JUDGMENT V. K. Mehrotra, J.—This second appeal under section 100 C. P. C. is by the defendants against a decree for possession over described share in certain plots land comprised in the Khasra Nos. mentioned in the operative portion of the judgment of the trial Court situate in Phati Halan, Kothi Nagar, Tehsil and District Kullu. This decree dated September 6, 1976, was affirmed by the learned Additional District Judge, Mandi at Kullu, in Civil Appeal No. 51 of 1976 on November 19, 1977. The second appeal was initially filed by one Budhu who was the first defendant in the suit (No. 19 of 1972). Budhu is now dead and is represented by his legal representatives. One Bali Ram was the holder and in possession of a number of agricultural plots comprised in the Khatas in dispute. He executed a Will in the year 1946. Under that Will half of the property was bequeathed to his wife, Smt. Uti, and the other half to his daughter, Smt Lachhmu, Bali Ram died on April 25, 1946. On April 30, 1946, the entire property of Bali Ram was mutated in the name of his widow, Smt. Uti, who was in possession thereof. Smt. Lachhmu instituted a suit claiming her half share under the Will of her father Bali Ram. A compromise was entered into between Smt. Uti and Smt. Lachhmu in the suit to the effect that Smt. Uti will continue to remain in possession of the entire property left by Bali Ram including the share of Smt. Lachhmu, during her life time whereafter the half share of Smt. Lachhmu will go to her. This was done on November 6, 1947. Smt. Uti remained in possession of the entire property till September 4, 1971, when she died. Smt. Lachhmu also died. 2. The heirs of Smt. Lachhmu filed the present suit on January 28, 1972, claiming possession over the share of the property which had been given to Smt. Lachhmu under the Will and in terms of the compromise decree dated November 6, 1947. The suit, as said earlier, was decreed on September 6, 1976 and the decree was affirmed in appeal by the learned Additional District Judge on November 19, 1977. 3. The suit, as said earlier, was decreed on September 6, 1976 and the decree was affirmed in appeal by the learned Additional District Judge on November 19, 1977. 3. In paragraph 2 of the plaint it has been asserted that Bali Ram had executed a Will in respect of his property bequeathing half property to his wife Smt. Uti and the remaining half to the daughter. In paragraph 3 of the plaint the facts relating to the earlier suit and the compromise decree passed therein have been mentioned. Budhu, the first defendant, had averred in paragraph 2 of the written statement filed by him, where he was replying to the assertions on facts, that the statement in paragraph 2 of the plaint was denied and further that no Will had been executed by Bali Ram in favour of Smt. Lachhmu. Also, that the Will referred to in the plaint was fictitious. These assertions were replied by the plaintiffs in paragraph 2 of their replication. It was asserted that the execution of the Will had been admitted by Smt. Uti in the earlier suit, decided on November 6, 1947, and that as a successor-in-interest of Smt. Uti the first defendant was estopped from assailing it. 4. Amongst the issues which were framed by the trial Judge, issue No. 3 was : "Whether the defendant Smt. Uti became full owner of the suit property, after enforcement of Hindu Succcession Act, 1956 ?* and issue No. 3-A was "Whether the defendants are estopped from challenging the existence and validity of the Will, if so, its effect ?" 5. At the trial parties led evidence. The first defendant entered the witness-box as DW 3. Amongst other things he stated in the examination- in-chief that "……………… Bali Ram had not made any Will in favour of Smt. Lachhmu. The (said) Will which had been produced has been attested by one Shri Fattu who is brother of Smt. Lachhmu……………" Budhu was cross- examined on behalf of the plaintiffs. Several questions were put to him but the statement made by him about Bali Ram not having made any Will in favour of Smt. Lachhmu was not questioned. The plaintiffs examined several witnesses. Fattu was one of them. He was produced as PW 6. Several questions were put to him but the statement made by him about Bali Ram not having made any Will in favour of Smt. Lachhmu was not questioned. The plaintiffs examined several witnesses. Fattu was one of them. He was produced as PW 6. In the opening part of his deposition he said that Bali Ram had executed a Will in favour of Smt. Lachhmu in respect of his property. Also, that on the basis of this Will a suit had been filed by Smt. Lachhmu against Uti and others in which a compromise had taken place. During his cross-examina tion he made the following statement in regard to the Will:— "Vasiyat Thakur Dass Ne Likhi Thi. Katav Ka Ghar Karja Kothi Barshi Men Hai Jo Ki Barihah Se Tin Mil Door Hal Fir Kaha 7-8 Mil Door Hai. Thakur Dass Apne Sasur Sangtu Ke Ghar Aaya Tha