JUDGMENT

Ghulam Hasan, J - This is second civil appeal arising out of a suit for a declaration, which has been decreed by the civil Judge of Gonda reversing the judgment and decree of the Munsif. One Balgovind had two sons, Rajeshwari Dutt and Suraj Dutt. Rajeshwari Dutt has a son Jagdish Dutt, defendant 2, and Jagdish Dutt's son is Kamesh-war Dutt, plaintiff. Mt. Ram Dei was the mother of Rajeshwari Dutt and Suraj Dutt. Balgovind possessed property in four villages in Gonda District including village Sirehna, and one village in District Basti. On 5th March 1896 he executed a deed of partition in which he gave equal shares to his two sons, Rajeshwari Dutt and Suraj Dutt, jn village Sirehna, the other three villages in Gonda District having been sold off in execution of decrees. He also gave 125 bighas of land valued at Rs. 1000 for the maintenance of his wife, Mt. Ram Dei. He retained the village in Basti District for himself. On 5th August 1926, Jagdish Dutt, who had succeeded to the interest of Rajeshwari Dutt, gifted his entire property including his half share in village Sirehna in favour of his infant son Kameshwar Dutt, plaintiff. Mt. Ram Dei died in 1928 and upon her death mutation in respect of the 125 bighas was made in the names of Suraj Dutt and Jagdish Dutt in equal moieties. On 18th March 1936, the half share of Jagdish Dutt was, however, mutated in favour of the plaintiff. Kesho Dutt Sam, defendant l, held a simple money decree against Jagdish Dutt, defendant 2, and in execution of that decree attached the half share of Jagdish Dutt in village Sirehna as it was recorded in his name at that time. Kameshwar Dutt, plaintiff, filed an objection under Order 21, Rule 58, Civil P.C., objecting to the attachment of the property. This was dismissed. Thereupon, the plaintiff filed the present suit for a declaration that Jagdish Dutt was not the owner of the aforesaid half share in village Sirehna and the same was not liable to attachment and sale in execution of the decree by defendant 1 against defendant 2,

2. Defendant 1 contested the suit. He challenged the deed of gift in favour of the plaintiff and pleaded that even if it was valid the plaintiff was not the owner of the attached share. The learned Munsif held that as Ram Dei held 125 bighas for her maintenance and as this right terminated on her death, the said area merged in the rest of Balgovind's property and belonged to those j persons, who owned the rest of Balgovind's property, namely the plaintiff and Suraj Dutt, who consequently became owners of the 125 bighas of land in equal moieties. Defendant 2 was, therefore, not held to be the owner and consequently the suit was decreed. The learned Civil Judge held that being a guzara the right of Mt. Ram Dei was personal and was for life only and that on her death half of the guzara land reverted to defendant 2 and not to the plaintiff. It is agreed by counsel on both sides that there is a considerable confusion of thought in the judgment of the lower appellate Court that it is difficult to follow his reasoning at more places than one.

3. The contention urged by learned Counsel on behalf of the appellant is twofold. The first contention is that by the deed of partition in 1896 the sons were made owners in equal shares of village Sirehna subject only to a charge of maintenance in respect of the 125 bighas of land in favour of their mother, Mt. Ram Dei. The second contention is that the aforesaid deed of partition granted a life interest to Mt. Ram Dei and the remainder vested from that very moment in favour of the sons. This vested remainder devolved on Jagdish Dutt, Who transferred it by means of a gift in 1926. It is thus argued that when the vested remainder fell in possession in 1928 the plaintiff became the owner of the vested remainder by virtue of the deed of gift.

4. In my opinion, neither of these two contentions has any substance. As regards the first contention, the language of the deed precludes the idea tha