Grimwood Mears, C.J. and Pramada Charan Banerji, J.
1. This appeal was argued on the 21st of December, 1920, before a Bench consisting of the Chief Justice and Mr. Justice Knox.
2. It was evident that the matter could not be disposed of satisfactorily until the Court was informed whether Muhammad Fazal Haq had left a step-sister by the name of Musammat Azmat-un-nissa. The Bench, there fore, referred that question to the lower court with instructions to decide that issue. On the 19th of November of this year the lower court reported that nobody cared to prosecute the case and, there fore, that issue had never been determined. In those circumstances Dr. Sen says very fairly that he cannot resist the judgment of the lower court on the issue as regards the share of the immovable property and mesne profits. There was also a claim for a fourth share in movables and for partition so that specific articles could be allotted to the plaintiffs. The claim as actually put forward asked that the cash and articles mentioned in a certain list might be partitioned and one-fourth of the cash and one-fourth of the articles awarded to the plaintiffs. The claim then continued by putting a value upon the movables, dividing that by four, and asking that if the cash and articles were not partitioned Rs. 3,982 might be awarded as the price of the said articles Dr. Sen contends that the method in which that claim is put forward brings the suit within Article 49 of the first schedule to the Limitation Act of 1908. As admittedly Fazal Haq died more than three years before the institution of the action this claim for a partition of cash and movables would be time-barred if Article 49 were the article to be applied. The lower court felt itself unable to distinguish the case of Mahomed Riasat Ali v. Hasin Banu (1893) I.L.R. 21 Calc. 157, and we agree that the facts of this particular case before us are governed by the decision in that case. The same point was taken there. It was said that the claim for partition of movables was barred because the claim fell within Article 49. The Privy Council did not agree with that contention but held that the claim really fell within Article 120 inasmuch as there was to be found in this first schedule to the Limitation Act no specific provision for a claim of this kind. As our view in this respect is the same as held by the learned Subordinate judge, we are of opinion that on.both grounds this appeal must be dismissed with costs. We accordingly dismiss this appeal with costs.