TEJ SHANKAR, J. ( 1 ) THIS appeal has been preferred against the judgment and decree dated 11-10-1995 passed by First Additional Judge to the Court of District Judge, Bhind. ( 2 ) FACTS leading to the appeal in short are :that one Ashok Kumar, the original-plaintiff. , filed the suit against Mst. Harbo Bai for cancellation of the order passed on 14-7-1969 by the Registrar and for declaration to the effect that the property in suit is a public trust and the Registrar be directed to register it as a Public Trust. He claimed that there was a house No. 13 in Municipal Halka No. 3, Parade Bazar, Shriganj, Bhind, detailed in para 1 of the plaint. This house belonged to Chhabiram S/o. Chokhe Lal Jain, who died on 10-6-1917 and his heirs Prem Chand and others are still alive. He however gave this property for the construction of Dharmshala to one Ayodhya Prasad S/o. Pyare Lal Jain, R/o. Bhind, Mohalla Shriganj. Hence Ayodhya Prasad went in possession. On 15-12-1949, Ayodhya Prasad executed a document and expressed his desire that he would construct a Dharmshala for the travellars. In that document, he also expressed his desire to construct a Dharmshala during his life time and after his death, he appointed Trustees, namely; Suba Saheb, Babu Rameshwar Dayalji Mehrotra, Advocate, Sahu Jwala Prasad Ji Barohiwale, Sahu Bhagchand Ji Barohiwale and Sahu Lal Jai Narayan Ji Jain Ridoli Wale Saraf. He had also made arrangement for the management of the Dharmshala. This document dated 15-12-1949 was in the shape of will. It was signed by witnesses and was got registered. It was the last will. He did not execute any will thereafter. He started the work of construction of Dharmshala during his life time. He also constructed six shops towards north in order to have income for the management of the Dharmshala. Thereafter he died on 1st November, 1957 and the construction of the whole of the Dharmshala could not be completed. The original defendant Harbo Bai lived with Ajudhya Prasad and he used to maintain her. He had made an arrangement in the will that after his death, she will get Rs. 20/- p. m. during her life time from the income of the Dharmshala and will live in the Dharmshala for life. The original defendant Harbo Bai lived with Ajudhya Prasad and he used to maintain her. He had made an arrangement in the will that after his death, she will get Rs. 20/- p. m. during her life time from the income of the Dharmshala and will live in the Dharmshala for life. After the death of Ajudhya Prasad, she took possession over the entire property of the trust and used to take the income of the shops and house of the trust which amounted to Rs. 300/- p. m. The property was not being used as Dharmshala. The plaintiff claimed he being a citizen of Bhind and belonging to the sect of Ajudhya Prasad had an interest in the trust property, hence he moved an application under Section 5 of the Madhya Pradesh Public Trust Act before the Registrar, Public Trust, Bhind, that the Trust be got registered. The application was contested by the defendant and she claimed that it was not the property of the trust. She produced a certified copy of the will dated 13-11-1956 and claimed that the will dated 15-12-1949 had been revoked. The plaintiff alleged that the will dated 13-11-1956 was forged and fictitious. Later on, the plaint was amended and it was specifically pleaded that the will dated 13-11-1956 was forged and fictitious. It was got prepared by Laturi Lal, who was the son-in-law of the defendant (now deceased) and husband of defendant Longabai. The Registrar did not give any finding with respect to the will dated 13-11-1956 whether it was forged or not and observed that it can be decided by a competent Court. He also observed that on the basis of will dated 13-11-1956, the will dated 15-12-1949 has been revoked. He, therefore, in the end observed that in relation to the disputed property, there is no Trust and it is not the property of the trust. As such, the application was rejected on 14-7-69. The findings of the Registrar were wholly illegal. Feeling aggrieved, a writ petition under Article 227 of the Constitution of India was presented before this Court, but it was rejected on 28-8-1989 with the observation that the plaintiff had a right to institute a suit under Section 8 of the M. P. Public Trust Act, hence this suit. The findings of the Registrar were wholly illegal. Feeling aggrieved, a writ petition under Article 227 of the Constitution of India was presented before this Court, but it was rejected on 28-8-1989 with the observation that the plaintiff had a right to institute a suit under Section 8 of the M. P. Public Trust Act, hence this suit. ( 3 ) DURING the pendency of the suit, both the original plaintiff and defendant i. e. Ashok Kumar and Harbo Bai died and their LRs were brought on record. The Collector and the Registrar, Public Trust, were also impleaded. ( 4 ) ORIGINAL defendant Harbo Bai pleaded that under Sections 8 and 12 of the M. P. Public Trust Act, the State of Madhya Pradesh was the necessary party. The State of M. P. and the trustees were necessary parties and the suit was liable to be dismissed for non-joinder. The suit for mere declaration under Section 8 was not maintainable. The suit was filed beyond time as provided under Section 11 of the M. P. Public Trust Act. The provisions of M. P. Public Trust Act were not applicable at the time of execution of the Will dated 16-12-1949, as the Act was not in force. The Will dated 16-12-1949 had been cancelled by subsequent document 13-11-1956. Even the trustees did not accept the Trust. Ajudhya Prasad was the sole owner of the property in dispute. Pyare Lal had two sons - Panna Lal and Ajudhya Prasad. The property belonged to Panna Lal, who had adopted Mool Chand. Mool Chand died during the life time of Panna Lal, leaving his widow i. e. the defendant and daughter Longa Bai. As the defendant was the Pardanaseen lady, the entire work was being looked after by Ajudhya Prasad. The defendant and her daughter Longa Bai were the sole heirs and legal representatives of Panna Lal. Ajudhya Prasad had no right to execute the Will and that is why he concealed that truth. ( 5 ) THE allegations of the plaintiff that the property belonged to some one and from whom it went to Premchand, plaintiff's father and he handed over to Ajudhya Prasad have been specifically denied. The Will dated 15-12-1949 was illegal and without any right as Ajudhya Prasad himself was not the owner of the property. ( 5 ) THE allegations of the plaintiff that the property belonged to some one and from whom it went to Premchand, plaintiff's father and he handed over to Ajudhya Prasad have been specifically denied. The Will dated 15-12-1949 was illegal and without any right as Ajudhya Prasad himself was not the owner of the property. When the defendant came to know about the said Will she objected, whereupon the Will dated 13-11-56 was got executed and registered and intimation in that regard was also published in Newspaper 'hamarai Aawaj' on 8-10-57 as well as on 16-12-49. The Will dated 15-12-1949 stood cancelled. Ajudhya Prasad did not die on 1-11-57, but he died on 4-11-57. He had no intention to construct the Dharmshala, but he simply used to give threats. Similarly, the assertion of the plaintiff that he was of the same sect has been denied. It has been alleged that the plaintiff was of Gol Singara where the defendant was of Gola Lare. The findings of the Registrar were correct and based on material on record. The Will dated 15-12-49 was forged and sham transaction and was without any right. The plaintiff was not entitled to get any relief and the suit was liable to be dismissed. ( 6 ) THE learned trial Court framed number of issues and on hearing the parties and after taking necessary evidence, and perusing the record dismissed the suit on 28-11-78. ( 7 ) FIRST Appeal No. 8 of 1979 was preferred to this Court and it was decided by the Division Bench of this Court on 19-4-1985 and the judgment and decree were set aside and the case was remanded for rehearing of the suit with the direction given thereunder. ( 8 ) AFTER the remand of the case, the learned trial Court reheard the parties in accordance with the directions of this Court and again by judgment and decree dated 11-10-1995 dismissed the suit, hence this appeal. ( 9 ) THE learned counsel for the appellants contended that originally one Pyare Lal had two sons - Panna Lal and Ajudhya Prasad. Panna Lal died issueless. Ajudhya Prasad created a trust by means of document Ex. P/22 dated 15-12-1949. This document has been admitted by the defendant in her written-statement. The claim of the defendant is that this document was cancelled by subsequent document dated 13-11-1956. Panna Lal died issueless. Ajudhya Prasad created a trust by means of document Ex. P/22 dated 15-12-1949. This document has been admitted by the defendant in her written-statement. The claim of the defendant is that this document was cancelled by subsequent document dated 13-11-1956. He urged that the document dated 13-11-1956 is a forged document, which was got prepared by Laturi Lal, who is the son-in-law of Harbo Bai. He also contended that there is no pleading to the effect that Ajudhya