JUDGMENT : The legal representatives of the plaintiff in O.S. NO.3/1984, on the file of Munsiff, Banahatti, have challenged the judgment dated 29.03.2005 passed by the Fast Track Court, Jamakhandi, in R.A. No.74/1996. 2. Briefly stated, the pleadings putforth by the parties are that house property bearing R.B.T.M.C. No.204 situate in Division No.1 of Banhatti town (hereinafter referred to as ‘suit property’) belonged to one Gurappa Channaparappa Mandi (propositus). He had two wives, namely, Bhagawwa and Rachawwa. The plaintiff, Kallawwa and one Tangewwa are the daughters of Bhagawwa and the second wife Rachawwa begot four daughters, namely, Bhagawwa (defendant No.1), Janakibai, Revakka (defendant No.2) and Sanyawwa (defendant No.3). Both the wives of the propositus predeceased him. His second daughter through second wife, Janakibai had a daughter by name Kasturi. Defendant No.4, Anandappa is the husband of Kasturi. Janakibai died in the year 1963. The plaintiff pleaded that since the suit property belonged to her father, she was entitled to 1/5th share in the same. She claimed joint possession of the said property with defendants No.1 to 3 and alleged further that defendant No.5, claiming to be a purchaser of half portion of the suit property from defendant No.4 laid claim on the portion said to have been purchased by him although defendant No.4 had no right to sell that half portion to defendant No.5. The plaintiff stated that she had a preferential right under Section 22 of the Hindu Succession Act, to purchase the share that her sister Kasturi had in the suit property. In fact, the plaintiff filed a suit, O.S. No.91/1992 for permanent injunction against defendant No.4 to restrain him from selling his right, title or interest in any portion of the suit property to defendant No.5 and to restrain defendant No.5 from causing obstruction to her peaceful possession and enjoyment of suit property. In the said suit, defendant No.5 contended that he purchased half portion of the suit property from defendant No.4. He took up a contention in the said suit that on 29.09.1961, the propositus had executed a will bequeathing half portion of the suit property to his grand daughter, Kasturi and another half portion to one of his daughters, namely, Sanyawwa, defendant No.3. He took up a contention in the said suit that on 29.09.1961, the propositus had executed a will bequeathing half portion of the suit property to his grand daughter, Kasturi and another half portion to one of his daughters, namely, Sanyawwa, defendant No.3. This Kasturi executed a will in favour of her husband i.e., defendant No.4 on 31.05.1963 in respect of half portion of the suit property that had been given to her by her grandfather. Kasturi died in the year 1963, and therefore, the said will came into force and defendant No.4 became the absolute owner of that half portion. Then defendant No.4 sold that property to defendant No.5 through a registered sale deed dated 26.05.1973. Coming to know this defence taken by defendant No.5 in O.S. No.91/1992, the plaintiff wanted to amend the plaint, but her application was rejected. She withdrew that suit on 20.12.1983 seeking permission to file another suit. Giving these details, the plaintiff further pleaded that the propositus was not at all in a sound state of mind to execute the will in favour of Kasturi and defendant No.3. The will is a concocted document. Therefore, Kasturi and Sanyawwa did not acquire any right or title on the basis of the will. The sale deed executed by defendant No.4 in favour of defendant No.5 does not bind her interest. In this background, plaintiff claimed partition of the suit property. 3. Very strangely, defendant No.3, who is a beneficiary under the will made by her father denied the execution of will by her father and stated further in the written statement that her father was aged about 85 years at the time of his death and that he was totally bed ridden. He was not in a position to understand what he was doing. He had lost his sight and was hard of hearing. Therefore, he could not have executed a will on 29.09.1961 in her favour and Kasturi’s father. She also stated that the will dated 29.09.1961 was bogus and never intended to be acted upon. The suit property still stands in the name of her father in the municipal records. She has been paying house tax, electric charges, etc. with respect to suit property. She also stated that the will dated 29.09.1961 was bogus and never intended to be acted upon. The suit property still stands in the name of her father in the municipal records. She has been paying house tax, electric charges, etc. with respect to suit property. In the same way she also denied the execution of will by Kasturi on 31.05.1963 in favour of defendant No.4 and the right of defendant No.4 to sell half portion of the suit property to defendant No.5 by executing a sale deed on 26.05.1973. She stated in her written statement that she was also entitled to 1/5th share in the suit property. 4. The defendants No.4 and 5 filed joint written statement contending that the propositus, in fact had executed a will on 21.09.1961. The plaintiff had full knowledge of this will made by her father. The suit property belonged to propositus absolutely and that he had every right to execute the will. He was in a sound state of mind at that time. The will was acted upon. One of the beneficiaries under the will, Kasturi also made a will in favour of defendant No.4 on 31.05.1963. Defendant No.4 became the owner of half portion of the suit property after the death of his wife, and therefore, he sold that portion to defendant No.5 by executing a registered sale deed on 26.05.1973. These two defendants denied plaintiff’s right to claim partition as also her right under Section 22 of the Hindu Succession Act. 5. The trial Court dismissed the suit. The plaintiff’s appeal R.A.No.74/96 was dismissed by the Fast Track Court, Jamkhandi, confirming the judgment of the trial Court. Hence, this second appeal. 