JUDGMENT <NAME>, J.

(1) <ORG>, the plaint, in a suit based on infringement of trade marks, copyright, passing off and for rendition of accounts of profits has filed this application seeking to restrain the defendant during the pendency of suit from manufacturing, selling, offering for sale or otherwise dealing in the "washing soap under the impugned trade mark "BILLY" and artistic wrapper of the plaintiff and also from passing off its products of washing scrap as and for the quality goods of the plaintiff under the trade mark "BILLY" and artistic wrappers.

(2) The relevant facts necessary for determining the point of controversy has been set out by the plaintiff in the suit, inter alia, that the plaintiff firm is engaged in the well-established business of manufacturing and marketing of washing soaps since the year 1952. Since April 10, 1978.the plaintiff firm has been using. the trade mark "BILLY" for its products of washing soaps for file purpose of indicating a connection in the course of the trade between the said product and the plaintiff firm. The plaintiff firm has applied to the Registrar of Trade Marks for registration of the trade mark "BILLY" in respect of their goods vide application dated 10th June, 1986 and the said application has been accepted by the Registrar of Trade Marks for advertisement in <ORG> and the said mark cf the plaintiff is bound to be registered under the Trade and Merchandise Marks Act , 1958 in due course. The plaintiff not only since 1978 have been using trade mark "BILLY" for its products of washing soaps but also have been using for the sale and marketing "of products, artistic wrappers, for packing purposes. The salient features of the artistic wrappers have been referred to by the plaintiff in paragraph 5 of the plaint.

(3) The plaintiff firm is a lawful proprietor of the impugned trade mark "BILLY" and also of the artistic wrapper and has Factory got an exclusive right to the use thereof. The use of artistic wrapper for more than a decades in the market has earned the firm enviable goodwill in public and trade.

(4) In the middle of October, 1988, however, it came to the notice of the plaintiff when the wrapper of the defendant came to the hand of the plaintiff that the defendant has also started marketing its products of washing soaps hi quite similar wrappers and under the same trade mark "BILLY" as those of the plaintiff. The adoption and use of the said trade mark and impugned wrapper by the defendant for its products of washing soaps is an act of infringement of copyright of the plaintiff in the wrapper and the defendant is also guilty of passing its inferior quality goods as quality goods of the plaintiff under the ?aid trade mark and artistic wrapper of the plaintiff of which the defendant is not entitled at all. By the use of the wrapper of the plaintiff, the defendant has since been passing off its inferior and sub-standard goods as and for the quality goods of the plaintiff.

(5) In the present application filed by the plaintiff firm under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, the Plaintiff has set out the same facts as in the suit.

(6) The defendant firm has not filed the written statement in the suit. However, the defendant has filed the reply and thereby opposed the injunction application. The objections taken by the defendant are that the wrapper marked annexure A has been used by the plaintiff for the last two years and in the year 1988 another washing soap wrapper marked annexure B has been adopted by them and these wrappers are different from the wrappers of the defendant which are being used by the defendant firm continuously and extensively since November, 1987. which has been denied by the plaintiff in the rejoinder.

(7) The other ground taken is that the use of trade mark "BILLY" and that of such wrapper are common in the trade of soaps and not only the defendant but so many other parties are using the trade mark "BILLY" along with the wrapper which is similar to that of the plaintiff and some of the parties referred to are : (i) <ORG>, Sunam, Distt. Sangrur, Punjab; (ii) <ORG>, Sunam, Distt. Sanprur. Punjab; (iii) <ORG>, Punjab: (iv) <ORG>, Punjab; (v) <ORG>. Punjab: (vi) <ORG>, Amargarh, Distt. Sangrur, Punjab; and (vii) <ORG>, Punjab. The question of jurisdiction of this court to try the suit has also been raised.

(8) A the threshold I propose to deal with the question of jurisdiction of this court-a prelim-nary objection. In this connection reference is made to the averments in paragraphs 19 and 20 of the plaint wherein it is stated that both the parties are selling and offering for sale their products of washing soaps in Delhi also. In addition to this, the plaintiff has made an application before the Registrar of Trade Marks, Delhi for registration of its trade mark "BILLY" and such an application has been accepted by the Registrar of Trade Marks by advertisement in <ORG> and the said mark is bound to be registered under the Trade and Merchandise Marks Act , 1959. Bill dated 6th November, 1988 has been filed with the list of documents by the plaintiff which shows that "BILLY" brand soap was sold to one <NAME> of Delhi. In view of these facts that both the plaintiff and the defendant have been selling the goods within the territorial jurisdiction of Delhi, this Court has jurisdiction to try this suit. It is no doubt true that no sufficient material is available at this stage to substantiate that the goods are being sold by the plaintiff in Delhi, but this matter would be gone into at the time of the trial of the suit. At this stage, it is sufficient that the specific averment in the plaint, whatever it may be worth, has been made that the plaintiff and defendant are selling the goods within the territorial jurisdiction of Delhi. Therefore, in my opinion this court has territorial jurisdiction to try this suit.