Prasad was the owner. There is no averment in the written statement that the will alleged by the defendant was the last Will. Ajudhya Prasad created a Trust under the aforesaid document and as such the Registrar committed an illegality in not allowing the application and registering the Trust. ( 10 ) THE learned counsel for the respondent urged that the Will executed in the year 1949 stood cancelled by the subsequent Will. The plea of title of Ajudhya Prasad was not involved before the Registrar. There was no Trust as claimed by the plaintiff. The plaintiff had no right in the suit property. The suit was rightly dismissed. ( 11 ) BOTH the parties have claimed their right through Ajudhya Prasad. It is however unfortunate that there is nothing in the plaint to show that the plaintiff claimed any right in Ajudhya Prasad except that according to the plaint allegations, he was entrusted with the work of construction of Dharmshala by Premchand. Before entering upon the discussion relating to the argument advanced by the learned Counsel, it is necessary to dispose of two applications under Order 6, Rule 17, C. P. C. Both the applications I. A. No. 1957/97 and I. A. No. 1951/97 have been moved by the plaintiff-appellants. Both the applications have been opposed by the learned counsel for the respondents. It appears that application I. A. No. 1951/97 was not pressed and was rejected on 17-3-1997. Later on I. A. No. 1957/97 was moved against which a reply has been filed by the respondent No. 1. The plaintiffs-appellants alleged that they wanted to incorporate the amendment in the plaint in order to bring it in conformity with the evidence so that the respondent may not object to the fact that the evidence on the point of ownership of the property which has been led in the case cannot be considered. The plaintiffs-appellants alleged that they wanted to incorporate the amendment in the plaint in order to bring it in conformity with the evidence so that the respondent may not object to the fact that the evidence on the point of ownership of the property which has been led in the case cannot be considered. The amendment was necessary in order to clarify as to how Ajudhya Prasad was the owner of the property and he created the trust. Consequently the amendment was prayed. Facts sought to be added by way of amendment relate to the effect that Panna Lal and Ajudhya Prasad were the sons of Pyare Lal and Pyare Lal died on 1929 and the connecting fact which had been argued during the course of argument. In reply, it has been contended by the respondent that the application has been moved with mala fide intention and the case was decided after the remand. The scope of the appeal is limited. The entire nature of the suit will be changed and the evidence will be necessary. On a careful consideration of the arguments advanced by the learned counsel for the parties with respect to this amendment application, I find that the amendment sought does not spring any surprise to the respondent. Both the parties are alive to the situation. The facts are not such which may change the nature of the case. Hence careful perusal of the entire material shows that the parties knew fully well that both of them claimed their right through Ajudhya Prasad. It does not appear to be in dispute that Ajudhya Prasad had executed the Will. According to the case of the defendant-respondent that Will was cancelled by a subsequent Will. The plaintiff has challenged the subsequent document. That question has to be determined hereinafter in accordance with the material on record. But it has to be mentioned at this stage in order to show that the parties were alive to the facts. These facts are necessary for the complete adjudication and consequently the amendment has to be allowed. It is settled law that all amendments should be liberally allowed if they are necessary for the complete adjudication of the case. But it has to be mentioned at this stage in order to show that the parties were alive to the facts. These facts are necessary for the complete adjudication and consequently the amendment has to be allowed. It is settled law that all amendments should be liberally allowed if they are necessary for the complete adjudication of the case. The amendment does not require further evidence as contended by the learned counsel for the appellants because the evidence is already on record and the ground for amendment is that the amendment has been necessitated in order to bring the evidence in conformity with the evidence. Consequently, the application is allowed. Let amendment be incorporated. ( 12 ) NOW, I come to the merits of the case. The position that has now emerged after the amendment of the plaint is that Pyare Lal had two sons Panna Lal and Ajudhya Prasad. Panna Lal died in the year 1929. He died issueless. Of course, the defendant has pleaded that he had adopted one Mool Chand. Mool Chand died during the life time of Panna Lal leaving his widow i. e. the defendant Harbo Bai. According to the plaintiff, after the death of Panna Lal, the property went to Ajudhya Prasad and his name was mutated. It has been claimed by him that Ajudhya Prasad wanted to construct the Dharmshala and in this view he executed a document on 15-12-1949, which is Will. Though this document on 15-12-1949, he also created a trust. This document has been challenged by the defendant-respondent (sic) initially the existence of this document and secondly it has been contended that it has been cancelled by a subsequent document. The contention of the learned counsel for the appellants is that this document has two faces. It created a trust and can also be taken as a Will. His argument is that the subsequent document is a forged one through which it has been contended that this document has been cancelled and secondly once such trust is created, it cannot be revoked by a subsequent document. The learned counsel also urged that this document has been admitted by the defendant. ( 13 ) FIRST of all the question to be determined is as to who was the owner of the property. The learned counsel also urged that this document has been admitted by the defendant. ( 13 ) FIRST of all the question to be determined is as to who was the owner of the property. This question need not detain us much for the simple reason that both the parties have claimed their title through Ajudhya Prasad and as such it loses its importance. However, as lengthy argument has been advanced on behalf of the respondent No. 1 that the property did not belong to Ajudhya Prasad in spite of the fact that both the parties and even the respondent herself has claimed through Ajudhya Prasad, it is desirable that this question may also be seen. After the amendment in the plaint, as allowed by me above, it becomes a case of both the parties that the property belonged to Panna Lal. It has now been claimed by other party that it was the joint family property. Admittedly, Panna Lal died in the year 1929 as is apparent from the record as well as written arguments of the learned counsel for the parties. According to the respondent, Panna Lal had adopted a son Mool Chand. Mool Chand died during the life time of Panna Lal, leaving his widow i. e. the defendant. It is also the case of the respondent that Mool Chand died during the life time of Panna Lal. It is however not disputed that Ajudhya Prasad was the brother of Panna Lal. Consequently, it has to be seen as to whom the property went after the death of Panna Lal in the year 1929. There may not be any quarrel about the principle of law that the Hindu Women's Rights to Property Act, 1937 had not come into existence. In this view of the matter, the law of inheritance as was prevalent prior to that date i. e. on 1929 when the death had taken place has to apply. In accordance with the Order of Inheritance mentioned in Chapter IV of the celebrated book Principles of Hindu Law by Mulla, fifteenth Edition, Arts. 34 and 43, it is clear that devolution of property according to the old law, has to be seen as mentioned in Art. 34. In accordance with the Order of Inheritance mentioned in Chapter IV of the celebrated book Principles of Hindu Law by Mulla, fifteenth Edition, Arts. 34 and 43, it is clear that devolution of property according to the old law, has to be seen as mentioned in Art. 34. It has to be mentioned that if the deceased was separate at the time of his death from his coparceners, the whole of his property, howsoever acquired, will pass to his heirs by succession according to the order given in Art. 43. A perusal of Art. 43 shows that the order of succession among supindas has been mentioned therein in 1-3 i. e. son, grandson (son's son) and great-grandson and admittedly Panna Lal had no son, grandson and great-grandson at the time of his death. The other heirs mentioned in this Article are widow, daughter, daughter's son and father. None of these heirs were alive at the time of his death. There is no dispute that Ajudhya Prasad was the brother of Panna Lal and as such in accordance with the Order of Succession, Ajudhya Prasad became the heir of the deceased Panna Lal and there cannot be any quarrel in this regard. It is also evident from the record that Ajudhya Prasad had been dealing