 1/4th share of the gold jewellery. Aggrieved by the same, the first defendant preferred A.S. No. 77 of 1980 in this Court. During the pendency of the appeal, the plaintiff, Kusuma Kumari, filed an interlocutory application - E.P. No. 69 of 1980 - for delivery of the jewellery, in default, to attach the properties of the first defendant or commit him in civil prison. As that application was dismissed, she preferred C.R.P. No. 919 of 1983. Defendants 3 and 4 filed an interlocutory application - LA. No. 27 of 1980 - in the trial Court under Sections 151 and 152 C.P.C., for a preliminary decree in their favour and allotment of one share to each of them. As that application was dismissed, they preferred C.R.P. No. 6986 of 1980. To the extent relief was negatived by the trial Court concerning the silver articles, the plaintiff preferred cross-objections. A learned Single Judge of this Court disposed of all the matters by a common judgment: the appeal preferred by the first defendant- A.S. No. 77 of 1980 - was allowed and the suit of the plaintiff was dismissed. Conequently, the cross-objections and the two civil revision petitions were dismissed. Hence these two Letters Patent Appeals.
3. Padmaraju, the father of the parties to the litigation, died on 30-11-1964. He had two wives. His first wife, Ramamma, died issueless. His second wife, Suryakanthamma, the mother of the parties, died in 1950. The following table gives a clear picture of the relationship of the parties.
Padmaraju (Died on 30-11-1964) | ___________________________________________________________________ | | Ramamma (1st wife) Suryakanthamma (2nd wife) (died issueless) (died in 1950) | _____________________________________________________________________________________________ | | | | | | | Ramakrishna Suryabhagvan Kamaraju Kusuma Kumari Savitri Parvathi Mahalaxmi (1st son - (2nd son- (3rd son- (1st daughter (2nd daughter (3rd daughter (4th daughter mentally Defendant P.W.3 Not a Plantiff) Defendant No.2) Defendant No. 3) Defendant Retarded) No. 1) Party to the P.W.2) Suit)
4. Three months prior to the death of Suryakanthamma, the plaintif-Kusuma Kumari was married and at that time, she was aged 15 years. The first defendant was then aged seven years. For some time after the death of her mother, the plaintiff stayed with her father looking after the house-hold needs. In 1964, the first defendant completed his studies in Vijayawada, settled down in Visakhapatnam with his father and started separate business - a firm by name Padma Agencies. The eldest son, Ramakrishna, was mentally retarded. Padmaraju and his three sons partitioned their properties on 1-1-1958; Ex.A-2 is the registration extract of the partition deed. Padmaraju executed a will, the certified copy of which is Ex.A-1, on 14-6-1964 in respect of the properties that fell to his share under Ex.A-2, the partition deed. He appointed his second son, Surya Bhagavan, the first defendant, as the executor of the will. He mentioned in the will that he was keeping the gold and silver jewellery belonging to his wife, Suryakanthamma, with him and after his life time, the same should be shared equally by his four daughters (the plaintiff and defendants 2 to 4). Padmaraju also mentioned in the will that an amount of Rs. 23,581-21 was set apart at the time of the partition for the marriage of his fourth daughter Mahalaxmi (Defendant No. 4) and that after meeting the marriage expenses, she should be given Rs. 10,000/- and if there is any shortfall, the same should be made good from his estate. There was a credit of Rs. 17,717/- in the khathas of the second daughter, Savithri (defendant No. 2) and Parvathi, third daughter (defendant No. 3) in respect of which Padmaraju mentioned in the will that both of them should be given each Rs. 10,000/-, the shortfall to be made good from his estate. Like-wise, in respect of the plaintiff, Kusuma Kumari, it was mentioned in the will that a sum of Rs. 20,017/- was to her credit in the accounts and that she should be given not only that amount but also an extra sum of Rs. 10,000/- from his estate. The rest of the properties, it was recited in the will, should go to the second and third sons- Surya Bhagavan and Kamaraju. During his life time, Padmaraju performed the marriages of defendants 2 and 3 but the marriage of the fourth defendant, the last daughter, was performed after Padmaraju's death.
