P L D 1952 Dacca 425 (PLP)

But from this it does not follow that the case of the plaintiff that Satish died possessed of 3 annas and odd share, has not been established. We have been taken through the evidence with regard to the dispute between the brothers and the amicable settlement thereof, and we find ourselves unable to agree with the learned judge on this point. P. W. Amirud din Ahmad and P. Ws. 3 and 6 deposed to the family settle ment. They said that they were witnesses to the document drawn up in respect of that settlement. The learned judge dis believed Amiruddin Ahmed (P. W. 1) because he admitted that plaintiff's husband visits his house and P. Ws. 3 and 6 because they said that P. W. 4 wrote the document while P. W, 4 has not deposed to that effect. In our opinion these reasons are not sufficient to discredit these witnesses. Plain tiff's husband according to Amiruddin Ahmed (P. W. 1) makes ornaments for his tenants and it is not strange that P. W. 1 knows the plaintiff's husband or that the latter used to visit P. W.

1. P. W. 3's evidence is that as far as he remembered, it was P. W. 4 who wrote the document. P. W. 6 was no doubt more definite about it, but P. W. 4 did not deny having written it. He did not say who the scribe was. These witnesses were speaking of a transaction that had taken place a long time before they gave evidence and the probability of their having been mistaken about some of the details cannot be reasonably excluded. P. W. 7 is a retired clerk of Sub Registrar's Office and a school fellow of Sarat and his‑evidence that Sarat told him about his family affairs is not improbable. He does not say that Sarat told him about the execution of the document, but it is quite likely that Sarat did not mention to him all the details. There is no reason to disbelieve his statement that Sarat told him that he made a settlement with his brothers. There is then the definite evidence of Prabhat the first dependent that there was a settlement followed by a registered document, and the mere fact that he sold his share to the nephew of the plaintiff's husband is not by itself sufficient to discredit him. His evidence is not wholly in favour of the plaintiff on the other points. The evidence of the 13th witness for the plaintiff appears to us to be of considerable importance. This witness is an old member of the Mymensingh Bar who retired from practice about 15 years prior to his giving evidence in this suit. His house in Mymensingh is close to the suit property. He knew the family and his version is that at about the time of the settlement operations, some differences had arisen between the three brothers over their shares in the property of Kula Chandra Chakarbarty. They were living amicably prior to those differences and subsequently they did not make any complaint to him about their rights in the house; and his impression was that when the differences arose, they did go to him for advice as they used to consult him occasionally. Attempt seems to have been made in cross‑examination to show 'that the evidence of this witness was procured by the plaintiff; but on a reading of his deposition, we are very favourably impressed by his evidence and we think that we can safely rely on it. We have examined the learned judge's criticism of this witness's evidence. He has observed that the memory of this witness could not be very strong at his age ; but we do not find any indication of failure of memory in his statement. It is true that this witness's impressions as regards the whereabouts of Lakshikanta at the time of settlement, or about the time when he executed a sale‑deed in favour of Sarat and Prabhat, conflict with the evidence of P. W. 3 ; but it is noteworthy that this witness (P. W. 13) has deposed* that he heard about the sale deed executed by Lakshikanta and his evidence in cross‑examination clearly indicates that he did not pretend to be definite about these details. This, how ever, does not justify our discrediting his definite evidence that at or about the time of the settlement there was a dispute amongst the brothers, that they used to consult him occasionally and that they never complained to him after the settlement operations. Another observation made against this witness by the learned judge is that he was very positive that Sarat had the property recorded in the settlement. The learned Judge observes : "I think that the man cannot remember this and be positive about it. Sarat's evidence is that he was at Trisul then and that he could not say as to who recorded the lands of their bari in the settlement". But as a matter of fact, the witness cannot be said to be positive on this point. His evidence in examination‑in‑chief reads as follows : "During 'the time of the settlement, Sarat used to mange the affairs of the house because Sarat was the Karta ; so he must have recorded his house at the settlements". It was only in cross‑exami nation that he added, "Sarat got his basha recorded and not Lakshikanta. Sarat showed the boundaries of his house". Road as a whole his evidence amounts to this that his impres sion was that Sarat had the entries recorded in the record of rights. The