JUDGMENT

Ghose, J. - This is an application for leave to appeal to Her Majesty in Council. The value of the subject-matter of the suit is far above ten thousand rupees, and the case seems to be an important one.

2. The suit out of which this appeal arises wasino brought by Syed Ashghar Reza and Syed Dilawar Beza, as heirs of one Syed Ahmed Reza, to recover possession of their share in two properties, one of the properties being an 11 gundas share of a zamindari, and the other, a certain putni mehal. The claim was made as against Syed Hyder Reza and Syed Sufdar Reza, their step brothers, being the sons of Syed Ahmed Reza by another wife Afzulunnissa, and as against Syed Lutf Ali Khan, who has derived his title under a sale from those two individuals.

3. As to the first-mentioned property, namely, 11 gundas of the zamindari, it appears that it was purchased at an execution sale in the year 1851, in the name of one Kasim Ali, and this individual subsequently executed an ikrarnama bearing date, the 21st August 1852, in favour of Afzulunnissa, the mother of Hyder and Sufdar, admitting thereby that the purchase had been made from the money of that lady, and that the property belonged to her.

4. The plaintiffs' case was that the property had been purchased by Ahmed Reza with his money in the benami of Kasim, and that he, Ahmed, caused Kasim to execute the said ikrarnama in the name of his wife for his own benefit, and that he was in possession, and not Afzulunnissa.

5. The case on the other side was that the purchase in 1851 by Kasim Ali was a purchase for the benefit of Afzulunnissa and with her money; that it was really transferred to her under the ikrarnama, and that since the purchase she, Afzulunnissa, was in possession, and not Ahmed Reza. A further plea was, however, set up by the defendant, that even supposing that the purchase in 1851 was made with the money of Syed Ahmed Reza, it should be taken to have been a purchase made for the benefit of, or a gift made to Afzulunnissa and her sons.

6. In regard to the other property, namely, the putni, it appears that it was purchased in the year 1867 in the names of Syed Hyder Reza and Syed Sufdar Reza. The plaintiffs' case was that it as purchased with the money of Syed Ahmed Reza, and that it belonged to him; whereas the case of the other side was that it was really a purchase made by Syed Sufdar Reza and his brother, through their guardian, but that even if it be the case, that the money with which the purchase was made was money which belonged to [2973 Syed Ahmed Reza, it should be taken that Syed Ahmed Reza intended it to be an acquisition for the benefit of, or as a gift to, Syed Hyder Reza and Syed Sufdar Reza.

7. The Subordinate Judge held, so far as the first-mentioned property is concerned, that the purchase was made by Syed Ahmed Reza with his own money in the name of his mukhtear, Kasim Ali, and that the ikrarnarna, bearing date August 1852, operated as a transfer of the property from Syed Ahmed Reza to his wife Afzulunnissa. He seems to have also found that the beneficial enjoyment of the property in question since the execution of the ikrarnama was with Afzulunnissa, and not with Syed Ahmed Reza.

8. With regard to the putni the Subordinate Judge held that, although it was purchased with money borrowed by Syed Ahmed Reza, still as he had received various sums of money as profit from the 11 gundas share of the zamin-dari belonging to Syed Hyder Reza and Syed Sufdar Reza, and as he wanted to make a provision for these two young persons, he made the acquisition for their benefit. He also found that the beneficial enjoyment of this property was with them and not with Syed Ahmed Reza.

9. The result was that the suit was dismissed.

10. On appeal to this Court, the learned Judges have agreed with the Subordinate Judge in holding that the purchase of the 11 gundas share of the zamindari in the name of Kasim Ali in 1851 was by Syed Ahmed Reza with his own money, and not by Afzulunnissa; bu