S.K. Sen, J.
1. These two appeals arise from a suit for partition on a declaration as to his 8 annas share filed by the plaintiff respondent Kapildeo Singh sou of late Ram Gulam Singh.
2. The facts are briefly as follows: One Biru Maharaj, a Punjabi Brahmin belonging to Khanpur in Hossiarpur District of the Punjab, was a tenant in respect of 10 cottahs of Thika bastu land at 47. Bharpara Road within the Howrah Municipality, and he erected several structures thereon and occupied one of the structures himself and let out other to tenants. He took a loan of Rs. 376/- from Ram Golam Singh, father of the plaintiff respondent, by mortgaging his interest in the property at 47, Bharpara Road. Biru Maharaj went to his native village in Punjab in 1941 and died there. In 1945, Ram Golam Singh being dead his two sons viz., Kapildeo Singh the plaintiff respondent and Necklal Singh, instituted a mortgage suit, being Title Suit No. 81 of 1941, against Shyampeari describing her as the widow and sole heir of Biru Maharaj. The suit was decreed on 10-4-1945 in preliminary form, and final decree for sale was passed on 20-5-1946, and in the execution case started thereafter the property was sold in execution of the decree on 17-3-1947, the purchasers being the decree-holders viz., Kapildeo Singh and Necklal Singh. Thereafter Shyampeari filed an application under Order 21 Rule 90 of the Civil Procedure Code for setting aside the sale. In the course of that proceeding, a compromise was effected between Shyampeari and Necklal Singh, one of the decree-holders, and by an order of that Court dated 26-7-1947, the sale was set aside on compromise. Thereafter, Kapildeo Singh filed a Title Suit, being Title Suit No. 107 of 1948 of the third Court of Munsif, Howrah, alleging that he had not been a party to the compromise in the sale set aside case and that the compromise had been brought about behind his back and without his knowledge and that he was not bound by the compromise. This suit was decreed ex parte on 31-3-1949, and the sale was restored so far as Kapildeo's half share was concerned, but as regards Necklal's share the order passed on compromise in the sale set aside case was maintained.
3. In the meantime on 24-11-1948. Ramchandra Pandey, impleaded in the present partition suit as defendant No. 2, filed a suit against Shyampeari and the landlords of the land of the Thika Tenancy at 47, Bharapara Road, the suit being Title Suit No. 440 of 1948, of the Second Court of Munsif Howrah. Therein Ramchandra Pandey sought the declaration that he was an adopted son of Biru Maharaj and therefore entitled to the 16 annas interest in the disputed property and that Shyampeari was not a legally married wife of Biru Maharaj and had no title to the disputed property. On 30-7-1949, a petition of compromise was filed in that suit, by which Shyampeari admitted that Ramchandra Pandey was entitled to the property in suit and that she herself had no title thereto, and the suit was disposed of on 18-8-1949 in terms of the petition of compromise.
4. On 9-2-1950, Kapildeo Singh took symbolical possession in respect of his undivided 8 annasshare in the disputed property purchaed by him, In which his title had been confirmed by the ex parte decree in Title Suit No. 107 of 1948 of the 3rd Court of Munsif Howrah. On 22nd July, 1952, Kapildeo Singh brought the present partition suit from which this appeal arises, being Title Suit No. 63 of 1952 in the Second Court of Sub-Judge, Howrah. In that suit, Kapildeo Singh asked for a partition of the disputed property on the declaration that he was entitled to 8 annas share; he also asked for the declaration that the compromise decree passed in Title Suit No. 440 of 1948, between Ramchandra Pandey and Shyampeari, was fraudulent and not binding on him and was liable to be set aside; and he asked for a further declaration that the sale deed executed on 20-5-1949 by Shyampeari in favour ot Maksuda Sahi, impleaded as defendant No. 3, was void and without consideration.
5. Defendant No. 2 Ramchandra Pandey, appeared and contested that suit, contending that defendant No. 1 Shyampeari was not a married wife of Biru Maharaj but worked as a maid servant and then became his mistress; and that on the other hand, defendant No. 2 Ramchandra Pandey had been taken as an adopted son by Biru Maharaj and therefore on the death of Biru Maharaj he was the sole heir in respect of the disputed property; and since the mortgage decree had been obtained by Kapildeo Singh and his brother against Shyampeari who had not succeeded to the title of Biru Maharaj, they acquired no interest therein, and therefore the plaintiff did not acquire 8 annas share or any share whatever in the disputed property, and the suit was liable to be dismissed.