learned Judge has also stated that the faculties of the witness did not appear strong : but we do not see any material inconsistency in his evidence ; nor does it appear that any note about the demeanour of the witness was made in the deposition. The learned judge while discussing this part of the case, observes that it is hardly likely that Satish, who was about 17 or 18 years of age at the time the settlement proceedings started, would have raised a controversy about his share in the property. But we can see no improbability in such a dispute having been raised, for it is common knowledge that when disputes arise in a family, more often than not persons other than the actual disputants are responsible for the controversy. The learned judge appears to have believed Sarat's evidence that he was not present when the entries were made in the settlement records ; but in our opinion it is highly improbable that Sarat, who was the head of the family and a clerk in the Sub‑Registrar's Office and who must have known the import ance of survey and settlement operations and the entries in the record of rights left it to others to make representations for having the necessary entries made in the record. On the other hand, the probabilities are that he appeared before the settlement authorities, and that the entries in question were made at his instance as has been stated by his brother, Prabhat, in the evidence which he gave as a witness for the plaintiff. The matter, however, does not rest on oral evidence alone. There is the entry in the record of rights which gives Satish, not the entire share of Kumudini, but a three annas and odd share, while against each of the other two, a six annas odd share is mentioned. In the ordinary course, if Satish or some body who was interested in him was responsible for inserting a false entry in the record, one would expect the entry to be that Satish had a five annas and odd share, which Kumudini got under her daughter's will, or at least the four annas share which was gifted by Kumudini to Lakshikanta. In view of our conclusion with regard to Exh. A‑1, Kumudini had at the time of her death, only an anna and odd share. It aapears to us quite natural for Satish to have raised a dispute with regard to this state of affairs, particularly when he found that Lakshikanta had conveyed to Sarat and Prabhat what had been gifted to him, by Kumudini, and the fact that the settlement record shows that Satish had a three annas and odd share, very strongly supports and renders very probable the case of the plaintiff that there was a family settlement before the final preparation of the record‑of‑rights. As regards the presumption that arises in respect of an entry in the record‑of‑rights under section 103 (b) (v) of the Bengal Tenancy Act, the contention of the learned Advocate for the respondents is that, prior to the amendment of the Act, the record‑of‑rights could be prepared only in respect of agricultural lands and not non‑agricultural, lands, that the amendment of 1928 cannot be retrospective in effect, and that therefore the presumption relied on by the plaintiff does not arise. In support of this contention, our attention has been drawn to the decisions in Rajah Sasi Kanta Acharjya Bahadur v. Sandhya Rani Dasi 26 C W N 483 and Chand Mia Munshi and others v. Tukamia and others 28 C W N

516. In the first of these cases, the lands described in the record of rights were "Chandina" lands, not subject to the provisions of the Bengal Tenancy Act. The contention advanced against the entry in the record of rights was that the revenue officer had no jurisdiction to make the entry as section 101 of the Act did not, prior to 1928, contain the expression "ail lands". The learned Chief Justice who delivered the judgment of the Bench observed that he was not prepared to go so far as to say that in that case no presumption arose from the entry in the record‑of‑rights, but that he was prepared to say that the presumption could not be of such great weight as would be the case if the entry were with regard to matters which were rightly and properly included in the record of rights. In the other case, the entry in the record of rights was that the defendant had the right to fish, and the contention raised was that this entry, not being the entry with regard to agricultural land nor of any matter between landlord and tenant, the presumption under section 103 (b) of the Bengal Tenancy Act did not arise. Following the decision in 26 C W N 483 (supra) the High Court held that, although strictly speaking the presumption under section 103 (b) was not applicable to non‑agricultural land to the extent to which ‑it was applicable with regard to agricultural land still such entry raises some presumption with regard to the fact recorded in it. In Rabindra Narayan v. Rai Gunendra Krishna Roy Bahadur 48 C W N 153 the entry in the record‑of‑rights was in respect of a land within a municipality, and that record‑of -rights like the one with which we are concerned in this case, was published in the year 1916. The contention was that prior to 1928 no record‑of‑rights could lawfully be prepared in respect of lands