JUDGMENT Deoki Nandan, J. - This is a plaintiffs second appeal in a suit for a declaration that the plaintiff is entitled to recover, as the heir of one Ramji Prasad, the property specified in the list 'A' at the foot of the plaint, namely, a fixed deposit account dated 24-1-1964 renewed up to the 24th Jan. 1965 for Rs. 5356/- in the State Bank of India, Gorakhpur, and a Saving Bank Account in the same bank, the amount in deposit therein being Rs. 28.22 paise only. Both these deposits were held by Ramji Prasad deceased. The plaintiff claimed to be his heir as a collateral on the basis of the following pedigree : - The plaintiff claimed to be the nearest heir of the deceased Ramji Prasad. Ramji Prasad died issue less on 13-6-1964, his wife having died during his lifetime in the year 1960. It is alleged that apart from the aforesaid two deposits Ramji Prasad had left movables and immovable property also but there was no dispute relating to it and the plaintiff claimed to be in possession thereof as owner. But with regard to the said two deposits, when the plaintiff applied for succession certificate, which was Misc. Case No. 54 of 1964 in the Court of Civil Judge, Gorakhpur, the defendants, who are sons of Ramji Prasad's wife's brother, objected to its grant to the plaintiff and asserted their own right thereon on the basis of a will dated 29-7-1963, and during the course of the said proceedings they also relied on a none existing will dated 30th April, 1961. The Court of the Civil Judge summarily dismissed the plaintiffs application for succession certificate, against which he filed an appeal, being Misc. Civil Appeal No. 126 of 1965, in the Court of District Judge, but the Civil Judge's decision was upheld. Thereupon the plaintiff applied for revision which was pending when the suit was filed, but was dismissed by this Court's order dated 23-7-1968 vide certified copy which is Ext. 2 on the record. The plaintiff claimed that the aforesaid decision was given in a summary proceeding and he was entitled to have his title declared by a regular suit. Thereupon the plaintiff applied for revision which was pending when the suit was filed, but was dismissed by this Court's order dated 23-7-1968 vide certified copy which is Ext. 2 on the record. The plaintiff claimed that the aforesaid decision was given in a summary proceeding and he was entitled to have his title declared by a regular suit. The plaintiff claimed to be the nearest heir of the deceased Ramji Prasad and alleged that the wills relied upon were wholly illegal, fictitious and ineffective on the grounds (1) Ramji Prasad never executed any will in a disposing state of mind; (2) the wills in question were in-effective, inoperative and inadmissible in evidence and are wholly vague and fictitious documents; (3) Ramji Prasad was really ill before his death and because of weakness and being frustrated in life his mental condition was not good and proper, and he was incapable of properly attending to his affairs and the defendants and their father kept him under their influence and taking wrongful advantage of his condition, they attempted to have a fictitious will in their favour; (4) the defendants had not obtained any letters of administration or probate and because of this also there was no right to resist the plaintiffs claim and (5) the will relied upon by the defendants was wholly illegal. 2. 2. The defendants contested the plaintiffs claim by alleging that the plaintiff was not in possession of the movable and immovable properties of Ramji Prasad; that Ramji Prasad had after full consideration executed a duly attested will dated 30th April, 1961 in respect of his movable and immovable properties; that the said will was not a fictitious document; and that Ramji Prasad was in a fit and disposing state of mind, he did not suffer from any illness nor was he under the influence or control of the defendants or their father; that it was not necessary for them to obtain any probate or letters of administration; that the said will dated 30th April, 1961 was deposited by Ramji Prasad with the District Registrar out of fear of his opponents, but he withdrew it on the 23rd Oct., 1961; that the said will was in accord with a written letter dated 29th July, 1963 which was made appendix 'Ka' to the written statement as the original will dated 30th April, 1961 was lost somewhere and could not be traced out in spite of the best search after the death of Ramji Prasad. Lastly the defendants pleaded that the existence of the said will dated 30th April, 1961 had lawfully been accepted by the Court, and the plaintiff could not deny the same. The following were the issues on which the parties went to trial : - 1. Whether the plaintiff is Ramji Prasad's father's father's brother's son's son as alleged? If so effect? 2. Whether the deceased Ramji Prasad had duly executed a valid will in favour of the defendants as alleged? Effect? 3. Reliefs. 3. On issue 1, the trial Court found that the plaintiff is Ramji Prasad's father's father's brother's son's son as alleged by him; but on issue 2, it found that the defendants have succeeded in proving that Ramji Prasad had executed a legal and valid will dated 30-4-1961 as alleged by them; and accordingly, on issue 3, that the plaintiff is not entitled to the declaration claimed. In the result the suit was dismissed. 4. The appeal before the lower appellate Court was by the plaintiff. In the result the suit was dismissed. 4. The appeal before the lower appellate Court was by the plaintiff. Obviously the plaintiff could not have challenged the finding in his favour about his relationship with Ramji Prsad, and accordingly the two points that were raised before the lower appellate Court were : (1) whether Ramji Prasad duly executed a valid will in favour of the defendants as alleged? If so, its effect; (2) Whether it was essential for the defendants to obtain probate of the will executed by Ramji Prasad? 