The evidence of the scribe of a will, who testifies that he had written the will in the presence of the testator and that the latter had signed it in his presence, meets the requirements of Section 63 of the Indian Succession Act, 1925, and is sufficient to prove the due execution of the will.

1. Ramji Lal father of the parties, who died in the year 1965 owned and possessed the following properties in Ferozepur City :

(i) Shop No. 96-A in Bazar No. 1.

(ii) Shop No. 166 in Bazar No. 3.

(iii) House No. 162/9.

It may be mentioned here that this last mentioned property i. e. House No. 162/9 was sold by Ramji Lal during his lifetime.

2 R.D. Gupta, plaintiff son of Ramji Lal filed a suit for partition of the properties mentioned at Nos. (i) and (ii) above, against his two brothers namely Amin Chand and Sita Ram and their sister Smt. Naraini Devi, claiming 1/4th share in the said properties. As Smt. Naraini Devi, in her written statement disclaimed any interest in the inheritance to her father and stated that she had nothing to do with any of these properties and the properties may be divided amongst her brothers i. e. the plaintiff and the two defendants, in accordance with the will of deceased Ramji Lal, the plaintiff sought an amendment in his plaint to raise his claim to 1/3rd share instead of 1/4th share in the properties in suit. As a result of the permission having been granted to amend the plaint, he filed the present suit for partition claiming 1/3rd share in the properties at Nos. (i) and (ii) above and did not level any challenge to the will dated July 31, 1964, alleged to have been executed by Ramji Lal deceased, which will was pleaded by Amin Chand Defendant in his earlier written statement also. As the stand of Amin Chand was that shop No.166 had been bequeathed in his favour alone and the other short No. 96-A had been given to the other two brothers i. e. plaintiff R. D. Gupta and Sita Ram defendant in equal shares by their deceased father, the plaintiff had no right to claim partition of any property against him. Sita Ram defendant, however, supported the claim of the plaintiff and further pleaded that Amin Chand defendant, his brother was accountable to the other co-owners for the rents received by him, of shop No. 166 and was liable to render accounts. The pleadings of the parties led to the framing of the following issues :

(1) Whether Ramji Lal (deceased) made any valid will in favour of the plaintiff and defendants Nos. 1 and 2. If so its effect? OPD.

(2) Whether Amin Chand defendant No. 1 has been recovering rent of the disputed joint Properties and is liable to render accounts of the same to other co-sharers in the disputed property. If so its effect?

(3) Relief.

3. The learned trial Sub Judge, after recording the evidence in the case, upheld the claim of respondent Amin Chand, with regard to the genuineness of the will Ex. D-1 executed by Ramji Lal deceased on July 31, 1964 and held under issue No. 2 that he is not liable to render any accounts as the property No. 166 belonged to him exclusively. With regard to the other property i.e. shop No. 96-A, he held that the plaintiff and defendant Sita Ram were the owners of the same in equal shares and passed a preliminary decree for possession by partition of the same in favour of the plaintiff against the defendants. As R.D. Gupta plaintiff felt satisfied with this decree, he has not filed any appeal against the same. However Sita Ram defendant has filed this appeal.

4. The challenge of the learned counsel for the appellant to the findings of the lower Court is two fold :

(i) the will Ex. D-1 alleged to have been executed by Ramji Lal deceased on July 31, 1964, cannot be taken to have been legally proved; and

(ii) the attending circumstances militate against the genuiness of the said will.

In support of his first attack, the learned counsel submits that one of the attesting witnesses of the said will namely Chuni Lal having died the only other attesting witness Tara Chand, D. W. 1, has not supported the execution of the will and thus the requirements of Section 63 of the Indian Succession Act, do not stand fulfilled. Tara Chand, D. W. 1 has stated that the will Ex. D-1 was not written in his presence nor had Ramji Lal deceased signed it i