The Bombay High Court has affirmed that a plaintiff may amend their plaint to challenge a will produced only after the suit is filed, provided the amendment does not alter the nature of the suit and is made in good faith. This ruling reinforces the liberal approach courts must adopt under Order VI Rule 17 of the Code of Civil Procedure, 1908, to ensure justice is not defeated by technical pleading defects.
Background & Facts
The Dispute
The present suit was instituted for the administration and partition of the estate of Late Mr. Perviz Dastur, who died on 04.03.2020. The Plaintiffs alleged that the deceased died intestate, as no valid will had been disclosed at the time of filing. The Defendant, Guloo Perviz Dastur, claimed to be the sole beneficiary under a Will dated 09.11.2012, which she produced only in her Affidavit-in-Reply dated 03.03.2021, nearly a year after the suit was filed.
Key Facts
- The deceased passed away on 04.03.2020.
- On 21.03.2019, the deceased sent an email indicating he was preparing a Will.
- In July 2020, the Defendant informed Plaintiff No.2 via telephone that the 2019 Will was unsigned and void, and that she would rely on the 2012 Will.
- The Plaintiffs filed Suit No. 255 of 2021 on 15.02.2021, seeking administration and partition of the estate on the basis of intestacy.
- On 03.03.2021, the Defendant filed her Affidavit-in-Reply, for the first time producing the Will dated 09.11.2012, and stated she was in the process of filing for probate.
- In subsequent hearings, the Defendant reversed her position, arguing that since the Will was executed in Alibag, no probate was required under the Indian Succession Act, 1925.
- The Defendant had already begun transferring assets under the 2012 Will prior to the Plaintiffs’ awareness of its existence.
- The Plaintiffs received the Will only on 03.03.2021, and filed the present Interim Application for amendment on 28.07.2022.
- The Defendant produced emails dated 22.08.2020, 12.09.2020, and 13.09.2020 to argue that the Plaintiffs had prior knowledge of the Will.
Procedural History
- 15.02.2021: Suit No. 255 of 2021 filed for administration and partition of estate.
- 15.02.2021: Interim Application No. 3049 of 2021 filed seeking protection of estate assets.
- 03.03.2021: Defendant produced Will dated 09.11.2012 in Affidavit-in-Reply.
- 09.03.2021: Plaintiffs filed Affidavit-in-Rejoinder, disputing validity of the 2012 Will.
- 31.03.2021: Defendant filed Affidavit-in-Sur-Rejoinder, asserting the Will was legally valid.
- 15.11.2021: Interim Application No. 3049 of 2021 dismissed.
- 28.07.2022: Present Interim Application No. 281 of 2023 filed seeking amendment of plaint to challenge the 2012 Will.
- 02.12.2025: Reserved.
- 09.06.2026: Judgment pronounced.
The Parties' Positions
Plaintiffs: Argued they were unaware of the 2012 Will until its production on 03.03.2021. They relied on the Defendant’s initial representation that she would seek probate, and only sought amendment after she renounced that intention and began alienating estate assets.
Defendant: Contended the Plaintiffs had prior knowledge of the Will through emails and correspondence, and that filing suit on intestacy after such knowledge was mala fide. Argued amendment would change the nature of the suit.
Relief Sought
The Plaintiffs sought permission to amend the plaint to:
- Challenge the validity of the Will dated 09.11.2012;
- Include allegations of fraud, undue influence, and lack of testamentary capacity;
- Seek declaration that the Will is null and void;
- Seek partition of the estate as if the deceased died intestate.
The Legal Issue
The central question was whether Order VI Rule 17 of the Code of Civil Procedure, 1908 permits amendment of a plaint to challenge a will that was not disclosed until after the suit was filed, where the amendment does not alter the nature of the suit but merely adds a new ground for relief based on facts already in the record.
