1. This is a plaintiff's appeal and arises under the following circumstances: The pedigree will be found at p.7 of the printed record. The plaintiff, Dila Ram is a sister's son to Relu. Mal, The property in suit belonged to Relu Mai. He died in 1908 and was succeeded by his widow Mt. Pari who died in 1924. Dila Ram claimed the property as the heir of Relu Mai. The claim was directed against the daughter of Rula Mal's brother Hardhian Singh, namely, Mt. Parsand, her husband Kura Mai and four sons of Mt. Parsandi.
2. The defendants met the claim by the allegation that Relu Mul in his lifetime executed a tamliknama in 1899 by which he gave his entire property after his death and after the death of his widow to one Nanu Mal and that therefore the plaintiff was not entitled to the property, he not being an heir of Nanu Mal.
3. The learned Subordinate Judge took down the statement of (he parties before framing issued an 1 he also examined Kura Mal, the husband of Mt. Parsandi The plaintiff stated that Nanu. Mai was related to Relu Mal in this way, that Nanu Mal's father Munshi was Relu Mal'a sister's son. Kura Mal in his statement said that he wag unable to say if Munshi was sister's son to Relu Mai. He admitted however that Nanu Mal was son of Munshi. There was a further plea that Nanu Mal had adopted Jagmandar, one of the defendants. On this point the Courts below are agreed that Jagmandar was never in fact adopted by Nanu Mai.
4. The Court of first instance decreed the suit. It held that it had to see who would succeed to the property if Nannu Mal had died at that moment. This is the learned Subordinate Judge's exact language:
It is not disputed that it should devolve on the heir of Nanu Mai who would take his property if Nanu Mil had. died now.
5. Needless to say this was a wrong view of the law. The Subordinate Judge however looked upon the situation in this way. He found, on a statement of Kura Mai, that Nanu Mai and Rolu Mai were so related to each other that a sister's son to Relu Mai would also be a bandhoo to Nanu Mai. Accordingly, the learned Judge found that plaintiff was an heir to Nanu Mai and he decreed the suit. His view of the document of 1899 was that it gave a vested interest in the property to Nanu Mai and that, though Nanu Mai predeceased Relu Mai, the heir of Nanu Mai alone could got th.3 property on the death of Relu Mal's widow. On appeal the learned District go considered how far it would be justifiable on his part to take into account the statement made by Kura Mai. Kura Mai in his evidence stated as follows:
Relu Mal's widow used to say that Nanu Mal and Relu Mai wore of the same family. In my opinion there was no other nearer relation of Nanu Mal than Relu Mal.
6. The learned Judge says:
' In his statement Kura Mal said that in his opinion there was no other nearer relation (to Nanu Mal) than Relu Mal This is a very indefinite statement. No satisfactory conclusion can be drawn, from this statement.
7. The learned District Judge finding that it was not satisfactorily proved that the plaintiff was an heir to Nanu Mal allowed the appeal and dismissed the suit, of Dila Ram.
8. In this Court it had been urged that the plaintiff was really entitled to claim: the property as the property of Rule Mal. The argument is this : Eolu Mai died after Nanu Mal. This was admitted by Kura Mul in his statement printed at p. 11. On the admission of Kura Mal that Relu Mai and Nanu Mal came from the same family and Nanu Mal had no nearer relation than Relu Mal, Relu Mal would succeed Nanu Mal on the latter death, if it ho correct that Nanu Mal had a vested interest in the property as found by the lower Courts, under the tamlilmama. Relu Mal was therefore after all, the last male owner of the property and the plaintiff as his sister's son was entitled to succeed on the death of Eelu Mai's widow.
9. In answer to this argument the learned1 counsel for the respondent has urged that-in view of the Full Bench case of Ram Kinkar Rai v. Tnfani Ahir A.I.R.1931Al.35 it was not open to the appellant to urge a point for the first time in the High Court which had not been urged in any of the Courts below. We have to consider how far the principle laid down by the Full Bench is applicable to the facts of the present case. We may point out that the Full Bench does not profess to deal; with every casa that may occur in the Courts. The Full Bench lays down a: certain principle, and with all respect, we are not in any way in disagreement with that Full Bench decision. Indeed if we had been disposed not to agree, we would have been bound by the principle laid down there. In this case the facts, are either all admitted or proved. The position that arose on the facts was never appreciate either by the Court of first instance or by the lower appellate Court. We have already pointed out that the plaintiff's case was that the last owner of the property was Relu Mal. He sticks to that case, namely, Relu Mal was the last mala owner of, the property. He de as not come with the allegation that Nanu Mal was the last male owner of the property. It wag when the defendants pointed out that there was a document in favour of Nanu Mal, then it was urged on behalf of the plaintiff that even if Nanu Mal got the property under the deed of 1899, the plaintiff would be successful. It was urged only as a sort of alternative argument and it was not the main case of the plaintiff. His ease, we need hardly repeat, was that Relu Mal was the last male owner of the property.
10. The plaintiff stated to the Court in the proceedings recorded at p. 11 that Relu Mal was brother to Nanu Mai's paternal grandmother. If this was so, in view of the ruling of their Lordships of the Privy Council in Girdhari Lai Boy v The Bengal Government  12M.I.A. 448 Reiu Mai would ho a bandhoo of Nanu Mal and would succeed him as his heir. Thus, on the plaintiff's own case, Relu Mai would be the last male owner. Again if we uccept the statement male by Kara Mai and if Kura Mai and Relu Mai came from the same stock and wore related as agnates and if Relu Mal was the nearest male agnate of Nanu Mal, Relu Mal would be the heir of Nanu Mai. Even in these circumstances Relu Mal would be the last male owner. It is therefore not correct to say that the plaintiff is setting up a new case in second appeal.
11. On the facts found and established in the case, the plaintiff is entitled to succeed.
12. We find that the learned Counsel for the appellant in ground No. 3 took the point that the document which has boon described as tamliknama was nothing but a will and de 1 not vest any title to Nanu Mai in his lifetime. As it is a matter of construction of a document, and construction is a matter of law, we have looked into the document of 1899. We find that the document is nothing but a will. It is to be note that the document was set up not for the plaintiff but on behalf of the defendant. If the plaintiff can show that the bar set up by the defendant is no bar at all to hi-fi succeed, he should succeed. If the document of 1.899 be treated as a will as surely it is, the last male owner of the property would still be lielu Mai and not Nanu Mai. In this view also the plaintiff would be entitled to succeed.
13. In the result we allow the appeal, set aside the decree of the lower appellate Court and restore the decree of the Court of first instance with costs throughout.