JUDGMENT : 1. Heard Mr. M.K. Choudhury, the learned senior advocate, assisted by Mr. P. Bhardwaj, learned advocate for the appellants. Also heard Mr. M.H. Rajbarbhuiyan, learned advocate for the respondent No. 1. None appears on call for the proforma respondents No. 2 and 3. 2. This appeal under section 299 of the Succession Act, 1925 is directed against the judgment and order/decree dated 23.12.2014, passed by the learned District Judge, Karimganj in Title Suit (Test.) No. 6/1993, thereby issuing Letter of Administration in favour of the respondent No. 1 in connection with the will dated 25.06.1942 by Late Nabin Chandra Roy, which was registered on 11.09.1942. 3. The respondent No. 1, namely, Hironmoy Sekhar Das Astopati @ Hironmoy Sekhar Roy Astopati (respondent No. 1 herein) is the plaintiff in the suit (hereinafter referred to as the “propounder”). In the suit, the following were arrayed as defendants, (1) Sri Amitava Das Astopati (respondent No. 2), (2) Smt. Sandhya Rani Roy Choudhury, (3) Sri Monoranjan Roy, (4) On death of Bhagaban Roy Choudhury, his LRs. viz. (a) Sri Bhaskar Roy Choudhury (appellant No. 1), (b) Smt. Sabita Das (profroma respondent No. 3), (c) Smt. Ruma Roy (appellant No. 2). The respondent No. 2 had filed his written statement. Similarly, Sandhya Rani Roy Choudhury (defendant No. 2) had submitted her written statement as well as additional written statement. Late Bhagaban Roy Choudhury, the predecessor-in-interest of the appellants and proforma respondent No. 3 i.e. the substituted defendants No. 4(a), 4(b) and 4(c) had filed his written statement and additional written statement. 4. The propounder is the son of daughter of Late Nabin Chandra Roy, the testator of alleged will dated 25.06.1942. The testator died on 17.12.1946 at Karimganj at the age of 78 years leaving behind his wife (Sarojini Roy) and his only daughter (Kanan Bala Das @ Khiroda Sundari). The said daughter was living with the testator along with her husband (Himangshu Kumar Das Astopati @ Himangshu Kumar Roy Astopati) and her two sons and a daughter, viz. the propounder (Hironmoy Sekhar Das Astopati @ Hironmoy Sekhar Roy Astopati), Amitava Das Astopati @ Amitava Roy Astopati, and Smt. Sandhya Rani Das. It was stated that Sarojini died on 05.10.1952 and Himangshu died on 24.07.1979, Kanan Bala died on 06.12.1991. 5. It was projected that the testator had a brother, namely, Madhab Charan Roy and that they had jointly held the property. It was stated that Sarojini died on 05.10.1952 and Himangshu died on 24.07.1979, Kanan Bala died on 06.12.1991. 5. It was projected that the testator had a brother, namely, Madhab Charan Roy and that they had jointly held the property. The family had lived on the income derived from the property, which was managed by Sarojini and after her death, the property was managed by Kanan Bala by engaging one Sisir Kumar Das as her attorney to manage the joint property of the testator and Madhab Charan Roy. After marrying Sandhya, Bhagaban Roy Choudhury started to live in the property of the testator and used to manage the property and business left behind by testator. In this manner, Kanan Bala, Sandhya and Bhagaban started to manage the property and business of the testator with the help of Sisir, who recklessly managed the property and by discontinuing business, sold away almost the entire property in different transactions by keeping the propounder and respondent No. 1 in the dark and grabbed and misappropriated the proceeds and other income from the property. 6. On death of Kanan Bala, the authority of Sisir had ceased and thereafter certain old papers of the testator came into the hands of the propounder, amongst which, there was a manuscript of draft of will. It was discovered that a will dated 25.06.1942 was registered by the testator on 11.09.1942 as No. 2 of 1942 at pages 74-79, Vol. III at Karimganj Sub- Registry. The propounder had obtained a certified true copy of the said Will from Sylhet Sub-Registry in Bangladesh on 30.09.1992 after the records were shifted on partition of the Country. As per the said registered will, the testator had appointed the following persons as executors of the will, viz. (1) Sarojini Roy, (2) Upendra Mohan Sharma, son of Late Joy Gobinda Sharma, pleader, (3) Labanya Charan Das, son of Neel Ch. Das, (4) Kamini Kumar Das Purkayastha, son of Late Kalika Prasad Das Purkayastha, (5) Sukhamay Dutta, son of Late Shib Charan Dutta, pleader, and (6) Himangshu Kumar Roy Astopati, son in law of testator. It was stated that all the said executors are now dead and they never made any attempt to take probate of the will. It was stated that the property and business of the testator was illegally enjoyed and wasted by the attorney of Kanan Bala. It was stated that all the said executors are now dead and they never made any attempt to take probate of the will. It was stated that the property and business of the testator was illegally enjoyed and wasted by the attorney of Kanan Bala. As per the will, the scribe was one Satya Ranjan Das and the attesting witnesses were (1) Darindra Nath Das of Khalacherra, Karimganj, (2) Harendra Chandra Dey, pleader, (3) Koumudi Kumar Aditya, (4) Monoranjan Sharma and (5) Sushil Chandra Dutta, M.S. all of Karimganj Town and that all of these persons are now dead. 7. It was stated that as per the will, the business was to be shared equally by the propounder and the respondent No. 2 herein. His wife Sarojini and on her death, Kanan Bala would get a life estate with a right to maintenance out of the income of the property after meeting all expenses and that they would not have a right to sell or otherwise transfer the movable and immovable assets or the business of the testator and that the capital and bank balance of the business was to be kept intact. It was directed that the business and properties should be handed over and delivered to the propounder on his attaining majority. It was stated that he attained majority in the year 1958. It was claimed that the property transferred to Sandhya and Bhagaban by registered sale-deed No. 5576 dated 25.05.1973 and deed No. 9186 dated 23.05.1975 were liable to be declared null and void and set aside. The propounder had prayed for issuing letter of administration of the said will. 8. As per the Memo of Appeal, only one property has been described in the copy of plaint annexed thereto. But, on the perusal of the plaint from the LCR, it is seen that there are 5 schedules appended thereto. Schedule-I appended to the plaint contains a list of 4 properties. Schedule-II contains a list of 41 properties. Schedule-III, IV and V contains a list of various other assets. On a perusal of the purported will of the testator, it is seen that it does not contain the description of any property. 