Bombay High Court
Olga Rodrigues And 2 Ors vs Christopher Pinto And 15 Ors on 3 April, 2017
Bench: K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
CHAMBER SUMMONS NO.145 OF 2015
IN
TESTAMENTARY SUIT NO.70 OF 2012
IN
TESTAMENTARY PETITION NO.737 OF 2012
Olga Rodrigues & Others )....Applicants
IN THE MATTER BETWEEN :
Olga Rodrigues & Others )....Plaintiffs/Petitioners
V/s.
Christopher Pinto & Others )....Defendants/Respondents
----
Mr.Janak Dwarkadas, senior advocate a/w Mr.Zubin Behramkamdin
and Ms.Vidhya Nair i/by Madhusudan G.Gawde for the
applicants/plaintiffs.
Ms.Sonal a/w Mr.Shushrut Desai i/by M/s.Thakore Jariwala &
Associates for defendant nos.1 to 12 & 14 to 16.
Ms.Anita Castellino a/w Ms.Alisha Lambay, Ms.Akshata naik and
Ms.Sonali Sabane i/by Lambay and Co. for defendant no.13A.
----
CORAM : K.R.SHRIRAM,J
DATE : 3.4.2017
P.C.:-
1 This petition has been filed propounding a writing dated
29.6.2011 as the last will and testimony of one Sidney Albert Anthony
Pinto who died on 25.10.2011. 16 out of the 27 legal heirs listed in
the petition, have filed caveat. After the caveat was filed and
registered, the petition was converted into a suit under Rule 403 of
the Bombay High Court (O.S) Rules. Issues were framed on 2 nd
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March 2015. The plaintiffs filed affidavits in lieu of examination in
chief of 8 persons.
2 The first witness who was cross-examined was the
attesting witness Noshir Jehangir Sethna. Mr.Sethna is a partner of
the law firm Wadia Ghandy & Co. During cross-examination,
Mr.Sethna was confronted with the copy of the Will which was
annexed to the petition and the original Will which was lodged with
the Prothonotary & Senior Master. It would be useful to reproduce
question nos.35 to 40, question nos.54 & 55 and the answers thereto
of the evidence recorded on 2.7.2015.
"Q.35 : (Shown page 5 of Exh.P2 Green and also page 13 of
Exh.B to the petition)
Would you agree that the form of the initials and their location
on page 5 of Exh.P2 materially differ from those at page 13 of
Exh.B to the petition (internal page 5) ?
Ans. : I do agree that they are different and that there is a
discrepancy.
Q. 36 : Would you agree that the initials that appear on internal
pages 1 to 16 materially differ from the corresponding pages of
Exh.B to the petition ?
Ans. : I agree that they do differ. I am unable to explain the
discrepancy.
Q.37 : Would you also agree that there is a discrepancy in the
handwritten date "29th" and the word "June" between Exh.P2
and Exh.B to the petition ?
Ans. : Yes, I agree that there is discrepancy.
Witness volunteers : It is my practice to execute Wills in
duplicate. One of these is on ledger paper, which is termed as
the `original'. The other is on plain white paper. The idea is to
have a stand-by document in the event that the `original' is lost
or misplaced. It appears that Exh.B to the petition is a copy of
that white paper duplicate. This is why there are discrepancies.
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Q.38 : I put it to you that the three signatures on internal page
16 of Exh.P2 and the corresponding page of Exh.B to the
petition are also different. Would you agree ?
Ans. : Yes, they do appear to be different.
P.C.:-
For clarity, I must note that Exh.P2 is an original will on ledger
paper. Ex.B to the petition is a true copy of a will, and is said to
be a true copy of Ex.P2. What has been put to the witness and
accepted by him is that there are material differences in the
signatures, initials and handwriting between the document
annexed to the petition and the document marked in evidence.
