ABHINAVA UPADHYA,J. - (1.) BY means of this writ petition, the petitioner has challenged the order of the court below dated 11.11.2011 by which the application to reject the plaint under O.7 R.11 CPC has been rejected against which a revision was filed and the revisional court by its order dated 25.1.2011 has rejected the revision.
(2.) IT is submitted that the respondent Khoobchand, since deceased, filed a suit for cancellation of sale deed said to have been executed in favour of petitioner defendant. During the pendency of the said suit, Khoob Chand died and , therefore, respondents no.2 and 3 filed a substitution application for being impleaded as a party claiming themselves to be legal heirs of the plaintiff. They claimed to be legal heirs on the strength of a will dated 16.8.2000 said to have been executed by the plaintiff Khoobchand in their favour who is nephew of the executor who is said to have died issue less. The grievance of the petitioner is that in the will dated 16.8.200, the suit property has not been mentioned specifically. The suit property is of residential house and ,therefore, without the will being proved, respondents no.2 and 3 cannot be allowed to be impleaded as legal heirs of the plaintiff. Respondents no.2 and 3 were impleaded as legal heir on the strength of the aforesaid will. The petitioner then filed revision and the revision was allowed against which the respondents no.2 and 3 filed a writ petition being writ petition no.29301 of 2007. The writ petition was allowed and the order of the revisional court was set aside. While allowing the writ petition, this Court directed that while considering the suit for cancellation of sale deed, the court below will also look into the validity of the will executed in favour of respondents no.2 and 3. Against this order of this Court dated 10.3.2010, a Special Leave Petition was filed before the Supreme Court and the Supreme Court dismissed the SLP and directed the court below that while deciding the suit for cancellation of sale deed, it will also look into the validity of the will while leaving it open for the defendant to raise any objection that the petitioner may take before the court below.
(3.) IT is submitted that before the court below an application under O.7 R.11 CPC was filed stating that the will does not mention the number of property in question whereas with regard to other property in the will specific description has been given, therefore, the plaint ought to be rejected. The court below held that validity and genuineness of the will could be decided only after the parties are allowed to lead evidence and rejected the application.;