5. In the suit, it was averred by the plaintiff that the gold and silver jewellery referred to in the will, Ex.A-1, were the 'stridhana property' of her mother which devolved, under Hindu Law, upon her and her sisters - defendants 2 to 4. Padrnaraju, during his life time, constituted himself as a trustee for and on behalf of the plaintiff and her sisters with regard to the stridhaha jewellery and after the passing of the Hindu Succession Act, 1956, they became absolutely entitled to the same. The first defendant, after the death of Padmaraju, came into possession of the said jewellery and he thus became a trustee holding the same in trust and so was duty bound to distribute the jewellery in equal shares to the four sisters. Even as the executor of the will, Ex.A-1, the first defendant was liable to divide the jewellery between the palintiff and defendants 2 to 4. The value of the 1/4th share in the jewellery, the plaintiff claims was estimated at Rs. 16,487-50. The earlier litigation concerning the specific bequests in favour of the plaintiff and her sisters, Defendants 2 and 3, mentioned in Ex.A-1 will - monies lying to their credit in their khathas - culminating in decrees against the first defendant in the two suits filed - O.S. No. 45 of 1967 renumbered as O.S. No. 5 of 1969 and O.S. No. 116 of 1967 renumbered as O.S. No. 7 of 1969 also were referred to in the plaint.
6. As already stated, the second defendant remained ex parte and defendants 3 and 4, although engaged a counsel, did not file their written statements. Resisting the suit, the first defendant, in his written statement, had contended that he was aged hardly seven years when his mother died and did not know what all gold and silver jewellery his mother had. He denied that he got into possession of the jewellery as a trustee and asserted that his mother never possessed of so many varieties of gold ornaments as mentioned in the plaint. She (the mother) did not have any silver jewellery separately as 'stridhana property'. After the marriage of the plaintiff, she lived with her husband in the family house managing the house-hold affairs and she was in possession and control of the house-hold articles including the iron safe. Either at the time of the marriages of defendants 2 and 3 or thereafter, his father might have given the gold jewellery of his wife to them. It was also pleaded by the first defendant that when he was away on pilgrimage, the plaintiff left the house in May, 1969 and he learnt that in collusion with his younger brother, Kamaraju, the plaintif took away all the movables except the utensils. Although he admitted that there was a reference to the jewellery in the will, he denied the plaint averment that he came into possession of the same.
7. In the suit, the plaintiff gave evidence as P.W.I. Her case was supported by her younger brother Kamaraju (P.W.3), her younger sister, Parvathi (P.W2) and Parvathi's husband (P.W.4). Two cousins of the parties - sons of their paternal uncle - were examined on the side of the plaintiff as P.Ws.5 and 6 - Brahmaji and Kamaraju respectively. The first defendant, Surya Bhagavan, examined himself as D.W.I.
