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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 properly in suil is a public trust and the Registrar be directed to register it as a Public Trust. He claimed that mere was a house No. 13 in Municipal Halka No. 3, Parade Bazar, Shriganj. Bhind, detailed in para I 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. Pyarc Lal Jain, R/o. Bhind, MohallaShriganj. Hence Ayodhya Prasad went in possession. On 15-12-1949, Avodhya 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, Bahu 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. 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.

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. 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 hy 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. He had no knowledge as to what property was included in the will dated 15-12-1949. He staled 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 slated that in the year 1949 neither Ajudhya Prasad nor any other wilness signed before him Thus, his statement does not go to prove the Will at all what to say in accordance with law.

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 Laluri 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 12-1 1-56. Thus, if a person was fit enough to go to the office of the Sub-Registrar on 12-11-56 to gel the document executed, asclaimed 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/I6C 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 noticing 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 anapplicaiion 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 he 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 claimmg 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.