JUDGMENT

Smith, J - This is an appeal from a decree of the Subordinate Judge, Sultanpur, dated 25th August 1931, setting aside a decree of the Additional Munsif, Sultanpur, dated 13th April 1931. The facts of the case are sufficiently set out in the judgment of the learned Subordinate Judge, and it is not necessary to repeat them in detail. The dispute in this case relates to property which originally belonged to one Bechan Khan of village Ganjehri, in the District of Sul-tanpur. He died childless in or about 1906, leaving his widow, Mt. Sitola, and his mother, Mt. Sukhrani. Mt. Sitola died in or about 1908. Mt. Sukhrani died in or about 1922. Mt. Sitola did not get possession of the property left by her husband. It was Mt. Sukhrani who took possession of the property on the death of Bechan Khan. She mortgaged it to Abdur Rahman Khan (plaintiff-appellant) for Rs. 700 on 29th April 1920. Thus she executed the mortgage more than 12 years after she had obtained possession of the property left by her son Bechan Khan. The plaintiff, Abdur Bahman Khan, sued for possession of the mortgaged property on the basis of the mortgage mentioned above. He claimed a certain amount as damages also. He prayed in the alternative for a decree for the principal and interest due on the mortgage by sale of the mortgaged property in suit.

2. The plaintiff's case was that Mt. Sukhrani was the absolute owner of the property in suit, and that she had been in adverse possession of the property for more than 12 years. The claim was resisted by the defendants Ahmad Khan and Alaf Khan, who are the collaterals of Bechan Kban deceased. They are now in possession of the property in suit. Their defence was that the mortgage in suit was without consideration, that Mt. Sukhrani had simply a life estate in the property, and that she had no power of transfer under custom. The learned Munsif found that the mortgage-deed in suit was for consideration, that Mt. Sukhrani had succeeded to the property as a mother, that she had only a life estate in the property, that her possession was not adverse, and that she had no power of transfer. He however held that the plaintiff was entitled to recover possession of the property in suit as a mortgagee on the basis of the mortgage in suit. The plaintiff's claim for possession of the property in suit was therefore decreed, but he was not awarded any interest or damages. The defendants' appeal was allowed by the learned Subordinate Judge. He held that Mt. Sukhrani was not the absolute owner of the property in suit, but had got only a life estate in the property. He considered the question of custom set up by the defendants and decided it in their favour. He therefore allowed the appeal and dismissed the plaintiff's suit with costs. The plaintiff has come to this Court in second appeal. In our opinion this appeal should be allowed. The ancestors of the parties, who are Khanza-das were admittedly originally Bachgoti Thakurs. It is not disputed that inheritance among them is governed by custom. The defendants rely on the custom recorded in the wajibularz of the village Ganjehri. We have examined the wajibularz, which has been translated by the learned Subordinate Judge in the following terms:

On the death of a sonless owner, his widow becomes the rightful heir to his entire assets on condition that she retains good character and remains in his family. Daughters generally and widows, in the presence of sons, are excluded from inheritance. It is the duty of the heirs to maintain the widows and get the daughters married. If there be several widows and an equal number of sons from them, then the property is divided according to the number of sons. There is no custom of the Jethansi. in the family. A widow has got the power to adopt any one of the family but not an outsider.

3. The expression in the wajibularz "Zauja uski waris kamil mal matruka hoti hai" has been translated by the learned Subordinate Judge in the following terms: His wido