JUDGMENT J.S. Gupta, Member. - Before the second appeal was taken up for hearing, the learned counsel for the appellant moved an application, praying that the file of case No. 9 under Section 145, Cr.P.C. Hari Singh v. Genda, decided on June 19, 1974, which had been summoned and perused by the courts below, be summoned and perused. According to him, this file would disclose certain important points involved in the case. The learned counsel for the respondents submitted that it was not at all necessary to call for this file. It has been accepted by the counsels for the parties, when arguments were heard on the question of summoning of the aforesaid file, that it would be presumed that there was over-writing in the original death register concerning the death of Smt. Bramho Devi. In view of this, the summoning of the aforesaid file is not necessary. 2. This is a second appeal against the Judgment and decree of the learned Additional Commissioner, Meerut Division, in a case under Section 229-B/209 of the U.P.Z.A. and L.R. Act. 3. Briefly stated, the facts are that Hari Singh, plaintiff instituted the suit, alleging that one Surjeet was the previous tenure holder of the land in suit; that he died in November 1972; that Baru the brother of Surjeet, succeeded Surjeet, and the (Baru) executed a registered sale deed of the land in question in favour of Hari Singh on January 8, 1973; and that the plaintiff is in possession. It was further alleged that later on Baru incited Raghubir Singh and others to moved a mutation application on January 10, 1973, and they claimed succession as maternal grandsons of the deceased, Surjeet. The plaintiff pleaded that Smt. Brahmo Devi, who was daughter of Surjeet had died in 1964 during the life-time of Surjeet. The plaintiff sought for a declaration that he was Bhumidhar of the land in dispute, and in the alternative for restoration of possession. Raghubir Singh and Ramesh Chandra, defendants Nos. 1 and 2 contested the suit on the ground that Baru was not the tenant that Surjeet had made a Will in favour of Smt. Brahmo Devi in 1963, and the defendants are the successors-in-interest of Smt. Bramho Devi. They pleased that Smt. Bramho Devi had died on January 2, 1973. The defendants also claimed to have acquired rights by being in adverse possession. They pleased that Smt. Bramho Devi had died on January 2, 1973. The defendants also claimed to have acquired rights by being in adverse possession. The trial court held that Smt. Bramho Devi had died in 1964, and, therefore, Raghubir Singh etc. did not inherit anything, and that the sale deed executed by Baru in favour of Hari Singh on January 8, 1973 was valid. It decreed the suit. On appeal, the learned Additional Commissioner reversed the findings of the trial court, and dismissed the suit. The plaintiff has now come up in second appeal before the Board. 4. I have heard the learned counsel for the parties. The learned counsel for the appellant submitted that Baru, after executing the sale deed, colluded with the other side, and brought a suit for cancellation of the sale deed in civil court, which was dismissed in default. According to him, Genda Singh (father of the present respondents) who appeared as a witness in the present case, stated that when suit in the civil court was filed, he had gone with Baru, and in the plaint of that suit, it had been averred that Smt. Bramho Devi had died in 1964. He submitted that the fact that Smt. Bramho Devi did not file any application for mutation after the death of Surjeet was a strong circumstance to reveal that she had predeceased her father. He stated that Genda Singh said that he had moved an application for mutation but no copy of that application, was ever brought on record. he contended that in the mutation application, moved on behalf of the present respondents on January 10, 1973, right had been claimed through Surjeet, and there was no mention at all that Surjeet had been succeeded by his daughter, and after her death, rights devolved on the respondents. He argued that brother gets preference over daughter's sons in terms of Section 171 of the U.P. Z.A. and L.R. Act. and hence the respondents were not entitled to get any rights as heirs of Surjeet. According to him, the respondents could get rights only through their mother, but they failed to prove that there was any will in favour of their mother, and that she was alive on the date of death of the testator. and hence the respondents were not entitled to get any rights as heirs of Surjeet. According to him, the respondents could get rights only through their mother, but they failed to prove that there was any will in favour of their mother, and that she was alive on the date of death of the testator. He stated that one of the respondents appeared in the witness-box, and deposed that he was 24 years old, and that their mother, Smt. Bramho Devi, had died 4 years ago. He stated that Bhakhtawar's statement before the mutation court and in the present suit was different, and he could not explain the discrepancy except saying that he did not remember the facts. He vehemently argued that from the sequence of events, it is quite obvious that Smt. Bramho Devi had predeceased Surjeet, and no rights could accrue to the present respondents in presence of Baru, the brother of the deceased. The pleaded that the lower appellate court did not take the voters list and Kutumb register into consideration and its findings are palpably incorrect. He said that the instance of Lakhi quoted by the learned lower appellate court, stood on different footing, as he had shifted to Haryana. He argued that the theory of Will, setup by the respondents, was not proved. According to him, original Will has not been brought on record, and loss of the original has not been established. He said that in these circumstances, it would be presumed that the original will had been destroyed by the propounder. He cited 1977 A.W.R. page 644. He argued that none of the attesting witnesses had been produced to prove the Will. he referred to Section 68 Evidence Act. He said that the register of the Registration