SANJAY KISHAN KAUL, J.

( 1 ) THE petitioners have filed a petition under sections 276 and 278 of the Indian Succession Act, 1995, (hereinafter referred to as the `said Act ) in respect of the estate of Late Shri Mela Ram son of late Shri Ghasita mal last resident of 33, Pusa Rad, New Delhi, who died on 25. 09. 1978.

( 2 ) LATE Shri Mela Ram was the paternal grandfather of the petitioners and respondent No. 2, Shri Aman Suri. Late Shri Mela Ram had two sons and three daughters. The petitioners are grandsons from one son while respondent no. 2 is the grandson from the other son.

( 3 ) LATE Shri Mela Ram is stated to have executed a registered Will dated 26. 12. 1974 in favour of the petitioners and respondent No. 2. The original Will is not traceable but since the Will was registered, a certified copy of the Will has been placed on record. It is the case of the petitioners that they had no knowledge of the said earlier Will and it is only about five months prior to the filing of the petition that one Shri Ram chawla son of late Shri Ishwar Das Chawla disclosed the factum of a Will having been executed since late Ishwar das Chawla apparently scribed the registered will. Thereafter steps were stated to have been taken by the petitioners to obtain the certified copy of the Will. The last original will was not traceable despite efforts made in this behalf. The total value of the properties bequeathed in pursuance to the will is stated to be Rs. 3 crores and the shares in the properties are mentioned in para 9 of the petition.

( 4 ) RESPONDENT No. 2 has filed the present application under Order VII Rule 11 of the Code of Civil procedure, 1908 (hereinafter referred to as the Code) for rejection of the plaint. The said provisions of the Code in so far as applicable to the plea of respondent No. 2 is as under :

11. Rejection of plaint. :- The plaint shall be rejected in the following cases : -. . . . . . . . . . . . . . . . . . . . . . . . (d) where the suit appears from the statement in the plaint to be barred by any law;. . . . . . . . . . . . . . . . . . . . . . . .

( 5 ) THE aforesaid plea of petition being barred by law arises from the provisions of the said Act. The submission of respondent No. 2 is that the petition is not maintainable in view of the fact that among the necessary ingredients specified in Section 276 of the Act, such a petition is maintainable only in respect of a writing annexed to the petition which is the last Will and testament. The relevant provision being sub-section (1) of Section 276 reads as under :

SECTION 276 (1) - Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the court in which the application is made, with the Will or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the contends thereof, annexed and stating - (a) the time of the testator s death, (b) that the writing annexed is his last will and testament, (c) that it was duly executed, (d) the amount of assets which are likely to come to the petitioner s hands, and (e) when the application is for probate, that the petitioner is the executor named in the Will.

( 6 ) RESPONDENT No. 2 has submitted that the alleged will dated 26. 12. 1974 is not the last Will of the deceased testator Shri Mela Ram. He had admittedly executed a subsequent Will and testament of 18. 09. 1978 which was the last Will and testament of the deceased mela Ram. In view of the execution of the subsequent will, the earlier Will dated 26. 12. 1974 is stated to have lost its significance and no petition for probate could be granted for the earlier Will in view of the provisions of Section 276 of the Act read with Section 62 of the said Act. It may be noticed that Section 276 of the said Act provides that a Will is liable to be revoked, altered by the maker at any time when he is competent to dispose of

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