( 1 ) THIS appeal is by defendant No. 4. It arises out of a suit for partition and is directed against the final decree for partition, made by the learned trial Judge. The relevant facts lie within a short compass and they are as follows:

( 2 ) THE disputed property, which was holding No. 428, now premises No. 88, Dewan Dataram Mondal Ghat Road, within the Kamarhati Municipality, and comprised an area of one bigha, five cottahs and odd, originally belonged to one Kedar Nath Chatterjee. On July 11, 1913, Kedar sold it to one Mihir Lal Banerjee, who died on January 11, 1930, leaving behind him surviving, as his heirs and legal representatives, six sons, Narendra, Amarendra, Surendra, Dhirendra, Jitendra and Birendra. Of these Surendra was defendant No. 1 in the instant suit, Dhirendra defendant No. 2, Jitendra defendant No. 3 and Birendra, the present appellant, defendant No. 4 Narendra died in the year 1934 and Amarendra died in 1941. Before their death, as aforesaid, Narendra and Amarendra had executed a mortgage in respect of their share in the disputed property, which was l/6th each, making a total of l/3rd for Rs. 1,000 to one Satya Charan Bose. This was on