JUDGMENT O.P. Saxena, J. - This is an appeal by defendant No. 1 against the judgment and decree D/- 3-7-1967 passed by the IInd Additional Civil Judge. Kanpur decreeing the suit for declaration, possession and mesne profits and dismissing the suit for return of certain articles from defendant 2. 2. The undisputed facts are that there was one Durga Prasad Bagla who owned considerable property in the city of Kanpur. He carried on business in the names of M/s. Durga Prasad Bagla, Kanpur and M/s Harmukh Rai Munna Lal, Delhi. He married thrice. He last married Mst. Durgi on 19th April, 1915. He had no child. On 1-11-1947 he executed a will in favour of Mst. Durgi whereby he also authorised her to make an adoption. He died on 9th Sept. 1918. It is said that in December, 1918 Mst. Durgi adopted plaintiff No. 1 Kanhaiya Lal Bagla and on 21st Dec., 1918 she executed an adoption deed also. After the adoption there were differences. Plaintiff No. I Kanhaiya Lal Bagla filed O.S. No. 232 of 1924 Kanhaiya Lal v. Mst. Durgi and another in the Court of Civil Judge, Kanpur for declaration that he is the adopted son and also for possession over the disputed properties. The suit was decreed by the trial court. First Appeal No. 502 of 1925 Mst. Durgi v. Kanhaiya Lal, Reported in AIR 1927 All 387 was filed before the High Court. The appeal was partly allowed and while the decree for declaration was maintained, the decree for possession was set aside. 3. On 1-11-1956 Mst. Durgi executed will deed vide Ex. A-13 in favour of defendant No. I Brahma Vart Sanatan Dharm Mahamandal, Kanpur in respect of properties Nos. 1 and 2 of Schedule C. There is house No. 49/21 Naugarha, Kanpur and a bungalow situated in the compound of Bai Ka Bagh. 3-A/166 jeera, Nawabganj. 4. On 31-10-1958 Mist. Durgi executed settlement deed Ex. A-14 in favour of, defendant 1. Properties mentioned in Schedule A and shown in yellow in the map attached to the settlement deed were settled with defendant I. The deed relates to a portion of Bai Ka Bagh. 3-A/166, jeera Nawabganj. 5. On 8-11-1958 Mst. 3-A/166 jeera, Nawabganj. 4. On 31-10-1958 Mist. Durgi executed settlement deed Ex. A-14 in favour of, defendant 1. Properties mentioned in Schedule A and shown in yellow in the map attached to the settlement deed were settled with defendant I. The deed relates to a portion of Bai Ka Bagh. 3-A/166, jeera Nawabganj. 5. On 8-11-1958 Mst. Durgi executed gift deed Ex Q-1 in favour of defendant No. 3 Murari Lal Dwivedi whom she treated as Dharm Putra in respect of the properties mentioned in Schedule B and shown in red in the map attached to the gift deed. The deed relates to the remaining portion of Bai Ka Bagh. 3-A/166 Jeera. Nawabganj. 6. Mst. Durgi died on the night between 11/ 12th Feb. 7. Plaintiff 1 Kanhaiya Lal Bagla sold seven annas share in the disputed properties to plaintiff No. 2 Man Mohan Shukla vide sale deed Ex. 27. 8. On 20th April 1960 plaintiffs filed the present suit for possession over the properties of Schedules 'A' and 'B' of the plaint. declaration that the will, gift and settlement deeds are null and void, declaration that plaintiffs are owners of the properties of Schedule C' of the plaint, for recovery of mesne/profits from defendants I and 3 for the period from the date of death of Mist. Durgi to the date of delivery of possession over properties of Schedules 'A' and 'B' and for return of four gold bangles, one gold chain, one Tonga and one Pony from defendant 2. 9. In the suit it was said that plaintiff I was duly adopted by Mst. Durgi. Subsequently Mst. Durgi came under the influence of interested persons who advised her to repudiate the adoption, Plaintiff 1 filed a suit with his natural father Ram Kumar as his next friend. The High Court held that plaintiff 1 was the adopted son of Durga Prasad Bagla. that the will of Durga Prasad Bagla created a life interest in favour of Mist. Durgi and that plaintiff I had no right to obtain possession of the estate during her life-time. The High Court rejected the claim of Mist. Durgi that she acquired t properties from Stridhan. Plaintiffs guardian applied for Leave to Appeal to Privy Council and while the proceedings were pending. Mst. Durgi and that plaintiff I had no right to obtain possession of the estate during her life-time. The High Court rejected the claim of Mist. Durgi that she acquired t properties from Stridhan. Plaintiffs guardian applied for Leave to Appeal to Privy Council and while the proceedings were pending. Mst. Durgi requested him not to prosecute the appeal and gave an assurance that she would not squander the estate of Durga Prasad Bagla and would ensure the interest of plaintiff 1. She also promised to maintain plaintiff 1. It was said that plaintiff No. 1 continued to live with his adoptive mother and looked after the management of the properties in suit. Mst. Durgi purchased premises No. 3 -A46 Jeera Nawabganj and made constructions with the money left by Durga Prasad Bagla. She purchased house No.49/21 Naugarha, Kanpur in the name of plaintiff 1. It was alleged that Mst. Durgi had only a life estate and after her death, plaintiff I became the owner of the properties in suit. 10. The will, gift and settlement deeds were assailed as null and void, firstly because she had only a life estate and secondly because the same were obtained by fraud, misrepresentation and undue influence. It was said that Mst. Durgi was an old, illiterate and Pardanashin lady who kept ill for over 2 years and defendant 3 Murari Lal Dwivedi. who was managing her property, had a dominant influence over her. Plaintiffs claimed possession over house No. 49/21 Naugarha, Kanpur through tenants. The ornaments are deposited in safety deposit vault No. 374 bearing key No. 390 of defendant 4 Punjab National Bank Ltd., the Mall, Kanpur. It was said that the decision of the High Court operates as res judicata. The plaint was amended and it was said that in view of para 5 of Grounds of Appeal of F. A. No. 502 of 1925 the defence that Mst. Durgi was absolute owner of the properties is barred by estoppel. 