A. K. SEN, B. C. CHAKRABARTI ( 1 ) THIS is a revisional application at the instance of the defendants in Title Suit No. 21/79 of the 8th Court of the learned Subordinate Judge at Alipore and directed against an order dated May 23, 1979, passed by the Learned Subordinate Judge allowing an application for amendment of the plaint. It will be necessary to refer to certain facts in the background to appreciate and decide the dispute now raised before us. ( 2 ) ADMITTEDLY, the suit, as aforesaid relates to premises No. 15, Mahesh Barik Land, P. S. Narkeldanga, District 24-Parganas (hereinafter referred to as the suit property ). This property again admittedly once belonged to Becharam Mukherjee, the father of the plaintiff and the defendant No. 1, Becharam died in 1933 leaving behind a will executed by him on October 27, 1927, bequeathing the uit property in favour of his wife Nagendra Bala, Probate in respect of the said will was obtained the executor in Probate Case No. 113/34. Nagendra Bala in her turn made a bequest in respect of the suit property in favour of the sons of Khagendra, the defendant No. 1 by a will executed by her on October 24, 1956. Nagendra Bala died in 1956 and Probate in respect of her will was sought for in Probate Case No. 17/58. The said proceeding was strongly contested by the present plaintiff but unsuccessfully up to this Court and there was a grant of probate in favour of the executor. The executor under the will of Nagendra Bala then filed title suit No. 40/70 for recovery of possession of the suit property by evicting the plaintiff. The suit again was contested by the present plaintiff upto the appellate stage but unsuccessfully. The suit being decreed, the executor put the decree into execution being title execution case No. 22/74. ( 3 ) IN October, 1977 the present plaintiff instituted a proceeding for revocation of the grant of probate in respct of Becharam's will in O. S. 62/77. Admittedly, this proceeding is still pending. An endeavour to get an injunction restraining execution of the decree for eviction, which was obtained by the executor, having failed in this proceeding for revocation the plaintiff fought over the issue up to this Court but was unsuccessful. Admittedly, this proceeding is still pending. An endeavour to get an injunction restraining execution of the decree for eviction, which was obtained by the executor, having failed in this proceeding for revocation the plaintiff fought over the issue up to this Court but was unsuccessful. In that background the plaintiff filed the title suit No. 21/79, as aforesaid, in February 1979. ( 4 ) IN this suit the plaintiff pleaded that his father Becharam had never executed any will. That the will that was probated as his father's will was a fictitious one and the probate thereof was obtained by practicing fraud. The plaintiff further pleaded hat his mother Nagendra Bala had no physical or mental capacity to execute any will at the time she was alleged to have executed a will. The will said to be his mother's will is also a false one. These wills and the probates thereof have no legal validity and did not affect his share in the suit property which inherited on the death of Becharam as also of Nagendra Bala as on intestacy. On these pleadings the plaintiff prayed for the following reliefs: - (a)declaration of the plaintiff's titlte in 3/8th share in the suit property; (b)revocation of the order or grant of probate in case No. O. S. 17. 58. (c) setting aside the decree passed in title suit No. 40/70; (d)setting aside the title execution case being title execution case No. 22/74; and (e)injunction restraining the defendants from interfering with the share of the plaintiff or his possession in the suit property. Such a suit should be noted was filed only after a previous suit by the plaintiff for declaration of his title to the suit property, being title suit No. 195/78, was dismissed by the Sealdah court on a finding that such a suit is not maintainable until the impugned probates are revoked in appropriate proceeding under the Indian Succession Act. ( 5 ) IN the present suit an application for injunction filed by the plaintiff was contested by the defendants, the petitioners before us, on the plea that such a suit is not maintainable because none but the probate court can revoke the grant. ( 5 ) IN the present suit an application for injunction filed by the plaintiff was contested by the defendants, the petitioners before us, on the plea that such a suit is not maintainable because none but the probate court can revoke the grant. Such an objection having been raised, the plaintiff came with an application for amendment of the plaint pleading therein that due to inadvertence some omission and mistakes have crept into the plaint and as such, the plaint needs to be amended and the amendment sought for is of a formal character. Now the amendment sought for has been set out in the schedule to this application which we set out hereunder: -a SCHEDULE OF AMENDMENT SOUGHT: 1. Insert the words ?and for permanent injunction valued at Rs. 10/- only? after the words ?suit for declaration valued at Rs. 20/-? as appearing at cause title page 2 of the plaint. 