JUDGMENT :

NAVIN SINHA, J.

1. The appellant is aggrieved by the order allowing the second appeal preferred by the defendants. The High Court set aside the order of the First Appellate Court which had allowed the appeal of the appellant and set aside the order dismissing the appellants suit.

2. The plaintiff and defendant no. 2 are brothers. Defendant no. 1 was the wife of defendant no. 2. Respondent nos. 1 to 3 are sons of deceased defendant no. 1. Original plaintiff no. 2, another brother, has chosen not to pursue the appeal. The plaintiffs alleged that the original defendants obtained the sale-deed dated 02.03.1970 from their father Vaijai, since deceased, in favour of defendant no. 1, fraudulently, by deceit and undue influence because of old age and infirmity of the deceased and who was living with the defendants. The suit was dismissed. The appellate court allowed the appeal holding that the defendants had failed to discharge their burden of being in a position to dominate the will of the deceased by undue influence. The High Court reversed the order of the first appellate court and restored the dismissal of the suit.

3. Learned counsel for the appellant submitted that the decease