I.A. Ansari, J.

1. This is an appeal against the order, dated 30.11.2002, passed by the learned Additional District Judge, Nagaon, in Title Suit No. 9(N) of 1997, allowing the Respondent’s application for probate.

2. I have heard Mr. S.K. Barkataki, learned Counsel for the Appellants and Mr. N. Choudhury, learned Counsel, appearing on behalf of the Respondent.

3. The material facts, giving rise to the appeal, may, in brief, be set out as under:

The Respondent herein made an application, under Section 266 of the Indian Succession Act, 1925, seeking probate in respect of a Will, which, according to the applicant-Respondent, was the last Will and testament of his grand-father, Deosaran Ram, leaving behind the applicant-Respondent and some others as his heirs and successors, the applicant-Respondent 's case being, in brief, thus: The writing, annexed to the application for probate, is the last Will and testament of Deosaran Ram, who died, on 16.5.1984, at Behca, District Bhojpur, in the State of Bihar, Lumding, in the district of Nagaon, Assam, being his permanent place of abode at the time of his death. The Will, so executed, was duly attested by witnesses, the applicant-Respondent having been appointed as the executor under the said Will, which was registered with the Office of the Sub-Registrar, Nagaon. The registered Will, in original, was submitted, in a land ceiling case, by the applicant's counsel, namely, Jagat Bandhu Das (since deceased). However, the Will was misplaced and the applicant failed to trace out the Will even after vigorous search at the chamber of the advocate and also in the land ceiling case. The certified copy of the Will has, therefore, been obtained on 12.6.1996 and the accused-Respondent, having been appointed under the said Will, as the executors, needs to be granted probate.

4. The Appellants herein, who appeared as opposite party in the probate proceeding, filed their objections to the applicant's prayer for granting him probate, their objection being, briefly stated, that the application for probate is untenable in law in its present form, there is no valid, ground for application for probate, the application suffers from non-joinder and mis-joinder of parties and that the application also suffers from waiver, estoppel and acquiescence. The Appellants, while opposing the application for probate, contended that the testator never executed or registered the alleged Will nor was there any reason for him to do so. The Will, which the applicant was seeking probate of, was a fraudulent, collusive and manufactured document. The testator had no reason or intention to deprive his other heirs of their rightful inheritance in the properties of the testator. Late Deosaran Ram Shah married three wives, namely, Sumindra Devi (since deceased), Dularia Devi (since deceased) and Smt. Maya Devi. From Sumindra Devi, Dewsaran Ram got one son, namely, Munilal and four daughters, namely, Bhogmoni Devi (since deceased), Santi Devi, Sulochana Devi and Geeta Devi. Bhogmoni Devi died leaving Kamakhya Prasad Gupta and Sital Prasad Gupta as sons and Nirmala Devi, Uma Devi, Munu and Krishna Devi as daughters. Through the testator's second wife, namely, Dularia Devi, the Testator, Dewsaran Ram, got two sons, namely, Gopilal Gupta and Motilal Gupta and a daughter, Tulawati. On the death of the said deceased, all his properties, including the properties covered by the purported Will of the said deceased, devolved on his heirs and the heirs have had been in possession and enjoyment of their respective shares in the properties left by the said deceased. The names of the heirs have accordingly been mutated as per their respective shares in the said properties within the knowledge of the heirs of Motilal Gupta, whose one of the sons, namely, Jibanlal, is the applicant. Neither Jibanlal Gupta nor his brother, Dhirajlal Gupta (who is one of the sons of Motilal Gupta), ever asserted, in the mutation proceedings, that the said deceased ha