JUDGMENT

Ashworth, A J C - These first civil appeals arise out of a suit brought by one Salar Khan for the recovery of certain property, which it was alleged had belonged to his deceased sister Mt. Waziran in virtue of a deed of gift executed on the 17th January, 1905, by her husband, Ghulam Murtaza Khan. The suit was brought against the nephews of Ghulam Murtaza, defendants 1 and 2, and against persons to whom they had transferred the property, defendants 3 to 18.

2. In paragraph 3 of the plaint, there is also a claim for 3 bighas 3 biswas, which it is stated that Mt. Waziran purchased, during the life-time of her husband, on the 30th July, 1901. The defence of the defendants as to this was that it was purchased benami really by her husband, in which case it would be part of the property included in the alleged deed of gift by the husband to Mt. Waziran. The Subordinate Judge framed an issue as to whether this sale-deed in favour of Mt. Waziran was a benami transaction, but did not decide the issue on the ground that the point was not pressed. Accordingly, he decreed the claim in respect of this small area, and against this part of the decree there is no appeal. By an oversight, however, he appears to have omitted this area in his decree.

3. This Subordinate Judge decided that the deed of gift of the 17th January, 1905, Exhibit 5, read along with a will Exhibit-A-13, and an agreement Exhibit-A-14, both executed by Ghulam Murtaza and dated the 18th January, 1894, should be construed as in the nature of a family arrangement, and as such, it gave Mt. Waziran an absolute interest in one-third of the property mentioned in it, and a life estate in the remaining two-thirds. Accordingly, he passed a decree in favour of the plaintiff for one-third of the property mentioned in the deed of gift. It may also be mentioned that the Subordinate Judge, under Issue 4, decided that Ghulam Martaza was a Hanafi Musalman, and that he did not belong to the Shia sect. This decision has been impugned in ground 4 of Appeal No. 51, but this ground has not been pressed. The questions involved, therefore, must be decided on the basis that the Muhammadan Law applicable is the Hanafi and not the Shia law.

4. From this decree of the Subordinate Judge the defendants have appealed in Appeal No. 51, contending that the deed of gift, along with the attendant circumstances, constituted a family arrangement that Mt. Waziran should only hold her husband's property during her lifetime, and that, thereafter, the nephews, namely defendants 1 and 2, should have the reversion of the whole estate. The plaintiffs in Appeal No. 44 impugn the decree of the Subordinate Judge on the ground that the deed of gift of the 17th January, 1905, should not have been construed as a family arrangement, but as a gift parting with the whole of the property mentioned therein to the widow absolutely, and that the will and agreement of the 18th January, 1894, were inoperative and could not be used to affect the deed of gift.

5. The first question then which arises in these appeals is whether the lower Court was justified in considering that the deed of gift, Exhibit 5, read along with the will Ex. A-13, and the agreement Ex. A-14, constituted a family arrangement. My finding is that he was wrong. The agreement was merely a declaration by Ghulam Murtaza that he executed the will to obviate mischief and dispute. It could have no effect of any kind, and cannot be used, as it was used by the Subordinate Judge, to prove that there was any existing family dispute.

6. Ghulam Murtaza, his wife, and the nephews, were perfectly aware that the disposition of the property, so far as it could be disposed of by will or gift, rested entirely with Ghulam Murtaza, and the mere fact that the apprehended dissatisfaction on the part of the widow or on the part of the nephews, or both, would not show the existence of a bona fide family dispute. Reliance has been placed by the defendants on the fact that the d