The court emphasized the necessity of allowing amendments to the plaint for proper adjudication of inheritance claims involving all legal heirs.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioner has assailed order dated 8.6.2017, passed by the learned Civil Judge (Senior Division), Court No.1, Rohru, District Shimla in CMA No. 78-6 of 2017 in Civil Suit No. 22-1 of 2011.

2. Petitioner is the plaintiff and respondents are the defendants in Civil Suit No. 22-1 of 2011, pending on the files of learned (Senior Division), Rohru. The parties hereafter shall be referred to by the same status, as they hold before the learned trial Court.

3. Initially, the plaintiff filed the suit against the sole defendant Sh. Bharat Subhash on the premise that the Will of late Sh. Miyan Ram propounded by Sh. Bharat Subhash was not legal and valid Will and that the plaintiff and all other legal heirs of deceased Miyan Ram including defendant Sh. Bharat Subhash were entitled to the estate of Sh. Miyan Ram in equal shares.

4. The suit of the plaintiff was dismissed by the learned trial Court. Plaintiff filed appeal under Section 96 of the Code of Civil Procedure (for short, the ‘Code’) against the judgment and decree passed by the learned trial Court, which came to be registered as Civil Appeal No. 11-R/13 of 2016 in the Court of learned Additional District Judge-1, Shimla. The Appellate Court vide judgment and decree dated 18.3.2017 allowed the appeal of the plaintiff and the suit was remanded to learned trial Court with direction to grant one opportunity to the plaintiff to implead all legal heirs of late Sh. Miyan Ram as party and further to grant one opportunity to the defendants to lead evidence, if any, on the issue of execution of Will. It was also directed that thereafter the learned trial Court would afford two opportunities to lead rebuttal evidence to the plaintiff qua the execution of Will.

5. Learned Appellate Court had framed additional issues and had also recast issue No.1 as under:-

“1. Whether plaintiff along with all legal heirs of late Miyan Ram is entitled to inherit the suit property on the basis of succession? OPP

2-A. Whether late Miyan Ram executed a valid Will dated 16.12.2010 in favour of defendant No.1? OPP

2-B. In case, issue No.2-A is proved in affirmative, whether Will dated 16.12.2010 is a result of fraud, fabrication and as such, the same is illegal, wrong, null and void, as alleged? OPP

2-C. Whether the suit of the plaintiff is bad for non joinder of necessary parties, as all legal heirs of late Miyan Ram are not impleaded as party? OPD.”

6. After the remand of the case, plaintiff filed composite application under Order 6 Rule 17 and Order 1 Rule 10 of the Code before the learned trial Court. Plaintiff made a prayer to implead all the legal heirs of deceased Sh. Miyan Ram, as defendants. In addition, a prayer was made to amend the plaint by adding paras-8-A and 8-B in following terms:-

“D). New para 8-A is to be added as "That upon the death of late Shri Miyan Ram, he has been succeeded by all his legal heirs i.e. plaintiff, defendant No. 1 to 5 and widow Kundal Mani in equal shares i.e. 1/7 share each with respect to his entire estate/holding. But now during the pendency of the suit Smt. Kundal Mani has also died on 23-7-2012. Smt. Kundal Mani has executed an unregistered will on 12-5-2012 qua her aforesaid 1/7 share in favour of the plaintiff. So now the plaintiff is entitled to succeed the entire estate / holding to the extent of 2/7, whereas the defendants 1 to 5 are entitled to succeed to the extent of 1/7 each."

E). New para 8-B I sto be added as "That as a matter of fact deceased Kundal Mani had been staying continuously with plaintiff. The plaintiff and his family members have taken care of her every time. She was maintained and looked after by the plaintiff. All the basic necessity and amenities were provided. She was happy for the services rendered by plaintiff. So during her life time Smt. Kundal Mani in the presence of two respectable witnesses namly ward member Sh. Dalip Kumar and Sh. Padam Singh, on 12-5-2012 executed one unregistered Will qua