Sir Madhavan Nair:-

This is an appeal from a decree of the Chief Court of Oudh dated 12th December 1939, which modified a decree of the Additional Civil Judge of Bara Banki dated 12th October 1936, by affirming the said decree on condition of respondents 1 to 3 hereinafter called the respondents (who were plaintiffs 2, 3 and 4 in the suit) paying the appellants (defendants 1 to 5) a sum of Rs. 13,592. The said decree awarded the respondents 7/20th (equivalent to 6 annas 7 1/5 pies) share in the property claimed in the suit. The suit out of which this appeal arises was originally brought to recover possession of the entire property (16 annas share) mentioned in the plaint; but it came to be confined to a 9 annas share only. Plaintiff 1 considering himself entitled to the entire property in suit under a will dated 30th. March 1896, executed by one Prag Baksh Singh (hereinafter called the "testator"), sold a 9 annas share of it to the respondents by means of two successive sale deeds in 1932 and 1933, and another 2 annas out of the remaining 7 annas share to plaintiffs 5 and 6, who afterwards withdrew from the suit by virtue of a compromise with the defendants. Later on, plaintiff 1 also withdrew from the suit. Thus out of the 6 plaintiffs, plaintiffs 1, 5 and 6 withdrew, and the suit was continued by the respondents in respect of the 9 annas share in the suit property which they had purchased from plaintiff 1. The disputed property was admittedly in the possession of the appellants. The testator to whom the property in suit belonged died on 20th May 1913. His relationship with the appellants and plaintiff 1 will appear from the following pedigree:

It will be seen from the pedigree that the testator died issueless but he left two widows - both called Muna Kuar - the senior of whom died on 20th August 1916, and the junior on 24th April 1924. The testator left two sisters also, one of whom Bachchi Kuar had four sons, appellants 1 to 4. Appellant 5 is the husband of appellant 1's deceased daughter. To her appellant 1 had given a village out of the property in suit. It is not now in dispute that appellants 1 to 4 are the sons of the testator's sister who was married to Debi Baksh Singh. It will be further seen that the testator's father's sister married one Shahaj and that Shahaj had a brother called Bhagwan whose first wife was the mother of plaintiff 1. Plaintiff thus appears to be no relation of the testator, but it is not now in dispute that the son of the testator's aunt, the wife of Bhagwan Singh, is Ramanuj plaintiff 1. The main questions involved in the appeal relate to the respective rights of the parties to the suit property. As these depend on the construction of the will of the testator it is necessary to reproduce the relevant portions of it which are as follows :

"Para. 1. That after the death of the executant the wife of the executant shall possess and enjoy the entire aforesaid property without any rights of transfer, e. g., mortgage, sale and gift, etc., up to the time her conduct and character is not contrary to that of kith and kin, i.e., (up to the time) she is not guilty of any immorality.

Para. 2. That if the executant contracts a second marriage in the life time of the said wife and has any child male or female from the second wife then the former wife shall be entitled as against the issue from the latter to receive as much Guzara as may suffice for her maintenance.

Para. 3. That in case there is no male and female issue and wife, the wife of Bbagwan Bux Singh, taluqdar Lahar, pergana, Haidergarh, district Barabanki, who is the aunt (father's sister) of the executant and also the wife of Thakur Durga Bux Singh, taluqdar Nilgaon, the wife of Thakur Debi Bux Singh, resident of village Kundi, district Sitapur, and wife of Thakur Sher Bahadur Singh, taluqdar Muhommadpur, pergana Fatehpur, district Bara-banki, who are the sisters of me, the executant, shall divide the aforesaid property equally amongst themselves and af