GAUTAM SARUP Vs. ANAND SARUP

JUDGEMENT

(1.) The challenge in the present revision petition is to the order dated 23.03.2005 passed by the learned trial Court permitting defendant No. 6 to amend her written statement filed earlier on 30.03.2000.

(2.) The dispute in the present suit for declaration is regarding the estate of one Shanti Sarup. The plaintiff is claiming the estate of one Shanti Sarup on the basis of Will dated 23.9.1999 whereas defendants No. 1 to 4 are disputing the said Will and, in fact, relying upon holograph Will dated 18.11.1982. The said suit for declaration was filed on or about 03.03.2000 in which defendant No. 6 Mrs. Leela Jetly, daughter of Shanti Sarup, has filed written statement dated 30.03.2000. In the said written statement, the said defendant has admitted that deceased Shanti Sarup was 95 years of age at the time of his death on 5.11.1999 and that he died of heart attack. Still further, execution of Will dated 23.9.1999 is admitted to have been executed by Shanti Sarup in favour of the plaintiff and defendant No. 7. It is also admitted that Shri A.C. Aulock has attested the said Will as marginal witness along with the said defendant in the presence of executant of the said Will.

(3.) On 28.8.2000 defendant No. 6 filed an application before the learned trial court for taking off the record the earlier written statement dated 23.03.2000. The learned trial court vide order dated 12.9.2001 permitted defendant No. 6 to replace her written statement dated 30.3.2000 with a new one. The said order was challenged by the plaintiff before this Court in Civil Revision No. 5900 of 2001. The said revision petition was allowed but a direction was issued to the learned trial Court to hold a fact finding inquiry as to whether defendant No. 6 ever engaged Shri M.P. Vasudeva, Advocate or ever signed the written statement which has been placed on the record. It was also observed that if the findings are given against her, it will be open to defendant No. 6 to file an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter to be referred as "the Code"), for amendment of the pleadings and the said application shall be disposed of by the trial Court.