JUDGMENT

Scott-Smith, J. - Shadi, a Kahar by caste, and tailor by occupation, living in the town of Ambala, was the proprietor of the house in dispute and died in 1909. On the 28th July, 1904, he conveyed the house to his wife, Mt. Muhammadi, by a registered deed in lieu of Rs. 400 prompt and deferred dower. She gifted the house to Karam Ilahi whom she alleged to be Shadi's adopted son. It has been held that the adoption was not proved. The first Court held that the deed of the 28th July, 1904, was a deed of sale by Shadi in favour of his wife and that by it she became a full owner and had, therefore, a right to alienate it in any way she pleased. It therefore, dismissed the suit of the plaintiffs-respondents, who are reversioners' of Shadi, for a declaration that the gif should not affect their reversionary rights, The plaintiffs appealed to the District Judge who held that Mt. Muhammadi had only limited rights in the house and had no power to make a gift. He, therefore, reversed the lower Court's decision and gave the plaintiffs a decree for a declaration a3 prayed. Mt. Muhammadi and Karam Ilahi have filed a second appeal to this Court.

2. The Courts below have held that the parties are governed by custom and not by Muhammadan Law and the learned District Judge referred to the decision of Wilberforce, J., in Civil Appeal No. 863 of 1920, dated the 14th July, 1920, wherein it was held that these Muhammadan Kahars\ of Ambala City were not bound by the strict Muhammadan Law as regards succession and that amongst them a widow did not get a definite share of her husband's property. Counsel for the respondents urges that this finding cannot be questioned without a certificate, but there does not appear to be any necessity for the defendants to question it. Their main point is that the deed of sale of 1904 shows that Shadi intended to confer full proprietary rights upon Mt. Mohammadi. The learned District Judge has not come to any clear finding as to what the intention of Shadi was, but he referred to the case reported as Railia Ram v. Mussammat Ved Kaur (1898) 27 P.R. 1898 in which it was held that the word "mailk" in a Will does not necessarily imuly an absolute estate. Now, as pointed out in Gurmukh Singh v. Makhan Singh (1911) 61 P.R. 1911, the decision of their Lordships of the Privy Council in the case of Surajmani v. Rabi Nath Ojha (1908) 90 All. 84 might be taken as rendering obsolete the main principle on which the ruling in Rallia Ram v. Mussammat Ved Kaur (1898) 27 P.R. 1898 was based. Surajmani v. Rabi Nath Ojha (1908) 90 All. 84 together with Gurmukh Singh v. Makhan Singh (1911) 61 P.R. 1911 and Wazir Devi v. Ram Chand (1920) 1 Lah. 415 are authority for the proposition that the word8 "malik" and "malkiyat" in a formal document imply an absolute estate unless there is something in the context to qualify it, and it was also laid down that deeds in favour of females must be interpreted in the same way as any other deed. Now, in the deed in question in the present suit Shadi clearly states that he has given proprietary possession (gabza malikana) to Mt. Muhammadi and also that she has the full power of a proprietor (malikana ikhtiyar) to alienate the house sold. Under these circumstances, I think it must be held that Shadi's intention was to confer an absolute estate upon Mt. Muhammadi. She had, therefore, full power to make the gift in favour of Karam Iiahi and the collaterals cannot question it.

3. I, therefore, accept the appeal and setting aside the order of the lower appellate Court restore that of the first Court dismissing the plaintiff's suit with costs throughout.