PRABIR KUMAR BASU Vs. BIPUL CHANDRA BASU

JUDGEMENT

(1.) This is an application under article 227 of the Constitution of India assailing the impugned order No. 40 dated 23.07.08 passed by Learned Civil Judge, 1st Court (Jr. Division) at Sealdah in connection with an application under order 6 rule 17 of the Code of Civil Procedure arising out of Title Suit No. 84 of 2004 allowing thereby the application for amendment of the plaint.

(2.) The case of the plaintiff, in short, is that Smt. Nihar Bala Dasi, since deceased, was the absolute owner of the suit property. Nihar Bala Dasi during her lifetime executed and registered a deed of settlement on 04.02.1950 in respect of the suit property for the benefit of her two grandsons, namely, Bipul Chandra Bose (Plaintiff) and Mukul Chandra Bose (Pro-defendant No. 7) and in the said deed Nihar Bala Dasi appointed herself as the first trustee and her nephew Purnendra Nath Basu and Laxminarayan Paul were appointed as next trustee and it was clearly written in the said deed of settlement that it was created for the benefit of the grand sons Mukul Chandra Bose and Bipul Chandra Bose till they attain the age of 21 years and after attaining the majority, the trust shall come to an end. It was further stipulated that the said Mukul Chandra Bose and Bipul Chandra Bose shall be the absolute owners of the property having undivided half share. Nihar Bala Dasi died on 08.09.1958 and after her death the trustee Purnendra Nath Basu took charge of the said property as per the terms of the deed of settlement. Purnendra Nath Basu knew very well that he had no right title and interest in the property after attaining majority of the two sons of the first wife, but, a will was executed and registered by him on 13.09.94 wherein after his death, the entire property was bequeathed to all his legal heirs in equal shares. The said will was probated by the Learned District Delegate at Sealdah vide Case No. 45/2002 (P) and by virtue of the said probate, the defendant 1 to 4 are claiming the ownership in the suit property. It is contended in the plaint that the said probate granted is infructuous and has got no legal force in the eye of law, in as much as, Purnendra Nath Bose had no right title and interest in the said property and he was a mere trustee.

(3.) The learned Court below after considering the respective contentions of the parties allowed the application for amendment of the plaint holding that the proposed amendment was formal in nature and will not change the nature and character of the suit. Learned Court further observed that the proposed amendment was required for proper adjudication of the suit.