6. Shyampeari who was impleaded as defendant No. 1 also appeared and filed a written statement. She agreed with the plaintiff in denying that Ramchandra Pandey was the adopted son of Biru Maharaj, and also agreed with the plaintiff in asserting that the compromise decree in Title Suit No. 440 of 1948, brought by Ramchandra Pandey against her, was fraudulent and invalid, Ramchandra Pandey having induced her to sign the petition of compromise without letting her understand the contents thereof, and she wanted that the compromise decree should be declared as void and not binding. She admitted that she had executed a sale deed in favour of the defendant No. 3 Maksuda Sahi, but she claimed that in executing that sale deed also, she had fallen a victim to fraud practised by defendant No. 3 and that she had not received consideration for the sale and the sale was therefore void and liable to be set aside. But she joined issue with the plaintiff as to the extent of the plaintiff's title; she asserted that in the sale set aside case, she had paid the full decretal amount and then on compromise the entire sale had been set aside, and that the ex parte decree obtained by Kapildeo Singh in Title Suit No. 107 of 1948 in the 3rd Court of Munsif Howrah was a fraudulent decree, Kapildeo Singh having induced her to stay away from the Court on the date of hearing of the suit by assuring her that her interest in the disputed property would not be affected. She therefore asserted that her title had not really been affected by the ex parte decree in Title Suit No. 107 of 1948, and that as a result of the compromise in the sale set aside case she remained the full owner of the disputed property, and the plaintiff's claim for partition was therefore liable to be dismissed.
7. The learned Subordinate Judge held on the evidence adduced before him that defendant No. 2 Ramchandra Pandey was not the adopted son of Biru Maharaj. As regards defendant No. 1 Shyampeari, without definitely recording a finding that she had been lawfully married to Biru Maharaj, he observed that the evidence made it clear that she lived with Biru Maharaj for a considerable time and went with him to the Punjab where Biru Maharaj died and after the death of Biru Maharaj in 1941, she was in possession until at least 1949 when the compromise decree was passed between her and defendant No. 2, and that in the circumstances the mortgage decree passed against her as the heir of Biru Maharaj was a good and valid decree, and in view of the subsequent proceedings it must be held that the plaintiff Kapildeo Singh has obtained 8 annas share in the property. Accordingly, the learned Subordinate Judge passed a preliminary partition decree on the declaration that the plaintiff was entitled to the 8 annas share of the disputed property. As regards the other prayers made by the plaintifF, the learned Subordinate Judge pointed out that regarding the sale to Muksuda Sahi, defendant No. 3, the kobala or certified copy thereof had not been produced in Court, and the plaintiff had said nothing in his evidence about the kobala, and in the circumstances he could not obtain the declaration, that the kobala was void and without consideration, As regards the compromise decree in Title Suit No. 440 of 1948, the learned Subordinate Judge observed that the plaintiff could not seek cancellation of the decree as he was not a party to that suit, but that his 8 annas interest could not be affected by that decree as he was not a party to that suit. Therefore these two prayers were dismissed by the learned Subordinate Judge.
8. There were two appeals filed against the decree passed by the learned Subordinate Judge viz., one by Ramchandra Pandey and another by Shyampeari. Shyampeari after the decree of the learned Subordinate Judge transferred her interest to three other persons viz., Sukdeo Sahi, Bachha Prosad Sahi and Thakur Prosad Sahi, and by an order of the Court these three persons were substituted as appellants in place of Shyampeari. The appeals were heard together by Shri W. Basu Mazoomder, Additional District Judge, Howrah. The learned Additional District Judge found that defendant No. 2 Ram Chandra Pandey was the adopted son of Biru Maharaj, thus reversing the contrary finding by the learned Subordinate Judge on the point. The learned Additional District Judge also found definitely that Shyanlpeary was the married wife of Biru Maharaj. Accordingly, the learned Judge concluded that the interest of Biru Maharaj had devolved in equal share on Shyampeari and on Ramchandra Pandey; and as in the mortgage suit Ramchandra Pandey had not been impleaded the plaintiff Kapildeo Singh had only obtained the 8 annas share which Shyampeari had, and Ramchandra Pandey remained the owner of the remaining 8 annas share. The learned Additional District Judge therefore dismissed the appeal of Sukdeo Sahi and two others who had been substituted for Shyampeari, holding that they had no interest; and in respect of the appeal filed by defendant No. 2 Ramchandra Pandey he observed that defendant No. 2 was not entitled to contest the claim of the plaintiff Kapildeo Singh to 8 annas share of the disputed property, but that it should be declared that defendant No. 2 Ramchandra Pandey was the owner of the remaining 8 annas share. Subject to that modification the decree of the learned Subordinate Judge was affirmed.