with the property of Panna Lal. The case of the respondent is that the property went to Harbo Bai, which was dealt with by Ajudhya Prasad, as there was no male member in the family, I have already shown above that according to the Order of Succession, it has Ajudhya Prasad who succeeded the property of Panna Lal and Harbo Bai being the widow of the son of the predeceased alleged adopted son, as claimed by the respondent, could not get any right at the time of his death. I am, therefore, of the view that the property went to Ajudhya Prasad in accordance with law after the death of Panna Lal. He was, therefore, the owner of the property. ( 14 ) NOW, I come to the main dispute between the parties with respect of the creation of Trust and the execution of a document dated 15-12-1949 as well as execution of another document relied upon by the respondent alleged to have been executed by said Ajudhya Prasad on 13-11-1956 through which it is claimed that the Will dated 15-12-1949 was cancelled. ( 15 ) FIRST, I take up the alleged Will dated 15-12-1949 relied upon by the plaintiffs-appellants. The contention of the learned counsel for the appellants is that this document has been admitted by the defendant in the written statement and it does not require any proof. At this stage, it is relevant to mention here that the present suit was dismissed earlier and the appeal was preferred to this Court. The question as to whether the document was admitted was raised before this Court and in para 14 of its Judgment it was observed by this Court :" 14. Thus, by no stretch of construction of pleading, it can be said that the defendant had admitted due execution of a valid will by Ajudhya Prasad. " ( 16 ) IN this way, it is not open now for the appellants to contend that there is an admission in the pleading with respect to the Will. This order has become final as it was not challenged at all. I may also mention here that in this very judgment at para 23 it was held as under :-"23. The result is that there is a total lack of evidence about due execution of the Will dated 15-12-1949 and an incomplete evidence about due execution of the Will dated 13-11-1956. "apart from this, this Court directed that :"23. xx xx xx xx xxbut the trial Court's omission to examine the parties under Order 10 of the C. P. C. and its failure to pin point the attention of the parties to adduce evidence on proof of due execution of the Wills in accordance with Section 68 to 71 of the Evidence Act and Section 63 of the Indian Succession Act have contributed to this unsatisfactory state of the evidence or lack of it on the vital facts-in-issue of the case. " ( 17 ) THUS, it is apparent that the Court directed that there should be evidence on record with respect to the proof of the two Wills in question, in accordance with the provisions of Sections 68 to 71 of the Evidence Act as well as Section 63 of the Indian Succession Act. The argument advanced by the learned Counsel for the appellants is that so far as Will dated 15-12-1949 is concerned, it was executed in the year 1949 when the Indian Succession Act was not applied to Gwalior. The argument advanced by the learned Counsel for the appellants is that so far as Will dated 15-12-1949 is concerned, it was executed in the year 1949 when the Indian Succession Act was not applied to Gwalior. He contended that Section 63 of the Indian Succession Act provides that the attesting witness is required to be called for proving a Will in term of Section 68 of the Evidence Act. He urged that Indian Succession Act was applied in Gwalior State on 3-3-1951 vide Act No. 3 of 1951 and such document is Ex. P/22, i. e. the said Will was executed at the time when Indian Succession Act was not in force. The provision of old Hindu Law under which the power of executing a Will was recognised has to be applied. In this connection, he referred principles of Hindu Law by Mulla. ( 18 ) THE learned counsel for the respondent contended that from the evidence on record, it is apparent that Ajudhya Prasad died on 4-11-1957 when the Indian Succession Act was applicable in M. P. The Will if at all came into force on the death of Ajudhya Prasad, procedural law will apply on the date when the document is to be given effect to. Hence the provisions of Section 63 of the Indian Succession Act will apply and the Will has to be proved in accordance with the provisions of Section 68 of the Indian Evidence Act. I have given my anxious consideration to this contention of the learned counsel for the parties. It will not be out of place to mention here that at the time when the earlier appeal was argued in this Court, the question of the applicability or non-applicability of the Indian Succession Act was not raised and as such, it was not considered. However, it will not make any difference because the Act which makes any provision, is to be applied from the date it is made applicable or retrospectively if any specific provision is made therein to that effect. The contention of the respondent is that as it is procedural, it will have its effect retrospectively, I find myself unable to agree with this contention. Section 63 of the Indian Succession Act makes a specific provision for attestation of a Will. This provision can certainly be made applicable from the date the Act applied. The contention of the respondent is that as it is procedural, it will have its effect retrospectively, I find myself unable to agree with this contention. Section 63 of the Indian Succession Act makes a specific provision for attestation of a Will. This provision can certainly be made applicable from the date the Act applied. It has not been disputed before me that in Gwalior, the provision of Indian Succession Act was applied vide Act No. 3 of 1951 from 3-3-1951 and as such, at the time when the alleged Will was executed, the law did not require the Will to be attested. Rather a perusal of Article 369a of the Mulla's celebrated Principles of Hindu Law, reprinted with supplement 1986 shows the form of Will. Under this Article, it has been specifically provided that Hindu Wills are required to be in writing signed by the testator and attested by at least two witnesses as provided by Section 63 of the Indian Succession Act, 1925. It has also been mentioned therein that before the Hindu Wills Act, 1870, no Hindu Will was required to be in writing, the Will could be oral or in writing. If the Will was in writing, it did not require to be signed or attested. Probate was granted of oral wills as well as of written wills. Of course, it is also mentioned in it that there was amendment in the Indian Succession Act, 1926 which made compulsory that will should be in writing and it has been mentioned in this commentary that the result is that every Hindu will made after the Ist January, 1927, must be in writing signed by the testator and attested by at least two witnesses as provided by Section 63 of the Indian Succession Act, 1925. In this view of the matter, even if the Indian Succession Act was applied in the year 1951, retrospective effect was given in the Act itself to all the Wills and as such every will made after the Ist January, 1927 was required to be in writing signed by the testator and attested by atleast two witnesses as provided by Section 63 of the Indian Succession Act, 1925. In this view of the matter, I find myself in agreement with the learned counsel for the respondent that the will did require to be in writing, signed by the testator and attested by at least two witnesses as provided by Section 63 of the Indian Succession Act, 1925. ( 19 ) IT has now to be seen as to how far the plaintiffs have been able to prove this Will. Of course, the contention of the learned counsel for the plaintiffs-appellants is that the Will had been admitted in pleadings and this Court specifically observed as mentioned above in the earlier part that it was not so. However, if it is proved from record that the Will has been admitted otherwise then in pleadings, the earlier judgment passed by this Court will not come in the way of the plaintiffs-appellants in saying that the Will has been admitted. Before dealing with the contention regarding admission made by the respondent with respect to the Will in question, I proceed to deal with the evidence adduced after the remand regarding the proof of this Will. The will in question dated 15-12-1949 is Ex. P/22 on record. On 23-10-1994, one Dayashankar Shukla had been examined on Commission by the plaintiff. He deposed that he had been the petition writer from 1926 to 1986. Ajudhya Prasad got a Will written by him, about 40-45 years back. Thereafter he volunteered in the year 1949. The Will was executed in the name of Dharmshala. Four or five persons were made trustees. He narrated them as Suba Saheb, Rameshwar Dayal Vakeel, Bhagchand Barohi Wale, Jai Narayan Saraf, Bhind and another person of Barohi. Perhaps his name was Johari Lal. It was signed by Ayodhya Prasad in Mudiya language. There were two witnesses. He signed as scribe. One witness was Swaroop Narayan Purohit S/o Dwarika Prasad Vakeel and other witness was Nemi Chandra Jain. He was not in a position to see. Hence he could not read the document. The document was specifically read