MOOL CHAND GARG, J. - (1.)THE short point involved in this matter is as to whether the Trial Court was right in having decided issue No.2 against the appellant by holding that the Will dated 18.08.1984 was not validly executed in a case where the respondents have filed a petition under Section 276 of the Indian Succession Act seeking letters of administration on the allegation that late Smt. Janki Devi their mother died intestate. As an objection to the aforesaid petition the appellant set up the Will dated 18.08.1984 alleged to have been executed by late Smt. Janki Devi.
(2.)THE Trial Court framed the following issues:
"1. Whether the deceased Smt. Janki Devi died and the petitioner is entitled to succeed her estate as such? OPP 2. Whether the deceased Smt. Janki Devi had executed a valid Will dated 18.08.1984 in favour of her sons and whether the said document is the last Will and testament of the said deceased? OPO 3.Relief."

Since the onus to prove the second issue was on the appellant, the appellant examined a deed writer who prepared a Will at the instructions of Smt. Janki Devi and who appeared as O2W1 and one attesting witness namely Shri Rameshwar Dass Gupta who appeared as O2W2. The second attesting witness was not examined.

It would be relevant to take note of examination-in-chief of O2W2 who stated as under:

"I know the parties to this petition for more than 25/30 years Vol. They are the sons of my "Bua" Smt. Janki Devi. She has since died. I have seen on record the original Will mark A. My Bua Smt. Janki Devi had come to me and had told me that she had executed her Will and I should sign the same. I had done so at her asking at point C and the writing at point Counter-affidavit be filed within four weeks with advance copy to counsel for the petitioner who may file rejoinder within four weeks thereafter. Is also in my hand on Will mark A. I do not identify the signatures of any other person on this Will mark A. She was living in 92 Banarsi Dass estate as she had personally come to my house at 93 Banarsi Dass Estate."

(3.)THE Ld. Addl. District Judge taking note of the aforesaid statement made by the attesting witness came to the finding that the Will in question has not been proved in accordance with law. THE relevant observation made by the Addl. District Judge are as under:
"Accordingly it is held that the will Ex. PW1/RB (Marked ?A) allegedly executed by deceased Smt. Janki Devi on 18.08.1984 is not proved as legal, decided against the respondent no.2. As there is no legal and admissible evidence on record led on behalf of the petitioner so no relief as prayed for by him can be granted. Issue No.1 is decided against the petitioner also."

In this regard the Trial Court has also taken note of statement of O2W2 as follows:

"Even if for the sake of arguments, it is presumed that the Will was duly registered before Sub-Registrar O2W3, then also simple registration is not sufficient to treat the Will as valid one. If the procedure and manner prescribed under Section 63 of India Succession Act is not followed, then such Will cannot be enforced even if it is registered. Registration of the Will and due execution of the Will are two different things. Registration in case of Will is only optional. Registered Will cannot take place or due execution. Accordingly statement of O2W3 is of no help to the respondent No.2 in proving the alleged due execution because according to the other witnesses, Will was already signed by the testatrix and witnesses before presenting before Sub-Registrar. Accordingly simple proving of registration of the Will cannot be treated as due execution also. The certificate of due verification and attestation of the Will mentioned at the bottom from point A to A does not contain the correct declaration as admitted by O2W2 in his cross examination. When attesting witness examined by the respondent No.2 to prove the execution of the Will himself is not supporting the case, then there exist no grounds to treat the Will in question as genuine and valid Will."