1. The dispute in this case is with regard to certain zamindari property in a village called Nagla Anni. Admittedly this property once belonged to a man named Suchcha Ram who died in 1870. In the plaint there in exhibited a pedigree about which, except in one particular, there was no dispute in the Court below and from this it appears that Suchcha Ram had two wives, Mt. Nand Kunwar the elder wife, and Mt. Gias Kunwar the younger.
2. The plaintiffs in the present suit are the daughter's grandsons and great-grandsons of Suchcha Ram through his wife Mt. Nand Kunwar. The sole defendant in the suit was Mt. Javitri, who claimed to be Suchcha Ram's grand-daughter of his daughter Mt. Parbati. In other words, Javitri was the granddaughter of Suchcha Ram's younger wife Mt. Gias Kunwar. In the Court below the plaintiffs denied the parentage of Mt. Javitri saying that she was not the daughter of Mt. Parbati. The Court below, however, has found in favour of Mt. Javitri on this point and that finding is no longer in dispute.
3. The case for the plaintiffs was that on the death of Mt. Parbati in 1922, the succession opened and the property devolved upon them as the nearest bandhus of Suchcha Ram. It was alleged in para. 9 of the plaint that there were no other heirs of Suchcha Ram than the plaintiffs. It was admitted in the plaint that on the 5th February 1869, about a year before his death, Suchcha Ram had executed a deed of gift by which he purported to give 5 biswas of Nagla Anni to his wife Mt. Nand Kunwar and the remaining 15 biswas to his second wife Mt. Gias Kunwar. The plaintiffs, however, maintain that this deed was not given effect to and that the two widows succeeded as joint heirs of their husband after his death in the year 1870. After Suchcha Ram's death, by a deed executed on the 24th May 1870, the two widows divided the property, one third being assigned to Mt. Nand Kunwar and two-thirds to Mt. Gias Kunwar. After this it is said that Mt. Nand Kunwar made a gift of her one-third share to her daughter's son, Narain Singh. The two-thirds share, which was in the possession of Mt. Gias Kunwar, descended to her daughter Mt. Parbati and it was stated that in the year 1878, by partition arranged between Narain Singh on the one side and Parbati on the other two mahals were constituted, one of Narain Singh and one of Mt. Parbati in accordance with the shares above specified. It was, however, claimed that neither Mt. Gias Kunwar nor Mt. Parbati had more than the limited estate of Hindu females in the shares last mentioned, and the plaintiff,therefore, claimed that they were entitled to succeed on the death of Mt. Parbati. Mt. Javitri, it was pleaded, had no right to take the property after Parbati's death.
4. The defence in substance was that the gift made by Suchcha Ram in the year 1869 conferred an a absolute estate on both the widows and consequently it was pleaded that the share which was given to Mt. Gias Kunwar was her stridhan property which had rightly descended in the first instance to Mt. Parbati and after the latter's death to Mt. Javitri. The defendant pleaded that the plaintiffs were not the heirs of Suchcha Ram though she did not set up any plea of jus tertii. A further plea taken in defence was one of adverse possession, it being alleged that Parbati held adversely since the death of Mt. Gias in the year 1875 and so it was pleaded that the plaintiffs' suit was barred by limitation. Again in para. 21 of the written statement a reference was made to the partition which took place in 1878 between Narain Singh and Mt. Parbati and it was pleaded that in view of this partition the plaintiffs had no right to recover the property in suit.
5. The Subordinate Judge decreed the suit. He found that the deed of gift executed by Suchcha Ram on the 5th February 1869 could, at most, confer only a life-interest on Mt. Gias. He also found that no effect was given to this deed because no mutation took place after it had been executed. The Subordinate Judge was further of opinion that Gias's interest, after the arrangement entered into in 1870 with her co-widow, Mt. Nand Kunwar, was still only a life-interest in the property. He held that Parbati's possession was not adverse to the plaintiffs for she succeeded as heir to her father on the death of the last surviving widow, Mt. Nand Kunwar, who, died in the year 1878. The Judge found that the plaintiffs could only bring their suit after Parbati's death. The Judge was of opinion that the plaintiffs were the nearest heirs of Suchcha Ram and that it was not proved that there were any nearer heirs in existence.
6. Against this decree Mt. Javitri appealed. She died during the pendency of the appeal. It appears that Javitri left several sons but no daughter, and the sons have been allowed to continue the appeal after the death of their mother. We have to note here that objection was taken to this substitution of parties on the ground that even if the property had, as alleged by the defendant been the stridhan property of Mt. Gias, Mt. Javitri's sons could not inherit it and the property would revert to the heirs of the last full owner. This objection was withdrawn and obviously could not be maintained for the question of the son's right to take the property which was in Javitri's possession could only be decided after they were made parties to the appeal.