At this stage, I must note that I have given the petitioners the
option of withdrawing the petition. I have made it clear that this
option may not be available to them hereafter, in view of today's
cross-examination, and particularly if the cross-examination of
this particular witness is completed today, as I fully intend to
have done. Mr.Behramkamdin, learned Counsel for the
plaintiffs, says that he has no instructions that enable him to
withdraw the petition. Given the answers elicited in cross-
examination, especially the preceding few, I am not prepared to
adjourn the cross-examination and intend to complete it today.
Q.39 : Would you also agree that there are discrepancies in the
handwritten portion at page 16 of Exh.P2 and the corresponding
page Exh.B to the petition, namely, your name, the word
"Solicitor", the name "Sandeep Narayan Pavaskar", and the
words "Accountant Wadia Ghandy & Co." ?
Ans. : Yes.
Q.40 : (Shown the docket of Exh.P2 as also the docket between
pages 24 and 25 of the petition.)
Would you agree that these two dockets also differ from each
other at the top i.e., the date as also the handwritten marking at
the foot ?
Ans. : That is correct.
Witness volunteers : This is because they belong to two
separate documents.
Q.54 : (Shown Evidence Affidavit.)
Mr.Sethna, where in this Affidavit do you refer to the existence
of a will made on white paper ?
Ans. : I have not mentioned it anywhere.
Q.55 : Is it mentioned anywhere in the Affidavit filed along with
the petition ?
Ans. : There is no mention in that Affidavit either."
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3 After the evidence of Mr.Sethna was closed, the plaintiffs
with the leave of the court filed the affidavit dated 18.8.2015 of
plaintiff no.3 in lieu of examination-in-chief and Sandip Pavaskar the
other attesting witness dated 31.8.2015. It is the case of the plaintiffs
that the deceased had executed three wills, the first one dated 11 th
June 2009, the second dated 17th March, 2011 and the third which is
the subject of this petition dated 29th June 2011. In his affidavit in
lieu of examination in chief, the plaintiff no.3 has stated as under :-
In respect of the alleged Will dated 11th June 2009 that "the
said Will was finalized and two prints of the same were taken
(one on green paper and one on white paper). On 11 th June
2009, the deceased executed the Will (by signing on both the
green and white paper Will) in Mr.Noshir Sethna's chamber. I
say that I had accompanied him to the office of M/s.Wadia
Ghandy & Co."
.................. In respect of the alleged Will dated 17th March 2011
"On 17th March 2011, Mr.Sethna and Mr.Pawaskar came to the
deceased's flat for execution of the said Will. I was present with
the deceased at this time. The deceased was handed over two
copies of the Will i.e., one on ledger paper and the other on
white paper. This Will (on ledger paper and white paper) was
execute on 17th March 2011. Even for execution of Will dated
17th March 2011. Mr.Sethna along with Mr.Sandeep Pawaskar
were the attesting witnesses."
...................In respect of the alleged Will dated 29th June 2011 :
....................Mr.Sethna and Mr.Pawaskar came to the
deceased's flat. When they came to the flat, the deceased,
Joanna and I were present. The deceased was handed over
both the ledger paper and white copy of the final Will and the
draft Will to read. After reading the draft Will he wrote on it that
it was acceptable to him and signed the same. The deceased
then read both, the Will on green paper and the Will on white
paper and then appended his initials on both the copies of the
Will around the same time. He then appended his signature on
the last pages of both the copies of the Will around the same
time. I say that the execution of the Will was done in presence
of Mr.Sethna, Mr.Pawaskar, Joanna and myself."
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4. Mr.Sandeep Narayan Pawaskar the other attesting
witness of the alleged Will dated 29 th June 2011 has stated in his
affidavit in lieu of examination in chief dated 31st August 2015 that -
"On 29th June 2011, I went to Mr.Sethna's chamber
soon after lunch. Mr.Sethna took two print outs of the will from
his computer, one on ledger paper and the second one on white
paper. Thereafter, Mr.Sethna and I went to Sidney Pinto's flat
at Cuffe Parade with the two printouts and a draft Will. We were
taken there in Mr.Pinto's car and Percy D'souza had come to
our office to accompany us in the car."
