JUDGMENT

1. This is a defendants' appeal against the judgment and decree dated 20th July 1921, of the learned Subordinate Judge of Malihabad, decreeing part of the plaintiffs' claim.

2. Dilawar Ali, the predecessor-in-interest of the parties, left him surviving three widows, four sons and two daughters. Mt. Mariam, plaintiff, was his first wife. She was childless. Mt. Hasnaini Khanam, plaintiff 2, was his third wife-Plaintiffs 3 to 5 are the sons, and plaintiffs 6 and 7, the daughters of Dilwar Ali by Hasnaini Khanam. Defendant 1, Bibi Kulsoom, was the second wife of Dilawar Ali, and defendant 2 was his son by the second wife. Defendant 3 is a transferee from defendant 1. Dilawar Ali in his lifetime disposed of the bulk of hia properties by means of a deed of gift in favour of his third wife, Hasnaini Khanam, and her sons, plaintiffs 3 to 5, and a deed of wakf in favour of defendants 1 and 2.

3. The present suit was instituted by the plaintiffs for partition of the rest of the properties left by Dilawar Ali undisposed of before his death. The defendants resisted the suit on the basis of a will dated 11th April 1929, alleged to have been executed by the deceased shortly before his death. The defendants' case was that the will had been assented to by the heirs of Dilawar Ali after the latter's death. The defendants also claimed to be reimbursed for certain expenses incurred by them in performing the obsequies of Dilawar Ali and in paying off certain liabilities of the deceased.

4. The learned Subordinate Judge held the will proved. He also held that plaintiffs 1 and 2 had assented to the will after the death of Dilawar Ali, and were therefore bound by it to the extent of their shares in the property. As regards plaintiffs 3 to 7, who are all minors, he held that the will being to the obvious detriment of the minors, the consent of their mother Mt. Hasnaini Khanam could not make the will binding on them. He also found that the defendants had spent some money on the after-death ceremonies, and in satisfying certain debts and liabilities of the deceased. In result he held that plaintiffs 1 and 2 were entitled to a decree for their legal share only in one item of the property in suit which was not covered by the will. The rest of their claim was dismissed. As regards plaintiffs 3 to 7, it was held that they were not entitled to any share in two mortgage deeds, items 3 and 4, para. 4 of the plaint, inasmuch as they had been bequeathed to non-heirs and did not exceed a one-third portion of the property left by the deceased. Plaintiffs 3 to 7 were given a decree for their legal share, amounting to 11 annas 2-2/5 pies, in the remaining properties, namely, items 1, 2 and 5, para. 4 of the plaint, after making necessary deduction for the funeral expenses and for debts of the deceased. As regards costs, it was ordered that plaintiffs 1 and 2 should bear their own costs and should pay to the defendants the latter's costs in proportion to the plaintiffs' share in the properties. Plaintiff 3 to 7 were awarded two-thirds of their costs against the defendants.

5. The main contention of the appellants is that the will is binding on plaintiffs 3 to 7 because of the consent made by their mother. (The judgment then discussed evidence and holding that the mother was not a testamentary guardian of her minor children, proceeded.) Next it was argued that the proceedings relating to the appointment of Hasnaini Khanam as guardian show that the District Judge impliedly gave his consent to the will. This contention also is without substance. It is based merely upon the fact that the property covered by the will was not mentioned in the list of property belonging to the minors given in the application Ex. A-54. At best these proceedings show that the fact of Dilawar Ali having left a will might have come to the notice of the District Judge, but there is absolutely nothing to show that the Judge was ever asked to give his consent to the will or that he ever a