C.R.No.5292 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.5292 of 2009 Date of Decision : 18.09.2009 Dev Raj Singh ...Petitioner Versus Gurmukh Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Y.M.Bhagirath, Advocate, for the petitioner. HEMANT GUPTA, J. (ORAL) Challenge in the present revision petition is to the order dated 4.8.2009, whereby the defendant's application for amendment of the written statement so as to introduce a plea that Hira Singh executed a registered Will dated 21.9.1961, was dismissed. The dispute in the suit is regarding the estate of one Hari Singh. His widow, three sons and one daughter have filed suit for possession against all other legal heirs of Hira Singh claiming 1/5th share of the estate of Hira Singh, who died in the year 1981. Defendant No.7, the present petitioner in his written statement relied upon Will dated 15.4.1977 on the basis of which mutation was allegedly sanctioned on 4.6.1986. Learned trial Court decreed the suit on 11.9.2004. During the pendency of the appeal before the learned first Appellate Court, an application was filed by defendant No.7-petitioner in the month of march 2009 so as to rely upon previous registered Will dated 21.9.1961 allegedly executed by Hira Singh in favour of his two sons namely Surjit Singh and Santa Singh. It is the said application, C.R.No.5292 of 2009 2 which has been declined by the learned first Appellate Court vide the order impugned in the present revision petition. It has been found by the learned first appellate Court that the petitioner has earlier propounded a Will dated 15.4.1977. The said pleading has two inferences. Firstly, that there was no previous Will executed by Hira Singh; and secondly in the alternative that even even he has executed any Will earlier than the said Will dated 15.4.1977, the same stands revoked. It was also found that in the Will dated 15.4.1977, there is no reference to the Will of 1961 and that the necessary ingredients for permitting amendment are not satisfied by the petitioner. The petitioner has contested the suit by taking up a specific plea and propounding Will dated 15.4.1977. The civil suit was decreed on 11.9.2004 discarding the Will propounded by the petitioner. It was four years later during the pendency of the first appeal, the defendant- petitioner had moved an application to propound an earlier Will. The plea based upon an earlier Will is wholly unjustified and untenable. Firstly, with the execution of Will on 15.4.1977, earlier Will stands superseded. Once the petitioner has failed to prove the aforesaid Will before the learned trial Court, the propounding of earlier Will lacks credibility, as such Will stands revoked as per plea of the plaintiff himself. If the amendment is to be allowed at this stage, it will lead to de novo trial. The Will dated 21.9.1961 has seen the light of the day after 28 years of the death of the testator. Such facts disentitle the petitioner to seek amendment at the appellate stage. In view of the above, I do not find any patent illegality or irregularity in the order passed by the learned first Appellate Court, C.R.No.5292 of 2009 3 which may warrant interference by this Court in the present revision petition. Dismissed. 18.09.2009 (HEMANT GUPTA) Vimal JUDGE