CHAKRADHARI SHARAN SINGH, J.

The judgment and order 19.02.2015, passed in Test Suit No. 02 of 1999 arising out of Testamentary Case No. 02 of 1993 by a learned Single Judge of this Court, whereby the suit seeking issuance of letter of administration in respect of a Will has been dismissed, is under challenge in the present appeal under Clause X of the Letters Patent of the High Court of Judicature at Patna.

2. This appeal was admitted by an order dated 09.08.2017, and accordingly, it has been heard for final adjudication.

3. We have heard Mr. Yogendra Mishra assisted by Mr. Bhanu Pratap Singh, learned Advocates for the appellants and Mr. L.N. Das assisted by Mr. Umesh Prasad, learned Advocates for the respondents.

4. The plaintiffs case in brief, is that one Ram Chandra Lal Yadav died leaving behind his widow Amrit Devi, and two sons, namely, (i) Sri Surendra Yadav and (ii) Sri Gyanendra Prasad Yadav @ Shashi Baboo and three daughters, namely, (i) Smt. Savitri Devi, (ii) Smt. Sharda Devi and (iii) Smt. Purnima Devi. Sons of Gyanendra Prasad Yadav, namely, Indra Kumar, Amar Yadav and Tapan Rai are the plaintiffs/appellants herein. Surendra Yadav had three sons, namely, (i) Uday Prakash, (ii) Raj Shekhar @ Bunty and (iii) Ritesh Shekhar @ Baua Lal. Whereabouts of Uday Prakash is not known for the last 15-16 years. Surendra Yadav had two daughters also, namely, Neelam Devi and Parmita Devi. Anju Devi and Biabhav Vikash are the wife and the son respectively of the aforesaid Uday Prakash Yadav, who is traceless. Amrit Devi, the grandmother of the plaintiffs/appellants had acquired some land and constructed a building thereon and remained in exclusive possession thereof. She executed a Will on 24/25.8.1992 in favour of the plaintiffs in respect of the said land and the building, held and possessed by her as stridhan, as mentioned in the Will. She died on 23.09.1992.

5. After her death, the plaintiffs filed Testamentary Case No. 02 of 1993 before this Court for probate of the Will. Surendra Yadav, on service of summons appeared and filed Caveat and objection against probate of the Will leading to conversion of the said Testamentary Case No.02 of 1993 into a suit which came to be registered as Test Suit No. 02 of 1999.

Defendant’s/Appellant’s case.

6. The case of the defendant as pleaded in his Caveat and the affidavit filed under Rule 18 of Chapter XI of Part II of the Patna High Court Rules has been that the Will is not genuine, rather, forged and fabricated. The Testatrix had left behind her two sons and three daughters with whom she was equally affectionate. She was equally affectionate to all her grandchildren also and, therefore, it was improbable and false that she would leave behind the will bequeathing the premises only to the applicants. Late Amrit Devi, the Testatrix was a literate lady and had signed over a number of documents in her life time whereas the alleged Will does not bear her signature, which signifies that it was not executed by her. The left thumb impression bearing on the Will was also not genuine, rather, it was forged. The Will is ante dated and had been concocted and brought into existence by the father of the applicants, namely, Gyanendra Pd. Yadav who is a litigious person. The Will was never drawn at the instance of said Testatrix nor it was read over to her nor did she execute it, after understanding the contents of the alleged Will. The premises in question was in fact acquired by the father of the objector, namely, late Ram Chandra Lal Yadav in the name of his wife and the building over the land was constructed by his father with his own resources in which the entire family lives.

7. The Testatrix had become very old and was about 90 years as on the date of the death. She had lost her power of understanding for nearly six months prior to her death and was, therefore, completely depending on others. She was being looked after and served by her elder son Surendra Nath Yadav and his family members. Fat