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(1) The L. Rs. of the original plaintiff (Bulaqidass) are the appellants. Bulaqidass was one of the three sons of Joti Parshad, who died in 1918; the two other brothers of the plaintiff were Ballumal (who died in 1947) and Madho Parshad (who died in 1950) leaving no issue but only his widow Shanti DeVi, (who also died in 1956). The present suit was instituted by Bulaquidass with reference to the suit house in June, 1957 for effecting a partition and putting him in separate and exclusive possession of 2/3rd share on the footing that the plaintiff was in joint possession of the suit property along With defendants No. 1 and 2 (the sons of Ballumal). Bulaqidass died during the pendency of the suit after giving evidence and his L. Rs. were brought on record as supplementary plaintiffs; one of the sons of Bulaqidass (0m Prakash) was imp leaded as a third defendant. A specific allegation was made in the plaint that even though the suit house had not been partitioned by metes and bounds for better and convenient enjoyment, the three brothers including the plaintiff started living in different portions of the house after the death of Joti Parshad. In the written statement filed by the second defendant the above-said allegation concerning joint possession was denied and a plea was taken that since the original plaintiff was not in joint possession of the suit property he had no locus standi to sue the persons who were in possession for partition. It was alleged that the property was the self-acquired property of Joti Parshad in respect of which he had executed a will on 17-2-1918 giving the same to his widow smt. Pato for her life-time and after her death exclusively to Ballumal (father of the second defendant) it was stated that the original will had been scribed by the late Munshi Abdul Wahab, (deed writer) and it was entered as Sr. No. 89 in his register. The photostat copy of the entry was submitted along with the written statement, alleging that the original will was "not traceable and has not been found" in spite of best efforts. It may be noticed that no mention was made about who had attested the said will. It was further contended that the plaintiff could not in any case claim more than one third share in the property.

(6) D. W. I (Syed Ahmed Chishti) is the brother of Abdul Wahab, who is stated to be the deed writer who wrote the said will. The original deed register was produced and proved by D. W. 1. The concerned entry which has been marked as D. W. I/I is in the handwriting of Abdul Wahab. The register itself contained the seal of the Deputy Commissioner which has been relied upon in proof of the genuineness of the said register. The relevant entry concerning this will (bearing Sr. No. 89) in the original register bears a thumb mark and under-neath thumb mark it has been written that it was that of Joti Parsbad; the said writing is, according to D. W. I, in the handwriting of the deed writer, Abdul Wahab. The translation of the said entry has been printed at page 124 and contains the following remarks in column 7 :-

(8) One is left with the feeling that advantage has been taken of the fact that no attesting witnesses have been mentioned even in the extract in the deed writer's register. The name of no attesting witness having been mentioned in the written statement, the second defendant and his witnesses have been left free to give any version they chose concerning who were present at the time of the execution of the alleged will or who attested the same.

(9) The learned Subordinate Judge was rightly not impressed by D. W. 9 (Durga Parshad) who stated that the alleged will (along with other documents) was entrusted to him for safe custody for only about 15 days in the year 1942, which gave him the occasion for going through the contents of the will.

(16) The presumption under Section 90 of the Indian Evidence Act cannot be invoked in respect of the entry in the deed-writer's register. Despite the thumb impression of the testator being stated to have been taken to the extract of the alleged will in the said register, it would really amount to nothing more than a copy of the original will. The presumption under Section 90 cannot be extended to a copy; in other words, it would only apply to the original when it is produced from proper custody. This was so held by the Supreme Court in Kalidindi Venkata Subbaraja v. Chintalclpati Subbaraju . The contents of the alleged will given in the deed-writer's register cannot at best amount to anything more than the same being a summarised copy of the alleged will; the mere fact that the deed-writer's register itself is more than 30 years old does not warrant the presumption of due execution or attestation of the said will.