Norman Macleod, Kt., C.J.
1. This suit was originally brought at the beginning of 1913 by the plaintiff. He sued to have a declaration that he was the nearest agnate of the deceased Adam Amanji and that the defendants 1 and 2 acquired no rights by his will, and that therefore, he, the plaintiff, was entitled to the property in suit after the death of defendant No. 1. Admittedly the property in suit is Bhagdari property and comes within the provisions of the Bhagdari Act.
2. The trial Court on the 15th October 1914 passed the following order: 'Declared that the plaintiff is the nearest agnate of the deceased Adam and is entitled to succeed to his Bhag property in suit after the death of defendant No. 1. Declared that the will of the deceased Adam is inoperative in so far as the Bhag property in suit is concerned, and defendant 2 does not acquire any right to the said property under the said will against the plaintiff. Plaintiff's prayer for the appointment of a receiver is rejected.'
3. An appeal was filed against that order and the suit was dismissed with costs throughout on the plaintiff' by the learned District Judge. On the question whether or not the will of Adam was invalid under Mahomedan law, the learned Judge held that the will was not invalid, and further that the plaintiff was not entitled to impugn it. He, therefore, did not deal with the question whether the plaintiff was entitled to a receiver.
4. An appeal was filed in the High Court, and that decree of the learned appellate Judge was set aside, and the case was remanded for disposal upon the other questions discussed in the trial Court. The learned Judges said: 'if there has been waste or there is danger to the estate established, a possible reversionary heir may come in and ask for relief. There are cases of waste alleged and there is a danger of transfer to the second defendant suggested.'' The case therefore went back to the District Judge, and he was of opinion that as no waste had been established and as no transfer of any lands to defendant 2 was proved, there was no necessity to appoint a Receiver. In spite of the findings of the High Court he dismissed the plaintiff's suit with costs throughout. That in any case was a decree which cannot for a moment be supported. Clearly the plaintiff was entitled to have the order of the trial Court restored with regard to the first two declarations, that he was the nearest agnate of the deceased Adam, and that the will of the deceased Adam was inoperative. Now it is admitted on the question of waste that the 1st defendant had given away two Survey Nos. on a demand by the Panch after the death of her husband, and the 1st defendant alleged that her husband agreed orally to give this property to the Masjid. There was no provision in the will about giving any land to the Masjid, and so we have this to consider, the widow made a gift of these two lands to the Masjid when she was only entitled to a life interest in the Bhagdari property. It is quite true that nothing was said about the provisions of Section 3 of the Bhagdari Act, and the question whether this alienation is valid or invalid under Section 3 would depend upon whether- these two Survey Nos. constitute a recognised sub-division of a Bhag. It seems to me pretty obvious that they cannot possibly do so,
5. But apart from that we have to consider whether the gift of a portion of the property of which the donor is a life-tenant constitutes waste. On general principles it certainly must be considered waste unless some necessity can be set up by the person making the [alienation. That is not suggested in this case. But the authority of Khub Lal Singh v. Ajodhya Misser ILR (1915) Cal. 574 has been dragged in on the false analogy that a Mahomedan widow who according to custom is only a life tenant of the Bhagdari property which belonged to her husband, can on that account make gifts of the estate as if she were in the position of a Hindu widow who is entitled to make alienations to secure spiritual benefit to her husband. That is an absolutely false argument, and it shows the necessity of exercising great care when one is considering the succession to the estate of a Mahomedan when it appears to be governed by a particular law as regards the property concerned. It is only because there is a particular custom with regard to the succession of Bhagdari property that the 1st defendant has a life interest with remainder-to the reversioner instead of having a widow's share in her husband's property. But by no process of reasoning can you come to the conclusion that on that account she is for all intents and purposes exactly in the position of a Hindu widow.
6. There is also evidence that the 1st defendant was anxious to get the lands transferred to the name of the 2nd defendant. That by itself might not constitute waste, but it might constitute a danger to the interests of the reversioner which a Court might take into consideration on the question whether his interests should be protected. Considering the attitude of the defendants, and the fact that they are probably collecting the rents of the property through some agency, there is no reason why the Court should not protect the interests of the plaintiff by appointing a Receiver. The decree of the lower appellate Court will be set aside. There will be the two declarations as ordered by the trial Court on the 15th October 1914, and the case will be remanded to the trial Court for the appointment of a Receiver. The costs up to the remand order of the High Court were due to the fact that the testator had made a will, and whether it was valid or invalid in the circumstances of the case was a question which required to be decided by the Courts. Therefore following the ordinary rule costs must come out of the estate up to the date of the remand order. But the costs after the remand order dealt purely with the question of waste and must be paid by the defendants.