JUDGMENT Banerjee and Geidt, JJ. - This is a second appeal from a preliminary decree determining the shares of the parties in a partition suit; and the question raised on behalf of the Defendants, Appellants, is whether the Court of Appeal below has determined the share of the Plaintiff correctly under the Mahomedan Law. 2. At the hearing of the appeal a preliminary objection is raised or behalf of the Plaintiff, Respondent, that the appeal ought to fail, as the final decree in the partition suit has since been made and has not been appealed against, although the time for appealing has long expired. 3. We are of opinion that this objection should not prevail. The law allows an appeal from a preliminary decree in a partition suit: see the decision of the Full Bench in the case of Dulhin Golap Koer v. Radha Dulari Koer ILR (1892) Cal. 403. 4. The Appellants are therefore entitled to prefer this second appeal and to ask us to determine the question raised in it, leaving it to the parties to see what the effect of the Appellants not having appealed against the final decree in the suit may be. Possibly they may yet appeal against that decree, though out of time, because the law allows a party to prefer an appeal after the time ordinarily allowed for doing so has expired, if he can satisfy the Appellate Court that there was good and sufficient cause for not preferring it within the time allowed by law. 5. Coming now to the merits of the appeal, we find that the Lower. Appellate Court has held that the Plaintiff, as the surviving widow of Pir Buksh, is entitled to the whole of the estate left by Pir Buksh and that the estate left by Pir Buksh was 2/3 of that left by his wife, Bechun Bibi, the remaining 1/3 having been devised by Bechun Bibi by will in favour of her sister's illegitimate son, Tunu ; we should rather have said the remaining being all that could have been validly bequeathed by Bechun in favour of Tunu. 6. 6. This decision, the learned vakil for the Defendant-Appellant contends, is erroneous in law, because he argues that under the Mahomedan Law a spouse is not entitled to any return and that all that Pir Buksh was entitled to was of 2/3 of Bechun Bibi's estate after deducting as validly bequeathed by her to Tunu ; and that the Plaintiff as widow of Pir Buksh was entitled only to 1/4 of what Pir Buksh inherited, or, in other words, that the Plaintiff was entitled only to 1/4 of 1/3 or 1/12 of Bechun Bibi's share, instead of 2/3, which the Court of Appeal below has awarded to her. And in support of this contention he relied upon that portion of the Sirajiyyah which deals with the return, where it is said that, in the absence of residuaries, the surplus amount, after assignment of shares to the sharers, is returned to the sharers according to their respective rights, except the husband or wife and where there is no other heir the surplus goes to the Public Treasury. But although that was the original rule, an equitable practice has prevailed in modern times of returning to the husband or to the wife in default of other sharers by blood and distant kindred (see Shama Charan Sarkar's Al Sirajiyyah, p. 17). And this view has been accepted and followed as correct in the case of Mahomed Arshad Chowdhry v. Sajida Banoo ILR (1878) Cal. 702. That being so, as there is no dispute with regard to the Plaintiff being the only heir of Pir Buksh, the whole of Pir Buksh's estate must be held to have passed by inheritance to the Plaintiff. 7. The question then remains, what was the extent of Pir Buksh's share in Bechun Bibi's estate? It is contended for the Appellant that Pir Buksh was not the sole heir of Bechun Bibi, but that her sister's illegitimate son, Tunu, was in the line of heirs, as illegitimacy is, under the Mahomedan Law, no bar to a person inheriting from his mother and his maternal relations. This is so and it is supported by the authorities cited (see Baillie's Digest of Mahomedan Law, pages 391 and 414). This is so and it is supported by the authorities cited (see Baillie's Digest of Mahomedan Law, pages 391 and 414). Upon this point the learned Vakil for the Respondent contends, upon the authority of the case of Sahebzadee Begum v. Mirza Himmut Bahadaor (1869) 12 W.R. 512, that according to the Shiah Law of Inheritance an illegitimate child does not inherit from his mother or his maternal relations. Now in the first place, it is not clear how far that case is an authority for the proposition in support of which it is cited. What was held there was that the Plaintiff had no right to inherit the estate of his illegitimate brother. But, be that as it may, it is not shown that the parties to this case are Shiahs. It is not even alleged before us in the argument that they are so and in the absence ' of any such allegation, there is a presumption that the parties are Sunnis, to which sect the great majority of the Mahomedans of this country belong, as has been pointed out by Baillie in the Introduction to his Digest of the Imameea Law. That being so, we must hold that Tunu was an heir of Beehun Bibi and that Pir Buksh was not entitled to more than by inheritance. This view is in accordance with that taken in the case of Koonari Bibi v. Dalim Bibi ILR (1884) Cal. 14. But, if that is so, it would follow that Tunu could not claim by bequest from Bechun : for, according to Mahomedan Law, a bequest in favour of an heir is invalid without the consent of the other heirs. That being so, the estate left by Bechun vested by inheritance in two persons--her husband Pir Buksh and her sister's illegitimate son Tunu--the husband being entitled to . The share of the Plaintiff, therefore, will be of Bechun's estate inherited by her through Pir Buksh. 8. The decree of the Lower Appellate Court must therefore be modified by reducing the share of the Plaintiff from 2/3 to . The parties will be entitled to costs in proportion.