11. The suit was contested by defendants 1 to 3. Defendants 1 and 2 filed a joint written statement, while defendant No. 3 Murari Lal Dwivedi filed a separate written statement. The defendants denied the factum of adoption and alleged that the adoption deed was fraudulently obtained by Ram Kumar the natural father of plaintiff No. -1 Kanhaiya Lal Bagla and collaterals of Durga Prasad Bagla. Their case was that Mst. The defendants denied the factum of adoption and alleged that the adoption deed was fraudulently obtained by Ram Kumar the natural father of plaintiff No. -1 Kanhaiya Lal Bagla and collaterals of Durga Prasad Bagla. Their case was that Mst. Durgi became absolute owner of the property in suit by virtue of the will. It was said that the High Court also held that Mst. Durgi was the absolute owner of the property in terms of the will executed by Durga Prasad Bagla and the adoption did not divest her of the the property. The plaintiffs did not challenge these findings and the same became final. The pleas of res judicata and estoppel as set up by the plaintiffs were denied. Even if she was a limited owner as alleged, she became absolute owner under S. 14 (1) of the Hindu Succession Act. As far as house No. 9/21 Naugarha. Kanpur is concerned, it was said that the land was purchased by Mst. Durgi and she got the house constructed, while the natural father of plaintiff No. 1 fraudulently got the name of plaintiff 1 inserted in the sale deed. This matter was concluded by various litigations inter parties. It was alleged that Mst. Durgi was the exclusive owner of premises No. 3-A/166 Jeera Nawabganj, Kanpur and she was competent to execute the will, the gift and the settlement deeds. It was said that all these documents were voluntarily executed by Mst. Durgi after fully understanding their contents and the same were duly acted upon. After the death of Mst. Durgi the residential portion of the bungalow in Bai Ka Bagh was used by defendant No. 1 for religious recitals. Plaintiff No. 1 used to come for hearing recitals. It was said that he surreptitiously locked a portion in order to create evidence of his possession. It was alleged that it was the desire of Mst. Durgi that her last rites should be performed by defendant 1 defendant 2 Sri Narendra Jit Singh is the president of defendant 1 society. He was appointed executer by the will executed by Mst. Durgi. The female attendants removed one gold chain and 4 gold choories from the dead body of Mst. Durgi and gave the same to Smt. Savitri Bagla, who passed on the articles to defendant 2. Two choories and were disposed of for Rs. He was appointed executer by the will executed by Mst. Durgi. The female attendants removed one gold chain and 4 gold choories from the dead body of Mst. Durgi and gave the same to Smt. Savitri Bagla, who passed on the articles to defendant 2. Two choories and were disposed of for Rs. 174/4/9 and ornaments of smaller value were purchased for distribution by way of charity. One gold chain and two choories still remained with defendant No. 2 as executor. The Tonga and Pony were disposed of for Rs. 140/ and the amount was deposited. It was said, that defendant 1 was entitled to the articles in accordance with the terms of the will. As far as the ornaments in Schedule C are concerned, it was said that whatever is in the Bank is either owned by defendant 1 under the will or defendant 3 under the gift deed. The right of plaintiff No. 2 to sue was assailed on the ground that the transfer in his favour was champertous and of a mere spes successions. It was said that even if plaintiff 1 Kanhaiya Lal is held to be an adopted son of Mst. Durgi, he had no vested interest in the properties in suit and his right was limited to a chance of succession. It was also said that Smt. Durgi did not die intestate and she did not leave any properties which could be inherited by Kanhaiya Lai. Some other legal pleas were raised. 12. The plaintiffs filed a replication in which it was reiterated that the findings in the earlier suit operate as res judicata and it is not open for the contesting defendants to challenge the adoption or to dispute the finding that Mst. Durgi had only a life estate in the properties in suit. It was submitted that parents of Mst. Durgi were of ordinary means and Mst. Durgi could not obtain any financial help from them by virtue of which she could acquire them the property in suit. It was asserted that the properties in suit were acquired from the funds left by Durga Prasad Bagla. 13. The learned Additional Civil Judge considered the evidence on the record and believed the plaintiffs version regarding adoption and also held that in view of decision in the earlier litigation, the matter is concluded by res judicata. He held that Mst. It was asserted that the properties in suit were acquired from the funds left by Durga Prasad Bagla. 13. The learned Additional Civil Judge considered the evidence on the record and believed the plaintiffs version regarding adoption and also held that in view of decision in the earlier litigation, the matter is concluded by res judicata. He held that Mst. Durgi had only a life estate under the will and it was not enlarged under S. 14 (4) of the Hindu Succession Act into an absolute estate. The decision in First Appeal No. 502 of 1925 was held to be res judicata inter parties and also otherwise binding as a decision of the High Court on the interpretation of the will. Plaintiff No. I had vested interest in the properties of Durga Prasad Bagla and succeeded to the same on the death of Mst. Durgi. He disbelieved the plaintiffs' version that the will and settlement deeds were not executed by Mst. Durgi voluntarily or obtained by fraud, misrepresentation or undue influence. As far as the gift deed is concerned he held that the same was obtained by defendant 3 Murari Lal Dwivedi under undue influence. He rejected the plea that the deeds were vitiated as Mst. Durgi was an old, infirm and illiterate Pardanashin woman and under the will she was bound to consult the members of the family of adoptive father of Durga Prasad Bagla. He held that the will deed could not take effect after her death as she had only a life estate and the settlement deed ceased to have effect after her death. He upheld the transfer made by plaintiff 1 in favour of plaintiff 2. We believed the version of defendant 2. regarding a gold chain, 4 gold choories, a Tonga and Pony and held that plaintiffs were not entitled to recover the same from defendant 2. He upheld the plaintiffs' claim in respect of immovable properties mentioned at Nos. 1 and 2 of Schedule C and the subject matter of will in favour of defendant 1. He also believed plaintiffs' version in respect of ornaments mentioned at No. 3 of Schedule C. As Mst. Durgi had a life estate, he allowed mesne profits fora period after her death. He repelled the other legal pleas. 1 and 2 of Schedule C and the subject matter of will in favour of defendant 1. He also believed plaintiffs' version in respect of ornaments mentioned at No. 3 of Schedule C. As Mst. Durgi had a life estate, he allowed mesne profits fora period after her death. He repelled the other legal pleas. He decreed the suit for possession over properties of Schedules A and B against defendants I and 3 respectively, declaration that the gift deed is null and void as it was obtained under undue influence, declaration that the will is null and void as Mst. Durgi had only a life estate, declaration that the settlement deed ceased to have effect after the death of Mst. Durgi and recovery of mesne profits in respect of properties of Schedules A and B for the period after the death of Mst. Durgi against defendants I and 3. He dismissed the suit for return of one gold chain, 4 gold choories, one Tonga and one Pony against defendant 2. Both plaintiffs and defendant 2 were awarded proportionate costs. 14. Defendant 3 Murari Lal Dwweth has not filed any appeal and has submitted to the decree. As a consequence, the decree has become final in so far 9 properties mentioned in Schedule B and ornaments mentioned in Schedule C of the Plaint. 