Judgment 1. It is plaintiffs second appeal against the judgment and decree passed by the Courts below whereby his suit for possession of 1/3rd share of the land measuring 27 kanals 4 marlas, was dismissed. 2. Before adverting to the facts in detail, it would be relevant to peruse the pedigree table. Hari Chand has three sons, namely Brahmanand, Nanda and Parsonna. Defendants in the suit are the sons of Shankar Lal son of Brahmanand. Basdev is the son of Nanda. Parsonna, the other brother of Brahmanand and Nanda, had two daughters Sarhadhi and Atma Devi and one son Kesho Ram. Plaintiff is the sisters son of Kesho Ram. His mothers name is Atma Devi. The dispute is regarding estate of Kesho Ram who died in the year 1955. As per the plaintiff, he is business partner with Kesho Ram and living with him and he was carrying on business jointly with Kesho Ram. Kesho Ram executed a Will dated 28-9-1939 in favour of the plaintiff and got it registered on the same day. As per plaintiff and DW. 2 Vijay Parkash, Kesho Ram died in the year 1955. Defendants appeared and contested the suit and it was stated that Kesho Ram was having 1/3rd share of the land in revenue record but it was denied that the plaintiff is sisters son of Kesho Ram. The factum and validity of the Will was also denied and claimed estate of Kesho Ram on the basis of natural succession. On the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiff is the sisters son of Kesho Ram deceased? OPP 2. Whether Kesho Ram was owner in possession of 1/3rd share in suit land? OPP 3. Whether Shri Kesho Ram made a valid Will dated 28-9-1939 in favour of the plaintiff? OPP 4.Whether Shri Kesho Ram and defendants were governed by Custom in the matter of alienation and succession and what that custom is and its effect? OPD 5.Whether the suit land is ancestral qua the deceased Kesho Ram and the defendants? 6.If issue Nos. 4 and 5 are proved, whether Kesho Ram was competent to make the Will? OPP 7.Whether the defendants have become the owners of the suit land by adverse possession? OPD 8.Whether the suit is within limitation? OPD 9.Relief. 3. OPD 5.Whether the suit land is ancestral qua the deceased Kesho Ram and the defendants? 6.If issue Nos. 4 and 5 are proved, whether Kesho Ram was competent to make the Will? OPP 7.Whether the defendants have become the owners of the suit land by adverse possession? OPD 8.Whether the suit is within limitation? OPD 9.Relief. 3. Both the Courts have returned a finding on the basis of perusal of the evidence that the plaintiff is the sisters son of Kesho Ram and Kesho Ram was owner of 1/3rd share in the suit land. Both the Courts have also found that the parties are not governed by the custom in the matter of alienation and succession. The suit property was not held to be ancestral qua the deceased Kesho Ram and defendants. The learned trial Court held that the suit is within the period of limitation. However, the first appellate Court reversed that finding and held that the suit is barred by limitation. 4. Aggrieved, the plaintiff has filed the present second appeal. 5. Shri J. R. Mittal, learned senior Counsel for the appellant, has raised two-fold arguments; firstly - that being sisters son of Kesho Ram, he is preferential heir to the defendants and thus as a natural heir, he is to succeed the estate of deceased Kesho Ram. Secondly, it was submitted that reasoning given by the Courts below that the statement of attesting witness Sita Ram who appeared as PW. 5 is not sufficient to prove the due execution of the Will, in fact suffers from misreading of evidence on record. Thus, the following substantial question of law arise for consideration of this Court :- 1. Whether the plaintiff being the sisters son of Kesho Rao, has a preferential right to succeed to the estate of Kesho Ram to the defendants who are grand sons of Brahamanand, brother of Parsonna, father of Kesho Ram? 2. Whether the finding of the Courts below in respect of due execution of the Will dated 28-9-1939 suffers from misreading of evidence? 6. Question No. 1. Both the Courts have returned a finding that the plaintiff is sisters son of Kesho Ram, therefore, the plaintiff would fall under category 4 of clause (2) of the Schedule appended to the Hindu Succession Act, 1956 . 6. Question No. 1. Both the Courts have returned a finding that the plaintiff is sisters son of Kesho Ram, therefore, the plaintiff would fall under category 4 of clause (2) of the Schedule appended to the Hindu Succession Act, 1956 . The defendants raised no dispute about such finding as well but submitted that the plaintiff has not claimed his right of natural succession in the Courts below and, therefore, such an argument before this Court for the first time, cannot be entertained. However, the said stand of the defendants is not tenable. As per facts found by the Courts below, the plaintiff is proved to be sisters son of Kesho Ram. With the said proved relationship, he is a preferential heir than the defendants who are collaterals. The defendants are grandsons of Brahamanand, Braghmanand Nand - grandfather of the defendants and Parsonna - grandfather of the plaintiff are the real brothers. As the defendants do not fall in any of the categories of clauses 1 and 2, thus, keeping in view the relationship of the plaintiff with the deceased, the plaintiff is entitled to succeed the property of the deceased as a natural heir. Sec. 103 of the Code of Civil Procedure authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial Court as well as the lower appellate Court or (2) when both the trial Court as well as the appellate Court or the lower appellate Court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Sec. 100 of the Code of Civil Procedure. Reference in this respect be made to Leela Soni V/s. Rajesh Goyal (2001) 7 SCC 494 . 