Lord Parmoor:-

This is an appeal from a decree of the Court of the Judicial Commissioner of Oudh, dated the 15th August, 1911, reversing a decree of the Subordinate Judge of Lucknow passed by him upon an application by respondent 1 for the filing of an award.

On the 6th of May, 1909, one Khwaja Farid-ud-din Husain (hereinafter called the testator) died at Lucknow, leaving considerable property, and has as heirs, according to Muhammadan law, a full sister (the appellant herein), two stepbrothers-respondents 2 and 3, two stepsisters respondents 4 and 5, and a widow respondent 6. Shortly before his death, the testator made a will by which he appointed respondent 1 his executor, and, as he was entitled to do by Muhammadan law, bequeathed him one third of his property. After the death of the testator disputes arose between the parties interested, and litigation was commenced. On the 6th August, 1909, the matters in dispute were referred to the sole arbitration of Munshi Sakhawat Ali under a submission of reference in the following forms :-

"Whereas there exists a dispute amongst us, the executants, regarding the estate of Khwaja Farid-ud-din, deceased, and the deed of will, dated the 30th April, 1909, we, the executants, have, of our own accord, appointed Munshi Sakhawat Ali, as a referee for the purpose of settling the matter in dispute. We agree and record that the said refree may decide it in whatever way he may deem proper, we, the executants, shall remain bound by the award. Therefore we have executed these few presents by way of a deed of agreement so that they may serve as an authority."

The arbitrator entered upon the reference and published his award on the 16th July, 1910. He confirmed the appointment of respondent 1 as executor, and gave him one third of the property. The remaining property fell to be divided according to Muhammadan law. The parties were entitled in the following shares :- The appellant to a third share, the respondents 1 and 6 jointly to a moiety, the respondents 2 and 5 to a sixth share. The arbitrator then proceeded to distribute the property in proportion to the shares to which the respective parties were entitled and for this purpose to make a valuation. The property so valued amounted in the aggregate to 91,942 rupees. There was a further item of 4,000 rupees, which was in no sense an ascertained or settled amount, but was based on a right to claim a rendition of accounts from a certain Ahmad Khan, and this item, for what it was worth was allotted to the appellant. The respondents 1 and 6 in respect of their joint half share were allotted property valued at 45,010 rupees. The appellant in addition to the above item of 4,000 rupees was allotted property valued at 30,879 rupees, and respondents 2 and 5 were allotted property, valued at 15,153 rupees. On the face of the award the distribution appears to be fairly made. So far as there is any advantage it is in favour of the appellant. This apparent advantage is referred to and explained by the arbitrator in his award.

At the time of the testator's death there was a considerable mortgage (20,000 rupees) affecting certain portions of his property. The arbitrator recognized that the allottees of the mortgaged property would be under a disadvantage with an apprehension of possible loss. He therefore decided that the debt of 20,000 rupees and its interest should, as among the parties entitled under the will, be a charge on the entire property of the testator, and proportionately on all the co-sharers, and that each co-sharer should be liable to pay in proportion to this share, and that each co-sharer should as soon as possible pay his proportionate share, both capital and interest, to the creditor. Whether this provision in the award did give full protection to the allottees of the mortgaged property, it is not within the province of their Lordships to decide. It is sufficient that matter was considered by the arbitrator and his decision cannot be questioned u