15. Sri V.K.S. Chaudhary, learned counsel for the appellant, did not assail the finding of the trial court that plaintiff 1 Kanhaiya Lal Bagla is the adopted son of Durga Prasad Bagla. 16. Sri Chaudhary, however, submitted that it was not held in F. A. No. 502 of 1925 that Mst. Durgi had only a life interest in the property of Durga Prasad Bagla under the terms of the will executed by him. 17. Sri Rajeshwari Prasad, learned counsel for the plaintiff-respondent submitted that the High Court has clearly held that Mst. Durgi had only a life interest. The case had been reported in AIR 1927 All 387 and a certified copy of the judgment has also been filed to show an omission in the operative portion of the order as reported in the AIR. It is, therefore, necessary to consider as to what was the decision made by the High Court. 18. The case had been reported in AIR 1927 All 387 and a certified copy of the judgment has also been filed to show an omission in the operative portion of the order as reported in the AIR. It is, therefore, necessary to consider as to what was the decision made by the High Court. 18. On page 389 the learned Judges referred to the terms of the will as below : "The testator, after saying that during his lifetime he should be the owner of the property, went on to provide that after his death his widow Mt. Durgi should be the absolute owner of the estate left after defraying his funeral expenses and should have power, like himself, to continue or discontinue the whole business, the shops and the commission agency with the advice and consent of his family, that she should have power to spend the whole of his money with the advice and consent of his family, and that she should have power to make a sale or. gift, etc., with the advice and consent of his family. The will then provided that in order to perpetuate the name of the testator, he empowered his wife to adopt with the advice and consent of his family a son of any person she liked, and that after her death the adopted boy could become the owner, but the said adopted boy should have no power in the estate left by him in the lifetime of the said Musammat. The testator then stated that in case he himself adopted a boy during his lifetime, he would make the necessary alterations in the will. The document is called a will, by the testator himself." 19. After considering the terms of the will the learned Judges held : "We have no doubt in our mind that it was not merely an ordinary Hindu widow's estate that was intended to be conferred on Mt. Durgi. On the other hand, the testator expressly stated that she should be the absolute owner of the entire estate left by him and that she should have power to spend the whole of the money, that is to say, the capital, with the consent of his family and also she should have power to make a sale or gift with the consent of his family. Obviously these are not powers which can be ordinarily exercised by a Hindu widow, who has no power to alienate the estate without legal necessity. Then the further provision that during her lifetime the adopted boy should have no power in the estate, was undoubtedly intended to confer on the widow an interest which is not enjoyed by an ordinary Hindu widow. In our opinion the testator had intended to confer on her an absolute estate, with this condition : that in case she exercised the power to adopt a boy her interest would be cut down to a life-interest with remainder over to the adopted son. This undoubtedly was the intention of the testator. Under this will therefore a life estate at least was intended to be created in favour of the widow". 20. The learned Judges passed the following order vide page 392 : "We accordingly allow this appeal and setting aside the decree of the Court below, grant the plaintiff a declaration that he is the validly adopted son of Durga Prasad but that the "life" estate created under the will, dated the 1st Nov., 1917, in favour of Mt. Durgi holds good and the plaintiff will have no right to obtain possession of the estate of the deceased during her lifetime. The plaintiff's claim for possession is therefore dismissed. The defendant's claim that all the articles mentioned in list No. 2 of the plaint are her Stridhan has not been made out. They will be treated as part of the estate left by the deceased with the exception of the personal ornaments, wearing apparels and clothes mentioned in the concluding portion of the lower court's judgment. In view of the fact that the defendant denied even the factum of adoption we are of,' opinion that the parties should bear their own costs in both Courts." 21. The word "life" which has been quoted in the operative portion does not find place in the law report, but finds place in the certified copy. 22. Sri V.K.S. Chaudhary laid emphasis on the word "at least" used in the finding recorded by the learned Judges and submitted that this shows that the Judges had no necessity of considering if she had an absolute estate. The suit for possession could be dismissed on this finding. 23. 22. Sri V.K.S. Chaudhary laid emphasis on the word "at least" used in the finding recorded by the learned Judges and submitted that this shows that the Judges had no necessity of considering if she had an absolute estate. The suit for possession could be dismissed on this finding. 23. Sri Rajeshwari Prasad submitted that the word "at least" was without any consequence as the learned Judges clearly held that the testator had intended to convey to her an absolute estate with this condition, that in case she exercised the power to adopt a boy, her interest could be cut down to a life-interest with remainder over to the adopted son. He also referred to the operative part of the judgment in which it was reported that the estate created in favour of Mst. Durgi was a limited estate. It was held that plaintiff had no right to obtain possession of the estate of the deceased during her lifetime. 24. We have carefully perused the judgment in F.A. No. 502 of 1925 and we are unable to accept the submissions of Sri Chaudhary. We find much force in the submissions of Sri Rajeshwari Prasad. We are of the opinion that the High Court has clearly held that the absolute estate conferred by the testator was cut down to a life estate after the adoption in accordance with the terms of the will. 25. Sri Chaudhary submitted that under the terms of the will Ex A-1 Mst. Durgi had an absolute right to dispose of moveable and immovable properties of the testator and she had even a right to execute a sale deed and a will. The provision that she could execute a sale deed or a will, with the consent of the members of the family of the adoptive father of the testator was. a restriction repugnant to the interest created and was void under S. 11 of the Transfer of Property Act. Mst. Durgi had further been authorised to make an adoption and it was provided : "Bad wafat Musammat Mazkoora ke goe shuda larke malik ho sakta hai lekin Musammat Mazkura ke jitey ji larke ko, akhtiyar guzashta ka na hoga." 26. The word "Guzashta" has been defined as 'Chora hua' 'tyakt' on page 195 of Urdu Hindu Shabdakosh, 1977 edition, published by Uttar Pradesh Hindi Sansthan. Mahatma Gandhi Marg, Lucknow. 