7. The first ground taken in the petition of appeal is that the plaintiffs have failed to prove themselves the nearest heirs of Suchcha Ram. Grounds 2 and 3 relate to the deed of gift executed by Suchcha Ram on the 5th February 1869. It is pleaded that by this transfer Mt. Gias took an absolute estate in the property. In grounds 5 and 6 it was pleaded that the property being the stridhan of Mt Gias had rightly descended to Mt. Javitri. The 4th ground of appeal relating to a question of fact has not been pressed before us and may be ignored.
8. To deal with the first ground raised in the memorandum of appeal. The plaintiffs are admittedly bandhus of Suchcha Ram and they are entitled to succeed to any property which was Suchcha Ram's estate in the absence of agnate relations, that is to say, sapindas and samanodakas to the 14th degree from Suchcha Ram. It is claimed here in appeal that the plaintiffs failed to discharge the burden of proof which lay upon them. They alleged in their plaint the absence of all other heirs except themselves but they produced no evidence. None of the plaintiffs went into the witness-box and from the record it is proved that the plaintiffs' pleader refused to open the case and to lead evidence. He said he would content himself with calling evidence in rebuttal.
9. As regards the burden of proof the plaintiffs had in the first place to prove themselves to be bandhus and this they have done. They had also to satisfy the Court that there were no nearer heirs, and the question is whether there is any evidence on the record on this point. The Subordinate Judge held that the plaintiffs had proved all that was necessary for them to prove because, as he said, it is not proved that any collateral of Suchcha Ram deceased is alive. While we do not think that the view of the Subordinate Judge on this point is quite correct, we are nevertheless of opinion that the plaintiffs did discharge the burden which lay upon them. In this connexion we may refer to the case of Ram Row v. Kuttiya Goundan  40 Mad. 654. At p. 656 of the judgment, dealing with the question of burden of proof in a case of this kind, one of the learned Judges observed:
It is no doubt incumbent on a plaintiff, seeking to succeed to property as a reversioner, to establish affirmatively the particular relationship which he puts forward. He is also bound to satisfy the Court that to the best of his knowledge there are no nearer heirs. He cannot be expected to do anything more. It is for those who claim that their kinship is nearer than that of the plaintiff to prove that relationship.
10. We think that this, if we may say so, is a correct statement of the law relating to burden of proof in a case of this nature. Now, while it is true that the plaintiffs did not lead any evidence for the purpose of showing that to the best of their knowledge there were no nearer heirs than themselves, they are entitled to rely upon any evidence to this effect which can be found in the statements of any of the witnesses called for the defence, and reliance is placed upon the statement of a defendant's witness, a man named Mihin Lal, a patwari. His deposition is printed at pp. 10 and 11 of the record, and it is shown that in cross-examination Mihin Lal admitted that there was now no one alive in the family of Suchcha Ram. We think that the plaintiffs are entitled to rely upon this statement, and that being so, we are of opinion that the burden of proof was discharged and that the plaintiffs proved themselves to be the nearest heirs of Suchcha Ram.
11. The next question we have to deal with is the interpretation of the deed of gift executed by Suchcha Ram on 15th February 1869. After having carefully considered this matter in the light of the arguments addressed to us we do not feel disposed to differ from the opinion come to by the Court below, namely, that the deed gave nothing more than a life-interest in the property to the two widows.
12. The deed begins by reciting that Suchcha Ram is the owner of the whole 20 biswas in mouza Nagla Anni, and he goes on to say that being in a sound state of mind he has made a gift of the property with all its inherent and adventitious rights to his wives, Mt. Gias Kunwar and Nand Kunwar in the proportion of 15 biswas to the former and 5 biswas to the latter. It is also recited that the donor has withdrawn his possession and has put the donees in possession. Suchcha Ram goes on to say that the donees, while in possession and occupation of the gifted property, shall be 'responsible for loss or gain.' Malik nafa wa nuqsan). The next recital is that neither he nor his heirs shall have any claim whatsoever with regard to the subject-matter of the gift and finally there is a declaration that the donees shall have no right to alienate this property.
13. It is true that if the earlier portion of this document stood alone it might be very difficult to suggest that the gift was not an absolute gift. There is, however, the clause at the end in which it is expressly recited that the donees are to have no right to alienate this property, and if effect is to be given to these words, it necessarily follows that we must hold, in agreement with the Court below, that the two widows took nothing more than the limited estate peculiar to Hindu females. We were asked by the respondents to interpret this document in the light of the principles laid down in the Privy Council case of Shamsool v. Sewak Ram [1874) 2 I.A. 7. Certainly if those principles are to be adopted here in connexion with this deed which was executed in the year 1869, our finding must be in favour of the respondent. The only other course would be to rule out the clause forbidding alienation as being repugnant and of no effect. On the whole we certainly think it possible to interpret this document as conferring a limited interest only and we are not prepared to say that the judgment of the Subordinate Judge on this point is wrong. On this finding, therefore, the judgment of the Court below must be held to be correct, and the plaintiffs being the near est heirs of Suchcha Ram were, entitled to succeed on the death of Parbati.