over to him whereupon he said that he said that he had scribed this document. It is relevant to mention here at this stage that the original will is not on record and Ex. P/22 is the certified copy of the registered document. There is evidence on record to show that the original will had been eaten by rates. It is relevant to mention here at this stage that the original will is not on record and Ex. P/22 is the certified copy of the registered document. There is evidence on record to show that the original will had been eaten by rates. Consequently, the secondly evidence is admissible under the law. The documents maintained in the Registration Office were also summoned and were brought before the Commissioner at the time of examination of this witness and the whole of the will was read over by the Commissioner. The copy on record was also compared from the Register brought from the Registry office and on objection was raised at the time of examination of the witness regarding marking of the document as exhibit because the document on record as well as the document entered in the register maintained by the Registry Department were both the copies of the original and they did not bear the signature of the witness, hence it could not be exhibited. The learned Commissioner left this question to be determined by the Court. The Court, however, exhibited the document as Ex. P/22. I shall deal with the question as to whether this document, i. e. the will has been proved in accordance with law or not hereinafter while considering the argument to the effect that the will has not been proved because one of the attesting witnesses who has been examined has not proved the document. For the present, it is sufficient to mention that the witness after hearing the entire document which was read over to him by the learned Commissioner at the time of its examination stated that it was the same document which he had scribed. The statement of this witness does not appear to have been shattered in cross-examination. The learned counsel for the respondent urged that he has specifically stated that one of the witnesses was alive and he was examined by the plaintiffs at the fag-end of the case and he did not support the plaintiff, hence the document has not been proved. ( 20 ) PW 9 Nemi Chandra Jain is an attesting witness of the Will (Ex. P/22 ). He has stated that Ajudhya Prasad died about 35-40 years back and he was known to him. He used to live at Etawah as well as at Bhind. ( 20 ) PW 9 Nemi Chandra Jain is an attesting witness of the Will (Ex. P/22 ). He has stated that Ajudhya Prasad died about 35-40 years back and he was known to him. He used to live at Etawah as well as at Bhind. He had no knowledge as to what property was included in the will dated 15-12-1949. He stated that in the year 1949, Shri Rameshwar Dayal, Vakeel was conducting his case and on his asking he had signed over it. He did not know as to what was written because it was not read over. He also stated that in the year 1949 he signed on the writing at Tehsil Kachhari. The clerk of Tehsil Kachhari was present and Ajudhya Prasad was not present there. He further stated that in the year 1949 neither Ajudhya Prasad nor any other witness signed before him. Thus, his statement does not go to prove the Will at all what to say in accordance with law. ( 21 ) THE learned counsel for the appellants drew my attention to Section 71 of the Indian Evidence Act which makes a provision with respect to proof when attesting witness denies the execution. Under this Section, a provision has been made to the effect that if the attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. Thus, in the present case one attesting witness is not alive and the other witness i. e. Nemi Chandra Jain (PW 9) has denied the attestation, though he had admitted that he signed over the will. In this view of the matter, the other evidence is permissible under Section 71 of the Evidence Act. Now the question is what should be the other evidence. It has been held in AIR 1939 Privy Council 117 that the Registration proceedings can be relied upon to prove the document. This section is an exception to Rule relating to the proof of document required by law to be attested as laid down in Section 68. If the witness denies or does not recollect the execution of the document, the execution can be proved with the aid of Section 71. Now, the other evidence adduced by the plaintiffs to prove the document is the statement which has been mentioned above. If the witness denies or does not recollect the execution of the document, the execution can be proved with the aid of Section 71. Now, the other evidence adduced by the plaintiffs to prove the document is the statement which has been mentioned above. Scribe has categorically stated that he had scribed the document which was read over to him and was got written. It was signed by two perons, namely, Swaroop Narayan and Nemi Chandra Jain. He also stated that he put his signature as scribe. I have already pointed out above that during the course of his examination, it was claimed by the learned counsel for the defendant that the document did not bear the signatures of the witnesses. The objection of the learned counsel appears to be funny because the copy shows that it was signed by Daya Shankar. In this way, it has to be taken that the original document was scribed by this witness and it was signed by other two witnesses as stated by him. The statement of this witness, to my mind can certainly be taken under these circumstances of the case to be covered within the meaning of other evidence as mentioned in Section 71 of the Indian Evidence Act. I have already referred to the decision of the Privy Council wherein it was laid down that the registration proceedings can be relied upon under this section to prove the due execution or attestation. Thus to my mind, the document i. e. the Will dated 15-12-1949 stood proved. ( 22 ) APART from what has been stated above, there is sufficient material on record to show that this document has been specifically admitted by the defendant herself. I cannot go into the question as to whether the document was admitted in the pleading or not in view of the findings of this Court referred to above. However, it can certainly be shown from the record that even in statements, the document has been admitted. DW 3 Jai Narayan, who has been examined by the defendant, has categorically stated that he knew Ajudhya Prasad. In the year 1949 he had created a Trust by Will in which he was named as a Trustee. Bhag Chand, Rameshwar Dayal Vakeel, Suba Bhind and Jwala Prasad were also made trustees. Thus his statement proves that the Will was executed in 1949 by Ajudhya Prasad. In the year 1949 he had created a Trust by Will in which he was named as a Trustee. Bhag Chand, Rameshwar Dayal Vakeel, Suba Bhind and Jwala Prasad were also made trustees. Thus his statement proves that the Will was executed in 1949 by Ajudhya Prasad. DW 4 Laturi Lal is none-else than the son-in-law of Harbo Bai and who appears to be the ultimate beneficiary in case the respondent succeeds. He stated in para 27 that :"unees So Unachas Ki Basiyat Aur Unees So Chhapan Ki Basiyat Aur Panna Lal Ki Baad Grast Jaidad Ki Bhumi Jo Subha Saheb Ke Milee Thee Uski Sanad Mere Paas Unees So Sadsath-Adsath Thee Jisko Maine Dukan Ki Gaddi Ke Neeche Hifajat Me Rakhee Thee Uske Baad We Kagjaat Gum Ho Gaye. " ( 23 ) HARBO Bai said of her statement that she came to know after one year that Ajudhya Prasad had executed a document with respect to the property for the construction of dharamshala. She quarrelled and then that document was cancelled. Thus, she also admitted the execution of some document through which the property was given to the Dharamshala. Reference may also be made at this stage to the document relied upon by the defendant. The proof of which is also in controversy and shall be seen hereinafter. It is a document alleged to have been executed by Ajudhya Prasad on 13-11-1956 (Ex. D/1) on record. If we peruse this document, we find that there is a specific mention in para 4 of the Will executed by Ajudhya Prasad on 15-12-1949. Thus taking into consideration all these statements together with the fact that the document was registered and the statement of the scribe Daya Shankar Shukla, it is amply proved that Ajudhya Prasad had executed a document on 15-12-1949. There does not remain any doubt whatsoever about the execution of this document. ( 24 ) HAVING found that Ajudhya Prasad had executed the document on 15-12-1949, it has to be seen as to what is the nature of this document. It is Ex. P/22 on record. If we go through this document, we find that initially Ajudhya Prasad had narrated the property and has also mentioned his desire. The contention of the learned counsel for the appellants is that through this document, the trust was created. It is Ex. P/22 on record. If we go through this document, we find that initially Ajudhya Prasad had narrated the property and has also mentioned his desire. The contention of the learned counsel for the appellants is that through this document, the trust was created. The narrations made in the document are to the effect that the executant desired