Strict compliance with S.68 of the Evidence Act is mandatory for the admissibility of a will, and it cannot be used for collateral purposes without proper proof.

1. Plaintiff is the appellant. His suit for injunction to restrain the defendant from trespassing into the plaint schedule property was dismissed by the Munsiff and it has been confirmed by the District Judge. The case of the plaintiff is that the plaint schedule property having an extent of 71/2 cents which is a puramboke land is in his possession for the past 20 years, that he has made valuable improvements in it, that he has constructed a building and that he has been residing there. Defendant contended that the property belonged to Paramu, father of the plaintiff and the defendant, that as per the will Ext.Bl three cents of property on the eastern side has been allotted to him and that he is in possession of the same. It is conceded by the defendant that 41/2 cents of property is in the possession of the plaintiff.

2. Learned District Judge held that the defendant is a co-owner of the property along with the plaintiff and so the plaintiff is not entitled to the injunction prayed for in the suit. To hold so, the learned District judge relied on Ext. B2 will. Learned counsel for the plaintiff submitted that the will has not been proved as contemplated under S.68 of the Indian Evidence Act and as none of the attestors to the will was examined, it is not admissible in evidence. The learned District Judge relying on Mahadeo Prasad v. Ghulam Mohammad (A.I.R. 1947 All. 161) held that though the will has not been proved by examining the attestor, S.68 of the Evidence Act does not prevent the document from being used in evidence under S.72 for any other collateral purpose.

3. In the case cited supra Alahabad High Court held thus:

"S. 68 (Evidence Act) applies only if a document is relied upon as one requiring attestation e.g. a will. Non-compliance with the provisions of S.68, however, does not prevent the document from being used in evidence under S.72 for any other or collateral purpose."

The above decision refers to Mathra Pershad v. Cheddi Lal (A.I.R. 1915 All. 254), Moti Chand v. Laila Prasad (A.I.R. 1918 All. 201) and Shyam Lal v. Lakshmi Narain (A.I.R. 1939 All. 269). In A.I.R. 1947 All. 161, the main question that was decided was whether the statement contained in Sahodra's will was admissible in evidence and the lower court was right in relying on the same. Validity or invalidity of the will was not a disputed question in the above case. The Court held that S.68 of the Evidence Act would certainly apply if any of the parties to the litigation has founded his claim on the will, a document requiring attestation. In the above decision, it was also held that non-compliance with S.68 does not prevent the document from being used in evidence under S.72 for any other collateral purpose.

4. In Moti Chand v. Lalta Prasad (40 All. 256) the Allahabad High Court observed:

"Where a document, itself legally inadmissible in evidence, was subsequently referred to and partly incorporated in a second document of similar import duly executed between the same parties and registered according to law, it was held that the earlier document might be referred to for the purpose of explaining and amplifying the terms of the second, and of arriving at a correct conclusion as to the true nature of the transaction into which the parties had entered."

Learned counsel for the defendant relied on Tofaluddi Peada v. Mahar Ali Shaha (26 Calcutta 78) where it has been held that when a suit is brought upon a mortgage bond, although the mortgage is held to be invalid on the ground that the requirements of S.59 of Transfer of Property Act were not satisfied, plaintiff is entitled to recover upon the covenant money which defendant covenanted to pay. In Sada Kavaur v. Tadepally Basaviah (30 Madras 284) the Madras High Court held that non-compliance with the rule laid down in S.59 T.P.Act as to attestation, does not render the personal covenant void. In Shyam Lal. v. Lakshmi Narain (A.I.R. 1939 All. 269) it is held as follows:

"S.68 does not intend that a doc