(1.) These consolidated appeals are concerned with four properties, one in Oudh and three in the Punjab, of which at his death on 28 October 1923, the late Sir Fateh Ali Khan, K. C. J. E., was in possession. Nisar Ali Khan, who is the appellant in the first appeal and respondent in the second appeal, and is hereinafter called the appellant, is Sir Fateh's son. Mohammad Ali Khan, who is the respondent in the first appeal and the appellant in the second appeal, and is hereinafter called the respondent, is a first cousin of Sir Fateh, being a son of Sir Fateh's uncle Nawab Nasir Ali Khan, who died on 19 November 1896, in possession of the four properties. On the death of Nawab Nasir, Sir Fateh entered into possession of the estates in question and remained in possession thereafter until his death. The following pedigree sufficiently explains the descent of Sir Fateh and the Positions in the family of the appellant and respondent respectively :
(2.) The family are Shiah Mahomedans of the Asna Ashari sect governed by the Imamia law. By family custom women do not inherit. Sir Fateh's grandfather Nawab Ali Raza Khan, who (lied in 1865 was granted for distinguished service to the British Government a property in the Bahraich District of Oudh, described in lists 1 and 5 attached to the Oudh Estates Act of 1869 as the estate of Nawabganj. This property, being a taluka governed by the Act to which reference has boon made, is held for a heritable and transferable estate. If the talukdar rnakes a will in accordance with the Act such will is valid irrespective of any personal law as to testamentary disposition to which he may be otherwise subject. Under S. 8 of the Act intestate succession to the estate is regulated by the law of primogeniture. On his death Nawab Ali Raza Khan was succeeded in this property by his eldest son, Sir Nawazish Ali Khan. This property is hereinafter referred to as the Oudh property. By a deed dated 9 May 1888, Government, after the death of Nawab Ali Raza Khan, made a grant to Sir Nawazish Ali Khan of a property in the Lahore District known as and hereinafter jailed the Rakh Khamba property. The deed granted the property to Sir Nawazish Ali Khan for life, then to his next brother Nasir Ali Khan for life, and then to his youngest brother Nisar Ali Khan for life. It then provided that on the death of the survivor the estate "shall go and belong to whichever of the lawful male heirs of the said Nawab Ali Raza Khan shall be chosen by the said male heirs as the fittest person to succeed to the said estate, his heirs and successors.......and in the event of the said male heirs being unable to agree within a reasonable time then to such one of the lawful heirs of the said Nawab Ali Raza Khan as His Honour the Lieutenant-Governor may consider fittest to succeed to the said estate, his hairs and successors."
(3.) There were certain conditions attached to the grant including conditions that the holder of the estate should make due provision (or the maintenance of certain persons and that the Local Government might at any time require the holder to set aside from the proceeds of the estate such sum as it thinks necessary for that purpose. Nisar Ali Khan, the youngest son of Nawab Ali Raza Khan, was the father of Sir Fateh, and died in 1878 in the lifetime of Sir Nawazish.