MALIK, CJ.:- This is an appeal on behalf of the defendant-appellant against a decree passed by the learned Civil Judge of Sultanpur. The points raised in the case were not very difficult but the learned Judge got lost in the number of authorities that were cited before him and appears to have come to an entirely erroneous conclusion.

2. On Thakur Rudra Pratap Singh, Taluqdar of Rampur, had borrowed a sum of money from one Salik Ram on 10-5-1932. Thakur Rudra Pratap Singh died issueless on 3-5-1933. He, however, left a widow surviving him, named Thakurain Sri Nath Kuar. On 14-10-1930, he executed a will which contained the following provision about his wife if he died issueless:

"That Thakurain Sri Nath Kuar will be the owner of the entire taluqa and all the moveable and immoveable properties etc., mentioned above as the widow of the Hindu family provided she leads a moral life. Thakurain Saheba aforesaid shall have no right to transfer the immoveable property. Till the life-time of Thakurain aforesaid no other person shall have any right of any sort in the said property."

The next paragraph in the will is to the effect that after the death of Thakurain Saheba the entire property was to go to Thakur Jai Gopal Singh, son of Thakur Vijay Bahadur Singh, who was to be the owner thereof, but in case neither he nor any male issue were alive on the date of the death of the widow the property was to go to the male issue of Thakur Rajeshwari Prasad Singh.

3. After the death of Thakur Rudra Pratap Singh the widow applied for mutatiori of her name in the village records, mutation was effected and she got possession of the property. On the 2nd of June 1939, Salik Ram filed a suit against Sri Nath Kuer and claimed the money out of the estate of the deceased. A decree was passed in his favour and the decree provided that the money was tog be realised from the estate of the deceased Thakur Rudra Pratap Singh. This decree is dated 30-9-1939. On 2-7-1941 Sri Nath Kuar relinquished the property in favour of Thakur Jai Gopal Singh on condition that he will pay off the debts and will arrange for the maintenance of the widow.

On 24-8-1946 the decree-holder applied for execution of the decree against Thakur Jai Gopal Singh for recovery of the amount due from the estate of the deceased Thakur Rudra Pratap Singh. Thakur Jai Gopal Singh filed an objection on the 23-9-1948 that the decree was not executable against him and that his name could not be substituted in place of the name of the widow. On 2-11-1946 however counsel appearing for him agreed to the substitution of his name but as the decree-holder did not proceed with the execution the papers were consigned to the record room on 13-11-1946.

4. On 13-12-1947 Thakur Jai Gopal Singh filed the suit out of which this appeal has arisen that on 15-8-1932 Thakur Rudra Pratap Singh had made a valid tender of the entire amount due and as Salik Ram had refused to accept the money on 18-8-1932, interest ceased from that date and the widow should have taken this plea in her written statement and she not having done so by reason of fraud or gross negligence the decree was not binding on him.

The other plea was that on the death of Thakur Rudra Pratap Singh the life estate vested in Thakurain Sri Nath Kuar while the vested remainder was in Thakur Jai Gopal Singh. That he should have been impleaded as a defendant in the suit filed by Salik Ram for the recovery of the money. That the widow could not represent the estate and the decree passed against her was not binding on him. That the widow having surrendered the estate in his favour the decree was not executable against the property left by the deceased in his hands. Both these pleas found favour with the learned Judge and he discussed the law at great length on these and other points that were raised before him.

5. The plea of valid tender of the money was raised on these facts: On 15-8-1932, an insured cover for Rs.5200/- was sent by Thakur Rudra Pratap Sing