"Thereafter, Mr.Sethna handed over both the
copies of the Will i.e., the Will on ledger paper (hereinafter
referred to as "the green paper Will" and the Will on white paper
(hereinafter referred to as "the white paper Will") to Sidney
Pinto. He also handed over the draft Will. Mr.Pinto then read
the green paper Will and white paper Will and the draft which he
had sent to Mr.Sethna."
"...................I say that the green paper Will and the white paper
Will were then executed by Sidney Pinto who signed on the last
page of both Wills and put his initials on every page of the
green paper Will and white paper Will around the same time in
the presence of Mr.Sethna, Percy D'souza,Joanna D'souza and
myself and all of us did see Mr.Sydney Pinto sign and place his
initials as stated above. The date "29th June" was inserted by
Sidney Pinto on the green paper Will and the white paper will in
his own handwriting. I say that it is a practice followed by
Wadia Ghandy & Co. that while executing a Will the testator
puts his initials followed by Mr.Sethna and then the second
attesting witness. Accordingly, Mr.Sethna and myself attested
the green paper Will and the white paper Will by affixing our
signatures on the last page of the green paper Will and the
white paper Will. The attestation by Mr.Sethna and myself was
done in the presence of Sidney Pinto who saw us signing
immediately after he executed the green paper Will and the
white paper Will."
5 The defendant no.13A took out a Notice of Motion (L)
No.167 of 2015 to delete portion from the affidavit in lieu of
examination-in-chief of plaintiff no.3 and Mr.Sandip Narayan
Pavaskar relating to existence/execution of a so-called white paper
Will as being inadmissible due to lack of pleadings in respect thereof.
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It is at this stage, the plaintiffs have taken out this
chamber summons for leave to amend the petition. The proposed
amendment is as under :-
"3A The deceased on 29th June 2011 had executed his last will
in duplicate i.e., one on green ledger paper as well as the
duplicate on white paper on the same day and at the same time
in presence of the same attesting witnesses. The duplicate
Wills are however in law, one Will and are therefore, referred to
hreinafter as "The Will". Both the print outs of the Will were
taken from the same computer. Both the print outs of the Will
were kept in the custody of Wadia Ghandy & Co. after the
execution thereof at the request of the testator. Due to
inadvertence, a copy of the duplicate of the will executed on
white paper was annexed as Exhibit-B to the petition at the time
when the petition was filed. In order to dispel any doubts that
the will had not been revoked a copy of the Will executed on
green ledger paper and deposited with the Prothonotary &
Senior Master along with the Executors' Oath is hereto annexed
as Exhibit B-1".
6 Ms.Sonal appearing for defendant nos.1 to 12 and 14 to
16 and Ms.Castellino appearing for defendant no.13A strongly
opposed the chamber summons. Ms.Sonal submitted that
(a) under order 6 rule 17, once the trial has began, unless the
court comes to conclusion that in spite of due diligence before the
commencement of trial, the amendment should not be permitted and
the applicant has shown no evidence which would help the court to
come to such a conclusion ;
(b) Plaintiff no.3 who filed the petition as the executor was
present according to his affidavit when the alleged Will was executed
but still he chose not to mention about the so-called Will being
executed in duplicate or in counter parts ;
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(c) Wadia Gandhy & Co. was the advocate through whom this
petition was filed and hence, Mr.Sethna being a partner of the said
firm ought to have known that the Will was executed in duplicate or in
counter parts and drafted the petition accordingly;
(d) Now to say that they have received legal opinion that
this has to be mentioned in the petition is no ground for allowing the
amendment ;
(e) the proposed amendment changes the nature of the case
even though the contents of the Will in the ledger paper and white
paper are identical ;
(f) Amendment application is taken out with malafide
intention to undo damage caused to the plaintiffs' case and the cross-
examination of Mr.Sethna in response to question nos.35 to 40 ;
(g) It is an abuse of process of the court because the
chamber summons has been taken out only after defendant 13A took
out the Notice of Motion ;
(h) This chamber summons has been taken out only after the
evidence of the plaintiffs' 3rd witness and the other attesting witness
was filed and the plaintiffs could have taken out this chamber
summons soon after the evidence of Mr.Sethna was recorded on
2.7.2015.
