B.N.AGRAWAL, J.

1. This appeal has been preferred by applicants in a probate case against the decision of a learned single Judge of this Court in a first appeal whereby the judgment passed by trial Court has been reversed.

2. An application was filed for grant of Letters of Administration in favour of the applicants in respect of the properties described in the Will giving rise to Probate Case No. 3/2 of 1970/71. The case of applicants, in short, was that one Chutamani Debya, a Hindu governed by Mitakshara School, died issueless after executing a registered Will dated 22-12-1917 in favour of Haliram Mahatha, Budhu Mahatha and Khudu Mahatha, in respect of the properties described in the Will. After death of the testator, the legatees, who were ancestors of the applicants, came in possession of the properties, which were subject-matter of the Will, and upon the death of the legatees, the applicants as their heirs are continuing in possession of the same. The said Will is said to be the last Will of the testator, who at the time of execution of the Will, was of sound state of mind.

3. After citations were issued to near relations, several objections were filed. One of the objections was that the testator had no right, title and interest in the properties bequeathed. It is said that the Will was obtained by fraud, coercion, misrepresentation and after taking advantage of illiteracy of the testator, who was a lady. Thus, genuineness of the Will was challenged on behalf of the objectors.

4. Both the parties in support of their respective cases led oral and documentary evidence and trial Court after considering the same, granted Letters of Administration in favour of the applicants after holding that the Will was genuine and duly executed by testator. Against the judgment of trial Court, when the matter was taken in appeal before this Court, a learned single Judge allowed the appeal, set aside the judgment of trial Court and dismissed the application for grant of Letters of Administration, after recording finding that the Will has not been proved in accordance with law, as execution and attestation of the Will was not proved in accordance with the provision of Sec. 69 of the Evidence Act (hereinafter referred to as the Act), because neither the scribe nor any of the three attesting witnesses was alive. In view of the fact that in the opinion of the learned single Judge, the Will was not legally proved and could not have been marked as an exhibit in the case, the question whether the same was genuine or not was not gone into by him. Hence this appeal.

5. Mr. Devi Prasad, learned counsel appearing on behalf of the appellants, in support of this appeal, has raised three points; firstly, that the present Will was executed in the year 1917, as such, the same having been executed 30 years ago, under Sec. 90 of the Act, the Court was obliged to presume its due execution and attestation and, therefore, requirement of formal proof, as envisaged under Sec. 69 of the Act was not necessary to be complied with. Secondly, it has been submitted that provisions of Sec. 69 of the Act were fully complied with and learned single Judge was not justified in holding otherwise, Thirdly, it has been submitted that though the question of genuineness or otherwise of the Will has not been gone into by learned single Judge, this Bench should consider the said question itself instead of remanding the matter to learned single Judge.

6. On the other hand, learned counsel appearing on behalf of the respondent, contended that the present case was not a fit one in which the presumption, as envisaged under Sec. 90 of the Act, could have been drawn; the Will was not duly proved, as envisaged under Sec. 69 of the Act and the same was not genuine.

7. In support of their respective contentions, learned counsel have placed reliance upon some decisions, but, in my view, the question to be decided in this case did not directly arise in any of the cases cited, as such