JUDGMENT Deoki Nandan, J. - This is a defendant's second appeal from a preliminary decree in a suit for partition. Smt. Hadi Begum was the appellant. On her death during the pendency of the appeal in this Court "Waqf Hajra Begum, Sardar Begum and Hadi Begum" through Mutwalli Sri Najmul Hasan Naqvi was substituted as her legal representative under the Joint Registrar's order dated 11th May, 1979. The Wagf purports to have been created by Smt. Hadi Begum by a registered instrument (Ext. H. C. A.-20) which might be deemed to have been executed on 1st July 1957, the date on which it appears to have been presented for registration, although it does not bear the date of its execution whether at the beginning or at the end. An application by Waqf Hajra Begum, Sardar Bagum and Hadi Begum through Mutwallisri Najmul Hasan Naqvi being Civil Misc. Application No. 2861 of 1978 had been made on 25th Aug. 1978 praying for its substitution as appellant and addition of Mohd. Mustafa Ali khan as respondent No. 10. The Joint Registrar directed issue of notice on it. After the sericee of notice, the application was allowed by the Joint Registrar's order dated 11th May, 1979, as there was no apposition thereto, without noticing that Civil Misc. Application No.3443 of 1978 had also been moved on 26th Sept. 1978 on behalf of Murtaza Husain and four others who claimed to be the heirs and legal representatives of the deceased appellant Hadi Begum. The attention of the Joint registrar appears to have been drawn to the pendency of that application by the plaintiff respondent's husband, who was her Special Agent also by a letter dated 2nd Aug. 1979 addressed to the Joint Registrar. The Joint Registrar has sadi in his report dated 3rd Aug. 1979 that the application dated 26th Sept. 1978 was not listed for orders before him on 11th May, 1979, when he allowed the application made by the Waqf its substitution as the sole appellant, and Mohd. Mustafa All Khan as respondent No. 10. He accordingly directed that the application may be laid before the court for orders. A counter affidavit of Najmul Hasan Nqvi dated 18th Aug. 1979 was filed on behalf of the weqf in opposition to the said application. A rejoinder-affidavit dated 2nd Sept. 1979 of Nisar Husain, who is one of the five applicants was also filed. He accordingly directed that the application may be laid before the court for orders. A counter affidavit of Najmul Hasan Nqvi dated 18th Aug. 1979 was filed on behalf of the weqf in opposition to the said application. A rejoinder-affidavit dated 2nd Sept. 1979 of Nisar Husain, who is one of the five applicants was also filed. A supplementary counter-affidavit of Najmul Hasan Naqvi dated 11th Dec. 1979 and a supplementary rejoinder-affidavit dated 1st Feb. 1980 of Nisar Husain were also filed. In the meanwhile an application dated 3rd Aug. 1979 being Civil Misc. Application No. 1945 of 1979 was made on behalf of plaintiff-respondent praying for recalling of the joint Registrars order dated 11th May, 1979. This was suppoted by affidavit dated 2nd Aug. 1979 of the plaintiff-respondent's husband and Special Attorney S. M. Fazil. A counter-affidavit dated 16th Aug. 1979 of Najmul Hasan Naqvi was filed and a rejoinder-affidavit also dated 16th Aug. 1979 of Nisar Hussain was filed on 23rd Aug. 1979. There is another rejoinder-affidavit of Ram Surat dated 6th Sept. 1979 and still another rejoinder-affidavit of S. M. Fazil dated 11th Nov. 1979. There are three supplementary counter-affidavits, the first two dated 10th Sept. 1979 and the third dated 14th Dec. 1979 which purport to be replies to the rejoinder affidavits of Nisar Hussain. Ram Surat and S. M. Fazil respectively, as also to a supplementary rejoinder-affidavit of Smt. Fazil dated 6th Nov. 1979. Another supplementary rejoinder affidavit of S. M. Fazil dated 8th Feb. 1980 was thereafter filed in reply to the aforesaid second and third supplementary counter affidavits of Najmul Hasan Naqvi. A counter-affidavit of S. M. Fazil dated 14th May, 1979 and a rejoinder-affidavit of Najmul Hasan Nagvi, dated 1st Sept. 1979 also appear to have been filed in the substitution application dated 25th Aug. 1978 (Civil Misc. Application No. 2861 of 1978) after it was allowed by the Joint Registrar's order dated 11th May, 1979. 2. There was another application accompanied by an application under section 5 of the Limitation Act for substitution and setting aside of abatement occasioned by the death of respondent No. 5. Before these applications could be disposed of, two further applications were filed, the first being Civil Misc. 2. There was another application accompanied by an application under section 5 of the Limitation Act for substitution and setting aside of abatement occasioned by the death of respondent No. 5. Before these applications could be disposed of, two further applications were filed, the first being Civil Misc. Application No. 2280 of 1979 praying for action being taken after such preliminary enquiry as may be necessary for prosecution of Murtaza Hussain, Nisar Husain, S. M. Fazil and Ram Surat for making claims, giving false affidavits and fabricating false family pedigrees in Misc. Applications Nos. 2861 of 1978, 3443 of 1978 and 1945 of 1979, and the second, being Civil Misc. Application No. 1551 of 1980, for a direction for the production of "the person who has sworn and filed the affidavit" dated 6th Sept. 1979" in the name of Ram Surat aged about 20 years, son of Daya Ram" of "village Rakhaura, District Faizabad" "for verification of his identity" and determination of the extent of responsibility of S. M. Fazil, Special Agent "of the plaintiff-respondent" and also of Shri Bishambher Nath, clerk of Shri M. P. Singh, Advocate "who has identified the said Ram Surat," for enabling a proper decision of the said application dated 25th Oct. 1970 "under S. 340(1)" of the Code of Criminal Procedure, that is, Civil Misc. Application No. 2280 of 1979. All these said applications came up for orders before a learned Singles Judge of this court on 20th Jan. 1981, and it was agreed before his that they may be considered at the time of final hearing of the appeal. The application for substitution and setting aside of abatement occasioned by the death of respondent No. 5, and the application under section 5 of the Limitation Act accompanying it, were, however, disposed of on 20th Jan. 1981 by an order exempting the appellant from the necessity of substituting the legal representatives of deceased respondent No. 5, in view of the fact that he had neither filed a written statement nor contested the suit or the appeal in the courts below and the further proceedings to bring his heirs would delay the hearing of the appeal. 3. The appeal was ultimately listed before us for hearing along with the aforesaid applications. 4. The first application which needed to be disposed of before the appeal could be heard was Civil Misc. 3. The appeal was ultimately listed before us for hearing along with the aforesaid applications. 4. The first application which needed to be disposed of before the appeal could be heard was Civil Misc. Application No. 1945 of 1979, for recalling the Joint Registrar's order dated 11th May, 1979 where under the Waqf Hajra Begum, Sardar Begum and Hadi Begum through Mutwalli Sri Najmul Hasan Naqvi has been substituted as the appellants in place of Hadi Begum. Connected with it was Civil Misc. Application No. 3443 of 1973 for substitution, made by Murtaza Hussain and four others as appellants in place of Hari Begum. After hearing counsel in the matter, it become apparent that Murtaza Husain and others who had made Civil Misc. Application No. 3443 of 1978 were not interested in prosecuting the appeal by contesting the claim of the plaintiff-respondent. They appeared to be on the side of the plaintiff-respondent. On the other hand it was pretty obvious that Hadi Begum had purported to create the Waqf Hajra Begum, Sardar Begum and Nadi Begum of which Hajmul Hussain Naqvi was the Mutwalli, and that Waqf had been registered with and had received recognition from the Shia Central Board of Waqfs. This Waqf was interested in prosecuting the appeal against the plaintiff-respondent with all the vigour and vehemence which could be brought to hear in the matter. The question whether Hadi Begum was competent to create a Waqf or whether the Waqf which she purported to create, in respect of a part or the whole of the property in suit was a question which depended for its answer on the answer to the basic question involved in the appeal, namely, whether Hadi Begum was the sole owner of the property in suit, and the plaintiff-respondent or her mother and brothers had no share whatsoever therein. Consequently it was considered expedient for the further progress of the appeal that the Waqf Hajra Begum, Sardar Begum and hadi Begum through Mutwalli Najmul Hasan Naqvi may continue to reporesent the estate of the deceased appellant Hadi Begum for the purposes of this appeal and that the order passed by the Joint Registrar on 11th May, 1979 may not be recalled. Civil Misc. Application No. 1945 of 1979 is thus disposed of as dismissed. 5. With regard to the connected application for substitution made by Murtaza Hussain and four others. Civil Misc. Application No. 1945 of 1979 is thus disposed of as dismissed. 5. With regard to the connected application for substitution made by Murtaza Hussain and four others. Hadi Begum deceased appellant had purported to make a Waqf of her property, part of it immediately and part of it on her death by the instrument dated 1st July, 1957. Their claim to be the heirs of Nadi Begurn deceased was seriously disputed. Even if they had been heirs they could inherit nothing so long as the waqf which Hadi Begum purported to create of her property stood unchallenged. They were not prepared to prosecute the appeal any further, or to protect the estate of Hadi Begum against the claims of the plaintiff- respondent and her mother and brother to a share therein. Under the circumstances their application for substitution as the legal representatives of Hadi Begum, in the present second appeal could not be allowed. Civil Misc. Application No. 3443 of 1978 is consequently dismissed. 6. In view of the said reasons for the dismissal of the aforesaid Applications Nos. 1945 of 1979 and 3443 of 1978, it was considered inexpedient by me to spend the Court's time on enquiring into the question whether Murtaza Husain, Nisar Husain, S. M. Fazil and Ram Surat should be prosecuted for the offences alleged to have been committed by them in the course of the said applications, Consequently Civil Misc. Application No. 2280 of 1979, and with that Civil Misc. Application No. 1551 of 1981, are also rejected. 