9. From that decree, Ramchandra Pandey has filed the second appeal which has been numbered as 181 of 1957, and Sukdeo Sahi and two others have filed the second appeal numbered as 651 of 1957. Sukdeo Sahi and others have challenged the finding of the learned Additional District Judge that Ramchandra Pandey was the adopted son of Biru Maharaj. On their behalf it was urged by Mr. Lala Hemanta Kumar that even if there was adoption in fact as found by the learned Additional District Judge, the adoption was not legally valid, and therefore Ramchandra Pandey could not obtain any interest in the disputed property. In the other appeal Mr. A. D. Mukherjee appearing for Ramchandra Pandey has asserted that the adoption was legal and valid, and he has further urged that on the finding made by the learned Additional District Judge viz., that in the mortgage suit filed by Kapildeo Singh and Necklal Singh only the holder of 8 annas share of the mortgaged property has been impleaded, the learned Judge was wrong in holding that Kapildeo Singh had acquired 8 annas share of Shyampeari, because Kapildeo Singh and his brother Necklal Singh were the joint decree-holders auction purchasers, and the sale in respect of Necklal Singh's share was amicably set aside and therefore Kapildeo Singh could at most have 4 annas share of the disputed property; and the other 4 annas share also devolved on defendant No. 2 Ramchandra Pandey on the strength of the compromise decree in title suit No. 440 of 1948 where Shyampeari had acknowledged that Ramchandra Pandey had full title to the disputed property and she had none.
10. The first point for consideration therefore is whether the alleged adoption of defendant No. 2 Ramchandra Pandey by Biru Maharaj was legal and valid.
11. It has already been mentioned that Biru Maharaj belonged to Khanpur village in Hossiarpur District of the Punjab. Ramchandra Pandey belongs to Balia District in the U. P. The requirements of a valid adoption according to Hindu Law are set out in Section 448 of D. F. Mulla's Principles of Hindu Law. The requirements are (1) that the person adopting is lawfully capable of taking in adoption; (2) that the person giving in adoption is lawfully capable of giving in adoption; (3) that the person adopted is lawfully capable of being taken in adoption; (4) that the adoption is completed by an actual giving and taking (5) that the ceremony of datta homam has been performed. As regards the actual giving and taking as required by condition 4 and the performance of the ceremony of datta homam as required by condition 5, the learned Subordinate Judge held that the evidence was quite unsatisfactory and it could not be held that there had been adoption in fact by performing such ceremony. The learned Additional District Judge, however, on the basis of the same evidence came to the opposite conclusion, and whatever the nature of the evidence, the finding of fact made by the learned Additional District Judge must be accepted in this Court. But as regards conditions 1, 2 and 3, they raise a question of law, and it can, therefore, be examined in this Court whether these conditions were satisfied, because unless they are satisfied the adoption would not be legal and valid. Mr. Lala Hemanta Kumar has urged that the law in force in Bengal as well as in Benaras, Bihar and Orissa is that the adoption must be made before the Upanayan ceremony of the boy i.e. before the boy has been invested with the sacred thread. This is stated in Section 480 of D. F. Mulla's Hindu Law and some of the authorities which have settled the law on the point in Bengal and Benaras have been cited before us by Mr. Lala. So far as U. P. is concerned one of the earliest cases in which the point was discussed and decided is Ganga Sahi v. Lekhraj Singh, ILR 9 All 253. After discussion of the sacred texts and the decided cases on the point it was held in that case as follows:
'According to the Hindu Law as observed by the Benaras School, the ceremony of upanayana, representing as it does the second birth of a boy and the beginning of his education in the duties of his tribe, or gotra, is also the ultimate limit of time when a valid adoption in the Dattaka form can take place. Adoption in that form implies that the second birth has taken place in the adoptive family; and it cannot be affected after the boy's place in his natural family has become irrevocably fixed by the upanayana representing his second birth therein'.
