JUDGEMENT Sheema Ali Khan, J. 1. Test Case No. 6 of 2003 was filed for issuance of letter of administration with respect to a Will executed on 17.3.1936 by one Akshaybat Mishra. The Test Suit was converted into Test Suit No. 2 of 2004. 2. The suit was filed stating therein that late Akshaybat Mishra executed his last Will and testament in his own handwriting dated 17.3.1936 at his residence Laganmani Bhawan, Lal Bagh, Kunkun Singh Lane, Patna in presence of his late wife Laganmani Kuer, his relatives and attesting witnesses namely late Kulwant Sahay, retired Judge of the Patna High Court who was at that time residing at Naya Tola, Patna and late H.N. Choubey, Principal, Government Ayurvedic College, Patna. Late Laganmani Kuer appended her signature over the Will and thereafter two other witnesses namely late Mahendra Prasad, Assistant Surgeon and late Anand Prasad, Advocate of the Patna High Court appended their signatures over the Will on 18.3.1936. The Will was presented for registration at Buxar Sub-Registry Office, Ara on 29.5.1936 and was registered on 2.6.1936. In the said application filed before this Court, it is said that late Akshaybat Mishra, son of Pandit Rajeshwar Mishra was a resident of Rajdhani Dumraon, P.S-Dumraon, District-Sahabad and permanently resided at Laganmani Bhawan, Mohalla-Lal Bagh, Kunkun Singh Lane, District-Patna. He died in October, 1939 at Patna and was cremated in Patna as well. It is asserted that late Nawal Kishore Mishra, the father of the petitioners, who had claimed probate of the Will performed the last rites and Shradh of the testator Akshaybat Mishra. The heirs of the deceased have been described at paragraph-6. The property in question is said to be the exclusive property of late Akshaybat Mishra which was purchased in the Benami name of his wife Laganmani Kuer. Akshaybat Mishra constructed the double-storied house and paid the municipal taxes, revenue etc. in his own name till his death. Akshaybat Mishra had bequeathed the property i.e. the land and the double-storied house in favour of his eldest grand son (Nati) Nawal Kishore Mishra. Late Akshaybat Mishra died after execution of the Will dated 17.3.1936 which was registered on 2.6.1936 in favour of his grandson Nawal Kishore Mishra. Nawal Kishore Mishra came in possession of the property and after the death of Nawal Kishore Mishra, the petitioners and their legal heirs are continuing in possession of the same. Late Akshaybat Mishra died after execution of the Will dated 17.3.1936 which was registered on 2.6.1936 in favour of his grandson Nawal Kishore Mishra. Nawal Kishore Mishra came in possession of the property and after the death of Nawal Kishore Mishra, the petitioners and their legal heirs are continuing in possession of the same. It has been stated that at the time of execution of the Will, the testator was of sound mind and had voluntarily executed the Will in presence of two witnesses and the Will was witnessed by three others. The case of the petitioners/plaintiffs is that the Will was executed by late Akshaybat Mishra in favour of his eldest grandson Nawal Kishore Mishra with a stipulation that till he attained majority, the property would be looked after by late Bhola Nath Mishra, son-in-law of the executor and husband of his daughter Madalsa Devi. Thus, Nawal Kishore Mishra as per the terms of the Will had absolute right, title and interest over the property since he attained the age of 22 years on 11.11.1945. The name of Nawal Kishore Mishra was also recorded in the revenue records in the year 1952 and in the records the Patna Municipal Corporation. It is relevant to mention here that the plaintiffs specific case is that petitioner/plaintiff no. 2 Chandra Madhav Mishra took a loan of Rs.15,000/- from the State Bank of India,Kankarbagh, Patna to establish small scale industries for which Nawal Kishore Mishra became the guarantor and in security whereof he mortgaged the said Will in the said Bank. In the meantime, Nawal Kishore Mishra died and the Bank was not ready to handover the original Will till the succession certificate from the competent Court was produced before the Bank. The refusal of the Bank to handover the Will has been annexed as Annexure-3. It appears from this document that the Will was pledged to the Bank on 13.9.1981. The loan was cleared in the year 1987 and an application was made thereafter for release of the document. After the death of Nawal Kishore Mishra, his son who is one of the plaintiffs here, was recorded in the revenue records of the Patna Municipal Corporation and was paying rent to the Patna Municipal Corporation. The rent receipts are Annexures-3, 4 and 5 to the application filed before this Court. 3. After the death of Nawal Kishore Mishra, his son who is one of the plaintiffs here, was recorded in the revenue records of the Patna Municipal Corporation and was paying rent to the Patna Municipal Corporation. The rent receipts are Annexures-3, 4 and 5 to the application filed before this Court. 3. The occasion to file this case arose when the uncle of the petitioners Braj Kishore Mishra filed a Title Partition Suit No. 262 of 2003 on 25.6.2003 claiming right, title and interest over the said property. Until 2003 the plaintiffs have remained in peaceful possession of the said property and none of the family members raised any objection with respect to the title and possession. In fact the others heirs i.e. the brothers of the objector (uncle of the plaintiffs) have not raised any objection with respect to the title or possession of the plaintiffs-applicants. The plaintiffs stated that they tried to procure the death certificate of late Akshaybat Mishra from the Corporation as well as from the Patna College under the Patna University where late Mishra taught as a Professor of Sanskrit, but the certificate was not available. 4. It is specifically pleaded that the Will was executed in the presence of Smt. Prabhawati Devi who is the niece of Akshaybat Mishra. The attesting witnesses died and their sons are dead and apart from Smt. Prabhawati Devi, there is no other witness who can testify with respect to the Will. 5. On the basis of the aforesaid application filed under Sections 276 and 278 of the Indian Succession Act, notices were issued to the heirs mentioned at paragraph 6 of the petition. Ultimately, on 6.7.2004 a general citation was issued by the Court and objection was filed on 4.10.2004 by a caveator Braj Kishore Mishra. 6. The case of the caveator is that this case is not maintainable. The deponent has described himself as one of the sons of late Madalsa Devi and claims that he is entitled to a share of the estate of late Akshaybat Mishra in accordance with the Hindu Law of Succession and inheritance. It is further stated that notices should be issued to the propounders of the alleged Will. The caveator/defendant claims that Akshaybat Mishra did not live in his residence at Dumraon and actually Smt.Laganmani Kuer his wife was residing at Dumraon at the time of her death. It is further stated that notices should be issued to the propounders of the alleged Will. The caveator/defendant claims that Akshaybat Mishra did not live in his residence at Dumraon and actually Smt.Laganmani Kuer his wife was residing at Dumraon at the time of her death. The caveator accepts that he has filed a suit for partition as he is entitled to a share in the estate of late Akshaybat Mishra. The caveator/defendant claims that Smt. Laganmani Kuer had executed a sale deed for the southern portion of the property in question measuring 11/2 Kathas in favour of Bharosa Rai and claims that he had played an active role in negotiation and finalization of the deed of sale. It is also pleaded that late Nawal Kishore Mishra had executed on behalf of himself and as a guardian of his two minor brothers, namely, Nand Kishore Mishra and the caveator registered acknowledgement or disclaimer deed with the nomenclature "agreement" dated 9.9.1955 in favour of the said purchaser Bharosa Rai in respect of the property which was the subject matter of the sale deed dated 14.6.1955 (Annexure-B) to the objection petition. It is said that Laganmani Kuer died in August 1956. Smt. Madalsa Devi died on 17.8.1962 and it has wrongly been stated by the applicants that she died in 1963. Bhola Nath Mishra is said to have died in the year 1951 and it has wrongly been mentioned by the applicants that he died in the year 1946. On the basis of the aforesaid facts, the objection petition wasfiled. The date of death of Nawal Kishore Mishra is 26.4.1985. 7. It would be relevant at this juncture to quote the order dated 18.1.2005 filed in this suit which was passed while considering the application filed on behalf of the defendant to stay the Test Suit till disposal of. the Title Partition Suit No. 262 of 2003 pending before the Sub-Judge, Patna. 7. It would be relevant at this juncture to quote the order dated 18.1.2005 filed in this suit which was passed while considering the application filed on behalf of the defendant to stay the Test Suit till disposal of. the Title Partition Suit No. 262 of 2003 pending before the Sub-Judge, Patna. The defendant claims that the Title Suit is pending relating to the question of ownership and title of the deceased over the property in dispute and unless that point is decided, no succession certificate, probate or letters of administration could be issued in favour of the plaintiffs whereas the stand of the plaintiffs was that in the present case, the only relevant question to be decided is that whether the Will was executed by the deceased of his own free Will. The Court held as follows: "It is hereby directed that this Court would not decide the question of title of the deceased over the property in dispute. The only question to be decided in this case would be whether the deceased had executed the Will of his own free Will without any pressure, coercion, duress and whether the Will is the last Will of the deceased." 