INDERMEET KAUR, J.

1. Plaintiff Pt.Ram Babu Sharma is the son of Pt.Ram Kishan; Pt.Ram Kishan the father of the plaintiff used to look after Mst.Jhando Devi @ Phulo Devi, widow of Sh.Chhiddoo Mal; Mst.Phulo Devi was the owner of property bearing no.4090, Ward NO.VII, Kucha Dilwali Singh, Ajmerigate, Delhi; she was the only living person in her family. For the services rendered to her Mst. Phulo Devi executed her last will dated 1.1.1951 bequeathing her properties including the afore-noted suit property in favour of Pt.Ram Kishan. Pt.Ram Kishan was in continuous possession of this suit property up to the time of his death. After his death, the present plaintiff has inherited the aforesaid property. He is in occupation of the same. On the death of Phulo Devi on 2.1.1951 the defendants no.1 to 3 who had been appointed as trustees of the said immovable property took possession of the said property. Defendants no.4 to 6 are stated to be the tenants in the suit property. It is contended that defendants no.1 to 3 have no right to remain in occupation of the said property or to realize the rent from the tenants i.e. defendants no.4 to 6. It is pointed out that the earlier will of Ms.Phulo Devi dated 27.12.1950 appointing defendants no.1 to 3 as trustees had stood superseded by the last will dated 1.1.1951 pursuant to which the father of the plaintiff had been bequeathed the said immovable property. Suit for possession had accordingly been filed.

2. Defendants no.1 to 3 contested the suit. It was stated that the plaintiff is in permissive possession of one dalan, kotha and one kitchen forming a part of the house in the suit property which was in terms of the will dated 27.12.1950 executed by the deceased Phulo Devi; she had created a trust. It was denied that she had executed the last will dated 1.1.1951 superseding her earlier will of 27.12.1950. Submission was that defendants no.1 to 3 were the three trustees out of four appointed under her will dated 27.12.1950. In pursuance of the said will the trustees had taken possession of the whole of the house; defendants no.4 to 6 were tenants and paying the rent to the trust through the trustees. The will dated 27.12.1950 is the only valid will of the deceased.

3. On the rival contentions of the parties, the following six issues were framed by the trial court, which read as follows:

1. Whether the suit is correctly valued for purposes of court fees and jurisdiction?

2. Whether suit against defendant no.1 is not competent?

3. Whether Jhando Devi executed the will dated 1.1.1951?

4. Whether the plaintiff is estopped from propounding the Will dated 1.1.1951?

5. Whether defendants are entitled to special costs?

6. Relief.

4. On the basis of oral and documentary evidence which was led before the trial court, the suit of the plaintiff was dismissed.

5. In appeal vide impugned judgment dated 3.7.1999 the findings of the trial judge were endorsed. Appeal stood dismissed.

6. This is a second appeal. After its admission, on 8.7.2009, the following substantial question of law was formulated which reads as follows: Whether the entries made in the register of the deed writer containing a brief description of the contents of two Wills pertaining to movable and immovable properties of the testator in the absence of any written Will can be considered as valid Wills executed by the testator in favour of the appellant’s father?

7. Counsel for the appellant has drawn the attention of this court to Sections 2(h), 63 (c) and 238 of the Indian Succession Act, 1925 (hereinafter referred to “the ISA”). It is submitted that a will can be proved by one or the other attesting witness; in a case when the original will had been lost or destroyed in terms of Section 238 of the ISA a probate can be granted of its contents if the same is established by evidence. It is submitted that in the instant case the plaintiff has relied upon a will dated 1.1.1951; the scribe of this will had come into the witness box as PW1; the tw