6. The substantial question of law upon which this appeal was admitted on 29.3.2006 is as follows: “Whether the Courts below were justified in holding that, though the original will is not produced, no attesting witnesses are examined to prove the said will, the will stands proved…….?” 7. In my opinion, this question of law needs slight modification, and therefore, actual substantial question of law that arises is “Whether the Courts below are justified in law in applying the provisions of Sections 58 to 60 of the Indian Registration Act, to hold that the execution of the will Ex.D1, by Gurappa Channaparappa Mandi on 29.9.1961 in favour of his daughter Sanyawwa and grand daughter Kasturi would stand proved?” 8. The learned counsel for the appellant–plaintiff, assailing the judgment of the Courts below argued that the will Ex.D1 was propounded by 4th and 5th defendants. It was for them to have proved the execution of the will by examining atleast one of the attestors. When an attestor was not available, the next course available to them was to prove the will according to Section 69 of the Indian Evidence Act (herein after referred to as ‘the Evidence Act’ for short). They should have summoned a person who was acquainted with the handwriting of the attestor and the executor to prove the will. They also did not produce the original will. Under the said will, one of the beneficiaries was the wife of defendant No.4, namely, Kasturi who inturn executed another will in favour of her husband in respect of the portion bequeathed to her. Defendant No.4 then sold the property to defendant No.5. Defendant No.3 refutes the execution of the will. Therefore, the original will should have been with defendant No.4 or defendant No.5. Non-production of the original should have been seriously taken note of by the trial Court and the First Appellate Court. Rather the trial Court, without noticing the fact that the execution of the will had not been proved, either according to Sections 68 or 69 of the Indian Evidence Act, referred to Sections 58 to 60 of Indian Registration Act (herein after referred to as ‘the Registration Act’ for short), which procedure was illegal. The learned counsel further argued that the said will should have been rejected noticing the suspicious circumstances. According to him, disinheriting the other daughters from succession to the property of the propositus, active participation by the beneficiaries, Non-production of the original will, nondisclosure of the will for quite a long time and defendant No.3 denying the very execution of the will –are all the suspicious circumstances which should have been considered by the Courts below for rejecting the genuineness the of will. Therefore, he argued that both the Courts below have committed an error in law. 9. The learned counsel for the respondents-defendants argued that on 19.8.1995, before commencement of recording of evidence, notice was issued to defendant No.3 to produce the original will. She did not produce it and stated that it was not in her custody. Therefore, he argued that both the Courts below have committed an error in law. 9. The learned counsel for the respondents-defendants argued that on 19.8.1995, before commencement of recording of evidence, notice was issued to defendant No.3 to produce the original will. She did not produce it and stated that it was not in her custody. This shows that defendant Nos.4 and 5 laid foundation for production of the secondary evidence. Considering this aspect of the matter, the trial Court permitted production of certified copy of the will which was marked as Ex.D1. He further argued that the propounders of the will could not examine the attestors because they were not alive. Even the scribe was also not alive. If the trial Court, noticing these circumstances and applying the provisions of Sections 58 to 60 of the Indian Registration Act, held that the execution of the will would stand proved, there was nothing illegality in it. Whenever it is not possible to examine an attastor because of his non-availability, making a reference to Sections 58 to 60 of the Indian Registration Act, if the will is registered, is one of the recognized modes of proving a registered document including a registered will. The Courts are bound to give finding regarding execution of the will by applying the law. According to him, there was no need to have recourse to Section 69 of the Indian Evidence Act, if due presumption can be drawn regarding execution of the will. In this case, the plaintiff is not in a position to take a stand that the propositus had not executed the will and that the will produced as per Ex.D1 is concocted or bogus, because of one reason that he himself had admitted about the execution of the will by the propositus in the earlier litigation. There he filed an application for amending the plaint and in the affidavit filed along with that application, he stated that the propositus had cancelled the will. This statement found in the affidavit shows that will had been executed by the propositus and it had been cancelled according to him. So, the onus was on the plaintiff to prove that will had been cancelled. The trial Court has noticed this aspect. This statement found in the affidavit shows that will had been executed by the propositus and it had been cancelled according to him. So, the onus was on the plaintiff to prove that will had been cancelled. The trial Court has noticed this aspect. The learned counsel also referred to Section 89 of the Indian Evidence Act, to argue that since defendant No.3 was called upon to produce the original will and that she did not produce it, the Court could presume that the will was attested and executed in the manner required under law. He further argued that if in these circumstances, the trial Court and the First Appellate Court came to the conclusion about due execution of the will, it cannot be said that their judgments suffer from illegality. 