1. This appeal was adjourned in order that the parties, who are close relations, should have an opportunity of considering their position, and arriving at some sensible and reasonable solution of the problem. Unfortunately they have been unable to agree as to what course they would invite the Court to take, and claim the rigour of the law. They shall have it.
2. The suit is one for partition, and the parties are the descendants of three brothers, the plaintiffs, the descendants of one; defendants 1 to 3, of the second, and defendant 4 of the third brother. It is not disputed that defendants 1 and 3 are entitled to eight annas share ; neither was it challenged that defendant 4 was entitled to four annas and the plaintiffs to four annas. In 1902 the plaintiffs purchased two annas from defendant 4, and in this suit they claimed a declaration that they were entitled to a six annas share, that the property be partitioned by metes and bounds, and they be allotted khas possession of that share in the property which fell to them. Defendant 2, however, has raised this objection to the allotment of the full six annas to the plaintiffs, viz., that in 1881 the predecessor of the plaintiffs executed a kat kabola in favour of the mortgagees, the Shyam Chaudhuris, who were really the benamidars for the father of defendants 1 to 3, that under that kat kobala defendants 1 to 3 are entitled to possession, and under those circumstances the plaintiffs ought not to be given upon partition, khas possession of more than two annas. Now the Shyam Choudhuris are not parties to this suit, and any decree made which might affect their interest would be null and void as against them. Nevertheless, the lower Courts have held in truth and in fact the money advanced to the plaintiffs under the kat kabola was paid not by the Shyam Chaudhuris but by the predecessor of defendants 1 to 3, and that the Shyam Chaudhuris had executed the kat kabola merely as benamdars for the father of defendants 1 to 3. Pursuant to that finding the lower appellate Court refused to pass a decree in favour of the plaintiff. In our opinion the decision of the lower appellate Court cannot stand. This being a partition suit the right of the parties has to be determined qua cosharers, and it is not disputed that the plaintiffs were entitled to a four annas shares and to a further two annas share by reason of the purchase of two annas from defendant 4 in 1902. It may or may not be that defendants 1 to 3 have some rights and interests in the four annas share which formed the subject matter of the kat kabola as against the plaintiffs, but as qua cosharers they have no interest whatever in the mortgage. Whether they have any rights under the mortgage will depend upon circumstances which it is neither proper nor necessary to consider in the present suit in which Shyam Chaudhuris are not impleaded. If defendants 1 to 3 have any rights as against the plaintiff's four annas share under the kat kabola, they will take such steps to enforce their rights as they may be advised. As to whether they had any rights, or if they had any rights whether they have now lost them, we express no opinion.
3. The result is that there will be a declaration that the plaintiffs are entitled to a six annas share in the ejmali property, that upon partition being effected, allotment of six annas shall be made to the plaintiff in khas possession as against the defendants as cosharers. The plaintiffs are entitled to their costs from the contesting defendant 2 in all the Courts.