JUDGMENT :

1. This Miscellaneous Appeal has been filed against the judgment and order dated 25.02.2012 passed by learned Principal District Judge, Palamau at Daltonganj in Title Suit No.03 of 2007 arising out of Probate Case No.06 of 2006 whereby and whereunder the application for grant of probate or letters of administration in respect of the registered Will bearing No.8029 dated 02.08.2005 executed by the deceased testator namely Sita Sao @ Sitaram Sao has been refused and the application dismissed.

2. As per the case of the applicant Sitaram Sao was the owner of the properties described in the schedule of the probate application and he without any coercion, misrepresentation or undue influence and on his own will and sound disposing state of mind, executed a WILL on 02.08.2005 bequeathing his properties mentioned in the WILL in favour of the plaintiffs, who are his nephews. The said WILL was scribed by Ram Krishna Prasad, who also read over and explained the contents of the WILL to the testator. The said WILL was executed on 02.08.2005 by the Testator by putting his L.T.I. on all the pages of the WILL and registered vide no. 8029. Though the executor/testator Sitaram Sao was a literate person but due to paralysis, he was not able to put his signature and accordingly he put his L.T.I. over all pages of the WILL.

3. The execution of the WILL has been witnessed by Raghvendra Narayan Singh. Besides the above, one Gafur Mian and Sanjay Kumar (Taids) also witness to the WILL. There was no express appointment of the executor of the WILL but the recital of the WILL showed that the plaintiffs had been appointed as executors by necessary implication. The execution of the WILL has been admitted by the Testator in his written statement on 01.05.2006 in Partition Suit No.83 of 2005.

4. The respondents filed caveat/objection objecting to the grant of probate/letters of administration in favour of the plaintiffs denying the execution of the WILL and further contended that the WILL appeared to be suspicious and that there was no reason why the deceased testator would exclude his great-great grandchildren and execute a WILL in favour of his nephews. The Testator Sitaram Sao @ Sita Sao had one son namely Bishwanath Sao. The said Bishwanath Sao had one daughter namely Chanchal Lata Devi who was married to Pradeep Kumar Lal (respondent No.6 herein). The respondent Nos.1 to 5 are the minor children of the said Chanchal Lata Devi who had died on 03.01.2006 before the death of the Testator. Thus, the testator was the Nana of O.P. No.1 to 5 and Nana Sasur of O.P. No.6. Bishwanath Sao (father of the Chanchal Lata Devi and son of the Testator) died on 26.06.2005. The two attesting witnesses namely Sanjay Kumar and Gafur Mian were Taids (advocate clerk). None of them have verified the application for grant of probate/letters of administration. It has been contended that as such the application is defective due to non-compliance of Section 281 of the Indian Succession Act. The caveat/objection filed by the respondents on 11.07.2007 was made part of the written statement.

5. On the basis of aforesaid pleadings, following issues were framed by the learned Trial Court on 11.03.2006:

I. Is the suit as framed maintainable?

II. Have the plaintiffs got valid cause of action for the suit?

III. Whether the WILL No. 8029 dated 2.8.2005 was executed by the testator Sita Ram Sao in favour of the plaintiffs out of free will and in sound state of mind and health?

IV. Is the will in question the last WILL of the testator prepared by the scribe on his dictation?

V. Is the will in question of valid, legal and genuine document?

VI. Whether the plaintiffs are entitled to grant of probate of the will in question, as claimed?

6. The plaintiffs examined four witnesses, out of which P.W.2 is Raghvendra Narayan Singh, who has deposed that Sitaram Sao was known to him and on his request he had come to Daltonganj. Sitaram Sao had put his thumb impression on all pages of the typed