PRADEEP NANDRAJOG, J.

( 1 ) PETITIONERS pray for issuance of a certificate of probate/letters of administration with will annexed. Petitioners are the sons born to late Mr. S. M. Lal from his first wife. Objectors are Ms. Beena Lall and Ms. Vandana @ Meenu, the second wife and the adopted daughter respectively of the deceased.

( 2 ) DISPUTE is predicated on the will propounded by the petitioners, being the will dated 29. 10. 1997 purported to be executed by the deceased. Date of death of the deceased is 5 days later i. e. 3. 11. 1997.

( 3 ) ACCORDING to the petitioners, 3 children were born to the deceased from the first marriage being the petitioners and Mrs. Shobha Kishore. No child was born from the second marriage to Ms. Beena Lall. According to the petitioner, house no. WZ-A/113-114, Ram Dutt Enclave, Uttam Nagar was purchased by the deceased, benami, in the name of his second wife Ms. Beena Lal. It is stated that property at 58, bhargava Lane, Civil Line, Delhi also belonged to the deceased. It is stated that he had a plot at Mittrau Road, Najafgarh.

( 4 ) WILL relied upon by the petitioners bequeaths the house at Uttam Nagar to the petitioners and their sister Shobha, born from the first marriage of the deceased. House at 58, Bhargava Lane, Civil Lines has been bequeathed equally to the three children born from the first marriage, Ms. Beena Lall and Ms. Vandana @ Meenu. Plot at Najafgarh Road had been bequeathed to Ms. Vandana @ Meenu.

( 5 ) THERE is reference in the will to some ancestral property inherited by the deceased in respect of which litigation is stated to be pending. Said property has been bequeathed to the petitioners.

( 6 ) MOVABLE assets have been bequeathed to the petitioners and their sister shobha as also to Ms. Beena Lall and Ms. Vandana @ Meenu in equal shares.

( 7 ) OPPOSITION to the will by the second wife and the adopted daughter is based on the ground that house No. WZ-A/113-114, R. D. Enclave, Uttam Nagar, delhi is the property of Ms. Beena Lall, Property at 58, Bhargava Lane, Civil Lines is on rent, tenancy being in name of Ms. Beena Lall, and therefore, there could be no bequest in respect of said two properties. On merits, execution of the will is denied. It is stated that on 30. 10. 1997, deceased executed a written declaration styling it as a family settlement. Said declaration acknowledges that the house at 58, Bhargava lane, Civil Lines is under tenancy in name of Ms. Beena Lall and that the house at uttam Nagar belongs to Ms. Beena Lall.

( 8 ) ON 1. 5. 2001, keeping in view the pleadings of the parties, following issues were framed:- 1. Whether the will dated 29th October, 1997 is a genuine and valid will? opp 2. Whether the properties situated at 58, Bhargava Lane, Delhi, and SZA 113-114, Ram Dutt Enclave, Uttam Nagar, Delhi are the benami properties of the deceased? OPP 3. If so, whether the properties purchased benami by the deceased could be the subject matter of a will in view of the provisions of Benami Transactions (Prohibition) Act, 1988? OPD. 4. Relief.

( 9 ) IT is rather unfortunate that issue No. 2 and 3 were got framed by the parties and as a consequence thereof useless and unnecessary energy of the parties have been wasted on proving title to the property at Uttam Nagar covered by issue no. 2 and to the tenancy rights of the property at 58, Bhargava Lane. Parties have wasted their energies on trying to wriggle out of the Benami Transactions (Prohibition) Act, 1988 or bring the case within the prohibition of the said Act.

( 10 ) IT is settled law that in a proceedings for probate or letters of administration with will annexed, issue of title cannot be gone into. A limited exception to this wide proposition of law is where the testator has lost right to a property, a will in respect to the said property would convey nothing and if nothing is conveyed under a will due to the fact that the testator has no right, a court may decline probate. But that would be limited to a circums

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