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Judgment
Mohan M. Shantanagoudar, J.—By the impugned order, the court below has rejected the application filed seeking amendment of written statement.
O.S. No. 1178/07 filed by the respondents herein is set down for final arguments. The case of the plaintiffs is that the suit properties though are purchased in the name of the mother of the parties namely Akkayamma, the suit schedule properties are purchased by their father by utilizing joint family funds. On the other hand, the case of the plaintiffs is that the properties are joint family properties; however, the suit schedule properties are standing in the name of their mother Akkayamma. Akkayamma expired on 29.9.2013 i.e., when the matter was set down for final arguments before the court below. Immediately thereafter, the application came to be filed by the defendants for amendment of the written statement for taking a plea that Akkayamma executed her last Will dated 29.4.2006 during her life time bequeathing all the suit schedule properties in favour of the defendants. The said application for amendment of written statement is rejected on the ground that the same is highly belated and the same cannot be allowed at the stage of final arguments.
Learned counsel for the respondents submits that the Will is not produced along with application for amendment. Akkayamma has examined herself as DW. 1 and she has stated that she will not give the properties to either the plaintiffs or the defendants. Thus according to him, the so called Will is not genuine.
The question, as to, "whether the Will said to have been executed by Akkayamma, to be produced by the defendants is genuine or not?" is to be decided during the course of the trial. It is for the defendants to produce and prove the Will, in accordance with law.
Be that as it may, since the death of Akkayamma has occurred on 29.9.2013, the defendants are justified in setting up the ownership through Will only thereafter. In view of the same, the order of the court below is not justified and the same is liable to be quashed.
Accordingly, the impugned order of the court below stands quashed. I.A. filed for amendment to the written statement is allowed. The Writ Petition is allowed.