This was a decision made in 1886, and subsequent cases of the Allahabad High Courts have followed this decision. A later case of the Allahabad High Court taking the same view is Gopi Nath v. Mr. Kisni : AIR1927All634 where it was held, following ILR 9 All 253, that the performance of the upanayana was an absolute bar to the adoption of a boy. The law in Bengal is the same. The Jaw on the point was discussed in great detail, with reference to the sacred texts and decided cases, in Surabala Dasi v. Sudhir Kumar Mukherjee : AIR1944Cal265 a decision by Bau J. and Mukherjea J. It was held by the learned Judges that under the Hindu Law as in force in Bengal, adoption of a son belonging to one of the three twice born classes whose upanayana ceremony has already been performed in his family, is not valid.
12. Mr. Mukherjee has urged on the other hand that Biru Maharaj was a Punjabi Brahmin and that the law in the Punjab is different, and there the Hindu Law as laid down in the Mitakshara has been modified by custom, and the law there permits the taking in adoption of a boy whose sacred thread ceremony has already been performed. In this connection Mr. Mukherjee has referred to the case which was cited by the learned Additional District Judge viz., Hem Singh v. Harnam Singh, : 1SCR44 . In addition Mr. Mukherjee has also cited a number of other cases.
13. In : 1SCR44 cited above, the question before the Court was whether a particular rule recorded in Riwaj-i-am was mandatory or directory. Their Lordships observed as follows:
'Under the Hindu law adoption is primarily a religious act intended to confer spiritual benefit on the adopter and some of the rules have therefore been held to be mandatory and compliance. With them regarded as a condition of the validity of the adoption. On the other hand under the customary law in the Punjab, adoption is secular in character, the object being to appoint an heir, and the rules relating to ceremonies and to preferences in selection have to be held to be directory, and adoptions made in disregard of them are not invalid'.
According to the custom as recorded in the Riwaj-i-am, a near collateral was to be adopted in preference to a distant collateral or a stranger; in the particular case a distant collateral was adopted although near collaterals were available for adoption. Their Lordships held that the rules laid down in the Riwaj-i-am were directory, and the adoption in disregard of the rules was valid. In the above case the question of upanayana as a bar to adoption did not arise, but this point was expressly dealt with by a Division Bench of the Punjab High Court in Gurditta Mal v. Chauranji Lal, AIR 1946 Lah 350. Their Lordships held that as regards adoption, the rule prevailing in the Punjab is akin to the rule prevailing in Western India; the strict rules of Hindu law with respect to the age and Janeo Ceremony (sacred thread) are modified by rules of custom and therefore are merely recommendatory; and hence the adoption of a person, even after his upanayana ceremony, is valid. The Privy Council also in two cases pointed out that in the Punjab the Hindu law of Mitakshara was modified by custom prevalent in the Punjab. In Ram Kishore v. Jainarayan 48 Ind App 405: (AIR 1922 PC 2) the question was whether in the Hindu caste of dhusars in the Gurgaon District of Punjab the adoption of an orphan was valid. It was held that according to the customary law in the Punjab modifying the rules of Hindu law in this respect, there being a recorded custom in the Riwaj-i-am that adoption of an orphan in the Gurgaon District was regarded as valid, the adoption in the particular case must be deemed to be valid. In Durga Devi v. Shambhu Nath, 51 Ind App 182: (AIR 1924 PC 113) the parties were Kashmiri Brahmins resident in the Punjab. There was evidence that amongst the Kashmiri Brahmins an adoption of a boy who had already been invested with sacred thread was invalid; but according to the customary law in the Punjab adoption of a boy invested with sacred thread was valid. Their Lordships referred to Section 5 of Punjab Laws Act, 1872, by which the validity of an adoption in the Punjab depends on the custom applicable to the parties. In view of that provision of law and in view of the fact that the validity, of the adoption of the boy had been accepted by the friends of the family and other men of the same community, the adoption was held to be valid.
14. The last cited decision makes it clear that in the Punjab the basis of application of customary law is Section 5 of the Punjab Laws Act of 1872, under which in questions relating to succession or adoption or any religious usage, the rule of decision shall be the custom applicable to the parties concerned, in so far as it is not contrary to justice, equity and good conscience, and the Hindu law in cases where the parties are Hindus except in so far as such law is opposed to the provisions of the Act or has been modified by such custom as is referred to.