27. The word "Guzashta" has been defined as 'Chora hua' 'tyakt' on page 195 of Urdu Hindu Shabdakosh, 1977 edition, published by Uttar Pradesh Hindi Sansthan. Mahatma Gandhi Marg, Lucknow. 27. Sri Chaudhary submitted that the words "Akhtiyar Guzashta" have been used with reference to the concept of Hindu law whereby the rights of the adopted son relate back to the date of adoptive father's death and the adopted son must be deemed by fiction of law to have been in existence as the son of the adoptive father at the time of the latter's death. On adoption by a widow, she is divested of the estate and the adopted son gets the property. It is also known as the principle of relation back. Paras 471 and 502 of Mulla's Hindu Law 1982 edition may be referred to. 28. Sri Chaudhary contended that the words "Akhtiyar Guzashta ka na hoga" meant that the adopted son would have no right under the principle of relation back and there would be no divestment of the estate vested in Mst. Durgi. 29. Sri Chaudhary also referred to the copy of the will filed in the paper book of First Appeal No. 502 of 1925 and the last clause was translated as below : "But the boy shall have no power in the estate in the lifetime of the said Musammat". 30. In Gnambal Animal v. Raju Ayyar, AIR 1951 SC 103 , the principles of interpretation of a will were summed up as below : "The cardinal maxim to be observed by Courts in construing a will is to ascertain the real intention of the testator. This intention has to be primarily gathered from the language of the document which has to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better advised". 31. In the above case reliance was placed. on Venkata Narisimha v. Parthasarathy, (1913) 21 Ind Cas 339, IN which it was held : "The Courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. The Court is entitled to put itself into the testator's armchair. But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document'. 32. It was submitted that the testator knew about the principle of relation back and he therefore specifically provided that the adopted son would have no right in the property during the lifetime of Mst. Durgi and he could become owner after her death. It was a case where vesting was deferred and the adopted son could succeed to only such property which remained undisposed of at the time of Mst. Durgi's death. 33. In Suresh Chander Palit v. Lalit Mohan Dutta, (1915) 31 Ind Cas 405 : AIR 1916 Cal 775. the testator gave an absolute interest in his estate to widow with full powers of alienation. There was a clause providing for adoption. It was also provided that in case of there being no adopted son or wife of the adopted son, the properties which remained after disposal by the widow by gift or sale would go to the heir. It was held that the testator gave an absolute interest in his estate to -the widow with full powers of alienation, that the gift over of what might remain undisposed of by her was void and in operative in law and that after the death of the widow, the estate devolved on her heirs and not on the next reversioner of her husband. 34. In Shantilal v. Bai Chhani, AIR 1973 Guj 146 (FB), the testator made his wife the sole owner of all his properties .and made a gift over after her death for remainder to, his sister's son. It was held that it did not detract from absolute ownership of the wife. 35. In Lalit Mohan v. Profulla Kumar, AIR 1982 Cal 52 , the testator gave an absolute estate to his wife with full right of alienation by way of gift, sale, etc. It was held that it did not detract from absolute ownership of the wife. 35. In Lalit Mohan v. Profulla Kumar, AIR 1982 Cal 52 , the testator gave an absolute estate to his wife with full right of alienation by way of gift, sale, etc. It was provided that on her death, the third, fourth and the next sons and in their absence their legal heirs would receive the property. It was held that the subsequent clauses did not affect her rights. 36. Sri Rajeshwari Prasad referred to paras 471 and 500 to 503 Mulla's Hindu Law 1982 edition on the principle of relation back and divestment of the estate of the widow. He also referred to the cases of Srinivas v. Narayan, AIR 1954 SC 379 , para 17 at page 385, Krishnamurthy v. Dhurwaraj, AIR 1962 SC 59 , Punithavalli Ammal v. Ramalingam, AIR 1970 SC 1730 , Shripad v. Dattaram, AIR 1974 SC 878 . 37. Sri Rajeshwari Prasad submitted that in view of the legal position, the divestment of the widow could not be postponed after adoption. The testator had no power to make a provision contrary to the established law and if he did so, it is void and can be ignored. He, however. contended that the last sentence of cl. 4 of the will quoted earlier only meant that so far as vesting was concerned, it could not be deferred, but so far as enjoyment was concerned, it was postponed. 38. In Gulbaji Ajisigi & Company v. Rustomji, AIR 1925 Bom 282 (2). certain property was made a gift in favour of R and it was provided that on his death his son would become the owner thereof. It further provided for the manner of distribution if no son was left by R. A reference was made to S. 69 of the Indian Succession Act which provides that the meaning of any clause in a will is to be collected from the entire instrument and all its parts are to be construed with reference to each other. It was held that the combined effect of the two clauses read together was that only a life estate was conferred on R. 39. It was held that the combined effect of the two clauses read together was that only a life estate was conferred on R. 39. In Lakshmana v. R. Ramier, AIR 1953 SC 304 , the testator provided that his widow will enjoy the entire properties till her lifetime and after her death their daughter and her heirs would enjoy the same with absolute rights and powers of alienation, such as gift, exchange and sale from son to grandson and so on for generations. It was held that a life estate and not a widow's estate was created. 40. In Ramchandra v. Hilda Brite, AIR 1964 SC 1323 , it was held that if there are repugnant provisions conferring successive interests, if the first interest created is valid, the subsequent interests cannot affect but a code of construction will provide to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testatorial intention contained in the will. It is for this reason that where there is bequest to 'A' even though it be for terms absolute followed by a gift of the same to 'B' absolutely on or after or at 'A's death, 'A' is prima facie held to take a life interest and 'B' an interest in remainder, apparently absolute interest of 'A' being cut down to accommodate the interest created in favour of 'B'. 41. In Bajrang Bahadur v. Bakhtaraj Kuer, AIR 1953 SC 7 , it was held that the intention of the testator has to be gathered not by attaching importance to isolated expression, but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. 42. In the case of Navneet Lal v. Gokul, AIR 1976 SC 794 established principles for the construction of the will were laid down. The principle laid down in the case of Ramachandra v. Halda Brite, AIR 1964 SC 1323 (supra) was approved. 