The central legal point established in the judgment is the interpretation and application of the provisions of the Indian Evidence Act, 1872, specifically regarding the presumption of genuineness of a Will more than twenty years old and coming from the custody of the beneficiaries.

N. K. Mehrotra, J.—This is second civil appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 21.8.1980 passed by the Civil Judge, Sultanpur in Civil Appeal No. 94 of 1979 arising out in Regular Suit No. 210 of 1977 decided by the Munsif North, Sultanpur by the judgment and order dated 9.2.1979.

2. I have heard Shri U. S. Sahai, holding brief of Shri H. S. Sahai for the appellants and Shri Mohd. Arif Khan for the respondents.

3. It appears that the plaintiff-respondents filed a suit for demolition, possession and injunction with respect to the land in dispute claiming ownership rights through Dukhi and Rameshwar. It is alleged that Dukhi and Rameshwar were real brothers and house situate towards north of the land in dispute and the plaintiffs are the daughter and son of the Rameshwar who pre-deceased Dukhi. According to the plaintiffs, Dukhi executed a Will in favour of the plaintiffs before the date of vesting with respect to the land in dispute and on the basis of Will they are owners of the land in dispute. It is alleged that the defendants have forcibly dispossessed the plaintiffs and the defendants have also raised constructions over the land in dispute after dispossessing the plaintiffs. Therefore, the suit has been filed for demolition, possession and injunction.

4. The case of the defendant-appellants is that Dukhi and Rameshwar were the only licensee of the house situated towards north of the land in dispute and in fact the house in dispute was constructed by the father of the defendants and Dukhi and Rameshwar were employees of the defendants. The plaintiffs never lived in the house in dispute nor the plaintiffs are the heirs in any manner nor they have been in possession over the house or the land in dispute. It was also pleaded in the written statement that out of the two plaintiffs the plaint has been signed only by one plaintiff Ram Sunder and Ram Sunder was not of sound mind and therefore, the suit filed by him without the next friend was also not maintainable. The defendants also challenged the validity and genuineness of the Will on the basis of which the plaintiffs claimed their title.

5. The trial court dismissed the suit of the plaintiff-respondents by holding that the plaintiffs have a different house in the village according to their own admission and the defendants are the owners of the house situate towards north of the land in dispute and also of the land in dispute and the plaintiffs have never been in possession over the land in dispute and have no title. It was also held that the Will was not found genuine.

6. The defendants went in appeal and the lower appellate court allowed the appeal and decreed the plaintiffs’ suit.

7. The second appeal was admitted on 27.10.1980 but no substantial question of law was framed. On 28.11.2003 after hearing both the learned counsel for the parties, this Court framed the following substantial question of law :

"Whether the Will deed dated 15.2.1952 executed by Dukhi on which the plaintiffs placed reliance was not proved according to law and the judgment passed by the first appellate court is vitiated on that ground?"

8. The other grounds taken in the memo of appeal were given up by the learned counsel for the appellants. So the arguments were heard on the aforesaid substantial question of law for deciding this appeal. The plaintiffs claimed their title on the basis of the Will executed by Dukhi. It is Ext. Ka-5 on the record of the lower court. It was executed on 19.2.1952. It is a registered Will. One of the attesting witnesses of this Will is Brij Mohan who has been examined by the plaintiffs as P.W. 4. He has given the statement that the Will was written in his presence and Dukhi had given the thumb impression in his presence and he had signed as attesting witness in the presence of Dukhi, the executant of the Will. He has proved his signature and thumb impression of Dukhi, the executant of the Will. Section 68 of th