7 Ms.Castellino adopted the submissions made by
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Ms.Sonal. In addition Ms.Castellino also added that (a) there was
gross delay in taking out this application which was done only after
defendant no.13A filed the Notice of Motion and hence, it was
malafide and abuse of process; (b) ignorance of law is not an excuse
and the attesting witness was a Solicitor.
It is also submitted that Mr.Sethna was also an attesting
witness and ought to have mentioned in his affidavit in lieu of
examination-in-chief and being a Solicitor, should have ensured that
petition should reflect correct facts. These are only after thoughts,
only being introduced to undo the damage in Mr.Sethna's cross-
examination.
8 Order 6 Rule 17 of the Code of Civil Procedure Code
reads as under :-
"Amendment of pleadings - The Court may at any
stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such
terms as may be just, and all such amendments shall
be made as may be necessary for the purpose of
determining the real questions in controversy
between the parties :
Provided that no application for
amendment shall be allowed after the trial has
commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party
could not have raised the matter before the
commencement of trial."
9 Admittedly, the trial has commenced. The proviso is
couched in a mandatory form. The courts can allow an application
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for amendment after the trial has begun only if the conditions
precedent therefor, are satisfied, i.e., must come to a conclusion that
in spite of due diligence the party could not have raised the matter
before the commencement of the trial.
10 The words "due diligence" have not been defined in the
Code. As per Black's Law Dictionary a `diligence' means a continual
effort to accomplish something, care, caution the attention and care
required from a person in a given situation. `Due diligence' would
also mean the diligence reasonably expected from, and ordinarily
exercised by, a person who seeks to satisfy a legal requirement or to
discharge a legal obligation. It also means reasonable diligence,
such diligence as prudent man would exercise in the conduct of his
own affairs.
11 Ms.Sonal relied upon the following judgments to buttress
the case. Ms.Sonal submitted relying upon 1Chander Kanta Bansal
Vs. Rajinder Singh Anand that delay and latches on the part of the
parties would also be relevant factors for allowing or dis-allowing
application for amendment of the plaintiffs. This judgment was relied
upon even to explain the meaning of due diligence.
Vidyabai and Ors. Vs. Padmalatha and Anr. was relied
1 (2008) 5 Supreme Court Cases 117
2 (2009) 2 Supreme Court Cases 409
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upon to submit that the court's jurisdiction to allow such an
application was taken away unless condition precedent therefor was
satisfied when the trial has commenced.
J.Samuel and ors. V/s. Gattu Mahesh & Ors. to submit
that due diligence is an idea that reasonable investigation is
necessary before certain kinds of relief are requested.
Mrs.Sunita Devendra Deshprabhu V/s. Sitadevi
Deshprabhu to submit that legal opinion obtained later cannot be a
ground for seeking an amendment after the trial has begun.
12 Mr.Dwarkadas relied upon the judgment in 5Dinkar s/o
Venka Munde & Ors. Vs. Uttam s/o Rajaram Munde & Ors. to
submit that the court should allow all amendments that may be
necessary to determine the real question and controversy between
the parties provided it does not cause prejudice or injustice to the
other party. Mr.Dwarkadas also relied upon Rajesh Kumar
Aggarwal & Ors. Vs. K.K.Modi & Ors where Paragraph nos.15, 16,
17, 18 & 19 read as under :-
"15. The object of the rule is that the courts should try the
merits of the case that come before them and should,
consequently allow all amendments that may be necessary
for determining the real question in controversy between the
parties provided it does not cause injustice or prejudice to the
other side.
