Hon’ble Pankaj Mithal, J.—One Kashi Nath Dubey resident of village Rajapur, Tesil and Pargana Mariyahu, District Jaunpur died on 9.2.2007 at the ripe age of about 77 years leaving behind his widow Smt. Tara Devi and a married daughter Smt. Vijay Luxmi from his first wife Smt. Lalti Devi who had died in 1954.

2. His brother Shobh Nath Dubey on his death applied for grant of Letters of Administration to the estate of the deceased with the Will annexed. He claimed that the deceased before his death on 14.12.2003 had executed an unregistered Will bequeathing his entire property to him. The Will was opposed by the widow Smt. Tara Devi by filing objections on affidavit. Accordingly, the proceedings for grant of Letters of Administration were converted into a testamentary suit vide order dated 22.1.2009.

3. On the pleadings of the parties and the material brought on record, the Court on 18.5.2009 framed the following issues for adjudication in the suit :

(i) Whether the Will dated 14.12.2003 was duly and validly executed by late Kashi Nath Dubey, son of Sant Das Dubey in favour of the plaintiff Shobh Nath Dubey, son of Sant Nath Dubey; and

(ii) Whether the Will in dispute is hit by the provisions of Section 169 (3) of the U.P. Z.A. and LR Act, 1950 (hereinafter referred to as the U.P. Z.A. and L.R. Act).

4. The original Will dated 14.12.2003 was brought on record. No other documentary evidence was adduced from the side of the plaintiff except the above Will. The plaintiff in order to prove the said Will appeared as witness PW-1 and produced Kamal Chandra Srivastava, one of the attesting witness to the Will as PW-2.

5. The defendant on the other hand adduced documentary evidence in the form of extract of Khatauni 1414-1419 fasli paper No. A-38/1 to 38/3 in respect of the agricultural land left behind by the deceased, original of the registered Will dated 26.5.2007 paper No. A-40, its cancellation deed dated 3.7.2007 paper No. A-42 and the certified copy of the objections paper No. A-45 filed by the plaintiff against the mutation application filed by Smt. Vijay Luxmi under Section 34 of the U.P. Land Revenue Act, 1901. A photocopy of the affidavit of Kamal Chandra Srivastava paper No. A-49 filed by him in Original Suit No. 614 of 2008 Shobh Nath Dubey v. Tara Devi was also brought on record as evidence. The defendant examined herself as DW-1, Ramjas Maurya as DW-2 and Bhuleshwar Nath Shukla DW-3 who submitted his examination in chief on affidavit but was not cross-examined.

6. None of the documents adduced in evidence were denied or admitted by either of the parties and as such would be deemed to be admitted in evidence. They have not been marked as exhibits.

7. I had heard Sri Nimai Das, learned counsel for the plaintiff and Sri Rajesh Kumar Singh, learned counsel for the defendant.

8. The submission of Sri Nimai Das, learned counsel for the plaintiff is that the evidence of Smt. Tara Devi, DW-1 establishes that she has not seen the Will dated 14.12.2003. Therefore, her objection that the above Will is not a genuine document is baseless and not sufficient to dislodge the said Will. The plaint averments have remained un-controverted and as such there remains no doubt regarding the valid execution of the aforesaid Will. The provision of Section 169 (3) of the Act is prospective in nature which came into effect from 23.8.2004 and would not apply to the Will dated 14.12.2003. Therefore, the Will cannot be held to be bad for want of registration.

9. Sri Rajesh Kumar Singh from the side of the defendant contended that the Will has not been proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925 (in short Succession Act) read with Section 68 of the Indian Evidence Act, 1872 (in short the Evidence Act). There is conflict in the statement of the attesting witness. The Will was executed on a stamp paper alleged to have been purchased on 16.12.1997 from Tehsil Nigoha, District Bhadohi from the stamp vend