7. In the present case, an issue has been framed to the effect whether the plaintiff is the sisters son of Kesho Ram and such an issue has been decided in favour of the plaintiff but the consequence flowing from such issue has not been discussed by the Courts below. Therefore, it is held that plaintiff being sisters son of Kesho Ram has preferential right to succeed to the estate of Kesho Ram than the defendants. Therefore, it is held that plaintiff being sisters son of Kesho Ram has preferential right to succeed to the estate of Kesho Ram than the defendants. Question No. 2 8. Learned trial Court has rejected the claim of the plaintiff on the basis of Will on the ground that Sita Ram PW. 5 has not deposed that the Will was read over to the executant after it was scribed and the executant admitted the contents thereof. The other circumstance which was taken into consideration was that he has not stated that the Will was scribed in his presence. It may be noticed that the Will dated 28-9-1939 was registered on the same day and PW. 5 Sita Ram has appeared as witness after 33 years in the year 1972. As a matter of fact, the statement of PW. 5 has not been correctly read by the Courts below. It may be beneficial to reproduce the cross-examination of the witness : "I am an Ahluwalia and has no relationship or biradari with the plaintiff or late Kesho Ram. Pt. Kesho Ram was on visiting terms with me but there was no friendship between us. The suit land was ancestral in the hands of late Pt. Kesho Ram. One of the residential houses owned by Pt. Kesho Ram in Ambala City was ancestral and the other was purchased by him. Kesho Ram had one sister whose name I do not know. She was probably married at Karnal but I do not know the name of her husband. I cannot say how many children she had. I never saw Kesho Ram cultivating the land in suit. I cannot say if the Will Ex. P1 was scribed in my presence or not as I do not remember. (C.Q.) Pt. Kesho Ram had signed the Will in my presence. Pt. Din Dial also attested the Will but I do not know the name of the scribe. I do not remember where the Will was scribed. Kesho Ram was of 50 or 60 years of age when he executed the Will. He had retired from railway service and was residing at Bhatinda in those days. I cannot say in which year he died. I do not know if Kesho Ram was in sound health at that time or not. Again said he was enjoying good health. Kesho Ram was of 50 or 60 years of age when he executed the Will. He had retired from railway service and was residing at Bhatinda in those days. I cannot say in which year he died. I do not know if Kesho Ram was in sound health at that time or not. Again said he was enjoying good health. I do not know in which connection Kesho Ram had come on that day from Bhatinda. He had a house at Ambala City, and he used to come." 9. A perusal of the cross-examination of the witness would show that the Will was executed in his presence and was attested by Pt. Din Dial. However, he did not know the name of the scribe nor the place where the Will was scribed. Keeping in view the fact that the witness has categorically stated that Kesho Ram has signed the Will in his presence and that the Will was attested by Din Dial, it satisfies the requirements of Sec. 63 of the Indian Succession Act. It may be noticed that the Will is a registered document and has been produced in evidence after 33 years. The contents of the document satisfy the requirements of execution of Will contemplated under Sec. 63 of the Indian Succession Act. Thus, finding recorded by the Courts below on issue No. 3 that the execution of the Will is not duly proved, is not sustainable and is consequently reversed and it is held that the Will is proved to be duly executed. The fact that the Will is registered and is more than 30 years document is relevant to consider due execution of the Will. 10. The learned first appellate Court has reversed the finding of trial Court on issue Nos. 7 and 8 regarding the suit being barred by limitation. Kesho Ram and defendants were the co-sharers in the property. Such estate was not partitioned. Since the plaintiff is found to be the only natural heir and a legatee under the Will dated 29-8-1939, he would be deemed in joint possession as a co-owner. Consequently, the findings of learned first appellate Court on issue Nos. 6 and 7 are not sustainable and, therefore, set aside. 11. Such estate was not partitioned. Since the plaintiff is found to be the only natural heir and a legatee under the Will dated 29-8-1939, he would be deemed in joint possession as a co-owner. Consequently, the findings of learned first appellate Court on issue Nos. 6 and 7 are not sustainable and, therefore, set aside. 