3 (2012) 2 Supreme Court Cases 300
4 2016 SCC On Line Bom.9296
5 2013(9) LJSOFT 245
6 (2006) 4 Supreme Court Cases 385
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16. Order 6 Rule 17 consists of two parts. Whereas the first
part is discretionary (may) and leaves it to the court to order
amendment of pleading. The second part is imperative (shall)
and enjoins the court to allow all amendments which are
necessary for the purpose of determining the real question in
controversy between the parties.
17. In our view, since the cause of action arose during the
pendency of the suit, proposed amendment ought to have
been granted because the basic structure of the suit has not
changed and that there was merely change in the nature of
relief claimed. We fail to understand if it is permissible for the
appellants to file an independent suit, why the same relief
which could be prayed for in the new suit cannot be permitted
to be incorporated in the pending suit.
18. As discussed above, the real controversy test is the basic
or cardinal test and it is the primary duty of the court to decide
whether such an amendment is necessary to decide the real
dispute between the parties. If it is the amendment will be
allowed ; if it is not, the amendment will be refused. On the
contrary, the learned Judges of the High Court without
deciding whether such an amendment is necessary have
expressed certain opinions and entered into a discussion on
merits of the amendment. In cases like this, the court should
also take notice of subsequent events in order to shrten the
litigation, to preserve and safeguard the rights of both parties
and to subserve the ends of justice. It is settled by a catena
of decisions of this Court that the rule of amendment is
essentially a rule of justice, equity and good conscience and
the power of amendment should be exercised in the larger
interest of doing full and complete justice to the parties before
the court.
19. While considering whether an application for amendment
should or should not be allowed, the court should not go into
the correctness or falsity of the case in the amendment.
Likewise it should not record a finding on the merits of the
amendment and the merits of the amendment sought to be
incorporated by way of amendment are not to be adjudged at
the stage of allowing the prayer for amendment. This cardinal
principle has not been followed by the High Court in the
instant case."
The object of Order 6 Rule 17 is that the courts should try the
merits of the case that come before them and should,
consequently, allow all amendments that may be necessary
for determining the real question in controversy between the
parties provided it does not cause injustice or prejudice to the
other side. The rule of amendment is essentially a rule of
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justice, equity and good conscience and the power of
amendment should be exercised in the larger interest of doing
full and complete justice to the parties before the court. The
court always gives leave to amend the pleadings of a party
unless it is satisfied that the party applying was acting mala
fide. The amendment to pleading should be liberally allowed
since procedural obstacles ought not to impede the
dispensation of justice. The court should also take notice of
subsequent events in order to shorten the litigation, to
preserve and safeguard the rights of both parties and to
subserve the ends of justice.
13 Mr.Dwarkadas also submitted relying upon these
judgments that if the relief sought by way of amendment could also
be claimed by way of a separate suit, to avoid multiplicity of
proceedings, the court should, in the interest of justice, permit
amendment even if trial has begun. Mr.Dwarkadas submitted that the
rule of amendment is essentially a rule of justice, equity and good
conscience and the power of amendment should be exercised in the
larger interest of doing full and complete justice to the parties before
the court. Mr.Dwarkadas also submitted that there was no malafide
intention in applying for amendment.
14 The reason for which the amendment application became
necessary is because according to the plaintiffs factually the will was
prepared in 2 originals or two counter parts. The applicants have
filed further affidavit dated 9.2.2017 of Mr. Noshir J.Sethna, the
attesting witness whose evidence is concluded, in support of this
chamber summons. In the said affidavit Mr.Sethna has stated :-
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"3. In or about 2008, I was approached by Sidney Pinto in my
professional capacity to prepare his Will. From that time on he
executed three Wills, the first one on 11 th June 2009, the second
one on 17th March 2011 and the last one was on 29 th June 2011.