8. A rejoinder was also filed to the caveat application controverting the statements made by the caveator in his objection petition. It is stated that the property in question was the self-acquired property of Akshaybat Mishra and the sale deed referred to by the caveator would indicate that the son-in-law of the testator Babu Bhola Nath Mishra was assigned the job of the Manager of the property till the beneficiary of the property i.e. Sri Nawal Kishore Mishra attained majority. Sri Nawal Kishore Mishra attained majority in the year 1945 and there after he became the absolute owner of the property and had been enjoying the right, title and interest over the property without any hindrance by virtue of the said Will. It is said that in the Will, there is a provision that after the death of the testator, his wife Laganmani Kuer shall occupy the house and shall use the rent of the house for her own purposes and after her death, the son-in-law of the testator, namely, Babu Bhola Nath Mishra shall manage the property till the eldest son (Nati) of the testator attains majority. It is clearly mentioned that Babu Bhola Nath Mishra would not be entitled to sell, mortgage and operate any charge in respect of the said property. The provisions of the Will would indicate that after the death of the testator and his wife Laganmani Kuer, the daughter of the testator Smt. Madalsa Devi and her son Nawal Kishore Mishra shall come in possession of the property. Annexure-B would in fact indicate that Laganmani Kuer, being owner of the property, executed the sale deed in favour of Bharosa Rai. Finally, it is stated that Laganmani Kuer died in August, 1956 and Babu Bhola Nath Mishra died in the year 1946. The case of the caveator is denied and it has been stated that the caveator and his brothers including Nawal Kishore Mishra separated in metes and bounds long ago and their brother Sri Nawal Kishore Mishra was living at Saharsa. The caveator is living in a rented house at Mithapur near Goria Math at Patna separately with his family members. The plaintiffs are dealing with the property, they have got their name mutated and are collecting rent from the property after the death of the testator. It is mentioned that Chandra Madhav Mishra the petitioner had borrowed Rs. 15,000/- from the State Bank of India, Kankarbagh Branch on 13.9.1989 and Brij Kishore Mishra was made a guarantor in the transaction aforesaid and as such he had full knowledge regarding the fact that the Will had been pledged to the Bank by Nawal Kishore Mishra and as such any objection taken to the Will is at a belated stage. The map and other documents which were also attached with the Will while taking loan have also been annexed to the rejoinder application as Annexure-2. 9. A written statement has also been filed by the defendant/caveator although it is not essential in a case of this nature. Apart from other objections, it has been stated that there has been a delay of 31 years which is unexplained, and as such the plaintiffs are not entitled to the issuance of letters of administration. 10. 9. A written statement has also been filed by the defendant/caveator although it is not essential in a case of this nature. Apart from other objections, it has been stated that there has been a delay of 31 years which is unexplained, and as such the plaintiffs are not entitled to the issuance of letters of administration. 10. Issue has been framed in this case after considering the applications filed by both the parties which are as follows: "Whether the Will in question is the last Will of the testator and was executed in accordance with law in presence of the true witnesses." Again, by order dated 9.9.2005, this Court disposed of the petition filed by the defendant for recasting the issues framed by order dated 1.4.2005 and the issues were recasted as follows: (a) "Is the suit maintainable"? (b) "Rather the plaintiffs entitled to issue of either probate or letters of administration"? 11. The witnesses have filed their chief in Court and the cross-examination in this case commenced on 7.4.2006. Before considering the evidence and the arguments advanced on behalf of the parties, it would be relevant to discuss the provisions of the Will as much has been said on behalf of both the parties regarding the said contents. The Will being very old is in a damaged condition but still legible. This Court will refer to the relevant paragraphs and also quote some of the paragraphs which are important in this case. Paragraph-1 of the Will indicates that it is the last Will of the testator and it deals with the property and house situated within the Patna Municipality which has been described in detail in the schedule of the Will. Paragraph-2 indicates that the land was purchased in the Benami name of the wife of the testator Smt.Laganmani Kuer for which the testator is paying rent etc. to the State of Bihar. Paragraph-3 indicates that Laganmani Kuer was the owner of the house and she was living in the house. 12. Paragraph-4 13. Paragraph-5 14. Paragraph-6 indicates that the grandson (Nati) was a minor at the time of preparation of the Will. 15. Paragraph-7 16. Thereafter the Will is signed by Akshaybat Mishra describing himself as retired Sanskrit Professor, Patna College. The Will is dated 17.3.1936. The document is in one page, written in Hindi, signed in English and is in the handwriting of Akshaybat Mishra. 15. Paragraph-7 16. Thereafter the Will is signed by Akshaybat Mishra describing himself as retired Sanskrit Professor, Patna College. The Will is dated 17.3.1936. The document is in one page, written in Hindi, signed in English and is in the handwriting of Akshaybat Mishra. The said document is also signed by Laganmani Kuer. The signature and writing of Akshaybat Mishra has not been challenged by the caveator. The submission is that signatures of the witnesses have to be duly proved. The genealogical table of the parties is given below.:- 17 Four witnesses have been examined on behalf of the plaintiffs. P.W. 1 is Shailendra Kumar Mishra. He has proved his chief and has supported the application filed for probate of this case filed by an affidavit dated 10.8.2005. In his examination-in-chief, he has supported the case filed before this Court. P.W. 1 has also proved the registered Will dated 17.3.1936. P.W. 1 Shailendra Kumar Mishra is the son of Nawal Kishore Mishra. He has proved his statement filed on affidavit on 10.8.2005 which is the examination-in-chief in the present suit. This witness has also proved the Will of Akshaybat Mishra which is marked as Ext.-1. P.W. 1 has stated that he knew about the Will from his father and also from one Smt. Prabhawati Devi who is the attesting witness to the Will with respect to the contents of the Will. He has stated that it had remained in the possession of Laganmani Kuer during her lifetime for the purposes of her maintenance. He stated the date of death of his father and Madalsa Devi and has also stated that Smt. Laganmani Kuer sold part of the land to one Bharosa Rai in the year 1955. He has denied the suggestion that his father had relinquished the rights conferred on him under the Will in question by executing the agreement. In the cross-examination, he has stated that "He cannot recall that there is any mistake with regard to the year of death of his grandmother". With respect to the sale deed, he has stated that until the death of Laganmani Kuer, she was the MALKIN of the house which is subject matter of the Will in question. He denies that he is running away from the agreement dated 9.9.1955. With respect to the sale deed, he has stated that until the death of Laganmani Kuer, she was the MALKIN of the house which is subject matter of the Will in question. He denies that he is running away from the agreement dated 9.9.1955. He has stated that he has filed the present probate case two months after the title partition suit was filed and further states that his father was given the rights in the house after he became major. He claims that he is not aware of the dates on which the attesting witnesses died. 18. P.W. 2 is Prabhawati Devi. She is aged about 82 years. In her chief, she has stated that she knew Akshaybat Mishra who was her fathers elder brother. According to her, the Will was prepared on the eve of "JANEU" ceremony of Nawal Kishore Mishra by her uncle Akshaybat Mishra. He disclosed to her that he wanted to bequeath "Laganmani Bhawan" to Nawal Kishore Mishra. On 17.3.1936, Akshaybat Mishra had written the Will in his own handwriting which she recognizes and he had invited Justice Kulwant Sahay and late H.N.Choubey at "Laganmani Bhawan" for becoming attesting witnesses to the Will. At paragraph 9, she has stated that late Akshaybat Mishra put his signature in presence of the attesting witnesses, his wife and in the presence of this witness. She has identified the Will which is in the handwriting of Akshaybat Mishra and also the handwriting of Laganmani Kuer who had put her signature on the Will (both have been marked as Exhibits). She has claimed that she has remembered that Akshaybat Mishra got the Will registered 21/2 months after it was signed on 2.6.1936. The Will was in favour of the eldest grandson (Nati) Nawal Kishore Mishra @ Babban Babu. On cross-examination, she supports the statements made in her chief and states that she remembers that the Will was written on the UPNAYAN SANSKAR (JANEU) ceremony of Nawal Kishore Mishra. On being cross-examined where the affidavit was prepared on her instruction, she has stated that she does not remember, as she is not feeling well, the exact date of the UPNAYAN SANSKAR and the age of her sons and daughters. She cannot recall the exact date of the death of Akshaybat Mishra but states that it was in the month of KARTIK. She cannot recall the exact date of the death of Akshaybat Mishra but states that it was in the month of KARTIK. She has stated that she does not recall the faces of the witnesses who had signed on the Will but she remembers that it was signed at the Patna residence. She denies that she has been schooled to give evidence in Court. 