JUDGMENT

Ashworth, J. - These two appeals arise out of two suits brought by the plaintiffs-appellants against the respondents for possession of certain property. The property belonged to one Amolak Ram, who died in 1879, leaving a widow Mt. Bir Kunwar. She died in 1881, leaving three daughters. Two of these daughters jointly in 1882 alienated a portion of the property in suit. The third daughter in 1885 alienated the rest of the property in suit. All three daughters are now dead, and the plaintiffs claim that they are entitled to the property as reversionary heirs of Amolak Ram, and that the alienations mentioned are ineffective against them now that the daughters are dead. The appeal No. 546 deals with the O. Section 164 of 1923. In that suit the District Judge hold that the alienation of 1882 by Mt. Lachhmi and Mt. Barfi was for necessity. This was a finding of fact, and the appellants have not been able to show that it was based on any mistake of law. Their suit-therefore, No. 164 must fail, and the appeal fails, in my opinion, on the ground that the question is concluded by a finding of fact. I may mention that it was in this suit that the question of the suit being barred under Order 2, Rule 2, arose. It does not seem to me necessary to decide this point, but if it had been necessary I would have concurred with the view of my learned brother.

2. As regards the appeal No. 545, which is in respect of Suit No. 131, it was necessary for the plaintiffs to prove that, on the death of the last of the three daughters of Mt. Bir Kunwar, they were entitled to the estate of Amolak Ram. One amongst other pleas by defendant was that Amolak Ram having been a Jain, and this property being his self-acquired property, his widow Mt. Bir Kunwar got an absolute estate in that property by Jain custom. Both the lower Courts have found that the custom was proved, and the extent of the custom as found by the trial Court was this. The custom gave the widow absolute right to transfer the property derived from her husband in her lifetime, but, on the other hand, if not transferred the property would descend as the estate of her husband and not as the stridhan of the widow. The lower appellate Court accepted this view. It went on, however, to hold that the widow had made a will conferring an absolute estate in her three daughters. I concur with my learned brother that there was no evidence by which the making of an oral will, by Mt. Bir Kunwar or the terms of such oral will if one was made, could be held proved. The document relied upon was the award of an arbitrator, who was appointed by the three daughters of Mt. Bir Kunwar to settle their inter se claim's on the assumption of a will. The arbitrator said in his award that he had ascertained by inquiry the terms of the will. Now if the arbitrator had been alive and had come into Court, it appears to me that his evidence would have been inadmissible as mere hearsay evidence. I cannot think that, because this hear say evidence has been expressed by him in an old document it ceases to have to be regarded as mere hear say evidence. There are only two questions with which I consider it now necessary to deal in this appeal. One is whether under Jain custom Mt. Bir Kunwar inherited this property as her stridhan or whether, for the purposes of succession to her, she must be regarded as only having had a widow's estate notwithstanding that according to the Jain custom she could before her death have disposed of it as she liked.

3. The contention of the appellants is that Mitakshara law makes no distinction between property which a woman can dispose of as she likes and stridhan property. It considers the two expressions synonymous. For the respondents it is maintained that it is possible for a widow to have a widow's estate in her husband's property and yet, by reason of a custom such as the one now set up, to have a right of absolute disposal during her lifetime. It is pointed out that, according to the Bombay