( 1 ) THIS revision petition is filed by the petitioners who are plaintiffs in O. S. No. 1 12 of 1985 and petitioners in IA No. 21 of 1998 on the file of the Principal subordinate Judge, Kakinada.

( 2 ) THE respondents herein are the defendants in the suit.

( 3 ) THE revision petitioners filed ia. No. 21 of 1998 under Order VI Rule 17 and Section 151 CPC to order amendment of the plaint. The respondents opposed the amendment. The lower Court dismissed the petition through its order dated 10/09/1999. The plaintiffs, being aggrieved by the order of the lower court, preferred this revision questioning the validity and legality of the order of the lower Court.

( 4 ) THE point for consideration is: whether the amendment sought for in the plaint is permissible under law ? point Answer:

( 5 ) THE plaintiffs filed a suit for partition of the suit schedule properties. A preliminary decree was passed on 7-10-1992 after contest. The plaintiffs filed an appeal questioning the Preliminary decree with a delay condonation petition. Since the plaintiffs failed to take steps for service of notice on some of the respondents the delay condonation petition was dismissed for default. Therefore, the preliminary decree became final. In the suit, the plaintiffs took the plea that though the properties originally belonged to Dr. Mohammadulla Khan Durrani, they were kept in the name of his first wife rahimunnisa Begum as benami. Therefore, they are entitled for partition of all the properties.

( 6 ) A specific issue was framed to the effect whether some of the properties standing in the name of Fatimunnisa Begum are kept in her name benami. The said plea of benami transaction was not accepted by the Trial Court. The plaintiffs having not succeeded in the partition suit filed the present application after passing of the preliminary decree for amendment of the plaint mainly to introduce the following words:"any how as per the will executed by Smt fatimunnisa Begum the first plaintiff is entitled for items 12 and 15 of the schedule properties with absolute rights. "and also to add the following words: "excluding items 12 and 15 which devolved on first plaintiff through the will".

( 7 ) THE plaintiffs introduced the will by stating that Fatimunnisa Begum was in the habit of reading religious books. Several other old women used to come to their house and read those books. In the year 1982 Fatimunnisa Begum died. Subsequently, in 1997 the plaintiffs discovered a will executed by Fatimunnisa Begum in a book known as "quran-E-Majid" and on reading the contents they came to know that late Fatimunnisa Begum bequeathed the properties covered by item Nos. 12 and 15 of the plaint schedule in favour of the first plaintiff with absolute rights after her death. Therefore, the plaintiffs requested that the amendment may be permitted to be made to the plaint to introduce the theory of the will.

( 8 ) THE learned Counsel for the respondents submitted that the plaintiffs having taken the plea of benami transaction and having failed in their effort to grab the property, introduced the theory of will. He further submitted that the will said to be executed by Fatimunnisa Begum is an unregistered one said to be traced 15 years after the date of its execution and it is astonishing to know that Fatimunnisa begum did not inform anybody about the execution of the will or delivering the same to any of the beneficiaries under the said will or to any one of the members of the family. He further submitted that had the will been executed, the scribe or attestors would not have kept quiet after the death of the testator. If the amendment of plaint is allowed it completely changes the character of the suit and if the amendment is allowed it amounts to reopening the preliminary decree of the partition suit which became final. Therefore, he requested to confirm the order of the lower Court by dismissing the revision petition.

( 9 ) THE learned Counsel for the revision pet