9. In the written statement and additional written statement filed in defence, the contesting parties had denied the entitlement of the propounder to a letter of administration. On a perusal of the purported will of the testator, it is seen that it does not contain the description of any property. 9. In the written statement and additional written statement filed in defence, the contesting parties had denied the entitlement of the propounder to a letter of administration. It was stated that the properties were not correctly described. The existence and execution of the said will was disputed and it was claimed that the testator had died intestate. It was stated that the name of the propounder was Hironmoy Das and not Hironmoy Sekhar Das Astopati as claimed. It was claimed that the property left behind by Nabin Ch. Roy was being managed and administered with the active participation of the father and mother of the propounder. It was stated that during the lifetime of Kanan Bala, Hindu Succession Act, 1956 had come into force and the wife and daughter of Late Nabin Ch. Roy got all proprietory rights over the estate left behind by him. It was stated that some land was taken over under Assam Land Ceiling Act, 1956 and that in respect of the retainable land, Kanan Bala was declared as land-holder. It was projected that under compelling circumstances, the mother of the propounder had to sell the property and the respective purchasers, being bona fide purchasers for value are in possession of their respective land. It was claimed that after death of Kanan Bala, her three children inherited the estate left behind by her. It was also projected that the properties mentioned in the will were not the properties of Nabin Ch. Roy as per the existing record of rights as well as title deeds of properties. It was stated that the application for letter of administration contained irrelevant, unscrupulous, false, concocted, manipulated, untrue, scandalous, indecent, fraudulent, obnoxious, ugly, unhealthy and illegal statements. It was stated that without the original will, the certified copy of will is not admissible in evidence. It was stated that a patta and kobuliot dated 14.08.1950 between Himangshu (father of propounder) and one Prabhat Kr. Das was registered in Karimganj Sub-Registry and there was an amicable partition of the joint property of Late Nabin Ch. Roy and Sri Monoranjan Roy, wherein Monoranjan Roy was an attesting witness. It was stated that a patta and kobuliot dated 14.08.1950 between Himangshu (father of propounder) and one Prabhat Kr. Das was registered in Karimganj Sub-Registry and there was an amicable partition of the joint property of Late Nabin Ch. Roy and Sri Monoranjan Roy, wherein Monoranjan Roy was an attesting witness. It was also stated that since 1947, large number of properties were sold by Sarojini and Kanan Bala for prestige, benefit and welfare of the family with the knowledge and consent of all concerned, including the propounder. 10. It was stated that the respondent No. 2 herein had instituted TS No. 107/1981, wherein it was stated that the will of 1942 was in the custody of the propounder, but the same was denied by the propounder. But after 12 years, the propounder had come up with the said manufactured will by suppressing his admission, only to deceive others. 11. Upon pleadings, the following issues were framed for trial:- (i) Whether the plaintiff has cause of action for the suit? (ii) Whether the suit is barred by limitation? (iii) Whether the testamentary petition is maintainable in its present form and manner and the plaintiff had locus standi to prefer it? (iv) Whether the ‘will’ in question is genuine and as to whether the petition of Letters’ of Administration is maintainable in absence of the ‘will’ in original? (v) Whether the suit is bad for defect of parties? (vi) Whether the plaintiff is entitled to the reliefs claimed? (vii) To what other relief/reliefs the plaintiff is entitled? 12. In support of the case, the propounder had examined himself as PW-1 and had exhibited the following documents, viz. Draft copy of Will (Ext.1), Certified copy of will dated 11.09.1942 (Ext.2), Envelope Ext.2(1), application dated 28.04.1995 (Ext.3), horoscope of propounder (Ext.4). Application dated 28.04.1994 before Karimganj Sub- Registry. The appellant No. 1 [i.e. substituted defendant No. 4(a)] examined himself as DW-1 and exhibited the following documents, viz. (i) Sale-Deed No. 5576 dated 25.05.1973, (ii) Sale-Deed No. 9186 dated 23.05.1975, (iii) Plaint of TS 107/1981 (Ext.C), written statement of Kanan Bala Das [Ext.C(1)], (iv) Certified copy of order dated 20.11.1981 in TS No. 107/81 [Ext.C(2)], (v) Certified copy of Misc (Succession) Case No. 91/1993 filed by the respondent No. 2 (Ext.D), (vi) Certified copy of order dated 05.05.1995 by which Misc. (Succession) Case No. 91/1993 was dismissed on withdrawal [Ext.D(1)], (vii) Certified copy of plaint in TS 149/1993 (Ext.E), (viii) certified copy of written statement of Bhagaban Roy Choudhury in TS 149/1993 [Ext.E(1)], (ix) Certified copy of order of dismissal of the said suit [Ext.E(2)], (x) Certified copy of decree in TS 149/1993 [Ext.E(3)], (xi) Certified copy of decree in TS 286/1993 (Ext.F), (xii) certified copy of order dated 19.03.1998 in TS 286/1993 [Ext.F(1)], (xiii) Disclaimer agreement dated 11.03.1993 by Monoranjan Roy & others admitting the ownership of Kanan Bala Das with the propounder as confirming party (Ext.G), (xiv) Deed of Agreement executed by Himangshu Kr. Das (Ext.H), (xv) Notice issued by Collector to Kanan Bala Das in Land Acquisition Case (Ext.I), (xvi) order dated 10.03.1972 by Govt. Of Assam in said land acquisition case [Ext.I(1)], (xvii) Final khatian in the name of Kanan Bala (Ext.J), (xviii