In a succession suit, the plaintiff must prove not only their relationship with the last male holder but also that no nearer heir existed.

Kanhaiya Singh, J.

1. This is an appeal from a judgment and decree of the Addional Subordinate Judge, Muzaffarpur, dated 25th April, 1952, which reversed a judgment and decree of the Munsif of the same place dated 21st February, 1951, and dismissed the plaintiffs suit.

2. The suit which gave rise to this appeal was a simple suit for establishment of title to and confirmation of possession of the properties detailed in the schedule to the plaint or, in the alternative, recovery of possession. But it raised an important question of law regarding onus of proof because of non-production of evidence by either party. The facts lie in short compass and may be stated as follows. The disputed properties admittedly belonged to one Sujan Kuer. He died leaving behind him his widow Anupa Kuer. The plaintiff is the daughters daughter of Sujan, It appears on 26th January, 1943, the plaintiffs mother Lakshmi Kuer executed in her favour a deed of gift in respect of her fathers properties. Between October, and December, 1947, Ramkhelawan Singh, defendant second party, claiming to be the daughters son of Sujan executed three deeds of sale in favour of the defendants first party in respect of the disputed properties. The plaintiff instituted the present suit on 23rd January, 1948, and claimed that Sujan died leaving behind him only one daughter, Lakshmi Kuer, her mother, herself (his daughters daughter) and his widow, Anupa Kuer, that on the death of Sujan his entire properties came into possession of his widow Anupa Kuer, that after Anupa Kuers death, her mother Lakshmi Kuer entered into possession and remained in possession until her death and that thereafter the plaintiff obtained possession and is still in possession of the disputed properties. There was a stout denial that Ramkhelawan was the daughters son of Sujan. The plaintiff asserted that her father left behind him no daughter of the name of Ramsundar Kuer. On these allegations, she contended that the sale deeds in favour of the defendants first party were without right and without title and was not binding upon her. She claimed, therefore, confirmation of possession or, in the alternative, recovery of possession.

3. The suit was contested by both the defendants first party and the defendant second party. They filed two separate written statements. Their defence is common. They admitted that the plaintiff was the daughters daughter of Sujan. They further admitted that the plaintiffs mother Lakshmi Kuer was in possession of the properties of Sujan. They denied, however, that the plaintiffs mother was the sole daughter of Sujan. They alleged that the latter died leaving him surviving besides his widow, two daughters, Lakshmi Kuer and Ramsundar Kuer, and that Ramkhelawan, defendant second party, was the son of Ramsundar Kuer. They further alleged that both Ramsundar and Lakshmi were in joint possession of the properties of Sujan. Ramsundar, it is said, predeceased Lakshmi. The defendants alleged further that though on the death of Ramsundar defendant second party and his brother were entitled in law to possess and occupy the entire properties of Sujan, they allowed Lakshmi to remain in possession of half share in the properties as before and that when Lakshmi died they got possession of the entire properties.

They denied the possession of the plaintiff. They also challenged the genuineness of the deed of gift propounded by the plaintiff and characterised it as collusive and fraudulent. They asserted that Ramkhelawan had title and right to transfer the entire properties to defendants first party and that the defendants first party had acquired by purchase an indefeasible right.

4. The learned Munsif framed five issues for the determination of the suit. They are as follows:

"1. Has the plaintiff cause of action and right to sue?

2. Was Mosst Ramsundar Kuer daughter and defendant No. 4 daughters son of Sujan Kuar as alleged by the defendants?

3. Is the registered hibanama dated 28-1-4