IMPORTANT POINT
In the event of there being perversity in findings of First Appellate Court, Court while decreeing a second appeal can, after reappraisal of evidence, substitute its findings.

Siddhartha Varma, J.—This is a defendant’s second appeal against the judgment and decree dated 29.7.1985 passed by the Civil Judge, Ballia, in First Appeal No. 45 of 1983 whereby the appeal of the plaintiff respondent against the judgment and decree dated 17.1.1983 in Original Suit No. 340 of 1981 was allowed and the suit was decreed.

2. Briefly stated, facts of the case are that the predecessor in interest of the plaintiff Mahaveer, who had five sons, had various properties which included the property in question. The pedigree of the family of Mahaveer is reproduced here as under:-

3. Three out of the five sons of Mahaveer, namely, Chhotey Lal, Maduban Prasad and Mahadev Prasad died issue-less. Hari Prasad had three sons, namely, Badri Narain, Dwarika, and Kanhaiya Lal, whereas Ram Chandra Prasad had six sons, namely, Panna Lal, Ghanshyam Das, Awadh Bihari, Poonam Chand, Jagat Narain and Udhau Ji. After partition took place in the family, it is alleged, that the house in question fell in the share of the plaintiffs i.e. in the share of Awadh Bihari and his sons. As per the plaint allegation Smt. Bela Kunwari, the widow of Chhote Lal the uncle of the plaintiff no. 1 and the grand-uncle of the Plaintiff Nos.2, 3, 4 and 5 was given life interest by way of maintenance in the property in question by the joint family. Further allegation was that after the widow died, the ownership of the property in question reverted to the plaintiffs and they became absolute owners of the property in question. However, as Bela Kunwari had inducted the defendant as a licensee, after her death, the plaintiffs had also permitted the defendant to continue as licensee and when the plaintiffs required the house in question for their own living they cancelled the license and gave the defendant a notice for eviction. When the defendants did not vacate the premises the plaintiffs filed the suit in question which was numbered as Suit No. 340 of 1981 for the relief of eviction and for damages. The defendant contested the suit and alleged that he was not a licensee but was an absolute owner in as much as Bela kunwari who herself was an absolute owner of the property in question after the death of her husband, willed the property on 6.5.1973 to the father of defendant/appellant, Sri Damrilal Agarwala. Upon the death of Damrilal Agarwala, the property was inherited by the appellant/defendant being the son and the natural heir of Damrilal Agarwala.

4. The trial court dismissed the suit and found that Bela Kunwari as per Section 14 (1) of the Hindu Succession Act, 1956, became the absolute owner of the property and on 6.5.1973 she could have willed the property in question to the father of the defendant Sri Damrilal Agarwala. The trial court on the basis of the testimony of D.W. 1 Badrinarain who was the attesting witness of the will and of D.W. 3 Vashisht Muni who was the scribe of the will found that the will was a genuine one and upon the death of Bela Kunwari the property was inherited by the defendant’s father and thereafter by the defendant.

5. The First Appellate Court in Appeal No. 45 of 1983, though found that Bela Kunwari was the absolute owner of the property in question did not agree with the finding of the trial court regarding the will dated 6.5.1973 that it was a genuine will and after finding that it was forged decreed the suit.

6. The Second Appeal has been filed against the judgment and decree dated 24.7.1985 and was admitted on the following question of law.

(1) Whether the receipt of 1945 relied upon by the plaintiff and disputed and denied by the defendant could be presumed to be correct without forma