7. After I had heard the second appeal and reserved judgment, an application being Civil Misc. Application No. 3750 of 1982 was moved on behalf of Shia Central Board of Waqfs praying for an opportunity of being heard in the second appeal and also praying for the setting aside of the decree under appeal in view of "the mandatory provisions of section 66 of the U.P. Muslim Waqfs Act, 1960. An opportunity was given to-the parties to the second appeal of being heard on the application. The suit for partition in this case was filed on 30th Aprl. 1954 before the purported creation of the Waqf by the instrument dated 1st July. 1957 the Waqf was thus created during the pendency of the suit. An opportunity was given to-the parties to the second appeal of being heard on the application. The suit for partition in this case was filed on 30th Aprl. 1954 before the purported creation of the Waqf by the instrument dated 1st July. 1957 the Waqf was thus created during the pendency of the suit. Hadi Begum was looking after the Waqf property as its Mutwalli so long as she lived and was contesting the suit. There was an increase in the Waqf property on her death and Najmul Hasan Naqvi, the present Mutwalli had taken all possible steps to protect the interest of the Waqf and to reserve its property. He is the Mutwalli appointed by the shin Central Board of Wagfs and the interest of the Waqf could not be better looked after than by him, Even so what is in question in the suit is not the title to Waqf property, or the right of the Mutwalli to manage it. The question which was raised in the suit was whether the plaintiff-respondent and her mother and brothers had a share in the property in suit which originally belonged to Mirza Muhammad Mehdi. The plaintiff respondent claimed a share in the property as one of the heirs of Syed Mohammad Raza, who was the husband of Sardar Begum, sister of Hadi Begum, both of them being the daughters of Hajra Begum, whose husband Mirza Muhammad Qasim was the son of Mirza Mohammad Mehdi, who had died leaving him surviving Mirza Mohammad Qasim as his only son and Akbari Begum as his only daughter. The plaintiff-respondent and her brothers were not the issues of Sardar Begum, but were the issues of Bismillah Begum, and one of the questions which arose at the trial was whether Bismillah Begum was the duly wedded wife of Syed Mohd. Raza. Hadi Begum was indisputably competent to create a waqf of all the property except the share claimed by the plaintiff-respondent, or that which could be claimed, and was after the trial court in preliminary decree claimed by her mother and brothers. Raza. Hadi Begum was indisputably competent to create a waqf of all the property except the share claimed by the plaintiff-respondent, or that which could be claimed, and was after the trial court in preliminary decree claimed by her mother and brothers. The validity of the Waqf which Hadi Begum purported to create in respect of a major share in the property which she had made a Waqf of, was thus not in question, and since the Waqf was created during the pendency of the suit giving rise to the second appeal, in respect of a part of the property in suit, and another part of the property in suit is said to have become Waqf on the death of Hadi Begum during the pendency of the second appeal in this Court, the creation of the Waqf is subject to the result of the suit on the rule of lis pendent, enacted by S. 52 of the Transfer of Property Act. The suit giving rise to the present second appeal was thus not one in which a notice must have been issued to the Shia Central Board of Waqfs under S. 66 of the U.P. Muslim Waqfs Act, 1960, and therefore the trial could not be re-opened by giving the Waqf Board a notice of the suit at this stage. At any rate the substantial prayer in the application was to afford the Waqf Board an opportunity of being heard in the matter. There was nothing much which the learned counsel for the Waqf Board could add to the submissions made and the contentions already raised on behalf of Mutwalli of the Waqf in place of the deceased appellant Hadi Begum Civil Misc. Application No. 3750 of 1982 is accordingly disposed of by saying that it is neither ` necessary nor possible nor expedient in the circumstances to re-open the trial by giving notice of the suit to the Waqf Board under S. 66 of the U.P. Muslim Waqfs Act. 1960, but so far as the prayer of the Waqf Board for being heard in the matter was concerned, its learned counsel was heard but could add nothing much to the arguments already made on behalf of the appellant. 8. 1960, but so far as the prayer of the Waqf Board for being heard in the matter was concerned, its learned counsel was heard but could add nothing much to the arguments already made on behalf of the appellant. 8. Plaintiff-respondent No. 1, Ruqqaiya Sultana, gave her age to be 19 years in the plaint which was dated and verified on 17th April, 1954, but was presented in the trial-court on 30th April, 1954. The number of the defendants impleaded originally was 89. By an amendment of the plaint 19 more persons were added as defendants so as to bring their number to 108. Of these Hadi Begum the appellant in this Court, was the first defendant, her husband Haji Mohammad Ismail was the second defendant. The plaintiffs mother Bismillah Begum was the third defendant and the plaintiffs brothers Syed Tagi Raza, Syed Naqi Raza, Syed Zaki Raza, Syed Askari Raza, Syed Bagar Raza, Syed tgbal Raza and Syed Abid Raza were defendants Nos. 4 to 10 respectively. Defendants Nos. 11 to 108 were the purchasers, of different quarters specified in schedule C which formed part of the property known as Bahisiha Hata and described in Schedule B to the plaint. The first set of the property in suit was known as `Ahata Chhotey Miya' and described in Schedule A to the plaint. By the decree under appeal the plaintiffs share has been found to be 77 schams out of 5760 in the property known as Hata Chhotey Miya and described in schedule A and 49 Sehams out of 3840 in the property known as Bhaisiha Hata descrived in described in Schedule C also formed part. 9. The following is the pedigree set up in the plaint :- 10. According to the case set up in the plaint, Mirza Mohd. Qasim and Akbari Begum were the owners in possession of ? and ? shares respectively in Schedule A property. Mirza Mohd. Qasim did leaving him surviving his widow Hajra Begum and daughters Sardar Begum and Hadi Begum. Their Shares were 1/12. 7/24, and 7/24 respectively. Akbari Begum died issueless thereafter. Sardar Begum and Hadi Begum were the heirs in respect of her ? share which worked out to ? of the whole for each. Thus Sardar Begum became owner of an 11/24 share in schedule A property, and remained its owner in possession until her death issueless on 31st Mar. 7/24, and 7/24 respectively. Akbari Begum died issueless thereafter. Sardar Begum and Hadi Begum were the heirs in respect of her ? share which worked out to ? of the whole for each. Thus Sardar Begum became owner of an 11/24 share in schedule A property, and remained its owner in possession until her death issueless on 31st Mar. 1948. Her heirs were her husband Mohd. Raza, mother Hajra Begum and sister Hadi Begum. Out of 11/24 share of Sardar Begum in schedule property, Mohammad Raza got 11/48 and the share of her mother Hajra Begum was 11/72 and sister Hadi Begum was 11/144, Mohammad Raza died shortly thereafter on 25th May, 1978, leaving the plaintiff, her mother Bismillah Begum and 7 brothers as his heirs and ltgal representatives. The plaintiff thus inherited 77 sehams out of 5760 sehams in schedule properties. About the properties in Schedule B., it was alleged by an amendment of the plaint that it was purchased by Mirza Mohd. Qasim benami in Hajra Begum's name and was inherited on his death by his heirs., and further that Hazra Begum. Hadi Begum and Haji Mohd. Ismail and Syed Mohd. Raza, and other members of the family admitted the share of Sardar Begum in Schedule B properties, and Sardar Begum had with the help and at the expenses of her husband Syed Mohd. Raza considerably improved the properties in Schedule B and constructed quarters therein. The share of Syed Mohd. Raza in Schedule B properties was 340 sehams out of 3840 on the death of Sardar Begum, and the plaintiffs share on his death was 49 sehams out of 3840. The plaintiff was a minor when her father Syed Mohd. Raza died and could not herself protect her rights and was married away during her minority at Lucknow where she lived with her husband. Defendants Nos. 1 to 10 took advantage of the plaintiffs absence and pardanashini and in spite of her being a co- sharer in the property and her desire for partition, they did not agree to separate the plaintiffs share and instead she had come to know that they had sold away different portions of the property in schedule B to defendants Nos. 11 to 108. 11 to 108. The plaintiff accordingly claimed actual division and separation of her said share in Schedule A and B properties, namely, 77 Sehams out of 5760 in Schedule A property, and 49 Sehams out of 3840 in Schedule B property, Rs. 2000/- as mesne profits, as also a declaration that the sale-deeds described in Schedule C in favour of defendants Nos. 11 to 108 were not binding on the plaintiff and were liable to be cancelled to the extent of her share. 11. The suit was contested by defendants Nos. 1 and 2. Defendant No. 3, in the written statement filed by her on- her own behalf and as the guardian of defendants Nos. 8, 9 and 10, admitted the plaint allegations but added in the additional pleas that after the death of Syed Mohd. Raza, the income of the property was realised by defendants Nos. 1 and 2 as co-sharers and whatever share of the plaintiff in the profits was in arrears, is due from defendants Nos. 1 and 2. As to herself, she claimed that she was appointed certificated guardian of the plaintiff on the death of Syed Mohd. Raza and during her minority whatever the plaintiffs share in the profits was received by answering defendant No. 3 from defendants Nos. 1 and 2 was spent in the up-bringing and education of the plaintiff. It was further pleaded by defendant No. 3 that after some time of the death of Syed Mohd. Raza, the relations between the said defendants and defendants Nos.1 and 2 had become strained and they even stopped paying the share of the answering defendant, and quite a substantial amount was due to the answering defendant and her sons towards their share of the profits from defendants Nos. 1 and 2. Defendant No. 4 also filed written statement admitting the plaintiffs claim but added that the income of the property was realised by defendants Nos. 1 and 2, and whatever amount was due to the plaintiff towards her share therein was due from defendants Nos. 1 and 2. He further added that after the death of Syed Mohd. Raza, share of the answering defendant No.4 was so realised by defendants No. 3 and he had no concern with the same. He was in receipt of his share from defendants Nos. 1 and 2. up to Oct. 1 and 2. He further added that after the death of Syed Mohd. Raza, share of the answering defendant No.4 was so realised by defendants No. 3 and he had no concern with the same. He was in receipt of his share from defendants Nos. 1 and 2. up to Oct. 1951 but because of certain disputes about the marriage of his sister, the plaintiff, which was opposed by defendants Nos. 1 and 2, they even stopped paying his share and had not paid anything after October, 1951 in spite of demands. 