Hon’ble Sudhir Agarwal, J.—Heard Sri Ramesh Rai, learned counsel for the appellants and Sri R.K.Tiwari, Advocate holding brief of Sri A.N.Bhargava, learned counsel for the respondents.

2. Following two substantial questions of law have been raised before this Court for adjudication:

“(1) the document dated 13.7.1970 which was unregistered was discarded for the purpose of the defence of the defendant appellants, could have been read against the defendant for the purpose of decreeing the suit when the said document was not accepted by both the Courts below to have proved the case of either of the parties.

(2) Whether the trial Court as well as the appellate Court were justified in proceeding to decree the suit on the basis of the weakness of the defence when the appreciation of the oral evidence according to the Courts below indicated contradictory evidence.”

3. Original suit No. 383 of 1972 instituted by Lachhaman seeking declaration that he is the sole owner of house in question described at the bottom of plaint and defendants have no right or concern with the same. He also sought injunction restraining defendants from interfering in peaceful possession, enjoyment etc. of property in dispute.

4. The case set up by plaintiff is that house was constructed by his brother Makhan, who died unmarried and issuless on 18th July, 1970. Makhan had executed a Will on 13th July, 1970 stating that plaintiff shall succeed the aforesaid house after his death. He also recognised possession of plaintiff.

5. The suit was contested by defendants No. 1, 2 and 3 namely Sheo Ram, Sheo Lal and Smt. Majia @ Maharajia, widow of Shiv Dulare by filing written statement and they pleaded that plaintiff never had any possession on the house in question and therefore no injunction can be granted.

6. The defendants No. 4 to 6 filed their joint written statement taking a stand similar to that of defendants No. 1 to 3 while defendants No. 7 and 8 filed their joint written statement supporting the case of the plaintiff.

7. Death of Makhan on 18th July, 1970 was admitted. Execution of Will by Makhan on 13th July, 1970 was pleaded in para 25 of written statement but not in favour of the plaintiff but Majia and defendants No. 1 and 2. It is said that plaintiff has prepared a forged and fictitious document claiming to be a Will executed by Makhan in his favour. The copy of the Will relied by defendants No. 1, 2 and 3 was exhibited before Trial Court as Exhibit A9 and that relied by plaintiff was marked as Exhibit A2. The Trial Court discarded the document Exhibit A9 relied by defendants on the ground that contents thereof show that it is not a Will but a Gift-deed and being unregistered, it is not admissible in evidence in view of Section 17 of Registration Act, since a gift-deed ought to have been registered and in absence of registration, it is inadmissible by virtue of Section 49 of Registration Act, 1908 (hereinafter referred to as “Act, 1908”). It has also been held that even if the document is not registered and therefore will not be admissible in evidence for the purpose of proving transfer of property thereunder but other contents of document still can be looked into, and for this purpose he relied on Ram Kishore v. Ambika Prasad, AIR 1966 All 515.

8. Exhibit A9 admits that house in question owned and belonged to Sri Makhan. It was a property solely owned by him. That being so, issue No. 2, whether house in question was ancestral property of Late Zandu stood negatived and has been so decided by both the Courts below.

9. Thereafter Trial Court proceeded further to hold that the disputed house would be inherited and succeeded by the plaintiff, the real brother of Makhan and being Schedule I category 2 successor vis a vis defendants who were children of brother and schedule I category 4 successor.

10. Issue No. 3 was in relation to possession and that was also decided in favour of plaintiff. The suit, thus, was decreed by trial Court vide judgment and