P. CHAKRAVARTTI, C. J.

( 1 ) THIS is an application for the substitution of the heirs and legal representatives of a deceased party, made within time and prima facie it was a simple application. In the course of the argument, however, Mr. T. P. Das has raised a point which, in my view, deserves to be dealt with in a judgment instead of being disposed of by a mere order.

( 2 ) THE facts are these : In a partition suit brought with respect to the estate of one Nanda Lal Mullick, a preliminary decree was passed on 1-4-1938. Under that decree, the share of one Madan Mohan Mallik was declared to be 1/7th and another 1/7th was declared to be the share of one Anukul Chanclra Mallik. Anukul, it appears, transferred his share in one of the joint properties to a Marwari lady who has thus come to bo interested in his share along with his heirs and legal representatives, but with that matter we are not here concerned. After the preliminary decree had been made, there was the usual reference to a Commissioner of Partition who made his return in due course. Exceptions to his return were taken by the heirs and legal representatives of Anukul who had, in the meantime, died. The exceptions were r

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