to xxv) Certified copy of Index of Registration Office, Karimganj [Ext.K(1) to Ext.K(7)], (xxvi) Certified copy of sale-deed in favour of Monoranjan Roy by Kanan Bala (Ext.L), (xxvii) Certified copy of Sale-Deed No. 7838 in favour of Monoranjan Roy by Kanan Bala [Ext.L(1)], (xxviii) Certified copy of Sale-Deed No. 4281 dated 05.12.1992 in favour of Priti Chakraborty by propounder and Monoranjan Roy [Ext.L(2)], (xxix) Certified copy of Sale-Deed No. 7592 dated 03.07.1969 in favour of Mrinalini Das by Kanan Bala [Ext.L(3)], (xxx) Certified copy of Sale Proclamation in M.Ex. Case No. 7/1993, (xxxi to xxxvii) Letters written by Himangshu Kr. Das [Ext.N(1) to Ext.N(7)], (xxxviii and xxxix) Letter written by propounder alias Gora [Ext.O and Ext.O(1)], (xl) Letter written by Kanan Bala (Ext.P), (xli and xlii) Municipal Tax receipts [Ext.Q(1) and Q(2)], (xliv to xlvi) Land revenue challans [Exts. R, R(1) and R(2)], (xlvii) Telegram of Himangshu Kr. Das (Ext.S). 13. In respect of issue No. IV, while the learned Court had observed that in the written statement filed in TS No. 107/1981, the propounder and his mother (Kanan Bala) had both denied the existence of the will. The learned trial Court had held that the persons named in the will, including scribe and attesting witness were all dead. 13. In respect of issue No. IV, while the learned Court had observed that in the written statement filed in TS No. 107/1981, the propounder and his mother (Kanan Bala) had both denied the existence of the will. The learned trial Court had held that the persons named in the will, including scribe and attesting witness were all dead. The learned trial Court had observed that in connection with petition No. 36/03, to prove the registered will through advocate Commissioner and through the Office of the High Commissioner of India in Bangladesh under Section 78(6) of Evidence Act, the matter came for consideration of this Court in CRP 247/2007, wherein this Court had held that the said petition may be considered by the learned trial Court at a later stage. Upon discussing the law of inheritance regarding the female, and circumstances under which the properties were sold by Sarojini and Kanan Bala, it was held that the conduct of the said females inspired confidence that they had suppressed the will and collusively with others sold of the properties of the testator only to establish their ownership over the properties left behind by the testator. Therefore, it was held that the will was a genuine one and there was no necessity to prove the said will in original. Accordingly, it was held that the respondent No. 1 was entitled to “letter of administration” for whole or a part of the property mentioned in the schedule of the will and issue No. 4 was decided in favour of the respondent No. 1. 14. In respect of issue No. I, in view of recovery of draft manuscript of the will in 1991 after death of the mother of the testator, it was held that there was cause of action for the suit. In respect of issue No. II, it was held that there was no ground to hold that the suit was not maintainable and, as such, the issue was answered in the affirmative. In respect of issue No. V, it was held that the probate suit did not declare any title and, as such, the suit was not bad for non-joinder of necessary parties as all the connected descendants of the testator were made parties in the case and, as such, the issue was decided in the negative. In respect of issue No. V, it was held that the probate suit did not declare any title and, as such, the suit was not bad for non-joinder of necessary parties as all the connected descendants of the testator were made parties in the case and, as such, the issue was decided in the negative. Therefore, in respect of issues No. VI and VII, it was held that the propounder was entitled to ‘letter of administration” and, as such, the propounder was granted “Letter of Administration” of the entire estate, movable or immovable, left out by the testator, Nabin Ch. Roy, further holding that it was a different matter whether those properties presently exist as un-administered or not, as such, liberty was granted to propounder to elect which property remains un-administered till date. Accordingly, Letter of Administration was granted to the propounder in respect of the entire schedule property. 15. The learned Senior Counsel for the appellants has challenged the impugned judgment, inter-alia, on the grounds mentioned in the Memo of Appeal. It is submitted that the application for grant of letter of administration was hopelessly barred by limitation. It is submitted that the testator had allegedly made his will in the year 1942 and he died in the year 1946. It is also submitted that assuming that the propounder was 2 years old in 1942, when the alleged Will was executed, but then the propounder became an adult in the year 1958, as such, it is not possible that the propounder was not aware of the will till his mother died in 1991, living in the same household with his mother Kanan Bala. It is submitted that the will contained a list of many properties, but now only the property where the propounder as well as the appellants are residing are left out. Thus, the propounder had suppressed material facts as to how much properties of Nabin Ch. Das was sold by Sarojini, wife of testator and Kanan Bala, daughter or the testator, who is the mother of the propounder after the propounder had become adult in the year 1958. It is submitted that the properties of the testator was sold by the grandmother, mother as well as propounder sale and, as such, the propounder had received the benefit of the will. It is submitted that the properties of the testator was sold by the grandmother, mother as well as propounder sale and, as such, the propounder had received the benefit of the will. Therefore, having taken advantage of sale of the properties, the propounder is now after the small property, which had been sold to the father of the appellant for valuable consideration. 16. It is submitted that the manner of proof of the will, as prescribed in sections 68, 69, 74, 76, 78, and 86 of the Evidence Act, 1872 was not followed for proving the disputed will. Moreover, the draft of the will was also not proved to be in the handwriting of the testator. It is submitted that the loss of the will has not been proved. Moreover, the certified copy was not issued in this Country as such, the presumption as to genuineness of the certified copy cannot be taken by Courts in this Country. 