Sandeep Kumar, J. – The instant First Appeal has been filed by the original appellant / plaintiff namely, Chuman Narain Singh against the judgment and decree dated 22.02.1999 passed by the 2nd Additional District Judge, Aurangabad, in Title Suit (Probate) Case No.03 of 1979 (01 of 1993), whereby the grant of probate was refused by the learned Judge upon determining that the property as defined under the Will dated 25.08.1977 to be an undivided property.

2. During the pendency of this appeal, the original appellant / plaintiff namely, Chuman Narain Singh died. Vide order dated 09.01.2013, a coordinate Bench of this Court allowed two Interlocutory Applications i.e. I.A. Nos. No.7066 of 2007 and 213 of 2012 for substitution of legal heirs of the deceased- appellant and accordingly, the legal heirs of original appellant are on record.

3. The facts of this case, as culled out from the records of the case, are that on 25.08.1977, a Will was executed by one Matukdhari Singh who was the maternal uncle of the executor and the original appellant/plaintiff namely, Chuman Narain Singh. In the said Will, one Pukar Narain Singh and Kishore Narain Singh were also legatees. Thereafter, the Will was registered on 28.11.1978. There were altogether, three attesting witnesses of the Will namely, Ramadhar Mishra, Sidheshwar Singh and Ramji Tiwari and the scribe of the Will was one Vinay Kumar Singh. The testator of the Will died on 02.09.1977.

4. Bishun Singh was the father of the testator-Matukdhari Singh. He had four sons namely, Premdhari Singh, Namedhari Singh, Jagdhari Singh and Matukdhari Singh. Out of the four sons, Premdhari Singh and Namedhari Singh died issueless prior to the execution of the Will. Matukdhari Singh executed the Will in favour of his maternal nephews (bhagina) i.e. the sons of one of his sisters. Therefore, the testator- Matukdhari Singh executed the aforesaid Will in favour of the executor-Chuman Narain Singh and his two brothers namely, Pukar Narain Singh and Kishori Narain Singh.

5. It is the case of the appellants that the testator-Mathukdhari Singh during his life time executed the Will bequeathing the property to the original appellant / plaintiff and his brothers. In the month of September, 1977, the testator- Mathukdhari Singh passed away and thereafter the aforesaid last Will and testament of the testator was registered on 28.11.1978 under the Indian Registration Act, 1908. Subsequently, on 26.06.1979, the original appellant-plaintiff Chuman Narain Singh preferred a probate case under section 276 of the Indian Succession Act, 1925, which was registered as Probate Case No.03 of 1979. In the aforesaid Probate Case, a caveat was filed by one Suresh Prasad Singh, son of Jadunandan Singh on 04.09.1980. This Caveator was the grandson of another sister of the testator-Matukdhari Singh and the aforesaid caveator was subsequently added as a party in the probate case.

6. On 12.04.1990, a written statement was filed by the caveator-Suresh Prasad Singh stating therein that he had filed the caveat in the case on 04.09.1980 and testator- Matukdhari Singh had died in the month of September, 1977 leaving behind his brother Jagdhari Singh and his heirs and successors who inherited his property including the lands and house covered under the disputed Will and thereafter, came in possession. In the written statement, it has also been stated that said Jagdhari Singh performed Shradh ceremony of testator- Matukdhari Singh and to meet the cost of ceremony he sold some land covered under the disputed Will through different registered sale deeds to one Sheosharan Sao and others and further stated that Jagdhari Singh also gifted land and house to the caveator-Suresh Prasad Singh which was covered under the disputed Will vide registered gift deeds dated 02.11.1977 and 18.01.1979 and thereafter caveator-Suresh Prasad Singh acquired possession thereon as donee.

7. Subsequently, upon contest the aforementioned Probate Case was converted into a tit