All three Wills were executed by him in the presence of my firm's
Accountant Mr.Sandeep Narayan Pawaskar and myself and the
same were attested by us. I am not aware whether he had made
any other Will or Wills prior to June 2009 ;
4. Prior to the preparation and execution of the Will of 11 th June
2009, Sidney Pinto accompanied by Percy D'souza had come to
my office to discuss his proposed Will. He had brought with him
a typed draft which he discussed with me and requested me to
furnish a revised draft in accordance with the discussion which
he had with me. Accordingly, I prepared a draft which Sidney
Pinto went through. He made some changes on the draft in his
own hand and on the basis of the changes, a final draft was
prepared. The said Will was finalised and printed on ledger
paper on 11th June 2009 and the same was executed by Sidney
Pinto and attested by my accountant Sandeep Narayan
Pawaskar and myself at my office.
5. Thereafter, in or about February 2011, Sidney Pinto informed
me over the telephone that he wished to make some changes in
his Will of June 2009 and that he would be sending me a typed
draft incorporating the changs which he wished to make. I
accordingly prepared a fair copy and on 17th March 2011, Sidney
Pinto executed the said Will in presence of my accountant the
said Sandeep Narayan Pawaskar and myself at his residence.
6. In June 2011, Sidney Pinto sent Percy D'Souza to my office
with a copy of his Will of 17 th March 2011 containing some
modifications therein indicated in red type with a request that I
should prepare a fresh Will on those lines. Thereupon, a fresh
Will was prepared as per the instructions given by Sidney Pinto
(hereinafter referred to as "the Will") and on 29 th June 2011 I
attended Sidney Pinto's flat at Cuffe Parade together with our
Accountant Mr.Sandeep Narayan Pawaskar, where Sidney Pinto
executed the Will in our presence and we attested his signature
thereto in the manner specified hereinbelow."
15 Mr.Sethna has also stated that after his cross-
examination, he consulted a senior counsel and sought his opinion
who advised that if a Will is executed in duplicate, both wills have to
be lodged in the court to rebut the presumption which would
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otherwise be drawn that the testator may have destroyed one of the
counter parts with the intention of revoking the wills and it was for
that reason it was necessary to produce the original white paper will
before this court. Mr.Dwarkadas relied upon part B, `Duplicate wills'
on page-127 of Williams and Mortimer on Executors Administrators
and Probate 128 (1970 edition) and Paruck- The Indian Succession
Act 1925 (11th edition) page-38, to submit that when the will is
executed in duplicate, both the parts must be lodged with the
petition for probate and if one is lost or not lodged, there could be a
presumption that the testator has revoked the other part which
means the entire petition will fall flat. Mr.Dwarkadas submitted that in
the interest of justice the amendment application should be granted
because no prejudice would be caused to the defendants.
Mr.Dwarkadas submitted that there are no 2 separate wills but only
one will which is prepared in duplicate or in counter parts and either
they go together or fall together. It was also submitted that the
objections raised in the affidavit in support of the caveat are that the
Will has not been validly executed as required under Section 63 of
the Indian Succession Act, the testator did not possess sound
disposing mind while executing the will and the document is vitiated
by fraud and therefore, even if petition is allowed to be amended, the
objections raised in the caveat cannot change or vary.
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16 It is settled law that while considering the application
under order 6 rule17 of the Code of Civil Procedure, the courts do not
go into the correctness or falsity of the case in the amendment. What
the court only looks at is whether the amendment is necessary for
determining the real question in controversy between the parties
provided it does not prejudice or cause injustice to the other side.
Rule of amendment is essentially a rule of justice, equity and good
conscience and power of amendment should be exercised in the
larger interest of doing full and complete justice to the parties before
the court.