15. Mr. Lala has urged that most of the above rulings relate to non-Brahmin castes or tribes resident in particular districts and there was evidence of custom applicable to the men of the particular castes or tribes of the particular districts; and that there is no-evidence in the present case to show that there is the custom amongst the Brahmins of Hossiarpur District as to adoption of a boy after his sacred thread ceremony in the family of his birth. But one of the above cases viz. AIR 1946 Lah 350 relates to Brahmins and it was not a- case where the custom of a particular district was applied; it was held that the law in the Punjab was the same as that in Bombay, and that adoption might be made even after the sacred thread ceremony of a boy. On the basis of the above ruling it must be held that so far as Biru Maharaj is concerned, he might validly take in adoption a boy of his community whose sacred thread ceremony had been performed. It may be noted that it was admitted in this case that defendant No. 2 Ramchandra Pandey had been invested with sacred thread before the allegd adoption by Biru Maharaj, before in fact he cane and joined as a servant of Biru Maharaj; the story being that he served as a servant for one year and was thereafter adopted as a son. If he had been a Brahmin boy belonging to the Punjab, there could have been no challenge to his adoption. But Ramchandra Pandey is a Brahmin of Balia district in the U. P.; he and his father were governed by the Benaras School of Law, and could not give or be yen in adoption validly after the upanayana ceremony. The learned Additional District Judge held that since Biru Maharaj, could validly take the boy in adoption, the taking was valid. But the law is that for a valid adoption, not only the person adopting should be capable of lawfully taking in adoption, but the person giving must be capable of lawfully giving in adoption and the person adopted must be capable of being lawfully taken in adoption. It is necessary that all these three conditions should be satisfied and it is not sufficient that only one of them be satisfied. In this connection may mention that the Supreme Court in the case cited above, viz., : 1SCR44 quoted with approval some observations in Mulla's Hindu law at page 541 of the 11th edition i.e. the observations below Section 434, that
'it has similarly been held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory; and that therefore, the adoption of an only son, or a stranger in preference to a relation, if completed, is not invalid; that in cases such as the above, where the texts are merely directory, the principle of factum valet applies, and the act done is valid and binding'.
But just after the above observations the following observations occur in the same paragraph:
'But the texts relating to the capacity to give, the capacity to take, and the capacity to be the subject of adoption are mandatory. Hence the principle of factum valet is ineffectual in tie case of an adoption in contravention of the provisions of those texts'.
In the circumstances we are unable to agree with the view taken by the learned Additional District Judge that it would be sufficient that the person hiking in adoption could validly take in adoption a boy whose sacred thread ceremony had already been performed. Since the father of Aamchandra Pandey was governed by the Benaras School of Hindu law, he could not validly give in adoption his son after his sacred thread ceremony had been performed; the boy himself was not capable of being given in adoption at that particular time. The adoption is alleged to have taken place in Calcutta ad not in the Punjab. In the circumstances it must be held that the adoption was not legal and valid.
16. Mr. Mukherjee has urged that gradually more and more precepts in the sacred texts have been held to be merely directory and not mandatory; and the original purpose of adoption viz., the secular purpose of ensuring continuance of a family and ownership of the family property, is being accented as the purpose of adoption. He has referred in this connection to a decision of the Privy Council, Balusu Gurulingswami v. Balusu Ramalakshmamma, 26 Ind Ap 113 (PC) where their Lordships after review of sacred text and decisions of Madras, Bombay, Calcutta and Allahabad High Courts, accepted the view of the Madras and Bombay High Courts that the adoption if an only son having taken place in fact, is not null and void under the Hindu law; that the injunction against adoption of an only son in the sacred texts was only directory, and the validity of what had been done already and recognised by kinsmen aid villagers was to be accepted. Mr. Mukherjee ha; urged that in the present case, the adoption of Ramchandra Pandey in fact having been found by the learned Additional District Judge, the doctrine of factum valet should be applied and the adoption held to be valid. We should po out however that there is no evidence in the pent case to show that the kinsmen and co-villagers of Biru Maharaj accepted the adoption as valid. No kinsman or co-villager of Biru Maharaj was examined in the case. Further, in view of the state of law as discussed before, we must hold that the adoption could not be taken as valid, for the Punjab law could only be applied if both parties i.e. the person adopting and the person giving in adoption, were men of the Punjab; and in view of the fact that the person giving in adoption and the person given in adoption were men of Balia in the U. P., they could not validly give or be given in adoption, and therefore the adoption must be regarded as invalid.
