MANJUNATH GOPALKRISHNA BHAT Vs. GANAPATI GOPALKRISHNA BHAT

JUDGEMENT

(1.) THIS revision arises out of the judgment and order dated 7-1-1994 allowing the plaintiffs application for amendment subject to costs payable by the plaintiff to the defendant. Learned Counsel for the applicant contended that original suit was for partition filed by the plaintiff-respondent, and in the suit, application for amendment was made seeking to challenge the Will dated 8-4-1972 which is alleged to have been executed in favour of the revisionist i. e. , defendant in the suit. Learned counsel contended that the suit was for partition and for amendment of the plaint and allowing of application for amendment would change the nature of the suit and it amounts to introducing a new case. Learned counsel contended that the learned Court below acted illegally in allowing the application for amendment, as it is well-settled principle of law that no amendment is to be allowed if it results in changing the nature of the suit and if it has the effect of introducing a new case.

(2.) THESE contentions of the learned Counsel for the revisionist-applicant has been hotly contested by Sri S. G. Hegde, learned Counsel for the opposite party in Civil Revision Petition No. 1590 of 1994. Sri S. G. Hegde contended that in a suit for partition, defendant-revisionist has taken a plea claiming the property in dispute to exclusively belong to the defendant-revisionist on the basis of Will dated 8-4-1972. This aspect of the matter, learned Counsel contended, no doubt there is by way of plea making claim that the revisionist was the sole owner on the basis of Will dated 8-4-1972.

(3.) I have applied my mind to the contentions of the learned Counsels for the parties. It appears when defendant is claiming exclusive right to the property on the basis of alleged Will dated 8-4-1972 alleged to have been executed by the father of the parties, burden did lie on the defendant to prove that Will was really executed by the father with full understanding of his own free Will as well as to remove all suspicious circumstances etc. Secondly, if defendant fails to prove, definitely the will has to be held to be bogus. Examining in this context, I find when the Will has been set up by the defendant in his written statement, plaintiff as a matter of fact has been entitled to approach to the facts of the case subsequently brought on record to make an additional approach to the facts coming out of pleadings of defence and to raise that plea. It cannot be said to be making out a new case. There is no dispute so far as mere proposition of law is concerned which is well-settled and laid down in very many cases including the case of Pirgonda Hongonda Patil v kalgonda Shidgonda Patil and Others , that,