12. Defendants Nos. 1 and 2 in their joint written statement did not admit that Bismillah Begum defendant No. 2 was the wife of Syed Mohd. Raza or that defendants Nos. 4 to 10 and the plaintiff are his children. It was admitted that on the death of Mirza Mohd. Qasim, his widow Hajra Begum and his two daughters Sardar Begum and Hadi begum were his heirs. The shares of Sardar Begum and Hadi Begum, as stated in the plaint or the shares of the others as stated in the plaint were not admitted. Only the date of death of Syed Mohd. Raza was admitted. The fact of the marriage of the plaintiff was admitted but the rest was denied, in the additional pleas it was alleged that Bismillah Begum was not the wife or Syed Mohd. Raza and defendants Nos. 4 to 10 and the plaintiff were her children. Bismillah Begum was alleged to be a prostitute with whom Syed Mohd. Raza had illicit connection but there was never any legal marriage between them and the children born of Bismillah Begum are not the legitimate children of Syed Mohd. Raza. Neither the plaintiff nor defendants Nos. 4 to 10 had any right or interest in the properties left by Mohd. Raza and the plaintiff had no right to suit. About the shares of the parties it was stated that Mirza Mohd. Qasim died in 1904, Akbari Begum died in 1921. Sardar Begum died on 31st March, 1948, S. M. Raza died on 25th May, 1948 and Hajra Begum died on 12th Nov. 1948. It was claimed that the shares of Hadi Begum and Haji Mohd. Ismail in the property mentioned in Schedule A of the plaint are 11 Sehams and 33 Sehams respectively out of 144 Sehams and the plaintiff and defendants Nos. 1948. It was claimed that the shares of Hadi Begum and Haji Mohd. Ismail in the property mentioned in Schedule A of the plaint are 11 Sehams and 33 Sehams respectively out of 144 Sehams and the plaintiff and defendants Nos. 3 to 10 had no right or interest therein. Schedule B property, was alleged to have been purchased by Hajra Begum in 1895, and it was further said that she remained in sole possession thereof till her death on 12th Nov. 1948 and Hadi Begum being her sole surviving daughter inherited the whole of that property. The plaintiff and defendants Nos. 3 to 10 were not entitled to any shre in the property mentioned in Schedule B. Even Sardar Begum or Syed Mohd. Raza had no right or interest therein. It was further alleged that after the death of Syed Mohd. Raza, defendant No. 3 and her children laid claim as his heirs but the answering Defendants Nos. 1 and 2 maintained that the defendant No. 3 and her children were not the heirs of Syed Mohd. Raza. Defendant No. 2 being own brother of Syed Mohd. Raza also maintained that House No. 96/34, Colonelganj, Kanpur, valued about a lac of rupees and constructed in the name of Bismillah Begum, was in fact the property of Syed Mohd. Raza, which devolved on him (defendant No. 2). Defendant No. 1 further claimed that she was entitled to the dower due of Sardar Begum from the assets. of Syed Mohd. Raza and defendant No. 1 and Hajra Begum were further entitled to the sum of Rs. 10,000/- from the assets of Syed Mohd. Raza being the price of ornaments belonging to Sardar Begum which were sold by Syed Mohd. Raza. The written statement proceeds to allege that on the intervention of the family well-wishers it was decided that Janab Maulana Mohd. Syed Sahib, Janab Maulana Syed Qable Hussain Sahib and Janab Maulana Mufti Syed Ahmad Ali Saheb. be appointed referees to decide all disputes between the parties. An agreement was executed by defendant No. 3 for self and as the natural guardian of the plaintiff and for defendants Nos. 8, 9 and 10 and by defendants Nos. 4 to 7 "giving the power to the above mentioned referres" to decide all disputes between the parties both in respect of moveable and immoveable properties of Syed Mohd. Raza. An agreement was executed by defendant No. 3 for self and as the natural guardian of the plaintiff and for defendants Nos. 8, 9 and 10 and by defendants Nos. 4 to 7 "giving the power to the above mentioned referres" to decide all disputes between the parties both in respect of moveable and immoveable properties of Syed Mohd. Raza. and they agreed to be bound by the decision of the said referres. It is then said that answering defendants Nos. 1 and 2 wanted to adduce evidence before the referees to show that defendant No. 3 was not the widow of Syed Mohd. Raza and the plaintiff and defendants Nos. 4 to 10 were not his children but on the persuation of some well wishers, it was decided between the parties that the referees be requested to decide the disputes irrespective of the legitimacy or otherwise of the claim of defendant No. 3. and her children to be the heirs of Syed Mohd. Raza. The decision given by the referees is mentioned in detail in para 13 of the written statement. Defendants Nos. 1 and 2 went on to plead, without admitting that defendant No. 3 and her children had any right to the assets of Syed Mohd. Raza, that the same has been finally concluded and determined and the plaintiff along with defendants 3 to 10 have received due benefits". The plaintiff could not resile therefrom and was not entitled to any share in the property. In any case in the absence of any fraud or negligence on the part of the third defendant as the plaintiffs guardian, the plaintiff was not entitled to repudiate the matter which was finally settled. In the alternative it was pleaded that in case the plaintiff is held entitled to any share in the assets of Syed Mohd. Raza, she must disclose all the benefits which the plaintiff and defendants Nos. 3 to 10 had received at the said settlement. The defendants further claimed that they had made substantial constructions and improvements in the properties in suit believing in good faith to be absolutely entitled thereto and had spent about Rs. 50,000/- on the same. They were entitled to be re-imbursed. The plaintiffs claim to mesne profits was denied. Other technical pleas about valuation and court- fees were also raised. 13. An additional written statement was filed by defendants Nos. 50,000/- on the same. They were entitled to be re-imbursed. The plaintiffs claim to mesne profits was denied. Other technical pleas about valuation and court- fees were also raised. 13. An additional written statement was filed by defendants Nos. 1 and 2 after the amendment of the plaint in respect of Schedule B property. It was alleged in the additional written statement that Hajra Begum was not the henamidar of Mirza Mohd. Qasim in respect of Schedule B property but was the owner thereof. She had purchased the property in 1895 and remained in possession until her death on 12th Nov. 1948 when it was inherited exclusively by Hadi Begum, Sardar Begum and Syed Mohd. Raza had no right and interest in that property. They acknowledged Hajra Begum to be the sole and exclusive owner thereof, Hajra Begum had made transfers of the property within the knowledge of and without any protest from Sardar Begum and Syed Mohd. Raza, and the plaintiffs claim of the property was barred by principle of estoppel and acquiescence. The allegations that Sardar Begum had made improvements and constructions over the property were also denied. It was alleged that the plaintiff could not take advantage of the mutation of names in the Municipal records. Some written statements and additional written statements were also filed by some of the defendants out of defendants Nos. 11 to 108. It is not necessary for the purposes of this appeal to detail the pleas taken by them. 14. As many as 17 issues were framed at the trial. On the first issue the trial court held that Schedule B property. `Bhaisiha Hata' was owned by Mirza Mohd. Qasim and the sale deed executed in the name of Hajra Begum was Benami. On issues Nos. 2 and 3 it held that Bismillah Begum was the legally wedded wife of Syed Mohd. Raza and that the plaintiff is the legitimate daughter and defendants Nos. 4 to 10 are the legitimate sons of Syed Mohd. Raza. On issues Nos. 4, 5 and 6 the trial court found that the award of the family arrangement said to have been arrived at between the parties and relied upon by defendants Nos. 1 and 2 was acted upon but was not legally enforceable and was not binding on the parties. Raza. On issues Nos. 4, 5 and 6 the trial court found that the award of the family arrangement said to have been arrived at between the parties and relied upon by defendants Nos. 1 and 2 was acted upon but was not legally enforceable and was not binding on the parties. On issue No. 7, the trial Court found that it was not proved that any improvements were made in the property in suit by Hadi Begum after the death of Syed Mohd. Raza. On issue No. 8 it found that the plaintiff was not entitled to any mesne profits as the parties concerned have been enjoying the property given to them separately by the award. On issue No. 9, it was held by the trial Court that the claim of 77 Sehams out of 5760 Sehams in list A property known as `Chhotey Mian Ka Hata' and 49 Sehams out of 3840 Sehams in list B property known as `Bhaisiha Ka Hata' share by the plaintiff was correct. Issues Nos. 10. 11, 12, 13 and 15 were technical. Of them issue No. 12 was decided as a preliminary issue and the deficiency in court-fees was made good after an amendment of the plaint. Issues Nos. 10, 11 and 13 were shortly answered against the defendants as they were found to be vague and general. In issue No. 14. which was raised by the transferees. the trial Court held that the suit was not barred by section 41 of the Transfer of Property Act. On issue No. 16, it was held that defendants Nos. 51, 52 and 54 were not proved to be minors, and in view of the aforesaid findings, the trial court held on issue No. 17 that the plaintiff was entitled to portion of her share of 77 Sehams out of 5760 Sehams in List `A' property and 49 Sehams out of 3840 Sehams in List `B' property and the declaration that the transfers in favour of defendant Nos. 11 to 104 were not binding on her to the extent of her share and a preliminary decree was passed accordingly. 15. First appeal was preferred from the trial court's decree in this Court, being First Appeal No. 73 of 1958, by the defendants Nos. 1 and 2 only. The defendants Nos. 11 to 104 were not binding on her to the extent of her share and a preliminary decree was passed accordingly. 15. First appeal was preferred from the trial court's decree in this Court, being First Appeal No. 73 of 1958, by the defendants Nos. 1 and 2 only. The defendants Nos. 3 to 10 were on the side of the plaintiff and also applied for partition of their share which was claimed to be 1243 Sehams out of 5760 Sehams in schedule `A' property and 791 Sehams out of 37140 Sehams in Schedule `B' property in the aggregate (vide-application dated the 30th Jan., 1958, paper No. 469-C on the trial Court's record). The defendants Nos. 11 to 108 did not file any appeal of their own against the trial court's decree. The First Appeal was, on transfer of jurisdiction, sent by this Court to the District Court, Allahabad, and was heard by the Court of the Second Additional District Judge, Allahabad, and dismissed by its judgment dated the 11th Nov., 1974. 16. The lower appellate Court observed that no appeal had been preferred by the purchasers of List `C' property, that is by defendants Nos. 11 to 108, and no arguments were addressed before it against the finding that they were not entitled to the benefit of section 41 of the Transfer of Property Act, on issue No. 14. However, the lower appellate court proceeded to observe that a perusal of the trial Court's discussion on the point showed that the finding arrived at by it was correct. 17. The lower appellate court then observed that the counsel for the appellant did not argue before it On the alleged award or family settlement or on the question of jurisdiction or on the questions of multifariousness and non-joinder of parties or on the question of estoppel and acquiescence etc." The only points urged before it were : "(i) That an issue should have been framed on the will (Ex. 30) which non suits plaintiff-respondent No. 1". "(ii) That Smt. Bismilla Begum was not a legally married wife of Syed Mohd. Raza." "(iii) That list B property had belonged exclusively to Hajra Begum and she was not merely a benamidar'. 