JUDGMENT

1. This is an appeal by the plaintiffs Saiyed Kashif Husain, who is described in the grounds of appeal as a vakil practising at Rae Bareli, and his son Saiyed Suleman Husain against the decree of the learned Subordinate Judge, Partabgarh dated 22nd November 1928 dismissing their suit. The facts are as follows: Saiyed Karamat Husain owned the whole of the village asthan in the Partabgarh District. When he died he was succeeded by his four sons Ibn Husain, Kashif Husain, Usuf Husain and Amir Husain. These four sons divided the village into four parts not of equal sizes and each took one part. Ibn Husain obtained the mahal Ibn Husain which comprised a 4 annas 6 pies share in the village; Kashif Husain obtained the mahal Kashif Husain which comprised a 3 annas 6 pies share in the village; Usuf Husain obtained the mahai Usuf Husain which comprised 3 annas 6 pies and Amir Husain obtained the mahal Amir Husain which comprised 4 annas 6 pies. Ibn Hasan died in 1906. He left a widow Kaniz Fatima, a daughter Asia Begam and his three brothers Kashif Husain, Usuf Husain and Amir Husain.

2. The question of his inheritance would have depended on the fact as to whether he was a Shia or a Sunni. There is nothing on the printed record of the proceedings before us to show that he was a Shia or a Sunni. If he were a Shia his widow and his daughter would have succeeded to the whole of his property, and his brothers would have had no share. If he were a Sunni his widow would have succeeded to a 2 annas share in his property, his daughter would have succeeded to an 8 annas share in his property, and his brothers would have succeeded to a share of 2-annas each. We find from Ex.A-6 that on 25th November 1911, his widow and daughter Kaniz Fatima and Asia Begam transferred by a deed of sale in faryour of Mehdi Hasan the whole mahal Ibn Hasan for Rs. 28,500/- of which Rs. 12,454-5-6 were left with the vendee for the satisfaction of debts due from the venders and Rs. 16,045-10-6 were paid in cash to the ladies.

3. Kashif Husain instituted a suit to obtain the mahal Ibn Husain by right of pre-emption. The plaint is Ex.A-5. He instituted this suit against Kaniz Fatima and Asia Begam and the vendee Mehdi Hasan and he also joined Ahmad Husain the father of Mehdi Hasan. In this plaint he states in the para 2 that the mahal Ibn Hasan is in the ownership and proprietorship of Kaniz Fatima and Asia Begam. He makes no suggestion that he had inherited any share in it. But he claimed that both as a relation of the vendors being, as he was, the brother-in-law of Kaniz Fatima and the uncle of Asia Begam and as a co-sharer he had a right to obtain the property by pre-emption for Rs. 28,500. We have not the judgment before us. It was produced in evidence but it has not been printed. But we have the decree as Ex.A-9. It is dated 20th February 1912. It granted him the property on payment of Rs. 28,500/- We find that Kashif Husain obtained the money with which to pay up this pre-emption decree by borrowing it from Ganga Bakhsh Singh, and he executed on 8th March 1912 a deed of mortgage (Ex. A-1) in favour of Ganga Bakhsh Singh by which he mortgaged not only the mahal Ibn Hasan but also mahal Kashif Husain. We find that he has since combined these two mahals into one. Subsequently Ganga Bakhsh Singh instituted a suit on this deed of mortgage Ex. A-1 and obtained, a decree on 17th June 1920 (Ex. A-2). In execution of this decree mahal Ibn Hasan was brought to sale. We need not give in detail the exceedingly lengthy proceedings in respect of the sale of this mahal. It is sufficient to say that they continued until the 20th May 1926, and proceeded for some years. The decree-holder did not endeavour to bring to sale during these proceedings the mahal Kashif Husain. We are told that he is now proceeding against that mahal for the balance of that decree. The proceedings in question affected only the mahal Ibn Hasan. Kashif Husain the present plaintiff-appellant obtained