8. The learned trial Judge found that in veiw of the categorical recital in the will Ex.A-1 about the gold and silver jewellery belonging to the mother of the parties, their father having been in possession of the same, treated them as his own properties, kept them in this custody with an intention to bequeath the same in favour of his four daughters - the plaintiff, and defendants 2 to 4 - to the exclusion of his sons. The assertion of the first defendant that the jewellery did not belong to their mother and that their father was the exlcusive owner was negatived on the ground that in Ex. A-4, certififed copy of the assessment order passed by the Assistant Controller of Estate Duty, Kakinada, on 10-1-1966 with regard to the duty, the estate of late Padmaraju was liable to pay, there was no mention about the said jewellery, which is an indication that they constituted the 'stridhana property' of the mother of the parties. After he was appointed as the executor, the first defendant did not issue any notices to the plaintiff and other sisters that the alleged stridhana jewellery was not in existence, and this, in the opinion of the learned trial judge, belied the assertion of the first defendant that the jewellery was not in existence. A list of the jewellery in the iron safe, Ex.A-8, was prepared by the family auditor on 12-9-1965 and on the second occasion, P.W.6, in the presence of the brothers and sisters, had prepared another list of the jewellery Ex.X-1 when the iron safe was opened on 22-1-1966 and except with regard to certain minor items and one big item, there was no discrepancy in both the lists. As the first defendant admitted having signed Ex.X-1, the finding recorded was that he was liable to distribute the jewellery among his sisters. As the first defendant in the earlier reply notice Ex.A-11 had admitted that the keys of the iron safe were with him in March, 1967, his contention that the plaintiff was having the keys with her was rejected. As regards the silver ornaments, the trial Court held that there was no acceptable evidence either as regards the number or their total weight. When the iron safe was opened in 1965 and 1966 for preparation of Ex.A-8 list by the family auditor and Ex.X-1 list by P.W.6, no silver ornaments were found in the- iron safe and as the two lists do not mention the existence of silver ornaments, the learned trial judge held that there were no silver ornaments constituting the 'stridhana property' of the mother of the parties. As the first defendant accepted the bequest given by his father under Ex.A-1 will and took possession of the properties bequeathed by his father, the trial Court held that he is deemed to have come into possession of the gold jewellery mentioned in Ex.X-1 as the executor appointed by his father. Accepting the items mentioned in Ex.X-1, the trial Court decreed the suit granting l/4th share to the plaintiff.
9. On appeal, the learned single Judge reversed the decree granted by the trial Court and dismissed the suit holding that at the time of the demise of Padmaraju, the jewellery was in the iron safe in the room occupied by P.W.3, Kamaraju and it was P.W.I, the plaintiff, who opened the iron safe with the keys in her possession when Ex.X-1 list was prepared by P.W.6. After considering the evidence of D.W.I and P.Ws.l, 2 and 3, the learned Judge while highlighting the interestedness of P.Ws.l, 2 and 3 in the litigation and pointing out the inconsistencies, preferred to rely upon the evidence of P.W.6, a disinterested witness, whose testimony it was that the iron safe was opened by the plaintiff (P.W.1) in his presence when Ex.X-1 list was prepared. The iron safe was in the room occupied by P.W.3, who was sailing with the plaintiff and, therefore, it was unlikely that the keys would have been handed over to the first defendant. It was not the case of the plaintiff either in the suit notice, Ex. A-5, or in the plaint or in her evidence that she handed-over the keys of the iron safe to the first defendant and this coupled with the testimony of D.W.I that in his absence, when he was away on pilgrimage to North India in May, 1969, the plaintiff left the house with her family taking away along with her the jewellery in collusion with P.W.3, rendered the plaintiff's claim untenable. Pointing out that in Ex. A-5, suit notice, there was no allegation that the keys of the iron safe were with the first defendant, the learned Judge concluded that the plaintiff must have taken away the gold jewellery along with her in 1969 when she left the house taking advantage of the fact that the keys of the iron safe were with her and due to this reason, she did not claim the jewellery in the earlier litigation - O.S. No. 45 of 1967.
10. Sri Seshaiah, learned Counsel for the appellants, has contended that the conclusions reached by the learned Judge are not warranted "on the face of the evidence on record". The first defendant had taken inconsistent pleas as to the existence of the jewellery and his liability to distribute them as the executor of the will, Ex. A-l, to his sisters. He denied the very existence of the jewellery and at the same time pleaded that the same were not the 'stridhana property' of their mother and as his father was the owner of the said jewellery, they devolved on him and his brothers after the demise of his father. The first defendant had accepted the possession of the keys of the iron safe with him in the notice Ex.A-11 dated 27-3-1967, which was a reply to the notice Ex.A-10 dated 11-3-1967 issued on behalf of the plaintiff and her husband which culminated in a decree in O.S. No. 45 of 1967 against the first defendant in regard to the money due to the plaintiff on the basis of the khatha maintained in the account books of her father, which was expressly mentioned in the will, Ex.A-1. The evidence of P.W.6 was not entitled to any credence since he turned hostile to the plaintiff, on whose behalf he was examined and so the learned Judge was not correct in placing reliance upon what P.W.6 said regarding the plaintiff possessing the keys of the iron safe.
