Arun Kumar Jha, J. – The instant civil miscellaneous petition has been filed by the petitioner to challenge the order dated 30.08.2023 passed by the learned Additional District Judge-I, Purnea in Misc. Case No. 59 of 2019 filed for restoration of Probate Case No. 09 of 1997/converted into Title Suit No. 02 of 2000, which has been allowed.

2. Briefly stated, the facts of the case are that the respondent -1st set filed a probate case bearing No. 09 of 1997 for probate of the Will of one Mukur Chand Modi. Mukur Chand Modi made and published his last will and testament appointing respondent- 1st set as sole executor. The testator died on 10.08.1997. The details of the property have been mentioned in Schedule-1 of the probate petition. After issuance of notice, original defendants appeared on 10.07.1998 and filed their written statement. The petitioner is the daughter of testator- Mukur Chand Modi. The original defendants were the mother and the brothers of the petitioner. They admitted that the land in question in Probate Case No. 09 of 1997 was allotted in the share of Mukur Chand Modi after a partition took place between Mukur Chand Modi and his brothers. Thereafter on 07.04.1981 further partition took place for the entire property of Mukur Chand Modi between his two sons, Sukhdev Prasad Modi and Baldeo Prasad Modi. It has also been submitted by the defendants that the land of the probate case was allotted in the share of Mukur Chand Modi for his maintenance as well as maintenance of his wife and daughter but the testator failed to maintain the wife and started leading an immoral life with one Chameli Devi, mother of Sanichar Rishi who has filed the probate petition on behalf of Sri Sri 109 Mahabir Jee. When Mukur Chand Modi stopped to maintain his wife, his wife Bholiya Devi filed a maintenance case under Section 125 Cr.P.C. vide Case No.49(M) of 1989, which was contested by Mukur Chand Modi. However, he lost the case and was directed to pay maintenance allowance to his wife by the learned Judicial Magistrate, Purnea. The maintenance order was confirmed by the court of the then learned Sessions Judge. Therefore, the testator-Mukur Chand Modi had been carrying a grudge against his sons and daughter that they did not persuade their mother to withdraw the maintenance case. Mukur Chand Modi died at the age of 85 years and had lost his capacity to understand anything. Yet, it is said that Mukur Chand Modi, in order to debar his sons, his daughter and wife, to claim his share in the property given for his maintenance created three deed on 23.09.1991, one such deed is the Will in which the probate petition has been filed and other two sale deeds are stated to be executed in favour of Chameli Devi. But Mukur Chand Modi has no right to transfer the land given for maintenance in terms of family arrangement. The defendant-petitioner claimed that these deeds are false and inoperative and Mukur Chand Modi never executed any of those deeds in own senses and after understanding the effect of the deeds. As there has been challenge to execution of the Will, the probate case was converted into a title suit, bearing Title Suit No. 02 of 2000 on 22.09.2000. In 1997, wife of Mukur Chand Modi, Bholiya Devi filed a title suit bearing No.455 of 1997 against Chameli Devi. The said suit was filed by the plaintiff seeking a relief that suit land belonged to the plaintiff and defendants first party and defendants 2nd party have not got any right, title and interest over the entire suit land of Schedule- A, B and C. Further declaration has been sought that the sale deeds executed in 1991 were false, fraudulent and collusive and not binding upon the plaintiff. Vide judgment dated 28.03.2018 and decree dated 09.04.2018, the learned Sub Judge-III, Purnea dismissed the suit of the plaintiff. Thereafter, being aggrieved with the aforesaid judgment and decree, the present petitioner preferred Title Appeal No. 49 of 2018 before the court of learned District Judge,