JUDGMENT

1. This appeal arises out of a, suit brought by the plaintiff Mohammad Ghafoor Khan for possession of 1frac 12; pies share in village Sundarwa. The plaintiff claimed as a reversioner of one Ghulam Husain Khan. It was his case that the family was one of Mudarkya Chhatris, originally Hindu but converted long ago to Muhammadanism, and that succession in the family was governed by a custom which was neither a Hindu nor a Muhammadan custom. The custom set up in the plaint, paragraphs 4 and 6, was that on the death of a male the widow would succeed to a life-estate without any power of alienation and that on the widow's death the reversioners at the time of that widow's death would be entitled to succeed. The Subordinate Judge, on the strength of certain ruling of this Court, namely, Farzand Ali v. Karim Bakhsh (1921)8 O.L.J. 138,. held that if the widow under the custom, as is described in the wajib-ul-arz relied upon, held a life-estate without power of alienation then it inevitably followed that upon the widow's death the estate would go not to the reversioners as they existed at the date of the widow's death but to the heirs of the husband (or their successors-in-interest) as they existed at the date of the husband's death. In appeal it is contended that the ruling referred to dealt with a wajib-ul-arz quite different in many respects from the wajib-ul-arz produced in this case, and that the ruling was no authority for the general proposition that the right of a widow of a life-estate without power of alienation must mean that the succession opened at the death of the husband's death, and not at the date of the widow's death. Any such proposition does not seem tenable in view of the Privy Council ruling in the case of Thakurain Harnath Kuar v. Thakur Indar Bahadur Singh A.I.R. 1922 P.C. 403, in which it was held that, where a widow held an estate under Section 92, Clause (5), of the Oudh Estates Act succession did not open until her death (notwithstanding that under this provision of law the widow would not have any power of alienation)

2. We consider that the Subordinate Judge should have proceeded to take and consider all the evidence relevant to the existence of the custom set up, and as he has decided the case upon the preliminary point that the custom set up could not exist, we remand the case for disposal on its merits.

3. It has been urged also by the appellant's learned Counsel that the Subordinate Judge should have allowed his application for amendment of the plaint, a translation of which application is printed on page 129 of the record of proceedings, Part I of the Printed Book. This application asked in effect that the plaintiff should alternatively be allowed to set up the case that he was entitled to the property claimed even if the custom, as set up, were held not to exist, and it were held that succession opened at the date of the death of Ghulam Husain Khan and not at the date of the death of the widow, Mt. Armani Bibi. We are of the opinion that this application should have been granted or, at any rate, as the case now stands, it should be granted.

4. Accordingly we allow this appeal and send back the case with the above remarks for disposal by the lower Court. The costs of this appeal will abide the result of the case.