KHAGENDRA NATH MUKHERJEE Vs. DHIRENDRA NATH MUKHERJEE

JUDGEMENT

(1.) This is a revisional application at the instance of the defendants in Title Suit No.21/79 of the 8th Court of the learned Subordinate Judge at Alipore and directed against an order dated May 23, 1979, passed by the Learned Subordinate Judge allowing an application for amendment of the plaint. It will be necessary to refer to certain facts in the background to appreciate and decide the dispute now raised before us.

(2.) Admittedly, the suit, as aforesaid relates to premises No.15, Mahesh Barik Land, P.S. Narkeldanga, District 24-Parganas (hereinafter referred to as the suit property). This property again admittedly once belonged to Becharam Mukherjee, the father of the plaintiff and the defendant No.1, Becharam died in 1933 leaving behind a will executed by him on October 27, 1927, bequeathing the uit property in favour of his wife Nagendra Bala, Probate in respect of the said will was obtained the executor in Probate Case No.113/34. Nagendra Bala in her turn made a bequest in respect of the suit property in favour of the sons of Khagendra, the defendant No.1 by a will executed by her on October 24, 1956. Nagendra Bala died in 1956 and Probate in respect of her will was sought for in Probate Case No.17/58. The said proceeding was strongly contested by the present plaintiff but unsuccessfully up to this Court and there was a grant of probate in favour of the executor. The executor under the will of Nagendra Bala then filed title suit No.40/70 for recovery of possession of the suit property by evicting the plaintiff. The suit again was contested by the present plaintiff upto the appellate stage but unsuccessfully. The suit being decreed, the executor put the decree into execution being title execution case No.22/74.

(3.) In October, 1977 the present plaintiff instituted a proceeding for revocation of the grant of probate in respct of Becharam's will in O.S. 62/77. Admittedly, this proceeding is still pending. An endeavour to get an injunction restraining execution of the decree for eviction, which was obtained by the executor, having failed in this proceeding for revocation the plaintiff fought over the issue up to this Court but was unsuccessful. In that background the plaintiff filed the title suit No.21/79, as aforesaid, in February 1979.