43. In Raghunath v. Ganesh, AIR 1964 SC 234 , the testator made a bequest in favour of two wives, one of whom was authorised to make an adoption. It was provided that the adopted son would have no right during the lifetime of the adoptive mother, but on her death he would 7be entitled to these properties. 43. In Raghunath v. Ganesh, AIR 1964 SC 234 , the testator made a bequest in favour of two wives, one of whom was authorised to make an adoption. It was provided that the adopted son would have no right during the lifetime of the adoptive mother, but on her death he would 7be entitled to these properties. It was further provided that on the death of the co-widow the adopted son would be entitled to the property bequeathed to her. On construction of the will in the light of S. 74 of the Indian Succession Act it was held that the widows had only a life estate. 44. In Scaria Korah v. Korah Mathu, AIR 1962 Ker 323 , a reference was made to S. 88 of the 'Indian Succession Act which provides that if two clauses in a will are inconsistent, effect shall be given to the latter one. It was held that if an estate is given to A and if B attained majority then to B, the meaning can only be that A's absolute estate was subject to defeasance on the attainment of majority by B when the estate would vest in him. 45. Before recording any finding on the interpretation of the will, we will consider the controversy as to whether in view of the decision in First Appeal No. 502 of 1925 the plea that under the will Mst. Durgi had an absolute estate in the property of Durga Prasad Bagla is barred by res judicata. 46. In Janakirama Iyer v. Nilkanta Iyer, AIR 1962 SC 633 , it has been held that while dealing with suits, the only ground on which the plea of res judicata can be urged can be the provisions of S. 11 Civil Procedure Code The general principle of res judicata is not applicable. S. 11 Civil Procedure Code provides as below: "No Court shall try any suit or issue in i. which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court". 47. 47. Defendant 1 set up the claim on the basis of the will and the settlement deed executed by Mst. Durgi who was defendant in the earlier suit. Defendant 3 set up claim on the basis of gift deed in his favour. Both the defendants claimed title through her. The two suits were filed in a court of competent jurisdiction. 48. What has to be seen is as to whether the matter was also directly and substantially in issue in the earlier suit and whether the matter has been heard and finally decided. 49. We may refer-to para 8 of the plaint of the earlier suit from page 2 of the Paper Book filed before the trial court. The plaintiff claimed to be the owner of the property of Durga Prasad Bagla after the adoption. In para 18 of the written statement filed by Mst. Durgi (vide page 15 of the Paper Book) paper No. 52 Ka. She claimed to be the exclusive owner of the property. Issue No. 6 (vide page 68 of the paper Book Paper No. -52 Ka) was as below : "Is the defendant full owner of the property of her late husband by virtue of his will be the 1st Nov. 1917? If so, can the plaintiff claim the property in question?" 50. It would thus appear that both the parties claimed to be the owners of the property in suit and it was in pursuance of the plea raised in the written statement filed by Mst. Durgi that issue No. 6 was framed. The matter directly and substantially in issue was as to whether she had an absolute estate under the will and she continued to be the owner of the property in suit or the plaintiff became the owner after adoption. The issue was decided against her. 51. On page 81 of another copy of the Paper Book, paper No. 16 Ka-1, the Grounds of .Appeal of F. A. No. 502 of 1925 have been given. Para 5 of the Grounds of Appeal provided as below : - "Fifthly - Because under the will of her husband Durga Prasad the appellant was to be the full owner of his estate if she did not adopt, and if she did adopt, to hold the estate for life without any interference by the adopted son. Para 5 of the Grounds of Appeal provided as below : - "Fifthly - Because under the will of her husband Durga Prasad the appellant was to be the full owner of his estate if she did not adopt, and if she did adopt, to hold the estate for life without any interference by the adopted son. The Court below has erred in not giving effect to this". 52. It would thus appear that the alternative plea that Mst. Durgi had a life estate in the property of Durga Prasad Bagla was raised by the appellant herself. The High Court was called upon to decide her main plea that she had an absolute estate under the will and also the alternative plea that she had a life estate and she could not be dispossessed. It would thus appear that the question as to whether Mst. Durgi had an absolute estate or life estate was directly and substantially in issue in the First Appeal and the High Court was bound to decide it. 53. The plea that the suit for possession would have failed on the finding that she had a life estate and it was as such not necessary to go into the question as to whether she had an absolute estate is without merit. It is the duty of courts of law to record specific and clear cut findings on all points of law raised before them. The object is that the parties should know about their right precisely. The clouds of dust raised to smear the title of the other party have to be removed. The question as to whether Mst. Durgi had an absolute interest in the property was her main plea and had not been given up during the hearing of the First Appeal. The High Court was thus bound to decide it. We reject the plea that the observations of the High Court were mere obiter dicta and were consequently not binding. 54. The precedents relied upon by Sri Chaudhary are obviously distinguishable and we may refer to the same in brief. 55. In Dan Kuer v. Sarla Devi, AIR 1947 PC 8 , the principle was not applied for 2 reasons. In the earlier suit, the removal of Mutwalli was claimed on the ground of incompetence. He raised the plea that the office was heritable and obtained a finding in his favour. 55. In Dan Kuer v. Sarla Devi, AIR 1947 PC 8 , the principle was not applied for 2 reasons. In the earlier suit, the removal of Mutwalli was claimed on the ground of incompetence. He raised the plea that the office was heritable and obtained a finding in his favour. This was irrelevant to the controversy raised by the plaintiff and the Mutwalli could be removed even if the office was heritable and plaintiff succeeded in proving his case for removal. In a subsequent suit filed by the son of Mutwalli, the finding in the earlier suit was not held to be res judicata. 56. In Jogendra v. Balbahadder, AIR 1971 All 334 at 338, the plea of res judicata was refused on the ground of non -registration of the sale deed, the finding about the jointness or otherwise of the junior member with the Raja was not called for and was therefore not directly and substantially in issue for the disposal of the case. 57. In Kali Charan v. Deputy Director of Consolidation, AIR 1977 All 56 , the finding of a Revenue Court in a suit which it was not competent to decide on the date of institution, was held to be without jurisdiction and not res judicata. 