19. P.W. 3 is Kameshwar Prasad Mishra. He is the nephew of Nawal Kishore Mishra (sisters son) the beneficiary of the Will and also the nephew of the contesting defendant. In his chief, he has stated that Nawal Kishore Mishra had full knowledge regarding existence of the present Will and the contents of the Will. He claims that he knows that the Will was attested by late Justice Kulwant Sahay and late H.N.Choubey, Principal of Government Ayurvedic College, Patna and the Will was registered at Buxar. According to him, the name of Nawal Kishore Mishra was mutated sometime in the year 1952. He states that the defendant was allowed to stay in the Patna house as he had no other place to live. According to this witness, he was told by his mother that Laganmani Kuer died in February, 1956. This witness supports his examination-in-chief which was filed on an affidavit and denied that he has been tutored. This witness also states that he visited her house in question with his mother at the time of Shradh of Laganmani Kuer at that time he was 6 or 7 years of age. 20. P.W. 4 is Alok Kumar Mitra. P.W.4 claims to know Deo Narayan Lal, the Tax Collector of the Patna.Municipal Corporation and has proved the Municipal Tax Receipts of 1969 which are Exhibits-2 and 2A which have been accepted with objection. In his cross-examination, he has admitted that he is working as a clerk for the advocate appearing on behalf of the plaintiff. He claims that he visited the house of the Tax Collector and knows the address of the Tax Collector as well. This witness has stated that he has visited the house of the Tax Collector for many clients who came to him for this work. 21. The defendant Braj Kishore Mishra has examined himself as D.W. 1. This witness has supported his case and has stated in his examination-in-chief that Laganmani Kuer died in August, 1956. This witness has stated that he has visited the house of the Tax Collector for many clients who came to him for this work. 21. The defendant Braj Kishore Mishra has examined himself as D.W. 1. This witness has supported his case and has stated in his examination-in-chief that Laganmani Kuer died in August, 1956. She was the limited owner in possession of the house Laganmani Bhawan which was the subject matter of the alleged Will having antecedent right of maintenance till 16.6.1956 but from 17.6.1956 she became the absolute owner in accordance with law of inheritance. According to this witness, he has inherited equal share after the death of Madalsa Devi. According to this witness, he has lived with Nawal Kishore Mishra who had brought him up and educated him. This witness claims in his chief that Nawal Kishore Mishra had accepted and acknowledged that the defendant had a share in the said property which would be obvious by the deed of disclaimer/relinquishment dated 9.9.1955. He has stated in his chief that the present case is barred by limitation. In the cross-examination, he has proved the sale deed dated 14.6.1955 which is marked as Ext.-A and the agreement dated 9.9.1955 marked as Ext.-B. This witness was cross-examined with respect to his educational qualification. He denies that he passed his matriculation examination in 1962 and passed his pre-University examination from Purnea College in the year 1964. He claims that Shailendra Kumar Mishra, his nephew, is his contemporary and works in co-operative federation but is not aware that he had retired 7 years back as he has no connection with him and they are not on talking terms with each others, although they live in the same house. In his cross-examination, he has stated that he has learnt from his mother that his maternal grandfather had executed a Will in favour of Laganmani Kuer. He has never seen the Will which is the subject matter of the present case and was not aware of the contents of the Will or that the name of the plaintiff was mutated in the Patna Municipal Corporation. D.W. 1 accepts that a Title Suit for eviction was filed by Nawal Kishore Mishra who was one of the plaintiffs but, claims that other brothers including the defendant had rendered financial assistance in pursuing the suit. D.W. 1 accepts that a Title Suit for eviction was filed by Nawal Kishore Mishra who was one of the plaintiffs but, claims that other brothers including the defendant had rendered financial assistance in pursuing the suit. Braj Kishore Mishra admits that he is the only person who is pursuing the probate case whereas the other brothers are watching from the fence. He claims to have no connection with Kameshwar Prasad Mishra because Kameshwar Prasad Mishra did not have good relationship with his mother and father. He accepts the fact that Kameshwar Prasad Mishra was supporting the Will. 22. On perusal of evidence, I find that the plaintiffs has been able to prove that the Will was in the writing of Akshaybat Mishra, the executor, in favour of Nawal Kishore Mishra, his eldest grandson with a stipulation that his wife would be entitled to maintenance during her life time. The factum that the Will was signed by Akshaybat Mishra in presence of the attesting witnesses has been proved by Prabhawati Devi (PW-2). Prabhawati Devi is also witness to the fact that Laganmani Kuer has duly signed on the said Will. On the other hand, the defendant has examined himself as the sole witness in support of his case. According to him, Laganmani Kuer died in August,1956, and thereafter she became the absolute owner of the property by virtue of the Hindu Succession Act, 1956 and as such he claims that he has right over the said property by virtue of the law of inheritance. 23. The question of law which has been argued in this case with respect to the aforesaid facts and objections raised by the defendant will be dealt hereinafter. 24. At this juncture, it would be relevant to mention that an amendment petition was filed on behalf of the plaintiff on 5.5.2006 i.e. after the examination of P.W. 2 Prabhawati Devi. This Court by order dated 30.6.2006 has stated that it would be considered at the time of hearing of this case. The amendment petition was filed to correct the date of death of Laganmani Kuer. It has been stated that in paragraph 17 of the caveat petition the date of death of three persons has been given at one place. In the said examination it is said that Laganmani Kuer died in the year 1956. The amendment petition was filed to correct the date of death of Laganmani Kuer. It has been stated that in paragraph 17 of the caveat petition the date of death of three persons has been given at one place. In the said examination it is said that Laganmani Kuer died in the year 1956. In the rejoinder to the objection, it has been reiterated by the plaintiffs that Laganmani Kuer died in August, 1956. It has been stated that Laganmani died in August, 1956. The plaintiffs want to amend the rejoinder petition by stating that Laganmani Kuer died in February, 1956 and not in August, 1956. It is stated that the mistake is not deliberate and does not change the nature of the case. In reply to the amendment petition, the defendant objects to the amendment on the ground that by allowing the amendment, a valuable right accruing to the defendant under the provisions of the Hindu Succession Act, 1956 which came into force on 17.6.1956 i.e. one month before the death of Laganmani Kuer will be seriously affected. It is further stated that the amend- ment petition should be rejected outright. 25. The defendant has also objected to the amendment application on the ground that in view of the amended provision of Order 6 Rule 17 of the Code of Civil Procedure, the amendment application should be rejected as it has been filed after commencement of the trial. Rule 17 provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendment shall be made as may be necessary for the purpose of determining the question and controversy between the parties provided that an application for amendment shall not be allowed after the trial has commenced unless the Court come to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial. 26. Learned counsel for the defendant submits that the trial in this case has commenced as PWs-1 and 2 have already been examined. 26. Learned counsel for the defendant submits that the trial in this case has commenced as PWs-1 and 2 have already been examined. The caveat was filed on 14.10.2004 stating that Laganmani Kuer died in February, 1956 and the amendment application was prepared and filed on 5.5.2006 (flag 26) and the reply was filed on 20.6.2006 and as such it is contended that it ought to be rejected outright. 