These are consolidated appeals from a judgment and decree of the Chief Court of Oudh, dated the 12th January, 1943, which modified a decree of the said Court in its Original Civil Jurisdiction, dated the 30th October, 1937. Sardar Nawazish Ali Khan will be referred to hereinafter as “the Appellant,” and Sardar Ali Raza Khan as “the Respondent”.

The family to which the parties belong are Shiah Mohammadans of the Ashna Ashari Sect governed by the Imamia law.

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:-

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 Rabranch 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 section 8 of that Act, the intestate succession was regulated by the rule of primogeniture, and in accordance with the scheme laid down in section 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.

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 the 14th February, 1882, he bequeathed the Oudh estate to his said brother under the power conferred by section 11 of the 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.

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 connection with the descent of the Oudh estate.

On the 15th July, 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.

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 section 11 of Act I of 1869, I, by means of this will, do hereby appoint Nawab Fateh Ali Khan, son of my late brother Kawab Nisor Ali Khan, my executor and successor of all this Taluqdari estate with all the rights and interest aforesaid and do hereby authorise 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 of will. After the lifetime of my son Nawab Mohammad Ali Khan, Nawab Hidayat Ali Khan son of the late Sir Nawab Haji Nawazish Ali Khan Saheb shall be his successor provided he be alive. After all these three successors the fit amongst the descendants of the successors shall succeed. The last devisee shall have power to nominate as his successor any one whom he might consider fit from amongst the descendants of each of the three successors and if the last devisee die without nominating a successor the male descendants of each of the three successors shall have power to appoint as successor whomsoever they consider fit and superior amongst themselves. The line of successors shall conti