1. These two appeals arise out of two suits brought by the plaintiffs-appellants against the respondents for possession of certain property. The property belonged to one Amolak Ram, who died in 1879, leaving a widow Mt. Bir Kunwar. She died in 1881, leaving three daughters. Two of these daughters jointly in 1882 alienated a portion of the property in suit. The third daughter in 1885 alienated the rest of the property in suit. All three daughters are now dead, and the plaintiffs claim that they are entitled to the property as reversionary heirs of Amolak Ram, and that the alienations mentioned are ineffective against them now that the daughters are dead. The appeal No. 546 deals with the O. Section 164 of 1923. In that suit the District Judge hold that the alienation of 1882 by Mt. Lachhmi and Mt. Barfi was for necessity. This was a finding of fact, and the appellants have not been able to show that it was based on any mistake of law. Their suit-therefore, No. 164 must fail, and the appeal fails, in my opinion, on the ground that the question is concluded by a finding of fact. I may mention that it was in this suit that the question of the suit being barred under Order 2, Rule 2, arose. It does not seem to me necessary to decide this point, but if it had been necessary I would have concurred with the view of my learned brother.
2. As regards the appeal No. 545, which is in respect of Suit No. 131, it was necessary for the plaintiffs to prove that, on the death of the last of the three daughters of Mt. Bir Kunwar, they were entitled to the estate of Amolak Ram. One amongst other pleas by defendant was that Amolak Ram having been a Jain, and this property being his self-acquired property, his widow Mt. Bir Kunwar got an absolute estate in that property by Jain custom. Both the lower Courts have found that the custom was proved, and the extent of the custom as found by the trial Court was this. The custom gave the widow absolute right to transfer the property derived from her husband in her lifetime, but, on the other hand, if not transferred the property would descend as the estate of her husband and not as the stridhan of the widow. The lower appellate Court accepted this view. It went on, however, to hold that the widow had made a will conferring an absolute estate in her three daughters. I concur with my learned brother that there was no evidence by which the making of an oral will, by Mt. Bir Kunwar or the terms of such oral will if one was made, could be held proved. The document relied upon was the award of an arbitrator, who was appointed by the three daughters of Mt. Bir Kunwar to settle their inter se claim's on the assumption of a will. The arbitrator said in his award that he had ascertained by inquiry the terms of the will. Now if the arbitrator had been alive and had come into Court, it appears to me that his evidence would have been inadmissible as mere hearsay evidence. I cannot think that, because this hear say evidence has been expressed by him in an old document it ceases to have to be regarded as mere hear say evidence. There are only two questions with which I consider it now necessary to deal in this appeal. One is whether under Jain custom Mt. Bir Kunwar inherited this property as her stridhan or whether, for the purposes of succession to her, she must be regarded as only having had a widow's estate notwithstanding that according to the Jain custom she could before her death have disposed of it as she liked.
3. The contention of the appellants is that Mitakshara law makes no distinction between property which a woman can dispose of as she likes and stridhan property. It considers the two expressions synonymous. For the respondents it is maintained that it is possible for a widow to have a widow's estate in her husband's property and yet, by reason of a custom such as the one now set up, to have a right of absolute disposal during her lifetime. It is pointed out that, according to the Bombay school, property inherited by a woman from a male may be, if inherited in one way, her + and if in another way, not her stridhan. Reference is made to Mulla's Hindu Law, 5th edition, page 134. The following decisions have been invoked in favour of each contention e.g., Debi Mangal Prasad Singh v. Mahadeo Prasad [1912 ] 3-1 All. 234, Sheo Shankar Lal v. Debi Sahai  25 All. 468 and Lakshmi Narain Misra v. Mt. Sumarni Kunwar A.I.R. 1924 All. 731.
4. It appears to me that the matter has to be looked at in the following way. The family in question, though a Jain family, was governed by the Mitakshara law except so far as that law was varied by custom. In order to find out the custom sot up we must refer to the Privy Council decision in Sheo Singh Rai v. Dakho  1 All. 688. In this decision is set forth at length the evidence on which their Lordships came to the conclusion that the custom now set up was established. On page 700 a representative body of the loading members of the Jain community expressed the opinion that, in the absence of any son, a Jain widow succeeds to the estate of her husband, moveable and immovable, in absolute right, (ii) that she can deal with it at pleasure and without restriction and (iii) that she can adopt her daughter's son without the authority of her husband, and that such adopted son would succeed to her deceased husband's estate. The last five words 'to her deceased husband's estate 'appear to me to be merely descriptive and cannot be invoked to mean that the investigators of the custom considered that the widow would hold the property as her husband's estate. Even if they could be construed as having this meaning, they would merely represent an incidental and not authoritative view, it being no duty of the investigators to determine the implication of the facts they ascertained. On the other hand, in this statement of the custom, a distinction was made between the finding that the widow succeeded in absolute right and the finding that she could deal with the estate at pleasure and without restriction. I should deem the first finding as meaning that the property was taken by her as her stridhan. Apart from this, whatever distinction other schools may make between property with which the widow can deal at her will and property which is her stridhan, because the property comes to her in various ways, I am not able to hold, after considering the various decisions brought to my notice, that according to the Mitakshara school any distinction is made between the word 'stridhan' and the expression 'property that the widow can deal with at pleasure'. The fact that other schools make such a distinction will not affect a consideration of the law according to the Mitakshara school. The dictum in various text-books and decisions as to Mitakshara law 'that inherited property is never stridhan' is inapplicable to that law when overlaid by a Jain custom such as the one in question, no such custom being in contemplation of these authorities, when expressing the dictum. Consequently when a custom is proved as affecting persons otherwise subject to the Mitakshara school and that custom is said to confer on the widow a right to deal with property at her will, I consider that this must mean that the property is her stridhan and will devolve as her stridhan. In this view of the case, it is admitted that the plaintiffs can have no present right in the property. On the death of Mt. Bir Kunwar the property passed to her daughters, and on the death of the last of them it would pass to her grand daughters and not to her grand sons.
5. It is said, however, that we are bound by the Privy Council decision reported in Sheo Shankar Lal v. Debi Sahai  25 All. 468, and that decision decides that under the ordinary rule of inheritance the grandson of a woman holding property as her stridhan will succeed in preference to her granddaughter. Whether this is so, is the second question with which I have to deal. I consider that for the reasons stated in Ram Kali v. Gopaldei : AIR1926All557 , the Privy Council decision need not be held to lay down the law on this subject. A reference to the Privy Council decision relied upon will show that their Lordships only considered one question of law. This question they have propounded at pages 468 and 469 in the following words:
This involved the question of law whether according to Benares law, by which the family was governed, the property on the death of Jagarnath descended as stridhan and went to her daughter, or whether it lost its character of stridhan and descended according to the ordinary rule of inheritance to her sons, the plaintiffs.
6. It is obvious that the legal question arising might have been equally well stated even if the words 'to her sons, the plaintiffs', had been omitted. They were added on the obvious assumption that this was the law. The respondents in that case were not represented, and thus had no opportunity of questioning the proposition involved. Nor does it appear that at any stage of the suit was an issue framed on the matter. If it was, there was no appeal on this issue. The assumption of a certain view of law in a judgment of the Privy Council for the purpose of deciding another question cannot, in my opinion, be regarded as a binding decision. It has even less force than an obiter dictum; for it is not necessary to prove or decide what is admitted.
7. For the above reasons, I would concur with my learned brother in dismissing appeal No. 546, but on the other hand I do not concur in allowing appeal No. 545. I would dismiss that appeal also in concurrence with the District Judge but on a different ground.
8. (Concurring in the order proposed the appeals were dismissed.)