that he should construct a dharmshala for travellers so that his name and the names of his family should continue. He has also mentioned that the construction of the dharamshala will take sufficient time. It may be that he may expire before completion of the dharamshala. Hence how the dharamshala will be constructed after his death and how it will be run, a provision was made therein. However, it has been specifically mentioned therein that so long as he was alive, he will construct the dharamshala and the money received from the income of the property will be spent by him in it. He has also mentioned that he will have full right of ownership in that regard. Thereafter in clause 2 he made certain persons as trustees and other provisions. ( 25 ) IT is, therefore, to be seen as to whether this document created the Trust in the presenti or it amounted to a will which was to take effect after his death. For the creation of a Trust, there are certain requirements, which have been provided in Section 6 of the Indian Trusts Act. The essential ingredients for creation of valid trust under this Section are (I) an intention on his part to create thereby a trust; (ii) the purposes of the trust; (iii) the beneficiary; and (iv) the Trust property and transfer the trust property to the trustee. ( 26 ) ON the touch stone of the essential ingredients of valid trust mentioned above, it has to be found as to how far the document in question i. e. Ex. P/22 created the trust in the presenti. The contention of the learned counsel for the plaintiff-appellants is that it is trust deed. He also urged that in any case, it may be treated partly a trust deed and partly a will. P/22 created the trust in the presenti. The contention of the learned counsel for the plaintiff-appellants is that it is trust deed. He also urged that in any case, it may be treated partly a trust deed and partly a will. If we peruse the whole of the document, it will transpire that the executant had expressed his desire to construct a dharamshala for the travellers in order to perpetuate the memory of his and of his family members. He has also mentioned in the document that he executed the document in order to make provision as to how the dharamshala will be constructed and how it will be run after his death. Not only this, the instructions laid down by him in the document show that in the very first clause, he expressed his determination to construct a dharamshala and to spend the amount of his property in the dharamshala. He also made a provision that for this purpose, he will have all the rights of ownership. In this view of the matter, to my mind, the document does not go to show that he had any intention to create the trust. He had only expressed his desire to construct the dharamshala for the perpetuity of his memory. Thus, the very first ingredient is lacking. However, it can safely be said that the purpose is there because he wanted to construct a dharamshala. The close reading of the document shows that he intended to create a beneficiary. There was also a trust property, i. e. the property mentioned in the document. He had however not divested himself of the rights of the property and transferred it to the trustees. The learned counsel for the appellants in his written submissions mentioned only three ingredients of the creation of the trust in order to demonstrate that the document is a trust-deed. If have already discussed all the ingredients above. Thus, to my mind, the document can in no case be said to have created a trust in presenti. It similarly showed the intention of the executant to construct a dharamashala for perpetuity of his name and the names of his family members. Of course, he did make the provision for the trustees after his death. Thus, to my mind, the document can in no case be said to have created a trust in presenti. It similarly showed the intention of the executant to construct a dharamashala for perpetuity of his name and the names of his family members. Of course, he did make the provision for the trustees after his death. Thus, I do not agree with the learned counsel for the appellants that the document created any trust in presenti as the essential ingredients of creation of valid trust are lacking. ( 27 ) BEFORE parting with this point, I may also mention the contention of the learned counsel for the appellants that not only the valid trust came into existence, but even Ajudhya Prasad started construction of dharamshala. It has been pointed out that the learned trial Court while deciding issue No. 11 has also referred to Ex. D/16, Ex. P/x, Ex. P/y and Ex. P/z and other documents i. e. Ex. /p3 an application submitted by Ajudhya Prasad for seeking permission. Ex. P/4, a map was also submitted. Ex. P/8 i. e. the application was moved for exemption of Tax. Ex. P/9 is the front elevation of Dharamshala. On the basis of these documents, it has been contended that the valid trust was created. I after giving anxious consideration, find myself unable to agree with the learned counsel that these documents too go to prove that a trust was created by the said document (Ex. P/22 ). These documents to my mind simply go to show that the executant started construction of dharamshala in fulfilment of his desire. It cannot be said to be sufficient to hold that a trust was created through the document in question in presenti. ( 28 ) THE next question which calls for determination is as to what is the nature of document (Ex. P/22 ). I have already stated in the earlier part of this Judgement that this document purports to be a will. The simple reason is that the document was executed expressing the desire of the executant. He wanted to make arrangement of his property. A document is a Will if it contains all the specific words of bequeathed to be given effect to after the death of the testator. In order to constitute a Will, there must be a desire of the testator that the declaration should be effected after his death. He wanted to make arrangement of his property. A document is a Will if it contains all the specific words of bequeathed to be given effect to after the death of the testator. In order to constitute a Will, there must be a desire of the testator that the declaration should be effected after his death. The desire of the testator to give up the ownership of the property after his death is also an essential constituent of a Will. Under the Indian Succession Act, the "will" means the legal declaration of the intention of the testator with respect to his property which he desire to be carried into effect after his death. Whenever the Will is claimed, it must be shown that there is no room for suspicion that it does not express the mind of the trustee. It has not been claimed for the respondent that there are any suspicious circumstances with respect to this Will. Rather the execution of the Will has been admitted as shown above. In the present case. Ex. P/22 is a document which unequivocally shows the intention of the testator that he wanted to perpetuate his name and the names of his family members and in that connection he wanted to construct a dharamshala for the travellers. Not only this he made a provision for the purpose that he will continue to exercise the right of ownership. After his death he made a provision that the persons declared by him as trustees on whom he had faith would not transfer the dharamshala. They will complete the construction and manage it. Thus to my mind, the document is clearly covered within the definition of 'will'. Under this document, he made a provision for the completion of the dharmshala, which he desired to start during his life time and he actually started construction as is evident from the evidence on record. He also appointed trustees for the completion and management of the dharamshala. In this way to my mind this document created a trust by a Will. I, therefore, hold accordingly. ( 29 ) THE defendant-respondent has put forward a document alleged to have been executed by the said Ajudhya Prasad on 13-11-1956. It is claimed by the defendant-respondent that it is a Will executed by the said Ajudhya Prasad and, therefore, the earlier will has been revoked. I, therefore, hold accordingly. ( 29 ) THE defendant-respondent has put forward a document alleged to have been executed by the said Ajudhya Prasad on 13-11-1956. It is claimed by the defendant-respondent that it is a Will executed by the said Ajudhya Prasad and, therefore, the earlier will has been revoked. It is very essential to mention at the very beginning that the original document has not been brought on record and it is claimed that it has been lost. Secondary evidence was permitted and the defendant-respondent filed a certified copy (Ex. D/1 ). I have already made a reference also that this Court while disposing of the earlier appeal had remarked that this document too was not proved in accordance with law. I may reiterate the observations of this Court with respect to this document. It was observed that :23 xx xx xx xx xx xxan incomplete evidence about due execution of the will dated 13-11-1956 was produced. "( 30 ) THUS it was the duty of the defendant-respondent to have proved this document in accordance with law as pointed