NARESHBHAI CHAMPAKLAL PATEL Vs. RITABEN BHARATBHAI PATEL

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India the petitioner - original plaintiff challenges the order dtd. 25/8/2021 passed below Exh.24 application in Regular Civil Suit No.359 of 2018 whereby the request of the petitioner - original plaintiff to amend the plaint came to be rejected.

(2.) The petitioner - original plaintiff filed the aforesaid suit claiming declaration to the effect that the sale deed dtd. 31/5/2015 executed in favour of the original defendant by the father of the plaintiff does not give the original defendant the right as owner of the suit property. Alongwith the same, the suit claims the declaration that the sale deed executed by the father of the original plaintiff is illegal and without any payment of consideration, and therefore, the revenue entry mutated in the record of rights is also claimed to be illegal in the suit. Over an above that relief, the original plaintiff claim that he is the owner of the suit property based on a codicil /will dtd. 10/7/2009 (may be 9/7/2009) registered with the Sub-Registrar on 30/7/2009 and based thereon the original plaintiff had also claimed declaration that he is the owner of the suit property.

(3.) Mr. Jigar Patel, learned advocate for the petitioner - original plaintiff, submitted that not only the sale deed, which is challenged under the suit, is non-est and without consideration, even the right to the suit property is claimed by the petitioner - original plaintiff under a codicil /will dtd. 10/7/2009, which is a registered will, as prayed in the suit. It is further submitted that with a view of defeat the right of the original plaintiff, in the written statement, it is claimed that subsequent to the codicil /will dtd. 10/7/2009, there is a registered codicil /will dtd. 10/2/2014 claimed to be executed by the father of the original plaintiff cancelling the earlier codicil /will dtd. 10/7/2009 qua suit property based on which a declaration is sought for by the petitioner - original plaintiff, it has necessitated such amendment to challenge the subsequent codicil /will qua the suit property. He has further submitted that by such an amendment, nature of the suit is not being changed as both the parties will have their right to lead the evidence to justify the codicil /will in their favour to be just and proper and executed beyond any suspicious circumstances and to be the last will of the deceased. He has further submitted that by such amendment, there is no prejudice to the original defendant in leading evidence in respect thereof, and therefore, the said amendment, which was necessitated because of the written statement, has to be granted.