Judgment

HEGDE, J.:- This is an appeal by certificate. The deceased 1st defendant was the appellant. He as well as the plaintiff died during the pendency of this appeal. Thereafter the appellants 1 to 7 were impleaded as the legal representatives of the deceased appellant. Respondents are the legal representatives of the deceased plaintiff. The appeal was dismissed for want of prosecution as regard appellants 1 and 3 to 7 as per order of this Court dated September 11, 1970. At present the appeal has been pressed only by the supplemental appellant No. 2 who was defendant No. 3 in the suit. The respondents did not contest the appeal.

2. This appeal arises from a suit for partition. Plaintiff and defendants 1 and 2 were brothers. Defendants 3 and 4 are the sons of defendant No. 1. Defendants 5 and 6 are the sons of the plaintiff. The plaintiff was the eldest brother.

3. The case put forward on behalf of the plaintiff was that the family was divided in status in 1351 B. S. but no actual partition by metes and bounds had taken place. Hence he prayed for a partition of the family properties detailed in the plaint-schedule by metes and bounds. He further claimed that the properties standing in the names of defendants 1 to 4 were acquired out of joint family fund and as such were liable to be partitioned.

4. Defendants 1, 2 and 3 contested the suit on various grounds. They pleaded that there was actual partition in the family in Magh 1349 B. S. and as such there was no question of again partitioning the family properties. They further contended that the properties standing in the names of defendants 1 to 4 were their individual properties and not liable to be partitioned. In their turn they claimed that certain properties standing in the name of the plaintiff and his sons were acquired from out of the joint family funds and as such in the event of a partition those properties are also liable to be partitioned.

5. According to the plaintiff, defendant, No. 1, though younger to him was managing the family properties as he was the most intelligent member in the family. This allegation was denied by defendant No. 1.

6. The trial court did not uphold the contention of the plaintiff that there was a disruption of status of the family on in the year 1351 B. S. It opined that the division of status took place in 1349 B. S. At the same time it did not uphold the contention of defendants 1 and 2 that there way a division of the family properties by metes and bounds in 1349 B. S. It held that in that year there was only a division of status of the family but the family properties remained to be divided by metes and bounds. It did not accept the plaintiff s case that the 1st defendant was the manager of the family. But at the same time it came to the conclusion that all acquisitions made in the names of various members of the family till the division of status took place in 1349 B. S. were joint family properties and were liable to be partitioned.

7. Aggrieved by the decision of the trial court, the plaintiff appealed to the High Court of Calcutta. The defendants filed cross-objections. The High Court partly allowed the appeal as well as the cross-objections. It came to the conclusion that the family properties were neither actually divided nor was there any division of status of the family in 1349 B. S. It accepted the contention of the plaintiff that the division of status took place only in the year 1351 B. S. It further opined that the 1st defendant had an important hand in the management of the family properties. But it opined that all the three brothers participated in the management of the family properties. It came to the conclusion that all acquisitions made in the names of all the three brothers before the division of status took place in 1351 B. S. were family properties and consequently were liable to be partitioned. But it held that the properties standing in the names of defendants 3, 4, 5 and 6 are not family acquisitions.

8. In this appea