1. The defendants have filed this First Appeal against the Judgment and Decree dated 14.02.1979 passed by the learned Addl. District Judge, Motihari, District Champaran in title suit No.2 of 1975 / probate case No.27 of 1971.

2. The plaintiff-respondent filed the aforesaid suit for grant of probate and letters of administration in their favour on the basis of the Will dated 30.10.1956 said to have been executed by Fauzdar Chaudhary. According to the plaintiffs the property mentioned in Annexure-I to the plaint belonged to Fauzdar Chaudhary who died on 25.12.1956 leaving behind daughter's son. The said Fauzdar Chaudhary executed Will on 30.10.1956 in favour of her nephews, i.e., the plaintiffs out of his freewill in sound state of mind.

3. The appellants who are the sons of daughter of Fauzdar filed written statement. Another written statement was filed by the daughter Sampati Devi. Their main contention is that the Will is forged, fabricated and not executed by Fauzdar. On the death of Fauzdar, the daughter and the sons of deceased daughters are coming in possession of the property.

4. After trial, the trial Court decreed the suit and probate was granted.

5. The learned senior counsel for the appellant submitted that the Will in question is not at all a Will rather by the document, Fauzdar had appointed heirs excluding the natural heirs. The plaintiffs are not appointed as executors, therefore, no probate could have been granted in their favour. In the alleged Will, the deceased Fauzdar Chaudhary did not mention the properties and no evidence has been adduced as to which are his properties. The learned counsel further submitted that only one attesting witness has been examined who has not identified the signature of other attesting witnesses. One of the defendants witness has denied that the other signature is that of Bachhu Lal the alleged attesting witness. Therefore, there was only one attesting witness, so it is not executed according to law. The scribe has not been examined by the plaintiff. The properties are still joint, therefore, there is no evidence as to which property is his property and no probate can be granted with respect to undivided share only. The learned counsel further submitted that the alleged Will was executed in the year 1956 and the preset probate application has been filed in the year 1971, i.e., after 15 years and there is no proper explanation as to why there is such delay. The probate can be granted to executor only. There is no explanation given by the plaintiff as to why a father Will displaced the natural succession of the property in favour of his daughters and daughter’s son. The learned counsel relied upon a decision of this Court reported in 2011 (1) P.L.J.R. 845.

6. On the other hand, the learned senior counsel, Mr. Shahi, submitted that the specific case of the plaintiff is that there was partition between Fauzdar and the father of the plaintiff and they were coming in possession of the properties separately. No doubt, the properties has not been mentioned in the Will but in the list Annexure I, the plaintiffs have mentioned that the properties are the property of Fauzdar Chaudhary. From reading of the document, it will be clear that it is a Will and nothing else. Two witnesses have attested the same but admittedly, the other attesting witness has died, therefore, in view of Section 68 of the Evidence Act, only one attesting witness has been examined as P.W.9. The other witnesses have also supported the case of the plaintiff that the Will was executed in their presence. Expert has also been examined who has proved his report, who compared the disputed signature on Will with admitted signature of Fauzdar Chaudhary. The defendants witnesses D.W.10 has admitted that the attesting witness Bachhu Lal has died. According to the learned counsel, it is not necessary to examine the scribe. So far delay is concerned, according to the law, the limitation will start running from the date