27. The law with respect to amend ment of a plaint or a written statement is well settled by several decisions of this Court as well as the Supreme Court. The judgments relevant for the purpose are reported in 2005(4) PLJR 737 , Shiv Gopal Sah @ Shiv Gopal Sahu vs. Sita Ram Saraugi & Ors. and 2002(1) PLJR 577 , Sudhir Kumar Verma vs. Sri Ashok Kumar Sah & Anr. The principle laid down right from the year 1970 and which is still holding the field is that the provisions of Order 6 Rule 17 should be given a liberal meaning and the amendment should ordinarily be allowed. It has been held that the law of amendment being a procedural one and its only aim being to advance the cause of administration of justice, the Court should adopt a liberal approach and amendment should be allowed and only in cases where right had accrued to the other side and it cannot be compensated, then the amendment should be refused. Counsel for the defendant has referred to the judgment in the case of Shree Narayan & Anr. vs. Mahendra Prasad Yadav and Ors., reported in 2006(2) PLJR 489 . In the case of Shree Narayan & Anr vs. Mahendra Prasad Yadav & Ors., the Court had rejected the amendment application on the ground that the party seeking amendment had not applied due diligence and the matter could have been raised before commencement of the trial. The facts of the case are that the suit was filed in the year 1982 and the written statement was filed in the year 1983. The amendment application was filed after 20 years without giving any explanation for the delay. Reliance has also been placed in the case of Ajendraprasadji N. Pande and Anr. vs. Swami Keshavprakeshdasji N. & Ors. (AIR 2007 Supreme Court 806). In the case of Baldev Singh & Ors. vs. Manohar Singh & Anr. The amendment application was filed after 20 years without giving any explanation for the delay. Reliance has also been placed in the case of Ajendraprasadji N. Pande and Anr. vs. Swami Keshavprakeshdasji N. & Ors. (AIR 2007 Supreme Court 806). In the case of Baldev Singh & Ors. vs. Manohar Singh & Anr. (2006 AIR SCW 3956), it has been held that Order 6 Rule 17 including the proviso is a procedural provision relating to amendment of plaint or written statement and the limitations in respect thereof and, therefore, the same should be interpreted to advance and not to retard or defeat justice. In the case of Kailash vs. Nankhu & Ors., reported in 2005 AIR SCW 2346 [:2005(3) PLJR (SC)241], the Court has held that keeping in view the entire context in which the provisions came to be enacted it has held to be directory rather than mandatory. In the case referred of Ajendraprakeshdasji N., the Supreme Court ultimately rejected the amendment application on the facts of the case for the reason that it was not filed within a reasonable time and it also sought to introduce a new and inconsistent case. The Supreme Court has referred to several judgments wherein the Court has laid down the principles and conditions under which the amendment should be allowed. 28 In the present case i.e. the proceeding for grant of letters of administration, the issues and the case is whether the Will has been duly executed by the testator. The defendant has perhaps deliberately raised the issue that Laganmani Kuer died in February, 1956, in the hope of taking advantage of the amendment of the Hindu Succession Act in 1956. The year of death of Laganmani Kuer is not in doubt. The only amendment that has been sought is that the plaintiffs want to amend the rejoinder application by stating that Laganmani Kuer died in February, 1956 and not in August,1956. The Court has to keep in mind that the testator had bequeathed a lifetime interest in the house to his wife Laganmani Kuer, which is virtually admitted by both the parties. The month in which she died is not one of the issues which have to be decided in this case. Moreover the evidence that has come on record is really insufficient to show one way or the other that Laganmani Kuer died in February, 1956 or in August, 1956. The month in which she died is not one of the issues which have to be decided in this case. Moreover the evidence that has come on record is really insufficient to show one way or the other that Laganmani Kuer died in February, 1956 or in August, 1956. It may be noted here that at no point of time that is since the death of Laganmani Kuer in the year 1956 till 2003 the defendant raised any objection to the possession of the plaintiffs. Objection was not taken or filed at the stage when the name of Nawal Kishore Mishra and thereafter his heirs were mutated in the record of rights. This date of death is required to be proved by leading further evidence which is not required in this case considering the nature and the scope of this case. The explanation given by the plaintiffs that they could not notice the month of the death of Laganmani Kuer in the caveat application as the year and month of death of three persons were given in the said paragraph seems to be a reasonable explanation. This Court therefore, allows the amendment application with a rider that the question of the date/month and year of death will have to be proved by the parties in an appropriate proceeding. 29. Before turning to the legal issues raised in this case, I may also refer to the documentary evidence on which the defendant has based his case, i.e. Annexures-A and B. Annexure-A is the sale deed, this document does not indicate anything in favour of the defendant and for that matter, the deed dated 9.9.1955 also does not in any matter supports the defence case. Rather, the recitals of these two documents speak of the passing of the title to the vendor by virtue of the deed of Will. This document does not in any way indicates that the defendant had any title or right to the lands which were sold vide Annexure-A which is part of the property mentioned in the Will. 30. This Court while deciding whether the Letters of Administration should be granted to the plaintiffs has to primarily decide whether the Will is duly executed by the testator in a state of good health and in sound mind. 30. This Court while deciding whether the Letters of Administration should be granted to the plaintiffs has to primarily decide whether the Will is duly executed by the testator in a state of good health and in sound mind. In this context, the Court will also take into account whether the signature of the testator and the attesting witnesses have been duly proved and consider the intention of the testator while executing the Will. 31. I will first refer to the evidence of D.W. 1. He has specifically stated in his cross-examination as follows: "I have learnt from my mother that my maternal grandfather had executed a Will in favour of his wife Laganmani Kuer. I have never seen the Will which is the subject matter of the present case as I had no occasion to see the same. I am not even aware of the contents of the Will which the subject matter of these proceedings." 32. From the evidence above, it is clear that DW-1 had the knowledge of the Will and, therefore, cannot plead two facts, first that there was no Will and secondly he cannot raise the question of limitation to these proceedings. Besides which the arguments that have been advanced on behalf of the defendant that he is entitled to a share in the suit properties by virtue of the fact that Laganmani Kuer had become absolute owner of the suit properties as she was given the right of maintenance in the said Will by virtue of the Hindu Succession Act, 1956. Thereby, the defendant is actually accepting the fact that there was a Will and claiming his right on the basis of the fact that Laganmani Kuer was the owner of the property in question by virtue of the Will. In other words, the defendant cannot be permitted to blow hot and cold at the same time. 33. The most important aspect with respect to the Will is that it is in the own handwriting of the testator in Hindi. The second aspect which is relevant is that Laganmani Kuer had knowledge of creation of the Will by her husband, as she too has signed on the Will, which has been attested by two very respectable persons of the society who were close to the testator i.e. late Kulwant Sahay, a Judge of the Patna High Court and H.N. Chaubey, Ex-Principal of Ayurvedic College. The Will was written on 17.3.1936 and it was signed and witnessed by Anand Prasad, Advocate of the Patna High Court and one Medical Officer, Mahendra Prasad Sinha on the next date. The fourth important feature of the Will is that it was duly registered at the registration office at Buxar. The document is more than sixty years old. The Will was written on 17.3.1936 and registered on 29.5.1936. The testator died in 1939. It would be relevant to mention here that it is not in dispute that the property in the Will is a residential house acquired by the testator from his own income. By the said Will, life interest in the said property was bequeathed to Laganmani Kuer who also died in February, 1956 which was ultimately bequeathed to his grandson (Nati) Nawal Kishore Mishra. Bhola Nath Mishra, father of Nawal Kishore Mishra was appointed as the executor of the Will as Nawal Kishore Mishra was minor at that time. It has also come on record that the registered Will was kept with the State Bank of India, Kankarbagh Branch from 13.9.1981 by way of security by the beneficiary Nawal Kishore Mishra and had remained in the bank for twenty three years until it was called and produced before this Court during the present proceedings. 34. It is submitted on behalf of the plaintiffs that in the objection and the written statements filed by the defendant, he has not raised the issue that the testator was not of sound mind while executing the Will, or that the Will is not genuine, legal and valid. 35. During arguments the defendant raised the issue that Section 63 of the Indian Succession Act has to be meticulously followed while executing a Will. I find that in fact the allegation that the signature of the testator is forged has not been raised or argued by the defendant. He has not led any evidence which would indicate that there is a challenge with respect to the Will being forged and fabricated. The emphasis if at all, was on the fact that the signature of the attesting witnesses had to be proved. As already stated by me earlier that the attesting witnesses and the sons of the attesting witnesses have also died and as such it is literally impossible to prove the signatures of the attesting witnesses. The emphasis if at all, was on the fact that the signature of the attesting witnesses had to be proved. As already stated by me earlier that the attesting witnesses and the sons of the attesting witnesses have also died and as such it is literally impossible to prove the signatures of the attesting witnesses. The attesting witnesses were well known figures in their times and one has to presume genuineness with respect to a document which is more than 30 years old. 36. PW-3 Prabhawati Devi whose mother was the sister of Nawal Kishore Mishra and the defendant Braj Kishore Mishra has testified that she has knowledge that the Will was executed at the time of the JANEO ceremony of Nawal Kishore Mishra and has proved the Will and the fact that the documents were signed in her presence. 