18. The lower appellate court further observed that it was conceded by the contesting defendants before the trial court, according to the observations contained in its finding on issue No. 9. Raza." "(iii) That list B property had belonged exclusively to Hajra Begum and she was not merely a benamidar'. 18. The lower appellate court further observed that it was conceded by the contesting defendants before the trial court, according to the observations contained in its finding on issue No. 9. that the "Share claimed by the plaintiff respondent No. 1 was correct", and further that it was conceded in the course of arguments before it (the lower appellate court) that "the plaintiff-respondent No. 1 would have the same share in the two properties as is alleged by her in her plaint in case she succeeds in establishing other disputed questions in her favour on which the arguments were advanced before it. "The lower appellate court then proceeded to add that on a perusal of the judgment of the trial court it had found that the findings of the trial court on the questions covered by issues which were not argued before it, were correct. 19. On the first point so raised before the lower appellate court by the defendant-appellant, it is noticeable that, on an application for an amendment of the memorandum of appeal, which had been allowed by this Court, while the First Appeal was pending here, a ground, being Ground No. 24, was added, contending that the plaintiff respondent was not entitled to any share in the property because of the document dated the 6th Nov. 1942 (Ext. 30), notwithstanding the "so called concession of the counsel noticed by the trial court in its decision on issue No. 9". 20. There is yet another matter, which needs to be noticed at this stage in the course of considering the decision of the lower appellate court on the first point. It relates to the proceeding taken in the lower appellate court before the appeal was heard in an attempt to rely on the will (Ext. 30) for non-suiting the plaintiff-respondent. To begin with it was contended that it was necessary to remand the case after framing an issue on the effect of Ext. 30. By an order dated the 17th Oct. 1973, the lower appellate court rejected that contention. The reason given by the lower appellate court was that, at that stage, all that it had to be seen was whether it is necessary to remand the case or it is possible to proceed on and hear the appeal. 30. By an order dated the 17th Oct. 1973, the lower appellate court rejected that contention. The reason given by the lower appellate court was that, at that stage, all that it had to be seen was whether it is necessary to remand the case or it is possible to proceed on and hear the appeal. Having raised that question, the lower appellate court answered it by saying that Ext. 30 was already on the record of the trial court, and having been proved and exhibited, it did not appear necessary or desirable to permit the parties to lead further evidence on the point, and that being so, the appellate court could very well decide the question about the effect of the decument (Ext. 30). It was accordingly not, at all, necessary to remand the case. About the necessity of framing an issue with reference to Ext. 30, the lower appellate court observed that, if the doing so was found necessary, it could do so, while writing its judgment in the appeal, and that again was not a reason for remanding the case. The second attempt was an application for amendment of the written statement by adding a plea to the effect that "in any case Sardar Begum having bequeathed her entire property by will dated 6-11-1942 Ext. 30, her husband Mohammad Raza could not inherit any thing from her and since he had no share in the property of Sardar Begum the plaintiffs have no share in Schedules A and B." This application was rejected by the lower appellate court's order dated the 8th Aug, 1974. Two objections were raised before the lower appellate court against allowing the application. first that it was mala fide, and second that it raised plea which was inconsistent with the existing pleas and changed the nature of the suit. The lower appellate court observed that, although the application was highly belated, yet that circumstance alone could not be ground for holding that the application was mala fide, inasmuch as the counsel for the appellant was willing to give a statement that no additional issues would be pressed on the amendment and no opportunity would be sought for adducing any further evidence. On the second objection the lower appellate court expressed the opinion that it raised questions that may have to be decided in the appeal itself and it was consequently not proper to express any opinion on it at that stage Nevertheless, the lower appellate court did not think it proper to allow the amendment "because the will was in the knowledge of the appellant for a pretty long time as is clear from the record, and from the perusal of the pleadings it seems that the parties purposely did not base any plea on the will." 21. One further fact, which I must notice, in this context, and which was not pressed into aid before the lower appellate court at all, is the fact that the so-called will dated Nov. 6, 1942 was cancelled by Hadi Begum by a registered instrument dated the 3rd Feb. 1953, a certified copy of which was filed in this Court and admitted under Order 41 Rule 27 of the Code of Civil Procedure on the plaintiff-respondent's application, and- marked H. C. Ext. 1. in this instrument, Hadi Begum declared that the other two executants of the will Hajra Begum and Sardar Begum having died, she was, on the terms of the will dated 6th Nov. 1942, fully empowered to revoke it: and under the changed circumstances and events she wanted to and did revoke that will and declared that it has become altogether ineffective and void. This instrument was executed on the 3rd Feb. 1953 before the institution of the suit giving rise to this second appeal. It may thus appear that Hadi Begum or her husband Mohammad Ismail, who contested the suit, could not have relied upon the will (Ext. 30) dated the 6th Nov. 1942, but reliance was placed on the will (Ext. 30) dated the 6th November, 1942, for establishing that no part of the property of Sardar begum was or could be inherited by her husband Syed Mohammad Qasim, and, on the terms of the will, it devolved or Hadi Begum, and she, as the sole surviving owner of the property, and in exercise of the power conferred on her in the will (Ext. 30) itself, had revoked the arrangement by way of waqf which was made by the will but was to be effective only on the death of all the three executants. 30) itself, had revoked the arrangement by way of waqf which was made by the will but was to be effective only on the death of all the three executants. But she did not do so dishonestly. She did so honestly in furtherance of the objects for which provision was required to be made by the will (Ext. 30) dated the 6th Nov. 1942 inasmuch as she did create a Waqf shortly thereafter by the instrument, HC Ext. Ka-20 dated the 1st July. 1957 under which a part of the property was made a waqf or immediately, even in her lifetime, and the remaining became waqf on her death on the 3rd July, 1978. The result was that, on the death of Hadi Begum, who was the last one to die of the three `executants of the will (Ext. 30) dated Nov. 6, 1942, some of the property of which a waqf had been made by that will was again made waqf, and the waqf was named after all the three executants Haja Begum. Sardar Begum and Hadi Begum. 22. It became necessary to state these facts because one of grounds of objection to the decree appealed from was that the application for amendment of the written statement made by the defendant-appellant was wrongly rejected. The real question has been whether the defendant-appellant could be permitted to rely on the will Ext. 30 for non-suiting the plaintiff. A certified copy of the document had been filed by the plaintiff- respondent herself and if it appeared on the face of the document, when seen in the background of the proved facts and circumstances of the case, that the plaintiff had no share in the property in suit, the defendant-appellant should not have been prevented from relying on it, unless, of course, some kind of estoppel was made out against her. The question considered by the lower appellate court was whether the defendant-appellant could be permitted to raise the point that in view of the will (Ext. 30), the plaintiff-respondent or her mother and brothers had no share whatsoever in the property in suit. True, the point was not raised by the defendant-appellant in that form in the pleas taken in- the written statement. Obviously, the defendant-appellant relied more on the award or the family arrangement (Ext. A-8), which was completed on the 4th Feb. 30), the plaintiff-respondent or her mother and brothers had no share whatsoever in the property in suit. True, the point was not raised by the defendant-appellant in that form in the pleas taken in- the written statement. Obviously, the defendant-appellant relied more on the award or the family arrangement (Ext. A-8), which was completed on the 4th Feb. 1949 and is referred to in paragraphs 13, 14, and 15 in the written statement, than on the will (Ext. 30), but, when it was not thought worthwhile even to press it before the lower appellate court, in view of the fact that the plaintiff-respondent was a minor when the reference leading to that award or family settlement was made, and was represented through her mother who was not the legal guardian of the minor's estate under the Muhammadan law, the defendant-appellant was obviously advised to, and took up the plea that was sought to be taken on the front of the will (Ext. 30), for showing that the plaintiff-respondent did not inherit any share in either of the two sets of properties in suit. The will had not been relied upon or even mentioned earlier in the pleadings of the defendant-appellant, probably because Hadi Begum had already purported to cancel it on the 3rd Feb. 1953, vide HC Ext. 1, and had even sold a large number of quarters listed in Schedule `C' to the plaint, which formed part of Schedule `B' property namely. Bhainsia Ahta' to defendants Nos. 11 to 108. These acts of transfer of certain parts of the property, of which a waqf was made by the three ladies jointly by the will (Ext. 30), were apparently inconsistent with the will, and as if to ease her conscience, Hadi Begum made a waqf of a part of the property presently and a part of it on her death by the instrument dated the 1st July, 1957 (HC Ext. 20). It was most probably, because of these acts of Hadi Begum, namely, the deed of cancellation dated the 3rd Feb. 1953 (HC Ext. 1), the deeds of transfer of quarters forming part of Schedule B' property in defendants Nos. 11 to 108, which are listed in schedule `C' to the plaint and the fresh instrument of waqf dated the 1st July, 1957 (HC Ext. 1953 (HC Ext. 1), the deeds of transfer of quarters forming part of Schedule B' property in defendants Nos. 11 to 108, which are listed in schedule `C' to the plaint and the fresh instrument of waqf dated the 1st July, 1957 (HC Ext. A-20), which must have impelled the defendant- appellant not to mention or rely upon the will (Ext. 30) in her pleadings before the trial court; and when the plaintiff-respondent filed it and relief upon it to show that Schedule `B' property belonged to all the three, and Sardar Begum the wife of Syed Mohammad Raza was a co-sharer not only in Schedule `A' property but also in Schedule `B' property. as an heir of Mirza Mohammad Qasim, the defendant-appellant placed reliance on the will (Ext. 30) for non- suiting the plaintiff, for the first time in the first appellate court, by her application for adding a ground No. 24 in the memorandum of First Appeal, which was allowed by this Court when it was seized of that First Appeal, and further, as shown above, when the First appeal came up for hearing before the lower appellate court, an attempt was first made to have an issue struck by reference to the will (Ext. 300) by relying on Clause (c) of Rule 3 of Order 14 of the Code of Civil Procedure, raising the question whether the plaintiff could be said to have any share in either of the two sets of properties in suit in view of the terms of the will (Ext. 30). When that attempt, failed, an attempt was made to raise that question directly by an amendment of the written statement. The rejection of the application for amendment did not, however, prevent the defendant-appellant from again raising that point before the lower appellate court in the arguments on the appeal. 