The central legal point established in the judgment is the application and interpretation of Section 105 of the Indian Succession Act, 1925, in determining the lapse of a legacy in a Will.

RAJIV SAHAI ENDLAW, J.

1. The following order was passed in this petition yesterday:-

“1. This petition under Article 227 of the Constitution of India impugns the order dated 11th May, 2016 of the Additional District Judge-12 (Central) Tis Hazari Courts, Delhi in CS No. 214/14 allowing the application of the respondents/plaintiffs for amendment of the plaint.

2. The petition was entertained and vide ex-parte order dated 20th July, 2016 the proceedings before the Trial Court stayed.

3. The counsel for the respondents/plaintiffs appears.

4. The counsels have been heard.

5. What emerges is that (i) the respondents/plaintiffs instituted the suit from which this appeal arises, for partition of immoveable properties against one Maina Devi and the petitioner/defendant Pritam Singh; (ii) Maina Devi was the mother of the petitioner/ defendant Pritam Singh and of deceased Krishna Devi and whose husband and children are the respondents/plaintiffs in the suit; (iii) the suit was for partition of the properties left behind by the husband of Maina Devi and who was the father of the petitioner/defendant Pritam Singh and Krishna Devi aforesaid; (iv) both petitioner/defendant Pritam Singh and Maina Devi contested the said suit for partition; (v) Maina Devi died during the pendency of suit, in the year 2010 and recording that the petitioner/defendant Pritam Singh represented her estate, the name of Maina Devi was deleted from the array of defendants in the suit; (vi) the respondents/plaintiffs in or about the year 2016 i.e. six years after the demise of Maina Devi and when the suit was pending at the stage of final arguments filed an application for amendment of the plaint to plead that they had then discovered a Will of Maina Devi in favour of Krishna Devi; the respondents/plaintiffs thus wanted to contend that the 1/3rd share of Maina Devi in the property had also fallen to the share of the respondents/plaintiffs and the respondents/plaintiffs were thus entitled to 2/3rd share in the properties of which partition was sought and the petitioner/defendant Pritam Singh was entitled to only 1/3rd share in the properties and (vii) the petitioner/defendant Pritam Singh controverts that there is any such Will of Maina Devi.

6. The learned Additional District Judge has allowed the amendment observing that the pleas sought to be taken by way of amendment were subsequent events and the amendments were necessary for proper adjudication of the matter in controversy.

7. The counsel for the petitioner/defendant Pritam Singh has argued (i) that the respondents/plaintiffs as an afterthought had forged and fabricated the Will of Maina Devi; (ii) the same is evident from the alleged Will having been set-up six years after the demise of Maina Devi and (iii) that the suit was at the stage of final arguments and amendment ought not to have been allowed at that stage.

8. Section 105 of the Indian Succession Act, 1925 provides that if the legatee does not survive the testator, the legacy cannot take effect and lapses.

9. Krishna Devi having predeceased Maina Devi, I have enquired from the counsels, whether there is any provision in the alleged Will, of bequest of the properties to the heirs of Krishna Devi in the event of Krishna Devi predeceasing Maina Devi.

10. The counsel for the respondents/plaintiffs states that there is no such provision in the Will.

11. Once there is no such provision in the Will, even if Maina Devi left a Will bequeathing her share in the properties to Krishna Devi, Krishna Devi having predeceased Maina Devi, the said Will is of no avail and Maina Devi will be deemed to have died intestate. In this view of the matter the need to allow evidence to be led on the said plea is not felt.

12. The learned Additional District Judge has not considered the said aspect while allowing the application for amendment.

13. However the copy of the Will is not on record. Neither counsel has a copy in his possession.

14. It is deemed appropriate to grant an opportu