JUDGMENT

1. This is an appeal under Section 45, Encumbered Estates Act, against an order passed by the Special Judge of the first grade, Sitapur. In the order appealed against, the Special Judge allowed a claim made by the respondent, Suraj Bux Singh, for a one-sixth share in the property alleged by the applicants in the case to belong exclusively to them. A preliminary point which arises upon this appeal is whether the appeal is competent when all the creditors have not been impleaded. The appeal is by the applicants under Section 4, Encumbered Estates Act, and if the appeal is successful, the creditors generally will be benefited in that more property will be available for the satisfaction of their claims. It has been recently held by this Court that in these circumstances it is immaterial whether all the creditors have been impleaded or not. We hold, therefore, that the appeal is competent.

2. The next question which arises is whether a valid claim was made by the respondent, Suraj Bux Singh, such as would attract the operation of Section 11, Encumbered Estates Act, and confer jurisdiction on the Special Judge to adjudicate upon it under that section. The claim of Suraj Bux Singh to a one sixth share in the property was made along with a claim as a creditor under Section 9. Notice under Section 9 was issued on 31st October 1936. The claim of Suraj Bux Singh was not preferred until 16th March 1937. Application for extension of time had previously been made by him on 10th March 1937, explaining why he had not put in his claim within three months from the publication of the notice in the gazette. The application was allowed, and so far as the claim of Suraj Bux Singh as a creditor is concerned, no objection is taken to its admission. The only question is whether it was permissible for the Special Judge to take into consideration his claim to a share in the property when notice under Section 11 of the Act was not published until 19th June 1937, that is more than three months after the claim to a share in the property had actually been made. Objection was taken by the applicants' counsel on the ground that no separate claim to the property was made after the publication of the notice under Section 11.

3. The question whether a claim made before publication of notice is a valid claim or not has been considered both by this Court and by the Allahabad High Court. In Rameshwar Bakhsh Singh v. Govind Prasad, A.I.R. 1941 Oudh. 60 a Bench of this Court held that the claim of a creditor could be entertained even though it was filed a few days before the beginning of the date from which the calculation of the last date of limitation was to be made. It was said that the period given in Section 9 only prescribes the date of publication of the notice as the date by reference to which the last day of limitation is to be calculated, and not as prescribing a kind of compartment of time and enacting that any written statement in order to be presented within time must be presented between the first and the last days of that compartment of time. In Ramman Lal v. Raghunath Shanker, AIR1941All56 , it was held that the provision in Sub-section (2) of Section 11 that a claim to the property must be filed within the period of three months from the date of publication of the notice in the gazette does not debar the Court from entertaining and adjudicating upon a claim filed before the publication of the notice, if, in fact and substance, the claim amounts to a claim under Sub-section (2) of Section 11. It is quite clear in the present case that the respondent made a claim of the nature contemplated by Section 11 and the fact that he combined this with the claim as a creditor under Section 9 and preferred it before the publication of notice does not in our opinion invalidate it. We accept the principle laid down in the cases cited and hold that it was a valid claim.

4. Another question which has been raised in this appeal is whether the respondent is ent