K.C. Sood, J.—Heard. Admit on the following substantial questions of law: Whether a Sub Registrar who attested a will can substitute for the attesting Witness of the will as contemplated under Section 63 (c) of the Indian Succession Act.

2. With the consent of the parties, the appeal is heard on merits.

3. The defendants/appellants having lost before the trial Court and the First Appellate Court are in this second appeal under Section 100 of the Code of Civil Procedure.

4. The only question raised in this appeal is the validity of the will alleged to have been executed by Dromati Devi in favour of the defendants. The plaintiffs filed a suit before the learned trial Court saying that the property, subject matter of dispute, was owned and possessed by Dromti Devi, the mother of the plaintiff and defendants to the extent of 3/16th shares. The property was inherited by the plaintiff and the defendants. The defendants, in order to grab the property, have set up a forged and fictitious will allegedly executed by Daromti Devi. The will set up by the defendants is liable to be declared null and void being a forged document and surrounded with suspicious circumstances.

5. The case of the defendants as set up in the written statement was that will had validly been executed in favour of the defendants which is a genuine document. Both the learned trial Court and First Appellate Court found that the will is not proved to be validly executed.

6. It is admitted position before me that one of the attesting witnesses had expired and the other attesting witness though alive, was not examined by the defendants. Mr. Palsara, learned Counsel for the appellants would contend that Sub Registrar who registered the will was examined as DW4 who had stated that the will was read over and explained to Daromti Devi and Daromti Devi affixed his thumb impression in his presence after admitting the contents to be correct and therefore, for all purposes, the Sub Registrar would be an attesting witness to the will.

7. Section 63 of the Indian Succession Act provides for the execution and attestation of the will. Section 63 reads : "63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or a mariner at seas, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signatures of such other persons, and each witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".

8. It may be noticed that according to Section 63 of the Act three things are necessary for valid execution of the will :— (1) It must be in writing; (2) It must be duly signed by the testator; and (3) It must be duly attested by at least two witnesses.

9. Due execution of the will has to be proved within the parameters of Section 63 and the law requires strict compliance of this provision.

10. Section 63 (c) of the Indian Succession Act though does not provide for a particular form of attestation but nevertheless, it is necessary, as required by Section 68 of the Indian Evidence Act that at least one of the attesting witnesses should be examined to prove the due execution of the will. It is the duty of the prepounder of the will to prove from th