JUDGMENT

Nanavutty, J - This is an appeal filed by Mt. Neksi Kuar, plaintiff, against the judgment and decree of the Court of the Additional Subordinate Judge of Sitapur dismissing her suit. The plaintiff, Mt. Neksi Kuar, has brought this suit for possession over certain moveable and immoveable property set forth in the lists attached to her plaint on the. allegations that she is the widow of Kunwar Hakim Singh, that her husband and his brother Kunwar Bachu Singh constituted a joint Hindu family governed by the Mitakshara, that on the afternoon of 28th April 193U a fire broke out in the residential house of the family of Bachu Singh and Hakim Singh in village Dalupur, tahsil Chabramau, in the district of Farrukbabad, while the plaintiff was at her father's house, that in this conflagration the two brothers and their children and others perished but that Hakim Singh, the husband of the plaintiff, died after his brother Bachu Singh, and that the plaintiff thus became the sole owner of the assets of her husband Hakim Singh. It is as the widow of Hakim Singh, to whom she alleges that the joint family property descended by survivorship, that the plaintiff has brought the present suit.

2. The defendant raised several pleas, but it was agreed in the trial Court between the parties and their counsel that issue 1, namely: "Did Hakim Singh survive Bachu Singh?" should be decided as a preliminary issue, and that if the plaintiff failed to secure a finding on this issue in her favour then her whole suit was to stand dismissed. The learned Subordinate Judge acceded to this wish of the parties as it meant cur-bailment of their expenses and also saved much valuable time of the Court. Eight witnesses were examined by the plaintiff on the first issue and four were examined on behalf of the defendants. The learned Subordinate Judge found that both the brothers Bachu Singh and Hakim Singh died of suffocation in the flame room to the south of their house, mo one knowing as to who died first. He held accordingly that the plaintiff had failed to prove that Hakim Singh survived Bachu Singh and he accordingly dismissed the plaintiff's suit. Dissatisfied with the judgment and decree of the lower Court the plaintiff has filed the present appeal. The principal point for determination in this appeal is whether Hakim Singh, the husband of the plaintiff, survived his brother Bachu Singh even for a very short time so as to enable his widow Mt. Neksi Kuar to assert that under the Mitakshara the entire joint family property devolved upon him by survivorship and thus justified the plaintiff, as the heir of her husband in claiming that property for her lifetime.

3. I will first proceed to examine the oral evidence adduced by the plaintiff to prove her contention that Hakim Singh survived his brother Bachu Singh. (After examining the evidence in detail, his Lordship proceeded). This is all the evidence adduced on behalf of the plain, tiff and it is impossible to say upon this evidence with any degree of certainty whether Hakim Singh survived Bachu Singh or not. The evidence leaves this question quite undetermined and I agree with the learned Subordinate Judge in holding that nobody knows which of the two brothers died first or whether they died simultaneously. The learned Counsel for the plaintiff-appellant realising the weakness of the evidence produced on behalf of his client has argued with great eloquence that the plaintiff is the sole representative of her husband's family and that prima facie title to the property in dispute rests with the widow, and that if the Court is unable to find which of the two brothers died first then the legal conclusion would be that both the brothers died simultaneously. In support of his contention he has cited a passage from Amir Ali's Law of Evidence, Edn. 8, pp. 787 and 788, which runs as follows:

Connected with, the subject of continuance of life is the question of the presumption of survivorship in common disaster. Allusi