Arguments Presented
For the Appellant/Petitioner
Counsel for the Plaintiffs relied on Life Insurance Corporation of India v. Sanjeev Builders Private Limited (2022) 16 SCC 1 to argue that amendments must be allowed if they are necessary for determining the real question in controversy. He emphasized that the Will was not disclosed until 03.03.2021, and the Plaintiffs acted promptly thereafter. He cited Bilquis Zakiuddin Bandookwala v. Shehnaz Shabbir Bandukwala and H. Venkatachala Iyengar v. B.N. Thimmajamma to show that courts must adopt a liberal approach to amendments, especially before trial. He argued that the amendment merely added a challenge to the Will without changing the suit’s core purpose - administration and partition.
For the Respondent/State
Counsel for the Defendant relied on Revajeetu Builders and Developers v. Narayanaswamy and Sons (2009) 10 SCC 84 to argue that the amendment was mala fide, as the Plaintiffs had prior knowledge of the Will through emails dated August - September 2020. He contended that filing suit on intestacy after such knowledge constituted a deliberate concealment and that allowing amendment would prejudice the Defendant by reopening issues already litigated in the interim application.
The Court's Analysis
The Court undertook a detailed analysis of Order VI Rule 17 CPC, drawing extensively from Sanjeev Builders (supra). It held that the amendment was sought before the commencement of trial, which under paragraph 71.11 of Sanjeev Builders, mandates a liberal approach. The Court noted that the Plaintiffs had no access to the Will until 03.03.2021, and their initial suit was based on the Defendant’s own representation that she would seek probate.
"The Defendant’s diametrically opposite stand - that no probate was required - rendered the Plaintiffs’ original pleading inadequate and necessitated amendment to protect their rights."
The Court rejected the Defendant’s argument that the Plaintiffs had prior knowledge of the Will, finding that the emails referenced did not constitute actual disclosure of the document, nor did they indicate its existence as a legally operative instrument. The Court emphasized that the amendment did not introduce a new cause of action but merely added a challenge to a document that had become central to the dispute after its production.
The Court further held that the nature of the suit remained unchanged: it was still for administration and partition of the estate. The amendment merely sought to determine which instrument governed that process - the Will or intestacy. The Court also found no evidence of mala fide, noting that the Plaintiffs acted promptly upon learning of the Defendant’s change in stance and her alienation of assets.
The Verdict
The Interim Application was allowed. The Court permitted the Plaintiffs to amend the plaint to challenge the Will dated 09.11.2012, including allegations of fraud, undue influence, and lack of testamentary capacity. The amendment was to be incorporated into the plaint in accordance with the Schedule of Amendments annexed as Exhibit C. No costs were ordered. The operation of this order was stayed for three weeks to allow the Defendant to seek higher review.
What This Means For Similar Cases
Amendments to Challenge Undisclosed Wills Are Permissible
- Practitioners may amend pleadings to challenge a will produced after suit filing, provided the amendment is timely and does not alter the suit’s nature.
- Knowledge of a will’s existence through vague correspondence does not preclude amendment if the document itself was not disclosed.
Courts Must Apply a Liberal Approach Before Trial
- Order VI Rule 17 CPC requires courts to allow amendments that enable proper adjudication, especially when trial has not commenced.
- Delay alone is not a ground for refusal; the focus must be on prejudice and mala fide.
Probate Claims Cannot Be Used to Avoid Judicial Scrutiny
- A defendant cannot invoke the absence of probate as a shield to prevent challenge to a will while simultaneously using it to alienate estate assets.
- Courts will not permit parties to benefit from procedural inconsistency.
Documentary Disclosure Is Key
- The burden shifts to the party withholding a key document to prove that the opposing party had actual, timely access to it.
- Mere reference to a will in emails is insufficient to bar amendment unless the document was physically disclosed or its terms were known.
Practical Takeaway
- In succession disputes, if a will is produced late, file an application for amendment under Order VI Rule 17 CPC immediately.
- Preserve all correspondence and document production timelines to rebut allegations of mala fide.
- Always argue that the amendment seeks to clarify, not change, the nature of the suit.
