The main legal point established in the judgment is the requirement for laying a foundation for the admission of secondary evidence, the need to prove the due execution and attestation of a Will, and the significance of identifying the signatures of attesting witnesses.

JUDGMENT :

Sanjay K. Agrawal, J.

1. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellants/defendants are as under:-

"1. Whether the appellate Court, while reversing the judgment and decree of the trial Court, was justified in holding that the registered will deed dated 30.04.1965 (Ex. P. 1) was validly executed in accordance with law by Jugrani Bai in favour of Chhedi Lal, Ayodhya Prasad, Ramdayal, Ramsharan & Ramanand?

2. Whether legatees are entitled to execute the registered deed of sale dated 23.08.1971 (Ex. P. 2) in favour of plaintiff Malti Bai?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

2. The suit property was originally held by Jagrani Bai and Rampyare, but Jagrani executed a Will dated 30.4.1965 in the names of Chhedi Lal, Ayodhya Prasad, Ramdayal, Ramsharan & Ramanand and in turn, they sold the suit property to plaintiff Malti Devi by sale deed dated 23.8.1971 (Ex. P-2). Smt. Malti Devi moved an application for mutation, the defendants objected that they have entered into agreement to sale with Shambhunath Choubey, power of attorney holder of Rampyare, which was rejected and the matter was taken up to the Board of Revenue vide Ex. P-5 holding that Jagrani Bai could not have executed sale deed of the entire property in favour of Chhedi Lal, Ayodhya Prasad, Ramdayal, Ramsharan & Ramanand, leading to filing of the suit by plaintiff-Malti Devi for declaration of title, possession and permanent injunction.

3. The defendants filed their written statement and denied the averments made in the plaint stating inter-alia that they entered into agreement to sale of land with Shambhunath Choubey, who was power of attorney holder of Rampyare and also denied the execution and attestation of Will in favour of those five persons and they claimed that they are in possession of the suit land since 1960 and as such, prayed for dismissal of suit.

4. During the course of trial, certified copy of the Will dated 30.04.1965 was put to evidence, which was objected on behalf of the plaintiff stating inter-alia that it is certified copy of the Will, therefore, no foundation for laying secondary evidence was made and therefore, it cannot be relied upon and it cannot be marked as exhibit. The trial Court in para-3 of statement of Ravishankar Tiwari (PW-2) recorded the objection reserving to be decided at appropriate time and permitted the said Will to be marked as exhibit and ultimately, it was marked and exhibited and thereafter the trial Court after appreciating the evidence available on record dismissed the suit holding in para-24 that original Will has not been filed, but certified copy of the Will has been filed, however, permission to lead secondary evidence of that document has not been granted holding that Will has not been proved in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872. On appeal being preferred by the legal representatives of the plaintiff, the first appellate Court reversed the judgment and decree of the trial Court holding that though certified copy of the Will has not been produced, but certified copy has been obtained from the office of the Sub-Registrar and that has been proved by witness of office of Sub-Registrar, as such, Will has been proved in accordance with law. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants, in which substantial questions of law have been formulated by this Court, which have been set-out in the opening paragraph of this judgment.

5. Mr. Anurag Dayal Shrivastava, learned counsel for the appellants/defendants, would submit that certified copy of the Will is a document covered by Section 74 (2) of the Evidence Act and unless foundation is laid for leading sec