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High Court Of Calcutta
A. K. SEN, B. C. CHAKRABARTI
KHAGENDRA NATH MUKHERJEE - Appellant
Versus
DHIRENDRA NATH MUKHERJEE - Respondent
Civil Rule No. 2093 of 1979
Decided On : 08/01/1979
CIVIL PROCEDURE CODE - ORDER VI RULE 17 - AMENDMENT OF PLAINT - COURT'S DISCRETION - AMENDMENT INTRODUCING NEW CAUSE OF ACTION - NOT ALLOWABLE - AMENDMENT TO SUBSTITUTE PRAYER FOR DECLARATION THAT GRANT OF PROBATE IS VOID INSTEAD OF PRAYER FOR REVOCATION - NOT ALLOWABLE - AMENDMENT TO INTRODUCE PRAYER FOR PERMANENT INJUNCTION - ALLOWABLE.
Fact of the Case:
Plaintiff filed a suit for declaration of his title to the suit property, alleging that the wills of his father and mother were fictitious and the probates thereof were obtained by practicing fraud. The defendants, the executors under the wills, contested the suit, contending that the plaintiff's claim was not maintainable until the impugned probates were revoked in appropriate proceedings under the Indian Succession Act. The plaintiff then filed an application for amendment of the plaint, seeking to substitute the prayer for revocation of the grant of probate with a prayer for a declaration that the grants were void and not binding upon him, and to add a prayer for permanent injunction.
Finding of the Court:
The court held that the amendment sought by the plaintiff was not bona fide and was an attempt to introduce a camouflage, as the real relief claimed was to annul or set aside the grant of probate on the ground that the grant was in respect of a false or fictitious will. The court further held that the amendment would not change the true nature of the relief claimed, but was being adopted by way of camouflage with a motive not too fair or bona fide.
Issues: 1. Whether the amendment sought by the plaintiff was bona fide or an attempt to introduce a camouflage? 2. Whether the amendment would change the true nature of the relief claimed?
Ratio Decidendi: 1. The court held that the amendment sought by the plaintiff was not bona fide and was an attempt to introduce a camouflage, as the real relief claimed was to annul or set aside the grant of probate on the ground that the grant was in respect of a false or fictitious will. 2. The court further held that the amendment would not change the true nature of the relief claimed, but was being adopted by way of camouflage with a motive not too fair or bona fide.
Final Decision: The court allowed the revisional application, set aside the order allowing the amendment, and rejected the application for amendment. The court also directed stay of further proceedings in the suit until the disposal of the revocation proceedings pending in another court.
( 1 ) THIS is a revisional application at the instance of the defendants in Title Suit No. 21/79 of the 8th Court of the learned Subordinate Judge at Alipore and directed against an order dated May 23, 1979, passed by the Learned Subordinate Judge allowing an application for amendment of the plaint. It will be necessary to refer to certain facts in the background to appreciate and decide the dispute now raised before us.
( 2 ) ADMITTEDLY, the suit, as aforesaid relates to premises No. 15, Mahesh Barik Land, P. S. Narkeldanga, District 24-Parganas (hereinafter referred to as the suit property ). This property again admittedly once belonged to Becharam Mukherjee, the father of the plaintiff and the defendant No. 1, Becharam died in 1933 leaving behind a will executed by him on October 27, 1927, bequeathing the uit property in favour of his wife Nagendra Bala, Probate in respect of the said will was obtained the executor in Probate Case No. 113/34. Nagendra Bala in her turn made a bequest in respect of the suit property in favour of the sons of Khagendra, the defendant No. 1 by a will executed by her on October 24, 1956. Nagendra Bala died in 1956 and Probate in respect of her will was sought for in Probate Case No. 17/58. The said proceeding was strongly contested by the present plaintiff but unsuccessfully up to this Court and there was a grant of probate in favour of the executor. The executor under the will of Nagendra Bala then filed title suit No. 40/70 for recovery of possession of the suit property by evicting the plaintiff. The suit again was contested by the present plaintiff upto the appellate stage but unsuccessfully. The suit being decreed, the executor put the decree into execution being title execution case No. 22/74.
( 3 ) IN October, 1977 the present plaintiff instituted a proceeding for revocation of the grant of probate in respct of Becharam's will in O. S. 62/77. Admittedly, this proceeding is still pending. An endeavour to get an injunction restraining execution of the decree for eviction, which was obtained by the executor, having failed in this proceeding for revocation the plaintiff fought over the issue up to this Court but was unsuccessful. In that background the plaintiff filed the title suit No. 21/79, as aforesaid, in February 1979.
( 4 ) IN this suit the plaintiff pleaded that his father Becharam had never executed any will. That the will that was probated as his father's will was a fictitious one and the probate thereof was obtained by practicing fraud. The plaintiff further pleaded hat his mother Nagendra Bala had no physical or mental capacity to execute any will at the time she was alleged to have executed a will. The will said to be his mother's will is also a false one. These wills and the probates thereof have no legal validity and did not affect his share in the suit property which inherited on the death of Becharam as also of Nagendra Bala as on intestacy. On these pleadings the plaintiff prayed for the following reliefs: - (a)declaration of the plaintiff's titlte in 3/8th share in the suit property; (b)revocation of the order or grant of probate in case No. O. S. 17. 58. (c) setting aside the decree passed in title suit No. 40/70; (d)setting aside the title execution case being title execution case No. 22/74; and (e)injunction restraining the defendants from interfering with the share of the plaintiff or his possession in the suit property. Such a suit should be noted was filed only after a previous suit by the plaintiff for declaration of his title to the suit property, being title suit No. 195/78, was dismissed by the Sealdah court on a finding that such a suit is not maintainable until the impugned probates are revoked in appropriate proceeding under the Indian Succession Act.
( 5 ) IN the present suit an application for injunction filed by the plaintiff was contested by the defendants, the petitioners before us, on the plea that such a suit is not mainta
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