out by this Court in the earlier judgment. In order to prove this document, the defendant had examined Onkar Nath Choubey (DW 2), the alleged attesting witness. It has been contended by the learned counsel for the defendant-respondent that he has proved the execution of the Will. The secondary evidence of the Will was permitted by the trial Court vide its order dated 9-4-1973. The learned counsel further contended that the statement of this witness has not been challenged by the plaintiffs. He also contended that the other witness Laturi Lal (DW 4) has also proved this Will. Reliance has also been placed on the statement of DW 6 Jhaman Lal Sharma and it is contended that he had also proved that he had published a 'vigyapati' in his newspaper 'hamari Awaj' given by Ajudhya Prasad. It is useful to mention here that this document is also a registered document. Section 63 of the Indian Succession Act makes a special provision for the proof of the Wills and it requires that it was necessary to prove the will by calling the attesting witness. Under Section 68 of the Indian Evidence Act, atleast one attesting witness is required to be produced if a document is required to be attested. Section 63 of the Indian Succession Act makes a special provision for the proof of the Wills and it requires that it was necessary to prove the will by calling the attesting witness. Under Section 68 of the Indian Evidence Act, atleast one attesting witness is required to be produced if a document is required to be attested. This document is alleged to have been executed in the year 1956 and there is no controversy that the Indian Succession Act applied at that time. Consequently, it was necessary for the person relying upon the document i. e. the defendant to have examined atleast one attesting witness. The document purports to have attested by Onkar Nath Choubey (DW 2) and Ram Swaroop. Before the remand of the case, the defendant had examined DW 2 Onkar Nath Choubey. He had stated that Ajudhya Prasad had executed a Will in 1956 before him and had signed over the original document before him and he had witnessed it. The witness had read over Ex. D/1 and said that similar will was written. Over it Ajudhya Prasad had put his thumb impression and he had put his signatures as a witness. On account of old age, Ajudhya Prasad could not sign. The Registrar had gone to the house of Ajudhya Prasad for the registration of the Will. He had read over the Will to Ajudhya Prasad and to the witnesses. Ajudhya Prasad had put his thumb impression after hearing it and had accepted it. He too had signed and thumb marked over it. Besides this, there is nothing in his statement with respect to the proof of the will. He had read over the Will to Ajudhya Prasad and to the witnesses. Ajudhya Prasad had put his thumb impression after hearing it and had accepted it. He too had signed and thumb marked over it. Besides this, there is nothing in his statement with respect to the proof of the will. The word 'attested' has been defined in Section 3 of the Transfer of Property Act as follows :"attested".- "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of which has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. " ( 31 ) UNDER the aforesaid provision, it is necessary that the person relying upon the document must establish that the executant had signed or put thumb impression before the attesting witnesses and the attesting witnesses must sign in the presence of the executant. The portion which is relevant in the present case has been underlined by me above in the definition of the word 'attested. ' There is nothing in the statement of this witness to show that both the attesting witnesses had signed in the presence of the executant. There is nothing to show that the executant had signed before the witnesses. Consequently, the essential ingredients of the proof of the attestation is missing. There is another defect in the statement of this witness. In para 3 he has stated that the Registrar had gone to the house of Ajudhya Prasad for registration of the document and the document was read over by the Registrar to Ajudhya Prasad and to the other witnesses. After hearing, Ajudhya Prasad had put his thumb impression and accepted it. It, therefore, means that at the time when the document was executed, according to the witness, Ajudhya Prasad and the Registrar were present. After hearing, Ajudhya Prasad had put his thumb impression and accepted it. It, therefore, means that at the time when the document was executed, according to the witness, Ajudhya Prasad and the Registrar were present. In para 10, he deposed that the registration had taken place in the evening and at that time Ramswaroop Jain, Onkar Nath Choubey himself, Laturi Lal and Tehsildar Saheb along with his two clerks were present. When he reached there, the writing of the Will had already been written. To put his words, he stated :main Jab Pahucha To Basiyat Ka Lekh Likha Chuka Tha Hamare Samne Jo Tehsildar Saheb ne Usko Padhkar Ke Sunaya Aur Phir Ajudhya Prasad Ne Angutha Lagaya Aur Phir Un Logon Ne Tathya Ki Gwahi Dee. Etani hee Karyawahi Hamare Samne Hue Thee Ye Sab Karyawahi Ek Hee Baithak Mein Hue Thee. "in para 15, he deposed and volunteered that the original will was written a day before. Over it, Ajudhya Prasad had put his thumb impression and he had signed. The Tehsildar had gone the other day for registration. Again in para 16 he deposed that a day before registration when the document was written, he had gone to the house of Ajudhya Prasad and there the Will was written and Ajudhya Prasad had put his thumb impression and signatures. In the next para, he stated that on the first day, the Tehsildar had not gone. Thus to my mind his statement cannot inspire confidence. Apart from it, he has not stated about the manner in which attestation has to be proved as mentioned in the aforesaid definition. Consequently, his statement cannot go to show that the document alleged to be Will dated 13-11-1956 has been proved in accordance with law. ( 32 ) THE other statement on which reliance has been placed is the statement of DW 4 Laturi Lal, who is none-else than the son-in-law of original defendant Harboo Bai and it is this person who did everything for his benefit, as he has himself stated that Harbo Bai was a pardanaseen lady. He was married with her daughter about 32 years back. He further stated in para 8 that in 1956 at the time of execution of the second will, he was present. It was executed by Ajudhya Prasad in his house. He was married with her daughter about 32 years back. He further stated in para 8 that in 1956 at the time of execution of the second will, he was present. It was executed by Ajudhya Prasad in his house. Over the original will, Ajudhya Prasad had put his thumb mark and Onkar Nath Choubey (DW 2) had appeared as a witness. His statement cannot be said to be a proof of the execution of the Will because he is not an attesting witness. Rather he is the person who is vitally interested in the property because he claimed himself to be the son-in-law of Harbo Bai. The learned counsel for the defendant-respondent as said earlier also referred to the statement of DW 6 Jhaman Lal Sharma, who was examined after the remand of the case. He had made a publication (Ex. D/4a) in his newspaper 'hamari Aawaj' and he stated that through that publication, Ajudhya Prasad got the will dated 15-12-1949 cancelled. Neither the statement nor the publication can be said to be sufficient proof of the document in question. Thus, the evidence on record relating to the proof of the document alleged to have been executed on 13-11-1956 is not sufficient to say that the document has been proved in accordance with law. ( 33 ) APART from what has been stated above, even if for the sake of argument it is accepted, though the document has not been proved as said earlier, in that case too, it is for the respondent to remove all the suspicious circumstances in order to show that the document was bona fide executed by the executant. The learned counsel for the plaintiff-appellant submitted certain suspicious circumstances relating to the execution of the document and contended that it cannot be relied upon. The first contention in this regard of the learned counsel is that the document purports to have been executed on 12-11-1956 on a stamp paper, which was purchased on 17-1-1956 and the name of the power of attorney hold Bhagchand scored out and the name of Laturi Lal was inserted. It shows clearly that Laturi Lal, husband of Longa Bai and son-in-law of Harbo Bai, was taking part in creating document to grab the property of Ajudhya Prasad, even before the alleged execution of the Will (Ex. D/1 ). It shows clearly that Laturi Lal, husband of Longa Bai and son-in-law of Harbo Bai, was taking part in creating document to grab the property of Ajudhya Prasad, even before the alleged execution of the Will (Ex. D/1 ). My attention has been drawn by the learned counsel to the aforesaid document Ex. P/2. Perusal of Ex. P/2 shows that it was to be a mukhtarnama on a stamp paper which was purchased on 17-1-1956 by Ajudhya Prasad. The document purports to have been written in favour of Bhagchand Jain. After scoring