Lord Shaw:-

This is an appeal from a judgment and decree of the High Court of Judicature for the North-Western Provinces, Allahabad, which reversed a judgment and decree of the Subordinate Judge of Bareilly.

The principal object of the suit is to obtain a declaration that the defendant No. 1 has no right or share in a 13 biswa and 8 biswansi zemindari share in mouza Tigra Khanpur, and that that share is saleable in satisfaction of a balance of debt, still unpaid, by Wilayat Ali Khan.

Wilayat was the husband of Musammat Bigga Begam. He was indebted to Durga Prashad in a considerable sum of money, which he had borrowed under a bond, dated the 5th February 1878, hypothecating, among other properties, the share in mouza Tigra Khanpur just mentioned. The mortgagee obtained a decree on the bond against the mortgagor on the 26th March, 1896, and that decree was made absolute in the following December. Some of the mortgaged properties were then sold. Among others the share in mouza Tigra Khanpur was sold in execution of the mortgage decree, and on the 20th July, 1898, was purchased by Musammat Bigga Begam, Wilayat's wife, and Hakim Ahsan Ali Khan for 10,000 rupees. There is nothing surprising in the transaction. Wilayat and his wife seem to have been persons in good position, and the purchase by her and the co-purchaser, named Hakim Ahsan, appears to have been considered by the family and all concerned as quite natural. This was in the year 1898. On the 20th December 1899, Hakim Ahsan Ali Khan executed a deed relinquishing all his rights to the property. Bigga Begam obtained possession. Her name was duly recorded in the revenue papers, and a great quantity of receipts and documents of that kind has been produced, showing that she duly received the rents and produce of the property up to the time of her death. This event occurred on the 21st October 1908.

About a fortnight before, namely, on the 9th October, she executed a will in favour of the appellant. Her husband Wilayat, and her nephews, Iqbal Husain, alias Kalan, Aulad Husain, and Hamid Husain, consented to the testamentary disposition of her entire estate. It cannot be denied that they did so both during her life and after her death. The Will bears the husband's attestation, and it is proved that husband and nephews were informed by her of her testamentary intentions and consented thereto. On the 4th December, 1908, the husband and the nephews executed deeds of relinquishment of the shares, ratifying their consent, and on the 20th January, 1909, two applications were made by the husband and the nephews respectively for mutation of names in favour of the appellant.

The appellant, having thus inherited the property in dispute, obtained possession thereof, his name was duly recorded in the revenue papers, and he has been in actual possession ever since.

It will be observed accordingly that for about ten years the share in this mouza had passed out of the possession of Wilayat and into the possession of his wife, and thereafter of her devisee. This unquestionably must have been to the knowledge of Durga Prashad.

When, however, in October, 1908, Bigga Begam died, it appears then to have occurred to Durga Prashad that he might attach and realise under his judgment-decree the interest which Wilayat would have under the Mahomedan Law in the property of Bigga Begam, his wife, notwithstanding her will. By the Mahomedan Law, explained in the 'Hedaya,' Hamilton's Edition, IV, 469, and founded upon a declaration of the Prophet, the power of a testator to leave his property by will is limited to a one third share. By the same law the husband would have been entitled to another third and the nephews to the remaining third. Durga Prashad was advised at this period by one Ramji Mal, who was his general attorney and is now the general attorrey of his sons, and who is the principal witness in the present case for them as plaintiffs. His evidence is not believed by either of the Courts below, but this muc