11. Although the point whether the suit was not barred by Order II Rule 2 of the Code of Civil Procedure was not specifically raised, we permitted Sri C. Poornaiah, learned Counsel for the first defendant-first respondent, to raise the same and granted an adjournment to enable the counsel for the appellants to examine the point and submit arguments. Sri Seshaiah, learned Counsel for the appellants, has contended that the earlier suits - O.S. No. 45 of 1967 renumbered as O.S. No. 5 of 1969 and O.S. No. 116 of 1967 renumbered as O.S. No. 7 of 1969 - filed by the plaintiff and her two sisters were grounded on a different cause of action viz., the claim based on their khathas maintained in the account books of the business of their father whereas the cause of action for the present suit is the claim for 'stridhana property' which the first defendant, as the executor under the will Ex.A-1, was bound to distribute.
12. Controverting these contentions, Sri C. Poornaiah, learned Counsel for the first defendant-first respondent, has urged that the evidence adduced by the plaintiff was highly untrustworthy as regards the possession of the iron safe keys and the possession of the jewellery by the first defendant. As P.Ws.l to 4 were inimically disposed towards the first defendant, their evidence should be discarded and as the probabilities clearly suggest that the plaintiff must have carried away the jewellery when she left the house of her father in the year 1969, the view taken by the learned Judge in the appeal should not be disturbed.
13. There was no dispute that the first defendant was appointed as the executor under the will, Ex. A-l executed by Padmaraju, the father of the parties. That the jewellery in question belonged to the mother of the parties and constituted her 'stridhana property' was not doubted by both sides. The authenticity of the two lists containing the details of the gold jewellery - Exs.A-8 dated 12-9-1965 prepared by the family auditor and X-l dated 22-1-1966 prepared by P.W.6 - also was not questioned before us, nor any contention advanced, even feebly, about the existence of silver jewellery, the claim for which was negatived by the trial Court.
14. On the arguments advanced by both sides before us, the following points arise for consideration:
(i) Who was in possession of the iron safe keys when the two lists Ex.A-8 and Ex.X-1 were prepared?
and
(ii) Whether the suit was barred by Order II, Rule 2 of the Code of Civil Procedure?
Re(1):
15. Three months prior to Padmaraju's second wife's death in 1950, the plaintiff was married although she was aged 15 years by then. The first defendant was a child of even years by then. The plaintiff admitted in her evidence as P.W.I that she and her husband stayed in her father's house after the demise of her mother and she managed the house-hold affairs. Even after the deathbf her father on 30-11-1964, she admitted, "I stayed in the same house by having a separate mess thereafter for a period of about one year". Smt. Parvathi, the third defendant, in her evidence as P.W.2, supporting the case of the plaintiff admitted in her cross-examination: "After the death of my father, P.W.I (the plaintiff) stayed in the house of my father for three or four years". At the time of his father's death, the first defendant was aged about 21 years and as there was no woman member to look after the house, it was but natural that the plaintiff, being the eldest daughter, thought fit to stay in her father's house along with her husband for some time. How long she stayed in her father's house is the crucial question. She said that she stayed for about one year whereas her sister, P.W.2, who was sailing with her claiming a share in the 'stridhana property' of her mother, said that for three or four years the plaintiff stayed in her father's house. The first defendant, against whom the claim was made,deposing as D.W.1 said: "After the death of my father, until the year 1969, the plaintiff was with us in our house", Ex.A-8 list, was prepared by the family auditor in the presence of the family members and the same was scribed by Kamaraju, P.W.3. The plaintiff admitted that the claim made in the plaint regarding the gold jewellery was based upon the list, Ex.A-8. Ex.X-1 was prepared by P.W.6, a family well-wisher and close relation being the first cousin and also a man of considerable wealth and status, in order to verify the jewellery to avoid future litigation. This was done at about the time when the fourth defendant, the last daughter, was to be married. When the iron safe was opened for preparing Ex.X-1 list, certain items were found missing when compared with Ex. A-8. The decree granted by the trial Court was based upon the details contained in Ex.X-1. From the evidence of P.W.1 it is clear that when Ex.X-1 was prepared, she was staying in the house of her father. The plaintiff got issued a lawyer's notice Ex.A-10 dated 11-3-1967 to claim the bequest relating to the amount to the credit of her khatha in the account books of her father, about which the testator - Padmaraju - gave a specific direction to his son, the first defendant, the executor of the will. We are inclined, therefore, to believe that after Ex.X-1 was prepared and sometime before Ex.A-10 notice was issued, the plaintiff had left, the house of her father.