Department, which contained the thumb impressions signatures of the attesting witnesses, was not summoned, and hence it will be presumed that the will had not been proved. He argued that no rights would accrue to the respondents if Smt. Bramho Devi had died during the lifetime of her father, Surjeet. He urged that the Judgment of the lower appellate court is no Judgment in the eyes of law, and it has, while writing a Judgment of reversal, upset the findings of the trial court without recording any cogent reasons. He urged that the lower appellate court has wrongly dismissed the suit. 5. He urged that the Judgment of the lower appellate court is no Judgment in the eyes of law, and it has, while writing a Judgment of reversal, upset the findings of the trial court without recording any cogent reasons. He urged that the lower appellate court has wrongly dismissed the suit. 5. The learned counsel for the respondents submitted in reply that even if Smt. Bramho Devi had died during the life-time of Surjeet, her sons would get rights. He cited Section 109 of the Indian Succession Act to support this argument. He further stated that the Will was not denied in the plaint, and, while in para 24 of the Written Statement it has been specifically alleged that Surjeet had executed a Will in favour of his daughter in 1963, no replication was filed by the plaintiff to controvert it. According to him, as the execution of the Will was a position which had not been challenged, the defendants were not required to prove its execution or attestation. In this connection, he referred to the Judgment of the trial court, which reads as follows:- "Jahan tak Surjeet dwara Bramha Devi ke haq main washiyat ke likhe Jane ka prasna hai is tathya ko Badi dwara challenge nahin kiya Gaya hai." He also referred to the observation of the learned lower appellate court made in para 4 of its Judgment to the effect that "Admittedly, Smt. Bramho Devi is the daughter of Surjeet deceased, who executed Will in favour of Smt. Bramho Devi regarding the property and the Will in favour of Smt. Bramho Devi regarding the property and the Will is registered instrument." He stated that the execution and attestation of the Will has been proved by Khacheru, D.W. 3, who was one of the attesting witnesses, and clearly deposed that Ram Swarup, one of the attesting witnesses, had died, and another attesting witness was invalid and incapacitated. According to him D.W. 4 Genda Singh, had proved the loss of the original Will. He referred to Section 65-C of the Evidence Act, and argued that the legal requirements had been fulfilled in the present case. He cited A.I.R. 1963 Punj. 208, and A.I.R. 1957 Punjab page 146. In the former, it was held as follows:- "So far as the execution of the original Will was concerned, it was proved by the endorsement of the Registrar. He cited A.I.R. 1963 Punj. 208, and A.I.R. 1957 Punjab page 146. In the former, it was held as follows:- "So far as the execution of the original Will was concerned, it was proved by the endorsement of the Registrar. That endorsement left no manner of doubt that the Will was executed by the testator to whom it was read over, and who admitted its contents to be correct. There, a certified copy of the Will would be admissible in evidence in view of the fact that the original was not forthcoming, and was being withheld by the persons who were interested to deny it." Similar view taken in the latter case. He referred to Section 109 of the Indian Succession Act, and stated that the Will will not lapse if the legatee died during the life-time of the testator, and the legatee had lineal descendants to succeed him. He cited 1935 Oudh page 437, and 1947 Oudh page 45. He also argued that finding of fact recorded by the lower appellate court that Smt. Bramho Devi died after Surjeet is based on an appreciation of the evidence on record, and is not liable to be challenged or disturbed in second appeal. According to him, the gap between the deaths of Smt. Bramho Devi and Surjeet was so short that the respondents, in natural course sought mutation through the person who held rights originally, and this was an innocuous mistake omission. He said that the recital in the plaint of Baru could not be read against the present respondents. He said that the very conduct of the respondents in filing the mutation application on January 10, 1973 shows that they felt much aggrieved by the action of Baru, and filed mutation application in hurry. He said that it was the prerogative of the lower appellate court to assess the evidence on record, and it has done so before arriving at its conclusion. He urged that the lower appellate court has rightly dismissed the suit. 6. The learned counsel for the appellant submitted by way of rejoinder that the argument of the other side that the respondents would succeed under Section 109 of the Indian Succession Act, even if Smt. Bramho Devi had died before Surjeet, was not taken or raised before the courts below, and this being an entirely new plea is untenable. 6. The learned counsel for the appellant submitted by way of rejoinder that the argument of the other side that the respondents would succeed under Section 109 of the Indian Succession Act, even if Smt. Bramho Devi had died before Surjeet, was not taken or raised before the courts below, and this being an entirely new plea is untenable. He argued that the Will was made by Surjeet, who was Bhumidhar, and the U.P. Z.A. and L.R. Act provides both for testate and intestate succession, and, therefore, when question of succession or devolution arises, it has to be governed under the provisions of the U.P. Z.A. and L.R. Act, which deals with succession of tenure holders. He referred to Sections 169, 170 and 171 of the Act. Section 171 provides that 'subject to the provisions of Section 169, when a Bhumidhar, Sirdar or an Asami being a male dies, his interest in the holding shall devolve in accordance with the order of succession given below......' According to him, rulings reported in 1935 Oudh page 437 and 1947 Oudh page 45, have no application to the present case. He stated