The central legal point established in the judgment is the requirement of probate or letter of administration under Section 213(1) of the Indian Succession Act, 1925, for establishing rights under a will.

RAJ MOHAN SINGH, J.

1. Vide this common judgment RSA Nos.1262 and 1263 of 2010 are being decided as common facts are involved in both the appeals. For brevity, facts are being culled out from RSA No.1262 of 2010.

2. Defendants have preferred this appeal against the concurrent judgments and decrees passed by the Courts below in a suit for declaration with consequential relief of permanent injunction.

3. Brief facts are that two suits were filed for declaration and permanent injunction i.e. Civil Suit No.346 of 2008/2001 titled “Ramphal and others vs. Godawari and others” and Civil Suit No.482 of 2007/2001 titled “Jaipal vs. Smt. Godawari and others” in which estate of deceased Chandgi was involved. Late Sudhan had four sons namely Zile Singh, Chandgi, Bhikan and Suraj Mal. Plaintiffs Ramphal and others were sons of Zile Singh. Chandgi was issueless. Godawari/defendant No.1 was the widow of Chandgi. Defendant Nos.2 to 5 were the sons of Bhikan. Defendant No.6 Jaipal was son of Suraj Mal. Estate of Chandgi was in issue for which oral family settlement was claimed to have been executed, whereby plaintiffs were given 1/3rd share out of estate of Chandgi. Defendant Nos.2 to 5 were given 1/3rd share in the estate of Chandgi and defendant No.6 was also given 1/3rd share in the estate of Chandgi. In this way, the entire share of Chandgi was apportioned and distributed amongst the heirs of other three brothers in consonance with the aforesaid oral family settlement, a Will dated 25.10.2000 was executed by Chandgi and it was recited therein that after the death of Chandgi, legal representatives will make Samadhi of Chandgi in one acre of land and also construct a room in the name of Chandgi in Baba Muni Ram Ashram. It was alleged that after the death of Chandgi, mutation No.2593 was illegally sanctioned in favour of defendant No.1 i.e. the widow of Chandgi, who in turn executed Will dated 18.06.2001 in favour of defendant Nos.2 to 5.

4. In the suit, plaintiffs claimed decree for declaration to the effect that the plaintiffs were owners in possession of 1/3rd share of the suit property as shown in the plaint and the mutation No.2593 was wrong and illegal. Further permanent injunction was sought restraining the defendants from alienating or creating any encumbrance over the suit property and also from dispossessing the plaintiffs from suit property in an illegal manner. No reference of the Will dated 18.06.2001 executed by Smt. Godawari was made, rather reference was made to Will dated 25.10.2000, which was executed by Chandgi in consonance with the family settlement. Will dated 18.06.2001 has been set up by the defendants in para No.4-A of the written statement.

5. After appraisal of the evidence, trial Court decreed the suit of the plaintiffs thereby declaring mutation No.2593 to be illegal, null and void. Plaintiffs were held entitled to inherit 1/3rd share in the estate of deceased Chandgi as per Will dated 25.10.2000.

6. Issue Nos.1 and 2 were decided against the plaintiffs, but execution of Will dated 25.10.2000 was proved on the basis of evidence of scribe i.e. Ran Singh PW-3 and attesting witnesses namely Karam Singh-PW-2 and Naresh PW-4. Execution of Will dated 25.10.2000 was proved to the hilt. Whereas under issue No.7, trial Court refrained from commenting upon the Will executed by Godawari in the light of proof of execution of Will dated 25.10.2000 as Godawari was not found to be absolute owner of the property in question.

7. Defendants remained unsuccessful in the First Appeal before the lower Appellate Court. It was held by the lower Appellate Court that even though Will Ex.P-1 was unregistered, but the execution of Will was proved as per requirement of Section 68 of the Indian Evidence Act. Scribe and both the attesting witnesses were examined, who had deposed in one voice that Chandgi was in a fit state of health and was possessing sound disposing mind on 25.10.2000, when Will was executed in the presence of the attestin