17 The witness Noshir J.Sethna during his cross-
examination, in response to question nos.35, 36 & 37, did agree that
there were some discrepancies between the signature in the photo
copy of the will annexed to the petition and the original Will. At the
same time after giving the answer to question no.37 the witness has
volunteered "It is my practice to execute Wills in duplicate. One of
these is on ledger paper, which is termed as the `original'. The other
is on plain white paper. The idea is to have a stand-by document in
the event that the `original' is lost or misplaced. It appears that Exh.B
to the petition is a copy of that white paper duplicate. This is why
there are discrepancies."
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18 In the further affidavit filed in support of the chamber
summons the witness has explained that he was under a genuine
and bonafide belief and his understanding was the law required only
one part of the duplicate will to be filed and proved for grant of
probate. It was for this reason namely on account of this
understanding of the law, under which he was mistakenly labouring
under, he directed his firm to file this probate petition along with the
green paper will as being the last will and testament of the deceased.
He has also stated that he was also not aware that it would have
been prudent and proper to produce both the counter parts of the will
and if not done a rebuttable presumption may arise that the testator
may have destroyed one of the counter parts with the intention of
revoking the will. The subsequent witnesses, i.e., the other attesting
witness and the plaintiff no.3 have both mentioned about the will
being executed in duplicate in their respective affidavits in lieu of
examination in chief. The petition does not say so because it has
been explained by Mr.Sethna that he was under a mistaken belief
that only one part of the duplicate will was required to be filed and
proved for grant of probate. Mr.Sethna has also stated that the will
was prepared in duplicate, i.e., one part on ledger paper and other
part on white paper and both the counter parts were kept in the
custody of Wadia Ghandy & Co. and that entry was made in two
separate registers maintained by Wadia Ghandy & Co. The
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Registers have also been produced through the other witnesses. It is
also not disputed that both the documents are identical though the
defendants dispute that they were validly executed. If the
amendment is not permitted, there is a likelihood, as the plaintiffs
apprehend, that the court may strike off the evidence of the other
attesting witness and plaintiff no.3, being beyond the pleadings. At
the same time, if the fact that alleged will was executed in duplicate is
not brought on record a rebuttable presumption may arise or at least
it will be argued, even though the white paper will and ledger-green
paper will, both, are in the custody of the court, that the testator may
have destroyed one of the counter parts with the intention of revoking
the will. Therefore, if the amendment is not allowed, in my view, a
greater prejudice would be caused to the plaintiffs than to the
defendants.
19 By allowing the amendment, no prejudice would be
caused to the defendants because if the court considers it necessary,
on an application or on its own, may recall Mr.Noshir Sethna to give
further evidence and he could be cross-examined. In any event, the
defendants also will get their turn to prove that the testator was not of
sound disposing mind while executing the Will and that the Will was
prepared by fraud or is fraudulent. If defendants succeed, grant of
probate will be refused. We must keep in mind that the Will is one,
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18 CST145.15-43
they are not two separate wills. Of course, a situation may arise as
to which Will was executed last, but in my view, that also is purely
academic because contents of both the green paper will and white
paper will are identical and both were executed on the same day.
20 The explanation given in the further affidavit dated
9.2.2017, in my view, satisfies the prerequisite `due diligence'.
One of the main reason I am persuaded to come to this
conclusion is because during the cross-examination, Mr.Sethna, after
answering Q.37 in cross-examination, on his own volunteered and
mentioned that Will was executed in duplicate. It was not that he was
tutored to say that. He had, after agreeing that there was some
discrepancy, clarified the position. Yes, one may ask should
Mr.Sethna not have exercised more diligence or sought legal opinion
before he filed the petition. He would have, if he had a doubt in his
mind. But he thought one original was enough. If he could be under
that belief, plaintiff no.3 cannot be faulted to have accepted what
Mr.Sethna advised. My conscience does not permit me to penalize a
party for the fault of his lawyer. Further, the proposed amendment
does not change the nature of the case. I do not have anything to
label the proposed amendment as malafide or an abuse of process.
Chamber summons was not taken immediately but still no prejudice
is caused to the defendants. It is all well to say that it is the same
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19 CST145.15-43
Solicitor whose firm filed the petition etc. but I would only look at it
more as a genuine mistake that the petition or Mr.Sethna's affidavit of
evidence did not disclose that the alleged will was executed in
duplicate.