(9) In order to succeed in the injunction application, three factors must be kept in view. that is, the establishment of prima facie case, the balance of convenience between the parties and in case injunction is not granted this will cause irreparable in Jury to the petitioner. In order to show prima facie case, the plaintiff's counsel has referred to the wrappers of the plaintiff and the defendant placed on the record and strenuously urged that having regard to the column, scheme, get up, lay out, style and arrangement of words the wrappers used by the plaintiff and defendant are strikingly deceptively similar and thereby the defendant is guilty of passing its inferior quality of goods to the buyers as of the plaintiff. There is good deal of force in this argument. Having regard to the deceptive similarity between the' get up, scheme, column, ink etc. of two competing wrappers gives the wrapper of defendant of overall effect of deceptive similarity which prima facie constitute infringement of copyright of the plaintiff. The comparative description of the wrapper set out in the plaint which is amply reflected on a visual examination of the competing wrappers leaves absolutely no manner of doubt that the wrapper of defendant is deceptively similar to the wrapper extensively used by the plaintiff since 1978. The deceptive similarity is likely to cause confusion in the course of trade, particularly having regard to the class of people, ladies and domestic servants which constitute the buying public, in relation to washing soap. Therefore, the plaintiff prima facie is entitled to protection at this stage.

(10) The next question that arises for consideration at this stage is whether between the parties who has established the user of the trade mark and copyright at point of time irrespective of the ownership of such mark and copyright. In this connection there is a statement filed by the plaintiff from 1978- 87. The plaintiff has also filed Photostat copies of the bills of sale of the soap of trade mark "BILLY" in the wrappers used by it from 19-10-1978 to 25-5-1987. A perusal of these documents clearly demonstrates that the plaintiff is selling the soap of trade mark "BILLY" with the distinctive artistic wrapper of "BILLY" from the year 1978 uptil now and continuing to sell the same under its trade mark and artistic wrapper. On the other hand, the defendant has admittedly claimed user of the trade mark "BILLY" with the device of "BILLY" in the identical carton from November, 1987 which is about 10 years later. This has been admitted by the defendant in paragraph 2 of the preliminary objections of the reply. The law is pretty well settled that in order to succeed at this. stage the plaintiff has to establish user of the aforesaid mark prior in point of time than the impugned user by the defendant. The plaintiff, therefore, is to succeed as he is prior user of the trade mark vis-a-vis the defeadant.

(11) It was next submitted by counsel for the defendant that the plaintiff has no right to use the trade mark "BILLY" and artistic wrapper as so many other parties who are referred to earlier were also using the same trade mark. This contention of the defendant is wholly devoid of any force. In this connection it is sufficient to say that under the law it is the right of two parties before the court which has to be determined and, as already discussed, the plaintiff being prior user has the better and legal right to seek relief from this court.

(12) In the light of what is discussed above, the prima facie case in favor of the plaintiff stands established. The use of the trade mark and artistic wrapper by the plaintiff much earlier to that of the defendant not only shows a prima facie case in plaintiff's favor but balance of convenience also lies in its favor. Furthermore, if the defendant firm is not restrained by means,' of interim injunction, it will continue to market its goods with the offending mark and wrapper with the result that the plaintiff will suffer irreparable loss and injury.

(13) I would, therefore, grant an injunction restraining the defendant, during the pendency of the suit, from manufacturing, selling, offering for sale or otherwise dealing in the washing soap under the impugned trade mark "BILLY" and artistic wrapper of the plaintiff or under any other trade mark and artistic wrapper which may be similar and/or deceptively identical to the trade mark "BILLY" and artistic wrapper of the plaintiff and also from passing off its products of washing soap as and for the quality goods of the plaintiff under the trade mark "BILLY" and artistic wrappers which are quite similar and deceptively identical to the trades mark and artistic wrappers of the plaintiff. With these directions, Ia 8560188 stands disposed of. No costs.


PETITIONER: TRISUNS CHEMICAL INDUSTRY Vs. RESPONDENT: RAJESH AGARWAL AND OTHERS C DATE OF JUDGMENT: 17/09/1999 BENCH: K.T.Thomas, M.B.Shah JUDGMENT:

<NAME>

Leave granted.

