Rakesh Kumar Jain, J. - (1.) THE petitioners had earlier filed CR No. 5234 of 2013 to challenge two orders dated 02.07.2013, dismissing their application filed under Order 14 Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") and dated 03.08.2013, dismissing their another application filed under Order 6 Rule 17 of the CPC for amendment of the plaint. The said revision petition was withdrawn on 27.11.2013 with liberty to challenge the aforesaid orders separately. Consequently, the present revision petition has been filed only to challenge the order dated 03.08.2013, dismissing the application of the petitioners for amendment of the plaint. In brief, the petitioners have filed the suit for declaration that the gift deed bearing 835/1 dated 22.06.2004 is illegal and the mutation No. 2866 entered and sanctioned on the basis of the aforesaid gift deed is also illegal and that the plaintiffs and defendant No. 1 are joint owners in possession of 7/9th share in the total land. They also prayed for consequential relief of permanent injunction to restrain defendant No. 1 from alienating 1/9th share of Smt. Sita Devi under the garb of the gift deed under challenge and also for restraining defendant No. 1 from delivering possession of khasra Nos. 23min (2 -0) and 24min (7 -0) to defendant No. 2 and further restraining defendant No. 2 from dispossessing the plaintiffs from khasra Nos. 23min (2 -0) and 24min (7 -0).
(2.) THE plaintiffs filed an application for amendment of the plaint alleging that the defendant No. 1 has disclosed for the first time in the written statement that Sita Devi had also executed a Will in his favour, which has been specifically denied by them, but due to oversight, issue in respect of the said Will could not be framed and the application moved for framing of that issue was dismissed on the ground that the said Will has not been challenged in the suit, therefore, sub -para VII was sought to be added in para 5 of the plaint, which reads as under: - "5 -VII That the defendant No. 1 did not disclose that he has fabricated the Will dated 12 July 1994 from Smt. Sita Devi i.e. mother of the parties and has sanctioned the mutation No. 3106 on the basis of the alleged fabricated Will. The alleged will is forged and fabricated documents with the connivance of deed writer and attesting witness who are closely related/known to the Defendant No. 1. Smt. Sita Devi was not keeping good health and she was not in a position to take any rational decision or judgment. It is an unnatural Will. Smt. Sita Devi had great love and affection with all her sons and daughters. There is no comprehensible reason to disinherit other legal heirs. All the legal heirs used to render services to her during her life time. The alleged will was fabricated without notice of other legal heirs. The defendant No. 1 is a very greedy person. In fact his intention was to grab the share of Smt. Sita Devi without her due consent. So much so, Respondent No. 1/Defendant No. 1 did not disclose fact about execution of Will in his favour at the time of death of Smt. Sita Devi. He even did not disclose that any gift deed has been registered in his favour. If mere would have been any genuine there was no necessity of execution of gift deed. Defendant No. 1 also got the mutation No. 3106 sanctioned in his favour on the basis of alleged Will during pendency of suit on 9 June 2008, without notice to the plaintiff. According to the provision of Punjab Revenue Act, it is mandatory to give notice to all legal heirs, thus, the alleged mutation is also nullity in eye of law. The alleged has been obtained by misrepresentation, fraud, collusion while she was not in her proper senses. Thus, no right has accrued to defendant No. 1 under the alleged Will and the same is liable to be ignored qua the inheritance of Smt. Sita Devi. Moreover, the property in dispute was inherited from Sh. Madan Lal, common ancestor of the parties and it was a joint Hindu family property. No partition was effected during life time of Smt. Sita Devi and according to law she was not competent to dis -inherit other legal heirs by way of alleged Will and alleged gift deed." The application for amendment has been dismissed by the trial Court on 03.08.2013 on the ground that the application is hopelessly time barred and if it is allowed, it would change the nature of the suit. The trial Court has observed that the application has been moved on 16.07.2013, whereas the plaintiffs had come to know about the Will from the written statement dated 23.07.2009.
(3.) COUNSEL for the petitioners has argued that Madan Lal (since deceased) S/o Sewa Ram was the owner in possession of the land in question. After his death, mutation of inheritance was sanctioned in favour of Ishwar Chand, Janki Devi and Mohani Devi to the extent of 2/9 shares and in favour of the plaintiffs and defendant No. 1 to the extent of 7/9 shares. Sita Devi widow of Madan Lal, plaintiffs and defendant No. 1 along with Ishwar Chand etc. were recorded as joint owners in possession of the land in question. Sita Devi died intestate on 02.10.2005 leaving behind the plaintiffs and defendant No. 1 as her legal heirs and her 1/9th share was inherited by plaintiffs and defendant No. 1 in equal shares but defendant No. 1 tried to alienate the suit property to defendant No. 2 on the ground that he has become owner to the extent of 2/9th share out of the total land as Sita Devi had executed a gift deed in his favour in the year 2004, therefore, in the suit, the plaintiffs have challenged the validity of the gift deed. In the written statement, however, defendant No. 1 has alleged that Sita Devi had also executed a Will on 12.07.1994 in his favour on the basis of which he has got the mutation No. 3106 sanctioned. This Will is now sought to be challenged by way of amendment.;