14. As regards the plea of adverse possession on the part of Parbati which was raised in the Court below, we are of opinion that no such plea can succeed. There is no question of Mt. Parbati's possession having been adverse to the plaintiffs who only became entitled to set up their claim when succession opened after Parbati's death.
15. We may further observe here that, as matters now stand, we should feel ourselves compelled to affirm the lower Court's decree even if it were held in favour of the appellant that Mt. Gias took an absolute interest under the deed of gift executed by Suchcha Ram. If Mt. Gias took an absolute interest as the appellant contends, that the property became Gias's stridhan and would descend first to her daughter Mt. Parbati for her life and afterwards to her daughter Mt. Javitri for her life. We have mentioned above that Javitri died pending this appeal and left no daughter but only sons and so there is now a reverter to the heirs of Mt. Gias, namely, Gias's husband and his heirs. In this connexion we refer to the two judgments of their Lordships of the Privy Council, Sheo Shankar Lal v. Debi Sahai  25 All. 468 and Sheo Partab Bahadur Singh v. Allahabad Bank  25 All. 476. We also refer to the interpretation which was put on these judgments in the Full Bench of the Madras High Court in Subramanian Chetty v. Arunachellam Chetti  28 Mad. l (F.B.). This latter interpretation has been accepted in two cases in this Court, namely, Sham Behari Lal v. Ram Kali A.I.R. 1924 All. 15, Ram Kali v. Gopal Dei : AIR1926All557 . Since the decree was passed in the Court below, execution has been taken out and possession has been delivered to the plaintiff and now that Mt. Javitri is dead and her sons cannot take this property (on the assumption that it was the stridhan property of Mt. Gias), it would not be proper to hand back the property to Javitri's sons and thus to invite the parties to embark upon another litigation. In any view the plaintiffs are nearer heirs than the sons of Javitri for the former are daughter's sons' sons while the latter are daughter's sons. There remains for consideration only one other argument which was pressed upon us in appeal. It was contended on behalf of the defendant-appellant that there had been a family settlement which bound the parties and which constituted a bar to the present claim. There is in reality before us no case of family settlement nor was any such case set up in the Court below. Dr. Sen for the appellant has relied upon what is stated in para. 21 of the written statement by way of reply to what was set out in paras. 7 and 8 of the plaint.
16. All we know in this connexion is that in 1878 Narain Singh, the daughter's son of Mt. Nand Kunwar, seems to have applied for partition as against Mt. Parbati with the result that a one-third share was allotted to the mahal formed in the name of Narain Singh and one-third share allotted to the mahal formed in the name of Mt. Parbati following the arrangement come to between the two widows under the deed of 24th May 1870. As we have said no case of family settlement was raised in the Court below, and as regards the partition of the year 1878 the only evidence before us is the document Ex. D which is described as copy of the lot awarded to Mt. Parbati. An examination of this document shows that a number of fields were assigned to the mahal erected in the name of Mt. Parbati. The list contains the numbers of the fields with the names of the tenants in cases where the fields were cultivated. This is the solitary piece of evidence upon which we are asked to say that there was some arrangement between Narain Singh and Mt. Parbati in the year 1878 which bars the present claim. From what we have said it will be apparent that even if this plea of a family settlement could be raised at the present stage there is no evidence whatever to support it. The production of this list of lots allotted to Mt. Parbati is no evidence whatever of title. It simply suggests that, as a matter of convenience, the two parties, that is to say, Narain Singh and Mt. Parbati, continued an arrangement for exclusive possession of the property in the shares of one-third and two thirds in accordance with the arrangement which had been previously entered into between the two widows under the document of the 24th May 1870. There was no family settlement which would bar the present suit.
17. There is only one matter left for consideration' and that is the question of costs. Neither party has addressed us on this question but it is apparent to us after an examination of the record that the case set up by the plaintiffs that Mt. Javitri was not the daughter of Mt. Parbati was a false case and we have no doubt that it was a false case to the knowledge of the plaintiffs. Practically all the evidence which Javitri called in the Court below was evidence to prove her parentage. In these circumstances we consider that the plaintiffs ought to be deprived of their costs in the Court below. Similarly in appeal we are of opinion that the respondents ought to pay their own costs of the appeal. It is only an accident that Mt. Javitri died while the appeal was still pending.
18. The appeal, therefore, fails but we modify the decree of the Court below by directing that the parties do bear their own costs in the Court below. In this Court also they will bear their own costs.