Arun Kumar Jha, J. – The petitioner has challenged the order dated 18.03.2019 passed by the learned 4th Additional District Judge, Bhojpur at Ara in Misc. Appeal No. 01/2017 whereby and whereunder the petition dated 31.01.2018 filed by the petitioner challenging the maintainability of the appeal in the court of learned Additional District Judge has been dismissed.

2. Brief facts of the case, as it appears from the record, are that the petitioner filed Probate/Letters of Administration Case No. 76/2006 in the court of learned Sub Judge-1, Ara. In the said case, the petitioner submitted that the father of the petitioner, namely Udho Mishra had two sons, namely Adityadeo Mishra and Ashutosh Kumar Mishra (the petitioner herein) and one daughter, namely Madhuri Mishra. The daughter of Udho Mishra was married with one Satish Kumar Tripathi, who was the only son of his father, namely Tirth Raj Tripathi. Satish Kumar Tripathi died issue-less in 1979 and from the side of her husband, Madhuri Mishra had no legal heir. The said sister of the petitioner executed a registered Will on 10.10.2006 in respect of all her properties in favour of the petitioner. The testatrix died on 10.11.2006 and Shradh etc. was performed by the petitioner. The only near relatives of the testatrix were the brother Adityadeo Mishra and the father Udho Mishra. After the death of the testatrix, the petitioner came into possession of all her properties. Thereafter, a prayer was made for grant of Probate/Letters of Administration to the estate of the deceased Madhuri Mishra. Subsequently, certain amendments were made with regard to the details of the properties which could not be mentioned earlier, which were allowed. The near relatives of the testatrix, namely Udho Mishra and Adityadeo Mishra filed their written statement stating that the registered Will in favour of the petitioner was genuine and valid and they had no objection to the grant of Probate/Letters of Administration in favour of the petitioner. After consideration of all aspects of the matter, the learned Sub Judge-1, Bhojpur at Ara granted Probate Certificate in respect of the said Will in favour of the petitioner under Section 289 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’).

3. Further case of the petitioner is that after grant of Probate, its preparation and sealing and signing on 23.07.2010/13.08.2010, the respondents herein filed Revocation Case No.10 of 2013 in the court of learned Sub Judge-1, Bhojpur at Ara for revocation of the Probate/Letters of Administration in respect of the Will dated 10.10.2006 in favour of the petitioner. The revocation petition was filed with allegation that the father-in-law of testatrix Madhuri Mishra had two daughters as well and this fact was suppressed when the Letters of Administration Case No. 76/2006 was filed. The respondents further stated that they learnt about grant of Probate only in May, 2013, got the certified copy of the order dated 29.05.2013 and filed Revocation Case No. 10/2013 on 01.06.2013. The petitioner contested the claim of the respondents. The learned Sub Judge-1, Bhojpur at Ara, after detailed hearing, dismissed the revocation case vide order dated 09.12.2016. Thereafter, a Misc. Appeal No. 01/2017 was filed by the respondents against the petitioner in which a notice from the court of learned 4th Additional District Judge, Bhojpur at Ara was received by the petitioner. The petitioner made his appearance in the said Misc. Appeal No. 01/2017 and filed a petition on 31.01.2018 challenging the maintainability of the appeal before the learned 4th Additional District Judge. The learned Additional District Judge, after hearing the parties, vide order dated 18.03.2019, dismissed the petition of the petitioner holding that the appeal was maintainable. The said order is under challenge before this Court.

4. Mrs. Anju Narain, the learned counsel appearing on behalf of the petitioner submitted that the impugned order is illegal