23. The lower appellate court took the view that it was not necessary or permissible to frame an issue on the will in the absence of any pleadings. In effect, it held that it was not open to it to frame an issue or enter into the question whether the will has the effect of non-suiting the plaintiff-respondent No. 1, and, since the will was not pleaded, it could not be looked into with a view to seeing whether it had the effect of non-suiting the plaintiff-respondent No. 1. 24. 24. On the second point, the lower appellate court held that Bismilla Begum was the the legally wedded wife of Syed Mohammad Raza, and the plaintiff- respondent No. 1 is his legitimate daughter. On point No. 3 also, it held in favour of the plaintiff that Schedule `B' property originally belonged to Syed Mohammad Qasim, and the sale-deed in favour of Hajra Begum was Benami. In the result, it dismissed the appeal and confirmed the preliminary decree passed by the trial court. 25. The first point raised by the learned counsel for the appellant in the argument before me was that the lower appellate court was in error in refusing to consider the effect of Ext. 30, namely, the will of Hajra Begum, Sardar Begum and Hadi Begum, which had the effect of non-suiting the plaintiff, inasmuch as the share of Sardar Begum in the property, which was the subject-matter of the will must be deemed to have either become waqf on her death or to have vested, for the time being, in Hadi Begum. The second point raised' by the learned counsel for the appellant was that the list (B) property belonged to Hajra Begum as her own, and the finding that she was the Benamidar for Mohammad Qasim was incorrect. The correctness of the finding that the plaintiff is the legitimate daughter of Syed Mohammad Raza, on the basis that the defendant No. 3 was his lawfully wedded wife, was not accepted, but the learned counsel, more or less, conceded that it could be difficult for him to establish that it was vitiated by any error of law or of procedure so as to enable this Court to interfere with it on a Second Appeal under S. 100 of the Code of Civil Procedure, and lastly after the close of arguments and, when the judgment was reserved, a new point was sought to be raised with reference to the award or the family settlement, which was the subject-matter of issues Nos. 4, 5, and 6 before the trial court, although the findings of that court in respect of it were not challenged even before the lower appellate court. I must, however, say that, by an application dated the 23rd Sept. 4, 5, and 6 before the trial court, although the findings of that court in respect of it were not challenged even before the lower appellate court. I must, however, say that, by an application dated the 23rd Sept. 1982 three new grounds of objection were sought to be added to the memorandum of appeal, and the application was allowed that day as no objection was raised from the side of the plaintiff-respondent. The first two of these three grounds raised the point that the third defendant had. in fact, been appointed the legal guardian of the plaintiff and her three brothers who were minors, in accordance with Mohammadan Law and the plaintiff could not, therefore, escape from the effect of the award or the family settlement dated 10-1-1949 in view whereof no decree could be passed in favour of the plaintiff'. The ground further raised the objection that the court below erred in law in omitting to consider this aspect of the case, and that vitiated its entire judgment. By the second ground, the decision of the Supreme Court in Mohammed Amin v. Vakil Ahmad, AIR 1952 SC 358 , was said to be distinguishable, and by the third ground, it was said that the plaintiff had no right to sue and the suit was not maintainable, and here too it was added that the court below had erred in law in altogether omitting to consider this aspect of the case. 26. While it is true that the objection to the findings of the trial court on issues Nos. 4, and 5 was expressly given up before the lower appellate court, that was only an aspect of the case which was not argued presumably in view of the law declared by the Supreme Court in Mohammad Amin's case (Supra) and the string of the authorities referred to therein. Nevertheless the scope of the appeal, whether in the lower appellate court or in this Court, could not be said to have been limited by the giving up of that point by the learned counsel for the defendant-appellant before the lower appellate court. Nevertheless the scope of the appeal, whether in the lower appellate court or in this Court, could not be said to have been limited by the giving up of that point by the learned counsel for the defendant-appellant before the lower appellate court. The law is well settled that, so long as the scope of an appeal is not affected by the giving up of a point, there is nothing to preclude a party from raising it before a superior court or even before the same court, notwithstanding that it is given up at an earlier stage by that party's counsel. Every point, which can be said to truly arise from the pleadings of the parties, can surely be raised at any stage unless the relief claimed on its basis is specifically given up or is deemed to be given up as not pressed. 27. The defendant-appellant's case, throughout, has been that the plaintiff or the defendants Nos. 3 to 10 have no share in either of the two sets of properties in suit. Indeed, that was the basis, on which the ground No. 24 concerning the will (Ext. 30) dated the 6th Nov. 1942, was permitted to be raised in the First Appeal by this Court, which was transferred to and decided by the lower appellate court. What was conceded before the trial court with regard to issue No. 9 was that, if the plaintiff is found to have a share in the two sets of properties in suit the extent of the share claimed by her was not disputed. The contesting defendants never conceded or gave up their case that the plaintiff has no share in the property. The will dated the 6th Nov. 1942 (Ext. 30) was sought to be pressed in aid before the lower appellate court in support of that plea, which was never given up, and the award or the family settlement, which was the subject matter of the decision of the trial court on issues Nos. 4. 5 and 6 and is Ext. A-8, is now sought to be pressed in aid in this Court by grounds Nos. 50, 51 and 52, that were added to the memorandum of Second Appeal on the 23rd Sept. 1982. 28. 4. 5 and 6 and is Ext. A-8, is now sought to be pressed in aid in this Court by grounds Nos. 50, 51 and 52, that were added to the memorandum of Second Appeal on the 23rd Sept. 1982. 28. It is in the light of these subsequent events that the contentions raised before the lower appellate court on the first point and its decision thereon were canvassed in this Second Appeal. 29. There is the further consideration that, in a case like this, the cause of justice is advanced by putting an end to litigation by finally deciding a point on the merits rather than shutting out a party on technicalities of procedure. I did not, therefore think it proper to shut out all arguments on the merits either on the first point relating to the will (Ext. 30) that was raised, but unsuccessfully, before the lower appellate court, and the point relating to the award or the family settlement (Ext. A-8), which was conceded before the lower appellate court, but was raised on Second Appeal in this Court. even without deciding first whether the two points could be raised by the defendant-appellant in view of the fact that the will (Ext. 30) had not been pleaded in the defence in the trial court and the point relating to the award (Ext. A-8) was conceded before the lower appellate court. 30. It is in this background that I am required to decide whether the lower appellate court was wrong in refusing to permit the defendant-appellant to raise the point that the plaintiff-respondent had no share in the property in suit on the face of the will Ext. 30. On an overall view of things the lower appellate court was, in my opinion, not legally right or justified in refusing to permit the defendant-appellant to raise the point before it. As observed above, the point did directly arise, and but for the own acts of the defendant-appellant Hadi Begum in cancelling that will and making transfers of some parts of the property, the point would have been probably raised as the first thing yet nothing in the conduct of Hadi Begum which might have given rise to any estoppel by putting the plaintiff-respondent in a disadvantageous position. That being so, notwithstanding the conduct of Hadi Begum in purporting to cancel the will (Ext. That being so, notwithstanding the conduct of Hadi Begum in purporting to cancel the will (Ext. 30) by the deed dated the 3rd Feb 1953 (HC Ext. 1), and the series of transfers of parts of the property listed in Schedule `C' to the plaint, the cause of justice is better served by deciding the point on the merits and putting an end to litigation rather than to shut the defendant-appellant out from raising it, particularly when the determination of the point does not require the leading of any further evidence and it could be decided straightway by the Court on the material already on the record. 31. This takes me to the consideration, first, of the terms of the will (Ext. 30) and their effect: and secondly the question whether Hadi Begum could have cancelled it, and, in either view, the effect of the two instruments subsequently executed by her the first dated the 3rd Feb, 1953 (HC Ext. 1) and the second which has been deemed to have been executed on the 1st July, 1957 (HC Ext. A-20). 32. It is, therefore, necessary at this stage, to refer in some detail to the contents of Ext. 30. The document is a certified copy of a registered will executed by Hajra Begum, Hadi Begum and Sardar Bagum. It is in Urdu. I got it translated by the Office of the Court into English for a better understanding of its contents. 