58. We are thus satisfied that the matter was directly and substantially in issue in the earlier suit. 59. It is not disputed that the matter was heard and finally decided in the earlier suit. We are unable to agree with Sri Chaudhary that the bar of res judicata is not applicable as he could not file any appeal. What is necessary for the applicability of S. 11 Civil Procedure Code is that the matter should have been heard and finally decided. The bar of res judicata does not depend on the availability of a right of appeal. There was no right of appeal against the order passed by the Privy Council. There is no such right against the order passed by the Supreme Court. It cannot be said that the order passed by the Privy Council or the Supreme Court would not operate as res judicata as there is no right of appeal. There was no right of appeal against the order passed by the Privy Council. There is no such right against the order passed by the Supreme Court. It cannot be said that the order passed by the Privy Council or the Supreme Court would not operate as res judicata as there is no right of appeal. Sri Rajeshwari Prasad referred to (1) Raghunath v. Deo Narain, AIR 1917 Pat 350, (2) Bhubhindra Narain v. Tarupriya Debya, AIR 1950 Assam 119 and (3) Union of India v. Pearl Hosiery Mills, AIR 1961 Punj 281 in support of the contention that even though the suit has been dismissed, the decision operates as res judicata. In the last two cases a reference has been made to section 96 Civil Procedure Code and it has been said that notwithstanding that a suit has been dismissed, the defendant has a right of appeal if he is aggrieved by the decree or a finding has been recorded which may operate as res judicata. We may refer to cases of Narayana Prabhu Venkataswara Prabhu v. Narayana Prabhu Krishana Prabhu (decd) by LRS, AIR 1977 SC 1268 and Subhag Singh v. Jai Singh, AIR 1968 SC 1328 for the proposition that the existence of any right of appeal is not a condition precedent to the bar of res judicata. 60. We, therefore, hold that the decision of the High Court in F. A. No. 502 of 1925 operates as res judicata and it is not open for this Court to adjudge the matter again. 61. Sri Rajeshwari Prasad submitted that apart from the bar of res judicata, the finding recorded by the High Court on the interpretation of a will is binding in a subsequent case. 62. In Bibhabati Devi v. Mahendra Chandra, AIR 1938 Cal 34 it was held that where the will is the subject matter of a definite pronouncement by a High Court, the same matter cannot be raised in the same High Court in a subsequent suit of identical facts if the parties to the suit are different. In the light of this authority also, the interpretation put by the High Court on the will is binding in the subsequent suit also. 63. There was considerable argument advanced on the plea raised in para 5 of the Grounds of Appeal of F. A. No. 502 of 1925 referred to above. In the light of this authority also, the interpretation put by the High Court on the will is binding in the subsequent suit also. 63. There was considerable argument advanced on the plea raised in para 5 of the Grounds of Appeal of F. A. No. 502 of 1925 referred to above. We are of the opinion that it is open to a party to set up an alternative case and the plea raised in the para was of that nature. The main plea was not abandoned. There is neither an attempt to place a contradictory construction on the will nor any erroneous or gratuitous admission which has to-be withdrawn. All the talk about blowing hot and cold in the same breath or approbating or reprobating is misconceived. We are satisfied that as it was an alternative plea, it does not give rise to estoppel. 64. However, in view of our findings on the bar of res judicata and the finality of the interpretation of the will by the High Court in the earlier suit, we cannot record any fresh finding on the interpretation of will as urged before us. We hold that the interpretation made in F. A. No. 502 of 1925 is binding on the parties. Under the terms of the will dated 1st Nov. 1917. Mst. Durgi had an absolute estate in the property of Durga Prasad Bagla and the same was cut down to a life estate after the adoption. 65. Sri Chaudhary lastly submitted that even if Mst. Durgi had a life estate. she became a full owner by virtue of S. 14 (1) of the Hindu Succession Act, 1956 which came into force on 17th June 1956 and was competent to execute the will and settlement deeds. He urged that the word 'devise' in S. 14(1) includes a will. According to him, S. 14(2) of the Act would not apply in the present case as the will was executed in recognition of Mst. Durgi's right of maintenance. It was a pre -existing right and the same was recognised by the testator when he executed the will in her favour. 66. Sri Rajeshwari Prasad submitted that S. 1411) of the Act is not applicable as the case is covered by S. 14(2) of the Act and the life estate of Mst. Durgi's right of maintenance. It was a pre -existing right and the same was recognised by the testator when he executed the will in her favour. 66. Sri Rajeshwari Prasad submitted that S. 1411) of the Act is not applicable as the case is covered by S. 14(2) of the Act and the life estate of Mst. Durgi would not he converted into a full estate under S. 14111 of the Act. 67. S. 14 of the Hindu Succession Act, 1956 provides as below : 14. Property of female Hindu to be her absolute property. ( 1) Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation - In this sub-section, ..property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or a gift from any person whether a relative or not, before, at or after her marriage, or by her own skill, or exertion, or by purchase or by prescription or in any other manner, whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-sec. (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award. where the terms of the gift will or other instrument or the decree, order or award prescribe a restricted estate in such property." 