Chairman of the appellant company filed a complaint before the Judicial Magistrate of First Class, Gandhidham (Gujarat) alleging certain offences including the offence of cheating against another company located at Indore (Madhya pradesh) and its Directors. The Magistrate forwarded the complaint to the appellant for investigation as per his order passed under Section 156(3) of the Code of Criminal Procedure (for short the Code ). The accused Directors thereupon moved <ORG> under Section 482 of the Code for quashing the complaint. A single Judge of <ORG> quashed the complaint as also the order passed by the Magistrate thereon. Complainant has, therefore, filed this appeal. The gist of the complaint is this: In the month of October 1996 the accused Directors approached him and offered to supply 5450 metric tones of Toasted Soyabean Extractions for a price of nearly four and a half crores of rupees. The rate quoted by the accused was higher than the market price. Appellant had to pay the price in advance as demanded by the accused. So the same was paid through cheques. But the accused sent the commodity which was of the most inferior and sub-standard quality. Complainant produced <ORG> copies of the reports obtained from the laboratory to which samples of the commodities were sent for testing purposes. The said laboratory has remarked that the commodity was of the most inferior and sub-standard quality. The complainant suffered a loss of 17 lakhs of rupees by the aforesaid consignment alone. According to the appellant he was induced to pay the price on the representation that the best quality commodity would be supplied and the price was paid on such representation. But by supplying the most inferior quality the accused deceived the complainant and thereby the offence was committed. The above are the salient features of the allegations in the complaint. We have noted from the judgment of the learned single judge of <ORG> that appellants counsel in <ORG> did not turn up to argue the matter. Evidently learned judge was deprived of the advantage of getting appellants version projected. The deficiency is seen reflected in the impugned judgment also. Respondents counsel in <ORG> put forward mainly two contentions. First was that the dispute is purely of a civil nature and hence no prosecution should have been permitted, and the second was that the Judicial Magistrate of First Class, Gandhidham has no jurisdiction to entertain the complaint. Learned single judge has approved both the contentions and quashed the complaint and the order passed by the magistrate thereon. On the first count learned single judge pointed out that there was a specific clause in the Memorandum of Understating arrived between the parties that disputes, if any, arising between them in respect of any transaction can be resolved through arbitration. <ORG> made the following observations: Besides supplies of processed soyabean were received by the complainant company without any objection and the same have been exported by the complainant-company. The question whether the complainant- Company did suffer the loss as alleged by it are the matters to be adjudicated by <ORG> and cannot be the subject matter of criminal prosecution."

Time and again this Court has been pointing out that quashment of FIR or a complaint in exercise of inherent powers of <ORG> should be limited to very extreme exceptions [vide <CITATION> (1992 suppl.(1) SCC 335) and <CITATION> (1999(3) SCC 259)]. In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations: It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.

We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for <ORG> to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana vs. <NAME> (Supra). Learned single judge has accepted the alternative contention advanced by the respondent pertaining to want of jurisdiction for the Judicial Magistrate of First Class, Gandhidham in respect of the offence alleged in the complaint. This is what <ORG> has said on that aspect: Further, there is nothing in the complaint which shows that any part of the transaction took place within the territories of the State of Gujarat. It appears that even the supply of processed soyabean was delivered to the complainant-company at the factory itself. In my view, therefore, Mr. <NAME> is right in contending that the court of the learned Judicial Magistrate, First Class, Gandhidham ought not to have taken cognizance of the matter and ought not to have directed to issue the process.

It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to jurisdiction of the criminal courts in enquiries and trials. That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that every offence shall ordinarily be inquired into and tried by a <ORG> within whose local jurisdiction it was committed. But section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court within whose local jurisdiction such thing has been done or such consequence has ensued.. It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence. Power of the court to take cognizance of the offence is laid in Section 190 of the Code. Sub-sections (1)& (2) read thus: (i) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon a police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(ii) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Section 193 imposes a restriction on the court of sessions to take cognizance of any offence as a court of original jurisdiction. But any Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not. The only restriction contained in Section 190 is that the power to take cognizance is subject to the provisions of this Chapter. There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: Except as hereinafter provided. Those words are now replaced by Subject to the provisions of this chapter. Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non-obstante clauses. Any way that is a different matter. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier. Unfortunately, <ORG>, without considering any of the aforesaid legal aspects rushed to the erroneous conclusion that the judicial magistrate of first class, <NAME> has no power to take cognizance of the offences alleged merely because such offences could have been committed outside the territorial limits of the State of Gujarat. Even otherwise, without being apprised of the fuller conspectus a decision on the question of jurisdiction should not have been taken by <ORG> at a grossly premature stage as this. For all the aforesaid reasons we are unable to concur with the impugned judgment. We, therefore, quash it. Learned counsel for the respondents invited our attention to the fact that all the accused persons arrayed in the complaint are residing at Indore in Madhya Pradesh and he apprehends that revival of investigation in the case would most probably embroil them in a miserable position if they are arrested. We considered that aspect in the view we now take and we also foresee such a plight for the accused. To alleviate any possible hardship for the respondents we direct that if any of the respondents is arrested in connection with the above complaint, he shall be released on bail by the arresting officer on execution of a bond to his satisfaction. However, such arrested person shall be bound to report to the investigating officer at the place and time specified for the purpose of interrogation.

