Point of Law: question as to whether a person was the legally wedded wife or not or was in an illicit relationship was not germane to decide whether the WILL propounded by her is true, genuine and valid. It is further observed that if a person is able to prove the WILL was executed by testator in sound and disposing state of mind, the person would be entitled to the relief.

JUDGMENT :

Heard Mr. D. Das, the learned senior counsel assisted by Mr. G. Goswami, the learned counsel for the petitioner and Mr. S. K. Singh, the learned senior counsel assisted by Mr. B. Pushilal, the learned counsel for the respondent.

2. This application under Article 227 of the Constitution of India challenged the order dated 17.03.2022 passed by the Court of the District Judge, Sonitpur, Tezpur in T.S.(P) No. 43/2010 whereby the petition being petition No. 484/2021 dated 01.03.2021 filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 ( for short, CPC) for amendment of the written statement was rejected imposing cost upon the petitioner.

3. The brief facts of the instant case are that the respondent herein had filed an application before the District Judge, Sonitpur, Tezpur under Section 276 of the Indian Succession Act, 1925 seeking probate of the WILL of late Dr. Soumendra Mohan Mukherjee dated 18.11.2006. The said application was registered and numbered as Misc. (P) Case No.36/2010. In the said application, the petitioner herein was impleaded as the sole respondent. The petitioner herein challenged the said WILL for which the Misc.(P) Case No. 36/2010 was converted into Probate Title Suit and renumbered as T.S.(P) No. 43/2010. In the said suit proceeding, vide an order dated 21.02.2014, the same was fixed for ex-parte hearing and 27.04.2014 was the date fixed for ex-parte evidence. On 27.04.2014, the respondent herein submitted the ex-parte evidence-in-chief of three witnesses. The petitioner on 16.05.2014 filed a petition for allowing her to file her written statement as no written statement was filed earlier which the Court of the District Judge, Sonitpur, Tezpur rejected and held that the objection filed earlier would be considered as the written statement. The said order was put to challenge before this Court in a writ proceeding which was registered and numbered as WP(C) No.3908/2014 and this Court vide an order dated 13.08.2014, though not inclined to exercise jurisdiction under Article 226 of the Constitution of India, but taking into account that the petitioner herein had undertaken to file the written statement on 26.08.2014, in addition to the earlier written statement, allowed the petitioner to file her additional written statement by 26.08.2014.

4. While the said proceedings were pending, the petitioner herein filed a writ petition before this Court challenging the right of the respondent herein to receive family pension. The said writ petition was registered and numbered as WP(C) No. 1328/2016 and the said writ petition was disposed of vide order dated 26.09.2018 whereby this Court held that the marriage between the petitioner and late Dr. Soumendra Mohan Mukherjee was never dissolved by a decree of divorce and it being an admitted position of fact that the marriage of the respondent herein with late Dr. Soumendra Mohan Mukherjee took place during the currency of his marriage with the petitioner herein, this Court observed that the respondent herein cannot claim family pension as the legally married wife of late Dr. Soumendra Mohan Mukherjee. It was further held that the family pension by no stretch of imagination could ever form part of the estate of the deceased. It was, however, mentioned in paragraph No. 20 of the said judgment that the right of the respondent herein to such estate of the deceased would undoubtedly depend on the outcome of the probate proceeding, i.e., Title Suit (P) No. 43/2010 pending before the Court of the District Judge, Sonitpur, Tezpur. The relevant portion of the said judgment passed by this Court, i.e., paragraph Nos. 19, 20 & 21 are quoted herein below:

“19. Applying the ratio of the decisions referred to herein above to the facts of this case, I am of the considered opinion that since the respondent No.6 cannot be treated as the legally married wife of Late Dr. Soumendra Mohan Mukherjee hence she would not meet the requirement of Rule 143(i) of the Rules of 1969. As