JUDGMENT

1. First Appeals Nos. 16 and 40 of 1936 were preferred by the defendants and plaintiffs respectively in a suit which was brought for possession of a fifth share in certain property specified in lists, A, B and C, attached to the plaint.

2. There were three plaintiffs, the first, Mt, Akbari being the principal plaintiff and the other two being transferees from her of a half share in the property claimed by her. Mt. Akbari sued for her share in the property left by her father Chaudhri Masum-ul-Raza and also in the property left by her brother Chaudhri Qutub Raza, these shares being respectively 1/7 and 2/35, totalling one-fifth. Chaudhri Masum-ul-Raza died in 1924 and Chaudhri Qutub Raza in 1933. Mt. Akbari claimed that the family was a Syed family. The defendants were the two brothers of Mt. Akbari, Chaudhri Barq Raza and Chaudhri Yaqub Raza, and her , two nephews, Jamiluddin and Kamaluddin, the pedigree put forward by the plaintiffs being as below:

3. Jamiluddin died during the pendency of the suit and his mother Mt. Amjad-un-nisa and his sister Mt. Majid-un-nisa were impleaded as his representatives. The defendants did not admit the correctness of the pedigree. They claimed that Mt. Amjad-un-nisa was the wife of Chaudhri Qutub Raza and that Jamiluddin, Kamaluddin and Mt. Majid-un-nisa were their issues. They asked that Mt. Amjad-un-nisa and Mt. Majid-un-nisa be made parties to the suit. Certain interrogatories were put by the plaintiffs and in reply thereto it was said on 5th April 1935, that Mt. Amjad-un-nisa had been originally married to Chaudhri Barq Raza. He had divorced her about 24 years before and Chaudhri Barq Raza had not re-married. A few days after the expiry of the period of "iddat" the "nikah" of Mt. Amjad-un-nisa had been performed with Chaudhri Qutub Raza. Apart from the denial of the pedigree, the defendants (including Mt. Amjad-un-nisa and Mt. Majid-un-nisa who were impleaded later) set up a family custom that in the presence of male issue a daughter does not get a share in the assets of her father. Further by custom and right of inheritance Chaudhri Qutub Raza's sons would succeed to his property. They also said that even if it was found that Chaudhri Qutub Raza died issueless his widow Mt. Amjad-un-nisa would succeed to his property, his sister not getting any share. In any case Mt. Akbari would not be entitled to a share in the presence of her brothers. The defendants alleged that Chaudhri Masum-ul-Raza was a Sheikh belonging to the Hanafi School of the Sunni sect, as against the plaintiffs contention that he was a Syed. They further alleged that Chaudhri Qutub Raza executed a deed of wakf on 30th July 1930, by which he disposed of all his property with the exception of that given in list A. The defendants denied the validity of the sale deed executed by plaintiff ,1 in favour of plaintiffs 2 and 3 on 26th February 1934 contending that it was fictitious and without consideration and that the transaction was champertous and contrary to law. It is not in dispute that the family of Masum-ul-Raza has lived in the village and pargana of Mangalai in the Fyzabad district for a long time. The only other member of the family who requires mention is another son of Mt. Amjad-un-nisa named Siraj-ud-din. He is not referred to in the pleadings as he died issueless before the institution of the suit, and we only mention him because his name appears in evidence to which we shall refer later in connexion with the question of the paternity of Mt. Amjad-un-nissa's children. The suit gave rise to the following issues:

1. Did Masum-ul-Raza also leave properties shown in list C annexed to the plaint and did defendants 1, 2 and Qutub Baza take possession of them ?

2. Did Qutub Raza die issueless and did the plaintiff 1 inherit 1/5 of 2/7 share as alleged in the plaint ?

3. Are the plaintiffs 2 and 3 transferees from plaintiff 1 as is alleged by the plaintiffs ?

4. Is the suit champertous as is alleged by the defendants