68. In Badri Prasad v. Kanso Devi, AIR 1970 SC 1963 the husband died in H31. The widow acquired interest under Hindu Women's Right to Property Act. The property of her husband was partitioned by metes and bounds. She obtained possession over property allotted to her and was so possessed at the time the Act came into force. It was held that S. 14(1) applies and she became a full owner of the property allotted to her. 69. On page 1966 the Supreme Court held : The word 'acquired' in sub-section 11) has also to be given the widest possible meaning. It was held that S. 14(1) applies and she became a full owner of the property allotted to her. 69. On page 1966 the Supreme Court held : The word 'acquired' in sub-section 11) has also to be given the widest possible meaning. This would be so because of the language of the explanation which make sub-section 11) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or female's own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act a female Hindu has share in joint properties which are later on partitioned by metes and bounds and she got possession of the properties allotted to her, there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has acquired the same before its commencement". In the next para the Supreme Court held "Sub-section (2) of S. 14 is more in the nature of a proviso or an exception to sub-sec. (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in the possession of the property". In V. Tulasammi v. V. Sesha Reddi, AIR 1977 SC 1944 , a Hindu widow acquired property in pursuance of a compromise in lieu of the satisfaction of her claim for maintenance. The compromise prescribed limited interest in the property. It was held that S. 14(1) of the Act applies and she became full owner. On page 1950 the Supreme Court observed : "It is settled law that a widow is entitled to maintenance out of her deceased husband's estate, irrespective whether that estate may be in the hands of his male issue or it may be in the hands of his coparceners. The joint family estate in which her deceased husband had a share is liable for her maintenance and she has a right to be maintained out of joint family properties". The joint family estate in which her deceased husband had a share is liable for her maintenance and she has a right to be maintained out of joint family properties". On page 1966 the Supreme Court held : "Thus, we are clearly of the opinion that sub-s. (2) of S. 14 is more in the nature of proviso and should be interpreted in such a way so as not to substantially erode S. 1.1(1) or the Explanation thereto. In the present case we feel that the proviso has carved out completely a separate field and before it can apply three conditions must exist (i) that the property must have been acquired by way of gift. will, instrument, decree or order of the court or by an award, (ii) that any of these documents executed in favour of a Hindu female must prescribe a restricted estate in such property - and (iii) that the instrument must create or confer a new right, title or interest on the Hindu female and not merely recognise or give effect to a pre-existing right which the female Hindu already possessed." Where any of these documents are executed but no restricted estate is prescribed, sub-s. (2) will have no application. Similarly where these instruments do not confer any new title for the first time on the female Hindu, S. 14 (2) would have no application. On page 1978 the Supreme Court held: "(4) Sub-section (2) of S. 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of female is legally permissible and S. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of 5.14 (1) and the restrictions placed, if any, under the document would have to be ignored. Thus, where a property is allotted or transferred to a female in lieu of maintenance or a share-at partition the instrument is taken out of the ambit of sub-s. (2) and would be governed by S. 14 (1) despite any restrictions placed on the powers of the transferee. 70. In Bai Vajia v. Thakorbhai, AIR 1979 SC 993 , the above case was followed. In this case a widow had obtained possession over certain land in compliance of a decree of Court where she was entitled to take possession of the specified land in case of default in payment of yearly maintenance allowance. On 21-10-1963 she sold a plot which gave rise to litigation and the matter came up before the Supreme Court. It was held that the widow became a full owner under S. 14(1) of the Act. On page 1000 the Supreme Court held : "The right of the widow to be maintained is of course not a jus in rem, since it does not give her any interest in the joint family property, but it is certainly jus ad rem, i.e., a right against the family property. Therefore, when specific property is allotted to the widow in lieu of her claim of maintenance the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. It would not be grant for the first time without any pre -existing right in the widow. The widow would be getting the property by virtue of her pre-existing right the instrument giving the property being merely a document affecting such pre-existing right and not making a grant of the property to her for the first time without any antecedents,' right or title." 71. In Kotturuswami v. Veeravva, AIR 1959 SC 577 A the last main holder died in 1950. A had by his will authorised his wife B to adopt a son and in compliance therewith B adopted C in 1942. D alleging himself to be the nearest reversioner of A filed a suit for declaration that C's adoption was invalid and not binding on him. The suit was dismissed and the decision was affirmed by the High Court. D appealed to the Supreme Court, when a preliminary objection was raised under S. 14 of the Hindu Succession Act, 1956, which had come into force. The suit was dismissed and the decision was affirmed by the High Court. D appealed to the Supreme Court, when a preliminary objection was raised under S. 14 of the Hindu Succession Act, 1956, which had come into force. It was held that if the adoption was invalid, the full owner of A's estate was his widow B and even if it be assumed that C was in actual possession of the estate, his possession was merely permissive and B must be regarded as being in constructive possession of it through C. In this situation, at the time when the Act came into force, the property of A must be regarded in law as being possessed by B and as such B had become full owner of A's estate under S. 14(1) of the Act and D's suit could not succeed. 72. In Jinnappa Thavannappa v. Kallavva, AIR 1983 Kant 67, a widow acquired certain properties for life by virtue of a registered will executed by her husband. After her death the properties were to go to her husband's brother as full owner. The widow, however, made a gift in favour of her daughter on 13th May, 1968. The gift deed was challenged by the brother's grandson on the ground that it was not binding on him. It was held that S. 14 (1) and not S. 14(2) was applicable to the facts of the case. A Hindu widow has an inherent right of maintenance charged on the properties of her husband and as such it cannot be said that the widow in the present case got rights in the properties for the first time by virtue of the will and in fact she was given these properties in lieu of her right of maintenance. That being so, on the coming into force, the restricted right of the widow became enlarged and she became the full owner of the properties. In Mst. Karmi v. Amru, AIR 1971 SC 745 , a widow succeeded to the property of her deceased husband on the strength of a will which prescribed only a life estate. It was held that she could not claim to have become absolute owner under the Act. 73. In Pachi Krishnamma v. Kumar Krishnan, AIR 1982 Ker 137 , the widow was not possessed of any joint family property at the time the Hindu Succession Act. It was held that she could not claim to have become absolute owner under the Act. 73. In Pachi Krishnamma v. Kumar Krishnan, AIR 1982 Ker 137 , the widow was not possessed of any joint family property at the time the Hindu Succession Act. 1956 came into force. It was held that she could not claim full ownership under S. 14(1) of the Act. It was pointed out that in V. Tulasamma v. V. Sesha Reddi, AIR 1977 SC 1944 (supra) the widow was in possession of the property when the Hindu Succession Act came into force and was distinguished on this ground. Section 14 of the Act can have no application unless the Hindu female can be said to be possessed of property. 