The main legal point established in the judgment is that the execution and authenticity of a Will can be proved using secondary evidence, and the absence of attesting witnesses does not automatically invalidate a Will.

N. K. Mehrotra, J.—This is second appeal under Section 100 of Code of Civil Procedure against the judgment dated 21.5.1983, passed by VIth Addl. District Judge, Sitapur dismissing the defendants’ appeal and confirming the judgment and decree dated 26.7.1982, passed by IVth Addl. Munsif, Sitapur, decreeing the plaintiff-respondent’s suit for possession over the house situated at village Dharag, Pargana Khairabad, Tehsil and district Sitapur.

2. I have heard Shri Avadhesh Kumar learned counsel for the appellants. The plaintiff-respondent is represented through a counsel but nobody appeared to argue the appeal.

3. It appears that the plaintiff-respondent Rameshwar Dayal filed a suit for possession of the disputed house on the ground that the disputed house belong to Smt. Sarju Dei and after her death, he being the maternal nephew is the only legal heir to inherit the property left by Smt. Sarju Dei. Smt. Sarju Dei died on 29.4.1977 and since then he has been in possession over the disputed house. It is alleged that the defendant have got prepared a forged Will alleged to have been executed by Smt. Sarju Dei and on the basis of that Will according to them, they got executed their names in the

revenue record. Plaintiff-respondent preferred an appeal against that order of mutation and the appeal was allowed and the alleged Will was declared to be a forged document in the mutation proceedings vide order dated 26.10.1978. It is alleged that on 7.1.1978, when the plaintiff was out, the defendants took forcible possession after opening the lock of the disputed house. On his return, the plaintiff lodged F.I.R. against the defendants and filed a suit for possession on 19.1.1980.

4. The defendants filed written statement contesting the claim of the plaintiff on the basis of the Will. The original Will was not produced. The statement of the witnesses and the judgment of the two courts below referred to the certified copy of the Will. Following issues were framed by the learned trial court :

(1) Whether the suit is under-valued?

(2) Whether the court fee paid is insufficient?

(3) Whether the plaintiff being the legal heir of deceased Sarju Dei is the owner of the disputed house on the basis of the inheritance?

(4) Whether deceased Sarju Dei had executed a Will in favour of the defendant No. 1 and defendant No. 1 is the owner on the basis of the said Will executed by Sarju Dei?

(5) To what relief is the plaintiff entitled?

5. Issues Nos. 1, 2 and 5 were formal issues. Issues Nos. 3 and 4 were decided in favour of the plaintiff. The execution of the Will was declared to be suspicious on the ground that the attesting witness Lalta Bux Singh D.W. 3 had given statement that he had not gone to the office of the Sub-Registrar at the time of registration; that another attesting witness Shri Ram has not been examined and as per statement of the Lalta Bux Singh identification of Sarju Dei at the time of registration is doubtful and the document was presented for registration at Sidhauli instead of Sitapur. On the basis of the statement of D.W. 3 Lalta Bux Singh, it has been declared that Rameshwar Dayal plaintiff-respondent is the maternal nephew of deceased Sarju Dei. On the basis of these findings, the suit of the plaintiff for possession was decreed. Defendants preferred appeal. Appeal has been dismissed by confirming the findings recorded by the learned trial court. The learned appellate court has observed that in spite of the fact that no issue on the allegations of fraud by the defendant in executing the Will was framed, the matter was not required to be remanded because the parties have led evidence and the issue relating to the execution of the Will has been decided by the trial court at the time of deciding issues Nos. 3 and 4.

6. It has also been held by the first appellate court that the execution of the Will deed has not been proved. The learned appellate court has also recorded some additional findings to support the judgment of