The central legal point established in the judgment is the necessity of attestation by witnesses to validate a will, as per the requirements of S. 63 (1) (c), Succession Act, 1925.

Harnam Singh, J. :- Surindar Kumar, Darshan Kumar, Shish Kumar and Subhash Chandar minor sons of Ghanaya Lal instituted a suit out of which this appeal has arisen, for recovery of Rs. 5392-2-0 on the basis of a registered mortgage deed for Rs. 6000 made on 24-10-1932 by Chhaju Ram, Sant Ram sons of Buta Ram and Sat Pal, Dharam Pal minor sons of Shankar Das in favour of Guranditta Mal, maternal grandfather of the plaintiffs. The plaintiffs pleaded that Guranditta Mal had before his death bequeathed the mortgagee rights to the plaintiffs and that after deducting the amount of Rs. 3850 received on account of principal and interest they were entitled to recover Rs. 5392-2-0 by sale of the mortgaged property. Defendant 5 was impleaded on the ground that he was subsequent mortgagee of a part of the mortgaged property.

2. Defendants 1 and 2 pleaded that the mortgage was without consideration to the extent of Rs. 1470 while defendants 3 and 4 disputed the validity of the will alleged to have been made by Guranditta Mal in favour of the plaintiffs and maintained that the plaintiffs had no locus standi to maintain the suit. Defendants 3 and 4 further maintained that during their minority their 1/4th share could not have been mortgaged by defendants 1 and 2 and that they were not bound by the mortgage in question which had not been made for their benefit.

3. Upon the pleadings of the parties the following issues were framed : (1) Have the plaintiffs a locus standi to maintain the present suit as successors-in-interest of Guranditta deceased? (2) Did defendants 1 and 2 for themselves and on behalf of defendants 3 and 4 execute the mortgage deed in dispute for consideration, and if so, whether the mortgage was also effected for the benefit of the minor defendants 3 and 4? (3) Has any portion of the property in dispute been sold to Amar Nath by the defendants ? If so, what is its effect on the present claim of the plaintiff ? (4) "Whether defendant 5 is entitled to any relief? If so, of what nature ? (5) To what amount and relief were the plaintiffs entitled ?

4. The trial Court has found that there was a valid will made by Guranditta Mal whereunder he had bequeathed the mortgagee rights in dispute in favour of the plaintiffs and that the plaintiffs had, therefore, a locus standi to maintain the suit. The trial Court has further found that the consideration of the mortgage made on 24-10-1932 was mainly the previous mortgage debt due inter alia from the father of defendants 3 and 4 and that the mortgage in dispute was made for the benefit of defendants 3 and 4. On issue 3, the trial Court has held that the portion marked Y in the plan Ex. p-5 had been sold by defendants 1 and 2 to Amar Nath on the foot of the registered sale deed made on 4-8-1934 and that Guranditta Mal, predecessor-in-interest of the plaintiffs, had on receipt of Rs. 2000 relinquished his security in the portion of the mortgaged property marked y on the plan p-5 and that being so, the portion of the house marked y was no longer part of the mortgaged property. Defendant 5 has been left to follow his remedy in separate proceedings. On the findings set out above, the trial Court has granted a preliminary decree for Rs. 5392-2-0 with costs directing defendants 1 to 4 to pay the above amount within two months of the decree and has ordered that in default of payment of the decretal amount the plaintiffs will be entitled to realise the decretal amount by sale of the mortgaged property shown in plan Ex. p-5 except the portion marked y.

5. Gian Chand, Chuni Lal and Khirati Ram sons of Chhaju Ram and Sant Ram son of Buta Ram appeal from the decree passed by the trial Court on 30-11-1945 while Sat Pal and Dharam Pal plaintiffs have been impleaded as respondents in this appeal.

6. Mr. Shamair Chand, learned counsel for the appellants, contends that the plaintiffs have failed to prove that the will Ex. p-3 was executed according to the rule laid down in S. 63 (1) (c), Succession Act