DASS RAM Vs. DALER SINGH & OTHERS

JUDGEMENT

(1.) The estate of Seetu, on his demise on 26.1.1971 thereat opened for succession. He died issueless besides on his demise, he left no surviving spouse. His estate stood mutated in favour of Rattani Devi, Kanshi Ram, Sarvan and Mukhitiar Singh. Mutation No.1782 qua the estate of deceased Seetu records therein the factum of the Revenue Officer sanctioning mutation qua the estate of deceased Seetu not in favour of Mukhitiar Singh rather in favour of Smt. Banti Devi widow of Kishan Chand despite the factum of Mukhitiar Singh being alive at the time when the estate of Seetu opened for succession and stood enjoined to devolve upon his heirs amongst whom Mukhitiar Singh was the one. Consequently, a prayer is made in the plaint of the said mutation recorded in favour of Banti by the Revenue Officer in derogation to the rights of Mukhitiar Singh being declared to be illegal, null and void. The plaintiffs also claimed right of succession to the estate of Mukhitiar Singh on the strength of a testamentary disposition of Mukhitiar Singh, averred in the original plaint, to be of 30.1.1974 on strength whereto mutation No. 1781 qua the estate of deceased Mukhitiar Singh, their predecessor-in-interest stood attested in favour of the plaintiffs on 18.05.1973.

(2.) The suit of the plaintiffs was partly dismissed by the learned trial Court. An appeal therefrom was preferred before the First Appellate Court. During the pendency of the appeal, before the learned first Appellate Court, an application was preferred thereat by the plaintiffs/respondents herein under Order 41, Rule 27 of the CPC for adducing evidence qua the mis-reflection occurring in the plaint qua the date of scribing in Urdu of the Will of Mukhitiar Singh, for underscoring the date of its scribing being 30.01.1969 and not 30.01.1974. The said application was allowed by the learned first Appellate Court. Feeling aggrieved against the allowing of the application aforesaid, the petitioner herein/defendant preferred therefrom a petition before this Court which stood also hereat allowed, on the score of this Court holding of in absence of an apposite averment with the leave of the Court concerned standing constituted in the plaint qua 30.01.1969 constituting the date of scribing of the Will of Mukhitiar Singh, rendered the application under Order 41, Rule 27 of the CPC preferred at the instance of the respondents herein for adducing with the leave of the Court material denotative of the date borne on the testamentary disposition in Urdu of deceased Mukhitiar Singh being not 1974 rather 1969 to beget adduction of evidence beyond pleadings rendering it to be discardable. In sequel, the respondents herein instituted an application under Order 6, Rule 17 of the CPC before the learned first Appellate Court. The application came to be decided in favour of the respondents herein/plaintiffs. The defendant/ petitioner herein stands aggrieved by the rendition of the learned first Appellate Court on the apposite application preferred before it by the respondents/plaintiffs/appellants. Palpably, the apposite averment constituted in the original plaint instituted by the plaintiffs qua the date of scribing of Will of deceased Mukhitiar Singh is reflective of Mukhitiar Singh executing his testamentary disposition qua his estate in favour of the plaintiffs on 30.01.1974. The aforesaid date of scribing of the Will of deceased Mukhitiar Singh is contended in the application under Order 6, Rule 17, CPC to stand begotten by a pure inadvertence of the translator concerned mistranslating from mutation No. 1781 the date of scribing of the Will of Mukhitiar Singh to be 30.01.1974 whereas it stood scribed by Mukhitiar Singh on 30.01.1969. Since, the counsel for the plaintiffs while drafting the plaint borrowed the date of scribing of the Will from the translation made by the translator of the mutation attested by the Revenue Officer concerned qua his estate hence sequelled an incorporation by pure inadvertence by him in the original plaint of Mukhitiar Singh scribing his testamentary disposition on 30.01.1974, in sequel, whereto, mutation stood attested on 18.05.1973. The testamentary disposition of Mukhitiar Singh is in Urdu. The date of its scribing borne thereon is also in Urdu. Necessarily a proficient translator could in his translated version thereof pronounce the exact date of its scribing by its testator. Even if, the apposite translation has suffered an infirmity or a flaw qua the exact date of its scribing borne on the testamentary disposition of deceased Mukhitiar Singh nonetheless the exact date of its scribing would still stand unearthed on a proper motion made before the learned first Appellate Court succeeding thereat as stands occurred.

(3.) The counsel for the respondents herein with fervor contends of the amendment as proposed to be incorporated in the plaint is merely a typographical error or is clarificatory in nature and is merely a concert to enable the Court to on the anvil of the apposite documentary evidence embodying the exact date of scribing of the Will of deceased testator Mukhitiar Singh besides when the exact date of its scribing is not permitted to be reflected in the plaint would sequel the Appellate Court to yet proceed to on a mis-reflection in the original plaint of the date of scribing of the testamentary disposition of Mukhitiar Singh, to hence also erroneously decide the lis alike the learned trial Court. The learned counsel appearing for the petitioner herein has contended before this Court with force of the amendment as proposed to be carried out being a belated attempt to effect an amendment in the pleadings especially when there occurs no communication in the application at hand of the respondents herein earlier thereto holding no knowledge qua the exact date of scribing of the testamentary disposition of Mukhitiar Singh rather knowledge thereof erupting on theirs contacting a translator who on holding an authentic translation thereof communicated to them of the error previously made by the earlier translator of mutation attested in the year 1973 which reflects the purported date of execution of the testamentary disposition of deceased Mukhitiar Singh.