Mr. Jayakar:-

This is an appeal from the judgment and decree of the High Court of Judicature at Patna dated 2nd March 1936, which reversed the judgment and decree of the Additional Subordinate Judge of Palamau dated 17th March 1933, and decreed the suit of the plaintiffs respondents 1 to 7 for recovery of possession of an impartible estate called Deogan estate, in succession to the last holder Surendra Bux Rai (hereinafter called Surendra). The suit was instituted on 8th March 1924, by the plaintiff (respondent 1) claiming a declaration that the property in the suit, being an ancestral impartible estate of the joint family of Surendra and himself, devolved on him by survivorship, on the death of Surendra and that plaintiff 1 was alone the rightful owner thereof under the Mitakshara law and by virtue of the customs of primogeniture and female exclusion, which governed the estate. He also asked for possession. Plaintiffs 2 to 7 were subsequently brought on the record as assignees under a permanent lease obtained from plaintiff 1, in consideration of amounts lent for financing the litigation.

The defendants were : 1, Binodini Devi, the widow of Surendra (shortly described as the Dulhin); 2, Mr. Coutts, the manager of the estate appointed under the Chota Nagpur Encumbered Estates Act; 3 to 8, the members, near and remote, of the said joint family; 9, Nand Kishwar (appellant before the Board), who claimed to be the posthumous son of Surendra born of defendant 1, and 10, Sham Sunder Kuer, the daughter of Surendra, born of defendant 1. It is to be noted that the mother of Surendra, shortly described as the Rajmata, was not a party to the proceedings. Certain issues were raised, out of which, the only one which now survives for the consideration of the Board is issue 4, viz., whether defendant 1 gave birth to defendant 9 as alleged by the defence. On this issue, the trial Court held in the affirmative. The High Court has differed, Courtney-Terrell, C. J. and Dhavle J., holding in the negative and Agarwala J. in the affirmative. From this decision an appeal has been preferred to His Majesty in Council. It has been found that the Deogan estate, though impartible, is the property of the joint Hindu family, of which Surendra and respondent 1 were members, that it is an impartible jagir governed by the rule of primogeniture under the Mitakshara law and that respondent 1 would be entitled to succeed by survivorship to the estate, unless the appellant proved that he was the son of Surendra. The findings on these issues are no more in controversy.

The appellant's counsel argued at the outset that the burden of proving that the appellant was not the son of Surendra lay upon the plaintiff (respondent 1). Reliance was placed on the pleadings and certain Sections of the Evidence Act. It was urged that as the plaintiff was suing for possession from the appellant who was in possession at the date of the suit, the suit was in the nature of an ejectment action and S. 110, Evidence Act, applied. Ss. 101 and 112 of that Act were also relied upon. The last Section however can have no application to the facts of this case, where the maternity of the appellant is in dispute and not his paternity. It was further argued that as the plaintiff made in the plaint charges of fraud, it is for him to prove them. The simple answer to these arguments is first, that it has not been satisfactorily proved that at the date of the suit, 8th March 1934, the appellant was in possession of the property. It is enough to refer in this connection to the clear admission of the Dulhin, the appellant's mother and guardian ad litem, made in her objections to the appointment of a receiver dated 20th September 1925, that the estate was released from the management of the Encumbered and Wards Estate Office in April 1934, which would be after the date of the suit. The entry relied upon by the defendant in the extract from the survey register confirms this view. It shows that the name of