Sir John Beaumont. -

These are consolidated appeals from a judgment and decree of the Chief Court of Oudh, dated 12 - 1 - 1943, Reported in ('43) 30 AIR 1943 Oudh 243-Ed, which modified a decree of the said Court in its original civil jurisdiction, dated 30 - 10 - 1937. Sardar Nawazish Ali Khan will be referred to herein - after as "the appellant", and Sardar Ali Raza Khan as "the respondent."

[2] The family to which the parties belong are Shiah Mohammadans of the Ashna Aahari Sect governed by the Imamia law.

[3] The litigation which led up to these appeals arose out of the wills of Nawab Sir Nawazish Ali Khan and Nawab Nasir Ali Khan, who were related to the parties to these appeals as shown in the pedigree following :

Nawab Ali Raza Khan

(died 24th June 1865)

Sir Nawazish Ali Khan, K.C.I.E. Nawab Nasir Ali Khan Nisar Ali Khan

(died 1890) (died 19th Nov. 1896) (died 1878)

Hidayat Ali Khan Khan Bahadur Sardar

(born about 1878; Mohammad Ali Khan

died 25th Oct. 1924) born about 1870)

Sirdar Nawazish Ali Khan Mohd. Husain

(born 1901) (born 1902)

(Appellant)

Sirdar Ali Raza Khan Ali Khan Mansur Ali Khan And others

(born 1892) (born 1894) (born 1894) born after 1894

(Respondent)

Barkat Ali Khan Sir Fateh Ali Khan, K.C.I.E.

(born 1856; (born about 1863;

died 11th April 1912) died 28th October 1923)

Ali Mohammadan Khan Nisar Ali Khan

(born 1879; (born 1901) and three other

died 14th October 1926) sons younger.

[4] The estates, the title to which is contested in these appeals, are first an estate in Oudh (hereinafter called "the Oudh estate") known as the Nawabganj Aliabad estate in the Bahraich District which was granted to Nawab Ali Raza Khan, and was shown as No. 151 in List I of the lists in the Schedule to the Oudh Estates Act, 1869, and No. 39 in List V, so that under S. 8 of that Act the intestate succession was regulated by the rule of primogeniture, and in accordance "With the scheme laid down in S. 22 of the Act. Secondly, an estate in the Punjab called the Rakh Juliana estate (hereinafter called "the Juliana estate") which was granted by the Government of India to Sir Nawazish Ali Khan.

[5] Both these estates were owned by Sir Nawazish Ali Khan. He transferred the Juliana estate to his brother Nasir Ali Khan in his lifetime. By his will dated 14 - 2 - 1882, he bequeathed the Oudh estate to his said brother under the power conferred by S. 11, Oudh Estates Act, 1869, which enabled him to make such a bequest, notwithstanding that under his family law he could only bequeath one - third of his property.

[6] At the date of his death in 1890 Sir Nawazish Ali Khan had a son Hidayat Ali Khan, who would have succeeded to the Oudh estate under the Act of 1869, if Sir Nawazish Ali Khan had died intestate. This is relevant in connexion with the descent of the Oudh estate.

[7] On 15 - 7 - 1896, Nasir Ali Khan executed two wills, one disposing of the Oudh estate, and the other of the Juliana estate and another estate in the Punjab. It is common ground that the heirs assented to the wills.

[8] These wills are in substantially the same form. It will be sufficient to quote the material provisions of the will with regard to the Oudh estate :

"Now, under S. 11 of Act 1 of 1869, I, by means of this will, do hereby appoint Nawab Fateh Ali Khan son of my late brother Nawab Nisar Ali Khan, my executor and successor of all this Taluqdari estate with all the rights and interest aforesaid and do hereby authorize the executor that whatever Taluqdari powers over the above - mentioned ilaqa and over all the properties moveable and immoveable I the said declarant have, my devisee, to wit, Nawab Fateh Ali Khan after my lifetime shall have like myself the very same powers including the power of possession and enjoyment as owner provided he be alive. Similarly after the lifetime of the devisee Nawab Fateh Ali Khan my son Nawab Mohammad Ali Khan shall, if alive, be his successor. He shall also have the very same powers as have been bestowed on Nawab Fateh Ali Khan by means of this deed