Lord Atkinson :-

These are consolidated appeals from two decrees of the Court of the Judicial Commissioner of Oudh, Lucknow, both dated the 13th of November, 1911, which reversed in part and modified in part two decrees, each dated the 25th of October, 1909, of the Court of the Subordinate Judge of Lucknow.

The first of the two suits in which those last-mentioned decrees were made, namely, that numbered 76 of 1907, the appeal in which is No. 121 of 1913, was instituted by Mirza Sadik Husain Khan, the appellant in both the present appeals, to enforce a mortgage, dated the 26th of June, 1900, executed in his favour by the third respondent in the first appeal, namely, Nawab Ummat-ul-Fatima, in her own right, and also as guardian of her two sons, then minors, the first and second respondents in the first appeal, to secure the repayment of 20,000 rupees admittedly advanced by the mortgagee to this lady, with interest at 1 per cent. per mensem.

The second of these suits, namely that numbered 51 of 1908, the appeal in which is numbered 134 of 1913, was instituted by the respondents, Nawab Saiyid Hashim Ali Khan, and Nawab Kasim Ali Khan, the latter by his guardian, against this same mortgagee and one Sultan Mirza, claiming to be the step-brother of the plaintiffs, for a declaration that a second mortgage made by the said Sultan Mirza of his share in all the family property in this mortgagee's favour, to secure the repayment of a sum of 8,000 rupees, with interest, was a nullity, on the ground that the said Sultan Mirza was not entitled to any share in the family property, first by reason of the provisions of a certain indenture, dated the 5th of February, 1895, hereafter dealt with, and secondly because he was not the legitimate son of his alleged father, the grantor in the said deed. This declaration is the only specific relief prayed for, but there is a prayer for general relief.

The litigation relates to the estate of Nawab Zaigham-ud-Daula, who was the son of the Prime Minister of the last King of Oudh, and a Muhammadan of the Shia sect. He was admittedly regularly married twice. By his first wife, Badshah Begum, he had two sons and one daughter, who predeceased him, and one daughter, Raushan Ara Begum, who survived him. By his second wife, the third respondent in the first appeal, married after the death of the first wife, he had two sons, the first and second respondents in that appeal. He died on the 1st of August, 1898.

Both these suits were tried by the same Subordinate Judge, who delivered separate judgments. The Court of the Judicial Commissioner dealt with both the appeals in one judgment.

The appellants and the respondents in both appeals agree in stating that the principal questions for decision are (1) whether this trust indenture of the 5th of February, 1895, duly executed by the deceased Nawab and registered, was a valid disposition of the properties therein comprised, and, if so, whether the abovementioned mortgages, so far as they purport to charge these properties and the alleged share of Sultan Mirza in the family property respectively, are invalid; and (2) whether Sultan Mirza was shown to be the legitimate son of Zaigham-ud-Daula, the grantor in the trust deed. It was not, as their Lordships understood, disputed that the sum of 20,000 rupees, purported to be secured by the first mortgage, was, in fact, advanced to the Nawab's widow; nor that it was borrowed for the purpose of being applied in payment of certain of the settlor's debts, in order to save some of the properties comprised in the trust deed from being sold at the suit of some unsatisfied creditors, nor that it was, in fact, so applied. No question was raised as to whether the first mortgage did not, under the circumstances, capture whatever interest the three respondents might have had in the entire immovable property of Zaigham-ud-Daula, however derived. Their Lordships therefore base their decision solely on the points raised by the parties and dealt wi