10. The trial Court dismissed the suit by recording the findings that the will executed by the propositus in favour of Kasturi and defendant No.3 would stand proved not withstanding Non-production of the original will and non-examination of attesting witnesses. In regard to Non-production of the original, the trial Court believed the explanation afforded by defendant Nos.4 and 5 that the original will would have been produced by them when they based their claim on that will. There was no need to suppress it. Defendant No.3 was also a beneficiary under the will and that she should be having its custody, as it was she who was living with her father during his last days. When she said that she did not have the will with her and denied its very execution being a beneficiary to support the plaintiff, the stand of defendant Nos.4 and 5 appeared to be probable, and therefore, accepted the production of certified copy of the will which has been marked as Ex.D1. The trial Court also observed that for production of secondary evidence, it was not necessary to prove the loss or non-availability of the original in its absolute terms. Reliance was placed on the judgment of Punjab and Haryana High Court in the case of Rajkumari Vs. Shri Lal Chand {1994 (1) CCC 477} to take this view. 11. The trial Court also observed that for production of secondary evidence, it was not necessary to prove the loss or non-availability of the original in its absolute terms. Reliance was placed on the judgment of Punjab and Haryana High Court in the case of Rajkumari Vs. Shri Lal Chand {1994 (1) CCC 477} to take this view. 11. In regard to proving the execution of the will, the findings are that when both the attestors and the scribe were found to be dead, recourse could be had to Sections 58 to 60 of Registration Act, and that presumption under Section 90 of the Evidence Act could also be drawn as the impugned will was a 30 year old document. The trial Court referred to a judgment in the case of Gurbux Singh and Others Vs. Bishan Dass ‘Chela’ Kaul Dass and others ( AIR 1970 P&H 182 ), where it has been held that certificate issued by the Registrar is to some extent evidence of the execution of the document, and admission of signature before the Registrar can form an evidence of the document. It also referred to some other decisions (i) Hanumappa Bhimappa Koujageri Vs. Bhimappa Sangappa Asari (ILR 1996 KAR 1517), (ii) Shiv Dass and others, Vs. Devki and others, ( AIR 1978 P&H 285 ) (iii) Kunhamina Umma and others, Vs. Special Tahsildar and others (AIR 1977 Kerala 41) to hold ultimately that since certification of the Sub-Registrar is available on the will, it could be inferred that the executor himself presented the document for registration and that the said certificate would suffice the proof with regard to execution. The trial Court also gave a finding that the will was free from suspicious circumstances, and therefore, dismissed the plaintiff’s suit. 12. It is unnecessary to narrate the entire reasoning given by the First Appellate Court, as it has confirmed the judgment of the trial Court. 13. The substantial question of law needs to be answered in the light of the arguments canvassed by the learned counsel. In the case before this Court, there are two wills. Disputed will is the one said to have been executed by the propositus on 29.9.1961. The second will was executed by Smt.Kasturi in favour of her husband, i.e. defendant No.4. The substantial question of law needs to be answered in the light of the arguments canvassed by the learned counsel. In the case before this Court, there are two wills. Disputed will is the one said to have been executed by the propositus on 29.9.1961. The second will was executed by Smt.Kasturi in favour of her husband, i.e. defendant No.4. If the first will is held to have been executed by the propositus and free from suspicious circumstances, the second will gets validated without requiring its proof with regard to its execution in the given set of circumstances. 14. In regard to proving a will, the law is well settled and there have been numerous decisions on that point. Will is generally a subject matter of dispute, as it comes into force only after the death of the testator; and probably for this reason, the strict requirement of law is to examine atleast one attesting witness according to Section 68 of the Evidence Act. The burden of proof is on the propounder of the will. It is very much necessary that the will must be proved by examining an attesting witness and if none of the attestors is available, Section 69 of the Evidence Act prescribes a procedure to be followed. Drawing of presumption under Section 90 of the Evidence Act must be last resort if execution of the will can be proved neither under Sections 68 nor 69 of the Evidence Act. The propounder, having found it impossible to prove the execution of the will by following the procedure as provided under Section 69 of the Evidence Act, can also rely upon the certificate of registration under Section 60 of the Registration Act, if the will is registered. The registration of the will does not create any presumption of its genuineness nor the Registrar’s signature on the document can be treated on par with that the attestor’s signature. The Supreme Court in the case of M.L.Abdul Jabbar Sahib Vs. H.Venkata Shastri and Sons and Others ( AIR 1969 SC 1147 ), has held as below: “10. The Indian Registration Act, 1908 lays down a detailed procedure for registration of documents. The registering officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant: Section 34(3). The Indian Registration Act, 1908 lays down a detailed procedure for registration of documents. The registering officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant: Section 34(3). He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution, [Section 35(1)]. The signatures of the executant and of every person examined with reference to the document are endorsed on the document, (Sec.58). The registering officer is required to affix the date and his signature to the endorsements (Section 59). Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under Section 59 of Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature” 15. Here, the trial Court applied Sections 58 to 60 of the Registration Act to draw inference about due execution of the will. The propounders of the will stated that the attestors and the scribe were dead. For this reason, proof of will as provided under Section 68 of the Evidence Act was not possible. Rightly the lower Courts below came to this conclusion. But, before referring to Sections 58 to 60 of the Registration Act, the trial Court did not examine whether the propounder had taken recourse to Section 69 of the Evidence Act. In that way, the Courts below are not legally justified to straight away referring to Sections 58 to 60 of the Registration Act, and therefore, substantial question of law needs to be answered negatively. This case can be examined from another angle also. The learned counsel for the respondent referred to Section 89 of the Evidence Act which reads as below: “89. Presumption as to due execution, etc., of documents not produced-The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.” 16. The circumstance put forward is that defendant No.3 was called upon to produce the original will, as she was also a beneficiary under the will and it should have been with her. The circumstance put forward is that defendant No.3 was called upon to produce the original will, as she was also a beneficiary under the will and it should have been with her. There was no reason for the propounders to have not produced the will before the Court, if really they had custody of it, especially when they based their entire defence on that will. When defendant No.3 did not produce it, and said that she did not have it, besides repudiating the will, her conduct appeared to be unconscionable; she might have taken such a stand to deprive defendant No.4 of the property as according to her he was a stranger to the family. This is the observation of the First Appellate Court, and it is not improbable also. Therefore, when defendant No.3 did not produce the will having had its custody, as it could be supposed, the presumption under Section 89 of the Evidence Act as regards attestation and execution of the will can be drawn. 17. There is another circumstance, which has been noticed by the Courts below. It is admitted fact that the plaintiff had filed a suit, O.S.No.91/1982 for permanent injunction against defendant Nos.4 and 5 in the present suit under appeal. In that suit, having noticed these defendants relying on the will dated 29/9/1961, made an attempt to amend her plaint to state that the said will had been cancelled. The Court did not permit that amendment, but not withstanding that, it provides a ground to infer that the plaintiff had the knowledge about execution of a will by her father. Here in this case, the plaintiff may have stated that the said will is concocted, but her previous statement in her application made in the earlier suit not only precluded her, but also PW.1, a legal representative of the plaintiff from taking contrary stand. The trial Court has observed that the previous statement could not be duly proved through the plaintiff by bringing that statement to her notice as she was dead by the time recording of evidence commenced. But, such requirement as to bring to notice of the plaintiff or P.W.1 was not necessary since in the plaint itself, it has been specifically stated that the plaintiff wanted to amend her plaint in her previous suit. But, such requirement as to bring to notice of the plaintiff or P.W.1 was not necessary since in the plaint itself, it has been specifically stated that the plaintiff wanted to amend her plaint in her previous suit. This averment in the plaint amounts to an admission under Section 58 of the Evidence Act and reasonable inferences may be drawn that it was within the knowledge of the plaintiff that her father had executed a will which had been cancelled according to her. The plaintiff or her legal representative should have proved the cancellation of the will if at all the suit had to be decreed in their favour. This having not been done, the specific defence taken by defendant Nos.4 and 5 becomes acceptable. Therefore, in the set of circumstances of this case, there is preponderance in the case put forth by the defendant Nos.4 and 5, although execution of the will has not been proved in accordance with Section 69 of the Evidence Act. 18. As regards suspicious circumstances, listed out by the appellant’s counsel during his arguments, it has to be stated both the Courts below held on facts that the will is free from suspicious circumstances. The conduct of third defendant in disowning the will in her favour has been discussed. The First Appellate Court finds collusion between her and the plaintiff. The learned counsel for the appellant has failed to demonstrate that the fact finding Courts have failed to properly appreciate the evidence. Those findings on facts cannot be interfered with. In the result, this appeal fails, and therefore, appeal is dismissed with cost.