JUDGMENT : Rafiq, J. It appears that there were two sisters called Musammat Man Koer and Musammat Than Koer who owned two pattis named Ram Koer and Ram Bakhsh, in equal shares. In 1891, Musammat Man Koer executed a deed of usufructuary mortgage in respect of her share in the two pattis, in favour of one Kashi Puri, an ascetic of the Nihang order, in lieu of Rs. 150. Kashi Puri and Man Koer died sometime after the mortgage of 1891. Kashi Puri left him surviving two widows, Musammats Mahrana Koer and Sitla Koer and two sons, Jagannath Puri and Balgovind. Musammat Man Koer died leaving her surviving her son Paras Ram. Musammat Than Koer is also dead and her son is called Ram Kishore. Paras Ram paid half the mortgage money to Musammat Sitla Koer and Balgovind redeemed half the share of his mother in the two pattis. Jagan Nath, the son of Kashi Puri by Musammat Mahrana Koer, sued in the court of the Munsif of Fatehpur, in 1910, to recover Rs. 75, half of the mortgage money due on the mortgage of 1891, by sale of the mortgaged property. He brought the claim against Paras Ram, Ram Kishore and Balgovind. One of the pleas taken in defence, was that as the mortgage in suit was usufructuary, the suit for sale was not maintainable. After the issues had been framed in the case, an application was made by Jagannath Puri, asking for permission to amend his plaint. The application was opposed, but it was allowed. The plaint was amended to the effect that the plaintiff should be given, possession of the mortgaged property. The claim of the plaintiff-respondent No. 1, was resisted on the ground among others that he was not the heir of Kashi Puri. The court of first instance decreed the claim and on appeal the decree was affirmed. Ram Kishore preferred a second appeal to this Court. His appeal came up for hearing on the 31st of March, 1913, when he contended, inter alia, that the lower courts failed to determine an essential point in the case, namely, the status of the plaintiff. It was argued that it was not admitted by the appellant that Jagannath Puri, plaintiff, was an heir of Kashi Puri and that an issue, to that effect was framed by the first court, namely, issue No. 5. It was argued that it was not admitted by the appellant that Jagannath Puri, plaintiff, was an heir of Kashi Puri and that an issue, to that effect was framed by the first court, namely, issue No. 5. The learned Munsif, without giving any reason, decided that issue in favour of the plaintiff, while the District Judge did not discuss it at all in his judgment. After hearing both parties to the appeal, I came to the conclusion that the objection taken by the appellant should have been decided by the courts below, and I remanded the case under Order 41, rule 25, to the lower appellate court, for the determination of the fifth issue in the case. The learned Judge has returned a finding against the plaintiff. He has found that as Kashi Puri was an ascetic of the Nihang order, in which order marriage was not permissible and the succession went to the chelas, the plaintiff-respondent No. 1, though a son of Kashi Puri, could not, under the law, be said to be an heir of Kashi Puri for the purpose of succeeding to the property left by Kashi Puri. The plaintiff has filed objections to the finding of the lower appellate court. It is argued for the plaintiff-respondent that his father Kashi Puri became tired of leading a celibate life and married, that is in other words, he gave up the order of ascetic Nihang and became a Grihast Gosain. In the case of a Grihast Goshain, it is said, the ordinary Hindu Law is applicable. Further it is argued that the mortgage in suit was the private property of Kashi Puri, to the succession of which the rules of the Nihang order did not apply. It is, no doubt, in evidence that Kashi Puri had taken to himself two wives because, as one of the witnesses says, he had become tired of leading a single life. But the mere fact that an ascetic of the Nihang order takes to himself a wife would not show that he could legally marry. It was for the plaintiff-respondent to prove by evidence or show by reference to the principles of Hindu law, that an ascetic of the Nihang order could renounce his vow and adopt the life of a Grihast and thus change the order of succession to the property of the Gaddi. It was for the plaintiff-respondent to prove by evidence or show by reference to the principles of Hindu law, that an ascetic of the Nihang order could renounce his vow and adopt the life of a Grihast and thus change the order of succession to the property of the Gaddi. No such evidence is on the record and no reference to any of the principles of Hindu law is made that would support the contention of the plaintiff-respondent. Kashi Puri being an ascetic of the Nihang order, among whom marriage is forbidden, the plaintiff-respondent cannot, under the law, be deemed to be his heir. I think, the finding of the lower appellate court on this point is correct. 2. As to the second objection relating to the status of the mortgaged property in suit, it was for the plaintiff-respondent to prove that the mortgage was acquired by Kashi Puri from funds which did not belong to the Gaddi which he occupied. There is no evidence to show that Kashi Puri had any property other than that which he got from his guru Balram Puri, The second objection, therefore, also fails. As the plaintiff-respondent No. I is not the heir of Kashi Puri, he is not entitled to maintain the present suit. I, therefore, allow the appeal, set aside the decrees of the courts below and dismiss the plaintiff's claim with costs.