Hidangmayum Dwijasekhar Sharma vs Hidangmayum Devasekhar Sharma

Kh. Nobin Singh, J

[1] Heard Shri N. Surendrajit, learned Advocate appearing for the petitioner and Shri Th. Henba, learned Advocate appearing for the principal respondent.

[2] The instant Civil Revision Petition is directed against the order dated 21.06.2017 passed by the learned District & Sessions Judge, Imphal West in Judl. Misc. Case No.14 of 2017 arising out of the Original (Probate) Suit No. 22/2000/3 of 2016 by which the application for amendment of the written statement was dismissed by it.

[3.1] Fact and circumstances which have led to the filing of the instant Civil Revision Petition, are that on 04-04-1997, the principal respondent filed an Original (Probate) Suit No.22 of 2000 praying for grant of probate in respect of a Will executed by his late father, the testator. The petitioner filed his written statement raising various issues including the issue relating to the maintainability of the Will on the ground that certain properties which do not belong to the testator, have been included in the Will. Three issues were framed in the suit, of which one was as to whether the "Will" was a legally valid Will or not. The District & Sessions Judge, having found that the Will was executed by the testator on 04-04-1997, allowed and decreed the suit vide its judgment and order dated 24-05-2004 granting probate in favour of the principal respondent. Being aggrieved by the judgment and order of the learned District & Sessions Judge, the petitioner preferred an appeal being FAO No.4 of 2004 before the Hon'ble Gauhati High Court, Imphal Bench. Hardly a year later, the proforma respondent also preferred an appeal being FAO No.5 of 2005 against the same judgment and order. While the FAO No.4 of 2004 was pending, the petitioner filed an application being Misc. Case (FAO) No.4 of 2014 under Order VI Rule 17 of the CPC read with Section 268 of the Indian Succession Act, 1925 for amendment of his written statement.

[3.2] Both the FAOs were considered together and during the course of hearing, it was submitted by the counsel appearing for the petitioner that the testator was 96 years old at the time of executing the Will; that he was incapable of independently writing a Will, since he was suffering from chronic cerebral blood flow insufficiency, ishchaemic heart disease and that he was mostly bed ridden. His hands were also shaking and under such mental and physical condition, he could not have written the Will himself. On the other hand, the learned counsel appearing for the principal respondent No.1, relying upon the findings of the learned District & Sessions Judge and also the evidences of PWs, contended that the testator was both physically and mentally fit to write the Will in his own hands. After having heard the counsel appearing for the parties and relying upon the decision rendered by the Hon'ble Supreme Court in Joyce Primrose Prestor (Mrs.)(NEE VAS) Vs. Vera Marie Vas (Ms) & ors., (1996) 9 SCC 324 which was followed by the Gauhati High Court in the case of Dipty Chkraborty Vs. Santosh Kr. Chakraborty, 2001(1) GLT 360, this Court agreed with the view taken by the District & Sessions Judge that the testator was in a fit mental and physical condition to write the Will in his own hands; that he was aware of what was he doing and that the Will was also attested by two witnesses in support of the execution thereof.

[3.3] This Court, after having observed as hereinabove, considered a point raised by the learned counsel appearing for the petitioner as well as the proforma respondent No.2 that at the time of execution of the Will, the testator was not the owner of certain properties mentioned in the Will and therefore, he could not have bequeathed those properties in favour of the beneficiaries mentioned therein. In order to substantiate his contention, a reliance was placed by him on a decree passed by the Musif, Imphal in O.S No.2 of 1986 which was filed by the testator himself against the petitioner and some other family members for declaration that the suit land described in Schedule "C" of the plaint was a part and parcel of 1/6 share of the testator and a prayer for eviction was made therein. The suit was decreed in favour of the testator. On the basis of various documents which formed part of the said suit, it was contended by learned counsel appearing for the petitioner that some of the properties bequeathed under the Will, did not belong to the testator and therefore, no such Will could be executed in respect of those properties. Refuting the said contentions, the learned counsel appearing for the principal respondent submitted that the learned District & Sessions Judge while dealing with an application for grant of probate, was only required to see whether the Will was executed properly or not and was not required to see the title over the property. The learned counsel appearing for the principal respondent relied upon a decision of the Patna High Court in Kamleshwari Devi (Deceased) and Vikash Singh & ors. Vs. Devesh Pratap Singh, AIR 2002 PATNA 24.

The same view was also expressed by the learned Single Judge of the Gauhati High Court in Durlabh Chandra Bhattacharjee Vs. Atul Bharthkaur, 2005 (4) GLT 306 and Guneshwar Chutia Vs. Haren Chutia & ors., AIR 1974 GAU 73 (V 61 C 25).

[3.4] On the strength of the decision rendered by the Hon'ble Supreme Court in Ghulam Qadir Vs. Special Tribunal & ors., (2002) 1 Supreme Court Cases 33, this court did not agree with the submission of the learned counsel appearing for the principal respondent. This court took the view that in the present case, the learned District & Sessions Judge did not decide the said objection raised by the petitioner solely on the ground that it had no jurisdiction to enter into the question of title. Prima facie when it appears to the Court that certain properties have been bequeathed under a Will of which the testator was not the owner, it is the duty of the Court also to examine such objection. Accordingly, the matter was remitted back to the learned District & Sessions Judge, Imphal West for reconsideration in accordance with law. While confirming the findings of the learned District & Sessions Judge that the Will was executed by the testator in accordance with law, this court remitted the matter back to the learned District & Sessions Judge for the purpose of examining the objection raised by the petitioner and the proforma respondent with regard to the title of the testator over certain properties bequeathed under the Will in terms of the judgment of the Apex Court in Ghulam Qadir Vs. Special Tribunal & ors. (supra).