The appeal is disposed of in the above terms.


JUDGMENT <NAME>, J.

1. This is an appeal by defendants 4 and 5 which arises out of a suit for partition. A preliminary decree has been made by the learned Subordinate Judge and the appeal is directed against that preliminary decree. The property which is the subject-matter of this appeal originally belonged to two brothers, <NAME> and <NAME>. <NAME> died in the year 1900 leaving him surviving his widow and three sons. <NAME> got his share partitioned in the year 1905. The three sons of <NAME> purchased the share of <NAME>, which had been partitioned previously by a conveyance dated 31st May 1922. On that very day the three brothers mortgaged the entire interest in the house to a third person, with which we are not concerned in this litigation. On 12th October 1923 these three brothers again mortgaged the property to defendant 5. On 1st September 1924 these three brothers again executed a second mortgage of this very property in favour of their mother. Defendant 5 brought a suit on his mortgage on 10th November 1924 and a preliminary decree was made on 22nd January 1925. In the meantime defendant 4 was appointed as Receiver by an order of the <ORG> in accordance with the terms contained in the indenture of mortgage dated 12th October 1923. The Receiver remained in possession of the property on behalf of the mortgagors and the mortgagee. The present suit for partition was brought by one of the sons of <NAME> on 17th April 1925 and two items of properties were included in his suit. There is no dispute with regard to item 1 with which the present appellants have no concern and the whole dispute centres round item 2 which had been mortgaged to defendant 5. During the pendency of this suit for partition a final decree in the mortgage suit of defendant 5 was made on 19th March 1925 and the property was sold on 7th August 1926 and purchased by defendant 5, as the lower <ORG> finds and as is contended for on behalf of the respondent. But it is stated that there were other purchasers who were trustees with regard to some charitable trust : but that is a matter with which we are not concerned and this was not discussed in the <ORG> below. The Receiver was discharged by order of the <ORG> and defendant 5 took possession of the disputed property as purchaser. In the partition suit the two brothers of the plaintiff were defendants 1 and 2 and his mother was defendant 3; defendant 4 was Receiver and defendant 5 was the mortgagee and subsequently became the purchaser.

2. The question which is in debate in this <ORG> and which was the subject-matter of dispute in the <ORG> below is whether the mother is entitled to a fourth share of the property including property No. 2, according to the provisions of the Hindu Law, on a partition being made among the sons. There is one small matter which has not been much debated that a half share of the property is not the ancestral property of the brothers and therefore if the widow of <NAME> is entitled to a share on a partition between her sons she would get a fourth share of item 2. But the real controversy is whether she would get any share under the circumstances of this case. The learned Subordinate Judge has held that the plaintiff and defendants 1 and 2 have got no subsisting right to property No. 2, which has been described as the-Strand Road premises, and their suit for partition with regard to that plot must fail. He has, however, made a decree to this effect that defendant 3, the mother,, would get a fourth share of both the properties Nos. 1 and 2 and the plaintiff and defendants 1 to 3 would each get a fourth share of the property No. 1. As I have already stated that assuming that the learned Judge is right, the lady would be entitled to get an Right share of the property No. 2. But it is contended on behalf of the appellants that under the circumstances of this case the lady would be entitled to get no share in property No. 2. Their case is that the principle of Hindu Law upon which the learned Subordinate Judge has relied is not applicable in this case and that his decision is, therefore, liable to be reversed. On behalf of the respondents-reliance is placed upon the well known case of <NAME> v. <NAME> [1900] 27 Cal. 77. In that case-<NAME>, J., laid down the principle on which according to the Hindu Law the mother is entitled to get a share on a. partition made among the sons born of her womb of the property inherited from the father. The learned Judge after quoting the text from <NAME> observes:

With reference to the above passage front the Dayabhaga, it has been held, and it must now be taken as settled law, that the mother right to claim a share arises only when her sons come to a partition, in other words that she cannot enforce her claim to a share so long her sons remain joint and do not ask for partition. But there is nothing said in this passage or in any other authoritative text of <ORG> as to a mother's right to a share on partition being so absolutely non-existent before partition, that it may be defeated by any of her sons alienating his share before coming to a partition.

