Oral Judgment: (J.N. Patel, J.)

1. Heard learned counsel for the parties.

2. This appeal is preferred by the original defendant in T.& I.J. Petition No.454 of 2004 being aggrieved by the order passed by the learned Single Judge in Notice of Motion taken out by the petitioner therein for dismissal of his caveat dated 2nd May 2005.

3. By the impugned order dated 29th February 2008, the learned Single Judge of this Court allowed the motion and made it absolute in terms of prayer clause (a), which reads as under:

“that this Hon’ble Court be pleased to dismiss the caveat dated 2nd May 2005 filed by the defendant in T.&. I.J. Petition No.454 of 2004”.

The petitioner has sought a probate in respect of the Will dated 7th March 1992 and the Codicil dated 1st July 2003 executed by Gangasingh who died on 4th July 2003 leaving behind his wife Indumati and children.

4. The petition for probate came to be filed in this court by Kishoresingh Gangasingh Chowhan and Padma Singh. The appellant-defendant filed the caveat on 2nd May 2005, wherein he has opposed the grant of probate of the Will dated 7th March 1992 and Codicil dated 1st July 2003 mainly contending that there is a building