( 1 ) BY this order I propose to decide preliminary issues raised in the written statement by defendant about maintainability of the suit.

( 2 ) A Probate Petition (later converted into civil suit) was filed by the plaintiff under Section 276 read with Section 278 of The Indian succession Act for grant of probate to the Will of late Smt. Damodar Dev.

( 3 ) PLAINTIFF pleaded that Smt. Damodar Devi had executed a registered Will on 24. 11. 1969 vide registration no. 555 in Additional Book No. 3. Vol. 23 pages 99-100. Smt. Damodar Devi died on 6th August, 1971. As per her aforesaid Will she bequeathed property no. 17 A/34 W. E. A. Karol Bagh, New delhi unto defendants no. 2 and 3 jointly and a plot of land no. 3, Siri Fort road, Masjid Moth, New Delhi unto the plaintiff exclusively.

( 4 ) PLAINTIFF submitted that deceased/testator was alloted plot of land no. 26 situated in Sunlight Estate opposite Vinay Nagar, New Delh. This plot of land was acquired by the Union of India during lifetime of the deceased. In lieu of acquisition of this plot, an alternative plot no. 3 Siri Fort Road, masjid Moth, New Delhi was alloted to the deceased. The deceased had executed one Will on 27. 10. 1961 which she specifically revoked by her will dated 3. 11. 1969. Plaintiff valued the amount of assets likely to come to his hands under the Will of the deceased worth Rs. 15 lakhs. Deceased Smt. Damodar Devi had died issueless. The plaintiff is son of the sister of deceased Smt. Damodar devi viz. Smt. Narain Dev. Defendants No. 2 and 3 are sons of another sister of deceased Smt. Damodar Devi viz. Smt. Sushila Ran. Plaintiff, defendant no. 2 and defendant no. 3 were the only legal heirs entitled to succeed to the estate of Smt. Damodar Devi and to whom the properties were bequeathed. It is submitted that the Testator, before her death lived in Delh. She remained with defendant no. 2, who looked after her during her lifetime. She died at place of defendant no. 2. The Will was executed at Delh. The plaintiff could not apply for probate of the Will earlier (the petition was filed in 1996) because the will was neither in the knowledge nor in possession of the plaintiff. The Will was disclosed by defendants no. 2 and 3 only in December, 1995 after they had actually distributed/partitioned the property no. 17 A/34, WEA, Karol Bagh, New delhi amongst themselves on the basis of 1969 Will of deceased and this fact acquired finality under a Civil Suit filed before this Court. The plaintiff filed the petition for probate after learning about the Will for grant of probate of the Will dated 3. 11. 1969 or grant of letters of administration in respect of assets/estate of the deceased to the petitioner. The probate petition is verified by Mr. Dayanand, Advocate, who was one of the attesting witnesses to the Will dated 3. 11. 1969.

( 5 ) DEFENDANT no. 2 filed 'no objection' to this petition and submitted that Will dated 3. 11. 1969 was a genuine and duly registered Will. However, defendant no. 3 filed objections to the probate petition and took the stand that the petition was a result of collusion between plaintiff and defendant no. 2. He stated that the probate petition was prima facie barred by limitation since it was filed after about 25 years of the death of the Testator. Smt. Damodar Devi had revoked her this Will during her lifetime itself by a letter dated 21. 7. 1971 written 15 days before her death. In the letter she expressed her difficulties and circumstances in which she was constrained to execute the Will in question. Defendant no. 3 also pleaded that Plot No. 3 siri Fort Road, Masjid Moth, New Delhi was registered in the name of his father shri S. R. Thapar. This fact was in the knowledge of defendant no. 2 and plaintiff but plaintiff and defendant no. 2 never raised any objection to this and to the peaceful enjoyment of the property by his father. The plot was mutated in the name of Shri S. R. Thapar in the year 1971 therefore, probate in respect of

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