[3.5] After the matter having been remitted to the District & Sessions Judge, the petitioner filed an application being Judl. Misc. Case No.14 of 2017 praying for amendment of his written statement. This application was contested by the counsel appearing for the principal respondent on the ground that as there was no explanation for the delay, it was not maintainable and moreover, it was filed based on the similar application filed before this Court. In his reply, the learned counsel appearing for the petitioner submitted that the application filed before the High Court, while the FAOs were pending, would be deemed to have been allowed, when the FAOs were disposed of by remitting the same to the learned District & Sessions Judge for consideration of the objection raised by the petitioner as regards the properties being bequeathed under the Will. Considering the submissions of the learned counsel appearing for the parties, the learned District & Sessions Judge came to the conclusion that in the judgment and order dated 19-01-2015 of this Court, nothing was mentioned about the application being allowed and therefore, it would be presumed that this Court did not allow the amendment application. The learned District & Sessions Judge further held that it is nowhere mentioned in the application that the petitioner could not raise the matter before the commencement of the trial in spite of his due diligence.

[4] Being aggrieved by the order dated 21-06-2017, the instant revision petition has been filed questioning the validity and correctness of it on the inter-alia grounds that the learned District & Sessions Judge failed to appreciate the judgment and order dated 19-01-2015 of this court by which the matter was remitted to it for reconsideration; that the learned District & Sessions Judge failed to apply its mind and that there were discoveries of new facts and evidences which could not be pleaded in the written statement and are required for determining the real controversies between the parties.

[5] It is not in dispute that the application for amendment of the written statement was rejected by the learned District & Sessions Judge mainly on two grounds-one, it will be presumed that this court did not allow the application for amendment of the written statement and two, as provided under Order 6 Rule 17 of the CPC, the petitioner did not mention anything in the application that he could not raise the matter before the commencement of the trial in spite of due diligence. As regards the first ground, it may be noted that an application for amendment of the written statement was filed before this court and this court, while disposing of the FAOs and remitting the matter back to the learned District & Sessions Judge for reconsideration of the issue as to whether the testator was the owner in respect of all the properties bequeathed under the Will vide its judgment and order dated 19-01-2015, did not say anything about the application. As a matter of fact, this court ought to have passed an order either rejecting or allowing or disposing it of but inadvertently, it had not been done so. But the facts remains that the FAOs had been disposed of by this court, remitting the matter back to the learned District & Sessions Judge, with no order being passed by this court in respect of the application. It is well known that once a main matter has been disposed of by the court, any application filed therein cannot stand on its own feet and it ought to go along with the main matter. In the present case, after the FAOs being disposed of by this court, it cannot be presumed that the application has either been allowed or rejected in the absence of any specific order being passed by this court in that regard. At the most, it can be said that it may have been disposed of with the main matter. Keeping in mind the peculiar circumstances of the case, this court is of the view that there is nothing wrong when an application was filed by the petitioner before the learned District & Sessions Judge for amendment of the writ statement. The learned District & Sessions Judge has committed an error while rejecting it on this ground without going into its merit.

[6] As regards the second ground, it relates to the interpretation of Order 6 Rule 17 of the CPC which reads as under:

"17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

This Order 6 Rule 17 deals with the amendment of pleadings and an amendment can be allowed provided two conditions are fulfilled-one, it shall not cause injustice to the other side and two, it is necessary for the purpose of determining the real question in controversy between the parties. At the time of considering the application for amendment, the court has only to look as to whether the conditions mentioned above are fulfilled or not. Moreover, the Hon'ble Supreme Court in a catena of decisions has laid down the law that the courts while deciding such application should not take a hypertechnical view. The jurisdiction of the court either to allow or not to allow amendment is discretionary and therefore, it shall be exercised in a judicious evaluation of facts and circumstances in which the amendments are sought for. This order 6 Rule 17 was, at one time, deleted but was restored by the amendment Act, 22 of 2002 but with an added proviso which curtails the absolute discretion. As per this proviso to Order 6 Rule 17 of the CPC, after the commencement of the trial, such amendment cannot normally be allowed except on the conclusion being arrived at by the Court that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. But with respect to the application of the proviso, the Hon'ble Supreme Court made the position clear in State Bank of Hyderabad Vs. Town Municipal Council, (2007) 1 SCC 765 wherein the Hon'ble Supreme Court observed that the proviso was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 01-07-2002 and that this proviso would not apply to the suit having been filed in the year, 1998. In the present case also, the suit was filed in the year, 1997, although it was registered as Judl. Misc. Case No. 22 of 2000. In terms of the decision rendered by the Hon'ble Supreme Court in State Bank of Hyderabad case (supra), the proviso will have no application at all to the facts and circumstances of the present case and the application for amendment of the written statement ought to have been considered by the learned District & Sessions Judge as per Order 6 Rule 17 as to whether the ingredients thereof are satisfied. Since the learned District & Sessions Judge has failed to do that, its order dated 21-06-2017 has been rendered bad in law and is liable to be quashed and set aside.

[7] In view of the above and for the reasons stated hereinabove, the instant civil revision petition is allowed and consequently, the order dated 21-06-2017, impugned herein, is quashed and set aside with the direction that the learned District & Sessions Judge, Imphal West shall consider and decide the application being Judl. Misc. Case No.14 of 2017 on its own merit at the earliest possible.