The instant appeal has been preferred against the judgment and order dated 05.09.2001 passed by Sri Arun Kumar Srivastava, the then 2nd Additional District Judge, Buxar in Title Suit No. 16 of 1992 whereby and whereunder the Probate Petition filed by the plaintiff was dismissed on contest but without cost. The plaintiff is the appellant whereas the defendants are the respondents.

2. The plaintiff/appellant filed an application in the court of Sub-Judge Ist, Buxar giving rise to Probate Case No. 23 of 1991 and on objection the same was converted as Title Suit No. 16 of 1992. The plaintiff has filed the aforesaid suit for obtaining probate regarding the registered deed of Will dated 09.12.1974 executed by the Testator Raghubansh Dubey regarding the estate of the deceased fully detailed in Schedule-A at the foot of the petition of Probate.

3. As per the case of the plaintiff, one Raghubansh Dubey @ Bachchan Dubey duly executed a Deed of Will on 09.12.1974 and Suraj Dubey and Srinath Sahay were the witnesses. The aforesaid Will was registered under the provision of Indian Registration Act. The Testator Raghubansh Dubey @ Bachchan Dubey died on 26.11.1989 at village Chausa and the Deed of registered Will is his last Will and the suit property described in schedule-A belongs to the Testator and also owned and possessed by the deceased at the time of his death which have come or likely to come in the hands of the plaintiff. The plaintiff is the executor of the said registered Will. The deceased Testator, at the time of his death, had permanent abode at village Chausa and the property in question is also at village Narbatpur, P.S.- Buxar within the jurisdiction of the Court. The plaintiff is the grandson of the deceased Testator and no such Probate Case was filed earlier either before this Court or any other Court.

4. The case of the defendants, as per the written statement, in short, is that the suit is not maintainable, the value of the suit property is more than Rs. 1,00,000/- and unless the court fee is not paid the suit cannot proceed. The plaintiff has not complied the provision of Section 278 of the Indian Succession Act and has not mentioned the names of the relations of the deceased and also did not mention the names of persons who are interested in the estate of the deceased. The plaintiff has suppressed the fact that the Testator Raghubansh Dubey executed a registered deed of gift in favour of the defendants on 30.05.1977 and the Will in question is not the last Will of the deceased. The aforesaid Will is not validly executed and attested and that was not executed after fully understanding the contents of the deed. The same has been obtained by fraud upon the deceased with the collusion of the witnesses and scribe. The deed of gift dated 30.05.1977 executed by Testator Raghubansh Dubey in favour of the defendants is a valid document and on that basis Mutation was also done and the defendants are in possession over the same. There was a dispute regarding suit property with one Babuli Ahir under Section 48 E of the B. T. Act regarding the suit property with the defendants and ultimately the defendants succeeded therein. Raghubansh Dubey also sold plot No. 495, 476 of village Chausa and plot No. 996, 1004 of village Narbatpur and as such the plaintiff is not entitled to get any probate regarding the same.

5. On the basis of the pleadings of the parties the learned court below framed the following issues:

(I) Is the suit maintainable under law ?

(II) Is the suit properly valued ?

(III) Whether the Will in question is fraudulent, genuine and executed by the Testator by free Will and properly attested by the witnesses thereon ?

(IV) Whether the Will in question is a last will executed by the Testator ?

6. Learned Court below without deciding the issues involved came to the conclusion that at the time of the death of the Testator, the suit property was not owned and possessed by the deceased Testator and, as such, question of com