The main legal point established in the judgment is the interpretation and application of Section 4, Partition Act, and Section 44, T.P. Act, in determining property rights and entitlement to mesne profits.

Walsh, J.

1. The plaintiff is the appellant. He got a decree in the trial Court which was varied by the Subordinate Judge in appeal and against this he prefers this second appeal. The suit was to recover a certain share in a house site which originally belonged to one Pacha Saheb. The descendants of Pacha Saheb and the shares which they held are set out in para. 3 (1) of the lower appellate Courts judgment, which runs as follows:

2. The suit property originally belonged to one Pacha Saheb who died 20 years ago.

Pacha Saheb, died 20 years ago. Nabi Bi, died 8 years ago 4/8 share. | _____________________|____________________________ | | | | Mastan Gannu Deft. 3 Deft 4 7/24 deft. 1 7/48 7/48 After N- 7/24 Plus ______ Plus abis de 7/24 Deft. 5 7/48 plus ath 7/24 1/24 7/48 plus 1/48 plus 1/24 1/48 Nabi Bi is Pachas widow. Mastan and Gannu "(defendant 1) are his sons. Defendants 3 and 4, are his daughters. Defendant 5 is the husband of defendant 8 and defendant 4s vendee. Defendant 2 is defendant 1s vendee.

2. The share of defendant 4 had passed to defendant 5, the husband of defendant 3. Defendant 1 had sold his right to defendant 2. The plaintiff claimed the rights of defendant 3 and of Mastan Saheb, the eldest son. Defendant 3 had sold her share to defendant 10 under Ex. J and defendant 10 had also purchased the rights of the eldest son, Mastan, under Ex. 1 and then resold them under Ex B to Mastan. Defendant 10 also sold back the rights which he had got from defendant 3 to Mastan. Mastan then mortgaged his property to the plaintiff who filed a suit on the mortgage and got a decree and purchased the property in Court auction. The present suit is for a declaration of the plaintiffs right to 23/48ths share in the suit property and for partition and delivery of possession.

3. The properties fell into two sets : (1) that which originally vested 3n defendant 3 which was bought by defendant 10 from her under Ex. J; (2) that which vested in Mastan and was sold to defendant 10 under Ex. 1 and ultimately bought back by Mastan under Ex. B. With regard to defendant 3s share both Courts have found that by the decree in O.S. No, 763 of 1912, on the file of the Principal District Munsifs Court, Guntur, defendant 10 got only a decree for Rs. 50 against defendants 1 to 4 in that suit. It may be noted that the present defendant 3, the vendor to the plaintiff, was not impleaded in that suit, as defendant. Both Courts have disallowed the claim of the plaintiff to the share he bought from defendant 3. With regard to Mastans share the trial Court decreed partition and refused the application of defendant 3, made under Section 4, Partition Act, after the close of the argument. The appellate Court agreed with the trial Court with regard to defendant 3s share but allowed the claim of defendant 3 to purchase from plaintiff Mastans portion and remanded the suit for determination as to the value of this one-third share. It is admitted that the trial Court was wrong in thinking that the application of defendant 3 was made too late : vide, Niranka Sashi Roy v. Swarganth Banerjee 1926 Cal 95. The plaintiff has appealed. It is urged for him that the decision that he had only a claim for Rs. 50 against defendant 3 is incorrect and that in fact defendant 3 by the failure of defendants 1 to 4 in that suit to pay up Rs. 50 as ordered and get a sale deed of the property from the plaintiff, has no share in the property that she is not therefore in possession of the property and she cannot claim the benefit of Section 4, Partition Act. Secondly it is urged that, even if she can, the question as to whether this is a dwelling house owned by an undivided family was one of fact which had to be remanded to the trial Court for a finding and that the appellant was prejudiced by being precluded from giving evidence to show that it was not such a property. Appellant also claims that he was entitled to mesne profits because this house had been let out for rent.

4. The first