Judgement

Appeal from a decree of the Judicial Commissioner of Oudh (Aug. 24, 1882), reversing a decree of the District Judge of Rae Bareli (June 30, 1881), which dismissed the Respondents suit to recover possession of an 8a. 7p. share of talookas Audari and Lewana, and in lieu thereof decreeing to the Respondents posses sion of a la. lip. share of the said talookas.

The question decided in the appeal was as to the legal effect under Mahomedan Law of a certain agreement of compromise made between Mahomedans represented by the parties to the appeal, and dated April 28, 1866.

The circumstances which led up to that compromise and resulted from it, and the proceedings in the suit, are sufficiently set out in the judgment of their Lordships.

The judgment of the District Judge (Mr. Saiyid Mahmoud), so far as material, was as follows—

" The parties being Sunnis, the suit is governed by the Hanafea school of Mahomedan Law. It is necessary to consider the nature of the rights conferred by the compromise of the 28th of April, 1866, on Abdus Subhan and Abdul Rahman. The terms of that compromise are contained in two applications of that date, one filed by Abdus Subhan, and the essential part of which may be literally translated thus—

I, executant, put it down in writing that my mother, the Defendant, may remain during her lifetime, as hitherto, proprietor and possessor of the said taluka, and may manage the ilaka through karindas (agents). But without necessity with the especial view of destroying my rights she may not alienate any property, and after her death I, executants, and my elder brother Abdul Rahman, may become possessors and appropriators of the ilaka, situate in the districts of Sultanpur and Partabgarh. And during the life of the Defendant I shall not disobey her in any way.

" The material parts of the corresponding application, made by Gauhar Bibi, on the same day, is in these words, which may be literally translated thus—

I, executants, with a view of foresight, have settled in this manner, that during my lifetime I myself continue possessor and proprietress as hitherto, and manage the said taluka through karindas (agents) and without necessity, with a special view of destroying the rights of these two young men, I may not alienate any property of the ilaka situate in the districts of Sultanpur and Partabgarh. After my death the two young men, Abdul Rahman Khan and Abdus Subhan Khan, are both heirs and owners of the whole ilaka, they may both become in half shares possessors and appropriators.

"From these words in the applications it is clear to my mind that the parties to the compromise intended that Gauhar Bibi should continue to be the proprietress and possessor of the estate as before, without any limitations or restrictions which would divest her of ownership during her lifetime. The words " badastur malik wa kabiz,which occur in both applications leave no doubt upon this point. Much stress is laid on behalf of the Plaintiffs on the expressions contained in the applications to the effect that Gauhar Bibi would not alienate the property without necessity, and it is contended that these words had the effect of making Abdus Subhan and Abdul Rahman owners of the estate subject only to the life-estate of Gauhar Bibi. And in arguing the case an attempt has been made to draw an analogy between the position of Gauhar Bibi after the compromise, and the estate possessed by a childless Hindu widow under the Hindu Law, in her husbands property. But the Hindu Law has so little in common with the principles of Mahomedan Law, that it can never be safe to draw generalised inferences on mere analogies. Moreover, in the present case, I am of opinion that no such analogy exists. It must be borne in mind that ever since the death of Mouzzam Khan, Gauhar Bibi distinctly asserted herself as the only lawful wife of the deceased, that throughout she denied the legitimacy of Abdul Rahman and Abdus Subhan, and in the suit in which the compromis