other than agricultural. In dealing with this contention, Biswas, J. sitting singly, observed thus : " I do not think there is anything in Chapter XX even as it stood before 1928 which went to show that the jurisdiction of a revenue officer to prepare a record‑of‑rights was limited only to lands used for agricultural or horticultural purposes". On the other hand the words, "In any local area,. estate or tenure section 101 (i) would seem to militate against any such strict interpretation. It may be that the words 'the lands' were alter ed in 1928 to 'all lands', but this was only meant to remove an ambiguity and not to alter the law". Referring to the decision in 26 C W N 483 (supra) the learned judge observed : " The learned Judges no doubt added that the presumption could not be as wide as would be the case if the entries were with regard to matters which could be rightly and properly included in the record of rights ; but this could not weaken the effect of the decision which clearly implied that a record‑of‑rights could be validly prepared in respect of non‑agricultural as well as agricultural lands". We fully agree with these observations. The officers who prepared the record cannot be said to have had no power to do so and the record is a public record, the entry being one made by a public servants in discharge of his E official duties. We consider that the presumption does not arise in this case. On behalf of the respondent, our attention has been drawn to the recital in Exh. C. 1 that the entry in the record is wrong. There is such a recital ; but we do not consider it sufficient to rebut the presumption, particularly when it is strengthened by the other evidence which has already been discussed. In the circumstances of the case, we are not prepared to say that the contention of the learned Advocate for the appellant, that even if the document is accepted to have been voluntarily executed with the knowledge that it was a deed of sale, defendant No. 12 might not have paid attention to this recital, is devoid of force. Apart from this, there is also another recital in the document that the executants tried to sell the share as recorded in the survey recorded, but could not produce any evidence to prove their title to the share and, therefore, no one was available to purchase it. In this connection, it was pointed out that the document which was said to have been executed at the time of the family settlement was not pro duced. The case of the plaintiff was that the original was with Sarat, and that a registered copy could not be obtained as the Sub‑Registrar's Office, where it was registered, was burnt down. That the office was burnt down is not disputed. It may, therefore, be that, because the document was not available, no one was prepared to purchase the share recorded in the record‑of‑rights. The two recitals taken together cannot, in our opinion, be regarded as a clear admission that Satish left only 8 and odd gandas and not the extent mentioned in the* record‑of‑rights. Even if it is considered that these recitals amount to a clear admission, that would not be binding on Kamala. As will be seen presently, Hemlata by her second marriage lost her right to the property, though not to the guardianship of Kamala. She had, therefore, authority only to manage the property for Kamala, but it does not follow that she had power to make admissions so as to affect the estate of Kamala see C L R Vol. XX p. 377, P C and XVIII C W N 718 p. 721, P C. In Banwari Lal Singh v. Dwarkanaih Missir 29 C L J 577 (582), it is observed that "It cannot be seriously dis puted that the admission by the Court of Wards cannot bind or prejudice the infant proprietor." We, therefore, consider that Satish whin he died was possessed of the 3 annas and odd share mentioned in the record of rights, and not only the 8 and odd gandas as contended for on behalf of the respondents. As regards Exh. C. 1, the contentions of the learned Advocate for the appellant that it is not a valid conveyance because Hemlata was illiterate and was labouring under the disadvantages which apply to a pardanashin lady, and that the consideration did not pass, have already been considered and negatived while discussing the contentions regarding Exh. A.

1. It now, remains to consider the contentions (1) that Hemlata, owing to her remarriage, lost not only her right to Satish's property, but also the right to be the guardian of Kamala, both under Act XV of 1856 and under the principles of Hindu law, and (2) that, even if she was the legal guardian, necessity for alienation has not been established. With regard to the right of a remarried Hindu widow to her deceased husband's property, where custom allows remarriage of widows there has been a conflict of judicial views both regarding the applicability of Act XV of 1856 and the position under Hindu law. The Allahabad High Court has consistently for a period of over 40 years held that the Act did not apply to those Hindu widows who have remarriaged in accordance with the custom of their caste and the latest decision of that Court brought to our notice is that of a Full Bench reported in 55 All. 24 I L R 55 All.

