GURUDEO SHARAN TIWARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner as well as learned counsel for the respondents on the point of admission and I intend to dispose of the present petition at the stage of admission itself.

(2.) The petitioner has filed the instant petition under Article 227 of the Constitution of India for setting aside the order dtd. 16/5/2017 passed by the learned Additional District Judge-VIII, Gopalganj in Probate Case No. 9 of 2016 whereby and whereunder the learned Additional District Judge-VIII, Gopalganj rejected the petition dtd. 17/9/2016 filed on behalf of the petitioner for amendment in the schedule of the plaint of the probate case.

(3.) Learned counsel for the petitioner submits that petitioner is the legatee of a Will executed by Payahari Sharan Tiwari which is a registered Will. The said Will is an open deed and does not contain any schedule of the properties. After death of the testator, the petitioner filed Probate Case No. 9 of 2016 for grant of probate of the Will dtd. 9/5/2013 with the details of property in schedule of the petition and opposite party no.2 Narbdeshwar Nath Tiwari appeared and filed his written statement on 17/9/2016. After appearance of opposite party no.2, the probate case has been converted into a testamentary suit. The issues have not been framed in the said suit. At the stage, the petitioner filed a petition under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for amendment in the schedule of the plaint of Probate Case No. 9 of 2016. These amendments which have been proposed in the schedule of the probate case are addition of one property having Khata No. 51, Plot No. 153 having an area of 2 katha 14 dhur and to change in the area of Plot No. 374 from 5 dhur 10 dhurki to the 8 dhur. Learned counsel further submits that as the petitioner came to know about these facts subsequent to filing of the probate case, at the first instance, he brought these facts to the notice of the court seeking amendment in the schedule of the plaint. Rejoinder to the amendment application was filed by opposite party no.2 and the learned trial court rejected the prayer of the petitioner for amendment in the schedule of the plaint.