21 While considering precedents, it must be kept in mind that
every judgment must be read as applicable to the particular facts
proved, or assumed to be proved. A case is only an authority for what
it actually decides. Each case depends on its own facts and a close
similarity between one case and another is not enough because even
a single significant detail may alter the entire aspect. The ratio of any
decision must be understood on the background of the facts of that
case. With this being the law on precedents, the judgments cited by
Ms.Sonal, in my view, do not aid the defendants.
In Chander Kanta Bansal (supra) relied upon by
defendants, the court was considering an application for amending
the written statement which was made more than 18 years after the
suit was filed by the plaintiffs to frustrate the claim of the plaintiffs. In
that case the trial had been completed and after the final arguments,
when the defendant came to know that she was going to lose her
case, the defendant was trying to change her stance by filing the
application to amend the written statement.
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20 CST145.15-43
In Vidyabai and Ors. (supra) relied upon by the
defendants, it was a suit for specific performance and an application
for amendment of the written statement was filed and the trial court
dismissed the application holding that an entirely new case was
sought to be made out and that the applicants had no knowledge of
the facts stated therein was rejected. The trial court had made it
evident that the applicant had not been able to fulfill the precondition
of `due diligence'. The apex court thereafter settled the principle that
after the trial has begun, the court if it has to grant the amendment
has to come to a conclusion that in spite of due diligence, parties
could not have raised the matter before the commencement of the
trial.
In the case of J.Samuel (supra) relied upon by defendants,
the application for amendment was filed after the arguments were
concluded and the matter was posted for judgment. In that case
specific averments as contemplated under section 16-(C) of the
Specific Relief Act were missing and the suit filed was for specific
performance. After the matter was reserved for judgment, an
application was filed to amend the plaint and the proposed
amendment was that the plaintiff was ready and willing to perform. It
was for that reason the court did not grant the amendment
application.
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21 CST145.15-43
So far as Sunita Deshprabhu (supra) the facts are also not
similar to the facts in the present case.
22 As regards the delay, if the plaintiffs had taken out the
application soon after cross-examination of Mr.Sethna, the order of
this court passed on 11.8.2015, where the court in para-6 stated
"Things might have been very different had the plaintiffs, following
the cross-examination of Mr.Sethna, sought an amendment to the
petition to undo the effect of the cross-examination of Mr.Sethna.
That might conceivably be held to be an abuse of the process of the
court" would have come in the way. This application was taken out in
view of the application taken out by defendant no.13A. I find nothing
wrong with that and in any event no prejudice is caused to the
defendants. At the most it could be termed inconvenience.
23 If the amendment is not permitted, that would also result in
multiplicity of proceedings. It is not impossible for the plaintiffs to
withdraw the petition and file a fresh petition mentioning therein the
will was executed in duplicate one in white paper and other on green
paper. If that can be done why should the plaintiffs not be allowed to
amend this petition, to avoid multiplicity of proceedings to bring the
same facts on record.
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22 CST145.15-43
24 Moreover, the amendment sought does not constitutionally
or fundamentally change the nature of the proceedings and is
essential/imperative for proper and effective adjudication of the case.
Rule of amendment, as stated earlier, is essentially a rule of justice,
equity and good conscience and power of amendment should be
exercised with the larger interest of doing full and complete justice to
the parties before the court.
25 In the circumstances, Chamber summons is allowed in
terms of prayer clause-(a) with costs.
The applicants to pay a sum of Rs.25,000/- as costs to the
advocate on records for defendant nos.1 to 12 and 14 to 16 and
Rs.25,000/- to the advocate on record for defendant no.13A. These
amounts to be paid in four weeks.
Amendment to be carried out and amended petition to be
served within 4 weeks.
(K.R.SHRIRAM,J)
KJ