33. Two sets of properties are dealt with by the document. The first is the `Ahata Chhotey Mian' and the second is `Bhainsia Ahata' These are the two sets of properties in suit. The document recites. "A part of the said property has been received by all the three executants, aforesaid, by way of inheritance from the late Mirza Mohammad Qasim and the other part has been received by executants Nos. 2 and 3 from their Phuphi (father's sister) Mst. Akbari Begum alias Phundan Begum, deceased. We, the executants are in joint possession of the said property. The entire property, detailed below, is being willed by means of this deed." The document then proceeds on to describe the absolute manner in which all the three executants have been the exclusive owners in possession of the two sets of properties. Akbari Begum alias Phundan Begum, deceased. We, the executants are in joint possession of the said property. The entire property, detailed below, is being willed by means of this deed." The document then proceeds on to describe the absolute manner in which all the three executants have been the exclusive owners in possession of the two sets of properties. It then declares, "Now, with a view to avoid any sort of dispute or friction in respect of the property mentioned in this document, in future and with a view that the executants may attain spiritual benefit in both the worlds and also for the pleasure of God Almighty and the Holy Prophet Mohammad (Please be on him) and the pious Imams, the executants, of their own accord and free will.....have made this will in the following manner.....so that it may serve as evidence and be of use when required.....we, the executants reserve with us the right of making changes and amendments in the terms and conditions laid down in this deed. "1. As long as we the executants are alive, the entire property made will of. mentioned in this deed, shall be in the exclusive ownership of the executants and we shall enjoy all the inherent and adventitious rights relating thereto, including all the rights relating to its transfer or hypothecation etc. No, other person shall have any sort of right to oppose, to raise dispute or to cause interference in the property aforesaid. "2. After the death of every one of us the three executants, the entire property mentioned in this deed of will, shall be maintained perpetually in the manner given below. "3. After the death of every one of us, the three executants, Haji Syed Mohd. Ismail and Syed Mohd. Raza, Municipal Commissioner, the husbands of executants Nos. 2 and 3 shall, jointly, be the managers of the property in respect of which the will has been made. If, God forbid, only one of the two gentlemen named above, remains alive, he, alone, shall be the manager of the property willed." 34. This is followed by certain directions for the further , devolution of the management of the property. Para 4 imposes the restriction that none, who does not follow the Shia Imamia Ashna Asharia faith, could be appointed a Manager. This is followed by certain directions for the further , devolution of the management of the property. Para 4 imposes the restriction that none, who does not follow the Shia Imamia Ashna Asharia faith, could be appointed a Manager. Paragraphs 5, 6, 7, and 8 make certain provisions about the management of the property by such managers. Para 9 prohibits the managers from making any transfer of or to hypothecate or to pledge the property. Paragraph 10 specified the objects of the waqf and fixes the percentage of income to be spent on each. The objects include, besides the expenses on repairs of the property, such objects as Azadari of Imam Husain in the month of Moharram till the Chehellum and construction and repairs of Karbala at Nawabganj, Kanpur, Muslim orphanage, mosque and schools of Shia Imamia Asharia faith and stipend for the Pesh Namaz of the mosque of Karbala of Azam Ali Khan deceased, and provision of help to needy close relations. poor and helpless person of the Shia Imamia Asharia sect and to pilgrims for Haj etcetra. 35. The first to die among the three ladies was Sardar Begum, the wife of Syed Mohammad Raza on the 31st March, 1948. Hajra Begum died next on the 12th Nov. 1948, but Syed Mohammad Raza predeceased her having died on the 25th May, 1948. Hadi Begum died last on the 3rd July, 1948. The result of this order of deaths was that Syed Mohammad Raza could claim by inheritance a share only in the property of Sardar Begum, and Sardar Begum could not claim any share by inheritance in the property of her mother Hajra Begum. She inherited a share only in the property of her father Mirza Mohammad Qasirn who died in the year 1904. Hadi Begum, on the other hand, inherited the entire property of Hajra Begum and also a share in the property of Sardar Begum, besides, of course, inheriting her share in the property of Mirza Mohammad Qasim. It may be assumed that at the time when the so-called will (Ext. 30), which is dated the 6th Nov. 1942, was executed none of the three executants could have anticipated that Sardar Begum would predecease Hajra Begum or that Syed Mohammad Raza would predecease Hajra Begum, or Hadi Begum also. It may be assumed that at the time when the so-called will (Ext. 30), which is dated the 6th Nov. 1942, was executed none of the three executants could have anticipated that Sardar Begum would predecease Hajra Begum or that Syed Mohammad Raza would predecease Hajra Begum, or Hadi Begum also. The document proceeds on the assumption that Syed Mohammad Raza the husband of Sardar Begum as also Syed Mohammad Ismail the husband of Hadi Begum would survive all the three executants. 36. The instrument (Ext. 30) did not purport to create any waqf of property in the praesenti. It purported to do so by way of Wasiyat, that is to say on the death of the executants. Since there were three executants and the will as a joint one, the first question of construction, which arises with respect to the will is whether it was a joint will in the sense of being three separate wills or testaments, though written on the paper, or whether it was also a mutual will, so that on the death of the testators successively, the estate of the one, who died first, was succeeded to by the remaining two, and the estate of the one, who died next, was succeeded to by the last surviving. This question is material in view of the fact that Hadi Begum purported to cancel the whole will after the death of Harja Begum and Sardar Begum, as the sole survivor, in purported exercise of the power which the executants had expressly reserved to themselves of "making changes and amendments in the terms and conditions laid down" by the will (Ext. 30), Each one of the three ladies had a specific, defined share in the two sets of properties, which they purported to dispose of by the will. If it was a joint will in the sense of being three separate wills, though written on the same paper, the dispositions made will have to be deemed to have taken effect on the death of each one of the first two in respect of their respective shares in the properties, and, if that were so, Hadi Begum could not have cancelled those dispositions, which had already taken effect, although she might have altered the terms of the disposition made by her in respect of her share in the properties. In that view, the cancellation made by Hadi Begum, though it purports to be a cancellation of the whole will, would operate only on her own share and the subsequent disposition made by her by the instrument dated the 1st July, 1957, would also operate on her own share only. I may, in this context, notice the fact that the instrument dated the 1st July, 1957, does not, on its face purport to create a waqf of the entire property in suit. Under Ziman Alif. the property specified is one-half of the Ahata numbered 101/4 known as Ahata Chootey Mian situate at Colonelganj in the city of Kanpur, which is shown on the map annexed thereto within red lines. Under Ziman Be, the properties specified are part houses of Ahata numbered 101/4 and the whole of houses numbered 101/9, 101/11, 101/25, 101/39. 101 /40 and 101/288, situate at Colonelganj in the city of Kanpur, which are shown on the map annexed thereto enclosed within thick white lines. The map annexed to that deed is headed as Palan of Ahata Chhotey Mian, but, by looking at that map and the description of the properties specified in Ziman Alif and Ziman Be, it is not possible to say whether the dispositions made by the instrument related to the whole of the Ahata Chhotey Mian or only a part thereof. Ahata Chhotey Mian was the property specified in Schedule `A' to the plaint. The property described in Schedule `B' to the plaint or the Bhainsia Ahata, as it appears to have been called, does not appear to have been the subject-matter of the dispositions made by the instrument dated the 1st July 1957.(HC Ext. A-20). Thus, except for saying that the whole of the properties, which are in suit, are not the subject-matter of the dispositions made by the instrument dated the 1st July, 1957 (H. C. Ext. A-20), inasmuch as Schedule `B' properties do not appear to have been touched by that instrument, I am not in a position to say whether the whole of the Schedule `A' property, namely. Ahata Chhotey Mian was the subject-matter of the dispositions made by that instrument. 37. A judgment of the Supreme Court was cited on the aforesaid question about the construction of the will (Ext. 30). That is K. Govindan v. T.T. Lakshmi Amma, AIR 1959 SC 71 . Ahata Chhotey Mian was the subject-matter of the dispositions made by that instrument. 37. A judgment of the Supreme Court was cited on the aforesaid question about the construction of the will (Ext. 30). That is K. Govindan v. T.T. Lakshmi Amma, AIR 1959 SC 71 . On the terms of the will, which came up for interpretation before the Supreme Court in that case, which was also a joint will executed by three persons, the Supreme Court held that it was not a mutual will, but was a testamentary disposition by the three testators of their properties operating on the death of each testator, or in effect three wills combined in one. Quoting from Halsbury's Laws of England, Hailsham's Edition, Vol 34, page 17, para 12, the Supreme Court observed at p. 75 : "A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, disposing either of their separate properties, or of their joint property. It is not, however, recognised the English law as a single will. It operates on the death of each testator as his will disposing of his own separate property, and is in effect two or more wills". 38. The Supreme Court further quoted from Duddell In re : Roundway v. Roundway, (1932) 1 Ch 585 at P. 592, the following observations of Farewell, J., as apposite : ".......in my judgment it is plain on the authorities that there may be a joint will in the sense that if two people make a bargain to make a joint will, effect may be given to that document. On the death of the first of those two persons the will is admitted to probate as a disposition of the property that he possesses. On the death of the second person, assuming that the fresh will has been made, the will is admitted to probate as the disposition of the second person's property..." 