5. On the first point so raised before the lower appellate Court it confirmed the finding of the trial Court that the deceased Ramji Prasad duly executed a valid will in favour of the defendants as alleged. On the second point the finding of the lower appellate Court was that it was not necessary for the defendants to have obtained a probate of the will. 6. On behalf of the appellant it was urged by Dr. Gyan Prakash in this Court, firstly that the will dated 30-4-1961 having been taken back by the deceased Ramji Lal from the District Registrar's office and being untraceable, the presumption was that it had been cancelled by the deceased in his lifetime, and that presumption was in the present case almost conclusive inasmuch as Ramji Lal did purport to execute another will dated 29-7-1963 and even deposited it with the District Registrar. The fact that the subsequent will failed for want of attestation does not lead to the inference that the earlier will was not cancelled, rather the only result in law would be that Ramji Prasad died intestate. The second point urged by Dr. Gyan Prakash was that it may be that a probate was not required to be obtained as there was no will; nevertheless, the defendants would not be able to lay their hands on the deposits in suit unless they obtain a succession certificate in respect of the same, and in spite of the alleged will they never applied for any succession certificate. They only objected to the grant of the succession certificate to the plaintiff. 7. I shall take up the second point first. But before I do so an application made on behalf of the appellant for summoning the file of Misc. Case No. 54 of 1964. They only objected to the grant of the succession certificate to the plaintiff. 7. I shall take up the second point first. But before I do so an application made on behalf of the appellant for summoning the file of Misc. Case No. 54 of 1964. Shyam Behari Lal v. Sripat Lal Sinha of the Court of the Civil Judge Gorakhpur decided on 1st June 1965, requires to be disposed of. It,has already been noticed above that an application for the grant of succession certificate was made by the plaintiff. The Misc. Case whose file is sought to be summoned was the case arising from that application. Ext. A2 is a certified copy of the order of the Civil Judge, Gorakhpur, dated 1st June, 1965, rejecting the application for succession certificate; Ext. A4 is the certified copy of the order of the District Judge, Gorakhpur, dismissing Misc. Civil Appeal No. 126 of 1965, which arose from the dismissal of the application for succession certificate, and Ext. 2 is the certified copy of the order dated 23rd July, 1968, of this Court, in Civil Revision No. 1217 of 1966, dismissing an application for revision of those orders. The very foundation of the plaintiffs case is that the proceedings on the application for succession certificate were summary proceedings. The orders pronounced therein are not final or binding. The fact that the plaintiff is related to the deceased Ramji Prasad as his father's father's brother's son's son, and is as such nearest heir is not disputed. The original will dated the 30th April, 1961 that has been relied upon by the defendant-respondents has admittedly been lost and a certified copy of the unattested and therefore ineffective will dated 29th July, 1963, is Ext. A5 on the record, the original of it being in deposit with the District Registrar. Simply because the record of that Misc. Case was before the two Courts below when the suit was heard could be no ground for treating that record as a part of the record of the suit or admissible in evidence herein. It is said that paper 35A of the succession certificate proceedings was relied upon by the defendants-respondents and it is, therefore, necessary to have the record before Court. It is said that paper 35A of the succession certificate proceedings was relied upon by the defendants-respondents and it is, therefore, necessary to have the record before Court. The application or the affidavit filed in support thereof do not show that the paper is, and if that paper, or a certified copy thereof has not been admitted as evidence on the record of the suit giving rise to this second appeal, the plaintiff-appellant could surely expect this Court to exclude that paper, whatever it may be, from consideration, but that will not make the record of the Misc. Proceedings relevant for the hearing of the second appeal in this; Court. The application is accordingly rejected. 8. The second point raised above, if given effect to, leads to a conundrum. Section 214, Succession Act, says that: No Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or "(b)......... except on the production, by the person so claiming, of - (ii ).. (iii )... a succession certificate, granted under Part X and having the debt specified therein, or, (iv) & (v)...... (2) The word "debt" in sub-s. (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes." It is not disputed that the property in the nature of the deposits in the State Bank of India in respect of which the declaration of right has been claimed in the suit giving rise to this second appeal, were debts owed by the State Bank of India to the deceased Ramji Prasad. Plaintiff knew that the State Bank of India would not pay the amount except on production of a succession certificate and applied for one accordingly. His claim was disputed by the defendants, the application for certificate was rejected yet the defendants did not apply for a succession certificate or letters of administration with the