(2.)Application of Sec. 100-A of the Code of Civil Procedure, 1908 (for short, 'the Code') is involved in this appeal which arises out of a judgment and order dated 19.09.2005 passed by a Division Bench of the High Court of Rajasthan, Jaipur Bench, Jaipur in D.B. Special Appeal No. 22 of 1992.
(3.)The father of Appellant indisputably was the owner of the property. He died on 03.07.1973 leaving behind his widow Smt. Anandi Devi and the parties hereto. He allegedly gifted a portion of the house known as 'Anand Vihar' in favour of the appellant. On 22.02.1977, Smt. Anandi Devi died. She is said to have executed a Will on 28.01.1977 in favour of Respondent No. 1 herein. An application for grant of probate in respect of the said Will came to be filed by her in favour of Respondent No.1 herein. Appellant entered into caveat in the said proceeding. The application for grant of probate was registered as Probate Case No. 31 of 1978 which was converted into a suit. Appellant herein raised the objections, inter alia, on the following grounds :
"1. That Shrimati Anandi Devi Upadhyaya neither executued any Will and Testament dated 28.01.1977, nor was she physically and mentally fit to execute any Will and Testament as she had been suffering from Cancer since January, 1976 and had been confined to bed in a very critical and serious condition since December, 1976 until her death. Moreover, Shrimati Anandi Devi had been mentally and physically handicapped and was not of sound disposing state of mind. Hence the execution of the alleged Will and Testament is emphatically denied and the petitioner be put to strict proof of it. Moreover Shrimati Anandi Devi had no right or title to execute any will and Testament of the proportion described in the annexed affidavit due to the reasons below : (A) That late Shri Ganeshi Lal Upadhyaya had three daughters namely Shrimati Kamla Devi, Shrimati Nihal Kanwar and Shrimati Kushal Kanwar and a wife Shrimati Anandi Devi and Shri Ganesh Lal Upadhyaya expired on July 3, 1973, at Jhansi (UP).
(B) That Shri Ganeshi Lal Upadhyaya gifted to Shrimati Kamla Devi a portion of open plot bearing area 34 ft. x 25 fit. of Anand Bihar now bearing AMC No. 258 / 1 on the eve of her marriage in Kanyadan and he had made a note of the abovesaid gift in his daily diary dated 6.05.1956, which is in the possession of the petitioner and also mentioned in an application to the Municipal Council, Ajmer, dated November 11, 1970. Shrimati Kamla Devi got construction erected by her and her husband's means in December, 1963.
(C) That except the property of Shrimati Kamla Devi described in para No. 2 above, late Shri Ganeshi Lal had the property namely Anand Bihar bearing AMC 258 situated at Rajendrapura, Hathi Bhata, Ajmer in his own exclusive possession and ownership as the said property was got constructed by late Shri Ganeshi Lal by his own means on the land purchased by him in his own name.
(D) That the late Shri Ganeshilal was survived by three daughters namely Shrimati Kamla Devi, Shrimati Nihal Kanwar and Shrimati Kushal Kanwar and his wife Shrimati Anandi Devi.
(E) That on February 22, 1977, Shrimati Anandi Devi died at Ajmer and thus three daughters, being the only survivors, jointly inherited the property AMC 12/258 Anand Bihar, Ajmer and movable property including gold and silver ornaments, two motor cars, utensils etc.
(F) That after the death of late Shri Ganeshi Lal the said immovable and movable properties were inherited by four survivors namely his wife Shrimati Anandi Devi and his three daughters. Consequently, Shrimati Anandi Devi, if ever wished to execute any Will although she never did, never execute the Will of her only share in the immovable property. But as she did not execute so, the property has been inherited by her three surviving daughters."