Heard Mr. L.K. Lal, learned counsel appearing for the appellants at length, who assailed the impugned judgment on various grounds.

2. This appeal has been filed against the judgment and decree dated 14.6.2005, passed by learned 4th Additional District Judge, Palamau at Daltonganj in Title Suit No. 1 of 1991, whereby it has been ordered and decreed that the plaintiff (respondent no. 1) and defendant nos. 2,3,4 ( respondent nos. 2,3, and 4) are legatees in the last Will and Testament of the Testator-Hawaldari Ram Gupta and are entitled for grant of Letter of Administration regarding the original Will annexed with the said grant with respect to subject matter of the Will.

3. The plaintiff-Brajendra Prasad Gupta ( respondent no. 1) filed an application for grant of Letter of Administration with respect to the Will dated 9.6.1970 executed by Hawaldari Ram Gupta. Hawaldari Ram Gupta died on 14.1.1978. The opposite parties therein challenged the said Will and thereupon the said Letter of Administration Case No. 7/1987 was converted into a title suit being Title Suit No. 1/1991.

4. According to the plaintiff, Hawaldari Ram Gupta, being Karta of the family, acquired some properties including the house and land standing over plot no. 554, situated at Mohalla Hospital Road in the name of his eldest daughter in law ( Putoh) Bindeshwari Devi. In the Will, a portion of the said property was bequeathed in favour of the legatee or executor of the said property acquired by the said testator. The properties were treated as joint family properties of Hawaldari Ram Gupta and his sons. Hawaldari Ram Gupta had three wives. Defendant no. 6-Yugal Prasad Gupta-appellant no. 2 herein, is the son from first wife-Bindeshwari Devi. Lalit Prasad Gupta-defendant no. 5-appellant no.1 herein is the son of second wife and the plaintiff-Brajendra Prasad Gupta and other defendants-defendant nos.1,2,3 and 4 were the sons and grandsons of the third wife. Under a registered Partition Deed dated 15.10.1965, an area of 10 decimals under Khata No. 554 was allotted to Hawaldari Ram Gupta, which land and the house is the subject matter of the Will. The amount of assets was valued at Rs.30,000/-, out of which plaintiff was entitled to 1/3rd share. His other brothers Girendra Prasad Gupta ( defendant no. 1 since deceased) and Mahabir Prasad Gupta were entitled to 1/3rd share each.

5. According to the plaintiff, the original Will was not with him. Defendant no. 5-Lalit Prasad Gupta-appellant no. 1 herein, obtained possession of various documents including the Will but did not handover the same to the plaintiff in spite of several requests and therefore the certified copy of the Will obtained from Registration Office was annexed.

6. The defendants-appellants categorically admitted due execution, attestation and registration of the Will. Defendant no. 5appellant no. 1 herein, who mainly contested the case, contended that the property was not personal property of Hawaldari Ram Gupta, though he admitted due execution of the Will by him but asserted that it was revoked under Revocation Deed dated 11.3.1974 ( Ext. E) and subsequently under the deed of Izazatnama dated 26.4.1974 ( Ext-F). The defendant no. 6-appellant no. 2 herein also admitted due execution of the Will but challenged the title of his father-Hawaldari Ram Gupta and asserted that the property under the Will was purchased by his mother-Bindeshwari Devi, out of her own Stridhan, which could not be partitioned and the deed of partition was not binding on Bindeshwari Devi and therefore his father could not bequeath the property mentioned in the Will.

The trial court framed several issues. It was rightly held that the partition of the year 1965 and challenge to the title of the testator cannot be considered and any finding given in this proceeding in that regard will be beyond the scope of this proceeding. It was found that defendant no. 5-appellant no. 1 herein had identified the testator at the time of re