Honble Sunil Ambawani, J.—This Testamentary Suit was filed on 26-7-1988, as Testamentary Case No. 10 of 1988 by Sri Chandra Kishore Dixit, S/o Sri Kewal Krishna Dixit, for grant of ‘Letters of Administration’ with a copy of will, in the matter of credits and assets of late Sri Shambhu Dayalu Shashtri, S/o Sri Har Dayalu, resident of Anand Kuteer Tundla, Tehsil Itmatpur, Tundla, district Agra, with the averments that the deceased, testator, the maternal grand father of the petitioner died on 22-5-1947 leaving behind a will dated 12-4-1947 of his entire properties to him, at his residence at Tundla. The will was attested by two witnesses namely Shri Anand Behari Lal and Shri Gaya Prasad Sharma. Both the witnesses are not alive. The original will was kept at ‘Anand Kuteer’, Tundla with petitioner’s father Sri Kewal Krishna Dixit. However, after his death petitionrs brother Shri Sukh Swroop Anand Dixit, (the caveator/objector/defendant) had removed the original will by breaking the lock of the room. The original will may be summoned from him, as he has turned hostile to the petitioner. The application has been filed after forty one years and three months of the death of the testator.

2. In the affidavit of valuation only one house known as ‘Anand Kuteer’, of Tundla, Post Office Tundla, Tehsil Etmatpur, District Agra valued at Rupees one lakh is given. The plaintiff has referred to an Original Suit No. 471 of 1949 between Smt. Champa Devi v. Smt. Nandini Devi and Chandra Koshore Dixit (the petitioner). This suit was decided by Munsif on 15-4-1951 on the basis of compromise signed by Smt. Champa Devi, Smt. Nandini Devi, the mother of the petitioner and sister of Smt. Champa Devi and the plaintiff Shri Chandra Kishore Dixit. The compromise had acknowledged the will.

3. During the pendency of the suit, orders were passed by this Court with regard to rent received from the tenants of “Anand Kuteer” and have been modified from time to time.

4. In application filed on 16-10-1990, the plaintiff has alleged in para 5 that, the necessity for ‘Letters of Administration’ arose on account of non-payment of rent by the tenants living in different portions of the house and has referred to certain orders passed by this Court with regard to deposit of rent.

5. The Court by its order dated 12-11-1997 held that the caveator has locus standi to contest the proceeding. The order was challenged in Special Appeal No. 592 of 1992. The Division Bench set aside the order dated 12-11-1992 with a direction to first frame a specific issue and thereafter to hear and decide it, and consequently on 26-10-1998 this Court framed preliminary issues as follows :

“Whether the caveator respondent has any interest or locus standi to oppose the testamentary proceedings in the light of the objections (counter affidavit filed by him)”.

6. This preliminary issue was decided by order dated 10-5-2000, again holding that the caveator respondent has interest and locus standi to oppose the testamentary proceedings. The findings recorded by this Court in its order dated 10-5-2000 are quoted as below :

“ I have judicially weighed the respective contentions of the learned counsel for the parties in the light of the arguments advanced at the bar keeping in view the legal position. Indeed, it is of paramount importance that the caveator is not a stranger. He is the own brother of the petitioner and the maternal grandson of the deceased Shambhu Dayal Shashtri. The petitioner himself has shown the caveator as one of the next of the kin of the deceased in paragraph 4 of his petition at serial No. (iii). In all 13 persons including himself have been mentioned as the next of the kin of the deceased Shambhu Dayal Shashtri. It is also apparent that the petitioner is staking his claim in these testamentary proceedings on the will allegedly executed by the deceased Shambhu Dayal Shashtri on 12-4-1947. In case the will falls through, the caveator being one of the 13 next of the kin of the d