Sir Shadi Lal.:-

On 29th October 1914, one Asghar Ali and his cousin Muzaffar Ali granted a mortgage by conditional sale of the entire estate of Ambhapur, popularly known as the taluka of Gandara, and of certain other villages, to the then Maharaja of Balrampur for Rs. 9,20,000. The mortgaged property was situated in the District of Bahraich in the Province of Oudh, aud was fully described in a schedule attached to the instrument of mortgage. Asghar Ali died in January 1915, and his eldest son Iqbal Ali with Muzaffar Ali created in favour of the mortgagee, on 10th August 1915, a further charge on the same property for the sum of Rs. 2,16,425. The mortgagee brought an action to enforce his rights under both the deeds, and obtained, on 20th February 1922, a final decree for foreclosure. In execution of that decree he got possession of the property in April 1922.

Thereupon the sons of Asghar Ali, other than Iqbal Ali, commenced the present action for the recovery of their share of the mortgaged property on the ground that it was the absolute property of their father, and that on his death it devolved on all the persons who were his heirs under the Mahomedan law. They challenged Iqbal Ali's right to mortgage the whole of the estate, and impeached the mortgage transactions on various other grounds. The widow and the daughters of Asghar Ali were impleaded as pro forma defendants to the action, but the Court subsequently allowed them to be added as co-plaintiffs, with the result that the property sought to be recovered amounted to 8/9ths of the mortgaged estate, the remaining 1/9th being the share of Iqbal Ali. The claim was resisted mainly on the ground that the succession to the estate was governed by the rule of primogeniture; and that, according to that rule, the whole of the estate descended, first to Asghar Ali, and, after his death, to his eldest son, Iqbal Ali. It was urged that Asghar Ali and Iqbal Ali were competent to make the alienations in question, and that the plaintiffs had no right to contest them. The trial Judge, as well as the Court of Appeal, upheld this defence, and negatived the claim. On this appeal preferred by some of the plaintiffs it was admitted on their behalf that the only question, which required determination, was whether the succession to the property was regulated by the rule of primogeniture or by the Mahomedan law. The history of the taluka of Ambhapur, in so far as it is material to the issue, may be shortly stated. On the conquest and re-occupation of the Province of Oudh after the Sepoy Mutiny of 1857, the British Government issued a proclamation in March 1858, confiscating, with certain exceptions, "the proprietary right in the soil of the Province," and reserving to itself the power to dispose of "that right in such manner as to it may seem fitting." On 10th October 1859, the Government of India declared that

"every talukdar with whom a summary settlement has been made since the re-occupation of the Province has thereby acquired a permanent, hereditary and transferable proprietary right, namely in the taluka for which he has engaged, including the perpetual privilege of engaging with the Government for the revenue of the taluka."

In pursuance of this declaration, Wazir Ali, with whom a summary settlement of the taluka had already been made, was granted a sanad which conferred upon him "the full proprietary right, title and possession of the estate of Ambhapur." An important condition of this grant related to the succession to the estate, and was in the following terms:

"In the event of your dying intestate or any one of your successors dying intestate, the estate shall descend to the nearest male heir, according to the rule of primogeniture."

It appears that doubts subsequently arose as to the nature of the rights of the talukdars in their estates, and as to the course of succession thereto. In order to remove such doubts the Indian Legislature enacted the Oudh Estates Act I of 1869. In the first l