JUDGMENT : STANLEY, BANERJI, JJ. The suit out of which this appeal has arisen was brought by the plaintiffs respondents for possession of a share of certain property which originally belonged to their deceased uncle, Masnad Haan Khan. They claim as his heirs the share to which they are entitled under the Muhammadan law. They also pray for mesne profits. Masnad Hasan Khan died on the 1st of March, 1903, leaving him surviving as his heirs, the first defendant Musammat Mubarak-un-nissa, his widow, and five nephews, two of whom are the plaintiffs. It is common ground that the dower of Musammat Mubarak-un-nissa was Rs. 1,25,000, and that this amount was due to her. In order to provide for the payment of the dower, Masnad Hasan Khan executed a document in her favour on the 22nd of September, 1883, by virtue of which she is admittedly in possession of his estate. The construction of this document is the principal question to be determined in this appeal. Whilst it is asserted in the plaint that the instrument was a lease granted to Mubarak-un-nissa for the realization of her dower and that she is bound to surrender the property on her dower being discharged, it is urged on her behalf that she has acquired an absolute interest in the property under the provisions of the document. The plaintiffs allege that she has realized the whole amount of her dower from the usufruct of the property, and they are therefore entitled to obtain possession of their share. On the 7th of April, 1892, Mubarak-un-nissa and Masnad Hasan Khan jointly executed a deed of waqf in respect of a portion of the property, and by a later deed of the 15th of August, 1903, they provided for the management of the waqf and appointed the 2nd and 3rd defendants as their successors in the office of mutawallis. It is asserted by the plaintiffs that this waqf is nominal and fictitious; that Masnad Hasan Khan continued to be the owner of the property till his death, and that the waqf is also invalid under the Muhammadan law. Upon the death of Masnad Hasan Khan's mother a reference to arbitration was made by him and Mubarak-un-nissa for the settlement of their claims in regard to the property inherited from the mother, and an award was delivered by the arbitrator on the 10th of October, 1898. Upon the death of Masnad Hasan Khan's mother a reference to arbitration was made by him and Mubarak-un-nissa for the settlement of their claims in regard to the property inherited from the mother, and an award was delivered by the arbitrator on the 10th of October, 1898. This was made a rule of Court on the 30th of November, 1898. Subsequently, on the 9th of September, 1903, Masnad Hasan Khan executed a deed of relinquishment in favour of his wife. These transactions are alleged by the plaintiffs to be fictitious and collusive and made with a view to deprive them of the property. The court below has held that under the instrument of the 22nd of September, 1883, Masnad Hasan Khan made a usufructuary mortgage in favour of his wife for the amount of her dower; that the transaction was at least analogous to a mortgage; that Mubarak-un-nissa was in possession in lieu of her dower; that the waqf is invalid and that the plaintiffs are entitled to possession on payment of the balance of dower due to Mubarak-un-nissa. It has accordingly made a decree in favour of the plaintiffs for possession of their share of the property (except movables and house property, in respect of which they abandoned their claim), on condition that they do pay to Mubarak-un-nissa their proportionate share of Rs. 43,482 which it has found to be the balance of dower due to her. The defendant, Mubarak-un-nissa, has preferred this appeal. The plaintiffs have filed the connected appeal No. 21 of 1908 in which they question the correctness of the finding of the court below as to the amount of the dower due to the defendant. The decision of this appeal hinges mainly on the construction of the instrument, dated the 22nd of September, 1883, mentioned above. The plaintiffs have filed the connected appeal No. 21 of 1908 in which they question the correctness of the finding of the court below as to the amount of the dower due to the defendant. The decision of this appeal hinges mainly on the construction of the instrument, dated the 22nd of September, 1883, mentioned above. That document was executed both by Masnad Hasan Khan and Mubarak-un-nissa, and the material portion of it is thus translated:— “In order to make arrangement for repayment of the dower debt and to shake off the liability of the husband both in this and the next world, the husband and the wife have made settlement as follows:—That is to say, all the properties detailed