D.Srihari vs D.Nagabhushanam

This revision is filed challenging the order dated 11.12.2018 in I.A.No.554 of 2018 in O.S.No.324 of 2010 passed by the XXV Additional Chief

Judge, City Civil Court, Hyderabad whereunder an application filed by the petitioner/plaintiff under Order VI Rule 17 read with Section 151 of the

Code of Civil Procedure, 1908, for amendment of plaint was dismissed.

The petitioner/plaintiff instituted the aforesaid suit for partition and separate possession in respect of suit schedule A, B, C and D properties.

In the affidavit filed in support of the aforesaid application it was stated that his father late D. Narayana acquired the suit A, B, C and D schedule

properties and registered the same in the name of his mother out of love and affection. His father has established a Saw Mill and Timber Depot in the

year 1985 with his own earnings in the name and style of “M/s. Srihari Saw Mill and Timber Merchantâ€. He obtained license from the Forest

Department for running the saw mill, which was renewed every year. The respondent No.1 was the Kartha of the family after the death of his father

on 16.02.1988. Thereafter, the petitioner and the respondents have jointly established and started business of “Sadguru Saintah Tent House†with

joint family funds in Schedule B property. On 25.10.2007, when the petitioner was cross-examining the respondent No.1, he came to know about the

will deed dated 24.01.2013 allegedly executed by his mother in favour of the respondent No.1 bequeathing all properties in his favour except cellar and

ground floor portion of schedule B property, when a Photostat copy of the Will was confronted to him.

It is stated that during the pendency of the suit, the respondent No.1 created a bogus and shall will deed in his favour and obtained registration in the

year 2013 out of jurisdiction of Registration authority Musheerabad, Hyderabad in collusion with the Joint Sub-Registrar-II, Hyderabad and also with

the aid of his two hired persons, namely, Mohd. Mahboobali and Mohd. Vaheevooddin as attestors of will by showing false residential address of his

mother, D. Chilkamma, as Himayathnagar, with a sole intention to knock away the joint family properties.

It is further stated that the will, allegedly, executed in 2013 was not disclosed till December 2017, even after filing of the suit in the year 2010. The

mother of the petitioner suffered from several old-age ailments and multiple diseases. She became bedridden and became weak physically and

mentally and not in a position to see and hear properly. She was taken care of by a private nurse and she was not able to attend to her personal needs.

Thus, the question of execution of a will deed by his mother and attending the office of the Joint Sub-Registrar, Khairatabad, does not arise. The will is

created.

In the proposed amendment, the petitioner sought to incorporate the following para:

“11a. It is further submitted, during the pendency of the suit, the 1st Defendant created a bogus and sham registered will deed on 24.01.2013, vide

Doc.No.25/III/13 with the aid and collusion of joint sub-Registrar-II, Hyderabad and his two hired persons, Mohd. Mahaboob Ali and Mohd.

Vahivoodudin with a sole intention to defeat the rights and interests of the Plaintiff over all the schedule of properties with the help of the bogus will

deed. In fact Plaintiff’s mother has not executed the said will deed in favour of the 1st Defendant by bequeathing all schedule of properties

including Saw Mill and Timber Merchant. As such the same cannot be acted upon and is not binding on the Plaintiff for any purpose, hence the same

is liable to declare as null and void.â€​

In the counter filed by the respondent No.1, it was averred that the original Will Deed dated 24.01.2013 was confronted to P.W.1 during cross-

examination and not copy of it. P.W.1 knowing about the will deed deliberately denied the said document and falsely alleged that it is bogus document.

There are no merits in the petition and the same is liable to be dismissed.

The Court below dismissed the amendment application under the impugned order. The Court below held that “Whether that will is genuine or not

is a mater for consideration in suit and whether that will has any legal force or not is also a matter for consideration in the suit while appreciating the

evidence in the suit.â€​. Further, the Court below recorded that the Will came into existence during the pendency of the suit and that so far as the plaint

averments are concerned, the mother has nothing to do with any of the properties and therefore, whatever transpires between the co-defendants has

nothing to do with the purported rights of plaintiff. It was also pointed out that “What is a mere matter of expression of evidence does not require

an amendment in the plaint and additional relief; for deciding the real issue propounded by the plaintiff an issue on the validity of this Will has not

connection. Therefore, there is no need to allow the amendment of plaint.â€​

Mr. Kowturu Pawan Kumar, learned counsel for the petitioner, submitted that if the amendment as sought for is allowed, no prejudice would be

caused to the respondents. If amendment is not allowed, the respondent No.1 will certainly take advantage of the bogus Will Deed. The petitioner did

not have knowledge of the Will until the same was confronted to him during cross-examination of the respondent No.1. The execution of Will Deed is

an important issue and the Court below ought to have allowed the application for proper adjudication of the suit.

Per contra, Mr. P. Shiv Kumar, learned counsel for the respondents, submitted that the application filed by the petitioner for amendment of

pleading is frivolous. The genuineness and validity of the Will Deed dated 24.01.2013 cannot be a subject matter of the suit, as the averments in the

suit are on the claim that suit properties are joint family properties and the validity of the Will Deed dated 24.01.2013 can never be put to issue in the

suit.

The petitioner/plaintiff claims that the suit schedule A, B, C and D properties are joint family properties. They are acquired by his father in the

name of his mother. Thus, if the suit properties are held to be joint family properties, it becomes immaterial whether the Will executed by the mother

of the petitioner is genuine or not and the will becomes redundant. The proposed amendment sought by the petitioner changes the nature of the suit.

The Court below rightly pointed out that for deciding the issues put forth by the petitioner/plaintiff, the validity of the Will has no connection. This

Court does not find any illegality or error in the order passed by the Court below.

The civil revision petition is devoid of merits and it is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed. There shall

be no order as to costs.