37. in this context, I may refer to Section 69 of the Evidence Act, which reads as follows: "Proof if no attesting witnesses found: "If no such attesting witnesses can be found, or if the document proposed to have been executed in United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and the signature of the person executing the document is in the handwriting of that person." 38. In this context, it is said that Prabhawati Devi is the most important because she is the only person of the year 1936 who is alive. In paragraph-5 of her chief, she has stated that she recognized the Will which is in the writing of the testator. In paragraph no. 6, she has mentioned the attesting witnesses. At paragraph no. 7 onwards, she has stated in her examination-in-chief that in her presence, the testator signed on the Will and on his request, two attesting witnesses had signed. She has also proved that the testators mental and physical condition was good and as such the Will has been proved as per Section 69 of the Indian Evidence Act which envisages that if no attesting witness can be found, the signature of at least one of them should be proved. In this context, one must keep in mind that the Will is more than 30 years old and there is presumption with respect to the genuineness of the said document. 39. In this context, one must keep in mind that the Will is more than 30 years old and there is presumption with respect to the genuineness of the said document. 39. The decision of the Division Bench of this Court (Ranchi Bench) in the case of Haradhan Mahatha & Others vs. Dukhu Mahatha, reported in 1993(2) PLJR 28 is relevant. This Court has held that there can be a presumption that the Will is a genuine document by virtue of it being more than 30 years old by virtue of Section 90 of the Evidence Act. However, there can be no straitjacket formula regarding this aspect but the entire circumstances have to be considered while considering whether it has been duly signed by the attesting witness. Besides the fact, that PW-2 has proved the signature on the Will, there are in fact no circumstances which would raise the suspicion that the Will was not genuine and has been created in order to give benefit to the applicants/plaintiffs. Other cases which dealt with similar situations which may be referred to are as follows: (a) AIR 1997 Punjab & Haryana 240, (b) AIR 1964 SC 529 , (c) AIR 1991 MP 11 , (d) AIR 1956 Madras 566, (e) AIR 1976 Rajasthan 40. 40. Another point which has been raised in the written argument, although not argued, is that the Court should call for records/judgments from the Record Room of the Patna High Court which would bear the signature of late Justice Kulwant Sahay to prove that the Will was duly signed by Justice Sahay. Accordingly, I called for the judgments from the Record Room. The orders have been maintained in a volume. Justice Sahay has signed as K Sahay. On examining the handwriting, the formation of letters with the original Will, I was satisfied that signature matches the signatures of the Will inasmuch as there is no difference in the manner in which the surname Sahay. has been signed in the orders passed as a Judge of this Court and the way it is signed in the Will. This exercise has in fact made the Courts work much easier and also meets the objection of the defendant that at least one signature of the attesting witnesses should be proved satisfactorily. 41. has been signed in the orders passed as a Judge of this Court and the way it is signed in the Will. This exercise has in fact made the Courts work much easier and also meets the objection of the defendant that at least one signature of the attesting witnesses should be proved satisfactorily. 41. So far as the execution of the Will in a state of unsound mind is concerned, practically there is no objection raised on this issue nor has the defendant raised a pleading that the testator was not of sound mind. The Will is in the writing of the testator and therefore, it cannot be said that he was not of sound mind or that any undue influence or suspicious circumstances are present surrounding the execution of the Will. The house stood mutated in the name of the legatee in the Patna Municipal Corporation since 1952, for more than 33 years and the entire family including the defendant have allowed the legatee and his son to act upon the arrangement made by the testator in the Will. 42. Therefore, this Court comes to the conclusion that the plaintiffs have been able to prove that the Will is a genuine document, executed by the testator in a state of sound mind and the defendant has not been able to show that the Will is not a genuine document, or was not duly executed and that the signatures on the Will are forged and fabricated. The registered Will of the testator Akshaybat Mishra is thus the last and final Will and bequeathing the properties described in the Will to his grandson late Nawal Kishore Mishra. Maintainability by virtue of intervention of the iaw:- 43. This leads the Court to the next question connected with this case. The defendant claims that the suit is not maintainable on various grounds. The defendant have made out a case at the stage of argument and not in the caveat application or written statement that by virtue of Section 14(1) of the Hindu Succession Act, Laganmani Kuer would become the absolute owner of the lands bequeathed to her. It is contended that the general law of succession will apply to the devolution of the property in question. It is contended that the general law of succession will apply to the devolution of the property in question. It is argued that sub-section 1 of Section 14 of the Hindu Succession Act, 1956 has rendered the Will in question infructuous and inoperative: Referring to the judgments in the case of V. Tulasamma vs. Sesha Reddy ( AIR 1977 SC 1944 ) and the case Raghubar Singh & Others vs. Gulab Singh & Others ( AIR 1998 SC 2401 ), learned Counsel for the defendant claims that Laganmani Kuer had become the absolute owner of the property in question by virtue of enactment of the Hindu Succession Act, 1956. The facts of Raghubar Singh (supra) case are somewhat different. A suit was filed for cancellation of the Will, which ended in a compromise, in which it was stipulated that Most. Janki Dulari shall retain ownership and possession of the said lands during her lifetime and thereafter the lands were to go to heirs of Maniraj Singh and Raghubar Singh. Most. Janki Dulari continued to be in possession of the property after the death of her husband, Janki Dulari died in 1969. The question which has been answered in Raghubar Singh in the affirmative holding that the case was covered by the provisions of Section 14(1) of the Hindu Succession Act, 1956. 44. In the context of the facts of this case, the decisions rendered in the cases of V. Tulasamma and Raghubar Singh would not be applicable. In both the cases, the widow by virtue of either a decree or a compromise came to be in possession of the property and the suit for partition or recovery of possession were filed thereafter. Therefore, these cases cannot be considered at this stage by this Court for the purpose of holding that the probate should be dismissed on the ground that it is not maintainable under Section 14(1) of the Hindu Succession Act, 1956 or that matter cannot be considered in context with Section 119 and Section 120 of the Indian Succession Act. This issue was not raised in the cases aforesaid. It has also been argued on behalf of the defendant that Laganmani Kuer died in August, 1956 and the plaintiffs have not been able to prove otherwise and as such the Court should dismiss the suit as it would be covered by the Hindu Succession Act. This issue was not raised in the cases aforesaid. It has also been argued on behalf of the defendant that Laganmani Kuer died in August, 1956 and the plaintiffs have not been able to prove otherwise and as such the Court should dismiss the suit as it would be covered by the Hindu Succession Act. Counsel for the plaintiffs, on the other hand, submits in this context that the defendant cannot argue that Laganmani Kuer died in 1956 as the defendant has merely made a statement in the caveat petition and has not led any evidence on this issue. None of the family members have come forth to support the defendant and claim that there was no Will, or that it was forged and fabricated or that Laganmani Kuer died in August, 1956. The onus to prove that Laganmani Kuer died in August, 1956 lies squarely on the shoulder of the defendant and thereafter the onus would shift to the plaintiffs to prove otherwise. In this case, none of the parties have produced any documentary evidence (perhaps it is unavailable) with respect to the month of the death of Laganmani Kuer and, therefore, this Court having allowed the amendment application and even otherwise cannot go into these issues in these proceedings, as the scope of the grant of probate or Letter of Administration is very limited. It does not determine the question of title in property which is subject matter of the Will. There are several decisions on this issue. 