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Judgment
[After dealing with the questions of fact arising in the case their Lordships proceeded as follows--Ed.]
* * * * 2. The only remaining question we have to consider is the question of costs. Though the two decisions reported in Dildar Ali Khan v. Bhawmi Shahai Singh 34 C.P 878 : 5 C.L.J. 642 and Ambica Prosad Singh v. Pardip Singh 28 Ind. Cas. 446 : 42 C.P 451 : 19 C.W.N. 233 follow the English rule and an old case reported in the Weekly Reporter and decide that costs in a partition suit up to the preliminary decree should be left to be borne by the respective parties, we think that, where a partition suit has to be brought for the effecting of a partition between the members of a family and neither party has been guilty of any unfair contention, the costs till the preliminary decree should, as in the case of administration suits, come out of the estate. As regards the costs in appeal, as the defendants have partially failed and partially succeeded, the parties will pay and receive proportionate costs.