1. I think that the plaintiffs in this case can sue for partition of the dwelling house. No doubt ordinarily according to the cases of this Court there cannot be a partial partition, but the rule is elastic and has in several cases been departed from. It has not been shown that it is inconvenient to partition the dwelling house separately. On the other hand, it seems to be capable of being partitioned without affecting the other properties at all or the interests of the parties. The parties are making separate collections with regard to the Mehals to which they are entitled. There is a question with regard to this house about a right of residence in it claimed by defendant No. 2. Admittedly she has a right of residence in that property and what portion should be allotted to her has to be tried and determined in her presence, in consequence of which she has been made a party to this suit. She is not interested in any other property belonging to the co-sharers. Their shares are admitted--namely, the plaintiff No. 1 is entitled to 1/3rd, plaintiffs Nos. 2 and 3 to 1/6th each and defendant No. 1 to 1/3rd. Defendant No. 2 is entitled to reside in the portion which was occupied by the testator's wife. Subject to such right the house should be partitioned between the parties. The plaintiffs are quite agreeable that in partitioning the property the portion which has been occupied by defendant No. 2 may be allotted to their share. There is no difficulty in doing that. It is a question of valuation more than anything else.
2. The plaintiffs do not seek to partition the Thakurbari and Natmandir. The only other question is as regards the Catcharibari. The respondents' learned Vakil does not even contend that the learned Judge was right in holding that it is incapable of partition. It is certainly capable of partition and, therefore, the Catcharibari shall be partitioned according to the shares declared. The testator could not legally restrain such partition and create a perpetuity in the manner he sought.
3. The appeal is decreed and partition will be effected in accordance with the directions given above.
4. The appellants are entitled to their costs in this Court and in the Court below. We assess the hearing fee in this Court at Rs. 300.
5. I agree.