Judgement

Appeal and Cross-Appeal (No. 116 of 1930) from a decree of the Chief Court of Oudh in its appellate jurisdiction (April 22, 1929) varying a decree of that Court in its original jurisdiction (September 5, 1927).

The suit related to four properties held by Sir Fateh Ali Khan, K.C.I.E., a Shia Mahomedan, who died in 1923. The properties were the taluqdari estate Nawabganj in Oudh, and three properties in the Punjab known as Juliana (or Musalla), Rakh Khamba (or Ali Razabad), and Khalikabad. Upon the death of Sir Fateh in 1923 his eldest son, Nisar Ali Khan (appellant in the first appeal), took possession of all four properties. In 1925 Mohammad Ali Khan (the respondent in the first appeal) brought the present suit in the Chief Court of Oudh against Nisar Ali Khan. He claimed the properties other than Khalikabad under wills made by his father Nasir Ali Khan, who died in 1896, or alternatively as his fathers heir. With regard to Khalikabad, which his father had included in a deed of wakf made in 1890, the plaintiff claimed to be mutawalli.

The facts, including the terms of the wills, appear from the judgment of the Judicial Committee.

The trial judge (Pullan J.) made a declaration of the plaintiffs right to possession of all the properties with minor exceptions which he excluded upon grounds not material to this report.

By a judgment delivered by Stuart C.J., and concurred in by Raza J., the Appellate Court affirmed the decision as to the Oudh taluqa and the Punjab property, Juliana or Musalla, but dismissed the claim as to the other two Punjab properties. The appeal is reported at I. L.

R. 5 Luck. 305, and the grounds of the decision are stated shortly in the present judgment.

1932. Feb. 26, 29 ; March 1, 3, 4, 7. De Gruyther K.C. and Wallach for the defendant. The effect of the wills, more particularly having regard to the use of the word "malik," was to give an absolute interest to each of the three successors named Lalit Mohun Singh Roy v. Chukkun Lal Roy (( 1897)

L. R. 24 I. A. 76.); Surajmani v. Nath Ojha (( 1907) L. R. 35 I. A. 17.); Bhaidas Shivdas v. Bai Gulab (( 1921) L. R. 49 I. A. 1.); Sasiman Chowdhurain v. Shib Narayan Chowdhury. (( 1921) L. R. 49 I. A. 25.) The defendants father being thus constituted absolute owner, the subsequent disposition in favour of the plaintiff was void as repugnant Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh.

(( 1929) L.R. 56 I. A. 372.)

Dunne K.C. and Parikh for the plaintiff. The whole of the provisions of the wills should be looked at to ascertain the intention. The testator cannot have intended that the defendant should be absolute owner, and so be able to divert the properties from the plaintiff and the subsequent successors. The judgments of the Board as to the use of the word u malik" show that it indicates an intention to confer absolute ownership only if the context and circumstances do not show a contrary intention Sasiman Chowdhurains case. (4) Here the provisions of the wills are quite incon sistent with the defendant taking an absolute interest. In Raghunath Prasad Singhs case (5) the Board found that the paramount intention was to confer an absolute interest. Upon the plain terms of the wills the plaintiff was entitled to the properties upon the death of the defendants father.

The defendant was estopped from disputing the plaintiffs title to the Rakh Khamba property. It is well settled that the provisions of the Code of Civil Procedure are not exhaustive of the principles of estoppel. The defendant obtained mutation as to the Rakh Khamba property under the will. Having entered into possession under the will he is estopped from disputing the title of the plaintiff as remainderman under its provisions Board v. Board (( 1873) L. R. 9 Q. B. 48.); Dalton v. Fitzgerald, ([ 1897] 1 Ch. 440 ; [ 1897] 2 Ch. 86.) Having regard to Order n., r. 2, the claim as to the Khalikabad property was properly joined. Further, the defendant invited the plaintiff to include th