1. - Although the case is listed for confirmation of stay, yet with the consent of the learned counsel for the parties, this case is being decided finally.

2. The plaintiff-appellant, Banshilal, has challenged the judgment and decree dated 22.9.2009, passed by the Additional District Judge, Phalodi, District Jodhpur, whereby the learned Judge has dismissed the suit filed by the plaintiff-appellant.

3. Briefly, the facts of the case are that the plaintiff appellant had filed a suit for cancellation of sale-deed, and for specific performance. According to him, he and the respondent-defendants No. 1 to 6 are real brothers. Their father, Ballabh Das, had certain immovable property consisting a few shops, constructed on the ground-floor, and the house which was constructed on the first floor. On 27.3.1990, Ballabh Das, executed a Will in favour of his children. Ballabh Das expired on 25.6.1992. According to the Will, he bequeathed his shops to his children. However, he imposed a condition that in case, any one of the children wanted to sell the shop, which fell in his share, he would first make an offer to his other sibling and will not sell the shop to a stranger and to a third party. However, notwithstanding the condition imposed by Ballabh Das, on 8.7.2005, the respondent-defendants sold a shop for Rs. 1,31,000/- to respondent No.1, Om Prakash. The said sale deed was subsequently registered on 14.7.2005. Hence, the suit for cancellation of the sale deed on 8.7.2005, and for possession of the shop. The respondent-defendants filed a written statement, and denied the averments made in the plaint. On the basis of the pleadings, the learned trial court framed four issues including the issue of relief.

4. In order to buttress its case, the plaintiff -appellant examined two witnesses. In turn, the respondent-defendants examined three witnesses. After going through the oral and documentary evidence, vide judgment dated 22.9.2009, the learned Judge dismissed the suit. Hence, this first appeal before this Court.

5. Mr. O.P.Boob, the learned counsel for the appellant, has vehemently contended that the learned Judge has committed grave erred in dismissing the suit, ostensibly on the ground that under Section 213 of the Succession Act, 1925, it is essential that a person who asserts the rights on the basis of a Will, must either have a probate or letter of administration. However, as appellant did not have either a probate or letter of administration, the suit could not be decreed in his favour. However, relying on the case of Sultan Singh v. Brijraj Singh [1997 (1) WLC (Raj.) 368] , and on the case of Mukund Bihari Sharma v. Satya Narayan, [2007 (2) DNJ (Raj.) 585] the learned counsel has contended that, in fact, in the State of Rajasthan it is not necessary for a person to get a probate. This position has been amply clarified by the Court in the case of Sultan Singh (supra), therefore, the very basis of dismissing the suit is mis-placed.

6. In all fairness, the learned counsel for the defendant-respondents has not challenged the legal position.

7. Heard the learned counsel for the parties, and perused the impugned judgments.

8. The issue, whether a probate is necessary in the State of Rajashtan under Section 213 of the Succession Act, was considered by the Court in the case of Sultan Singh (supra). Therefore, the said issue is no longer res-integra.

Section 213 reads as under:-

(1)Right as executor or legatee when established.-(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2)The section shall not apply in the case of Wills made by Muhammadans [or Indian Christians], and shall only apply -

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are o