- (1.) This is defendant's second appeal against whom suit for possession was dismissed by the trial Court, but was decreed in appeal.
(2.) One Lekhu who was deaf and dumb was the owner of the suit property. He died on April 15, 1966. During his lifetime, he made a registered will, dated May 29, 1965, Exhibit D-5, in favour of Kishan Singh, defendant-appellant who was mentioned to be his sister's son therein. On the death of Lekhu, the suit land was ultimately mutated in favour of he defendant-appellant by the revenue authorities and he got into possession thereof. The plaintiff-respondents, Nachhattar Singh and others, filed the present suit for possession of the suit land as hey claimed themselves to be the collaterals of the said Lekhu, deceased. It was alleged in the plaint that the defendant-appellant in the plaint that the defendant-appellant in whose favour the said will was made was not the sister's son of Lekhu, deceased, and in any case, the suit land being ancestral in his hands, the deceased was not competent to make the will. Since the deceased had left behind no other heirs except the plaintiffs they are entitled to the suit property by way of succession. The suit was contested on behalf of Kishan Singh, defendant-appellant, who claimed himself to be the sister's son of Lekhu, deceased and, thus, a better heir to succeed to the state of Lekhu in preference to the plaintiffs. He claimed the suit property on the basis of the registered will also, made in his favour. On the pleadings of the parties, the trial Court framed the following issues :- 1. Whether Lekhu, deceased and the plaintiffs are governed by custom according to which a reversioner is entitled to contest an alienation of ancestral property by a male proprietor ? 2. If issue No. 1 proved whether the right of reversioner to contest an alienation of ancestral property. Does not extend to a will executed by the male proprietor? 3. Whether the land in suit is ancestral of Lekhu qua the plaintiffs? 4. Whether defendant 1 is the sister's son of Lekhu, deceased, and defendants 2 to 5, are the children of the sister of Lekhu? 5. If issues Nos. 1 and 3 are proved in plaintiffs' favour and issue No. 4, is proved in defendants', whether the plaintiffs excluded them in succession to the estate of Lekhu? 6. Whether the suit is speculative ? 7. Whether the plaintiff came in possession of the land in suit on the demise of Lekhu and was subsequently dispossessed by defendant 1?. 8. Whether Lekhu, deceased, executed a valid will in favour of defendant 1 while in sound disposing mind? 9. Whether defendant 1 is entitled to special costs under Section 35A, Civil P. C.? 10. Relief. On material issue No. 4, the trial Court found that Kishan Singh, defendant- appellant, had fully discharged the burden placed on him to prove that he was the son of the sister of Lekhu, deceased. Under issue No.8. which was hotly contested between the parties, it found that the will, in dispute, was a valid and genuine one. In view of these material findings, the plaintiffs' suit was dismissed. In appeal, the learned Additional District Judge reversed the findings of the trial Court on both these issues and consequently, decreed the plaintiffs' suit. Dissatisfied with the same, the defendant has come up in second appeal to this Court.
(3.) The learned counsel for the appellant, contend that Lekhu, deceased, who was deaf and dumb, was competent to make the will and the will. Exhibit D-5., was duly executed by him. The finding of the trial Court in this respect was correct and the lower appellate Court has reversed these arbitrarily and by misreading the evidence. it was also contended that from the evidence on the record both oral and documentary it has been proved beyond doubt that the defendant-appellant was the son of Shrimati Sardhi alias Malan the sister of Lekhu, deceased, but the lower appellate Court has reversed this finding illegally and by the wrong interpretation of the provisions of Section 50, Evidence Act. on the other hand, the leaned counsel for the respondents contended that the lower appellate Court, on the appreciation of the evidence, has rightly come to the conclusion that the will was not a valid one and that the defendant had failed to prove himself to be the sister's son of Lekhu, deceased. These being findings of fact could not be interfered with in second appeal.;