( 1 ) ONE Hakim Ali was the owner of two annas eight pies share out of sixteen annas in village kasmandi Kalan, Pargana and Tehsil Malihabad, in the district of Lucknow. He had four sons wajid Ali, Faqir Mohammad, Nazar Mohammad and Saiyid Ahmad. Wajid Ali died in his fathers lifetime. He left a son Wahid Ali, alias Kallan. Under the Mahomedan Law Wahid Ali, his father having predeceased Hakim Ali, was not an heir of Hakim Ali. Hakim Ali on 17th May 1903, executed a will in favour of his three surviving sons Faqir Mohammad, Nazar Mohammad and Saiyid Ahmad and his grandson, Wahid Ali. It is the interpretation of this will with which we are mainly concerned.

( 2 ) HAKIM Ali died on 18th September 1909. His three sons and his grandson Wahid Ali alias kalian survived him. The property, that is, the two annas and eight pies share, was mutated in the name of his three sons and his grandson Wahid Ali on the basis of inheritance. On 11th April 1928, Wahid Ali gifted his entire share which was eight pies in the village aforementioned, to kulaumunnissa, wife of Faqir Mohammad, that is, to his aunt. She got mutation in her favour and in 1937 the property waa partitioned through the revenue Court and a separate chitthi was prepared in favour of Kulsumunnissa of this eight piea share. Tbis partition was affirmed on 30th july 1939. Wahid Ali died on 5th October 1940. Wilayat Ahmad, one of the five sons of Nazar mohammad claimed a one seventh share in these eight pies and filed the suit on the allegation that defendants 1 and 2, who were sona of Kulsumunnissa, Kulsumunnissa having died in 1941, were in wrongful possession of the property in suit.

( 3 ) THE suit was contested by defendants 1 and 2, Siddiq Ahmad and Mushtaq Ahmad sons of kulsumunnisaa, on various grounds.

( 4 ) THE suit was, however, decreed with half the costs in favour of the plaintiff for joint possession of plaintiffs one-fifteenths share of 16 Biswansis 13 Kachwansis and 6. 11/16 anwansisshare of patti Kulsumunnissa. The learned Munsif held that the plaintiffs share was not one-seventh but one-fifteenth, that Wahid Ali got merely a life estate under the will and on the death of Wahid Ali the property reverted to the three sons of Hakim Ali and the gift executed by wahid Ali in favour of Kulsamunnissa was, therefore, of no legal validity after Kulsumunnissas death.

( 5 ) THIS judgment was upheld by the Additional Civil Judge of Lucknow who dismissed the appeal filed by the defendants, the plaintiff having submitted to the decree.

( 6 ) ON second appeal to this Court a learned single Judge held that on a true interpretation of the will the testator intended to give to Wahid Ali for his lifetime merely the usufruct of the one-fourth share and he had no intention to give the corpus of the property to Wahid Ali. That the will was, therefore, valid and, on the death of Wahid Ali, the property vested in the three sons of Hakim Ali, and if they were dead, in their legal representatives. Second plea that had been raised before the learned single Judge that the suit was barred by Section 233 (k), Land revenue Act was decided against the defendants. The appeal was dismissed bat the learned single Judge gave leave to the defendants to file an appeal under Section 12 (2), Oudh Courts act.

( 7 ) LEARNED counsel for the respondents has raised a preliminary objection that the learned single judge should not have granted leave under Section 12 (2), Oudh Courts Act. He has relied on several decisions of the Oudh Chief Court that a mere question of the interpretation of a document is no ground for giving leave. The cases cited are: Dayanat Ullah v. Atia Khanam, 1940 Oudh W. N. 193, Uman Shankar v. Ashraf Husain, 1943 Oudh W. N. 372, Brij Bhukhan v. Bhagwan Datt, 1948 Oudh W. N. 404 and Beni Madho v. Harihar Prasad, 1946 Oudh W. N. 331. Learned counsel has urged that this view has been consistently followed by the Chief Court ever since its foundation in 1925 It is not necessary