74. In Angammal v. Balsubramaniam, (1980) 1 Mad LJ 242. A executed a settlement deed on 2nd March 1951 granting a life estate to his wife B and the vested remainder in favour of C, a child aged 4 months at the time of settlement. On 15th July 1957, B purporting to act as guardian sold the properties to D. C challenged the sale. It was held that the recitals did not indicate that the settlement was in lieu of maintenance or any recognition of pre-existing rights but was a conferment of fresh title or right for the first time on B containing certain 'restrictions. Section 14 (2) of the Act was applied. It was further held that the alienation made by B as de facto guardian was void under Section 11 of the Hindu Minority and Guardianship Act. 75. Applying the three conditions laid down in V. Tulasamma v. V. Sesha Reddi, AIR 1977 SC 1944 it would appear that Mst. Purgi acquired the property in pursuance of a will dated 1st Nov. 1917 and under the will her absolute estate was cut down to a life estate when she made the adoption. She had a life estate on the enforcement of Hindu Succession Act, 1956. Thus, the first two conditions are fulfilled. The controversy between the parties is regarding the third condition. 76. The question for determination is as to whether the will created an independent or new title in favour of Mst. Durgi or the property was bequeathed to her in recognition of her pre-existing right of maintenance. The succession to Durga Prasad Bagla opened on his death on 9th Sept. 1918. 76. The question for determination is as to whether the will created an independent or new title in favour of Mst. Durgi or the property was bequeathed to her in recognition of her pre-existing right of maintenance. The succession to Durga Prasad Bagla opened on his death on 9th Sept. 1918. Had he died intestate, Mst. Durgi would have inherited a limited interest in his property as a widow. A perusal of the will shows that no specific property was bequeathed to her in lieu of her pre-existing right of maintenance. There was no recital in the will that the property was being bequeathed in her favour in recognition of the pre-existing right of maintenance. Durga Prasad Bagla wanted to give her an independent or new title, which could not he conceived under the Hindu Law then prevalent, when he provided that she would be an absolute owner of his entire property. There would have been no difficulty if there was no provision for adoption or she did not make any adoption. It is a case in which she was given an absolute estate in the entire property of the deceased and this absolute estate was cut down to a life estate on adoption. In Mst. Karmi v. Amru, AIR 1971 SC 745 , the Supreme Court held that the widow who had been given a life estate under the will of her husband could not claim to be the absolute owner under the will. 77. We may distinguish the cases relied upon by Sri Chaudhary. 78. In Badri Prasad v. Kanso Devi, AIR 1970 SC 1963 the widow obtained possession over property allotted to her in a partition by metes and bounds in recognition of her pre-existing right of maintenance. 79. In V. Tulasamma v. V. Sesha Raddi, AIR 1977 SC 1944 the widow obtained possession over certain property in pursuance of a compromise in lieu of the satisfaction of . her claim for maintenance. 80. In Bai Vajia v. Thakorbhai, AIR 1979 SC 993 . the widow obtained possession over some property through court as there was default in payment of yearly maintenance allowance in terms of a decree passed in a suit for partition filed by male members of her husbands family. 81. her claim for maintenance. 80. In Bai Vajia v. Thakorbhai, AIR 1979 SC 993 . the widow obtained possession over some property through court as there was default in payment of yearly maintenance allowance in terms of a decree passed in a suit for partition filed by male members of her husbands family. 81. In the above cases, the widow obtained a life estate in respect of properties allotted to her and she was in possession as such when the Hindu Succession Act came into force and the benefit of S. 14(1) was given. 82. In Kottuswami v. Veeravva, AIR 1959 SC 577 . the limited estate given to the widow under the will was enlarged to an absolute estate on the assumption that the adoption was invalid. It was observed on page 580. para 7 : "The question raised by the preliminary objection taken by the respondents must be considered on the assumption that the adoption of the second defendant was invalid. The provisions of S. 14 of the Act would not arise for consideration if the second defendant had been validly adopted'. (underlineing by us). 83. In Jinnappa Thavanappa v. Kallavva, AIR 1983 Kant 67. the Supreme Court decision on a will by a husband in AIR 1971 SC 745 was not followed and reliance was placed on three decisions reported in AIR 1970 SC 1963 , AIR 1977 SC 1944 and AIR 1979 SC 993 in which a Hindu widow obtained certain properties after the death of her husband in lieu of maintenance. It was not a case in which an adoption may have been made. 84. We are clearly of the view that the case of a Hindu widow who has made an adoption under the authority given to her in a will is not at par with the simple case of a Hindu widow who has a limited interest in the property of her husband under a will. In the former the rights of the adopted son come into existence and the intention of the testator has to be looked into. In this case the testator gave an independent and new title to the widow when he granted her an absolute estate in his entire property and again when he provided that the adopted son would have no right of relation hack but would become owner after her death. In this case the testator gave an independent and new title to the widow when he granted her an absolute estate in his entire property and again when he provided that the adopted son would have no right of relation hack but would become owner after her death. Angammal v. Balasubramaniam, 1980-1 Mad LJ 242 (supra) is a precedent applicable to the facts of this case. It is on interpretation of the terms of the will with regard to adoption that it was held by the High Court that her absolute estate was cut down to a life estate. 85. We are thus satisfied that the third condition laid down in V. Tulsamma v. Sesha Reddi, AIR 1977 SC 1944 is also fulfilled and S. 14 (2) of the Act applies Mst. Durgi could not become an absolute owner of property in suit under S. 14 1 1 1 the Hindu Succession Act. 86. No other point was pressed. 87. In view of our findings above, we affirm the judgment and decree passed by the court below. 88. The appeal is dismissed with costs to plaintiffs-respondents.