Hon’ble Sunil Ambwani, J.—The Testamentary Suit No. 3 of 2006 filed by Shri Ritesh Sirkar son of Shri A.S.K. Sirkar, resident of 7/7, N.K. Mukherjee Road, Allahabad seeks grant of probate of the property of late Daisy Myrtel Khan (the deceased) widow of late Munawwar Khan, resident of C-13/3, Paper Mill Colony, Lucknow. She died on 27.7.2004. The plaintiff has set up a will dated 27.11.1995 executed by her with her free will, consent and in sound and disposing mind. The suit is contested by her daughter Ms. Shamim Khan on the ground that a few days later the deceased executed the will dated 15.12.1995, which is the last will of the deceased.

2. The Testamentary Case No. 14 of 2006 is filed by M/s Shamim Khan claiming ‘Letters of Administration’, on the basis of the later will dated 15.12.1995 executed by the deceased.

3. After exchange of pleadings, following issues were framed on 27.11.2006 :

“(1) Does the plaintiff Ritesh Sirkar in Testamentary Suit No. 3 of 2006 prove due execution of the will dated 27.11.1995 executed by Daisy Myrtle Khan with her free will, consent and sound and disposing mind?

(2) Does Shamim Khan plaintiff in Testamentary Case No. 14 of 2006 prove that the will dated 27.11.1995 filed by Sri Ritesh Sircar was obtained by misrepresentation and fraud?

(3) Does Ms. Shamim Khan prove due execution of the will dated 15.12.1995 executed by Daisy Myrtle Khan (deceased) with her free will, consent and sound and disposing mind?

(4) Does Sri Ritesh Sirkar the plaintiff in Testamentary Case No. 3 of 2006 prove with the will dated 15.12.1995 filed by Ms. Shamim Khan as forged and fictitious will?

(5) The relief to which either of the plaintiffs are entitled?

4. Issue No. 3 was refrained on 7.9.2007.

5. Parties have filed documentary evidence. On the basis of the documentary evidence the following preliminary issue was framed by order dated 7.9.2007 :

“(6) Whether in view of the fact that the only property left by the deceased namely 1/5th share in House Nos. 7/7 and 8/9, N.K. Mukherjee Road, Allahabad including the land on which the said houses are constructed being Nazul Plot No. 2, Rajapur Bandhwa, Allahabad has been converted into free hold land by the State Government vide ‘deed of free hold’ dated 28.9.2005, registered on 29.9.2005, the Testamentary Suits for probate filed by the respective parties for execution in pursuance of the respective wills dated 27.11.1995 and 15.12.1995 are liable to be dismissed.”

6. It is admitted that the deceased had executed a registered power of attorney dated 7.12.1995 in favour of her son Mr. Cyril Iqbal Khan, both to acquire free hold rights on the land as also to sell, enter into agreement, execute and discharge the property, vide paragraph 4 and 5 of the document.

7. Mr. Cyril Iqbal Khan exercised the rights given to him by her mother while she was alive and executed a deed of nomination in favour of Shri A.S.K. Sirkar, the father of the plaintiff and an agreement to sell after receiving Rs. 3,95,000/- from him as her attorney. It is alleged that the deceased also executed the disputed will in favour of Shri Ritesh Sirkar, son of Shri A.S.K. Sirkar, the plaintiff in Suit No. 3 of 2006 on 27.11.1995.

8. It is not denied that the portion of Plot No. 2, Rajapur Bandhwa, Allahabad, the house No. 7/7 and the house No. 8/9, N.K. Mukherjee Road, Allahabad constructed on the said plot is the only property left by the deceased, described in the will, and the schedule appended to both the cases. There is no other property left to be administered.

9. After the death of the deceased Shri A.S.K. Sirkar filed a Civil Suit No. 44 of 1999 for specific performance of contract. The suit was decreed ex parte on 7.8.2004. On that date she was not alive. She had died on 27.7.2004, a few days before the suit was decided. The plaintiff did bring her heirs on record and thus decree was a nullity. Shri A.S.K. Sirkar had also put the deed of nomination of obtaining free hold rights under the policy of the