2. Insert the following after paragraph 32 at page 15 of the plaint. ?and for permanent injunction valued at Rs. 10/- only and advalorem court fee are paid thereon. ? 3. Delete the prayer as appearing in prayer (b) of the plaint and insert the following in its place: ?declaration that the orders grant of probate passed in Case No. 113 of 1934 of the District Delegate, Alipore (Additional Sub-Judge at Alipore) and Case No. 17 of 1958 of 1st Sub-Judge at Alipore are void and not binding upon the plaintiff?. This application for amendment was strongly contested by the present defendants. Over-ruling the contest, the Learned Judge has allowed the amendment and he did so on a finding ?i find that the present amendment, if introduced, will not alter the nature and character of this suit nor will it introduce a new case. It seems that the plaintiff has already made an application for temporary injunction and it appears necessary that the plaint should have a prayer for permanent injunction. I, therefore, feel that the proposed amendments are necessary for the purpose of determination of the real question in controversy between the parties. ? It seems that the plaintiff has already made an application for temporary injunction and it appears necessary that the plaint should have a prayer for permanent injunction. I, therefore, feel that the proposed amendments are necessary for the purpose of determination of the real question in controversy between the parties. ? Feeling aggrieved by the said order, the defendants have move this Court with the present revisional application, as according to them, the Learned Judge acted irregularly in the exercise of his jurisdiction in allowing such an application not only on misapprehension of the true nature of the amendment sought for but also on non-consideration of material objections raised on their behalf. ( 6 ) WE have set out the schedule of amendment herein before. It would appear from the said schedule that, so far as the prayer in the plaint is concerned, only amendment sought for was to substitute the original prayer (b) by a prayer for a declaration that the grant in the two probate cases are void and not bindings upon the plaintiff. In the original prayer (b) the plaintiff had prayed for revocation of the grant in respect of the mother's will and by the amendment the plaintiff not only wanted to have a declaration that such a grant is void instead of an order for revocation but further prayed for a similar declaration of the grant of probate in respect of the father's will to be also void and not binding upon the plaintiff. There was no prayer added for any permanent injunction. Therefore, it is apparent on the order of the Learned Subordinate Judge that he was misreading the amendment sought for as a mere addition of a prayer for permanent injunction. It is also clear to us that the Learned Subordinate Judge in his haste to dispose of the application filed to consider the real objection raised by the defendants so far as the amendment of the prayer (b) is concerned. Their objection is that the grant in respect of the two wills can revoked only by the Probate court in appropriate proceedings for their revocation and this court not having the jurisdiction to grant any such revocation to allow the amendment is to sustain the same prayer under the cover of a camouflage. Their objection is that the grant in respect of the two wills can revoked only by the Probate court in appropriate proceedings for their revocation and this court not having the jurisdiction to grant any such revocation to allow the amendment is to sustain the same prayer under the cover of a camouflage. Or, in other words, the objection raised was that the amended declaration as sought for to the effect that the grants were void and not binding is in substance revocation of the original grants and since such revocation is not within the competence of the present court, the amendment should not be allowed only to cover up the real relief under a camouflage. ( 7 ) THE application is being contested by the plaintiff opposite party and Mr. Roy Chowdhury made great endeavour in supporting the order impugned in the present revisional application. ( 8 ) HAVING considered the objection raised by the petitioners very carefully, we are of the view that there is great substance in the objection so raised. The plaintiff's claim of title can succeed only if he can avoid the grant of probates in respect of the two wills, namely, one of his father and the other of his mother. He is claiming title as intestacy on the death of his father as also on the death of his mother. But so long the grant of probate in respect of the aforesaid two wills