17. It is submitted that the onus on the objector of the will was only to show circumstances under which the genuineness of the will can be doubted, as such, it would be the duty of the propounder of the will to dispel such doubt so as to prove the will to be genuine, which was not done in this case. 18. It is submitted that the respondent No. 2, the own brother of the propounder is the plaintiff in the previous suit, being TS No. 107/1981. It was stated therein that the will of 1942 was in the custody of the propounder, but the same was denied by the propounder as well as his mother, Kanan Bala. Therefore, having taken advantage of selling and otherwise disposing of their own land, by denying the existence of the will, after 12 years of such denial, the propounder had now come up with the said manufactured will by suppressing his admission, only to deceive others. It is submitted that thus, the application for grant of “Letter of Administration” was barred by limitation. 19. It is submitted that thus, the application for grant of “Letter of Administration” was barred by limitation. 19. In support of his submissions, the learned Senior Counsel for the appellant had placed reliance on the following cases:- (a) Babu Singh vs. Ram Sahai @ Ram Singh, (2008) 14 SCC 754 (b) Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and Others, (2008) 8 SCC 463 (c) Krishna Kumar Birla vs. Rajendra Singh Lodha and Another, (2008) 4 SCC 300 (d) Bhagat Ram and Another vs. Suresh and Others, AIR 2004 SC 436 (e) Harekrishna Panigrahi vs. Jagneswar Panda, AIR 1930 Cal. 688 20. Per contra, the learned advocate for the respondent No. 1 has submitted that there was no error in the judgment passed by the learned court below. In support of the said judgment, it is submitted that the maternal grandmother and the mother of the respondent No. 1 kept him out of control of the business and management of properties left behind by the testator, who was his maternal grandfather and, as such, he was not aware of the said will. Therefore, having no knowledge of the will, it cannot be alleged that in previously instituted TS 107/1981, the respondent No. 1 and his mother, Kanan Bala had taken a stand that there was no will. It is submitted that the predecessor of the appellants, namely, Bhagaban Roy Choudhury had taken a stand that if there was any will, the same was revoked. Thus, no one had denied the genuineness of the will, but it is projected that the only hitch was that the respondent No. 1 was totally unaware of the will, which prevented him from applying for “Letter of Administration” prior to the present case. 21. It is submitted that the respondent No. 1 did make a prayer vide petition No. 36/03, to prove the registered will through advocate Commissioner and through the Office of the High Commissioner of India in Bangladesh under Section 78(6) of Evidence Act. The said matter came for consideration by this Court in CRP 247/2007, wherein this Court had held that the said petition may be considered by the learned trial Court at a later stage. The said matter came for consideration by this Court in CRP 247/2007, wherein this Court had held that the said petition may be considered by the learned trial Court at a later stage. However, at the later stage, the learned trial Court had himself compared the draft will with the certified copy of the will and came to a finding that the draft and the will were same and found the will to be genuine. 22. It is submitted that there was no good grounds to challenge the order of grant of “Letter of Administration.” It is submitted that several executors were named in the will made by Nabin Ch. Roy and none of them had come forward to probate the will. Moreover, by the time the will was revealed, all concerned, including the attesting witnesses, scribe and all the executors were dead. It is submitted that the said will was registered in 1942 in Karimganj, but after partition, the registration records were transferred to Bangladesh. Therefore, after getting a copy of the draft will, with great effort, the original will could be traced to the Registration Office at Sylhet in Bangladesh and certified copy thereof was obtained and sent by an acquaintance at Bangladesh to the propounder, which was proved vide postal envelope [Ext.2(1)]. It is submitted that presumption of the genuineness of the will could not be dislodged by the appellants. 23. The learned advocate for the respondent No. 1 has submitted that the learned trial Court did not err on facts and in law in granting Letter of Administration in respect of all the properties described in the Schedule of the will of the testator as because the Court granting Letter of Administration of will is not concerned with the title of the property. In support of his submissions, the learned advocate for the respondent No. 1 has placed reliance on the case of Sunil Gupta vs. Kiran Girhotra and Others, AIR 1998 SC 140. 24. On the basis of rival submissions made on behalf of both sides, the following points of determination arise for consideration in the present appeal:- 1. Whether the application for grant of Letter of Administration filed on 24.02.1993 was barred by limitation? 2. Whether the purported Will of Late Nabin Chandra Roy dated 25.06.1942 has been proved in accordance with law? 3. Whether the application for grant of Letter of Administration filed on 24.02.1993 was barred by limitation? 