JUDGMENT

1. This is a plaintiff's appeal. The plaintiff has obtained a foreclosure decree against a share in the village of Bholamau based upon a deed of conditional sale executed in favour of her husband, from whom she is a transferee, by a certain Syed Zafar Mehdi. The trial Court refused to grant her relief against a share in a village called Behta Murtaza. She appeals in respect of the refusal to grant her relief against the share in Behta Murtaza. Although the questions for decision in this appeal require a comparatively short decision, it is necessary to state certain preliminary facts before we arrive at those questions.

2. Moulvi Dildar Ali was a Syed who attained a position of eminence in the reign of King Asafuddaula. In recognition of his learning he received a diploma of Ijtihad from Karbala and was afterwards made Pesha Namaz by King Asafuddaula who gave him the title of Mujtahidulasr or priest of the Shias. He was succeeded by son Syed Mohammad who was succeeded by his son Bande Husain who was succeeded by his son Mohammad Husain. On his death Mohammad Hussain was succeeded by his son Syed Mohammed. A relative called Syed Sibte Husain brought a suit against Syed Mohammad for certain property belonging to the family alleging that it was wakf. The proceedings did not continue for long against Syed Mohammad Husain, as he died. On the death of Syed Mohammad Husain his three brothers, Syed Zafar Mehdi, Syed Dildar Ali and Syed Razi were impleaded as defendants in his place. Syed Sibte Husain succeeded in the trial Court, but in appeal to the Court of the Judicial Commissioner of Oudh a Bench of that Court dismissed the suit of Syed Sibte Hussain with the exception of relief claimed as to certain property which was admittedly wakf, and the three brothers Syed Zafar Mehdi, Syed Dildar Ali and Syed Eazi remained in possession of the property of the deceased Syed Mahomed Husain in three equal shares. This is the litigation which was concluded by the decision of the Bench of the Judicial Commissioner's Court dated 10th March 1915 filed as Ex. E5 in the present book. On 6fch November 1917 Syed Zafar Mehdi executed the deed now in suit, Ex. 2, in favour of Abul Fazal for a consideration of Rs. 2,000. The deed is primarily a deed of conditional sale of a one-third share in Bholamau, one of the villages which had belonged to Syed Mohammad Husain. It contained, however, a condition under which on the happening of certain eventualities a one-third share in Behta Murtaza, another village which has been the property of Mohammad Husain, could be also affected. On 26th August 1918 Syed Zafar Mehdi mortgaged by Ex. E-1 this one-third share in Behta Murtaja with other properties to Ganga Prasad defendant 5 in these proceedings and the sole contrasting respondent in this appeal. In year 1920 Ali-Fatima Begam, the stepmother of Zafar Mehdi and the mother of Syed Dildar Ali and Syed Razi together with Mt. Hajra Begam and Mt. Atiqa Begam, the sisters of Syed Dildar Ali and Syed Razi, instituted a suit against Syed Zafar Mehdi, Syed Dildar Ali, Syed Razi and a lessee called Syed Aulad Husain for possession of their shares in the property left by Syed Mohammad Husain under the Mahomedan Law. The defendants asserted that under a custom of the family females were excluded from inheritance. They pointed out that from the death of Moulvi Dildar Ali up till the time of the institution of the suit no female had ever succeeded to any portion of the property. They further called a mass of evidence including certain wajibul-arz to establish the custom which they asserted. They did not, however, succeed before the trial Court and the decision of the trial Court was affirmed by a Bench of the Judicial Commissioner of Oudh in F.C. Appeal No. 11 of 1921 decided on 2nd May 1922. The learned Counsel for the parties have agreed to bring the record of this case Ex. 10 on to the file of the present appeal and we have permitted it to be brought on in order to