Pramada Charan Banerji, J.
1. The suit which has given rise to this appeal was brought by the plaintiff appellant in the Revenue Court for her recorded share of profits for the years 1320, 1321 and 1322 Fasli. Property comprising 7 biswas and odd belonged to one Rahim-un-nissa Bibi. She had three sons, two of whom pre. deceased her. The plaintiff is the daughter of one of the pre. deceased sons. The defendant is the son of a third son who survived her. In the revenue papers the name of the plaintiff was entered in respect of a 3 biswas and odd share, i.e., one half of the 7 biswas and odd which belonged to Rahim-un-nissa. The plaintiff applied for partition of her recorded share in the Revenue Court. Her application was resisted by the defendant, who alleged that she owned no share in the property, her father having predeceased Rahim-un-nissa. He was referred by the ' Revenue Court to the Civil Court under the provisions of Section 111 of the Land Revenue Act. Thereupon he brought a suit in the Civil Court for a declaration that the present plaintiff had no interest in the property in question. This suit was tried by the Civil Court, and it was finally decided that what Rahim-un-nissa had done was this. She made a waqf of one half of the property and appointed the plaintiff and the defendant trustees of this waqf; as regards the other half the plaintiff was to get one-third, the defendant one-third and the sons of the second predeceased son were to get a third share; but the names of the plaintiff and the defendant only were to be recorded in the revenue papers in regard to this portion of the property, namely, one half of the 7 biswas and odd. The plaintiff's name thus was recorded in regard to 3 biswas and odd, that is to say, one half of the 3 biswas and odd which became waqf property and one half of the remaining 3 biswas and odd, total 3 biswas and odd. It was in respect of this 3 biswas and odd that the plaintiff claimed profits. During the years in question her name was recorded in regard to the 3 biswas and odd, and at the time when she instituted her suit her name was similarly recorded. The plaint clearly shows that she claimed profits for the whole of 3 biswas and odd, and this, as we have said above, includes the waqf property as well as the remainder of the property, in regard to both of which her name was recorded in respect of one-half. The court of first) instance granted a decree to her for a sixth share. This was clearly erroneous, because in the civil suit, to which we have referred, what the court held was that in her own right she was entitled to one-sixth of the 7 biswas and odd, that is to say, to one-third of 3 biswas and odd. But it came to no decision and it passed no decree in respect of the 3 biswas and odd which was waqf property, but it stated in its judgment that she was to have a half share in the waqf as one of the two trustees of the waqf. The lower appellate court was of opinion that as the name of the plaintiff was during the years in question and at the time of the institution of the suit recorded in respect of 3 biswas and odd, she was entitled to a decree for the whole of her claim and for this view it relied upon the decision of the Pull Bench of the whole court in the case of Durga Prasad v. Hazari Singh (1911) I.L.R. 33 All. 799. A second appeal was preferred to this Court and the learned Judge of this Court who heard the appeal reversed the decree of the lower appellate court and restored that of the court of first instance. The learned Judge relied on the fact that since the institution of the suit the Revenue Court had caused the entry of the name of the plaintiff to be amended and had entered her name in regard to one-sixth of 3 biswas odd. It is manifest, having regard to the decision of the Civil Court, to which we have referred above, that this entry was clearly wrong. What the Civil Court held was that the plaintiff was entitled in her own right to one-sixth of the whole of the 7 biswas and odd, and not to one-sixth of 3 biswas and odd, which was one-half of the 7 biswas and odd. The Revenue Court in entering her name in regard to one-sixth of 3 biswas and odd 'was thus clearly in error. But we have not to deal with that question in the present case, inasmuch as at the time when the suit was instituted and during the years for which profits were claimed the name of the plaintiff stood recorded in regard to 3 biswas and odd. Her name was rightly recorded in regard to the whole of that share because she was trustee of one-half and she was to remain recorded according to the will of Rahim-un-nissa in respect of the remaining half of Rahim-ua-nissa's share. The fact that the Revenue Court had during the pendency of the suit made alterations in the papers could not affect the question which the court had to decide in the suit brought by the plaintiff. This was the view of the learned Judges of this Court who decided the case of Lachman Prasad v. Shitabo Kunwar (1920) I.L.R. 43 All. 177. Reliance was placed oa behalf of the respondents on the case of Hargu Lal v. Med Singh (1915) 29 Indian Cases 509. That case is distinguishable from the present. In that case, before the institution of the suit for profits the Civil Court had already decided the question of the title of the parties and had held that the plaintiff had no title. Therefore, in accordance with the ruling of the Full Bench in Bhawani Singh v. Dilawar Khan (1909) I.L.R. 31 All. 253, the provisions of Section 201 of the Agra Tenancy Act did not apply to the case. In the present suit the decision of the Civil Court did not relate to the whole of the rights of the parties. It only decided the question relating to her personal share in. the property under the will of Rahim-un-nissa Bibi which she had made orally before her death and which was in accordance with the written will deposited by her with the Registrar. The question of title had not been completely decided before the institution of the present suit, and therefore in the present suit the plaintiff was entitled to obtain profits in respect of the share which stood recorded in her name at the date of the institution of the suit and during the years for which profits were claimed. In this view the decision of the lower appellate court was correct and it must be restored.
2. On the main question I entirely agree, and also on the subsidiary question that the order of the Revenue Court of the 11th of January, 1917, was incorrect. This can be proved to demonstration by taking figures; approximately, the net income derived from the 7 biswas odd, which formed the property of Musammat Rahim-un-nissa, comes to Rs. 960: on a proper division of that Rs. 960 the waqf would get Rs. 480, the plaintiff would get Rs. 100, the defendant would get Rs. 160, and Abid Husain and Hamid Hasan, the two sous of Fida Husain, would get Rs. 80 each. The addition of all those sums exhausts the Rs. 960. So therefore it will be seen that the share of the plaintiff in this matter was 7 biswas odd over 6 and not 3 biswas odd over 6, and that the result of the decision of the Revenue Court is that they have out down the lady's share by one-half in complete violation of the terms of the oral will and the decision of the Civil Court.
3. This series of litigation between the parties is lamentable and we trust that they will agree jointly to present a petition to the Revenue Court so that they may get fair and just entries made in respect of this property so as to prevent future litigation. If the defendant desires to carry out the terms of the oral will, nothing is simpler than that he and the plaintiff should meet at proper intervals and that he should then give an account of the collections. One-half of those collections should he set aside for the trust, one-third of the remainder appropriated to himself, one-third of the remainder handed to Mubarak Fatima and the final one-third made over to the two sons of Fida Himin. Between themselves they should agree as to the way in which the one-third allocated to the trust should be dealt with.
4. We allow the appeal, set aside the decree of this Court and restore that of the lower appellate court with costs of both the hearings in this Court.