Jo Ki Balthah Gaon Ka Hai. Thakur Dass Ko Bulane Ke Liye Musmat Uti Ko Bheja Tha. Yeh Galat Hai Ki Sangtu Bali Ka Yekjaddi Tha. Yeh Galat Hai Ki Vasiat Bali Ram Ke Marne Ke Vad Bani Thi.” 6. This is all what has been said about the Will by Fattu who, according to the statement of defendant Budhu (as DW 3), was a brother of Smt. Lachhmu and had attested the Will which had been produced in the case. 7. Both the courts below have taken the view that, inasmuch as, Smt. Uti had admitted the execution of the Will by Bali Ram in the suit which had been filed by Smt. Lachhmu earlier and was also a party to the compromise decree on that basis she would be treated to have been a limited owner of the property under the Will qua the share which had been bequeathed to Smt. Lachhmu by Bali Ram till the date of her death. Consequently, the rights of Smt. Uti were to be governed by section 14 (2) of the Hindu Succession Act, 1956. The defendants were estopped from assailing the Will as they were claiming through Smt. Uti. Broadly for these reasons, the plaintiffs, claiming through Smt. Lachhmu, were held entitled to a decree for possession over the share in the property which had been bequeathed to Smt. Lachhmu under the will. 8. The approach of the courts below is contrary to law. The defendants were estopped from assailing the Will as they were claiming through Smt. Uti. Broadly for these reasons, the plaintiffs, claiming through Smt. Lachhmu, were held entitled to a decree for possession over the share in the property which had been bequeathed to Smt. Lachhmu under the will. 8. The approach of the courts below is contrary to law. The admission which Smt. Uti made about the execution of the Will by Bali R; undoubtedly binding upon her. As far as she was concerned, it was not open to her, if she were alive, to take the stand in a subsequent proceeding, after the compromise decree, that the Will was not proved in accordance with law or that it ought to have been proved in accordance with law before being treated as restricting the rights which she otherwise had in the property left by Bali Ram as the full owner thereof, being the widow of Bali Ram. The admission may also have been binding upon those claiming through Smt. Uti who rested their claim on the Will. But the admission made by Smt. Uti could not be treated, in law, as binding upon such of the heirs of Smt. Uti who were claiming rights in the property left by Bali Ram de-hors the Will. In other words, a defendant like Budhu who was not claiming any rights in property of Bali Ram on the basis that he was entitled to the property which had been left to Smt. Uti by Bali Ram through the bequest made by him under the Will as heir of Smt. Uti. The claim that defendant Budhu has made in the instant suit is that Smt. Uti succeeded to the entire property of Bali Ram after his death and continued in possession thereof till her death which took place in the year 1971, long after the coming into force of the Hindu Succession Act, 1956. Uti thus became the full owner of the property and as a heir, Budhu, was entitled to it. Budhu, admittedly, was not a party to the Will. He was a stranger thereto. He was also not a party to the earlier suit in which the compromise decree came to be made on November 6, 1947. As a third person, therefore, it was open to defendant Budhu to take the plea that no Will had been executed by Bali Ram. He was a stranger thereto. He was also not a party to the earlier suit in which the compromise decree came to be made on November 6, 1947. As a third person, therefore, it was open to defendant Budhu to take the plea that no Will had been executed by Bali Ram. This is what he precisely did. In that situation it was incumbent upon the heirs of Smt. Lachhmu, who had instituted the present suit, to have proved the Will in accordance with law. They have not done so as is clear from the state of evidence in the case noticed earlier. 9. In Satish Chandra Mitra v.Jogendra Nath Mahalanobis and others, AIR 1917 Cal 693, a question arose as to whether a document requiring attestation could be held to be proved as against a party which has not made any admission in regard to its execution, without having been proved by the attesting witnesses in the manner prescribed by section 68 of the Evidence Act. There was a difference of opinion between two Judges of that Court. The matter went before a third learned Judge. By majority it was held that having regard to the provisions contained in sections 68 and 70 of the Evidence Act the legal position appeared to be that "in the case of a document required by law to be attested, the admission by a party to it of its execution dispenses with the necessity of proving its execution as against him ; but as against persons other than the party making the admission, the document is not admissible in evidence until it has been proved by attesting witnesses in the manner prescribed by section 