24. It was also held there that, apart from the Act, Hindu Law in itself does not, in the case of such marriages, warrant the forfeiture of a widow's rights to her deceased husband's property ; that the proof of a mere custom of remarriage would not be sufficient to involve, forfeiture but that it would be necessary for the party claiming forfeiture, on account of remarriage to prove that there is a custom of such forfeiture. But the consensus of opinion in the High Courts of Calcutta, Madras, Bombay and Patna appears to have been that apart from the Act, on the principles of Hindu Law, a Hindu widow, even where custom allows remarriage, forfeits her right to her deceased husband's property. According to the Lahore High Court, forfeiture follows remarriage unless a contrary custom is established. I L R 19 Cal. 289 ; I L R 22 Cal. 589 ; I L R 50 Cal. 727 ; I L R 1 Mad. 226 ; A I R 1929 Mad. 765; ILR 22 Bom. 321 FB; I L‑RlPat.206; AIR 1930 Lah. 1023 may be referred to in this connection. In 19 Cal. 299 (supra) ; 50 Cal. 727 (supra) ; 22 Bom. 321 (supra) ; and A I R 1929 Mad. 765 (supra) it was held that the Act applied to all Hindu widows and not only to those who could not remarry under the custom of their caste. In the other cases, the decision was based on the principles of Hindu Law and the view taken was that, even where custom allows remarriage, the right to the deceased husband's property is forfeited. No decision of these Courts, subsequent to the decision in 55 All. 24 (supra), have been brought to our notice; but in some of the above decisions, the fact that Allahabad, in its previous decisions, had taken a different view, was noticed. We have been through these decisions and the Act and we find ourselves unable to agree with the view expressed in 55 All. 24 (supra). As far as Act XV of 1856 is concerned, the decision in 55 All. 24 (supra) is based mainly on the preamble of the Act which, after stating that with certain exceptions, Hindu widows, by reason of their having been once married were incapable of contracting a second valid marriage, and that many Hindus who believe that this incapacity, though in accordance with the established custom does not accord with the true interpretation of the precepts of their religion, desired that the law should no longer prevent those Hindus who May be so minded from adopting a different custom, goes on to say, " Whereas it is just to relieve all such Hindus from this legal incapacity of which they complain and the removal of all legal obstacles to the marriage of Hindu widows will tend to the promotion of good morals and to the public welfare, it is enacted as follows." The second section of the Act, which imposes the disability on a widow who remarries regarding her deceased husband's. property, contains the expression " any widow "and the learned judges in the Allahabad case held that expression would apply to all widows be they Muslim or Christian, unless it is read with the preamble, and that thus read, section 2 would apply only to widows the custom of whose caste does not allow remarriage. But having regard to the fact that the first section of the Act refers to marriages contracted between Hindus, and the Act itself is styled " The Hindu Widows Remarriage Act " we are of opinion that the expression " any widow " in section 2, apart from the pre amble, refers only to any Hindu widow who may remarry and not to any other widow. It is no doubt true that the preamble is a guide to the intention of the Legislature if there is any ambiguity with regard to the expressions used in the Act proper ; but we think that there is no ambiguity as far as the expression " any widow " in section 2 is concerned. That being the case, the preamble of this Act cannot restrict or extend the enacting portion. Maxwell in his book, "Interpretation of Statutes " on page 48. of the 9th Edition, observes thus :‑ " But the preamble cannot either restrict or extend the enacting part, when the language arid the object and scope`s of the Act are not open to doubt, It is not unusual to fin 'd that the enacting part is not exactly co‑extensive with the preamble. In many Acts of Parliament, although a particular mischief is recited, the legislative provisions extend beyond it. The preamble is often no more than a recital of some of the inconveniences, and does not exclude any others for which a remedy is given by the statute. The evil recited is but the motive for legislation ; the remedy may both con sistently and wisely be extended beyond the cure of that evil, and if on a review of the whole Act a , wider intention than that expressed in the preamble appears to be the real one, effect is to be given to it notwithstanding the less extensive import of the preamble." Therefore, the fact that the preamble says that it was to relieve all Hindus who could not remarry according to the custom of the caste from the legal incapacity, cannot be said to make the Act applicable only to them, In this connection, the following observations of Farran C. J. in his referring judgment in the F. B. Case in 22 Bom. 321 (supra) are instructive :‑ " Section 2 of Act XV of 1856, read by itself and without reference to the circumstances under which it was enacted, plainly extends to all Hindu widows irrespective of the castes to which they belong and to the special customs of such castes. It reads as a law of universal applicability . ...It would be difficult to use more general words, and in our opinion there is no sufficient indication afforded by