D.N. Upadhyay, J.

This appeal has been preferred against the judgment dated 16.05.2007 and decree following thereupon passed and signed on 23.05.2007 by the 1st Additional District Judge, Palamau at Daltonganj in connection with Title Suit No.1 of 2001 arising out of Probate Case No.2 of 2000 whereby the learned Additional District Judge has dismissed the suit preferred by the plaintiff and refused to grant probate against the Will in question.

2. The plaintiff Achala Devi has filed an application for grant of probate against a Will dated 25.12.1970 executed by testator Tarni Charan Sinha in favour of the plaintiff. Initially the application for grant of probate was registered as Probate Case No.2 of 2000 but after filing of objection by way of written statement by the contesting defendants, Probate Case No.2 of 2000 was converted to Title Suit No.1 of 2001.

3. It is disclosed that late Tarni Charan Sinha, after death of his first wife, married Jagwanti Devi. From his first wife he was having one son Devendra Prasad Sinha whereas from the second wife Jagwanti Devi, he was blessed with three sons and four daughters. The descendants of late Tarni Charan Sinha have been made opposite parties in the probate application. At the time of filing of probate application Devendra Prasad Sinha, son born through first wife was not alive and therefore his heirs and successors have been made party. The genealogical table has been annexed with the original application filed for grant of probate.

4. It is stated that late Tarni Charan Sinha was having landed property within the district of Palamau and the property described in Schedule-A of the plaint was owned and possessed by him as his self-acquired property. In respect of Schedule-A property, the testator had executed a Will on 25.12.1970 and he was the custodian of said Will till his death. Late Tarni Charan Sinha died on 02.05.1971 at his residence at Daltonganj leaving behind three sons, daughters and widow Jagwanti Devi. It is contended in the application that execution of Will was known to family members and it was executed after due consultation with them. It is contended that late Tarni Charan Sinha was an employee in the A.G. Office and after completing service he was superannuated. He was a literate person but at the old age his hands started trembling and therefore, he was not able to write or sign and for the purpose of acknowledgment he used to put his L.T.I. He was drawing his pension by putting his L.T.I. Tarni Charan Sinha, due to love and affection and also on being satisfied with the services rendered by the petitioner Achala Devi and her sons, executed a Deed of Will on 25.12.1970 in presence of his daughter Sunita Sinha O.P. No.6, Shyam Sundar Prajapati, Prem Sagar Pandey and Baleshwar Pandey and bequeathed Schedule-A property in favour of the applicant. The Deed of Will was written by Sri Narsingh Narayan Singh, Deed Writer and it was attested by Prem Kumar Sinha. Sunita Sinha, daughter of late Tarni Charan Sinha was also witness to the last testament of Tarni Charan Sinha. The testator died on 02.05.1971 leaving behind his widow, sons, daughters-in-law and grand daughters. Since Devendra Sinha, son born through first wife was not alive, his wife and daughters were made party.

5. Application for grant of probate was filed on 16.02.2000. Explanation for the delay in presenting the Will for its probate has been explained that it was not available to the petitioner. Even after death of Tarni Charan Sinha they tried their level best to find out the Will but they could not succeed. In course of searching certain papers when the Will was detected, application for grant of probate was filed. It is further contended that late Tarni Charan Sinha, at the time of executing said will was having good health and sound mind and the last testament was prepared out of free will, without coercion or threat and that too in presence of witnesses.

6. On the other hand, the contesting op