39. It is well-settled that it is not safe to interpret the terms of a will by reference to the construction placed on the term of another will by a court, for the terms of a will are to be construed in the background of the facts and surrounding circumstances of each case. No two wills which come up for interpretation before courts could be identical. No two wills which come up for interpretation before courts could be identical. There are bound to be some difference whether in the facts and the surrounding circumstances in which a will is executed, or in its terms. Nevertheless, the principles and the rules of construction are well known, and, for that purpose. Let us place ourselves in the proverbial armschair of the three testators whose will (Ext. 30) requires to be construed in this case. 40. The will proceeds on the assumption that the three ladies were co-sharers in both the sets of the properties dealt with by it, and that the properties were ancestral. Hajra Begum was the mother and Sardar Begum and Hadi Begum were her two daughters. They were issueless. The husband of Hadi Begum, Haji Mohd. Ismail, and the husband of Sardar Begum. Syed Mohmmad Raza, were own brothers. Syed Mohammad Raza had children, but from his second wife, Bismilla Begum. Having lost all hope of continuing their line, the two sisters Sardar Begum and Hadi Begum, probably thought it expedient to make a waqf of all the properties they had, and which they must have expected to get by inheritance on the death of their mother Hajra Begum. Nevertheless, neither of the three ladies wanted to lose their powers of disposition and control over their properties, that is, the respective shares in the two sets of properties, so long as each one of them was alive. Under certain circumstances, all of them were heirs mutually, but, most probably, the three ladies did not desire that any of their property should pass on to the heirs of Syed Mohammad Raza from his second wife. The properties were substantial, although it does also appear that the two brothers Haji Mohammad Ismail and Syed Mohammad Raza were pretty prosperous in their own right as well. 41. It was, in these circumstances, that the will (Ext. 30) came to be executed by the three ladies. The first thing, that they said, was that, as long as they, the-executants, were alive, the entire property shall be in their exclusive ownership, and they shall enjoy all the inherent and adventitious rights relating thereto including all the rights of transfer or hypothecation etc.. The three executants must have. 30) came to be executed by the three ladies. The first thing, that they said, was that, as long as they, the-executants, were alive, the entire property shall be in their exclusive ownership, and they shall enjoy all the inherent and adventitious rights relating thereto including all the rights of transfer or hypothecation etc.. The three executants must have. I think meant that clause to operate on their own respective share during the life of each one of them separately, Before the execution of the will, each one of them had the right of transfer of alienation, and other property rights, only in respect of her own separate share. There was nothing in these clauses which could extinguish the distinct existence of their respective shares, which they had in the property as co-sharers. In short, this clause did not have the effect of converting their tenancy in common into a joint tenancy. The subsequent clauses have to be read in this light. 42. The next cl. (2) says that, after the death of every one of the three executants, the entire property mentioned in the deed shall be maintained perpetually in the manner which is indicated thereunder. The question, with regard to this clause, was whether the share of each one of the three executants was to be maintained perpetually in the manner that followed the clause, immediately from the moment of each executant's death separately. or was to wait the death of all the three of them. The crucial Urdu words in the clause are, Baad-Wafat Hum Her Sah Mukran' and were translated by the translator as "after the death of all of us the three executants." but are, in my opinion, better translated as "after the death of every one of us, the three executants". When construed in the light of the preceding clause commented on above, it should be taken to mean that the arrangement made by the will became operative on the death of each one of the three executants as they occurred in respect of the share of each one of them. It was not necessary that the giving effect to the arrangement should have awaited the death of all the three executants. The will was in this sense a joint will as explained in the quotation from Halsbury in the Supreme Court's judgment cited above, and was not a mutual will. It was not necessary that the giving effect to the arrangement should have awaited the death of all the three executants. The will was in this sense a joint will as explained in the quotation from Halsbury in the Supreme Court's judgment cited above, and was not a mutual will. The same would apply to cl. (3) and the subsequent clauses of the will as well. After the death of each one of the three executants. Haji Mohammad Ismail and Syed Mohammad Raza, the husbands of Hadi Begum and Sardar Begum respectively were appointed jointly to be the management of the property, in respect of which the will was made by each one of them, that is to say in respect of the share of each one of them, in the two sets of the properties. If only one of them were alive at the death of the executants or any of them, he alone was to be the manager of the property. 43. The result of the aforesaid interpretation of the terms of the will (Ext. 30) was that, on the death of Sardar Begum, who was the first among the three to die on the 31st Mar. 1948, her share in the two sets of properties, which were the subject-matter of the dispositions made by the will (Ext. 30) became vested in management in Haji Mohammad Ismail and Syed Mohammad Raza jointly for the religious and charitable objects specified in the deed. In other words, the share of Sadar Begum in the two sets of properties became WAQF on her death on the 31st Mar. 1948 for the religious and charitable objects specified in the will (Ext. 30). The ownership in her share vested in the God Almighty, while, the management of it vested in Haji Mohammad Ismail and Syed Mohammad Raza as Mutawallis. On the death of Syed Mohammad Raza on the 25th May, 1948, Haji Mohammad Ismail became the sole surviving Mutawalli. Similarly, on the death of Hajra Begum on the 12th Nov. 1948, her share in the two sets of properties became waqf for the same religious and charitable objects, and, while the ownership thereof became vested in the God Almighty, the management came to be vested in Haji Mohammad Ismail, who alone survived on that date as the sole Mutawalli. 44. 1948, her share in the two sets of properties became waqf for the same religious and charitable objects, and, while the ownership thereof became vested in the God Almighty, the management came to be vested in Haji Mohammad Ismail, who alone survived on that date as the sole Mutawalli. 44. I am, therefore, of the view that, on a construction of its terms, the will (Ext. 30) was not a mutual will. It was a joint will in the sense that it operated on the death of a each one of the three testators as her will disposing of her own separate property, and it was thus a case of three wills executed by the three ladies simultaneously in identical terms and written on the same paper. 45. Under the Muslim Law, a will is valid to the extent of one third of the testators property without the concurrence of the testators heirs. In this case, Sardar Begum and Hadi Begum were the heirs of Hajra Begum, and Syed Mohammad Raza and Haji Mohammad Ismail, who were their respective heirs, had attested the will and consented to its terms. It was not shown to me that the will suffered from any infirmity or legal defect. It was the plaintiffs own document, and its due execution and attestation was duly proved. There was thus no problem on that account, and the validity of the will was beyond question. The purported cancellation of it by Hadi Begum came after the death of Sardar Begum, Hajra Begum and Syed Mohammad Raza. The shares of Hajra Begum and Sardar Begum in the property had already vested in the God Almighty. Hadi Begum could not have, therefore, cancelled the will in respect of the whole property. Nor could she dispose of the shares of Hajra Begum and Sardar Begum in the property in suit. But the share of Sardar Begum was not inherited by the plaintiffs father Syed Mohd. Raza. It has vested in God Almighty probably Hadi Begum could cancel the will in respect of her own share, or dispose it of but that question will not need a specific answer in this case. But the share of Sardar Begum was not inherited by the plaintiffs father Syed Mohd. Raza. It has vested in God Almighty probably Hadi Begum could cancel the will in respect of her own share, or dispose it of but that question will not need a specific answer in this case. Suffice it to say that no part of the share of Sardar Begum in the two sets of properties could be said to have been inherited on her death by her husband Syed Mohammad Raza, and, that being so, the plaintiff or the defendants Nos. 3 to 10 could not have inherited any share in either of the two sets of the properties in suit. 46. Having arrived at the said result on a construction of the will (Ext. 30), which was put into evidence by the plaintiff-respondent herself, no other point survives for consideration. But, looking at the volume of the record which has piled up in this case, and the vehemence with which it has been contested at each single step, I consider it expedient to give my finding on the point about the enforceability and effect of the award (Ext. A 8) even though the point was given up in the lower appellate court, in view of the fact that the award was the sheet-anchor of the defence in the written statement of the defendant-appellant and was again sought to be made the spear-head of the appellant's contentions in this court although it was raised not as the first point at the hearing of the appeal, but by way of an application for rehearing after hearing was closed. I do not propose to deal with the question whether the third defendant, Bismillah Begum was the lawfully wedded wife of Syed Mohammad Raza, for the finding on this point that has been recorded by the two courts below is a finding of fact and is based on good evidence. It is not open to question on a Second Appeal under S. 100 of the Code of Civil Procedure. Nor do I propose to enter into the controversy whether Schedule `B' property `Bhainsia Ahata' was purchased Benami in the name of Hejra begum by her husband Mirza Mohammad Qasim or was her own property, for the will (Ext. It is not open to question on a Second Appeal under S. 100 of the Code of Civil Procedure. Nor do I propose to enter into the controversy whether Schedule `B' property `Bhainsia Ahata' was purchased Benami in the name of Hejra begum by her husband Mirza Mohammad Qasim or was her own property, for the will (Ext. 30) proceeds on the basis that all the three executants, Hajra Begum, Sardar Begum and Hadi Begum, were co-sharers therein, and that they could not have been unless the property had belonged to Mirza Mohammad Qasim and was inherited on his death in the year 1964 by the three of them. The fact that reliance is sought to be placed on the will (Ext. 30) by the defendant appellant leads to the result that she could not be permitted to raise the question that Sardar Begum did not have a share in Schedule `B' property on the ground that she predeceased Hadi Begum who alone was its sole and exclusive owner. 