Rattan Lal and Others vs Jaipal and Others

Deepak Gupta, J.—This petition is directed against the order dated 8.3.2010 whereby the application filed by the Plaintiffs for amendment of the plaint has been allowed.

The undisputed facts are that the Plaintiffs i.e. the sons and wife of Fithu Ram filed a suit against Fithu Ram, Rattan, Tulshi Ram brother of Fithu Ram and one Sohanu Ram. In the suit it was alleged that the Plaintiffs 1 and 2 have half share in the property and that Plaintiff No. 3 has a right of maintenance from the land of Fithu.

It is not disputed that Fithu died during the pendency of the suit. Thereafter, an application for amendment was filed wherein it was claimed that due to the death of Fithu Ram the shares of Plaintiffs No. 1 and 2 in the property have increased and further that 1/5th share in the property of Fithu should have gone to his widow Lohki Devi Plaintiff No. 3 and after her death portion of that share would also go to the Plaintiffs. By means of this application another amendment prayed for is that the Will being set up by Defendant(s) is not a valid Will.

It is obvious that the cause of action to file this application has arisen only after the death of Fithu. No Will of Fithu could have been challenged in his life time. Similarly, the claim of the Plaintiffs is that due to the death of Fithu their shares have increased. These amendments do not in any manner change the nature of the suit. In fact such amendments are necessary to decide the matters in controversy between the parties. Merely by allowing an amendment the claim of the Plaintiffs is not accepted to be correct. This has to be decided on the basis of the evidence led by the parties who have to prove their respective pleas but at this stage the amendment cannot be disallowed by going into the merits of the case.

In view of the above discussion, I find no merit in the petition which is rejected. Parties through their counsel are directed to appear before the learned trial Court on 22nd December, 2010. No costs.