68". Also, that section 70, which was an exception to the general rule, must be held to mean that an examination of an attesting witness will not be necessary for the purpose of proving the execution of a document required by law to be attested if the executants admits execution, but this proof must be considered as confined in its operation only to the person making the admission. This view was reiterated by another Division Bench in Nibaran Chandra Sen v. Nagendra Chandra Sen and others, AIR 1919 Cal 1024. The question related to the enforcement of a mortgage bond. This view was reiterated by another Division Bench in Nibaran Chandra Sen v. Nagendra Chandra Sen and others, AIR 1919 Cal 1024. The question related to the enforcement of a mortgage bond. This is what the learned Judges observed: "Defendant 1, the mortgagor, admitted the execution of the bond and defendant No. 2, who now represents the interests of the mortgagor also, clearly admitted in his written statement that the bond was executed by defendant 1, and it appears that he was himself an attesting witness to it. We think that the admission of the defendants in the suit dispenses with the necessity of calling attesting witnesses or giving any other evidence. We may in this connection refer to the provisions of section 58, Evidence Act, and Order 12 Rule 1, C. P. C. But although an admission of execution dispenses with the necessity of complying with the provisions of section 68, Evidence Act, as against the party making the admission, the said provisions must be complied with in order to prove the execution of a document as against other parties to the suit who do not admit such execution. The document must be proved as against them in accordance with the provisions of sections 68, 69 and 71…………." 10. In Arjun Sahu v. Kelai Rath and others, AIR 1923 Patna 436, a Division Bench of Patna High Court had this to say: "Now it is clear that under section 70 of the Indian Evidence Act, the Admission of the execution of the document is sufficient proof as against the executants himself, but there is no authority for the proposition that the document is for that reason binding upon the other defendants who were not parties to it. The document must be proved according to law as against them unless section 58 of the Indian Evidence Act applies to the case and relieves the plaintiffs from the burden of proving attestation in respect of any of the defendants who have admitted the facts of attestation………….." 11. Mt. Chandra Kali v. Bhabhuti Prasad, AIR (30) 1943 Oudh 416, was a case wherein the question was whether the mortgage deed which had been denied by Mst. Chandra Kali was proved as against her. It was found that there were two attesting witnesses of the deed and though both were said to be alive, neither had been produced. Mt. Chandra Kali v. Bhabhuti Prasad, AIR (30) 1943 Oudh 416, was a case wherein the question was whether the mortgage deed which had been denied by Mst. Chandra Kali was proved as against her. It was found that there were two attesting witnesses of the deed and though both were said to be alive, neither had been produced. After discussing the matter with reference to some decided cases as well, the learned Judge, disposing of the second appeal, held that a third party (that is a party to the suit but not the deed) can deny execution and require proof of attestation when the executant of the documents admits execution. But the admission of the executant will bind his successors provided his successors-in-interest rest their title to the property in suit upon the document which contained the admission. 12. On the facts of the present case it is clear that defendant Budhu was not claiming interest in the property of Smt. Uti, which she inherited from Bali Ram, on the ground that the property had been bequeathed to her by Bali Ram. The admission made by Smt. Uti about the execution of the Will by Bali Ram could hardly bind defendant Budhu. 13. The decision in Rama Nand Rai v. The Deputy Director of Consolidation, U. P. Lucknow, and others, AIR 1978 Notes on Cases 100 (Allahabad) (1977 Rev. December 419), to which the attention of this court was drawn on behalf of the plaintiffs, does not lay down anything to the contrary. All that it says is that a document (a Will in that case) is required to be proved formally only when the execution of the document is questioned. If the execution of a document is admitted, either expressly or by way of implication, then the production of the attesting witnesses to prove the same is not at all necessary. This was on the basis of section 70 of the Evidence Act. The decision does not lay down that the admission made by a party to the document shall also be binding upon a third person who was not a party to the document or to the proceeding in which the admission is made, and who was not resting his claim on that document. 