17. We therefore, come to the conclusion that the adoption of defendant No. 2 Ramchandra Pandey was not valid, and therefore Ramchandra Pandey did not succeed as heir of any portion of the disputed property. Mr. Mukherjee has, however, urged that since in the course of Title Suit No. 440/ 48 which had been brought by Ramchandra Pandey against Shyampeari, Shyampeari entered into a compromise admitting that Ramchandra Pandey had full title to the disputed property and she had none, and a decree was passed on that basis, it is not open to Shyampeari and her successors-in-interest to challenge the decree and assert that as a matter of tact, Ramchandra Pandey has no interest and that Shyampeari was the full owner. In this connection we must point out that so far as the plaintiff Kapildeo Singh is concerned, he was not a party to Title Suit No. 440 of 1948 at all, and he could not in any case be bound by the compromise decree of that suit and therefore, defendant No. 2 cannot challenge the right of Kapildeo Singh to take the position that Ramchandra Pandey was not a validly adopted son, and cannot also challenge the finding that Kapildeo has acquired 8 annas share of the disputed property.
18. Even so far as Shyampeari is concerned, we do not think that the consent decree passed in Title Suit No. 440 of 1948 would prevent her in a, subsequent proceeding from showing that the admission made, by her was wrong and erroneous. I In this connection, we may refer to the decision Kandarpa Nag v. Banwari Lal Nag, 33 Cal LJ 244: (AIR 1921 Cal 356 (2)) where it was held that a consent decree cannot have greater validity than [ the compromise itself. If the real position was I that Shyampeari was entitled to succeed as the heir of Biru Maharaj to the disputed property, and that Ramchandra Pandey, not being validly adopted could obtain no interest thereto, then the mere admission in a petition of compromise by Shyampeari that Ramchandra Pandey has title could not give Ramchandra Pandey an effective title. If there was a deed of transfer validly executed and registered, Ramchandra might obtain the title, but not by a mere petition of compromise when it is found on investigation that the admission made therein by Shyampeari was wrong. It may be pointed out that Kapildeo Singh in title suit No. 107 of 1948 had already obtained an ex parte decree on 31-3-1949, by which his auction purchase of 8 annas share of the disputed property was upheld. On 20-5-1949, Shyampeari sold her remaining interest in the disputed land by a sale deed dated 20-5-1949, to defendant No. 3 Maksuda Sahi. In the written statement of the present suit she no doubt challenged that sale deed as invalid; but in any case she had executed such a sale deed. The compromise petition was filed in title suit No. 440 of 1948, on 30-7-1949. At that time therefore Shyampeari had no subsisting interest if the kobala to defendant No. 3 was valid. This may be the reason why she was not willing to contest Title Suit No. 440 of 1948 any further, and agreed to the suggestion of Ramchandra Pandey that she should sign a petition of compromise. But the petition of compromise does not suffice to establish the title of defendant No. 2 Ramchandra Pandey when it is found that originally he had no title, not being a legally adopted son of Biru Maharaj.
19. Therefore, the preliminary partition decree on the declaration that the share of the plaintiff respondent Kapildeo Singh is 8 annas must be affirmed, but the declaration made by the learned Additional District Judge that defendant No. 2 Ramchandra Pandey is entitled to the remaining 8 annas share must be vacated. As between defendant No. 3 Muksuda Sahi and the substituted appellants Sukdeo Sahi and others, the materials before the Court do not suffice for any decision as to which party has the valid title. In their pleadings, both Kapildeo Singh and Shyampeari challenged the sale to Muksuda Sahi as void and without consideration, but no evidence was adduced to show this; neither did Muksuda Sahi appear in the suit, but he might well think that his title could not be affected by a partition decree declaring Kapildeo's share as 8 annas. Therefore as between defendant No. 3 Muksuda Sahi and the substituted appellant Sukdeo Sahi and others, the question of title must be kept open.
20. Subject to the above observations, Section A. No. 181 of 1957 by Ramchandra Pandey is dismissed and S. A. No. 651 of 1957 by Sukdeo Sahi and others is allowed. The preliminary partition decree declaring that the share of the plaintiff Kapildeo is 8 annas in the disputed property is affirmed, but the observation made by the learned Additional District Judge that defendant No. 2 is entitled to the remaining share is set aside. The parties will bear their own costs in these appeals.
S.K. Niyogi, J.
21. I agree.