16. According to Kamaraju, P.W.3, the iron safe and trunk boxes were in the room of his father, which is near the room occupied by the plaintiff. This was denied by the first defendant in his evidence stating that after the death of his father, his younger brother, P.W.3 was in occupation of the room in which the iron safe was kept. So far as the keys were concerned, the evidence of the first defendant was that his sister (the plaintiff) was having the keys. The most important aspect that deserves notice is that after the suit was filed by the plaintiff claiming a share asserting that the first defendant was in possession of the jewellery and when she admitted that the two lists - Exs. A-8 and X-l - were prepared in her presence, it was expected of her in the natural course of events to state as to who opened the iron safe when the two lists were prepared. Very guardedly, she avoided saying anything specifically in this regard. Except stating that the lists were prepared, she avoided to state as to who opened the iron safe. Even P.Ws. 2 and 3, who supported the case of the plaintiff, also have not stated as to who opened the iron safe. It is not as if P.Ws.1 to 3 have any soft cornor towards the first defendant. They were locked up in an unedifying and protracted litigation. Both the sisters filed suits against the first defendant. The younger brother, P.W.3, also filed a suit against the first defendant for eviction. The first defendant, in turn, filed a criminal complaint against his brother, P.W.3. The evidence of P.W.4, the husband of P.W.2, as to the preparation of Ex. A-8 was of no significance since he was not present at that time. The second list, Ex.X-1, it is admitted by him, was prepared by P.W.6, the cousin of the parties, P.Ws.5 and 6 are brothers; their father was the paternal uncle of the parties to the suit. P.W.5 did not state as to who opened the iron safe. These two witnesses - P.Ws.5 and 6 - were examined to speak about Ex.X-1. P.W.5 filed a suit against the first defendant which was pending on the date of his evidence. Even he did not state that at the time of preparation of Ex.X-1, the iron safe was opened by the first defendant. What all he said was that the iron safe was in the room of the first defendnat.
17. P.W.6 was examined on commission since he was a leading business man of Vijayawada - Managing Director of Poorna Pictures Limited. He had no ill- will or bias against either the plaintiff or the first defendant. His examination was only for the purpose of proving Ex.X-1 list which was prepared by him. He stated that he took inventory of the jewellery and the same was signed by the first defendant on 22-1-1966. At the time of taking of the inventory, the plaintiff, her husband Dr. Kameswara Rao, the first defendant and Qthers were present. He doubted whether his own brother, P.W.5, was present. He asserted: "The iron safe in which the jewellery was there was in the custody of Smt. Kusuma Kumari (the plaintiff) along with the keys and that iron safe was in the house of late G.K. Padmaraju". As he said in his evidence that the plaintiff was in possession of the keys of the iron safe and it was opened by the plaintiff with the keys in her possession when Ex.X-1 list was prepared by him at the instance of the first defendant and the plaintiff, he was treated hostile and cross- examined.
