1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.10861 OF 2009 Ravindra Laxman Patil ...Petitioner vs. Durga Ramesh Patil & Anr. ...Respondents Mr.Sudhir Prabhu for the petitioner Ms Kalpana Shah for the respondent nos.1 and 2 CORAM :A.S.OKA,J. DATE : MARCH 30, 2010 P.C. 1 Notice for final disposal of the writ petition was issued on 5th January 2010. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. The present writ petition under Article 227 of the Constitution of India arises out of the petition filed by the petitioner for grant of probate in respect of the alleged will dated 18th May 2001 executed by the late Laxman K. Patil. The deceased testator was the father of the petitioner. The respondents are the daughters of the deceased. It appears that the application for probate made by the petitioner is being contested by the respondents and therefore, the same has been treated as a suit. By way of defence, the respondents have set up 2 another will executed by the deceased testator. According to the respondents the said will was executed by the deceased testator on 12th June 2001. An application for amendment of the plaint/application for grant grant of probate was made by the petitioner. In the said application , it was contended that the respondents produced alleged will dated 12th June 2001 at the time of recording of evidence. It is stated that till that time even a copy of the said will was not produced by the respondents. Amendment was prayed for incorporating the challenge to the will set up by the respondents. By the impugned order, the said application has been rejected by the learned trial Judge. The learned trial Judge came to the conclusion that the application has been made after commencement of the trial and therefore, the same was not maintainable in view of the proviso to rule 7 of Order VI of the Code of Civil Procedure ,1908 (hereinafter referred to as the said Code). 2 The learned counsel for the petitioner submitted that the so called will was produced by the respondents at the time of recording of evidence and only after taking inspection of the alleged will, an occasion arose for challenging the same. He submitted that there was sufficient explanation for delay in applying for amendment 3 in as much as the amendment could not have been applied for before alleged will was produced by the respondent. In the alternative, he relied upon the decision of this Court in case of Venidas Nemchand Vs. Bai Champabai (AIR 1930 Bombay 29) and submitted that the petitioner be permitted to file further pleadings. The learned counsel for the respondents opposed the petition. Her submission is that right from inception, the respondents have set up will of the deceased and it is too late at this stage to challenge the said will. The learned counsel therefore submitted that no interference is called for. She submitted that the amendment could have been always applied for at an earlier stage. 3 I have considered the submissions. In view of section 276 of the Indian succession Act,1925 (hereinafter referred to as the said Act), an application for grant of probate is required to be filed containing various particulars set out in the said section. Section 295 of the said Act provides that if there is contention ,the proceeding of the petition for probate shall take as nearly as may be , the form of a regular suit, according to the provisions of the said Code, in which the petitioner shall be the plaintiff and the person who has appeared to oppose the grant shall be a defendant. Thus, in 4 case of a contest, the petition for grant of probate is required to be heard as nearly as may be in the form of a regular suit. Perusal of section 276 shows that if the contesting party is claiming on the basis of a testamentary document of the deceased, it is not necessary for the petitioner to challenge the said document while applying for probate on the basis of the will. The application for probate need not contain averments as regards testamentary document set up by a caveator or by an opponent. In case of a contest , only by a legal fiction, the application for probate is to be treated as a suit. 4 In case of Venidas Nemchand (supra) this Court has quoted with approval the practice adopted by this Court where rival parties in a probate petition set up two wills in regard to the same estate. The trial Court will have to consider the law laid down by the said decision. This Court observed that the practice followed by this Court was sound and should be strictly followed. 5 Under Rule 9 of Order VIII of the said Code, no pleadings subsequent to written statement of a defendant other than by way of defence set-off or counter-claim can be accepted except with the leave of the Court. In the present case, 5 another will of the deceased has been set up by the respondents in the written statement. It is for the respondents to propound and prove the alleged will. In view of format prescribed by section 276 of the said Act ,instead of allowing the petitioner to carry out the amendment to petition for probate, this is a fit case where power under Rule 9 of Order VIII of the said Code should be exercised. It is true that the said request was not made before the trial Court. However, in order dated 5th January 2010, this Court has specifically recorded the submission of the learned counsel for the petitioner if amendment cannot be permitted, the petitioner should be permitted to file further pleadings relied upon by the aforesaid decision of this Court. Instead of prolonging the matter further and directing the petitioner to file an application for leave in accordance with rule 9 of Order VIII of the said Code, this is a fit case where leave should be granted while disposing of the writ petition. It is obvious that the subsequent pleadings will be confined to the will set up by the respondents. 6 Hence, Petition is disposed of by passing the following order : i) The petitioner is permitted to file subsequent pleadings in accordance with Rule 6 9 of Order VIII of the Code of Civil procedure,1908 only for the purpose of dealing with the will set up by the respondents. The impugned order is modified to that extent. ii)All contentions of the parties on merits are kept open. iii) Further pleadings shall be filed by the petitioner within a period of four weeks from the date on which the writ of this order is received by the trial Court. The petition is disposed of. JUDGE