The main legal point established in the judgment is the mandatory nature of the attestation of a Will as per Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, and the requirement for the attesting witnesses to prove the execution and attestation of the Will in accordance with the law.

JUDGMENT

1. This second appeal preferred by the appellant/defendant No. 4 was admitted for hearing on the following substantial question of law :

''Whether the lower appellate Court was justified in holding that decree dated 21/7/97 was genuine and last Will executed by the deceased Agashia Bai ?''

(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)

2. Suit land admeasuring 4.09 acres in total situated at Village Ramtala, Bilaspur was held by Agashia Bai and her daughter Sona Bai. The two plaintiffs - Jaysu and Dharam Lal brought a suit on 11/05/2001 for declaration of title and partition stating inter alia that the suit land was originally held by Agashia Bai, who prior to her death on 31/01/1999, executed a Will dated 21/07/1997 (Ex. P/1) in favour of the plaintiffs and alienated half of the suit land in their favour. During the pendency of the suit, defendant No. 1 - Sona Bai sold some part of the suit land in favour of one Peelak Ram Goel by registered sale deed dated 17/03/2003, who was later added as a party/defendant No. 4 to the suit at the instance of the plaintiffs by order dated 25/06/2003 passed by the trial Court.

3. Defendant No. 1 filed his written statement denying the Will dated 21/07/1997 (Ex. P/1) executed by Agashia Bai in favour of the plaintiffs branding it as a suspicious document and prayed for dismissal of the suit. Defendant No. 4, the subsequent purchaser, also filed his written statement stating that he has purchased part of the suit land from Sona Bai by registered sale deed dated 17/03/2003 and his name has duly been recorded in the revenue records and the appeal of the plaintiffs has been dismissed by the Subdivisional Officer and the Collector, as such, plaintiffs are not entitled for any declaration and partition.

4. Learned trial Court, upon consideration of oral and documentary evidence on record, declined to accept the Will dated 21/07/1997 (Ex. P/1) executed by Agashia Bai in favour of the plaintiffs and ultimately, vide its judgment and decree dated 30/12/2005, dismissed the suit against which the plaintiffs preferred an appeal under Section 96 of the CPC wherein learned first appellate Court interfered with the judgment and decree of the trial Court and allowed the appeal of the plaintiffs by accepting the Will (Ex. P/1). Assailing the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been preferred by the appellant/defendant No. 4 in which substantial question of law has been formulated and set out in the opening paragraph of this judgment.

5. Mr. Ravindra Agrawal, learned counsel for the appellant/defendant No. 4 (now, his LRs.) would submit that the first appellate Court is absolutely unjustified in holding that execution and attestation of the Will (Ex. P/1) has been proved in accordance with law though both the attesting witnesses namely Pirit Ram (P.W. 3) and Shyam Sunder (P.W. 5) have been examined before the trial Court and by their statements, it is quite clear that the Will is not duly proved in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872 , as such, the second appeal deserves to be allowed by setting aside the impugned judgment and decree passed by the first appellate Court.

6. Mrs. Renu Kochar and Mr. Akhtar Hussain, learned counsel for respondent/plaintiff No. 1 and respondent/plaintiff No. 2 respectively, would submit that the suit land was transferred by defendant No. 1 Sona Bai in favour of defendant No. 4 during the pendency of the suit and though defendant No. 4 had been added as a party/defendant to the suit at the instance of the plaintiffs by order dated 25/06/2003, but since defendant No. 1 did not prefer an appeal against the judgment and decree of the first appellate Court, therefore, it has become final and defendant No. 4 has no right to prefer an appeal before thi