The central legal point established in the judgment is the mandatory requirement of proving the execution of a Will through an attesting witness as per Section 68 of the Indian Evidence Act, 1872, and the onus of proving the execution of the Will on the party relying on it.

JUDGMENT :

1. Heard Sri Shrinath Dwivedi, learned counsel for the appellants, Sri Sanjeev Kumar Shukla, Advocate, holding brief of Sri Mahesh Kumar, learned counsel for the respondent and perused the material on record.

2. This is plaintiffs' second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") arising out of judgment and decree dated 23.12.2021 passed by Additional District Judge, Court No.4, Kaushambi in Civil Appeal No.01 of 2021, by which the appeal preferred by defendant-respondent has been allowed and judgment and decree dated 14.12.2021 passed by Civil Judge (Junior Division), Kaushambi in Original Suit No.143 of 2010 has been set aside.

3. The facts in brief, as disclosed by the parties in the pleading are that plaintiff-appellants and defendant-respondent are the sons of late Kedar Nath. Kedar Nath was initially married to the mother of defendant Munna Lal. After her death, late Kedar Nath married the mother of plaintiffs. According to the plaint allegation, late Kedar Nath had executed a registered Will dated 08.9.1997 in favour of plaintiffs-appellants for Arazi No.45. Late Kedar Nath had got purchased Arazi No.398 measuring 17 biswa in favour of defendant, so that no dispute may arise between his sons. However, the defendant sold the said Arazi No.398 during life time of Kedar Nath. Kedar Nath died on 03.12.2009 and thereafter defendant started claiming half of the share in the property, which led to filing of Original Suit No.143 of 2010 by the plaintiffs seeking relief of permanent injunction restraining the defendant from interfering in their peaceful possession over the property. The plaintiffs have relied upon the Will executed by their father on 08.9.1997. The said suit was contested by the defendant Munna Lal by filing written statement and stated that the Will dated 08.9.1997 was forged and fabricated and therefore, he was entitled to half of the share in the property.

4. From the pleadings of the parties, the Trial Court framed issues, which are extracted hereas under :

^^1- D;k nkok oknhx.k esa of.kZr oknxzLr lEifÙk ds oknh Lokeh o dkfct n[khy gS\
2- D;k nkok vYiewY;kafdr o çnÙk U;k;'kqYd vi;kZIr gS\
3- D;k nkok oknh ds lquokà dk {ks=kf/kdkj bl U;k;ky; dks gS\
4- D;k oknhx.k fdlh mi'ke ds vf/kdkjh gS\**

5. Issue No.1 was in regard to the fact whether plaintiffs were the owner in possession over the property in dispute. The Trial Court relying upon the registered Will dated 08.9.1997 held the plaintiffs appellants to be owner in possession over the property in dispute and decreed the suit vide judgment and decree dated 14.12.2020. Against the said judgment Civil Appeal No.1 of 2021 was preferred by the defendant-respondent wherein the lower Appellate Court framed following point of determination :

^^çLrqr nhokuh vihy esa eq[; fopkj.kh; fcUnq ;g gS fd D;k oknhx.k larks"k dqekj vkfn oknxzLr lEifÙk of.kZr okn i= ds rugk ekfyd dkfct gS \ çLrqr nhokuh vihy dk fuLrkj.k blh ifjis{; esa i=koyh ij miyC/k lk{; ds vk/kkj ij fd;k tkuk mfpr çrhr gksrk gS\

6. The lower Appellate Court found that reliance placed by the Trial Court upon execution of Will dated 08.9.1997 was not correct as the mandatory requirement under Section 68 of Indian Evidence Act, 1872 (hereinafter referred to as “Act, 1872”) was not complied with and no attesting witness has come forward to prove execution of Will. The lower Appellate Court vide judgment dated 23.12.2021 allowed the appeal and set aside the judgment and decree of Trial Court hence this appeal.

7. Sri Shrinath Dwivedi, learned counsel appearing for the appellants submitted that the lower Appellate Court was not correct in holding that the Will, which was executed by the father of the plaintiff and defendant on 08.9.1997 was required to be proved as in the mutation proceedings, the execution of Will had already been proved by the plaintiffs and there was no such requirement in the present proceedings. He next contended that it was a suit