Bhagchand, the words 'ko Laturi Lal Jain' appear to have been written in place of Bhagchand S/o Shripal. The original document purports to have been written in the name of Bhagchand Jain S/o Shripal, resident of Barohi Wale. The name of Laturi Lal appears to have been inserted as his father's name is also Shripal. As his residence was Parade Bazar, Bhind, the words ' Barohi Wale' appear to have been scored in the mukhtaranama. It appears that at the bottom of the document, there is a mention of this scoring which appears to have been made after the original scribe had closed the document, mentioned the year and his name. At this stage, I may also mention the statement of Daya Shankar in this regard. He had stated that mukhtarnama was written in favour of Bhagchand. He had not signed. He also stated that he did not score any name. The mukhtarnama after it was written was taken away. Thus it shows that the document must have been prepared in favour of Laturi Lal, who is none-else than the son-in-law of Harbo Bai. It purports to have been executed in the name of Laturi Lal on a day earlier than the alleged Will. It was executed after scoring the name of Bhagchand and his residence taking advantage of the fact that the parentage of Bhagchand as well as Laturi Lal appears to be the same. ( 34 ) THE other circumstance pointed out by the learned counsel is that Ex. P/22 bears the signature of Ajudhya Prasad and evidence on record too shows that Ajudhya Prasad used to sign in Mudiya language. The ground given by the witnesses for Ajudhya Prasad making thumb impression is that on account of old age of Ajudhya Prasad, he could not sign and as such he had put his thumb impression. P/22 bears the signature of Ajudhya Prasad and evidence on record too shows that Ajudhya Prasad used to sign in Mudiya language. The ground given by the witnesses for Ajudhya Prasad making thumb impression is that on account of old age of Ajudhya Prasad, he could not sign and as such he had put his thumb impression. ( 35 ) DW 4 Laturi Lal has stated in this connection that at the time when the Will was executed in the year 1956, Ajudhya Prasad was sufficient weak and was not ill. He specifically stated that Ajudhya Prasad was a literate person. He had seen him reading and writing. He was able to recognise his signatures. He further stated that the Tehsildar asked Ajudhya Prasad as to whether he would sign whereupon he stated that he had tremor in his hand and as such he will not sign. A perusal of Ex. D/1, i. e. the document alleged to have been executed by Ajudhya Prasad showed that it is a registered document, but there is nothing about the endorsement of the Registrar to show that he was not in a position to sign and hence thumb impression was taken. Thus, it is also a suspicious circumstance to show as to how the literate person, who could have signed, did not sign on the document, but put his thumb impression. The statement of Laturi Lal (DW 4) does not inspire confidence and he is the beneficiary as pointed out above. DW 2 Onkar Nath Choubey had not stated a word in this regard that Ajudhya Prasad had tremor in his hand. He simply stated that on account of old age of Ajudhya Prasad, he put his thumb impression. It is rather impossible to believe that a person on account of old age could not sign. Of course, if it is shown and established from the record that he was not in a position to sign due to some ailment or defect in his hand, the position may be otherwise, but there is no convincing evidence on record except the statement of Laturi Lal, who is highly interested who said that he had tremor in his hand. Under these circumstances, this fact constitutes an important circumstance against the execution of the Will by Ajudhya Prasad. Under these circumstances, this fact constitutes an important circumstance against the execution of the Will by Ajudhya Prasad. It is settled law that if the person who is to be benefitted by the execution of the Will takes active part in the execution of the document, it is very important suspicious circumstance against the execution of Will. DW 4 Laturi Lal is the son-in-law of Harbo Bai in whose favour the Will is alleged to have been executed. It is Laturi Lal (DW 4) who stands ultimately benefitted because according to the material on record, Harbo Bai had only a daughter, who was wedded to Laturi Lal as stated by Laturi Lal himself. He deposed that the second will which executed in the year 1956 was executed in his presence. It was executed at the house of Ajudhya Prasad. In the cross-examination, he deposed that Tehsildar had asked him to call two witnesses. He got down and then Onkar Nath Choubey (DW 2) met him, who was going by the side of the road. He called him. Ramswaroop was living in his neighbourhood. This means that both the witnesses were called by him on the saying of the Tehsildar. It has been mentioned earlier that DW 2 Onkar Nath Choubey, who is an attesting witness, initially stated that at the time when the Will was executed, the Registrar Saheb was also there, but later on in his cross-examination in para 16, he deposed that the document was written a day earlier than the date of the registration. He further stated in para 17 that on the first date Tehsildar Saheb had not come. It, therefore, goes to show that the statement of Laturi Lal that Tehsildar Saheb asked him to bring, two witnesses and then the document was executed, is wholly incorrect. The document (Ex. D/1) purports to have been executed on 13-11-1956 but it was registered on 14-11-1956. It shows an important suspicious circumstance against the execution of the Will as claimed by the defendant. ( 36 ) THERE is yet another circumstance on record and it also goes to show that the document dated 13-11-56 must have been manoeuvered by Latur Lal, who ultimately was to be benefitted. If we peruse (Ex. It shows an important suspicious circumstance against the execution of the Will as claimed by the defendant. ( 36 ) THERE is yet another circumstance on record and it also goes to show that the document dated 13-11-56 must have been manoeuvered by Latur Lal, who ultimately was to be benefitted. If we peruse (Ex. P/22), which was executed by Ajudhya Prasad and which had been proved and established to have been executed by him, we find that in the body of that document, he had specifically mentioned that he had no issue nor his brother had any issue. It was further mentioned that his brother had not taken any person in adoption. In para 6, he had mentioned that one Harbo Bai, widow of Mool Chand was living with him, who was being maintained by him and as such after his death, he had made provision of payment of Rs. 20/- p. m. to Harbo Bai from the income of dharmshala. It, therefore, goes to show that Harbo Bai was not claimed by him to be his brother's adopted son's wife. Rather he had mentioned that she was living with him and was being maintained by him. There is specific averment in this document that Panna Lal had not taken any person in adoption. The defendant had set up a case that Panna Lal had taken Mool Chand, who had died before the death of Panna Lal, but that case and the factum of adoption has not been established. The document Ex. D/1 in question shows a different version. In this document, the averment made is that his brother Pannal Lal adopted son Mool Chand, whose widow was Harbo Bai and who used to look after him. It, therefore, suggests that this averment is not correct. Had it been the correct averment, it must have found place in the earlier document of 1949. There is a specific averment in Ex. P/22 that Panna Lal had not adopted any person. When the document was executed, there was no dispute in that regard and there is no room for any suspicion about this averment in that document. It, therefore, suggests that the inclusion of the fact that Harbo Bai is the widow of the adopted son of Panna Lal appears to be highly suspicious. When the document was executed, there was no dispute in that regard and there is no room for any suspicion about this averment in that document. It, therefore, suggests that the inclusion of the fact that Harbo Bai is the widow of the adopted son of Panna Lal appears to be highly suspicious. Under these circumstances, it can safely be inferred that Laturi Lal must be the person instrumental in getting this document executed. ( 37 ) THE other circumstance is that there is nothing in the statements of the witnesses whatsoever to show that the alleged will was executed on the instructions of Ajudhya Prasad. Neither DW2 Onkar Nath Choubey nor DW4 Laturi Lal has stated that the instructions for execution of the Will was given by Ajudhya Prasad. It again suggests that the document must have been executed on the instructions of someone else and not by Ajudhya Prasad in any case. This inference can also be drawn from the fact that had Ajudhya Prasad instructed for the execution of the document, he would not have mentioned the aforesaid fact because in the earlier document he had specifically mentioned that his brother Panna Lal had not taken any person in adoption. ( 38 ) THE learned counsel for the appellants has pointed out another suspicious circumstance. He urged that Ajudhya Prasad got scribed