will annexed to enable them to collect the amount of the deposits from the Bank. According to the plaintiff the proceedings for succession certificate were of a summary nature. His claim was disputed by the defendants, the application for certificate was rejected yet the defendants did not apply for a succession certificate or letters of administration with the will annexed to enable them to collect the amount of the deposits from the Bank. According to the plaintiff the proceedings for succession certificate were of a summary nature. That is true for, S. 373 (1) (b), Succession Act, says that "upon the day fixed for hearing of an application for succession certificate, or as soon as thereafter as may be practicable the Judge shall proceed to decide in a summary manner the right to the certificate", and subsequently it says that "when the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him." But sub-s. (3) also says that "if the Judge cannot decide the right to the certificate without determining the questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto". The plaintiffs application for succession certificate was refused and the refusal was upheld on appeal and confirmed on revision. The question is, can the Court empowered to grant a succession certificate now grant it to the plaintiff in case it were held in the suit that he plaintiff is in law entitled to the deposits as the rightful heir of the deceased. Supposing the Court empowered to grant a succession certificate could grant a succession certificate after such declaration of right in the suit giving rise to the present second appeal, the question which would still arise is whether the Court should grant the plaintiff a declaration, for although being able to seek the further relief of a decree against the debtor Bank for payment of the deposits held by it, the plaintiff has failed to seek that further relief. This objection is based in the proviso to S. 34, Specific Relief Act, which says that "no court shall make any such declaration" where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." Now, suppose that a in order to meet that objection the plaintiffs were permitted to amend the plaint by adding a relief for recovery of the amount of deposits from the bank impleading the State Bank of India as a party to the suit. The moment, the plaintiffs does so, S. 214 Succession Act, would stand in his way inasmuch as no decree could be passed against the Bank until the plaintiff obtains a succession certificate. At the same time it has to be kept in mind that the defendants cannot also get the amount of the deposits in question. They have neither applied for a succession certificate nor have they filed any suit. Surely the intention of the law could not be to benefit the banker. The proper course for the plaintiff was to have applied to the Court to the Civil Judge in the proceedings for grant of succession certificate for the stay of those proceedings, in case the Court did not find the plaintiffs title to the deposits established even prima facie by summary enquiry, and to direct the parties to establish their right to the same by regular suit, or, to have granted the succession certificate to the person considered better entitled to it on taking such security as the Court thought proper, to account for the proceeds of the deposits in case it was found that he was not really entitled to the same. 9. But, things being what they are, it has become a common practice to contest a matter in such summary proceedings, as if they were regular suits and the question of title raised therein were being finally adjudicated upon. It is only when the proceeding is decided against a party by the highest Court of appeal or revision, as in this case, that it dawns upon them that a regular suit for adjudication of the title was the real thing and the summary proceedings were a mere waste of time. I cannot blame the people, called litigants, for this attitude. It is the delay and the expense of proceedings which impels people to adopt all kinds of short cuts. I cannot blame the people, called litigants, for this attitude. It is the delay and the expense of proceedings which impels people to adopt all kinds of short cuts. 10. Under the circumstances, I overrule the objections raised by the second point. Indeed the objection cuts more against the plaintiffs case, than the case of the defendants. I hold that on the peculiar facts of this case the relief of declaration claimed by the plaintiff could be granted to him, if he was otherwise found entitled thereto on the merits, notwithstanding the bar of the proviso to S. 34, Specific Relief Act, in the hope that in case the declaration is granted, the plaintiff would be able to obtain a succession certificate on a fresh application being made in that behalf although his first application was rejected as aforesaid, and in case the declaration claimed by the plaintiff were refused on the merits, the defendants would be able to rely on the findings recorded in the suit and apply for getting a succession certificate in case they are found entitled to the defendants (sic) in suit. 11. This brings me to the first point. It is the defendants' own case that the first will of Ramji Prasad dated 30th April, 1961 relied upon by them is not traceable; and it is not disputed by the defendants that the second will of Ramji Prasad dated 29th April, 1963 of which Ext. A5 is a certified copy, is not valid and effective as a will inasmuch as it was not attested in accordance with the requirements of law. 12. A will does not operate as a present demise of property. It operates on the death of the testator and determines the course of succession to his property. According to the theory of property the law implies