V.K. Sawhney vs State

Neena Bansal Krishna, J

I.A. 664/2022

Application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been filed on behalf of the petitioner for amendment of the plaint.

The present probate petition has been filed seeking probate in respect of the last Will dated 10.01.2011 by late Smt. Shanti Sawhney, the mother of the parties i.e. Smt. Shanti Sawhney in respect of her 50% of her share in respect of property bearing No. D-211, Saket, New Delhi-110017. It is submitted that Smt. Shanti Sawhney had also executed a previous Will dated 09.09.2008 in favour of the petitioner. However, the petitioner by way of abundant caution, seeks to modify the Prayer clause of the petition as follows:

“Grant a probate of the Will dated 10.01.2011 or in alternative Will dated 09.09.2008 duly executed by Late Smt. Shanti Sawhney, if the Will dated 10.01.2011 is found defective or invalid due to any reason thereof, in favour of the Petitioner herein”

The Objector no. 5 in its reply has taken a preliminary objection that the proposed amendment introduces a fresh cause of action and changes the nature of the petition itself. The alleged last Will was dated 10.01.2011, but now the petitioner intends to include the Will dated 09.09.2008, as well. The proposed amendment is not necessary to determine the real question of controversy in respect of alleged Will dated 10.01.2011.

It is asserted that the petitioner himself had claimed in para 6 of the petition which is duly supported by his affidavit, that the Will dated 10.01.2011 is the last and final Will and testament of the deceased. The petitioner at the time of the filing of the petition had chosen to seek Probate in respect of the Will dated 10.01.2011 claiming it to be last Will of late Smt. Shanti Sawhney. Now after ten years, he cannot be allowed to make an alternate prayer in respect of another Will dated 09.09.2008.

If the proposed amendment is allowed, it would require the entire procedure to be conducted again, i.e. of issuing citations, filing objections, evidence, etc. It is further asserted that the proposed amendment is not necessary for the purpose of determination of the real question in controversy.

It is further claimed that from the proposed averments in the petition, it is explicit that the petitioner himself is doubtful about the alleged Will dated 10.01.2011, and thus, wants to add the other Will dated 09.09.2008, in the alternative. The application is opposed and it is submitted that the same is liable to be dismissed.

Submissions heard.

The petitioner has filed a Probate petition under Section 276 and 278 of the Indian Succession Act, 1925 in respect of the Will dated 10.01.2011 executed by late Smt. Shanti Sawhney, his mother in his favour. In the petition itself, he had mentioned that the deceased had earlier executed a Will dated 09.09.2008 in favour of the Petitioner, and on account of love and affection had bequeathed her properties in favour of the petitioner. It was specifically averred that  thereafter the Will dated 10.01.2011 was executed which is the last and final Will of the deceased, and hence, has sought the probate in respect of the said Will.

The Probate in terms of the Section 276 of the Indian Succession Act, 1925 is sought in respect of the last Will dated 10.01.2011 of the deceased claiming that it was the last Will of late Smt. Shanti Sawhney.

During the course of the arguments, learned counsel for the petitioner had submitted that essentially the contents of the Will dated 09.09.2008 and the Will dated 10.01.2011 are the same.

The contents of the two Wills may essentially be the same as submitted on behalf of the learned counsel for the Petitioner, but the fact remains that the Probate can be granted only in respect of the last Will of the deceased. If the amendment is allowed, it would essentially not only change the cause of action and if the alternate prayer is permitted to be made in respect of the Will dated 09.09.2008, the entire procedure would have to be re-initiated. Further, it is inherently contradictory in the sense that the Will dated 09.09.2008 is not the last Will of the deceased.

The present application has been filed at the stage of Petitioner’s evidence. In this regard, it may be observed that the amendment under Order VI Rule 17 CPC can be permitted in terms of the proviso to Order VI Rule 17 CPC after the commencement of the evidence only if it can be held that the same could not have been made despite exercise of due diligence. In the present case, the Will dated 09.09.2008 was always in the knowledge of the petitioner and also finds mention in the petition itself.

The only premise on which the amendment is sought is that in case the petitioner is unable to prove the Will dated 10.01.2011, he may in the alternative be able to prove the Will dated 09.09.2008 and obtain its probate. Since the evidence has been already commenced and there is no assertion that this amendment could not have been made despite exercising due diligence before the commencement of evidence, the proposed   amendment is also barred under proviso to Order VI Rule 17 CPC.

There is no merit in the application, which is hereby dismissed.

TEST.CAS. 23/2012

List before the Joint Registrar for recording of evidence along with TEST.CAS. 57/2013, for the date already fixed.