( 1 ) PLAINTIFFS have filed this suit for partition and mesne profits. The suit primarily concerns property bearing No. B-3/4, Vasant Vihar, New Delhi. It is the case of the plaintiffs that the property in question was a Joint Hindu Undivided Family acquired from ancestral funds. The defendant Nos. 1 and 2 were late Mr. M. L. Sodhi, in whose name the lease of the property stood and his wife late Smt. Raj Sodhi. Defendant No. 3 was Col. V. K. Sodhi and defendant No. 4 was Mr. A. K. Sodhi. Defendants 1 to 4 have all expired. Mr. M. L. Sodhi died on 18/01/1989. Defendant No. 2 expired on 7th January, 2002,and defendant No. 3 expired on 29th January, 2003. Defendant No. 4 expired on 4/01/1996. Plaintiffs are the legal representatives of defendant No. 4.

( 2 ) BY the present applications moved under Order VI, Rule 17, CPt and under section 151, CPC, the LRs of defendant No. 3 seek to amend the plaint to propound Will dated 18th Sept. 1989 and another registered Will dated 1/05/1996, said to be executed by late Shri M. L. Sodhi and Smt. Raj Sodhi. By the application under Section 151, CPC, the wills are prayed for being taken on record. The effect of these Wills briefly stated is that Mr. M. L. Sodhi bequeathed the property to his wife Smt. Raj sodhi. Vide a Will dated 1/05/1996 she bequeathed her properties and assets to defendant No. 3, to the exclusion of defendant No. 4. It is claimed that it was only after 7th January, 2002 that the applicants LRs of defendant No. 3 have discovered the two wills namely Will of late Sh. M. L. Sodhi dated 18th Sept. 1989 and of Smt. Raj Sodhi, dated 1/05/1996 and moved the present applications.

( 3 ) THE said applications are vehemently opposed by Mr. J. P. Senth, counsel for plaintiffs, who submits that this is yet another manifestation of the defendants efforts to delay the suit. It is stated that a joint written statement had been filed by the defendants 1 to 4 in which no mention was made of the said Wills. It may be noted that defendant No. 4 happens to be the estranged husband of plaintiff No. 1. It is stated that the Wills now sought to be propounded are fabricated and set up with the ulterior motive of somehow depriving the plaintiffs of their legitimate share in the property which was a HUF property. Another objection raised is that the present amendment application cannot be allowed in view of the amended Order VI, Rule 17, CPC which prohibits amendments sought after the commencement of trial.

( 4 ) THE controversy on this aspect may be taken up first. It is seen that vide orders dated 22nd July, 2002 dates of trial were fixed from 22nd to 25th Oct. 2002 and parties were directed to take steps for filing the evidence by way of affidavit etc. In this view of the matter, it can be safely concluded that the actual trial commenced from 22nd Oct. to 25th Oct. 2002. The present application was made on 8th Oct. 2002 and hence would not fall, within the prohibition of amended order VI, Rule 17, CPC. Regarding objection as to the application being highly belated and a mala fide one, without any sufficient cause being shown not propounding the Wills earlier, the explanation given is that it was Col. V. K. Sodhi, the erstwhile defendant No. 3 while searching through the old papers of Smt. Raj Sodhi found the Wills. The Will of Smt. Raj Sodhi, which is sought to be propounded is a registered Will which would raise a presumption as to its due execution. The applications had been moved by Col. V. K. Sodhi prior to his demise.

( 5 ) CONSIDERING the aforesaid facts, I am of the view that the defendants cannot be shut out from propounding the Wills which are claimed to have been discovered upon the death of defendant No. 2. Even though the plea was not raised earlier during the life time of defendant No. 2, the onus of proving the said Wills rest on the defendants. Plaintiffs shall have the opportunity of questioning the Wills and raising objections as to their genuineness. The case being at the stage w

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