a certain relation between persons and things which is capable of being viewed from two different stand points. On the one hand, the persons in whom a bundle of rights constituting ownership inheres in relation to particular things; on the other hand, the things which are subject to a special kind of control from particular individuals. The idea which underlies the concept of ownership (Swamittwa) on the one hand and the concept of property (Swattwa) on the other, is fundamentally the same; they are mutually inter-dependent correlatives connoting different aspects of the same identical relation. The idea which underlies the concept of ownership (Swamittwa) on the one hand and the concept of property (Swattwa) on the other, is fundamentally the same; they are mutually inter-dependent correlatives connoting different aspects of the same identical relation. Ownership, therefore, may be said to inhere in persons in relation to things in so far as they are objects of ownership, and property may be said to characterise things in so far as they stand related to persons who are their owners. Now, property may be acquired by a person in various modes. Succession is a derivative mode of acquisition of property, transfer and prescription being the others. Acquisition of property of another implies the cessation of ownership of that other and the vesting of that ownership in the person acquiring the property. Acquisition of property through an act of the owner, more precisely a voluntary act inter vives goes by the name of transfer of property; that through the omission of the owner, by the name of prescription; and that by the operation of law by the name of succession. The cessation of ownership in a thing or things, or of property, on the death of a person and its simultaneous vesting in another living person, or in other words the devolution of property on the death of a person, is what the term succession of property connotes in law. The important characteristic of this devolution of property by succession is, that it depends, for its taking effect, not upon any act or omission of the parties but upon the operation of law. Even in cases of testamentary succession where the property devolves in accordance with the wishes of the erstwhile deceased the owner as evidenced by his will, it is not the act of making the will which causes the property to devolve, on the contrary it is the event of his death, independently of the fact that he had died leaving a will, which causes the property to devolve, by reason of the rule of law which lays down that on the death of an owner of a thing or things the property that was his, must be deemed to have been extinguished and to have simultaneously vested in the person best entitled to succeed him. Since the law recognises in an owner of property, the capacity to lay down by his will, the order of succession to his property, therefor, where he makes a will, in keeping with this legal capacity, the property devolves in accordance with the order of preference indicated in the will; but otherwise too where the law does not recognise in an owner of property the capacity to determine the order of succession by will, or where the capacity being there, the owner does not make a will, or the will fails to take effect for contravening some mandatory requirement of law, the property does nevertheless devolve on his death on his heirs as determined by law. 13. Looked in this background, it would be clear that the course of succession to property is predetermined by law in the order prescribed by it. The law only recognizes in an owner the capacity to alter the order of succession prescribed by it, by his making a will, but the law also prescribes certain conditions for the making of the wills and their proof. A will which does not comply with the essential conditions prescribed by it cannot be given effect to, and in spite of its existence the testator or the person who made it is said to have died intestate. The law is rather strict in the matter of proof of wills because the order of succession prescribed by it is altered by a will and is in this sense in derogation of the general law. 14. It is indisputable that in spite of the solemnity attached to the execution of a will, it could be cancelled by being merely thrown away or torn to pieces by the testator. Even a will, openly registered with, and copied by a Sub-Registrar in his registers, could be cancelled that way. That is why so much importance is attached to the safe custody and preservation of original wills and there is a complete chapter, Chap. IX, in the Registration Act for the deposit of wills with, and their safe custody in his fire proof-box by, the District Registrar. That is why so much importance is attached to the safe custody and preservation of original wills and there is a complete chapter, Chap. IX, in the Registration Act for the deposit of wills with, and their safe custody in his fire proof-box by, the District Registrar. A look at two decisions of this Court, the first of them being a Division Bench decision in Santu v. Maiku, AIR 1940 All 175 and the second that in Banwari Lal v. Ganga Prasad, 1967 All WR (HC) 643; would show that a lost will is to be presumed to have been cancelled by the testator unless the presumption is rebutted by a satisfactory explanation of the loss, and positive proof of the fact that the testator had not cancelled the will at any time after its execution and before his death whether by tearing it or otherwise destroying it or by executing another will, or by simply executing a document cancelling the will. In the present case the fact that the testator did execute another will, and even deposited it with the District Registrar, is proved by its certified copy Ext. A5. The