47. The award or the family settlement (Ext. A-8) starts on the 18th Jan. 1949 and the last entry thereon is dated the 4th Feb. 1949. It is on three sheets of stamp paper, the first one of 12 annas and the following two of 4 annas each. On the front side of the first two sheets is the agreement of reference of certain disputes between the parties to the arbitration and award of three gentlemen : 1. Janab Quibla va Kaba Maulana Syed Mohammad Sahib Qibla Mujtahid Khalf Maulana Syed Bagar Sahib. 2. Qibla Mujtahid va Maulana Syed qalbe Husain Sahib. 3. Qibla Mujta]id va Imam Juma va Maular,a Mufti Syed Ahmad Ali Sehib Qibla Mujtahid. 48. The agreement is signed by Bismillah Begum for self and as the guardian of Syed Mohammad Abid, Syed Mohammad Bagar, Syed Mohammad Iqbal and Ruqaiya Sultan and by Syed Mohammad Taqi Raza, Syed Mohammad Naqi Raza, Syed Mohammad Zaqi Raza and Syed Mohammad Askari Raza of he one part, and Syed Mohammad Ismail and Hadi Begum of the other part. This agreement bears the date 18th January, 1949. This agreement bears the date 18th January, 1949. One rather peculiar feature of the agreement of reference is that it is in two parts : the first part consists of a submission of the dispute by Bismillah Begum and the aforesaid other parties of the first part: and the second part consists of the agreement and consent by Syed Mohammad Ismail and Hadi Begum, the parties of the second part to the submission and reference of the dispute to arbitration. The dispute, which was so referred to arbitration, was the dispute relating to " Warasat va Motrooqa Manqoola v. Ghair Mandoola Syed Mohammad Raza Sahib Marhoom., that is to say with regard to the succession to the estate, including movable and immovable properties, of Syed Mohammad Raza. 49. The second part of the document starts on the back of the second sheet of stamp paper and is continued on the front side of the third sheet of stamp paper. It is dated the 19th Jan 1949 and is signed at the end by the three arbitrators, but, on the margins on the back side of the second sheet and the front side of the first sheet, it also bears the signatures of all the parties to the reference. The signatures of the parties of the first part on the back side of the second sheet as also on the front side of the third sheet of the margin also include the signatures of the plaintiff, Ruqaiya Sultan. The opening clause of the second part of the document by the three arbitrators says that, on the basis of the agreements on the reverse, after hearing the parties, the arbitrators thought that, before the matter was submitted before them in the form of a disputed case, an opportunity should be given to the parties to settle their dispute between themselves, and that the agreement, so arrived at, will be deemed to be their award, and that the agreement so arrived at between the parties was as follows, namely : 1. That by virtue of being the Sharai guardians and after satisfying themselves that no right of the minor children of Syed Mohammad Raza (deceased) was being sacrificed, they appointed Bismillah Begum, the mother of the minors as their guardian and she accepted the same; 2. That by virtue of being the Sharai guardians and after satisfying themselves that no right of the minor children of Syed Mohammad Raza (deceased) was being sacrificed, they appointed Bismillah Begum, the mother of the minors as their guardian and she accepted the same; 2. that Haji Mohammad Ismail as the elder person of family will maintain good family relations with the parties of the first part and treat them as the children of his deceased brother Syed Mohammad Raza; 3. that the third clause relates to Motor- car No. 11, which had already been registered in the name of Haji Sahib, and was in his possession, and in respect of which the first party had raised objection. They will withdraw their objection, and, thereupon, Haji Sahib will, either while going to the Karbala in June, 1949 or before that, take the green motor-car No. 724 and give the motor-car No. 11 to the first party; 4. that ring and other moveables of Syed Mohammad Raza and the chain and the locket shall be given to the first party; 5. that the sum of Rs. 10,000/- belonging to Najmul Hasan Sahib, which was in deposit with Syed Mohammad Raza, shall be returned by the first party to Najmul Hasan Sahib; 6. that about the jewellery sold, it was decided that after the denial on oath by Najmul Hasan Sahib and Haji Sahib, the compensation, for it, which was fixed at Rs. 10,000/- would be paid by the first party to the other; 7. that it was agreed that Haji Mohammad Ismail would state, on oath, whether or not here was any thing belonging to Syed Mohammad Raza, to which the first party was entitled to, and if there was any thing, he would give it to them; 8. that, on the settlement of the above matters, there was no other dispute left between the parties nor was their any amount receivable by the first party from the second or by the second party from the first; 9. that lastly, the three arbitrators formally proclaimed the settlement as their own decision dated the 19th Jan 1949. 50. This is followed by the third part of the document specifying the modifications of the aforesaid agreement, arrived at by the parties mutually. The first thing was that, instead of Rs. 10,000/-, the sum of Rs. that lastly, the three arbitrators formally proclaimed the settlement as their own decision dated the 19th Jan 1949. 50. This is followed by the third part of the document specifying the modifications of the aforesaid agreement, arrived at by the parties mutually. The first thing was that, instead of Rs. 10,000/-, the sum of Rs. 4,700/- and the motor-car No. 11 were given to Haji Mohammad Ismail Sahib and the first party claim for the gun and revolver did not survive against the second party. 51. This settlement, according to the findings arrived at by the trial court was given effect to and acted upon by the parties. There is a list of the assets of Syed Mohammad Raza, which is signed by Syed Mohammad Tagi Raza, Syed Mohammad Zaqi Raza and Bismillah begum in token of their having received those articles. There is no dispute with regard to that. There is the further fact that. Bismillah Begum obtained a succession certificate dated the 19th Oct. 1949 authorising her to withdraw the sum of Rs. 45,000/15/-, which was in deposit in the banks in the name of Syed Mohammad Raza as his heir. It further appears that there was a house which was owned by Syed Mohammad Raza. Bismillah Begum and her children were allowed to have that house without any objection from the side of Hadi Begum or her husband. 52. The validity of the aforesaid settlement or award (Ext. A-8). was not questioned in the plaint, but, it was set up as a defence by the defendant-appellant, the plaintiff replied by saying in her replication, that the contents of para 13 with its clauses (A) to (G) are not admitted, that house No. 96/34, Colonelganj, Kanpur, belongs to Bismillah Begum and was purchased by her, and that the allegations made in para 13 "are not admitted as they stand" with the addition that "the plaintiff and most of the children of Syed Mohammad Raza were minors and there is no question of any reference to arbitration to any body and no body could refer the matter for arbitration to any one". It was then said that Bismillah Begum obtained certificate in respect of the bank deposits of Syed Mohammad Raza as of right. The defendants Nos. It was then said that Bismillah Begum obtained certificate in respect of the bank deposits of Syed Mohammad Raza as of right. The defendants Nos. 1 and 2 had no interest in that amount, and further that the dimond ring and other jewelry and the motor-car were the property of Syed Mohammad Raza, and was inherited by his heirs and it was thus that the question, whether the settlement was void and not binding on the plaintiff, as she was a minor, was raised as an issue at the tiral. The issue was based on the fact that, according to Muslim Law, the only legal guardians of a minor in respect of his property are the father, in his absence the executor appointed by his will, in the absence of either, the father's father and if there be none of the preceding three, the executor appointed by the will of the father's father. 53. A lot of material was placed before me to show that a Mujtahid could under the law applicable to Ashna Asharia Shias, act as the guardian of the property of a minor in the absence of the aforesaid four guardians prescribed by the Shariat and that the appointment of Bismillah Begum, the mother of the plaintiff and the other minor children of Syed Mohammad Raza as their guardian by the three arbitrators, who were Mujtahids, was made in the lawful exercise of that authority possessed by them as a Mujtahid. The decision of the Supreme Court in Mohammad Amin v. Vakil Ahmad, AIR 1952 SC 358 , and the other decisions relied upon therein were sought to be distinguished on the ground that they were cases of Sunni Muslims it is, however, not necessary for me to touch upon this question, for, as I read the document (Ext. A-8), I find that it is not, at all, concerned with the property in suit. It is concerned only with the dispute relating jo the estate of Syed Mohammad Raza, and, when that dispute arose, the will (Ext. 30). dated the 6th Nov. 1942, was very much in existence and none of the parties had thought of questioning the validity or the force or effect of that will at that time. The share of Sardar Begum in the property in suit was believed to have been made a waqf of by the will (Ext. 30). dated the 6th Nov. 1942, was very much in existence and none of the parties had thought of questioning the validity or the force or effect of that will at that time. The share of Sardar Begum in the property in suit was believed to have been made a waqf of by the will (Ext. 30), and obviously there was no dispute between the parties with regard thereto. The dispute was, as is apparent from the document (Ext. A-8), firstly with regard to the question about the legitimacy of the children of Syed Mohammad Raza and the moveable and other assets held by him at his death. That was the dispute, which was settled by the award or the settlement (Ext. A-8), that was given effect to and acted upon. There is no dispute about that in the suit giving rise to the present Second appeal. If there was any dispute, which was common, it was the dispute with regard to the legitimacy of children of Syed Mohammad Raza, and that was settled by that award in favour of Bismillah Begum and her children. Indeed, the very reliance placed by the defendant- respondents on that award (Ext. A-8) forecloses their challenge to the status of Bismillah Begum as the lawfully wedded wife of Syed Mohammad Raza, and her children the plaintiff and the defendants Nos. 4 to 10, as his legitimate children be gotten by her in lawful wed-lock. 54. I am, therefore, of the opinion that the reliance placed by the appellant on the award or family settlement (Ext. A-8) is of no avail. 55. No other point survives for consideration. 56. In the result, the appeal succeeds and is allowed. The judgment and decree under appeal are set aside. The plaintiffs suit for partition is dismissed, but, in the circumstances, I would leave the parties to bear their own costs throughout.