IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 16550 of 2009(O) --------------------------------------- OS.NO.59/2005 OF MUNSIFF'S COURT, MAVELIKKARA. .................... PETITIONER: ------------------- DEVIKAMANI, VALLAT HOUSE, CHETTIKULANGARA MURI. BY ADVS. MR.RINNY STEPHEN CHAMAPARAMPIL, SMT.ASHA ELIZABETH MATHEW. RESPONDENTS: ------------------------ 1. SAROJINIAMM, VALLAT HOUSE, 35 TH MILE MUNDAKAYAM EAST.P.O. 2. JESNEY SAROJ, D/O. SAROJINAMMA, DO-DO- 3. BINI SAROJ, D/O. SAROJINIAMMA, DO-DO- 4. SANJU SAROJ, S/O. SAROJINIAMMA DO-DO- 5. DIVAKARAN, VALLAT HOUSE, CHETTIKULANGARA.P.O., KANNAMANGALAM VILLAGE, MAVELIKKARA. 6. V.R.JESVANTH LAL, VALLAT HOUSE, 35TH MILE MUNDAKAYAM EAST.P.O. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.16550 of 2009 - O --------------------------------- Dated this the 16th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To set aside Ext.P3 order dated 25/09/2008 in I.A.No.1912/2008 in O.S.No.59/2005 of the Munsiff Court, Mavelikkara. ii) To allow I.A.NO.1912/2008 in O.S.No.59/2005 of the Munsiff Court, Mavelikkara.” 2. Petitioner is the plaintiff in O.S.No.59/2005 on the file of the Munsiff Court, Mavelikkara. Suit was one for declaration that the petitioner/plaintiff is the adopted daughter of one Kunjupanickan and also for injunction restraining the defendants/respondent in the writ petition from creating or executing any documents with respect to the plaint schedule properties. The properties scheduled in the plaint admittedly belonged to deceased Kunjupanickan and the suit claim was laid by the plaintiff setting forth a case that she is his adopted daughter. Defendants resisted the suit claim contending that deceased Kunjupanickan had executed a will in respect of his properties and under the bequest made in that will they have obtained title over W.P.(C).No.16550 of 2009 - O 2 the scheduled properties. Ext.P1 is the copy of the plaint in the above suit. Petitioner/plaintiff moved an application under Order VI Rule 17 CPC to amend the plaint so as to incorporate an additional relief that the will alleged to have been executed by the deceased Kunjupanickan is not genuine and binding on her. Necessary allegations in support of the relief was also sought to be incorporated in the body of the plaint, in the amendment application. The defendants resisted the application by filing written objections. Ext.P2 is the copy of the amendment application. Learned Munsiff after hearing both sides dismissed that application for amendment. Ext.P3 is the copy of that order. Impeaching the propriety and correctness of Ext.P3 order, petitioner/plaintiff has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. 4. The amendment application has been dismissed solely on the ground that it is belated without adverting to the question whether such amendment was required to resolve the real controversy arising between the parties in the suit, is the submission of the learned counsel. It is further submitted that even if the application is belated, if the amendment sought for is found W.P.(C).No.16550 of 2009 - O 3 essential for entering a fair decision in the case it should have been allowed by the court. I have perused Ext.P3 order with reference to the submissions made by the learned counsel. Plaintiff had sought for a declaration of title over the properties claiming that she is the adopted daughter of deceased Kunjupanickan. To sustain the declaration sought for she has first of all prove that she had been lawfully adopted by late Kunjupanickan. Status of the plaintiff as adopted daughter, which is the basis for setting forth her title over the suit properties, is disputed by the defendants. Further they have raised a contention that late Kunjupanickan had executed a will bequeathing his properties in their favour. Whether or not the plaintiff raise an allegation in the suit to dispute the genuineness of the will, for accepting it in evidence the mandate under Section 68 of the Evidence Act has to be complied by the defendants. So, for resolving the controversy in the suit, whether the plaintiff has to be granted permission to amend the plaint to incorporate allegations to impeach the will set up by the defendants, emerge for consideration. The burden to prove the will rests only on the defendants, whether or not any allegation to impeach the will is made by the plaintiff. If they want to sustain the claim on the basis of the will the defendants are bound to prove it in accordance with W.P.(C).No.16550 of 2009 - O 4 the mandatory provisions under law. So, prima facie, the amendment sought for, which is stated to be necessary for resolving the real controversy in the suit, appears to be unnecessary. Further more, the learned Munsiff has taken note that will and the claim thereunder was raised in the written statement filed much earlier, and the case was previously listed for trial on 21.1.2008. On account of the default of the plaintiff to prosecute the suit it was then dismissed for default. Later, suit was restored and again listed for trial on 28.5.2008. It is at that stage, the proposed amendment was moved by the plaintiff for a declaration that the will is null and void. I do not find any impropriety or illegality in the order passed by the learned Munsiff declining the request for amendment of the plaint holding that it was highly belated. The writ petition is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-