earlier will dated 30th April, 1961 did unquestionably stand revoked and cancelled by the will dated 29th July, 1963, of which Ext. A5 is a certified copy. Even the defendants themselves admit that while in the earlier will there was a disposition of the amount in deposit as Provident Fund with the Railways, in the subsequent will there was a disposition of a Bank Deposit of Rs. 5,000/-. The property disposed of by the two wills was not identical. It is easy to presume that the earlier will must have been destroyed by the testator in this case and that on its destruction by the testator it ceased to be of any effect in law. At any rate by the very act of execution of the second will, irrespective of whether it is duly attested in law or not, and whether the earlier will is expressly revoked or cancelled by it or not it does stand revoked and cancelled by implication of law. I find myself wholly unable to see how the earlier will could be said to be effective in law in spite of the execution of the second will dated 29th July, 1963. 15. Mr. I find myself wholly unable to see how the earlier will could be said to be effective in law in spite of the execution of the second will dated 29th July, 1963. 15. Mr. S. K. Verma, learned counsel for the defendants-respondents, however, cited before me an English case; In the Estate of Devies, Rusell v. Delaney, (1951) 1 All E R 920; wherein it was held that the earlier will having been destroyed in the belief that the latter will was valid, the revocation of the earlier will was conditional on the validity of the latter one, and, therefore, as the latter one was held to be invalid, the doctrine of dependent relative revocation applied and the earlier will should be pronounced for, its contents having been established. In that case the earlier will was expressly revoked by the last will but the attestation of the last will failed to satisfy the requirements of S. 9 of the Wills Act, 1837. The learned Judge (Morris, J.) sitting in the Assizes in that case, has not given any reasons and has not cited any authority for the proposition that the earlier will revived notwithstanding its cancellation by the latter will, because the revocation of the first will was not unequivocal but was conditional on the second will being valid. It can be assumed that whenever a testator cancels an earlier will be a subsequent one, he does so on the assumption that what he is doing is valid in law. But if he fails in giving effect to his intentions no one but he can say what he would have done in order to give effect to his intentions if he had known that what he was doing was not valid in law. But this much at least was clear that he did not want his earlier will to have effect any longer.The a will fails on account of some legal defect, it fails; and the earlier will having been revoked and expressly so, I entirely fail to understand the basis or the principle on which the earlier will could be given effect to although it had expressly been revoked by the testator. There is nothing new in the sight of cases where a Court finds that a person must be held to have died intestate although he had before his death solemnly declared what he believed to be his last will and testament, with all the ceremony that he knew of. I am in this context reminded of some rather poignant observations of Hon'ble Mahajan, J. in a somewhat similar situation in Raj Laxshmi Dasi v. Bannmali Sen, AIR 1953 SC 33 (at p. 34) : "On 8-6-1970, two days before his death, Raj Ballav Seal, a Hindu inhabitant of the town of Calcutta governed by the Bengal School of Hindu Law, executed a will giving authority to his widow Mati Dassi to adopt a son and appointed her and three other persons as executors and trustees of the estate and gave them elaborate directions for the administration and distribution of his extensive properties. Raj Ballav was one of those persons who believe in leaving detailed instructions about their property and the manner in which it is to be managed and taken after their death and expect their wishes to be dutifully carried out by those who survive them. How his wishes have been respected by his descendants is now a matter of history. Since the year 1890 this is the eighth of ninth litigation concerning the construction of the testament be made on that fateful day, and if by any means Raj Ballav could be informed of the result of these litigations and was told that it had been held that he had died intestate, he would surely rise out of the ashes and lodge an emphatic protest against what has happened." 16. Judging from the contents of his will dated 29th July, 1963, which filed for want of attestation, Ramji Prasad whose estate is in question in the present case, was no less meticulous. Alas he did not consult a competent lawyer who would have told him that a will needed attestation for being valid, and it has to be held that he died intestate, and none of his detailed instructions as contained in his will dated 29th July, 1963 could be given effect to. 17. Alas he did not consult a competent lawyer who would have told him that a will needed attestation for being valid, and it has to be held that he died intestate, and none of his detailed instructions as contained in his will dated 29th July, 1963 could be given effect to. 17. In the result, this appeal must succeed and it must be held that Ramji Prasad died intestate and the plaintiffs are his nearest heirs and are entitled to the declaration claimed by them, but on the facts, the parties must be left to bear their own costs throughout. The appeal is allowed. The judgments and decree under appeal are set aside. Instead the suit is decreed for the declaration claimed. However the parties shall bear their own costs throughout.