the preamble or the other provisions of the Act that the Legislature intended to use them in a restricted sense and as confined to Hindu widows who for the first time were by the Act permitted to marry to lead‑ us to read them in a restricted sense. The preamble shows that the Legislature had in its mind when passing the Act the clear conception that there were at that time two classes of Hindu widows, viz., (1) those who were by the law as administered in the Courts of East India Company held incapable of contracting a second marriage; and (2) those who were then held capable of marrying a second time, which latter class formed an exception to the more general one. The direct object of the Act Was doubtless, as appears from the preamble to relieve the former class from this disability .That object might have been effected in one or two ways. First, by gassing a general law applicable to all Hindus alike or secondly by passing an enabling Act which would be applicable to such widows only as chose to avail themselves of its provisions. The Legislature has, we think, adopted the former method. The first section declares in the very broadest terms that No marriage contracted between Hindus shall be invalid ..by reason of the woman having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any interpretation of Hindu Law to the contrary notwithstand ing. It appears difficult to contend that declaration does not extend to all Hindus alike whatever their caste or the interpretation of Hindu Law authorised by their caste may be. Equally general appears to us to be the positive enact ment in the second section which we have read All rights and interests which any widow may have in her deceased husband's estate shall upon her remarriage cease and determine'. " The preamble to the Act does not, therefore, we think, indicate an intention of the Legislature to control its express enactments even if it could legitimately be used for that purpose, which cannot generally be done‑Maxwell on Statutes, pp. 52 and 56." The comment of Mookerjee, J. in the Allahabad case on the Full Bench decision in 22 Bom. 321 (supra) ; is that the view expressed therein is very much vitiated by the large assumption that was made that throughout India the practice prevailed that a widow, to whom remarriage was allowed, forfeited her first husband's property. But the observation of Farran, C. J. in the referring judgment cited above is based on the interpretation of the Act and not on any such assumption. In 19 Cal. 289 (supra) Petberam, C. .J. with whom the majority of the F. B. agreed, observed on this point thus : " Section 1 no doubt relates to marriages between Hindus, but section 2 includes all widows who are within the scope of the Act, that is to say, all persons who being Hindus be come widows, and it must follow from this that if any widow marries, she is deprived by the section of the estate which she inherited from her Hindu husband." This case has been distinguished by Mookerjee, J. of the Allahabad High Court on the ground that the widow in that case was of a twice born caste where there was no custom allowing remarriage. But the above quotation from the learned judge's judgment clearly indicates that that observa tion was based on his interpretation of the Act. In 50 Cal. 727, (supra) also it was observed that section 2 of the Act con templates the case of any widow which may include even a widow of a caste in which remarriage is allowed. It is no doubt true that the question is not discussed there at length, but we see no reason to think that this observation was made without study of the preamble and sections of the Act. A I R 1929 Mad. 765 (supra) follows 22 Bom. 321 (supra) and also refers to the referring judgment of Farran, C. J. in the case. The removal of the legal disability in respect of certain Hindu widows who by custom were not allowed to remarry, mentioned in the preamble, was certainly the object of the Legislature; and it appears to us that the Legislature could not have intended that the Hindu widow, of the caste where custom allows remarriage should not have the advantage of the codified law but should be put to the necessity of proving the custom. We, therefore, think that the Act applies to all Hindu widows who remarry, whether remarriage is allowed by their caste or not. With regard to the Hindu law on this point, we agree with the view expressed by Wilson, J. in the referring judgment in 19 Cal. 289 (supra) case, where he points out that it is difficult to reconcile the test of Brihaspati which Jimuta bahana makes the basis of his reasoning on the subject of widows' estate, viz.‑ "Of him whose wife is not deceased half the body survives. How then should another take his property while half his person is alive ? "With a right in a widow who ceases to be the wife or half of the body of her late husband, and becomes the wife and half of the body of another man, to keep the estate of her late husband." Mookerjee, J. in 55 All. 24 (supra), after referring to the discussion in the Mitaksharu, observes :‑ Vijnaneswara does not even quote, much less does he con sider, the text of Brihaspati quoted by Jisrutvahana in Daya bhaga (Chapter XI, Section 1, paragraph 2) which says that a wife inherits because she is one‑half of her husband's body. In view of this discussion of what are all regarded as sacred but conflicting texts, how can you say that this is the particular reason why a widow is permitted under the Hindu law to inherit and that because that