Vikramajit Sen, J.

( 1 ) SOME persons have a proclivity for executing Wills, as this case demonstrates. Late Smt. Indrani Devi, the mother of the parties hereto, appears to have executed and registered a Will firstly on 5. 9. 1994 in which she bequeathed her estate jointly to her two sons, the parties hereto (her third son had predeceased her ). The suit for declaration and perpetual injunction is predicated on this Will. Why a probate petition has not been field, will probably fall for consideration on some future date. In response to the plaint, in the Written Statement it has been pleaded that "there was a latest Will dated 28. 3. 1995 which is duly registered and which has been suppressed, and by this testament all previous Wills had been cancelled". It needs to be highlighted that Wills is in plural. The original Will dated 28. 3. 1995 is on record, and specifically mentions that previous Will (s) registered on 31. 1. 1995 in the Office of S. R. Delhi being document No. 4401, in addl. book No. III, Volume No. 2262, on pages 21 to 24 is hereby cancelled. Since the case is at a preliminary stage I would only, prima facie, observe that, as is unfortunately not uncommonly encountered, late Smt. Indrani Devi perhaps executed Wills in accordance with her being either happy or unhappy with her children or any one of them in particular. By the last Will dated 28. 3. 1995 the Defendant is the sole heir of late Smt. Indrani Devi in respect of the immovable property bearing House No. 210-11, Gali Kandley Kashan, Fateh Puri, Delhi.

( 2 ) AT the stage of framing of Issues, the Defendant had filed an application under Order VI Rule 17 of the Civil Procedure Code. for the amendment of his Written Statement. Succinctly stated, the amendment seeks to specifically mention the Will dated 31. 1. 1995 by incorporating the newly added preliminary objections 8 and 9 and clarification on other facts which have already been disclosed in the pleadings. Learned counsel for the Plaintiff has objected to this amendment on the ground that by specifically mentioning the Will dated 31. 1. 1995 in preliminary objections 8 and 9, the Defendant is setting up new case.

( 3 ) THE law pertaining to amendment of Written Statement is undoubtedly much more lenient than that pertaining to amendment of a plaint. Whereas in the latter the introduction of a new case or cause of action would ordinarily not be allowed, the Apex Court has clarified that the amendments of the Written Statement, even where a new case or a defence in the alternative albeit at variance with the defence earlier put forward, is sought to be introduced, it should be allowed. On the general issue of amendment to pleadings it is no longer res integra that the credibility of the facts sought to be incorporated by the amendment does not fall for consideration at the stage of allowing or refusing the amendment application.

( 4 ) APPLYING these principles to the facts of the present case I am of the opinion that the Plaintiff has needlessly opposed the amendment application filed by the Defendant. Well before the filing of this application, the duly registered Will dated 28. 3. 1995, in original, had already been filed by the Defendant. This Will itself mentions the cancellation of a previous Will dated 31. 1. 1995. The learned counsel for the Plaintiff has submitted that mention of the second Will is now sought to be specifically pleaded for the reason that the Defendant is now apprehensive that late Smt. Indrani Devi was not in a fit mental state to execute last Will, and hence this third Will may not be given judicial imprimatur. Therefore, the Defendant is prudently giving up his claim to exclusive ownership of the immovable property, and not placing all his eggs in one basket. The Defendant is therefore now relying on the second Will by which, as has been stated at the Bar, the Plaintiff has been disinherited and the Defendant and the sisters of the parties have been bequeathed properties. I h

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