and, in particular, the will of the father is not revoked, he cannot succeed in his claim of title. Revocation of such a grant, as we have indicated hereinbefore, so far as the father' will is concerned, has already been prayed for and is now pending adjudication in O. S. 62/77. In this suit the plaintiff had, therefore, originally not prayed for any revocation of the grant in respect of the father's will but had prayed for revocation of the grant in respect of the mother's will. By the amendment the plaintiff now wants to annul both the grants by praying for a declaration that both the grants are void and not binding upon the plaintiff. By the amendment the plaintiff now wants to annul both the grants by praying for a declaration that both the grants are void and not binding upon the plaintiff. In our view, his present attempt to extend the prayer to cover the grant in respect of the father's will is not at all bona fide nor is it proper to allow him to do so because he has already filed an application for revocation of the grant based on same grounds and to allow the prayer for a declaration, as now sought for in respect of the said will, may very well lead to inconsistent decisions between the two courts. ( 9 ) SO far as the amendment relating to the grant of probate in respect of the mother's will is concerned, the position is that while in the original plaint the plaintiff prayed for a decree of revocation of the grant, by amendment he proposes to secure a declaration that the grant is void and not binding upon the plaintiff. The ground as pleaded in the pleading remains the same, namely, the grant was obtained in respect of a false will said to have been executed by the mother. In our view, the amendment really seeks to introduce a camouflage because, in substance, the prayer remains the same, namely, annulment of the grant of the probate in respect of the mother's will. A valid objection was raised on behalf of the defendants before the learned Subordinate Judge that such a claim is not maintaining in any court except the probate court. It was further contended that, before the amendment is allowed, the Learned Subordinate Judge must consider whether the prayer, as in the original plaint or as proposed to be amended, is at all maintainable before him before such amendment is allowed. In our view, this aspect should have been gone into for the simple reason that on it depends the bona fides of the claim for amendment. We have carefully considered the merits of this objection raised on behalf of the defendants and, in our view, there is great substance in this objection. This Court I the case of (1) Komollochun Dutt and Ors. v. Nilruttun Mundle, ILR 4 Cal. We have carefully considered the merits of this objection raised on behalf of the defendants and, in our view, there is great substance in this objection. This Court I the case of (1) Komollochun Dutt and Ors. v. Nilruttun Mundle, ILR 4 Cal. 360, held that the grant of probate cannot be set aside by any court other than the court which had made the grant except for fraud or want of jurisdiction. As a matter of fact, the reasons give by Markby J. is as follows: -?when the probate is granted, it operates upon the whole estate, and it establishes the will from the death of the testator, and renders valid all intermediate act of the executor as such. The property vests in the executor by virtue of the will, not of the probate. The will gives the property to the executor, the grant of probate is the method which the law especially provides for establishing the will. So long as the probate exists it is effectual for that purpose. It would lead to the greatest confusion, if the validity of the will could be questioned in a civil suit after the grant of probate. There might be any number of conflicting decisions as to the validity of the will. The executor would be exposed to endless litigation, and he would never be safe in dealing with the property of the deceased. ? ( 10 ) IN our view, this decision fully supports the objection raised by the defendants in the present case. Whether the prayer is one for revocation or for declaration that the grant is void and as such, not binding, the real relief claimed is to annul or set aside the grant on the ground that the grant is in respect of a false or fictitious will. When none but the probate court can go into that issue as to the falsity or otherwise of the will, certainly the court where the present suit is pending has not the jurisdiction to decide such an issue. In that view of thing, there is amble substance in the objection raised by the defendants that the amendment proposed wanted to introduce a camouflage and as such, was not a bona fide one. In that view of thing, there is amble substance in the objection raised by the defendants that the amendment proposed wanted to introduce a camouflage and as such, was not a bona fide one. The whole object is to sustain an application