45. In the case of Vikas Singh & Ors. vs. Devesh Pratap Singh, 2001 (2) PLJR 184 , this Court has held that the jurisdiction of the Probate Court is limited to finding out that whether the Will is (a) duly executed, (b) genuine and last Will of the testator, (c) that such execution is made in a sound state of mind with full understanding. The question of ownership by virtue of amendment in the law lies outside the scope of the proceedings. The Court has also held that any favorable decision for granting the probate does not operate as res judicata in a suit filed by the objector with respect to title and interest in the property. Similarly in the case of Ishwardeo Narain Singh vs. Smt. Kamta Devi & Ors. The Court has also held that any favorable decision for granting the probate does not operate as res judicata in a suit filed by the objector with respect to title and interest in the property. Similarly in the case of Ishwardeo Narain Singh vs. Smt. Kamta Devi & Ors. (A.I.R 1954 Supreme Court 280), the Supreme Court has held that that the Probate Court has only to decide as to whether the document put forward as the last Will and testament of the deceased person were duly executed and attested in accordance with law and whether the testator was of sound mind while executing the Will. Since the Court has only to decide whether the particular bequest is good or bad, it is not within the purview of the Probate Court to decide the question of title of the suit properties. Maintainability vs. vesting of legacy: 46. One of the arguments that have been advanced on behalf of the defendants is that a wrong impression has been sought to be created by the plaintiffs that the Will in question made Laganmani Kuer as the first legatee. According to the defendant Nawal Kishore Mishra was the second legatee after the death of late Laganmani Kuer. In this context Section 119 of the Indian Succession Act may be referred, which reads as follows: "Date of vesting of legacy when payment or possession postponed. Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the Will, become vested in the legatee on the testators death, and shall pass to the legatees representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testators death said to be vested in interest." 47. This case would come under the explanation illustration 3. Paragraph 5 of the Will indicates that the testator has given a life interest in the property to his wife and after his wife to his daughters son namely Nawal Kishore Mishra. This case would come under the explanation illustration 3. Paragraph 5 of the Will indicates that the testator has given a life interest in the property to his wife and after his wife to his daughters son namely Nawal Kishore Mishra. Explanation 3 reads as follows as also explanation 4 to some extent: "A fund is bequeathed to A for life, and after his death to B, on the testators death the legateecy (sic legacy?) to B becomes vested interest in B." Explanation-4 reads as follows: "A fund is bequeathed to A until B attains the age of 18 and then to B, the legacy to be (sic B is?) vested in interest from the testators death." 48. On the basis of the aforesaid explanations, it has been argued on behalf of the plaintiffs that as per Section 119 of the Act, the grandson (Nati) of the testator, Nawal Kishore Mishra alone should enjoy the property as absolute owner and nobody else had any right. After the death of the testator, interest was vested in favour of Nawal Kishore Mishra. The ownership vested in him although the possession was differed (sicdeferred?). The intention of the testator was to create an absolute ownership in favour of Nawal Kishore Mishra to the exclusion of all others. It has also been submitted that the testator did not anticipate that in future that one of the brothers of Nawal Kishore Mishra would claim properties, although Nawal Kishore Mishra had three brothers and three sisters. It would be important to note that the provisions of the Will provided that the son of Madalsa Devi and Bhola Nath Mishras eldest son Nawal Kishore Mishra would be the MALIK of the house. It also provides that Bhola Nath Mishra would look after the land and house on behalf of his grandson. The Will further provided that Bhola Nath Mishra, the son-in-law of the testator, would not have permission to sell the land or to create any encumbrances on the land in question. In this context, it may be noted that Laganmani Kuer who had also signed the Will was fully aware of the intention of the testator. Laganmani Kuer had got the name of Nawal Kishore Mishra mutated in the Patna Municipal Corporation in the year 1952 during her life time which would also indicate that she was fully aware of the intention of the testator. Laganmani Kuer had got the name of Nawal Kishore Mishra mutated in the Patna Municipal Corporation in the year 1952 during her life time which would also indicate that she was fully aware of the intention of the testator. It appears that from 1952 onwards Nawal Kishore Mishra alone enjoyed the property, paid the taxes and till his lifetime nobody objected to his possession or title. It has also come on record that after the death of Nawal Kishore Mishra in 1985 his sons (plaintiffs) names stood mutated and nobody objected at that stage as well. In this context certain decisions have been referred to by both the parties. The facts of this case although on better footing would be covered by the decision rendered in the case of Smt. Bhagirathi Bai & Another vs. Lalchand Balaram & Others (AIR 1975 Bombay 301) and the facts of the case of P. Somasundaram vs. K. Rajammal, (AIR 1976 Madras 295). The Supreme Court in the case of Gnambal Ammal vs. T. Raju Ayyar & Ors. (AIR 1951 Supreme Court 103) has held "the intention of the testator has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he has been better informed or better advised". In another case P. Somasundaram vs. K. Rajammal (AIR 1976 Madras 295) which also relates to the vesting of interest under Section 119 of the Indian Succession Act, the facts were that testator died, his Will expressed his clear and unambiguous intention that his wife P, daughter-in-law C and V grand daughter born latter, would maintain themselves out of the income of the properties during the lifetime of P and C. B and C were given no right of alienation of the property. After the lifetime of P and C, V was to get the properties. 49. After the lifetime of P and C, V was to get the properties. 49. It was held that under Section 119 of the Indian Succession Act, B had a vested right in the suit properties and the properties had devolved on B on the death of the testator subject to the charge of maintenance in favour of the testator B and C. The Court has also distinguished between the vested and a contingent bequest, by stating that an interest is said to be vested when it is not subject to any condition precedent, when it is to take effect on the happening of an event which is certain, whereas a state is contingent when the right of enjoyment depends on happening of an uncertain event which may or may not happen. A person takes a vested interest in property at the testators death when he acquires a propriety right in it at that time, but the right of enjoyment is only differed till a future event happens which is certain to happen. But a contingent interest is one in which neither any proprietary interest nor a right of enjoyment is given at the testators death; but death depends on future uncertain events. Similar is the decision in a case reported in AIR 1962 Andhra Pradesh 54 in the case of Chilamakuri Chinna Pullappa vs. Guruka Chinna Bayanna & Ors. The Patna High Court has also supported the above view in the case of Smt. Kapuri Kuer vs. Sham Narain Prasad & Ors. (AIR 1962 Patna 149). 50. I may also refer to the case of Dr. Mahesh Chand Sharma vs. Raj Kumar Sharma (Smt.) and Others, reported in 1996(8) SCC 128 which is cited by the defendant. The facts are that Ram Nath and Satyawati owned certain properties in New Delhi. Ram Nath made a Will on 10.4.1942 bequeathing his property to his wife Satyawati Devi for her life. He provided that after her death, it will devolve upon his "legal heir". Another Will is said to have been executed in 1950. There was a settlement between the defendants in the original suit and Satyawati Devi in the year 1955 by which she gave up the ownership of part of the property. Satyawati Devi died in 1972 thereafter a suit for partition was filed. Another Will is said to have been executed in 1950. There was a settlement between the defendants in the original suit and Satyawati Devi in the year 1955 by which she gave up the ownership of part of the property. Satyawati Devi died in 1972 thereafter a suit for partition was filed. The plaintiff who is the daughter of Ram Nath claimed 1/5th share in all the properties including the house at Doctors Lane which was the subject matter of the suit, by virtue of the provisions of the Hindu Succession Act. The Division Bench of the Delhi High Court allowed the appeals and then the matter travelled upto the Supreme Court. 51. The Delhi High Court held that the Will dated 10.4.1942 was validly executed, the Will executed by Ram Nath on 25.9.1950 in favour of the first defendant is not a valid Will; the settlement of 1955 was not total and complete and was not surrendered under the law; the language of the Will of 1942, it is exception to Section 111. and Sections 119 and 120 of the Indian Succession Act would apply. As such the Delhi High Court held that the plaintiff is entitled to 1/5th share in the Doctors Lane house. 