Arun Kumar Jha, J. – Heard learned counsel for the petitioner as well as learned counsel for the respondents on the point of admission and I intend to dispose of the present petition at the stage of admission itself.

2. The petitioner has filed the instant petition under Article 227 of the Constitution of India for setting aside the order dated 16.05.2017 passed by the learned Additional District Judge-VIII, Gopalganj in Probate Case No. 9 of 2016 whereby and whereunder the learned Additional District Judge-VIII, Gopalganj rejected the petition dated 17.09.2016 filed on behalf of the petitioner for amendment in the schedule of the plaint of the probate case.

3. Learned counsel for the petitioner submits that petitioner is the legatee of a Will executed by Payahari Sharan Tiwari which is a registered Will. The said Will is an open deed and does not contain any schedule of the properties. After death of the testator, the petitioner filed Probate Case No. 9 of 2016 for grant of probate of the Will dated 09.05.2013 with the details of property in schedule of the petition and opposite party no.2 Narbdeshwar Nath Tiwari appeared and filed his written statement on 17.09.2016. After appearance of opposite party no.2, the probate case has been converted into a testamentary suit. The issues have not been framed in the said suit. At the stage, the petitioner filed a petition under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) for amendment in the schedule of the plaint of Probate Case No. 9 of 2016. These amendments which have been proposed in the schedule of the probate case are addition of one property having Khata No. 51, Plot No. 153 having an area of 2 katha 14 dhur and to change in the area of Plot No. 374 from 5 dhur 10 dhurki to the 8 dhur. Learned counsel further submits that as the petitioner came to know about these facts subsequent to filing of the probate case, at the first instance, he brought these facts to the notice of the court seeking amendment in the schedule of the plaint. Rejoinder to the amendment application was filed by opposite party no.2 and the learned trial court rejected the prayer of the petitioner for amendment in the schedule of the plaint.

4. Learned counsel further submits that the order of the learned trial court is bad in the eyes of law. Learned trial court did not consider the petition of the petitioner seeking amendment and has passed the order with regard to only one of the amendments. Further, the learned trial court has failed to appreciate the fact that the trial is at the stage of framing of issues after filing of written statement by opposite party no.2. The learned trial court went on the premises that the Will did not contain details of the property and did not consider the fact that once the Will was contested, the provisions of Section 295 of the Succession Act would come in play. Amendment was rejected considering the merit of the amendment which is not permissible at this stage. Thus, the learned counsel submits that the impugned order is not sustainable and same be dismissed.

5. Learned counsel appearing on behalf of respondent no.2 vehemently contests the submission made on behalf of the petitioner. Learned counsel submits that the Will is forged and fabricated as the same person earlier executed a Will in favour of other brothers of the petitioner as well and thereafter just 16 days prior to the death of the testator, this Will has come into existence. Learned counsel submits that nowhere in the amendment petition there is anything mentioned about the amendment in the original pleadings and it is also vague as it does not disclose where the property as mentioned in the amendment petition should be added in the portion of the pleadings. Learned counsel further submits that there is no infirmity in the impugned order and the same needs to be sustained. Learned counsel appearing on behalf of the State supports the contention of the learned counsel f