18. We do not find any exhibition of hostile attitude on the part of P.W.6 to the case of the plaintiff. He was examined, as already stated, only for the purpose of proving Ex.X-1. In the context of P.Ws.l to 3 not stating positively as to who opened the iron safe, it could not be said that the evidence of P.W.6 was adverse to the case of the plaintiff. The discretion conferred on the Court under Section 154 of the Evidence Act to permit a party, who calls a witness, to put questions to him which might be put in the cross-examination by the adverse party, has to be exercised very carefully taking all the facts and circumstances into consideration. Merely because one part of the statement of the witness was not favourable to the party which called him, the Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to the party which called him. Whether the witness had exhibited hostile animus has to be judged on the basis of the answers given by the witness. 1. See: Sarkar's Law of Evidence 4 Edn. pp.1315-1319 - Section 154. We do not approve of the action of the learned trial Judge in permitting the plaintiff's counsel to cross-examine P.W.6 merely on the basis of the aforesaid statement of the witness. A careful scrutiny of the evidence of this witness clearly establishes that he did not conceal any part of the truth nor did he try to injure the interests of the plaintiff by prevaricating or exhibiting, in any other manner, hostile attitude. This is evident from the answers given by him to the questions put by the Counsel for the plaintiff in the cross-examination. The motive suggested to the witness in the cross-examination by the plaintiff's counsel was that he was giving false evidence because the plaintiff, her husband and her sisters did not heed to his advice in the litigation. This suggestion deserves to be ignored in toto. He had absolutely no motive to depose against the interests of the plaintiff; whether the parties compromise or litigate was of no concern to him. Even assuming that he had earlier advised the parties to compromise and they failed to do so could not, by any stretch of reasoning be approximated to a motive strong enough to be a propelling force for P.W.6 to utter falsehood. We, therefore, accept the testimony of P.W.6 in toto as true and believable.
19. From the evidence of P.W.6, it is clear that by the date of Ex.X-1 - 22-1-1966 - the keys of the iron safe were with the plaintiff and it was the plaintiff who opened the iron safe. It is not clear from the evidence as to when the keys were handed over by the plaintiff to the first defendant. As already noticed, she stayed on with her husband in the house of her father for three to four years after her father's death. In the suit notice, Ex. A-5, she did not mention that the keys of the iron safe were with the first defendant. Evidently, after she left the house of the first defendant, she initiated the litigation. When she left the house, there is no spedfic evidence. But this much appears to be clear: when she left the house, she had taken away some movables in collusion with her another brother, P.W.3. In that connection, the evidence shows, a complaint was lodged by the first defendant. The first round of litigation was started by the plaintiff with Ex.A-10 notice dated 11-3-1967 to the first defendant claiming Rs. 20,000/- along with interest being the amount due to her on the basis of the khatha maintained in her name in the account books of her father and the extra amount of Rs. 10,000/- about which there was a specific direction in the will, Ex.A-1. At the end of this lawyer's notice, it was mentioned:
"You will have to pay my client Rs. 10,000/- as well as gold and silver that have been bequeathed to her by her father under his will dt.14-6-1964 together with interest at 12% compound from 30-11-1964, the date of his death and a separate suit will be filed for recovery of the same."
20. A critical appraisal of the evidence of P.Ws.l to 3,5 and 6 leads us to believe that taking advantage of the fact that she was having the keys of the iron safe with her, the plaintiff must have removed a part of the jewellery from the iron safe after Ex. A-8 was prepared by the family auditor and that is the reason why when Ex.X-1 list was prepared, certain items were found missing and even the items contained in Ex.X-1, the plaintiff either must have appropriated for herself or shared them along withher three sisters. The latter appears to be more probable since the other three sisters did not raise any dispute until the suit was decreed by the trial Court; the second defendant remained ex parte and defendants 3 and 4, although engaged a counsel, did not file their written statements. If they had not received their shares from their sister, the plaintiff, they would not have remained silent even without filing their written statements. One of the sisters, D-2, although remained ex parte in the suit, chose to give evidence as P.W.2 supporting the case of the plaintiff. The normal presumption with regard to middle class Hindu ladies that they would be reluctant to involve themselves in litigation, evidently, has no relevance to the fact situation. Their husbands were fully involved in litigation and the three sisters also filed suits earlier - O.S. Nos. 45 and 116 of 1967.
