Judgement

Appeal (No. 79 of 1938) from a decree of the High Court (January 28, 1937) which modified a final decree of the Second Court of the Subordinate Judge, 24 Parganas (May 12, 1934), passed in a partition suit.

The appellants were mortgagees under three mortgages of a one-eighth share in some properties which were the subject of the partition suit, and they bought the mortgaged pro perties in execution of a mortgage decree which had been passed in their favour on the basis of their mortgages. The property which was the subject of the partition suit had belonged to one Kunja Behari Mullick, a Hindu governed by the Dayabhaga School of Hindu law. He died on October 6, 1899, and by his will, after giving certain pecuniary legacies, he left the rest and residue of his estate, including the property subject to the partition suit, in equal shares to his three sons and a grandson by a predeceased son.

All the sons of Kunja Behari Mullick died before the institution of the partition suit. His fourth son was Pulin Behari, who died intestate on December 28, 1919, leaving two sons him surviving. His one-fourth share in the estate left by his father devolved in equal shares on his two son