2. Whether the purported Will of Late Nabin Chandra Roy dated 25.06.1942 has been proved in accordance with law? 3. Whether the impugned judgment and order/ decree is sustainable on facts and in law? 25. The point of determination No. 1 is taken up first. It is seen that the first reference to the will of Late Nabin Ch. Roy, purportedly executed in the year 1942 had come up in connection with TS No. 107/1981. The plaint of the said suit was proved as Ext.C from which it appears that the plaintiff in the said suit was Amitava Das (respondent No. 2). The defendants were (1) Sri Bhagaban Roy Choudhury, (2) Smt. Sandhya Rani Roy Choudhury, wife of defendant No. 1 therein (both are parents of appellants), (3) Sri Hironmoy Das (respondent No. 1 herein), (4) Smt. Kanan Bala Das (mother of the respondents No. 1 and 2). In paragraph 3 of the said plaint, it was specifically mentioned that by Will dated 11.09.1942, Nabin Chandra Roy had bequeathed all his property to the sons of defendant No. 4 (i.e. Kanan Bala) and in paragraph 6 of the plaint, it was stated that the said will was in the custody of the defendant No. 3 therein (i.e. respondent No. 1 herein). In TS No. 107/1981, Kanan Bala and the respondent No. 1 herein had filed their joint written statement on 03.07.1981, wherein in paragraph 6 thereof, the existence of will and its custody by the respondent No. 1 herein was denied. It appears from order dated 20.11.1981 [Ext.C(2)] that vide petition No. 530/9, the plaintiff of TS 107/1981 i.e. respondent No. 2 had prayed for permission to withdraw the suit on the ground that the will on which the suit is dependant, is in Bangladesh and it would take about 6 (six) month’s time to call for the same, as such, upon hearing the learned counsel for both sides, the prayer for withdrawal of the suit with permission to re-file the suit was allowed. The said order is quoted below:- “Ext.C(2) TS No. 107/1981 “20.11.1981 Defendant’s learned Counsel is present. The said order is quoted below:- “Ext.C(2) TS No. 107/1981 “20.11.1981 Defendant’s learned Counsel is present. Plaintiff in his petition No. 530/9 prayed for withdrawal of the suit with permission to refile the same on the plea that the will on which the suit depends is in Bangladesh and it will take at least six months time to bring the same. Heard learned counsel for both sides. The prayer for withdrawal with permission to refile the suit is allowed on condition that the plaintiff will pay usual cost of the defendants in this suit plus Rupees one hundred within one month failing which the suit will stand dismissed on withdrawal. Sd/- M.A. Khalique Munsiff (1), Karimganj.” 26. Thus, it is seen that on denial of existence of will of Nabin Ch. Roy by the respondent No. 1 and his mother, Kanan Bala, and in view of specific denial that the purported will of the deceased testator was with the respondent No. 1, the respondent No. 2 herein had withdrawn his TS No. 107/1981, purportedly to enable him to procure the said will. Thus, the issue of existence of will had been a matter of contest in TS No. 107/1981, where the respondent No. 1 and his mother, Kanan Bala had denied the existence of will or its custody with the respondent No. 1. Thus, it is seen that as 03.07.1981, when written statement was filed by the respondent No. 1, he had the knowledge about the will because the said suit was depended on the said will and that the respondent No. 1 herein is also deemed to be aware of the will lying in Bangladesh, when the learned Court of Munsiff No. 1, Karimganj had dismissed the said TS No. 107/1981 with liberty to the respondent No. 2 herein to re-file the suit on the ground that 6 (six) month’s time would be needed to procure the said will from Bangladesh. In the plaint, this Court has noticed with caution a conspicuous silence about the date on which the draft manuscript of the “will” came in the hands of the respondent No. 1. In the plaint, this Court has noticed with caution a conspicuous silence about the date on which the draft manuscript of the “will” came in the hands of the respondent No. 1. This is relevant because, the suit was filed on 24.02.1993, and the respondent No. 1 had applied for certified copy of the will on 28.04.1995 before the Sub- Registrar at Karimganj vide Ext.3, when the order dated 20.11.1981 [Ext.C(2)], reveals that the respondent No. 2 had informed the Court of Munsiff No. 1, Karimganj that the will is in Bangladesh. Thus, it appears that by applying for certified copy at Karimganj on 28.04.1995, the respondent No. 1 is creating a deception before the learned trial Court about his feigned ignorance about the proof of registration of will to be available at Bangladesh. 27. In view of the discussions above, this Court is of the considered opinion that the cause of action and/or the right to apply for probate and/or letter of administration had arisen in the year 1981 when the property of the testator was involved in dispute between his descendants, as envisaged under Article 137 of the Limitation Act. Thus, the application for grant of Letter of Administration ought to have been filed by the respondent No. 1 within 3 years from 1981, when previous suit i.e. TS No. 107/1981 was withdrawn by the respondent No. 2 herein only to procure and produce the will of the testator from Bangladesh. 28. There is no reason not to accept that the respondent No. 1 had no knowledge about the will because it is unbelievable that his own brother, i.e. the respondent No. 2 would assert about existence of the will in TS No. 107/1981 and claim that the respondent No. 1 was having the custody of the will, yet the respondent No. 1 would strenuously deny the existence of the will with Kanan Bala, his mother. On a perusal of the text of the English translation of the draft of will, which is found to be annexed as annexure to the application for grant of Letter of Administration, it is seen that in paragraph 7 thereto, the properties left behind by the testator was bequeathed to his grandsons (daughter’s son). On a perusal of the text of the English translation of the draft of will, which is found to be annexed as annexure to the application for grant of Letter of Administration, it is seen that in paragraph 7 thereto, the properties left behind by the testator was bequeathed to his grandsons (daughter’s son). Thus, the story of draft of will having discovered after death of Kanan Bala is out and out an after-thought and is an attempt to take advantage of sale and/or otherwise disposal of the properties of Nabin Chandra Roy, the testator and then selectively claim over legacy against the targeted property. At that time, the existence of the will was withheld to prevent any right to accrue in favour of the respondent No. 2, who had filed TS No. 107/1981. It is seen that the respondent No. 1 had become a major in the year 1958. Moreover, Himangshu Kumar Das Astopati @ Himangshu Kumar Roy Astopati, one of the executors named in the will was the own father of the respondent No. 1, who had died on 24.07.1979, by which time, as per the horoscope (Ext.4), the respondent No. 1 had already became a major in the year 1958. It is hard to believe the story projected by the respondent No. 1 that the said testator would not disclose his one own son about the existence of the will, about which the younger son, i.e. respondent No. 2 knows. Therefore, this Court is of the considered opinion that the cause of action to file the application for grant of Letter of Administration under section 278 of the Succession Act, 1925 accrued in the year 1981, when the property dispute had started in the family and the existence of necessity to procure the will of the testator from Bangladesh was brought on record by order dated 20.11.1981 in TS No. 107/1981, as such, the application dated 24.02.1993 for grant of Letter of Administration is held to be hopelessly barred by Article 137 of the Schedule of the Limitation Act, 1963. It is held that that in the year 1981, the respondent No. 1 had the knowledge about the existence of the will and its necessity to be brought from Bangladesh. Hence, the point of determination No. (1) is answered in the affirmative. It is held that that in the year 1981, the respondent No. 1 had the knowledge about the existence of the will and its necessity to be brought from Bangladesh. Hence, the point of determination No. (1) is answered in the affirmative. Accordingly, the finding by the learned trial Court on issue No. I is not sustainable and, as such, the said finding is reversed by holding that the present suit is barred by limitation. 29. The point of determination No. (2) is taken up now. This is first examined from the provisions of Section 67, 74(2), 86 and 90 of the Evidence Act, 1872. It is seen that it is the projected case of the respondent No. 1 that he had discovered the draft of the will of the testator after the death of his mother, Kanan Bala on 06.12.1991. However, no attempt has been made to prove the handwriting of the said manuscript of the draft will (Ext.1). Thus, the provisions of Section 67 of the Evidence Act, 1872 has not been complied with. No attempt has been made to prove the age of the said manuscript (Ext.1). The respondent No. 1 had not made any attempt to prove the loss of the original will of the testator as required under section 65(c) of the Evidence Act, 1872 as such, in the absence of proof of loss of the original will, secondary evidence of the will cannot be admissible in the eye of law. Coming to the certified copy of the will (Ext.2) in question, it is seen that the purported certified copy is prepared on stamp paper of Govt. Of Bangladesh. No provisions of the Evidence Act, 1872 could be shown to enable this Court to draw presumption of genuineness of certified copy of registered document issued by any authority of the Country of Bangladesh. The provisions of Section 86 is regarding the presumption as to certified copies of foreign judicial records, which provide that the certified copy of judicial record can be presumed to be genuine and accurate if such document is certified by any representative of the Central Government in or for such Country. The provisions of Section 86 is regarding the presumption as to certified copies of foreign judicial records, which provide that the certified copy of judicial record can be presumed to be genuine and accurate if such document is certified by any representative of the Central Government in or for such Country. Moreover, the will might be a thirty years old document, but the said certified copy of will (Ext.2), as produced in the case cannot be said to be a thirty years old document as envisaged in Section 90 of the Evidence Act and, as such, presumption about the genuineness of the said certified copy cannot be taken. Moreover, no attempt has been made to prove that the said certified copy has come from custody of any proper person, as because it was admittedly sent vide envelope-Ext.2(1) by someone in post from Bangladesh, about whom no proof has been adduced. Thus, this Court is of the considered opinion that the learned trial Court could not have taken any presumption about the genuineness of such certified copy of will (Ext.2). Therefore, in the considered opinion of this Court, the certified copy of will (Ext.2) cannot be said to be public record kept in any State of private documents, as provided in section 74(2) of the Evidence Act, 1872. It must also be noted that the provisions of Section 237 of the Succession Act, 1925 provides that probate can be granted on the basis of copy of draft or draft of the lost will, but the said provisions is not found to apply for grant of “Letter of Administration.” 30. The next vital question which arises is when no presumption about the genuineness of a the certified copy issued by authorities in the Country of Bangladesh can be taken, what would be the effect of the non examination of the attesting witnesses as required by Section 68 of the Evidence Act. The next vital question which arises is when no presumption about the genuineness of a the certified copy issued by authorities in the Country of Bangladesh can be taken, what would be the effect of the non examination of the attesting witnesses as required by Section 68 of the Evidence Act. In this connection it is seen that while it is projected that the Will of the testator is registered on 11.09.1942 at Karimganj, which was in undivided India before East Pakistan was created in 14th August, 1947 and Bangladesh was created in 1971, as such, it is quite possible that the registration of the will might have been in accordance with the provisions of Registration Act, 1908, but under the provisions of Evidence Act, 1872 as this Court cannot presume the genuineness of such certified copy issued by authorities at Bangladesh, in the considered opinion of this Court, it is only after complying with the provisions of Section 78(6) of the Evidence Act, 1872 can any public documents envisaged under Section 78 of the Evidence Act, 1872 be proved before the Courts in India. Thus, the proviso to section 68 of the Evidence Act, 1872 does not appear to help the respondent No. 1 and, as