1 wp 4716.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4716 OF 2011 Suresh S/o Puna Warade, Age : 48 Years, Occu. : Agril., R/o Behind Hotel Sadanand, Chalisgaon, Dist. Jalgaon. .. Petitioner Versus 1. Kaushalyabai W/o Subhash Warade, Age : 48 Years, Occu. : Household, 2. Meena D/o Subhash Warade, Age : 27 Years, Occu. : Education, Both R/o Nimbhore (Kothli), Tq. Bhadgaon, Dist. Jalgaon. 3. Dattu S/o Puna Warade, Age : 58 Years, Occu. : Service, R/o Gokuldas Tejpal G. T. Hospital, Lokmanya Tilak Marg, Mumbai - 400 001. 4. Bharati W/o Suresh Warade, Age : 45 Years, Occu. : Household, R/o Behind Hotel Sadanand, Chalisgaon, Dist. Jalgaon. 2 wp 4716.11 5. Punjaram S/o Tulshiram Warade, Age : 40 Years, Occu. : Agril., R/o Hirapur, Tq. Chalisgaon, Dist. Jalgaon. 6. Puna S/o Bhika Warade. .. Respondents (The respondent Nos. 3 to 6 are deleted as per Court's order dated 05.07.2011.) Shri L. V. Sangeet, Advocate for Petitioners. Shri V. H. Hon, Advocate for Respondent Nos. 1 and 2. CORAM : S. V. GANGAPURWALA, J. DATE : 18TH OCTOBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present respondent Nos. 1 and 2 have instituted a suit for partition and separate possession on the ground that the suit properties are the ancestral properties. The defendants filed the written statement. Thereafter the issues were framed and the plaintiff No. 1 examined herself and one witness. Thereafter, the present petitioner filed an application for amendment. By virtue 3 wp 4716.11 of the amendment the petitioner sought to incorporate the theory of the father having executed will in his favour. The said application is rejected. Aggrieved thereby the present petition is filed. 3. Shri Sangeet, the learned counsel for the petitioner submits that the Court while rejecting the amendment application is swayed of the fact that the will deed is executed in the year 2003 and the application for amendment is filed in the year 2010. There is delay of seven years. According to the learned counsel the will would come into effect only after the death of executant. The father died on 03 rd October, 2010 and the application for amendment is made on 16.11.2010. The learned counsel contends that it was erroneous on the part of the Trial Court to observe that there is no due diligence on the part of the petitioner. 4. Shri Hon, the learned counsel for respondent Nos. 1 and 2/plaintiffs submits that the will is registered will. The same is a false and fabricated document. Even otherwise the application for amendment is filed after seven years that too after the trial has commenced. Such an amendment could not have been 4 wp 4716.11 allowed and the same has been rightly rejected by the Trial Court. The learned counsel contends that the petitioner has filed written statement, but did not disclose about the said will. The petitioner cannot take a different stand than what he has taken in the original written statement. The petitioner is taking a contrary stand by amending the written statement, which is not permissible. The learned counsel relies on the judgment of the Apex Court in a case of Vidyadevi Vs. Padmawati reported in 2009(1) All M. R. 471 to contend that the amendment after the trial has commenced cannot be allowed. 5. No doubt, the plaintiff No. 1 has led her examination in chief and has also examined her one witness and thereafter present application for amendment is filed by the petitioner. It will have to be considered that the petitioner wants to incorporate the factum of the will having been executed by his father, who was also one of the defendant and rights pursuant to said will. It is not disputed that the father died on 03 rd October, 2010. The will shall come into force upon the death of executent/testator. The amendment application is filed on 16.11.2010 i. e. within a reasonable time. It cannot be said that there is absence of due diligence, though the trial has 5 wp 4716.11 commenced, still as the father died subsequently the amendment as sought was necessitated. It is also trite law that the merits of the amendment are not required to be considered while considering the application for amendment. The genuineness of the will if disputed will be required to be proved. As the rights pursuant to the alleged will is accrued to the petitioner on 03.10.2010 and the amendment been made immediately i. e. on 16.11.2010. I do not see any reason to allow the said amendment. 6. In the result the impugned order is quashed and set aside. The application Exhibit 89 filed by the petitioner in R.C.S. No. 236/2003 is allowed. Rule is made absolute in above terms, however, with no order as to costs. 7. Needless to state as the respondent Nos 1 and 2 have already led their evidence and thereafter the amendment is allowed, the plaintiffs shall have an opportunity to give the evidence in respect of the amendment allowed. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11