21. In the fact situation of the case, as disclosed by the evidence on record, we are inclined to believe that even by the date of Ex.A-10, the plaintiff had taken away the jewellery and that is why she did not include that claim in the suit filed on Ex.A-10. The recital in Ex.A-11 reply notice to Ex.A-10 that the iron safe was in the custody of P.W.3, Kamaraju, and the keys alone were in the possession of the first defendant, in our view, is not a circumstance strong enough to warrant the conclusion that the iron safe keys were with the first defendant at the relevant time.
22. We, therefore, hold that when the two lists of jewellery - Exs,A-8 and X-l - were prepared, the plaintiff was in possession of the keys of the iron safe and she and the other sisters must have appropriated the jewellery and so her claim that the first defendant should distribute the 'stridhana jewellery' among them as the executor under the will Ex.A-1 must fail.
Re (2):
23. Clause (1) of Rule 2, Order IIC.P.C. requires that eveiy suit shall include the entire claim which the plaintiff is entitled to make in respect of a cause of action, but he may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Clause (2) of Rule 2 lays down that if the plaintiff either omits to sue or intentionally relinquishes any portion of his claim, he is precluded from suing in respect of the portion so omitted or relinquished. Clause (3) of Rule 2 lays down that the plaintiff who is entitled to more than one relief in respect of the same cause of action may sue for all the reliefs or only some, but if he does not obtain the leave of the Court, he will not be entitled to sue for the reliefs he chose to omit. The provisions of Order II, Rule 2 are based on the pragmatic principle of public policy that nobody should be vexed twice in respect of the same cause of action.
24. The term "cause of action" referred to in Rule 2 Order II C.P.C., was interpreted by the Privy Counsel in Muhammad Hafiz v. Mirza Muhammad Zakariya, AIR 1922 P.C. 23 as:
".....the cause of action which gives occasion to and forms the foundation of the suitand if that cause enables a man to seek for larger and wider relief than that to which he limits his claim., he cannot afterwards seek to recover the balance by independent proceedings."
25. In the above case, the cause of action for the suit was a mortgage deed which recited, inter alia:
".....if the interest was not paid for six months, the creditor should be competent to realise only the unpaid amount of the interest due to him or the amount of principal and interest both by bringing a suit in Court without waiting for the expiration of the time fixed (3 years)."
The defendants having committed default in payment of interest, the plaintiff instituted a suit, after the expiry of three years, for recovery of interest alone, which was decreed. Subsequently, the representatives of the plaintiff instituted another suit for recovery of the principal amount and the interest accrued thereon. The trial Court decreed the suit. On appeal, the High Court reversed the decree of the trial Court. Agreeing with the High Court, the Privy Council dismissed the appeal on the ground that the latter suit was barred by Order II, Rule 2 of the Code of Civil Procedure. Posing the question as to what was the cause of action the plaintiffs possessed, Lord Buckmaster, speaking for the Judicial Committee of the Privy Council, said:
"It was the cause of action due either to the fact that the interest had been unpaid for more than six months, or that the three years had elapsed, and the principal was also unpaid, and in either case they could have sued for realisation to provide for the whole amount secured by the deed."
26. Cause of action as defined by Lord Esher, M.R., in Read v. Brown, (1888) 22 QBD 128. to mean:
"Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."
was followed by the Supreme Court in State of Madras v. C.P. Agencies, . Following the Privy Council's ruling in Muhammad Hafiz (2 supra), the Supreme Court in Sidramappa v. Rajashetty, held that in order to attract the provisions of Order II, Rule 2, the cause of action in the earlier suit should be the foundation in the latter suit. If the cause of action in the earlier suit did not enable the plaintiff to ask for the relief claimed in the latter suit, then by invoking Order II, Rule 2, the latter suit cannot be dismissed.
