JUDGMENT

Smith, J - This is a second appeal from a decision by the learned Additional Subordinate Judge of Gonda, by which he dismissed an appeal from a decision by the Munsif of Gonda. The facts are that one Bisheshar, a Brahman by caste, died leaving a widow, Mt. Eaghubansa, and a daughter, Mt. Shambhu Dei. The latter has a son Ram Autar, a minor, at present apparently about eight years of age. Bisheshar owned a one anna one pie share in matahti right in a village called Daryapur Hardopatti in the Gonda District and on his death his widow Mt. Eaghubansa came into possession of that share. On 16th December 1929 she executed a deed of gift in favour of Mt. Shambhu Dei and Mt. Shambhu Dei's son Ram Autar. The plaintiff in the suit was one Dwarka, a member of the same family as Bisheshar, who sued Mt. Eaghubansa, Mt. Shambhu Dei and Ram Autar for a declaration that the deed of gift that has been referred to is inoperative as against him. His suit was based upon the allegation of a custom by which daughters are excluded from inheritance. The learned Munsif dismissed the suit, and the learned Additional Subordinate Judge, agreeing with the Munsif, dismissed the appeal. The plaintiff Dwarka has now preferred this second appeal. The plaintiff's ease was based upon certain oral evidence and also upon the contents of the wajibularz. By this twofold evidence he sought to establish the existence of the custom on which he relied.

2. As to the oral evidence, the learned Munsif took the view that it was insufficient to establish the alleged custom, and the Wajibularz also he held not to contain any recital of the custom alleged by the plaintiff. The learned Additional Subordinate Judge agreed with the Mun-sif's view of both the oral and the documentary evidence. Before us no stress has been laid on the oral evidence on the plaintiff's side, and we do not think it necessary in the circumstances to discuss it. The arguments before us were based upon the phraselogy of the Wajibularz. The most important portion of it for the purposes of the appeal is that contained in. the following words:

Am halat men bewa la walad ta hayat apne bila ikhtiyar intiqal qabiz hissa rahegi, bad wafat ushe warisan shauhari se jo qaribi hoga woh qabiz hoga.

3. This may be translated: "a 'lawalad' widow in ordinary circumstances shall remain in possession of a share without any power of transfer. After her death the nearest heir of her husband will get possession of the property."

4. The main contention is as to the meaning of the word 'lawalad.' For the appellant it is contended that that word means "sonless" and that as Mt. Eaghubansa, defendant 1 in this suit, has no son, she had no right of transfer in respect of the property in suit. On the other side it is contended that the word means "issueless," and not sonless," and that as the widow, though sonless, was not issueless, she is not debarred by the terms of the wajibularz from transferring the property in the way she has done. The word "lawalad" occurs at two other places in the wajibularz. The first passage in which it occurs runs thus:

Agar minjumla aurat ki ek aurat lawalad ya sirf dukhtar rakhti ho aur dusre se larka howe, to aulad narina qabiz hissa hokar khabar giri nan wa parcha madar mahruma aulad wa shadi wa biyah dukhtar no kat khuda ki karenge;

that is to say:

If amongst the wives one is lawalad or has only a daughter and the other has a son, in that case the male issue will take possession of the property and provide the mother who is 'mahruma aulad' with food and clothing, and will perform the marriage of the unmarried daughter.

5. The second passage runs as follows: "Agar do bhai mushtarikulhaqaiat khurd nosh yakjai rakhte hon wa minjumla unke ek bhai bewa lawalad chhorke wafat pawe to who bewa sirf guzara pane ki mustahak hogi;" that is to say:

if two brothers hold property jointly, and one of them dies leaving a lawalad widow, the widow is entitled to get maintenance only.

6. In the first of t