Hon’ble Shiv Charan, J.—The instant second appeal has been instituted against the judgment and decree dated 28.9.2007 passed by Addl. District Judge Court No. 2 Jaunpur in Civil Appeal No. 76 of 1995, Inder (deceased) Shiv Shankar and others v. Gujrati and others. By the impugned judgment and decree the appellate Court dismissed the appeal of the appellant with cost.

2. The present appellant instituted Original Suit No. 221/87, Inder v. Gujrati for cancellation of sale deed dated 6.11.86 executed by defendant Gujrati in favour of defendant No. 2 Kailash. A pedigree was given in the plaint and according to this pedigree Buddhu Yadav was recorded Bhumidhar of the property described at the foot of the plaint. Defendant No. 1 Smt. Gujrati is the wife of Buddhu Yadav. That the plaintiff Inder was looking after the welfare of Buddhu Yadav and he was living with the plaintiff Inder. And that Buddhu was extremely happy with the service rendered by the plaintiff and his sons and it was heartiest wish as desired by Buddhu Yadav that after his death his property must be looked after by the plaintiff. With this intention Buddhu Yadav executed a will dated 28.12.80 in favour of the appellant. That after the death of Buddhu Yadav the plaintiff is in possession of the property in dispute but as a matter of inheritance the name of widow namely, Gujrati was recorded in the Revenue record. But Smt. Gujrati has no right to execute the sale deed of the property in dispute in accordance of the terms of the will. The right was given to Gujrati for her life time without transferable rights. But Gujrati illegally executed a sale deed on 6.11.1986 in favour of Kailash Nath and sale deed was against the terms and conditions of the will dated 28.12.80 hence this sale deed is illegal, null and void. That Gujrati has no right and title to transfer the property in dispute.

3. The suit was contested by the defendants, written statement was filed and the allegations of the plaint were denied. It has further been admitted that Buddhu Yadav was the Bhumidhar in possession of the property in dispute. That Kali Deen father of Buddhu Yadav had one daughter also and she was married with Ganesh Yadav of Navada. Kailash Yadav defendant No. 2 is the son of the daughter of Kalideen father of Buddhu Yadav. That partition took place of the property in dispute from Inder much earlier in life time of Buddhu Yadav. All the co-sharers had separate living and earning. Agriculture was also separate of each of the co-partner. It is wrong to allege that Buddhu Yadav alongwith defendant No. 1 lived with Inder and Inder plaintiff with his sons was looking after the welfare of Buddhu Yadav and defendant No. 1 and that Buddhu Yadav due to his heart felt feeling wanted to deliver the property to Inder and his sons. That the will dated 28.12.80 is a forged document. After the death of Buddhu Yadav defendant No. 1 Gujrati has inherited the property. Defendant No. 1 was fully entitled to execute the sale deed of the property in dispute and the sale deed was duly executed in consideration of money. Both the parties produced the evidence in support of their allegations and the trial Court framed eight issues for the decision of the suit and after considering the evidence of the parties the suit of the plaintiff-appellant was dismissed by the trial Court and Civil Appeal No. 76/95 was also dismissed by the Addl. District Judge, Jaunpur and thereafter the present second appeal has been instituted.

4. I have heard learned Counsel for the appellants and perused the judgment of the Courts below and also the pleadings of the parties and other documents filed on record.

5. It has been argued by learned Counsel for the appellant that the Court below recorded the finding on the basis of surmises and conjectures. This observation of the Court below is wrong that the will in question has not been proved according to the provision of the Evidence Act and even the scribe of the will was not produ