Shrivastava, J.

1. This appeal is directed against the judgment dated 22-1-1952 of the Court of the Additional District Judge, Indore, in Civil Suit No. 5 of 1949. The suit was filed by respondents 1 to 4 against the appellants, who were defendants 1 and 2, and respondents 5 to 8, who were defendants 3 to 6.

2. The relationship between the parties is shown by the following genealogical tree:

ABDUL REHMAN KHAN ___________________________________|___________________________________________________ | | | Abdul Karim Khan Azizur Rehman Khan Sirajur Rehman Khan= | | Widow, Mujtabal Begum | ____________|________________________ (deft. 1) | | | | | and | M.R. Khan S.R. Khan R.R. Khan R.R. Khan daughter, Solat Jahan | (plff. 1) (plff. 2) (plff. 3) (plff. 4) (deft. 2) _____________|_____________________ | | | | A.H. Khan H.B. Khan F.J. Khan M.J. Khan (deft. 3) (deft. 4) (deft. 5) (deft. 6)

The dispute relates to the property of Sirajur Rehman Khan, who died on 5-12-1946. Appellant No. 1 Mujtabai Begum is his widow and appellant No. 2 Solat Jehan is his daughter. The four plaintiffs (respondents 1 to 4) arc the sons of one brother and the other defendants (respondents 5 to 8) are the sons of another brother of Sirajur Rehman Khan. The relationship between the parties is not in dispute.

3. The property in dispute is specified in Schedule A and B of the plaint as follows:

SCHEDULE A

(i) Hira Mills Debentures Valued at about Rs. 5000

(ii) Postal Certificates --do-- Rs. 500

Rs. 5,500

SCHEDULE B

(Amounts as fixed deposit in Indore Bank. Indore.)

(i) Receipt No. 19091 Rs. 13,005 Date due 11-1-47

(ii) Receipt No. 19184 Rs. 2,380 do 31-1-47

(iii) Receipt No. 19981 Rs. 11,317 do 21-9-47

(iv) Receipt No. 20,017 Rs. 11,165 do 3-10-47

(v) Receipt No. 20,043 Rs. 24,808 do 10-10-47

Total : Rs. 62,675

The first four deposits in Schedule B, as appears in the subsequent stages of the trial, were in the names of the deceased and defendant No. 3 (respondent No. 5) and the last deposit was in the names of the deceased and his daughter, defendant No. 2 (appellant No. 2). In both cases, the deposits were joint deposits in Indore Bank, Indore, payable to either of the depositors or to the survivor,

4. There is also a house at Jaora (Schedule C) left by the deceased, but it was not included in the plaint claim and need not therefore be referred to.

5. The plaintiffs claimed a partition of the properties left by Sirajur Rehman Khan and prayed for their three annas share being separated and placed in their possession. They valued their share at Rs. 13090-14-0. The plaintiffs alleged in the plaint that defendant No. 1 (appellant No. 1} and defendant No. 3 (respondent No. 5) were requested to partition the properties, but they refused to do so.

6. Defendants Nos. 1 and 2 (appellants) admitted that Shrajur Rehman Khan died on 5-12-1946, leaving the parties as heirs. They, however, added that the deceased left behind a son, Minajur Rehman Khan, and, therefore, the plaintiffs, who are the nephews of the deceased, were not entitled to any share, Defendant No. 1 (appellant No. 1) claimed that she was entitled to get a sum of rupees one lac from the deceased as dower and as this debt remained unpaid, she had a right of lien over the estate until the debt was paid off. Further, it was pleaded on behalf of defendant No. 2 (appellant No. 2) that all the properties mentioned in the plaint schedules had been gifted to her by the deceased and thus nothing was left to be divided.

7. Defendants 3 to 6 (respondents 5 to 8) could not be personally served. Summonses were then published and this service was deemed sufficient by the Court. They did not enter appearance and allowed the suit to proceed ex parte. It may be mentioned that these defendants reside at Gwalior and were thus non-resident foreigners at the time of the institution of the suit at Indore. An application on their behalf has been filed before us to permit them to contest the appeal, as the appellant