JUDGMENT

Tottenham and Norris, JJ. - On second appeal the defendants Nos. 1 and 2 urged that the parties to the suit being all Hindus the Court below ought to have held that the present suit to enforce the right of pre-emption is not maintainable. As to this it is sufficient to say that the point was not raised in either of the lower Courts, and is not such an one as we can allow to be raised now for the first time.

2. Another point urged by the Counsel for the appellants was that, as there had been no actual partition of the disputed properties by metes and bounds, the lower appellate Court ought not to have held that there was such a separation as to entitle the plaintiff to maintain the suit. In support of this contention two cases were relied upon, viz., Farzand Ali v. Alimullah 1 A. 272; and Lalla Nowbut Khan v. Lalla Jewan Lall 4 C. 831. In the first case the facts were these: The plaintiff brought his suit for a declaration of right to, and to obtain possession of, a certain share in a puttidari estate; he had purchased the share at a sale held in execution of a decree ; he was a co-sharer in the estate but not in the putti in which the share in suit was situated. The defendan