the Will in the year 1949 and a power of attorney from D. S. Sharma on 12-11-56. The document dated 12-11-56 is Ex. P/2. As already discussed, it purports to have been written by Daya Shankar a day earlier. The document in question of 13-11-56 appears to have been scribed by someone else and not by Ajudhya Prasad. It will not be out of place to mention here that it is Daya Shankar Sharma who had executed the document in the year 1949 and Daya Shankar in his statement also stated that Ajudhya Prasad had got executed a mukhtarnama in the name of Bhagchand. It, therefore, suggests that Daya Shankar used to scribe the document of Ajudhya Prasad. There does not appear any reason as to why on the next day he would have got executed document from another scribe. It, therefore, constitutes another suspicious circumstance against the execution of the will. ( 39 ) IT may also be mentioned that according to the material on record Ex. There does not appear any reason as to why on the next day he would have got executed document from another scribe. It, therefore, constitutes another suspicious circumstance against the execution of the will. ( 39 ) IT may also be mentioned that according to the material on record Ex. P/2, which is claimed to be mukhtarnama in favour of Laturi Lal though as said earlier, was originally executed in favour of Bhagchand, appears to have been registered in the Office of the Sub-Registrar on 12-11-56. Thus, if a person was fit enough to go to the office of the Sub-Registrar on 12-11-56 to get the document executed, as claimed by the defendant, it does not appeal to reason as to why Sub-Registrar was called at home on 14-11-56 and the document is claimed to have been written on 13-11-56. There is document on record Ex. P/16c which purports to be an application on behalf of Harbo Bai addressed Adhyakash Nagarpalika, Bhind. In this document, she had prayed that her name be entered in place of her father-in-law, Ajudhya Prasad, who had died as she was the widow and sole heir in possession. There is nothing in this document to show that she ever claimed to be a legatee of Ajudhya Prasad under the will. Had it been a fact that there was any will in existence when that application was given, she must have mentioned that Ajudhya Prasad had executed the will in her favour. Again there is another document on record dated 27-12-57, which is a copy of an application for a Succession certificate moved before the Court of the District Judge, Bhind. In this document, also, there is no mention of the existence of any will. However, it appears that Ex. D/1 is a registered document. It can be inferred that it was in existence but as it was not a genuine document, but manufactured one, it was not mentioned in the application. Harbo Bai should not have applied for succession certificate but she must have come forward with an application for claiming a right under the Will if a bona fide will was in existence. But it was not done. It again shows a very important circumstance against the genuineness of the alleged Will. Harbo Bai should not have applied for succession certificate but she must have come forward with an application for claiming a right under the Will if a bona fide will was in existence. But it was not done. It again shows a very important circumstance against the genuineness of the alleged Will. ( 40 ) IN view of what has been stated above, it is clear that there are several suspicious circumstances which go against the execution of the Will by Ajudhya Prasad on 13-11-56 as claimed by the defendant. The document is surrounded by suspicious circumstances apart from the fact that it has not been proved. I, therefore, conclude that no reliance can be placed upon such a document. ( 41 ) HAVING concluded that the deceased Ajudhya Prasad was the owner of the property in dispute and he had executed the will (Ex. P/22) on 15-12-1949 and the Will claimed by the defendant alleged to have been executed on 13-11-56 has not been proved in accordance with law and is also surrounded by the suspicious circumstances, the natural consequence is that the will dated 15-12-1949 stands in existence. There is nothing on record to show that there was any other Will executed by Ajudhya Prasad. The Will alleged to have been executed by Ajudhya Prasad i. e. dated 13-11-1956 has not been proved and as such, it has no value. In the result, the will dated 15-12-1949 is the last will of the executant and the natural consequence of that Will have to flow. It has been mentioned above that under the Will of the year 1949 a Trust was created by Ajudhya Prasad and the property was given to the dharmshala, which was named by him as 'dharmshala Panna Lal Ajudhya Prasad'. The Public Trust was created under this document. It has to be taken that it came into effect after the death of the executor i. e. Ajudhya Prasad. I, therefore, hold accordingly. ( 42 ) BEFORE parting with the order, I may mention the technical argument of the learned counsel for the contesting-respondent. It has been contended that the present suit has been filed for setting aside the order of the Registrar and as such a notice under S. 80 I. P. C. was necessary. Reliance has been placed upon AIR 1977 SC 148 . It has been contended that the present suit has been filed for setting aside the order of the Registrar and as such a notice under S. 80 I. P. C. was necessary. Reliance has been placed upon AIR 1977 SC 148 . The contention of the learned counsel for the appellants is that this point was never raised either in the trial Court or in the appellate Court when the first appeal was preferred. It cannot now be raised for the first time in this Court. The learned counsel also argued that the notice is for the benefit of the State and the Registrar and both of them were absent. They did not put in their appearance. As such, this plea stands waived. It is pertinent to mention here that this argument has been raised by the learned counsel, appearing for the private party. It is settled law that a notice can be waived by the conduct of the party to whom notice is required. It was laid down in AIR 1958 SC 274 that a notice under this section is given for the benefit of the defendant and there is nothing to prevent him from waiving the notice or from being estopped by his conduct from pleading the want of notice. It was further held that where no objection is raised in the Court of the first instance, it cannot be pleaded for the first time in appeal or special appeal. Thus this argument has to be repelled on two grounds; firstly; the State and the Registrar have not put in contest and no such plea was taken on their behalf, the contesting-respondent, who is a private party, cannot be allowed to raise this point, and secondly, no such objection was raised either in the Court of first instance or even at an appellate stage when the case came up in this Court in appeal earlier. Consequently, I repel this contention of the learned counsel for the respondent. ( 43 ) UNDER Section 11 of the M. P. Public Trust Act, 1951, a provision has been made for public trust by Will. Consequently, I repel this contention of the learned counsel for the respondent. ( 43 ) UNDER Section 11 of the M. P. Public Trust Act, 1951, a provision has been made for public trust by Will. It has been provided that in case of the public trust which is created by a will, the executor of such will shall within one month from the date on which the probate of the will is granted or within six months from the date of the testator's death, make an application for the registration of the Trust in the manner provided in Section 4 of the Act. The provision of Section 4 shows that it relates for registration of public trust. Section 5 of the Act provides for an inquiry for registration. On the receipt of an application under Section 4, as provided under Section 4 or under Section 11 referred to above or upon an application made by any person having interest in a public trust or on his own motion, the Registrar shall make an inquiry in the prescribed manner for the purpose of certain points. Thus, even if no application as provided under Section 11 was moved and an application has been moved by a person having interest in a public trust, the Registrar is bound to make an inquiry. In the present case, the inquiry was made and the Registrar had given a finding vide order dated 14-7-69. I have held above that Will dated 13-11-1956 is surrounded by suspicious circumstances and has also not been proved in accordance with law, hence the finding that the Will dated 15-12-1949 stood cancelled by the will dated 13-11-1956 has to be set aside. The Will dated 15-12-49 subsists and is the last will and its consequences have to flow, resulting in the creation of a public trust in the name of 'dharmshala Panna Lal Ajudhya Prasad. ' Consequently, the appeal has to be allowed and the order passed by the Registrar is to be set aside. ( 44 ) IN the result, the appeal is allowed. The Judgment and Decree passed by the Court below as well as the Order of the Registrar are set aside. It is declared that the disputed property is a Public Trust. ( 45 ) UNDER the circumstances, the parties are left to bear their own costs. Appeal allowed. .