S. KUMAR, J.:–Heard learned counsel for the parties.

2. This appeal has been filed under Section 299 of the Indian Succession Act, 1925, for setting aside the judgment and order dated 19.06.2010 passed in Probate Case No. 11 of 1989 passed by Additional District & Sessions Judge, FTC-II, Sheikhpura, granting Letter of Administration in favour of Sita Ram Yadav applicant/respondent.

3. Testator Syed Serajul Haque was son of late. Munshi Abdul Nahab Mokhtar

r/o Mohalla Yahiyapur, Sheikhpura, who was practising as Mokhtar in Munger and Jamui and died on 05.10.1975 at 5:00 am in his house at his village, and before his death, he had executed a Will on 01.10.1975, which was attested by Md. Imam Ali, Dayanand Gupta, Sishu Prasad and Sadhu Saran. The Will was scribed by Kameshwar Nath-Deed Writer, Sheikhpura, which was drafted on the instruction of testator and same was read over to the testator by the deed writer in presence of witnesses who attested the Will by putting their signatures in presence of testator. The Will was registered in the house of testator on 02.10.1975 by Sub-Registrar, Sheikhpura, and at the time of registration testator was identified by Karu Sah before the Sub-registrar, Sheikhpura and testator admitted due execution of Will before the Sub-registrar, Sheikhpura.

4. Application was filed before the Court by the legatee of the Will Sita Ram Yadav in whose favour the Will was executed. It has been further stated in the application that the original Will was in custody of petitioner Sita Ram Yadav however same was fraudulently taken away by Shameem Ahmad s/o late Wakil Ahmad as such certified copy of the Will was brought before the court. The entire property covered by Will was valued at Rs. 45,000/- and legatee is entitled to appropriate usufructuary in the ratio of 22 Sheers and 18 Sheers out of 1 Mann with respect to property as detailed in Schedule-1 of the Letter of Administration petition and out of sale proceeds of 22 Sheers first party would pay rent at first and remaining will be utilized by him for his personal needs and balance of 18 Sheers would be utilized for the charitable purpose as per terms spelt out in the Will. The properties in the Will are 1/3rd share of the entire estate left by the testator.

5. Application for grant of Probate and Letter of Administration was objected by the objectors Syed Akeel Ahmad, Syed Shamim Ahmad and Syed Naseem Ahmad and they filed their objection against the said petition of applicant. Objectors claim to be nephews of testator Syed Serajul Haque. In the entire objection they have stated that application for grant of Letter of Administration is not maintainable as the same has not been verified in the manner laid down under Section 281 of the Indian Succession Act. Attesting witness Dayanand Prasad Gupta has failed to prove the signature and due execution of Will. Testator Syed Serajul Haque was never regular practitioner as Mokhtar either at Jamui or at Munger. The signature over the registered will is forged and same is not of Sirajul Haque. The Will has been registered by practicing fraud upon Registering Authority. It has been further stated by the Objectors that the testator Syed Serajul Haque was seriously ill and confined to bed and was unable to move, since, 15 days prior to his death and had lost his mental capacity and was not in a position to know the nature and consequences of his acts and did not execute the Will in conscious state of mind.

6. Will is surrounded by suspicious circumstances. The certified copy of Will does not come within the meaning and definition of Will as defined under Section 2(H) of the Indian Succession Act. The property covered by the said will is more than 3/4th of the entire property left behind by the testator, as such is illegal as the testator was not empowered to execute the Will with respect to more than 1/3rd of his property.

7. On rival contentions raised by parties, trial Court framed three issues for its consideration and d