that the respondents did not prove the execution and attestation of the Will, which was the very basis of their claim. According to him, lineal descendant would not include 'daughter', and provisions of Indian Succession Act would not apply to the present case. He urged that the lower appellate court has wrongly dismissed the suit. 7. I have considered the arguments of the learned counsels, and have perused the record of the case. The first point to be considered in whether Surjeet had executed a Will in favour of Smt. Bramho Devi. A perusal of the Judgment dated July 20, 1973 passed by Tahsildar Assistant Collector, Budhana, district Muzaffarnagar, in proceedings under Section 34 of the U.P. Land Revenue Act, shows that present respondents, Raghubir Singh and others, had claimed mutation on the basis that Surjeet had executed a Will in favour of Smt. Bramho Devi and after the death of Smt. Bramho Devi, they succeeded as her sons. In the plaint, the plaintiff did not make any mention about the theory regarding Will set up by the defendants during the course of mutation proceedings. In the plaint, the plaintiff did not make any mention about the theory regarding Will set up by the defendants during the course of mutation proceedings. In para 24 of the written statement, the defendants specifically alleged that Surjeet had executed a Will in favour of Smt. Bramho Devi, and they succeeded as her sons. The plaintiff did not file any replication to challenge this fact. The plaintiff sought for an amendment in the plaint of Aug. 17, 1977 (paper No. 59 on Trial court's file), but he did not set up any plea challenging the Will. Kacheru, D.W. 3, had deposed that Surjeet had executed the Will in favour of Smt. Bramho Devi in his presence, and that Surjeet had put his thumb mark in his presence, Genda, D.W. 4, stated that the Will, executed a will in favour of Smt. Bramho Devi, who was his wife, had been lost. The Will was a registered document. A perusal of the record shows that the plaintiff did not challenge the Will. The trial court clearly mentioned in its Judgment that the plaintiff did not challenged the Will. Though there is evidence on record to prove execution and attestation of the Will, yet as the execution or attestation of the Will had not been challenged by the plaintiff, the defendant-respondents were not bound to prove its execution or attestation. The lower appellate court was correct in holding that Surjeet had executed a will in favour of Smt. Bramho Devi. 8. The next question for determination is whether Smt. Bramho Devi had died during the life-time of Surjeet or not. The trial court held that Smt. Bramho Devi had died during the life-time of Surjeet, but the lower appellate court recorded a finding that Smt. Bramho Devi died after Surjeet. The learned lower appellate court has taken the entire material on record into consideration before arriving at its finding that Smt. Bramho Devi died after Surjeet. This being a finding on a question of fact is not liable to be disturbed in second appeal because it is based on an appreciation of the evidence on record. 9. The learned lower appellate court has taken the entire material on record into consideration before arriving at its finding that Smt. Bramho Devi died after Surjeet. This being a finding on a question of fact is not liable to be disturbed in second appeal because it is based on an appreciation of the evidence on record. 9. A finding on the question, as to whether Smt. Bramho Devi predeceased Surjeet or not, would however not be very material in view of Section 109 of the Indian Succession Act, which reads as follows:- "When bequest to testator's child or lineal descendant does not lapse on his death in testator's life-time. Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the life-time of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse but shall take effect as if the death of the testator, unless a contrary intention appears by the Will." The expression 'child' includes a son as well as a daughter. The term 'lineal descendant' denotes persons who make the line that goes down the ancestry. It cannot, by any stretch of imagination, be said that a female would be precluded from being counted as lineal descendant. The section does not talk of 'male lineal descendant'. In the cases of 1945 Oudh 437, and 1947 Oudh 45, similar situation had arisen, and it was held that in terms of Section 109 of the Indian Succession Act, the daughter's heirs would succeed her, even though the daughter (legatee) had died during the life-time of her father, who was the testator. The submission of the learned counsel for the appellant that provisions of Indian Succession Act would not apply, the U.P. Z.A. and L.R. Act is a self-contained Act lacks substance, because Sections 169 and 170 of the U.P. Z.A. and L.R. Act mention only about making of a bequest. The Act does not contemplate circumstances, in which a bequest will lapse. It is Section 105 of the Indian Succession Act, which provides the circumstances in which the legacy lapses. The Act does not contemplate circumstances, in which a bequest will lapse. It is Section 105 of the Indian Succession Act, which provides the circumstances in which the legacy lapses. It cannot, therefore, be assumed that the provisions of only Section 105 of the Indian Succession Act would apply to the cases arising out of the U.P. Z.A. and L.R. Act, and the exception provided by that Act i.e. Section 109, would have no application. In terms of Section 109 of the Indian Succession Act, the sons of Smt. Bramho Devi, (the legatees) would be entitled to succeed, even if she had died during the life-time of the testator. 10. In view of the above discussion, I find that the respondents would get rights in the land, and Baru who had executed sale deed in favour of the plaintiff-appellant, was not competent to make a transfer in his favour. The lower appellate court was, therefore, justified in dismissing the suit. I do not see any justification to interfere in the second appeal. 11. The appeal has no force and is dismissed with costs and counsel's fee Rs. 40/-.