skt/- 1 43.wp.7673.09.o.k..sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 7673 OF 2009 Sou.Vaishali Rajendra Raskar ...Petitioner. Vs. Smt.Shantabai Ramesh Choure & Ors. ...Respondents. ..... Mr.Vishwanath S. Talkute, Advocate for the petitioner. Mr.Surel S. Shah, Advocate for respondent nos. 1 to 3. ..... CORAM :- A.S.OKA, J. DATED :- 19TH MARCH, 2010. P.C.- 1 On the earlier date, the petition was taken up for final disposal at the admission stage. 2 The challenge in this writ petition under Article 227 of the Constitution of India by the petitioner-original plaintiff is to the order dated 21st April 2009 passed by the trial Court. By the impugned order, an application made by the petitioner at Exhibit 111 has been rejected by the trial Court. skt/- 2 43.wp.7673.09.o.k..sxw 3 The petitioner has filed a suit for partition and separate possession of her alleged 1/6th share in the suit property. In the plaint, the petitioner has set out the genealogy indicating the relationship between the parties. 1st respondent (1st defendant) is the widow of one Ramesh. The said Ramesh is stated to be a son of Krishnaji. The petitioner is the daughter of Ramesh and 1st respondent Shantabai. A reference has been made to the alleged will dated 21st July 2003 of the said Ramesh. In the plaint there is a challenge to the said will dated 21st July 2003 as well as to the alleged affidavit of the petitioner executed on 21st December 2005. 4 An application for amendment of the plaint at Exhibit 111 was made by the petitioner. In the said application, the petitioner has stated that when the suit was filed, the petitioner had not seen the original will. But the same was subsequently produced by the respondents. According to the petitioner, he found that the will does not bear signature of deceased Ramesh and some one else has signed the said Will. Reliance had placed on signature of the skt/- 3 43.wp.7673.09.o.k..sxw deceased Ramesh on a sale deed dated 9th November 2000. The amendment sought was for adding the certain averments in paragraph 4 of the plaint to the effect that the signature on the purported will was of someone else. It was sought to be contended that the petitioner is in possession of sale deed dated 9th November 2000 bearing genuine signature of Ramesh. It is stated that the said document has been produced alongwith the application. 5 While rejecting the application for amendment, the learned trial Judge relied upon an affidavit allegedly singed by the petitioner before the Executive Magistrate, at Malshiras in which the petitioner has allegedly accepted the execution of the will. The leaned trial Judge held that in view of principle of estoppel by conduct the amendment cannot be permitted. The learned trial Judge held that the proposed amendment sought will cause prejudice to the respondents-defendants. 6 The learned counsel appearing for the petitioner submitted that in the plaint there is already a challenge to the said Will of skt/- 4 43.wp.7673.09.o.k..sxw deceased Ramesh. He submitted that the affidavit relied upon by the trial Judge in the impugned order is also a subject matter in challenge in the plaint and therefore, on the basis of the said affidavit. the prayer for amendment could not have been defeated. The learned counsel appearing for the respondents supported the impugned judgment and order. He pointed out that in the plaint, there is no specific challenge to the affidavit dated 18th October 2005. 7 I have carefully considered the submissions. The perusal of the plaint shows that the petitioner has referred to the alleged will of deceased Ramesh and has stated that the said document is suspicious in nature. In paragraph 4 of the plaint, averments have been made by the petitioner that the document of will is suspicious and bogus. 8 In the plaint, there is a specific allegation that an affidavit was allegedly got executed from the petitioner by the respondent by skt/- 5 43.wp.7673.09.o.k..sxw representing to the petitioner that her signature was required for entering her name in the record of rights as the legal representative of her father. It appears that the reference in the plaint is to the same affidavit which is referred to paragraph 7 of the impugned order. The execution of the said affidavit by the petitioner is challenged in the plaint and therefore, on the basis of the said affidavit, the amendment could not have been refused. 9 In the application for amendment, the petitioner has stated that the original will was produced by the defendants and after perusal of the original Will, the petitioner realized that the signature was not of deceased Ramesh but of someone else. The petitioner wants to rely upon the alleged signature of the deceased on the sale deed which is also produced on record. 10 There was no reason to deny the amendment. The Court has to adopt a liberal approach while dealing with an application for amendment of the pleading. The impugned order is illegal and skt/- 6 43.wp.7673.09.o.k..sxw deserves to be quashed and set aside. The petitioner will have to be granted permission to seek opinion of a handwriting expert. Hence I pass the following order : (i) The impugned order dated 21st July 2009 is quashed and set aside. (ii) The application made by the petitioner at Exhibit 111 is hereby allowed. (iii) The amendment shall be carried out within a period of two weeks from the date on which the authenticated copy of this order is produced before the trial Court. (iv) The respondents shall be at liberty to file additional written statement to the amended plaint within eight weeks from the date on which a copy of the amended plaint is served upon them. (v) The writ petition is allowed in the above terms. (vi) It will be open for the petitioner to seek opinion of a handwriting expert by making an application to the trial Court for permitting the handwriting expert to take photographs of the admitted and disputed documents. It is skt/- 7 43.wp.7673.09.o.k..sxw made clear that it will be for the petitioner to obtain the opinion at his costs and to produce and prove the same before the trial Court. (A.S.OKA, J.)