such, owing to non-compliance of Section 78(6) of the Evidence Act, 1872 it is held that the respondent No. 1 was required to prove the due attestation of the said will. Moreover, it is seen that as per the plaint, the scribe of the will of the testator was one Satya Ranjan Das and the attesting witnesses were (1) Darindra Nath Das of Khalacherra, Karimganj, (2) Harendra Chandra Dey, pleader, (3) Koumudi Kumar Aditya, (4) Monoranjan Sharma and (5) Sushil Chandra Dutta, M.S. all of Karimganj Town. However, no attempt has been made to prove that the said persons are dead. Thus, in the absence of any proof tendered to prove the death of the scribe of the will or of any attesting witnesses, this Court is of the opinion that the provisions of section 68 and 69 do not come to the aid of the respondent No. 1, and thus, the consequences of the said finding is that the will has not been proved by examining any attesting witnesses. Thus, in the opinion of this Court, non- compliance of section 78(6) of Evidence Act, 1872 to prove the certified copy of will is fatal for the respondent No. 1. Moreover, as in respect of point of determination No. 1, it has been held that the suit was barred by limitation, the curing of defect of Section 78(6) of Evidence Act, 1872 cannot give any benefit to the respondent No. 1. 31. Moreover, it is seen that one of the executors named in the will was Himangshu Kumar Das Astopati @ Himangshu Kumar Roy Astopati, who is none else but the father of the respondent No. 1 and, as such, it is not believable that he would not obtain probate of the will for the benefit of his sons. 32. As no attempt has been made to prove the will in original, it is needless to state that the signature and/or thumb impression of the testator on the will in original has not been proved in accordance with law. Therefore, the purported oral examination of the will by the learned trial Court cannot take place of valid proof of the existence of the will. As the other circumstances relating to execution and registration of will has not been proved, the age of the draft manuscript has not been proved, it appears that the learned trial Court had asked itself a wrong question as to whether the will is in consonance with the draft, because without the age of the draft manuscript having not been proved by forensic examination of document, it cannot be conclusively said whether the certified copy is in consonance with the draft manuscript or whether the draft manuscript was written as per the contents of the will, which was alleged in TS No. 107/1981 by the respondent No. 2 to be in custody of the respondent No. 1. 33. 33. Moreover, the learned trial Court had failed to notice a fact that in the last page of draft manuscript of will, the details of registration such as (i) date of registration on 11.09.1942; (ii) its entry in Book No. III, Volume-I, for 1934, pages 74 to 79, being No. 2 of 1942 and (iii) name of Sub- Registrar was written, which in the considered opinion of this Court is not possible because a draft manuscript is presumed to have been prepared before the execution of the will on 25.06.1942, and its registration on 11.09.1942. Therefore, in the back-page of draft, the presence of such endorsement creates a valid doubt about the genuineness of the draft manuscript of will. As per the contents of purported certified copy of will (Ext.2), the said will was entered in volume-books of the Karimganj Sub- Registry on 14.09.1942, as such, the presence of such endorsement in the back-page of draft manuscript leads to a presumption that such entries was made only after the contents of the Will was duly copied in the volume books of the Sub-Registry on 14.09.1942. Therefore, the indelible opinion of this Court is that the draft of will (Ext.1) is a copy of the will (Ext.3), after it was recorded in the volume-book of the Sub- Registry at Karimganj, as such, it is cannot be said to be a draft, but at best it can be said to be a copy of the will, without any proof tendered of the timeline, when the said copy (Ext.1) was written. Hence, the decision by the learned trial Court in respect of issue No. IV is not found to be sustainable on facts and in law and, as such, the said finding is reversed by holding that the respondent No. 1 had failed to prove that the purported ‘will’ alleged to have been executed by Late Nabin Chandra Roy is genuine. Moreover, in view of the discussions above, instead of answering whether a petition for “Letter of Administration” is maintainable in the absence of the ‘will’ in original, this Court is inclined to hold that the present case was not maintainable in the absence of any admissible proof of the execution of the will by the testator. 34. Moreover, in view of the discussions above, instead of answering whether a petition for “Letter of Administration” is maintainable in the absence of the ‘will’ in original, this Court is inclined to hold that the present case was not maintainable in the absence of any admissible proof of the execution of the will by the testator. 34. Moreover, it must be kept in mind that the Hon’ble Supreme Court, in the case of Bhagat Ram and Another (supra), had categorically held that mere registration of will does not dispense with the proof and execution of the will and its due attestation. In this count, the respondent No. 1 found to have utterly failed to prove the execution and attestation of the will. 35. Thus, the point of determination No. (2) is decided in the negative and against the respondent No. 1 by holding that the purported Will of Late Nabin Chandra Roy dated 25.06.1942, registered on 11.09.1942 has not been proved in accordance with law. In this connection, this Court finds support from the ratio laid down by the Hon’ble Supreme Court in the case of Babu Singh and Others (supra). 36. Thus, with the said finding, the other issues No. I, III, V, VI and VII, as decided by the learned trial Court are revisited again. 