for injunction to which the prayer (b) in the original plaint takes the case out of jurisdiction of the court. ( 11 ) MR. Roy Chowdhury appearing in support of the order raises two points before us. In the first place he has contended that, though an ordinary civil court can not revoke a grant, there is no bar to such a court to hold and declare that the grant if fraudulent and as such, void and not binding on the person who can claim title to the property covered by the will but for the grant. He relies on a decision of this Court in the case of (2) Debendra Nath Dutt v. The Administrator General of Bengal, 10 CWN 673. Secondly, he contends that at the stage of granting the amendment it is not for the court to decide whether the suit on the amended prayer would be maintainable or not. That issue can be gone into only after the amendment is allowed and an appropriate issue is raised on the basis thereof. We have carefully considered the points thus raised by Mr. Roy Chowdhury. But we are not impressed by either of them. The decision relied upon by him in the case of Debendra Nath Dutt is clearly distinguishable on facts as there fraud was practiced on court in obtaining probate in favour of a person not in existence. The issue raised in that decision was not of the nature nor raised before us and considered by this Court in the case of Kamollochun Dutt referred to hereinbefore, namely, where the grant is challenged on the ground that the will is a false one and fraud pleaded is based on such falsity. So far as the second objection raised by Mr. Roy Chowdhury is concerned, he may be right that normally the court is not to consider the effect of the amendment since the effect would be taken in account once the amendment is allowed. But that is not the position in all cases. So far as the second objection raised by Mr. Roy Chowdhury is concerned, he may be right that normally the court is not to consider the effect of the amendment since the effect would be taken in account once the amendment is allowed. But that is not the position in all cases. In a case like the present one where the specific objection is that the amendment sought for would not really change true nature of the relief claimed but then it is being adopted by way of camouflage with a motive not too fair or bona fide, it is certainly open to the court to consider the effect of the amendment in considering how far the amendment prayed for if bona fide or not. That exactly had been our approach in the present case and we are firmly of the opinion that the amendment proposed was not bona fide. ( 12 ) IN the result, this revisional application succeeds and is allowed. We set aside the order allowing the amendment impugned in the present revisional application as, in our view, the Learned Subordinate Judge allowed that prayer in irregular exercise of his jurisdiction by thinking that the amendment sought for was an innocuous one merely a prayer for permanent injunction is sought to be added. The application for amendment stands rejected. ( 13 ) NO order is made as to costs in revisional application. Chakraborty, J. : I agree. ( 14 ) IN disposing of the above revisional application on July 24, 1979 we omitted to record a further order, which we intended to do, by mistake and for the said reason we have put up the revisional application for further order to-day. ( 15 ) HAVING heard the learned Advocates and in the interest of justice, we direct stay of further proceedings in the present suit until the disposal of the revocation proceedings, being O. S. No. 62 of 1977 now pending in the 14th Court of the learned Addition District Judge, Alipore. We make this order for the simple reason that the title claimed by the plaintiff is entirely dependent upon the question whether he can successfully challenge the genuineness of the will of his father which challenge is awaiting adjudication in the revocation proceedings as aforesaid. We make this order for the simple reason that the title claimed by the plaintiff is entirely dependent upon the question whether he can successfully challenge the genuineness of the will of his father which challenge is awaiting adjudication in the revocation proceedings as aforesaid. We also direct that the said proceedings may be disposed of at an early date since the same is pending for a long time and it is necessary that there should be an early decision in the said proceedings so that the parties can proceed with the present suit subject to the result of that proceeding. We, therefore, direct the learned Additional District Judge, 14th Court, Alipore to dispose of the said proceeding at his earliest convenience and, if not impossible, before the Court closes for the Puja Holidays. ( 16 ) LET this order be communicated to both the courts below, namely the Court of the Learned Subordinate Judge and the Court of the Learned Additional District Judge, 14th Court, Alipore, forthwith. Appeal allowed.