below, now possessed by the husband, shall be put in the possession of the wife in lieu of the dower debt, with the conditions that during her lifetime she shall collect and enjoy the profits of all the properties in lieu of her dower debt; that if she dies before the husband, the dower debt shall be deemed paid up, no matter whatever portion thereof is realized by that time; that the dower debt being deemed as satisfied, the properties shall revert to the possession of the husband, that in such case the wife's possession shall be deemed to be (one under) a bil makta theka (lease for a fixed sum); that the annulment of this lease and the satisfaction of the debt shall be deemed from that time in the year of the wife's death at which she may make the last collection before her death of any portion of the profits from any property; and that if the husband dies before the wife, the properties shall be owned by the wife in lieu of the dower debt remaining due at that time, no matter whatever amount it may be, and the husband's proprietary rights shall become extinct.” The scope of the document is three fold: (1) the wife is to take possession of the property in lieu of her dower and enjoy the usufruct; (2) the property is to pass to the husband, if the wife predeceases him, and the dower debt is to be deemed to be discharged and (3) if the husband predeceases the wife, she is to become absolute owner of the property, whatever may be the balance of dower due. It is claimed on behalf of the wife that as her husband is dead, she has acquired the absolute ownership of the property. We are unable to agree with the court below in the view that a mortgage was effected. The property of the husband was not made security for the wife's dower, and it was not pledged for the dower. The mere fact that possession was delivered to the wife did not create an hypothecation of the property for the amount of the dower. This, in our opinion, is the effect of the decision of their Lordships of the Privy Council in the case of Mussumat Bebee Bachun v. Sheikh Hamid Hossein, (1871) 14 Moo. I.A., 377 and we do not think the learned Subordinate Judge has correctly appreciated Jit. Their Lordships observed:—“The claim of Mussumat Bebee Bachun to hold the property to satisfy her dower cannot be founded upon an original hypothecation of the estate for her dower—for such a right does not arise under the Muhammadan Law as a consequence of the gift of dower, nor was there any agreement on the part of the husband to pledge his estate for the dower.” In the document before us we fail to find any provision which may be construed to be a hypothecation or pledge of the property. The learned advocate for the respondent contends that the document must be deemed to be a will. We cannot accede to this contention. There was no disposition of the property to take effect only after the husband's death. Nor do we think the transaction was of the nature of what is known in Muhammadan Law as muhabat. In our opinion the property was, by the instrument in question, vested in Musammat Mubarak-un-nissa in præsenti in lieu of her dower, subject to the condition that in the event of her predeceasing her husband it should go to her husband alone to the exclusion of her other heirs. It was a conveyance of the property in lieu of dower subject to a contingency which has not happened and to a condition the validity of which we are not called upon to determine. The interest created was, as Mr. It was a conveyance of the property in lieu of dower subject to a contingency which has not happened and to a condition the validity of which we are not called upon to determine. The interest created was, as Mr. Sundar Lal aptly put it, a right to enjoy the usufruct of the property during the lifetime of the husband, which was to develope into full ownership on the happening of a contingency, namely, the death of the husband in the lifetime of the wife. That contingency having happened and the husband of Musammat Mubarak-un-nissa being dead, she has become the absolute owner of the pro-property, and the plaintiffs as some of the heirs of her husband are not entitled to recover any portion of it from her. In this view it is unnecessary to consider whether the waqf created by her is or is not valid under the. Muhammadan Law. Even if it is invalid, the plaintiffs have no right to question it. Furthermore by the deed of relinquishment executed by Masnad Hasan Khan on the 9th of September, 1903, property of all descriptions was vested in Mubarak-un-nissa. The plaintiffs' suit must therefore fail. We accordingly allow the appeal, set aside the decree of the court below and dismiss the suit with costs in both courts.