Rudra Prakash Mishra, J.—The present appeal has been filed against the order dated 05.03.1992 passed by Shri Kumar Ganesh Dutt, 4th Additional District Judge, Rohtas at Sasaram in T.S. No. 2/86 arising out of Probate Case No. 33 of 1985 by which the Court below has dismissed the suit as not maintainable.

2. The appellant filed the Probate Case No.33 of 1985 for grant of probate and letters of Administration with respect to the property described in Schedule-A, B and C of the petition left by Late Kanji Sahay. In paragraphs 7 and 8 of the petition of Probate case, it has been stated that Late Kanji Sahai executed a deed of will in the name of petitioner on 19.12.1951 with the condition that his first wife Maina Devi @ Manraj Kuer and second wife Mundrika Devi @ Mundrika Kuer shall remain in possession of the land and properties left by the testator during their life time. It was further laid down that the wives of the testator shall deposit the usufruct and income of the properties left by the testator and the savings after the expenses towards their maintenance. It was further mentioned in the Will that after the death of his wives the appellant shall be entitled to take actual possession as the absolute owner over the lands and properties of the testator, movable and immovable and shall be entitled to deal and manage as title holder. The testator died in the month of June, 1952.

3. It is further case of the appellant that the first wife of Late Kanji Sahay, namely, Maina Devi @ Manraj Kuer died on 31.12.1968 and the second wife Mundrika Devi @ Mundrika Duer died on 30.9.1984. The Kanji Sahay had no issue from both the wives and, as such, he filed the case for grant of probate and letter of administration. It is the further case of the appellant that one Lalit Prasad, Respondent No.3 (now deceased and substituted by his heirs and legal representative) had been wrongly claiming as the adopted son of Late Kanji Sahay. Late Kanji Sahay had not given any instruction to his wives to adopt Lalit Prasad. Lalit Prasad got a fraudulent decree of adoption which was challenged in the title suit and the same was dismissed and affirmed by the Lower Appellate Court but in the second appeal a compromise decree was obtained fraudulently by Lalit Prasad.

4. Respondents appeared in the suit and objection was filed on behalf of Respondent no.3 (adopted son of Late Kanji Sahay) in the probate case upon which it was converted in the title suit as T.S. No. 2/1986 in which it was pleaded inter alia that appellant had earlier filed a Probate Case No.100 of 1984 which was dismissed and therefore present probate case is not maintainable. Respondent No. 3 had pleaded in the rejoinder that he is the adopted son of Late Kanji Sahay who never executed a will on 19.12.1951. It is the case of Respondent No. 3 that Maina Devi @ Manraj Kuer died on 31.1.1966 and not on 31.12.1968 and after death of the Kanji Sahay, the respondent No.3 was adopted by the senior widow Manraj Kuer with the consent of Mundrika Kuer as directed by Kanji Sahay and both the widows had also executed a registered deed of adoption on 13.3.1961 admitting the factum of adoption. The suit challenging adoption has been compromised before this Hon’ble Court in Second Appeal No.368 of 1979 in which adoption has been accepted by Mundrika Kuer. There was registered partition among the two widows of Late Kanji Sahay and the adopted son (respondent No.3) through registered deed of partition dated 18.4.1963 and thereafter Mundrika Kuer had transferred some of the property allotted to her on partition. The respondent No.3 had also transferred the some of the property which are in possession of the transferee and, as such, he requested for dismissal of the case being not maintainable.

5. The court below i.e. the Trial Court, on the basis of objection raised by the respondent No. 3 about the very maintainability of the suit, had decided the same on the basis of pleadings, petitions and submission of the