3. He then proceeds in this way:

In my opinion the correct view to take of this right would be to hold that it is an inchoate right as long as no partition is come to amongst the sons and it becomes actually enforceable only when the sons come to a partition ; or in other words that the right when it becomes enforceable by reason of a partition being come to among the sons, is [1900] 27 Cal. 77 enforceable not only as against the song, and as regards so much only of the joint property as at the date of partition is in the hands of the sons, but also as against any person deriving title from any of the sons and as regards the property to which they may have so derived title, subject to certain qualifications and limitations.

4. In that case during the pendency of the suit for partition by one of the sons another son sold his share in the joint property. It was held by the <ORG> that by reason of the sale the interest obtained by the purchaser is subject to the rule of lis pendens and that he cannot stand on a higher footing than that of his vendor and when the partition is made, if his vendor was a party to the suit, the mother would get a share: that right cannot be defeated during the pendency of the suit by one of the sons transferring his interest in favour of a third party. This principle has been elaborated in a subsequent case <CITATION>  27 Cal. 551 where <NAME> <NAME>, sitting alone held that this principle is applicable where a stranger to the family purchases the interest of one of the sons and then seeks for partition of the joint family property. The question has again been discussed in the case of <CITATION> A.I.R. 1921 Cal. 351 by <NAME>, <NAME> But the principle has not been carried further than what was laid down by <NAME>, <NAME> In this case the appellants contend that he is entitled to the property by virtue of his purchase in the same state in which it was at the time of the mortgage or, in other words, that any subsequent alienation made by the mortgagor would not affect his interest. That proposition is uncontroverted. But if the mother could get any right in the present suit by reason of the partition, that would not be by the right created by the mortgagor but it would arise under the Hindu Law and I doubt whether the principle enunciated by the appellant would apply to such a case. In this case, in my opinion, the plaintiff had a right to bring the suit for partition at the time when he brought the suit. Although there had been a preliminary decree for partition the title of the plaintiff to his share of the property was not extinguished by that preliminary decree on mortgage but he had still a subsisting interest in the share of the property by reason of succession to his father. The plaintiff's right to bring the suit was not affected. The mother's right to claim a share, however, arises, as <NAME>, <NAME> laid down, only on a partition no matter whether the partition is made amicably or as the result of a decree by a suit The mere bringing of a suit for partition by one of the sons does not confer any right on the mother to have a share, according to the view expressed by <NAME>, <NAME> If the suit for partition is withdrawn the mother cannot claim any share, nor can she insist that the suit must be carried on to a decree. If the partition suit is dismissed by the <ORG> for some reason or other, then the mother would not get any share in the property. It is only when the property is actually partitioned, the mother would get a share equal to that of her sons. She is not even a necessary party to the suit having no interest in the property when the suit is brought. She can only come in to watch the proceedings to safeguard her interest when the partition is effected.

5. Now, it is contended on behalf of the respondent that defendant 5 is bound by the rule of lis pendens as was applied in the case of <NAME> v. Fulkumari Dassi [1900] 27 Cal. 77 cited above. The difficulty in this case is that that principle cannot be applied to this case. Here defendant 5 has acquired the interest of the plaintiff as well as the defendants who had interest in the property. It is a fundamental principle that a man ; cannot sue himself and the defendant standing in the shoes of the plaintiff with regard to this property cannot continue the suit for partition with regard to this very property. The plea therefore, must fall to the ground by reason of the purchase of defendant 5 and, as the learned Subordinate Judge says, the plaintiff and defendants 1 and 2 cannot ask for partition of property 2. That being so, the mother would not be entitled to any share of property No. by reason of the fact that her sons had no interest in the property and this property could not be the subject of partition. Whether she would have a charge for her maintenance against the property in the hands of the purchaser is another matter. That question cannot arise in a suit for partition and if she has any right, the question must be left open to be debated in a subsequent suit.

6. The result, therefore, is that the judgment and preliminary decree of the Subordinate Judge should be modified to this extent that the suit for partition with regard to property No. 2, i.e., the Strand road premises, should stand dismissed and, therefore, any claim of defendant 3 will also stand dismissed, and the appeal is allowed to this extent. The appellant is entitled to his costs from the respondent who has appeared, hearing fee being assessed at three gold mohurs.

<NAME>, J.

7. I agree.