R.S. Singh, J.
1. This is defendant's Second Appeal against the decree and judgment dated 1st Feb., 1968 of the District Judge, Bulandshahr, affirming the decree of the trial Court,
2. This is a suit for possession over the house and shop along with flour mill in suit. According to the plaintiff's case, he had four brothers including Pyare Lal. There had been a partition amongst all the five brothers in the year 1923. The building in question, the upper portion of which is used as a residential quarter and in the lower portion of which a flour mill is installed, was allotted to Pyare Lal, Pyare Lal executed a will in his favour and under that will, the building was given to him. He died twenty years back. It was further alleged that during the lifetime of Pyare Lal, he had installed the flour mill but subsequently he permitted his son Rajeshwar (father of Mahendra and husband of Rameshwari) to use the same as licensee. Rajeswar and his family were also given permission to live in the house and thus, they had been living therein at the plaintiffs' sufferance.
3. The suit was contested by the defendants on the allegation that on account of difference between Rajeshwar and Shyam Lal, Rajeshwar was living with his uncle Pyare Lal. Even after the death of Pyare Lal, Rajeshwar and his family continued to live in the house and their possession was adverse to Shyam Lal. It was further alleged that Raje-shwar by his own money got the upper portion rebuilt about 15 years back. The flour mill belonged to Rajeshwar and it had been installed by him and the electricity connection was also in his name,
4. The suit was decreed by the Addl. Civil Judge in favour of the plaintiffs for the house and shop in suit. The defendants Nos. 1 to 3 were allowed three months' time to vacate the house and shop in suit, However, the suit was dismissed in respect of the flour mill. The defendants preferred an appeal against the decree and judgment of the trial court, which was dismissed by the lower appellate court.
5. It has been contended by the learned counsel for the appellant that the title of the plaintiffs-respondents was based solely on the will, executed by Pyare Lal in favour of the plaintiffs-respondents. The Will was not legally proved as none of the attesting witnesses was produced to prove the will, Therefore, the plaintiffs' suit was liable to be dismissed,
6. Section 68 of the Indian Evidence Act runs as follows:--
'Proof of execution of document required by law to be attested--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidences (Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied,)'
The will can be proved in view of this provision by producing anyone of the attesting witnesses, if alive. In a case, where any attesting witness is alive and he has not been produced, the will can-not be accepted as proved. On this point, the trial court has observed:--
'The mere oral statement of D, W. 3 cannot prove that the attesting witnesses are alive. If the attesting witnesses were not dead they could have been produced before the court or some convincing evidence should have been adduced to prove that they were really alive, Thus it was not possible for the plaintiff to produce any of the attesting witnesses. The will is sufficiently proved,'
According to this observation of the trial court, no marginal attesting witness was alive and therefore, it could not be produced by the plaintiffs to prove the will. But at the time of hearing of the appeal, one of the attesting witnesses namely Babu Ram was summoned by the court, and he was not able to prove the will in question, Therefore, in view of the fact that one of the attesting witnesses--Babu Ram was alive and he was not able to prove the will, the will was not legally proved. But the lower appellate court, on the basis of Section 90 and Section 90(A) of the Indian Evidence Act took the document as proved as it was more than 20 years old.
7. It has been contended by the learned counsel for the appellants that Sections 90 and Section 90(A) have no application in this case as the will was the basis of the title, He relied upon a case reported in Gobinda Chandra Pal v. Pulin Behari Bannerjee : AIR1927Cal102 , wherein it has been held that the provisions of Section 68 are mandatory and they are not controlled by Section 90. The mere fact that the only surviving attesting witness is considered hostile by the party does not relieve him from the duty of examining him as a witness, Nor is it enough that summonses and warrants had been issued upon the witness and the witness had failed to appear, but the processes of the Court such as are mentioned in Order 16, Rule 10, C.P.C have all got to be exhausted In Raghubar Singh v. Sanwal Singh (AIR 1921 Oudh 55), it was held that a party will be rightly refused to have the presumption under Section 90 invoked in his favour when it is clear on the record that direct evidence in proof of the dead in question is available, and which, if tendered, would satisfy the requirements of law as laid down in Section 68.
8. From the evidence in this case there remains no doubt that one of the attesting witnesses is alive who was alsosummoned by the lower appellate court, but was not able to prove the will in question. Therefore, the will in question was not legally proved, which was the basis of the suit. Therefore, the decrees of the courts below cannot be sustained in law and deserve to be set aside.
9. In the result, I allow this appeal, set aside the decree and judgment of the courts below and dismiss the plaintiffs' suit. However, the parties shall bear their own costs.