Harmeet Kaur & Ors. vs Madhusudan Singh & Ors.

The instant petition has been filed against the order dated 20.09.2016, passed by the learned Additional District Judge-X, Patna, in T. Suit No. 30 of 2016 (L.A. No. 227 of 2009), whereby and whereunder the amendment petition dated 20.04.2013, filed by Respondent Nos. 1 and 2 under Order VI Rule 17 read with Section 151 of the C.P.C., has been allowed.

Heard learned counsel for both the parties

The brief facts of the case are that Respondent Nos. 1 to 3 had filed a Letters of Administration Case under Section 278 of the Indian Succession Act, seeking grant of letters of administration in respect of the alleged Will dated 03.04.1993, executed by the deceased - Shanti Devi, wife of late Sardar Avatar Singh. The deceased was the mother of the respondents as well as the petitioner and had four sons and three daughters. It has further been alleged that the Will dated 03.04.1993 was the last Will and testament of the deceased, which was duly executed and registered by her while she was in a sound state of health, body and mind. It is alleged that, after fully understanding the contents and import thereof, she put her signature on the said Will of her own free will in the presence of the attesting witnesses. One Sudarshan Singh identified her, and, at her instance, the other witnesses also put their signatures thereon. The said proceeding was registered as L.A. Case No. 227 of 2009.

Petitioner and respondent numbers 4 and 5 filed their objection petition in the said letters of administration case and after hearing the objections, L.A. case was converted in testamentary suit and the same is registered as Testamentary Suit No. 30 of 2016 which is pending in the court of learned Additional District Judge X, Patna.

During pendency of the L.A. case number 227 of 2009, respondent numbers 1 and 2 filed an amendment petition under Order VI Rule 17 read with Section 151 of CPC on 20.4.2013 to amend the case bringing new facts which completely changes the nature and scope of the case.

After hearing both the parties, learned court of Additional District Judge X, Patna allowed the petition dated 20.04.2013, filed under Order VI Rule 17 read with Section 151 of CPC on behalf of the petitioner. Then petitioner being aggrieved by the order dated 20.09.2016, passed in T.S. No. 30 of 2016 ( L.A. No. 227 of 2009), filed a review petition under Order XLVII Rule 1 and Section 151 of CPC on 19.10.2016 praying therein to review the order dated 20.09.2016.

After hearing both the parties, the said review petition was also rejected vide order dated 30.01.2017, passed in Title Suit No. 30 of 2016 ( L.A. - 227/09). Being aggrieved by the said order, the present civil miscellaneous has been preferred by the petitioners.

Learned counsel for the petitioner submits that the impugned order, whereby the amendment petition filed on behalf of the respondent has been allowed, is neither justified nor sustainable in law. He further submits that there is no scope for amending the L.A. petition, as the property bequeathed under the Will dated 03.04.1993 has already been specifically described therein. It is further submitted that the property sought to be incorporated by way of amendment is a joint family property, which was purchased by the father of the petitioner and the respondents, namely, Sardar Avatar Singh, who acquired the said property, i.e., Plot No. 67(A), in an auction sale conducted by the P.I.T. Learned counsel further submits that the aforesaid property was actually purchased by Sardar Avatar Singh in the name of his wife, namely, Shanti Devi, and the entire consideration amount was paid by him from the joint family funds. Shanti Devi was a simple housewife and had no independent source of income. It is, thus, submitted that the amendment allowed by the learned Trial Court is not merely formal in nature; rather, it goes to the root of the subject matter of the alleged Will, as the question whether the said property was the self-acquired property of Shanti Devi by way of Stridhan or otherwise is yet to be decided. It is further submitted that, without considering the aforesaid facts, the learned Trial Court has allowed the amendment petition, which is erroneous, unjust and illegal.

Per contra, learned counsel appearing on behalf of the respondent submits that the impugned order is just and legal and the amendment petition are formal in nature and learned trial court has rightly allowed the amendment petition.

Chapter VI of the Indian Succession Act, 1925 pertaining to the heading “of the construction of Wills”. To decide this matter, it is important to go through its relevant Section 74 & 75, which read as follows :-

After going through the contents of L.A. Case No. 227 of 2009 in para 08, respondent had asserted therein that :-

After going through the aforesaid paragraph, it clearly transpires that as per averment of the respondent / applicant of L.A. case No. 227 of 2009, their mother executed the Will in question after depriving her son Harisumiran Singh and daughters to have any interest in her property detailed in schedule I. As per submission of learned counsel for the petitioner, this averment goes to show that the mother (deceased) was not intending to deprive them i.e. Harisumiran Singh and daughters to have any interest in her property apart from bequeathed property incorporated in the deed of Will.

Schedule I property has been appended. In schedule I property, the bequeathed property has been detailed but in that, there is no mention of property which has been allowed in the amendment petition.

From perusal of the Will executed in favour of the applicants in the L.A. Case, it transpires that, in Column No. 5 thereof, a clear and specific description of the bequeathed property has been given, wherein the entire bequeathed property has been mentioned. However, in the aforesaid description, there is no mention of the property which has subsequently been allowed to be incorporated by way of amendment. The applicants of the L.A. Case are claiming the property to be incorporated by way of amendment on the basis of paragraph 3 of the Will, which, on the face of it, appears to be vague. Moreover, with regard to the aforesaid property, Title Suit No. 496 of 1990 was filed by some other persons against the testator, which was decreed in favour of the testator vide judgment dated 30.08.2012. Against the said judgment, an appeal bearing Title Appeal No. 68 of 2012 was preferred by the appellant, which was also decided in favour of the testator. As per the submission of learned counsel for the petitioner, in the aforesaid Title Suit as well as Title Appeal, Harisumiran Singh and all his brothers jointly contested the suit and also filed their written statement. It is further submitted that the learned Appellate Court, in its judgment dated 31.08.2019, has rightly held in paragraph 37 thereof that :-

Thus, all the heirs of Shanti Devi have been found entitled by the learned Appellate Court with respect to the property while that property has been allowed to be incorporated by way of the amendment petition in the T.S. Case No. 20 of 2016( L.A. case No. 227 of 2009) for grant of Letters of Administration.

After going through the arguments of learned counsel for the petitioner, it appears that the question, whether the aforesaid property was self acquired property of late Shanti Devi or it was purchased by her husband from joint family fund, is still undecided. The next question remains that whether late Shanti Devi was willing to bequeath the aforesaid property in favour of legatee by means of said deed of Will on that point of time or not. All these questions are important facts to be decided on the basis of specific pleadings of both the parties, which are lacking and hence these facts cannot be decided in this case.

So, the Impugned Order 20.09.2016, passed by the learned Additional District Judge-X, Patna, in T. Suit No. 30 of 2016 (L.A. No. 227 of 2009) is not proper and justified. Hence, it is set aside. Accordingly, the instant Civil Misc. No. 676 of 2017 stands allowed.

However, learned trial Court is requested to expedite the trial of T. Suit No. 30 of 2016 and both the parties are also directed to cooperate in expeditious disposal of the above case.