- (1.) 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 seeksgrant of probate of the property of late Daisy Myrtel Khan (the deceased) widow of late Munawwar Khan, resident of C-13 3, Paper Mili Golony, 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 ontested 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. 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 dueexecution 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 misre presentation 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. Issue No. 3 was refrained on 7. 9. 2007.
(3.) 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 15th share in House Nos. 77 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 re-spective parties for execution in pursuance of the respective wills dated 27. 11. 1995 and 15. 12. 1995areliabletobedismissed. " It is admitted that the deceased had executed a registered power of attor-ney dated 7. 12. 1995 infavourof herson Mr. Cyril lqbal Khan, both toacquirefree hold rights on the land as also to sell, enter into agreement, execute and discharge the property, vice paragraph 4 and 5 of the document.;