JUDGMENT S.P. Mehrotra, J.
Order on Civil Misc. Amendment Application No. 87314 of 2005
1. The aforesaid application has been filed by the petitioner, interalia, praying for being permitted to carry-out the necessary amendments in the Testamentary Petition, as indicated in the affidavit accompanying the aforesaid Amendment Application. The aforesaid application is supported by an affidavit sworn by Brij Gopal Mishra on 12.4.2005.
2. It is, interalia, stated in the said affidavit that in order to give details of relations to the late Mira Dhar with the claimant and with other persons and to each other so that better picture of the case can be placed before this Court for fair adjudication, the amendments indicated in the said affidavit are being sought for.
3. A perusal of the said affidavit shows that while paragraphs 3,4,5, and 7 of the said affidavit seek amendments in the Testamentary Petition, paragraph 6 of the said affidavit seeks amendment in Civil Misc. Application No...of 2005 filed separately under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 alongwith the Testamentary Petition.
4. In my view, it was not open to the petitioner to file one Amendment Application seeking amendments in the Testamentary Petition as well as amendments in Civil Misc. Application No......of 2005 filed separately alongwith the Testamentary Petition.
5. In the circumstances, the aforesaid Amendment Application is being considered only in regard to the amendments sought in the Testamentary Petition.
6. The amendments, as mentioned in paragraph 6 of the said affidavit, sought in the aforesaid Civil Misc. Application No....of 2005 filed separately alongwith the Testamentary Petition are not being considered. It will, however, be open to the petitioner, if so advised, to file appropriate application in this regard.
7. I have heard Shri Rajesh Singh, learned counsel for the petitioner.
8. It is submitted by Shri Rajesh Singh, learned counsel for the petitioner that due to inadvertence, various relevant averments could not be made in the Testamentary Petition, and the same are being sought to be added in the Testamentary Petition by the aforesaid Amendment Application. It is further submitted that due to inadvertence, full and complete averments as per the requirements of Section 317 of the Indian Succession Act, 1925 could not be made in paragraph 7 of the Testamentary Petition, and in the circumstances, amendments are being sought in the said paragraph 7 of the Testamentary Petition.
9. It is further submitted by Shri Rajesh Singh, learned counsel for the petitioner that the amendments sought to be made in the Testamentary Petition are necessary for proper and fair adjudication of the case.
10. I have considered the submissions made by Shri Rajesh Singh, learned counsel for the petitioner, and perused the averments made in the aforesaid Amendment Application and its accompanying affidavit.
11. It is noteworthy that the Testamentary Petition is still under consideration as a fresh case, and no notice has so far been issued on the Testamentary Petition.
12. In the circumstances, without going into the question as to whether the amendments sought to be made as indicated in paragraphs 3, 4, 5 and 7 of the affidavit accompanying the Amendment Application, are necessary for fair adjudication of the case, and without prejudice to the right of the parties concerned including next-of-kins mentioned in paragraph 4 of the Testamentary Petition, to raise such objections, as are open to them, regarding relevance or otherwise of the amendments sought to be made by the said amendments, I am of the opinion that it is in the interest of justice that the aforesaid Amendment Application be allowed to the extent that the amendments sought to be made as indicated in paragraphs 3, 4, 5 and 7 of the affidavit accompanying the Amendment Application may be permitted to be made in the Testamentary Petition.
13. In view of the aforesaid discussion, and subject to the observations made above, the Amendment Application is allowed to the extent that the amendments indicated in paragraphs 3, 4, 5 and 7 of the affidavit accompanying the Amendment Application are permitted to be made in the Testamentary Petition. Let necessary amendments be made within a week.
14. List this case on 13.5.2005.