In a suit for partition there must be unity of title and possession both in the plaintiff seeking partition.

Raj Kishore Prasad, J.

1. This appeal by defendant No. 4 arises out of a suit brought by the plaintiff-respondent for declaration of her title to 1/4th share in the properties mentioned in Schedule A of the plaint and for partition. The plaintiff brought her suit in forma pauperis, and, it has been decreed, and, her title has been declared, and, a preliminary decree for partition has also been passed.

2. The sole question, for determination in the present appeal, is, whether the adoption of defendant No. 4 appellant, by the plaintiffs mother Sheobarat Katwain, as alleged by the appellant, has been proved?

3. In order to decide the above question, it is necessary to know the pedigree of the plaintiff, and, defendants 1 to 3, which is as follows:

BHAGELU SINGH

Widow = Sheobarat Katwin

Died 1947.48

_____________|__________

| |

Son Daughters

Ganesh Singh (deceased) |

______________________|_______________________________

| | | |

Bhikhni Jini Bankumari Lachhmania

Plaintiff Defdt. 1 Defdt. 2 Defdt. 3

(P. W. 1) (D. W. 1 for (Widow of (D. W. 1 for

defdt. 1) Ratan Singh) Defdt. 3).

4. The plaintiffs case was this: That her father Bhagelu Singh died leaving behind his widow; a son, named Ganesh; and, four daughters, namely, the plaintiff and defendants 1 to 3; that her brother, Ganesh, died after the death of her father; and, it was false to say that her brother pre-deceased her father; that her father never gave permission to her mother to adopt a son, much less defendant No. 4; and, that defendant No. 4 was never adopted by her mother.

5. The plaintiff, therefore, completely denied the authority of her mother to adopt and the fact of adoption of the appellant, and, accordingly, she claimed that, after the death of her mother, she and her three sisters, defendants 1 to 3, were only entitled to the estate of her father, being his only legal heirs.

6. Defendant No. 1, the first sister of the plaintiff, supported defendant 4-appellant, and, also examined herself, as D. W. 1 on her own behalf, in support of the adoption of the appellant. She, however, claimed certain raiyati lands in village Sundarpahari, out of the lands in suit, as her exclusive property by virtue of a registered gift dated 24-11-1943 (Ext. A-1), executed by her mother in her favour.

7. Defendant No. 2, the second sister of the plaintiff, did not appear, nor did she either file a written statement or contest the suit or examine herself as a witness, obviously because her husband Ratan Lal Singh, described as Ratan Singh in the plaint, had attested the alleged deed of adoption (Ext. H-3) executed by her mother in favour of the appellant.

8. Defendant No. 3, the third sister of the plaintiff, however, filed a written statement supporting her sister, the plaintiff, and, denying the authority of her mother to adopt the appellant, and, the latters adoption. She however, claimed the lands in village Jealgora, out of the lands in suit, to be her stridhan and exclusive property, by virtue of a registered gift (Ext. A-2) executed by her mother in her favour on 24-11-1943, the same day on which the other deed of gift (Ext. A-1) in favour of her sister, defendant 1, was executed.

9. Defendant No. 4, the appellant, who was the main contesting defendant, filed his written statement, claiming to be the adopted son of Bhagelu Singh, and, as such, entitled to all the properties in suit belonging to Bhagelu Singh, or acquired out of his funds, to the exclusion of his admitted four daughters, His case was that all the sons of Bhagelu Singh died, one after anoth