rule is broken in the case of a remarriage, the widow must forfeit what she has lawfully inherited." But that the above text of Jimutavahana is one of the reasons for the widow to inherit has not been disputed by the learned Judge ; and as Bengal is governed by Dayabhaga school, this text has been relied upon as the basis for the widows, inheritance in Bengal. Wilson, J. in his referring judgment to which reference has already been made, has also observed that the "adoption of the rule for forfeiture for second marriage in the Hindu Widows Remarriage Act seems to be an indication that the Legislature considered that rule to be in accordance with the principles of Hindu law." We agree with this observation. It is clear from the preamble to the Act that the intention of the Legislature was to remove the disability which many Hindus felt to be not in accordance with the true interpretation of the precepts of their religion. That being so, the Legislature would never have imposed this serious dis ability with regard to the property of the deceased husband had it not considered it to be in accordance with the precepts of Hindu law. The decision of the Judicial Committee in 5 Cal. 776, (I L R 5 Cal. 776) that a widow does not forfeit her property inherited from her husband even though she becomes unchaste after inheriting it, has been referred to by Mookerjee, J. in support of his view. But as pointed out by Wilson, J: in 19 Cal. 289 (supra) at page 292 there seems to be a very broad distinction between misconduct, on the part of a widow as a widow and her ceasing to be a widow. The fact that the view expressed in the Allahabad decision had held the field in the United Provinces for over a period of 40 years appears to have a certain extent weighed with the learned judges of the Full Bench in 55 All. 24 (supra). This is clear from the judgment of Sulaiman, C. J.‑I should like to add that, even if I had not been independently convinced of the correctness of the view which has prevailed in this Court, I would have felt bound by the long course of unanimous decisions which have been given here. So far as these Provinces are concerned people have acted upon the belief that in the absence of any custom to the contrary, a widow who is entitled to remarry under the custom of her caste does not forfeit her estate ..The rulings of this Court must have affected diverse contracts and dealings between man and man. On the principle of stare decisis, it is our clear duty to adhere to these rulings so long as the Legislature does not intervene or their Lordships of the Privy Council do not rule that they are wrong." In the present case also, apart from what we have discussed above, on the principle of stare decisis, on which Sulaiman, C. J. has relied, we should also hesitate to disturb the view of the law which seems to have held the field for a long time in Bengal. But for reasons we have stated above, we are convinced that under the Act and the principles of Hindu Law, a Hindu widow by remarriage forfeits her right to the deceased husband's property, even if the remarriage is allowed by the custom of her caste, and we rest our conclusion in this case on that view. We, therefore, consider that Hemlata, after her remarriage, lost her right to Satish's property. But the contention that she also lost her right to the guardianship of Kamala cannot, in our opinion, prevail. Section 3 of the Act relied on in this connection, does not lay down that the remarriage of a widow by itself leads to the forfeiture of her rights of guardian ship. It only says that if she or any other person has not been made a guardian under the Will of her husband, application for the appointment of another guardian may be made and the Court may appoint another guardian. It is nobody's case that such application was made or any other guardian was ap pointed for Kamala. We have not been shown any decision laying down that under the Act or under the Hindu Law where Hindu widows are allowed by custom to remarry, right of guardianship ceases automatically on remarriage as does, the right to the deceased husband's property. On the other hand, section 523 of Mulla's Hindu Law, says, "A Hindu widow does not by the mere fact of her remarriage lose her right of guardianship, in any case where remarriage is re cognised by the custom of the caste to which she belongs." As for the contention that there was no justification for the alienation in Ex. C‑1, it has to fail. In Exh. 4 itself, on which the appellant's claim is based, it is recited that at the time of Exh. C‑1, Hemlata was in want of food and clothing and extremely helpless. It is clear from this that the aliena tion was for the benefit of Kamala. For these reasons, we consider that EKh. C‑1 was a valid conveyance, and that the plaintiff is entitled to the share of Satish which remained vested in Kamala after Exh. C‑1 was executed, i.e.. 3 annas and odd share as noted in the record of rights minus the 8 gandas and odd share conveyed under Exh. C-1. We, therefore, allow the appeal only to the extent indi cated above and dismiss it in respect of the rest of the share claimed. The decree of the lower Court is set aside and there shall be a preliminary decree for partition in favour of the appellant in respect of the share specified above. A Commissioner will be appointed to effect partition by metes and bounds. The contesting respondents will pay the appellant her pro portionate costs here and below. FAIYAZ ALI, J.--‑ I agree. A.H. Appeal partly allowed.