52. For the purpose of the facts of the present case Para 18 of the judgment aforesaid is relevant and is being quoted below: "18. Let us first analyse Section 119 from the point of view of the facts of this case and see what does it say. According to it, unless a contrary intention appears from the Will, a bequest made to a legatee, who is not entitled to immediate possession of bequest, gets vested in such legatee on the date of death of the testator. The Explanation appended to the section elucidates the words "unless a contrary intention appears by the Will" occurring in the main limb of the section. The Explanation says inter alia that merely because a prior interest in the bequest is given to some other person, it does not mean that a contrary intention is indicated in the Will. Illustration (iii) is of crucial relevance. It says that where a fund is bequeathed to A for life and after As death to B, the legacy to B becomes vested in interest in B on the testators death. Illustration (iii) is of crucial relevance. It says that where a fund is bequeathed to A for life and after As death to B, the legacy to B becomes vested in interest in B on the testators death. If we read the principle underlying the main limb of Section 119 alongwith the Explanation and Illustration (iii), it becomes abundantly clear that the present case squarely falls within the four corners of this section. It fits in neatly into Illustration (iii) to Section 119. Here, the Doctors Lane house is bequeathed to Satyawati for life and after her death to the legal heirs of the testator. Once this is so, the legacy to the legal heirs of the testator became vested in such legal heir(s) on the date of death of the testator and admittedly on that death, first defendant was the only legal heir of the testator. We may mention that merely because a prior interest in the bequest is given to Satyawati, it cannot be said that the Will indicates a contrary intention within the meaning of the main limb of Section 119. (See Chilamakuri Chinna Pullappa vs. Guruka Chinna Bayanna and P. Somasundaram vs. K. Rajammal in this behalf.) Now, once the bequest to "the legal heirs of the testator" provided by the Will got vested in the first defendant on the date of the death of the testator, there is no question of the first defendant being divested therefrom. On the death of Satyawati, the first defendant became entitled to possession of the Doctors Lane house which had already vested in him." 53. Therefore, after discussing the law on this issue, the conclusion drawn by this Court is (a) The case of the plaintiff is covered under Section 119 of the Hindu Succession Act; (b) The statutory provisions under Section 14(1) of the Hindu Succession Act will ultimately have to be taken into consideration on the basis of the comments passed by this Court. I may emphasize that this question can only be raised if the defendant proves that Lagan mani Kuer died after the commencement of Hindu Succession Act; (c) This issue cannot be decided by this Court as it is beyond the scope of the suit filed in the High Court. Maintainabilty on the ground that the affidavits have not been sworn in accordance with law: 54. Maintainabilty on the ground that the affidavits have not been sworn in accordance with law: 54. An objection has been raised on the maintainability of this testamentary suit on the ground that the affidavits sworn on behalf of the plaintiffs are not in accordance with Section 280 of the Indian Succession Act, 1925 and according to Order 19 rule 3 of the Code of Civil Procedure. Section 280 of the Indian Succession Act provides that all cases or the petition for probate or letter of administration shall be scribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the following manner: "I, (A, B) the petitioner in the above petition declare that what is stated therein is true to the best of my knowledge and believe (sic belief?)." 55. In the present case Chandra Madhav Mishra, the petitioner plaintiff has stated that he filed an affidavit by stating that he solemnly affirm and state as follows: "That the contents of this petition of probate of this Will were read and fully understood by me and they are true to my knowledge and believe." 56. Learned counsel for the plaintiffs submits that the arguments is misconceived inasmuch as the said section has clearly stated as to how and what language is to be used while filing an application for issuance of letters of administration. I find that the plaintiffs substantially complied with the provisions of Section 280 of the Indian Succession Act. The objection of verification is to secure good faith in the averments of the parties inasmuch as by verification he makes the statement of his own. 57. As per Blacks dictionary meaning of the knowledge is awareness or an understanding of a fact or circumstance; a state of mind in which a person has no substantial doubt about the existence of a fact. In essence the meanings of the two words are similar as both words indicate that the person using them is informed about the facts he is stating or uttering. 58. Thus, the case cannot be thrown out on this ground. The language used in Section 280 is information and believe whereas in the affidavit it has been stated knowledge and believe (sicbelief?). 59. 58. Thus, the case cannot be thrown out on this ground. The language used in Section 280 is information and believe whereas in the affidavit it has been stated knowledge and believe (sicbelief?). 59. The Oxford dictionary meaning of the word "information" as facts or knowledge provided or learnt whereas the meaning of the word "knowledge" is information and skill gained through experiences or education, awareness gained by experience of a fact or situation he knows. 60. As such the object of such verification has to secure good faith in the averments of the parties, inasmuch as by verification he makes the statements of his own. As such the objection of the defendant with respect to the maintainability on this issue is rejected by this court. Suspicious circumstances: 61. The defendant, during the argument, has raised an objection to the suit on the ground that the Will has been executed in suspicious circumstances. It has been argued that the registration took place at Buxar and the fact that the registration took place at Buxar is a suspicious circumstance to show that some body was manipulating Akshaybat Mishra from behind the scene. The allegation is rather vague and is not supported by any evidence led on this aspect. It is natural that Akshaybat Mishra who had no son would leave his property to his daughters son. In the written argument filed before this court the defendant has stated that it is surprising that the eminent friends of Akshaybat Mishra were not invited on the occasion of UPNAYAN SANSKAR of Nawai Kishore Mishra. With respect to this argument, this Court finds that there is no pleading nor has the defendant put these questions to the witnesses who appeared to give evidence in Court. Moreover, I do not think it very relevant while judging the validity of the Will in question. Limitation: 62. The delay in filing the testamentary case is one of the factors which come within the purview of suspicious circumstances. The greater the delay, the greater the suspicion and the chances of there being foul play with respect to the Will sought to be probated. Limitation: 62. The delay in filing the testamentary case is one of the factors which come within the purview of suspicious circumstances. The greater the delay, the greater the suspicion and the chances of there being foul play with respect to the Will sought to be probated. It has been argued on behalf of the defendant that the cut-off date for counting the period of limitation would be within a period of three years of the death of the testator or three years after the death of Laganmani Kuer or on the date when Nawal Kishore Mishra attained majority. The fact that the suit has been filed after a delay creates suspicion regarding the Will in question. 63. It has already been noted by this Court that the plaintiffs have been living peacefully on the property which is said to be willed to Nawal Kishore Mishra. They had got the name mutated without their being any objection. They had acted upon the Will inasmuch as the document was offered to the bank by way of security at the time of taking loan in 1981 and lastly, there was no occasion to probate the Will as it was accepted by all the family members and it was not until the defendant filed a partition suit that the plaintiffs felt the necessity of filing this case. It is, therefore, contended that this Court should reckon the cut-off date from the date on which the partition suit was filed. 64. The defendant has raised the question of limitation in this case and submitted that Article 3 of the Limitation Act provides that every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Limitation is a mixed question of law and fact and as such this Court would refer to the facts relevant for deciding this issue. The plaintiffs, on the other hand, have argued that limitation would not apply in this case, and if at all it is applicable, it would be from the date on which the suit was filed. 65. The testamentary case was filed on 1.9.2003. The admitted facts are that the Will was registered on 2.6.1936. Akshaybat Mishra died in the year 1939. 