Khatim Reza, J. – Heard learned counsel for the appellants and learned counsel for the respondents.

2. This appeal has been filed against the judgment and order dated 28.09.1977 passed by the Additional District Judge-Vth, Patna in Title Suit No. 17 of 1976/01 of 1976 arising out of Probate Case No. 160 of 1972 whereby the learned lower court has dismissed the probate as not maintainable.

3. The appellant has filed an application for grant of probate of Will executed in favour of the appellant. The case of the appellant, is that, Ajodhya Rai executed a Will in favour of the original appellant-(plaintiff) and his two brothers on 18.06.1967. It is further contended that at the time of executing a Will he was in state of sound mind and he possessed of full disposing capacity. The contents of the Will were read over and explained to him and he fully understood the same and thereafter, voluntarily with his free consent executed the Will. It is further contended that it was duly attested. The applicant-appellant filed Probate Case No. 160 of 1972 for grant of probate of Will. After objection being filed by opposite party-respondent nos. 1 to 4, the said probate case was converted into Title Suit No. 17 of 1976/01 of 1976. The other two brothers, who are beneficiaries under the Will was made opposite party/defendant nos. 2 and 3 in the probate case. It is submitted that at the time when the said Will was executed, the appellant was minor and so under the Will Shri Ram Baran Rai, the father of the appellant and defendant nos. 2 and 3 was authorized to manage the property of the testator after his death during the minority of the appellant and other beneficiaries. The properties under the Will has been described in Schedule annexed with the application.

4. Most. Mungia Devi wife of Late Ajodhya Rai and Bishundhari Prasad (defendant no. 4) filed objection alleging that the Will, in question, is not genuine and is forged, fabricated and without the knowledge of the alleged testator. It is further contended that the testator was not of sound mind at the time of execution of Will. He was suffering from mylities since 1965 and had become both physically and mentally incapable of understanding the questions put to him few days before his death and also stated that no probate can be granted.

5. During the pendency of aforesaid title suit (proabate case), Most. Mungia Devi and Bishundhari Prasad-objectors defendant nos. 1 and 4 filed a joint petition and raised a preliminary objection with regard to maintainability of probate suit on the ground that the Will has been executed with respect to the Raiyati land (agricultural land). The Will is unregistered and under the provision of Section 16 (2) (iii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Lands) Act, 1961, the Will in respect of agricultural lands must be a registered document. In such circumstances, the said probate suit is not maintainable and is liable to be dismissed on the ground of maintainability as a preliminary issue and prayed to decide the same first.

6. The learned lower court below after hearing the parties on the point of preliminary issue, framed the preliminary issue i.e., whether the petition filed by the applicant is maintainable?

7. After hearing the parties, the learned lower court on 28.09.1977 dismissed the probate suit on the ground of maintainability holding that the said Will is unregistered and is in teeth of Section 16 (2) (iii) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Lands) Act, 1961 in view of the decision of this Court reported in case of Shrimati Dil Kuer alias Akali Devi and Ors reported in AIR 1976 Patna 193. The Hon'ble Court has held that the registration of Will is necessary for grant of probate when it relates to the raiyati land according to the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Lands) Act, 1961. Thereafter, application filed by the applicant for gran