The propounder of a Will must prove its execution by examining at least one attesting witness. The evidence of a scribe cannot replace the statutory requirement of attestation, and any active involvement by a beneficiary in the Will's execution creates suspicious circumstances requiring cogent independent evidence to dispel.

ORDER

This first appeal, under section 96 of CPC, has been filed against the judgment and decree dated 30/11/2002 passed by IV Additional District Judge, Gwalior in Civil Suit No. 16A/1999. by which suit filed by plaintiff Jai Prakash for declaration of title has been decreed.

2. Facts necessary for disposal of present appeal, in short, are that plaintiff/respondent No.1 Jai Prakash filed a suit for declaration of title by pleading inter alia that House No. 38/6, 609/1 (old 638/9) was recorded in the name of Shiv Mangal Prasad and Lakshman Prasad, both sons of Jagannath Prasad. Lakshman Prasad during his lifetime had executed a registered will dated 25/5/1974 in favor of his brother Shiv Mangal Prasad. Lakshman Prasad died on 5/11/1974 and after his death, Shiv Mangal Prasad became the exclusive owner of the property in dispute. Shiv Mangal Prasad, during his lifetime, executed a registered Will dated 15/7/1985 in favor of Jai Prakash, Raman Prakash and Narendra Prakash. Thereafter, a Will dated 17/3/1988 was executed in favor of Jai Prakash and accordingly, it was claimed that after the death of Shiv Mangal Prasad on 26/4/1990, plaintiff Jai Prakash became the exclusive owner of the property in dispute. It was the case of the plaintiff that defendant No.1/appellant Kailash Narayan was in possession of the property in dispute in the capacity of tenant. Father of plaintiff had filed a suit for declaration of title and eviction against defendant No.1/appellant which is pending in the Court of IV Additional District Judge, Gwalior. After the death of Shiv Mangal Prasad, defendant No.1 filed an application for mutation of his name by pleading inter alia that Lakshman Prasad had executed a Will dated 26/5/1974 in his favor and therefore his name may be mutated. An objection was raised by the plaintiff by pleading inter alia that this Will dated 26/5/1974 is a forged and concocted document and also raised an objection that the Will dated 26/5/1974 never saw the light of the day till the application was filed for mutation. During the pendency of his objection, a reasonable apprehension had occurred in the mind of the plaintiff that because the inquiry officer is a good friend of defendant No.1, therefore, he may not get justice, therefore, he moved an application before Commissioner, Municipal Corporation, Gwalior for transfer of enquiry, but in spite of that, an ex-parte inquiry was conducted and the name of defendant No.1 was directed to be mutated in the revenue record, against which plaintiff had filed an appeal which was dismissed by order dated 13/2/1992 on the question of jurisdiction. Thus, the plaintiff has filed the present suit for declaration of title, as well as, that he is entitled to get his name mutated in the revenue records and it was also prayed that the mutation done in favor of the defendant No.1 be also set aside and the Will dated 26/5/1974 be declared as concocted and a forged document.

3. Defendant/appellant Kailash Narayan filed his written statement. He denied the alleged Will executed by Lakshman Prasad in favor of Shiv Mangal . It was claimed that the Will purportedly executed by Lakshman Prasad in favor of Shiv Mangal is null and void. Ramkali Devi is the daughter of Lakshman Prasad whereas Lakshman Prasad is the elder brother of Shiv Mangal. It was further claimed that even if it is found that Lakshman Prasad had executed a Will in favor o