65. The testamentary case was filed on 1.9.2003. The admitted facts are that the Will was registered on 2.6.1936. Akshaybat Mishra died in the year 1939. The testator bequeathed the properties in question to his grandson Nawal Kishore Mishra, eldest son of his daughter Madalsa Devi and appointed Bhola Nath Mishra, the father of Nawal Kishore Mishra as executor of the Will. Apart from which, lifetime interest was also bequeathed to his wife Laganmani Kuer who died in the year 1956 (the dispute remains with respect to the exact month of her death). In this background, it has been argued on behalf of the defendants that the testamentary suit was barred in the year 1942 itself by virtue of Article 137 of the Limitation Act. It is further submitted that testamentary cases are actually applications registered only as a suit for the sake of procedure. The provisions of Section 278 of the Indian Succession Act and the provisions of Rules 3, 4, 10 and 21 of Chapter XI of Part 1 (General rules of Patna High Court Rules) have to be kept in mind while deciding this issue. 66. One fact which would be relevant is that the plaintiffs have taken a defence that they did not file the case as the Will was acted upon. There was nobody contesting the Will and the plaintiffs were in peaceful possession over the lands and properties in question and it is only when the defendants filed a suit for participation i.e. Title (Partition) Suit No. 262 of 2003 on 25.6.2003, the plaintiffs have filed this present application for issuance of Letters of Administration. In this context, the evidence of DW-1-the objector defendant is relevant as he has admitted that he heard from the family that the maternal grandfather had executed a Will in favour of his wife Laganmani Kuer. He has also stated that he is not in a position to ask his other family members who would be beneficiary by virtue of the application of Hindu Succession Act, 1956 to depose in this case. Another aspect of the matter which attracts the attention of the Court is that the death of Nawal Kishore Mishra, his sons came and daughter came in possession. They got their names mutated in the record of rights which was not challenged by the other heirs (sons and daughters of Madalsa Devi). Another aspect of the matter which attracts the attention of the Court is that the death of Nawal Kishore Mishra, his sons came and daughter came in possession. They got their names mutated in the record of rights which was not challenged by the other heirs (sons and daughters of Madalsa Devi). Sub-sequently, after the death of Shailendra Kumar, his wife and sons came in possession which was again not challenged by the defendant. In this case, the 2nd generation is now in possession of the suit property. Coupled with this fact is the evidence of the defendant, that he knew of the existence of the Will, that he had helped Madalsa Devi to sell off part of the suit lands and was also aware of the suit properties were mortgaged with the bank. The aforesaid facts leads this Court to conclude that in fact the cause of action arose when there was a challenge to the title and possession of the plaintiffs i.e. when the defendant filed partition suit on 25.3.2006, as such this Court finds no suspicious circumstances as far as the facts are concerned. 67. Keeping the facts in the background, I shall now turn to the law in question. Section 137 of the Limitation Act reads as follows: 137. Description of application. Any other application for which no period of limitation is provided elsewhere in the Division. Period of limitationthree years. Time from which period begins to runWhen the right to apply accrues. 68. It has already been decided in the case of The Kerala State Electricity Board, Trivandrum vs. T.P. Kunhaliumma, ( AIR 1977 SC 282 ) that Article 137 of the Act cannot be said to be on the principle of ejusdem generis to the application under the Civil Procedure Code and Article 137 would be applicable to any application made in different Courts including an application under the Indian Succession Act. Learned Counsel for the plaintiff, on the other hand, has tried to distinguish this case by stating that this case is not applicable to the applications filed under the Indian Succession Act as the Indian Succession Act is a self- contained Code and it does not provide for any limitation. Learned Counsel for the plaintiff, on the other hand, has tried to distinguish this case by stating that this case is not applicable to the applications filed under the Indian Succession Act as the Indian Succession Act is a self- contained Code and it does not provide for any limitation. It is also submitted that the application to the Court is a parameter to verify the legal duty created by a Will or for recognition as a testamentary trustee and to the continuous rights which can be exercised any time after the death of the testator, as long as the right to sue survives. It is submitted that the delay at the most could raise some suspicion with respect to the bona fide of the Will, however, considering the facts in this case, this Court ought to consider that the delay is explained adequately in view of the fact that the plaintiffs have been able to show to the Court that the Will is a genuine document, in the handwriting of the testator and has duly been proved, coupled with the fact that none of the family members except, the defendant, has raised any objection from the year 1936 to 2003 with respect to the plaintiffs possession and ownership of the property nor had the family members filed any objection in the mutation proceedings and as such until the filing of the partition suit, the plaintiffs had no occasion to come before this Court to file a probate case. 69. The Patna decision has taken into account the decision of The Kerala State Electricity Board and held that Article 137 applies to all applications made before any authority. However, it has been noted by the Patna High Court that the legal position regarding the construction of Article 137 has to be based on what would be the starting point for computing the period of limitation. Would it be on the date on which the executor died or would the right to apply for a probate accrue from the day to day so long as the Will remains unprobated. The Patna High Court held that the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the Will remains unprobated and therefore, for such an application, there is no period of limitation. The Patna High Court held that the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the Will remains unprobated and therefore, for such an application, there is no period of limitation. Similarly, as the view taken by the Madras High Court in the case of Gnanamuthu Upadesi vs. Vana Koilpillai Nadan, (1894) ILR 17 Madras 379. I shall lastly refer to the judgment of Kunwarjeet Singh Khandpur vs. Kirandeep Kaur ( AIR 2008 SC 2058 ). The Supreme Court has recognized that the applicant filing a probate seeks recognition of the Court to perform a duty. Probate or Letters of Administration issued by the Court is of the legal character throughout the world. The Supreme Court had held that though the nature of the petition as described by Madras High Court in the case of S. Krishnaswami and etc. vs. E. Devarajan and others (AIR 1991 Madras 214), was not correct in observing that the application for grant of probate of Letters of Administration is not covered by Article 137 of the Limitation Act. However, while referring to the decision of the case reported in AIR 1983 Bombay 268, the Supreme Court has quoted paragraph 16 of the Bombay decision, which reads as follows: Similarly, reference was made by the Apex Court in Kunwarjeets case to a decision of the Bombay High Courts case in Vasudev Daulatram Sadarangani vs. Sajni Prem Lalwani ( AIR 1983 Bom. 268 ). Para 16 reads as follows: 16. Rejecting Mr. 268 ). Para 16 reads as follows: 16. Rejecting Mr. Dalpatrais contention, I summarise my conclusions thus: (a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) such an application is for the Courts permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceaseds death; (e) delay beyond 3 years after the deceaseds death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates. 70. The Supreme Court has held that the conclusion (b) is not correct while the conclusion (c) is the correct position of law. In this context, I may point out that the Supreme Court has not rejected the stand taken by the Bombay High Court at (e) that delay beyond three years after the deceased death would raise suspicion and greater the delay, greater would be the suspicion and stand (g) which is "once execution and attestation are proved, suspicion of delay no longer operates". In the context of this case, this Court has already come to a finding and a conclusion that the Will executed by Akshaybat Mishra is a genuine document, duly attested in the state of sound mind and is the last Will and testament of late Akshaybat Mishra and there are no suspicious circumstances revolving round the preparation of the Will. Having held as above, this Court finds it difficult to accept the contention that the entire suit should be dropped on the ground that it is hit by Section 137 of the Limitation Act. Having held as above, this Court finds it difficult to accept the contention that the entire suit should be dropped on the ground that it is hit by Section 137 of the Limitation Act. I find that the actions of the plaintiffs in between the execution of the Will till 2003, when the partition suit was instituted indicates that by virtue of the Will, they were in possession of the property in question and had acted upon the Will inasmuch as their names were mutated in the Patna Municipal Corporation and the document was offered as a security in the bank, the plaintiffs could not get a copy of the Will until this Court called for it from the bank directly and as such, it cannot be said that the delay has not been explained. 71. In view of the facts and special circumstances surrounding this case, I accept the explanation of filing the probate after a long delay and find that it is adequately explained and hold that the plaintiffs are entitled for grant of Probate/Letters of Administration with respect to the Will dated 17.3.1936. 72. This suit is allowed.