Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Santosh Kumar Tiwari, learned counsel for the appellants.

2. No one appears on behalf of the respondents even in the revised call.

3. This First Appeal has been filed challenging the judgment and decree dated 6.5.1977 passed by the Court of First Additional District Judge, Mathura in Misc. case No. 76 of 1973 between present appellants and Mitthan Lal Mehrotra and four others.

4. The case was proceeded ex parte against the opposite party Nos. 1 to 4, inasmuch as they did not appear. The contesting opposite party is the opposite party No. 5, Sri Panna Lal Mehrotra.

5. Sri Santosh Kumar Tiwari submits that the Will Ex. 3 dated 14.1.1970 of Sri Chiranji Lal in favour of the appellants was proved and, therefore, the Court below has committed a manifest error of law and facts to decline to grant Letters of Administration and to hold that the said Will in favour of the appellants was surrounded by suspicious circumstances and was not a valid Will. He further submits that the impugned judgment is wholly illegal and, therefore, deserves to be set aside.

6. I have carefully considered the submissions of learned counsel for the appellants.

7. Briefly stated the facts of the present case are that undisputedly, father of the appellants, namely, Sri Chhunnoo Lal and the opposite party No. 5, Sri Panna Lal were cousin brothers of the testator, Sri Chiranji Lal. They were living with him since their childhood and Sri Chiranji Lal had supported them from the very beginning. According to the opposite party No. 5 a Will dated 5.1.1969 (Ex. 1) was executed in his favour by Sri Chiranji Lal. Subsequently another Will dated 6.5.1969 was executed in favour of the objector Panna Lal (opposite party No. 5) and the father of the present appellants Sri Chhunnoo Lal. According to the appellants a Will dated 14.1.1970 was thereafter executed in favour of the appellants by the aforesaid Sri Chiranji Lal and was deposited with the District Judge, Mathura on 16.4.1970.

8. Sri Chiranji Lal died on 11.9.1971 at the age of about 90 years. Thereafter, the Will was opened by the order of the District Judge, Mathura and it was registered by the Sub Registrar Mathura on 22.1.1973.

9. The miscellaneous case No. 76 of 1973 was filed by the present appellants for Letters of Administration in respect of the Will dated 14.1.1970 said to be executed by Sri Chiranji Lal in their favour. The attesting witnesses of the Will were Sri Jai Kishan Dixit and Sri Kunj Bihari Asthana (A.W.-1 and AW-2 respectively). The case was dismissed with costs by the impugned judgment dated 6.5.1977.

10. Aggrieved with this judgment, the appellants have filed the present First Appeal.

11. The dispute in the present appeal is with regard to Ex.3 Will dated 14.1.1970. The Court below framed four issues out of which issue No. 3 was not pressed. Therefore, the Court below decided issue Nos. 1, 2 and 3. Before this Court learned counsel for the appellants has pressed this appeal only against the findings recorded by the Court below on issue No. 1. Under the circumstances, this Court is considering the following question in this appeal:

“Whether Sri Chiranji Lal duly executed a Will on 14.1.1970 in favour of the appellants”?

12. Before the Court below the appellants produced attesting witnesses, namely, Sri Jai Kishan Dixit (A.W.-1), Sri Kunj Bihari Asthana (A.W.-2) and Sri Sohan Lal (appellant No. 4), who were also cross-examined. The Court below, on an application 66 C moved on behalf of the opposite party No. 5 on 5.7.1975 noted the fact that Sri Jai Kishan Dixit (A.W.-1), who was attesting witness of the said Will, was present in the Court alongwith counsel of the appellants when even issues were not framed in the case upto that time. For this reason it was contended that the aforesaid attesting witness was doing PAIRVI of the case.

13. The A.W.- 2 admitted that he and Sri Kishan Chand both were clerks in the Veterinary College, Mathura. He