11. It is true that while exercising second appellate jurisdiction, the finding of fact on proper appreciation of the material on record should not be disturbed, but it is not an absolute rule to be applied universally. As discussed above, the findings recorded by the Courts below are vitiated due to surmises and misreading of the material on record. The Courts below have found that attesting witnesses has not deposed that the Will was executed by the testator in his presence. Learned first appellate Court found that the Will not duly executed as the witness produced by the plaintiff for proving the relationship have not deposed regarding execution of the Will. The said reasoning is wholly misconceived. The Will was sought to be proved by producing PW. 5 Sita Ram, one of the attesting witnesses. Appellate Court found that he did not know who scribed it and where it was written and whether the testator was in a fit condition or not and what for he had come to Bhatinda, are the reasons of not due execution of the Will. It was also found that Sita Ram had not stated that the Will had been scribed in his presence or it had been read over to the testator and it was made with the full knowledge of the testator. He also does not state that Pt. Din Dial had signed the Will in his presence. Thus, lower appellate Court concluded that statement of Sita Ram does not carry forward the case of the plaintiff to a large extent. The reasoning given by the first appellate Court are not germane controversy in dispute. The witness has come in witness box after 33 years of execution of Will. It is but natural not to recollect the name of the scribe or the place where it has been written or the purpose for which the testator had come to Bhatinda. The reasoning given by the first appellate Court are not germane controversy in dispute. The witness has come in witness box after 33 years of execution of Will. It is but natural not to recollect the name of the scribe or the place where it has been written or the purpose for which the testator had come to Bhatinda. The reasoning given by the first appellate Court that the attesting witness has not stated the Will have been scribed in his presence, is again reading in between the lines. The witness has stated that Kesho Ram has signed the Will in his presence and Pt. Din Dial also attested the Will. Thus, the requirement of proof of the Will as contemplated under Sec. 63 of the Indian Succession Act were complied with in letter and spirit. 12. It has been held by Hon ble Supreme Court in Rohini Prasad V/s. Kasturchand (2000) 3 SCC 668 that where misreading of evidence has led to miscarriage of justice or the findings are based on no evidence, the High Court would be justified in interfering in second appeal. In Hafazat Hussain V/s. Abdul Majeed (2001) 7 SCC 189 , it was held that where the Courts of fact have misdirected themselves in the matter of legal principles governing a valid and complete gift or the reasoning is vitiated due to misreading of material on record, it would be a substantial question of law. Therefore, the argument raised by Shri Saini has no merit and is, therefore, repelled. 13. It is next contended by Shri Saini that it has been found by the first appellate Court that the plaintiff has not received any profit or income out of the property in question and thus there was ouster of the plaintiff from possession and, therefore, the defendants would be deemed to have perfected their possession with title. It was submitted that even assuming Kesho Ram died in 1955, the suit having been filed in the year 1969, is beyond a period of 12 years. Thus, it is barred by limitation. However, the contention of the respondents is misconceived. Mere fact that the plaintiff has not participated in the profit or income of the property would not amount to ouster of the plaintiff as a co-sharer. Thus, it is barred by limitation. However, the contention of the respondents is misconceived. Mere fact that the plaintiff has not participated in the profit or income of the property would not amount to ouster of the plaintiff as a co-sharer. Since, admittedly Kesho Ram and the defendants were having joint holding, therefore, the plaintiff by fiction of law would be deemed to be a co-owner of the property. As a co-owner, there is no overt act of the defendants so as to oust the plaintiff from possession. The plaintiff was never admitted to be the owner of the property so as to claim adverse possession against the plaintiff by the defendants. 14. The argument of the defendants that the suit was filed beyond limitation, is not tenable. Article 65 of the Limitation Act lays down that suit for possession can be filed on the basis of title. It is for the defendants to show that they have perfected his title by adverse possession for more than 12 years. As a co-sharer, the defendants cannot held to be in adverse possession. Consequently, the said argument is also not tenable. 15. In view of the above, the plaintiff succeeds to the estate of Kesho Ram as a natural heir as well as on the basis of Will. Thus, consequently, the judgments and decrees of the Courts below are set aside and suit is decreed with costs throughout. Appeal allowed.