JUDGMENT

Malik, J. - This is a plaintiff's appeal. One Jwala Prasad who was the last male owner of the properties now in suit died in the year 1916. At the time of his death he left a widow Mst. Shiva Kunwar and three daughters, Mst. Chandan Kunwarshe has at times been also described as Mst. Chandrika KunwarMst. Champa Kunwar and Mst. Phulmati Kunwar. On the death of Jwala Prasad, the name of his widow Mst. Shiva Kunwar was entered in the papers. She died sometime in the year 1918 and Chandan Kunwar, the eldest daughter died soon after. A dispute arose between Champa Kunwar and Phulmati Kunwar and the sons of Chandan Kunwar as to the succession. The sons of Chandan Kunwar set up some claim to the property but it is not clear what exactly their claim was. Ultimately the matter was settled in this way that Champa Kunwar and Phulmati Kunwar surrendered their life estates and the grandsons of Jwala Prasad who were then in existence divided the property in three equal shares per stirpes. They have been in possession in accordance with the division of the property in the year 1918. The plaintiff Prem Narain is the third son of Champa Kunwar who was born in the year 1923, five years after the compromise. He has filed this suit claiming a declaration in these terms:

This plaintiff and other daughters' sons of Jwala Prasad aforesaid are the owners of the property mentioned below after the death of Mst. Champa Kunwar, defendant 8.

2. Phulmati died in the year 1925 and her son Jagat Narain predeceased her in 1923. The share that was allotted to Jagat Narain is now in the possession of his father Hansraj. Though the plaintiff has not claimed any relief with respect to the surrender and the compromise dated 28-11-1918, learned counsel appearing for him has assured us that that was what his client intended. The allegations of the plaintiff are that Mst. Champa Kunwar and Phulmati Kunwar were not entitled to surrender their life estate in favour of the next reversioners and this has been explained to us by learned counsel to mean that the surrender was not a bona fide surrender but was a device to devide the property between the daughters and the grandsons. His second line of attack is that Champa Kunwar and Phulmati Kunwar have asserted in the compromise dated 28-11-1918, that Jwala Prasad had left a will in accordance with which the property was to devolve after the death of Jwala Prasad. Learned counsel has argued that the reference to the will vitiates the surrender. His third objection is that the surrender is invalid as the six daughter's sons who were then in existence were not given one-sixth share each as they were entitled to under the law but the property was divided per stirpes between the sons of the three daughters of Jwala Prasad.

3. The will mentioned in this compromise was not admitted on behalf of the plaintiff and his case was that Jwala Prasad had died intestate and had left no will. The lower Court has accepted the evidence of the defendants' witnesses, Hansraj and Totaram, that Jwala Prasad did make a will. We do not see any relevancy to the question of this will as regards the validity of the surrender, but apart from that we are of the opinion that the lower Court was right in accepting the evidence of the witnesses for the defendants that Jwala Prasad before his death had left an oral will. The lower Court has pointed out that if there was no will left by Jwala Prasad there was no reason why any mention should have been made of this will in the compromise dated 28-11-1918. The will attempted to follow as far as possible ordinary rule about succession according to Hindu law. According to the terms of this will Mt. Shiya Kunwar, the widow of Jwala Prasad, was to be the owner of the property in her lifetime and after her death the property was to go to the three daughters of Jwala Prasad in equal shares and the share given to each daughter was to go to her issue. At the time of the compromise dated 28-11-1918, Mt. Chandan