27. Applying the aforesaid legal principles, we are of the view that the suit in question was barred by Order II, Rule 2, C.P.C. The earlier suit - O.S. No. 45 of 1967 - was based upon the will, Ex. A-l, under which the plaintiff was to get Rs. 20,000/- from the executor, the first defendant. No doubt, it was recited in Ex. A-l, will, that in the khatha of the plaintiff maintained in the account books of the testator's business, a sum of Rs. 20,017/- was to her credit and that the executor should pay not only that amount but also to pay, from out of the estate, Rs. 10,000/- more. The contention of Sri Seshaiah learned Counsel for the appellants that the causes of action for both the suits were different - in the earlier suit, the cause of action was the khatha in the account books and in the latter suit, the cause of action was the direction given to the executor of the will, Ex.A-1 - is not correct. In both the suits, the foundation was the will, Ex.A-1, under which the executor, the first defendant, was directed to pay certain amounts as well as distribute the jewellery to all the four daughters.
28. The test is whether the plaintiff could have claimed in the former suit, the relief claimed in the latter suit. It is obvious that the relief claimed in the latter suit was available very much to the plaintiff and defendants 2 to 4 in the two previous suits. This factual position could not be disputed by Sri Seshaiah, learned Counsel for the appellants and so we think production of pleadings in those suits is not necessary. But what he endeavoured to impress upon us was that the evidence in both the cases was different and, therefore, Order II, Rule 2 was not attracted. We are unable to accept this contention. Merely because some more evidence was required to establish the case relating to the 'stridhana property', it could not be said that Order II, Rule 2 had no application. Both the previous suits and the present suit were grounded upon Ex.A-1 will, which had afforded the basis for the daughters claiming not only the cash bequests made to them by their father but also the shares in the 'stridhana property' of their mother; the direction given to the executor encompassed both these aspects.
29. In a case where a reversioner was entitled to recover different sets of property, but with the leave of the Court relinquished the claim to one set of property, it was held by a Division Bench of this Court in Venakta Swami v. Veeraiah, that even with the leave of the Court, the reversioner cannot reserve such a right. The ground, based upon which permission was sought, was the inability of the reversioner to pay Court fees. Commenting about that, the Division Bench held:
"Orders of this description would encourage litigants to resort to multiplicity of suits and would help them to get over the provisions of Rule 2, which deals with the vice of splitting up of claims and which is a salutary rule."
The decision in Md. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78 lays down that the correct test for the application of Order II, Rule 2 CPC is whether the claim in the new suit was in fact founded upon a cause of action distinct from that which was the foundation for the former suit.
30. The dedsional law relied upon by Sri Seshaiah for the appellants is of no assistance to them. In C. Sioamy v. R. Suryanarayana, 1970 (2) An.W.R. 173 a case arising under the Andhra Pradesh (Andhra Area) Tenancy Act, the contention advanced on behalf of the tenants for invoking Order II, Rule 2 CPC, was that when the landlord filed an eviction petition on the ground of default in payment of rent for a particular year, he should have made the alleged default for other years also part of the claim. Negativing that contention, the Division Bench held:
"The relief of eviction enures to the landlord for each successive defaults committed by the tenant. Default in each year constitutes a separate cause of action for the eviction of the tenant. The cause of action for the default committed in respect of 1956-57 is a distinct cause of action from the default committed in respect of 1957-58, though the relief that would be ultimately granted in respect of these successive defaults may be the same relief of eviction."
In Kewal Singh v. Lajwanti, after reviewing the law laid down by the Privy Council and the Queens Bench, the Supreme Court held that if the claim of the plaintiff was based on three distinct causes of action and if the suit was confined only to one cause of action, giving up the rest of the two, and later an application was made to revive the relief based upon the relinquished causes of action, it was not open to the defendant to object on the ground of Order II, Rule 2 C.P.C., as "he was not in the picture earlier".
31. We, therefore, hold that the suit was barred by Order II, Rule 2 of the Code of Civil Procedure and so was maintainable.
32. For these reasons, we dismiss both the Letters Patent Appeals affirming the judgment of the learned single judge reversing the decree granted by the trial Court. No costs.