( 1 ) THIS is a second appeal on behalf of the defendant No. 3. The plaintiff instituted a suit for specific performance of the contract. The contract is because of the unfortunate incidence of partition of Bengal. Defendants 1 and 2, Respondents 2 and 3 had properties in Indian Union and the plaintiff had properties in Pakistan. There was some arrangement between the parties by which the plaintiff, who had his properties in Pakistan, but migrated to West Bengal, would leave those properties to the defendants 2 and 3, who are Mohammedans, but have properties in Indian Union, and agreed to transfer those properties to the plaintiff. The defendants 2 and 3 have never entered appearance. It also appears that the defendants 2 and 3 later on made another similar arrangement but Oral with defendant No. 1, the appellant. The result is that defendants 2 and 3 made arrangement both with the plaintiff and with the defendant No. 1 and are probably enjoying the properties of both in exchange of their properties in Indian Union. The defendants had properties in Nadia and the question is now whether the plaintiff or the defendant No. 1 is entitled to it.

( 2 ) THE question th