14. The decision does not lay down that the admission made by a party to the document shall also be binding upon a third person who was not a party to the document or to the proceeding in which the admission is made, and who was not resting his claim on that document. 14. Way back in the year 1958 it was held by the Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma and others, AIR 1959 SC 443, that the proof of a Will requires fulfilment of the special requirements of attestation prescribed by section 63 of the Indian Succession Act. Also, that the provisions of section 68 of the Indian Evidence Act are also to be satisfied. Their lordships of the Supreme Court exhaustively dealt in this decision with the various aspects touching the proof of the execution of a Will. This decision has been consistently followed by the Supreme Court in its later decisions. What section 63 of the Indian Succession Act, 1925, provides is that:— "63. Execution of unprivileged wills—Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engated, or a mariner at sea, shall execute his will according to the following rules :— (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark or the signature of such other person ; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 15. In the absence of evidence establishing the aforesaid elements relating to the proof of a Will, it cannot be held that the Will had been duly proved in a case. 16. Since the execution of the Will by Bali Ram was under challenge in the instant case by defendant Budhu, who could do so in view of what has been said earlier, it was incumbent upon the plaintiffs to prove the execution thereof in accordance with law The fact of the compromise decree was irrelevant, as far as defendant Budhu was concerned. The courts below have misdirected themselves in holding that Budhu was estopped from assailing the fact of execution of the Will or that he was bound by the admission made by Smt. Uti in the earlier suit resulting in the compromise decree. They have also fallen in error, as urged by Shri Sureshwar Thakur for the appellants, in taking the view that the provisions of section 14(2) of the Hindu Succession Act were attracted in the instant case. 17. Shri M. L. Sharma, appearing for the plaintiffs-respondents, urged that, inasmuch as, the attention of the courts below was pointedly not drawn towards the aforesaid aspect of the case, the matter may be remanded for enquiry, in accordance with law, into the question of the proof or otherwise of the Will executed by Bali Ram for purposes of a proper decision in the present suit. He suggested that an issue may be remitted to the trial Court with the direction that the parties may be permitted to adduce such evidence as they found necessary for deciding the issue. Acceptance of the suggestion of Shri Sharma would not be fair to the defendants for it will afford, as it were, an opportunity to the plaintiffs to fill in the lacuna in their case. It were the plaintiffs who were relying upon the Will. It was for them to prove the execution of the Will in accordance with law. They were put to notice of the stand which the defendant was taking in the matter. He had denied the execution of any Will by Bali Ram in the written statement and had also said so on oath in his testimony. The plaintiffs were aware of the stand which the defendant took in regard to the execution of the Will. They were put to notice of the stand which the defendant was taking in the matter. He had denied the execution of any Will by Bali Ram in the written statement and had also said so on oath in his testimony. The plaintiffs were aware of the stand which the defendant took in regard to the execution of the Will. They had reiterated in their replication that a Will had actually been executed by Bali Ram. They also produced Fattu, whose name as an attesting witness to the Will which had been filed, had been mentioned by the first defendant when he appeared as DW3 in the case. What Fattu stated about the Will has been mentioned earlier. Parties were clearly cognizant of each others case in regard to the Will said to have been executed by Bali Ram. The plaintiffs should have led the necessary evidence at the trial. Permitting them to do so now would be doing injustice to the defendant who had cautioned the plaintiffs at the appropriate stage. Since the plaintiffs have failed to establish that any Will was executed by Bali Ram in respect of the property in suit, it must be held that after the death of Bali Ram his property was inherited in its entirety by Smt. Uti as the legal heir of Bali Ram. She was in possession thereof as such when the Hindu Succession Act, 1956, came into force. She had become its full owner. 18. In view of what has been stated above it must be held that the courts below were in error in decreeing the suit. The decree is set aside. The suit is dismissed, but, parties are left to bear their own costs of this Court. Appeal allowed. -