37. In respect of issue No. I, as per the case projected by the respondent No. 1, there can be no doubt that there appears to be cause of action for the suit, as such, the finding by the learned trial Court is not interfered in respect of this issue. In respect of issue No. III, while there is no dispute that the testamentary petition is maintainable in present form, but in view of the discussions in respect of issues No. II and IV herein before, the present testamentary petition is held to be not maintainable on facts and in law. In respect of issues No. V, this Court is not inclined to differ from the finding recorded by the learned trial Court, as there is no evidence on record to the contrary. In respect of issues No. V, this Court is not inclined to differ from the finding recorded by the learned trial Court, as there is no evidence on record to the contrary. However, the case of Sunil Gupta (supra), cited by the learned advocate for the respondent No. 1 to supplement his submissions that in a probate proceeding, there is no necessity to implead transferee pendente lite is not applicable in this case because in the present case the land of the testator were all transferred prior to the application field for grant of “Letter of Administration.” In respect of issue No. VI and VII, in view of the discussions and finding recorded in respect of issues No. II and IV above, the respondent No. 1-plaintiff in TS (Test) No. 6/1993 is not found to be entitled to any relief in the suit. 38. This Court is conscious of the well settled principle that the probate court cannot decide the title arising under the Succession Act, but it must confine itself to answer the question whether the will is genuine. If one requires any authority on the same, para 57 of the case of Krishna Kumar Birla (supra) may be referred to. In the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon, (2007) 11 SCC 357 , the Hon’ble Supreme Court has held that the probate Court does not decide the existence of property itself. But, in the present case, it is seen that the learned trial Court had granted power to the respondent No. 1 to elect which property remains un-administered, when on face of pleadings by parties, almost all the properties left in the Schedule of the Will are either consumed, sold or otherwise disposed off by the respondent No. 1 and his parents and maternal grand-mother. Thus, when on the face of pleadings made in the suit, that Sarojini, Kanan Bala and Himangshu, as well as Sisir had been squandering, wasting and selling the property for their own benefit, it is impossible for this Court to accept that any of the property described in Schedule of the will was lawfully administered after the death of the testator. There appears to be no provisions empowering the Court to grant letter of administration with right to the respondent No. 1 to elect only such part of property which according to him was not administered. There appears to be no provisions empowering the Court to grant letter of administration with right to the respondent No. 1 to elect only such part of property which according to him was not administered. The doctrine of election will apply only if the testator has excepted some property in the will, only then the legatee can obtain letter of administration for the rest of the property under Section 255 or 257 of the Succession Act, 1925. In this regard, the provisions of Section 278 (d) of the Succession Act, 1925 must be referred to, which prescribes that in the petition for probate, the petitioner must state the amount of assets which are likely to come to the petitioner’s hand. Therefore, the Court granting Letter of Administration must act in accordance with the claim made and it cannot grant a vague Letter of Administration, as done in this case, granting liberty to the respondent No. 1 to make claim against any one or few of the properties described in quite a large schedule of the plaint, where 4 properties are described in Schedule-I, 41 properties are described in Schedule-II and various other assets are described in Schedule-III, IV and V of the will. It is pertinent to reiterate here that in the will none of the properties left behind by the testator has even been vaguely described. Thus, the vague nature of application for grant of letter of administration is found to be contrary to the provisions of Section 278(d) of the Succession Act, 1925. As the probate Court does not decide any question of existence of property, the Court must grant probate or Letter of Administration of entire property as claimed, and it cannot grant right to the respondent No. 1 to choose any one of several properties mentioned in the case. Hence, the right to the respondent No. 1 to elect, as per the impugned order is also set aside. 39. In the view of the discussions above, in the considered opinion of this Court, once the respondent No. 1 had himself denied the existence of the will by taking such specific stand in his written statement filed in TS No. 107/1981, the said denial constitutes the existence of suspicious circumstances surrounding the execution of will by the testator. 39. In the view of the discussions above, in the considered opinion of this Court, once the respondent No. 1 had himself denied the existence of the will by taking such specific stand in his written statement filed in TS No. 107/1981, the said denial constitutes the existence of suspicious circumstances surrounding the execution of will by the testator. The absence of proof of signature of the testator or attesting witnesses and any proof about the death of the attesting witnesses also constitutes suspicious circumstances, which the respondent No. 1 could not dispel. Hence, in any view of the matter, the impugned order granting “Letter of Administration” is not found to be sustainable on facts and in law. 40. Thus, in view of the discussions above, the point of determination No. (3) is also answered in favour of the appellants and against the respondent No. 1 by holding that the respondent No. 1 is not entitled to any relief in the suit. It is held that the impugned judgment and order/ decree is not sustainable on facts and in law. 41. As a result, this appeal stands allowed. The impugned judgment and order/ decree dated 23.12.2014, passed by the learned District Judge, Karimganj, in Title Suit (Test.) No. 6/1993 is hereby set aside and reversed by holding that the respondent No. 1-plaintiff is not entitled to any relief in the said suit, as such, the said suit stands dismissed with cost. 42. Prepare a decree accordingly. 43. Let the LCR be returned.