JUDGMENT Caspersz, J. - This is an appeal in a suit for partition instituted by Peary Mohun Roy, one of the sons of the late Babu Mohini Mohun Roy, who died intestate on the 10th September 1898 leaving a very considerable estate including Government Promissory Notes of the value of eight lakhs of rupees. Mohini Mohun Roy left four sons, Dakshina Mohun, Defendant No. 1, Annoda Mohun, Defendant No. 2, Peary Mohun, the Plaintiff in this action, and Radhica Mohun, the Defendant No. 3, and also a widow Tripura Sundari, the Defendant No. 4, who preferred the appeal now before us. The four sons obtained a succession certificate from the District Judge of Alipur and, in pursuance thereof, on the 11th January 1899, divided the Government Promissory Notes amongst themselves, each brother taking notes to the nominal value of two lakhs of rupees but entering the same as "haolat" (loan) in the joint account. 2. It appears, however, that the family continued joint until the 1st August 1900 when Dakshina Mohun separated himself in food and residence from his brothers. Again, on the 11th December 1900 the Defendant No. 2, Annoda Mohun, separated in food from Peary Mohun and Radhica Mohun. On the death of Dakshina Mohun, which event occurred on the 6th June 1901, his widow, Sindhu Bala Debi, became entitled to his interest in the estate. That lady conveyed all her interest to her daughter's son and reversioner Kshitish Chandra Acharyya Chowdhury. In the meantime, the suit for partition, out of which this appeal arises, was instituted by one of the sons of Mohini Mohun; and the question raised in this suit, so far as Tripura Sundari, the widow of Mohini Mohun, who was one of the Defendants, was concerned, put shortly, is this was Tripura Sundari entitled to claim a one-fifth share in the Government Promissory Notes which were left as part of his estate by Mohini Mohun Roy but which were appropriated on the 11th January 1899 by the four sons of Mohini Mohun Roy soon after his death and before the partition of his other properties, both moveable and immoveable. On this point, the learned Subordinate Judge framed the second issue which runs thus: Is the Defendant No. 4 (Tripura Sundari) entitled to one-fifth share of the Government Promissory Notes and moveable divided amongst the sons? On this point, the learned Subordinate Judge framed the second issue which runs thus: Is the Defendant No. 4 (Tripura Sundari) entitled to one-fifth share of the Government Promissory Notes and moveable divided amongst the sons? Was there such a partition amongst the sons as to entitle the mother to a fifth share in the estate? The learned Subordinate Judge has answered this issue in the negative; and, in passing preliminary decree for partition (1901-1904), directed, among other matters, that the estate, save and except the Government Promissory Notes and certain shawls (which were also divided between the sons), should be divided into 5 parts. Hence this appeal was preferred by Tripura Sundari. She, however, died on the 21st July 1905, and was represented upon the record by Hridoy Kant Bhattacherjee, executor under her Will, under an order of a Judge of this Court. 3. For the contesting Respondents two preliminary objections have been advanced, namely, (1) that the appeal has abated by reason of no application for substitution of a legal representative in place of Tripura Sundari, the Appellant, having been made within the statutory period, and (2) that Tripura Sundari's right to appeal did not survive in her legal respresentative, within the meaning of sec. 365, read with sec. 582, C. P. C. We shall deal in the first place with these preliminary points. 4. As already stated, Tripura Sundari died on the 21st July 1905 leaving a Will and Codicil. On the 14th August of the same year, Hridoy Kant Bhattacherjee, the executor under the Will, applied for Probate (as appears from an affidavit of the said Hridoy Kant) and, on the 22nd December, such Probate was granted to him. In the meantime, however, no application was made to this Court for substitution of his name as the legal representative of the Appellant Tripura Sundari; and it was not until the 18th April 1906 (i. e., after the statutory period of six months), that an application was presented by him, supported by an affidavit of one Abinash Chandra Moitra for that purpose and for the purpose of being allowed to pay in the costs of preparation of the paper-book in the appeal case; and an order was made by a single Judge of this Court such as Hridoy Kant prayed for. It was, however, an ex parte order and it does not appear that the application was made after notice to the Respondents; and looking at the application itself, no explanation whatsoever was offered why no attempt was made to have Tripura Sundari represented in the appeal in proper time; and it does not appear that the attention of the learned Judge was specifically drawn to the fact that the application for substitution was made after the expiry of the statutory period and that the appeal was liable to be abated. In these circumstances, it is quite open to us to consider, when objection has been raised by the Respondents, whether the appeal should now abate. And being of that opinion, and finding that the affidavit that was presented on the 18th April 1906 was insufficient, we called upon Hridoy Kant to file a fresh affidavit and petition. Two affidavits, one after another, have now been filed on his behalf, and there is a counter affidavit by the other side. 5. We need hardly say that there was nothing to prevent Hridoy Kant from applying for substitution of his name as the legal representative of Tripura Sundari within the statutory period, if such application was supported by a proper affidavit; and if the application had been opposed by the opposite party, the Court might have, under sec. 367 of the Code, decided who should be admitted to be such legal representative for the purpose of prosecuting the appeal; or the Court might have stayed the appeal until probate of the Will of Tripura Sundari was obtained. Such a course was not adopted by Hridoy Kant, and one does not understand why, even after probate was granted to him he did not take prompt steps to have his name substituted in place of Tripura Sundari. When the Probate was granted, there was still a month for him to apply before the expiry of the statutory period. He did not avail himself of this month, but waited until the 18th April 1906, when his application was made. 6. When the Probate was granted, there was still a month for him to apply before the expiry of the statutory period. He did not avail himself of this month, but waited until the 18th April 1906, when his application was made. 6. Referring then to the two affidavits which have now been presented on behalf of Hridoy Kant-one of these affidavits being by himself-as also to the affidavit by the other side, we are bound to say that the explanation now offered for the great delay that occurred in applying to this Court for substitution of the name of Hridoy Kant in place of Tripura Sundari is eminently unsatisfactory. In the first place, we observe that there is an apparent discrepancy between the statement as made in the 4th para, of Hridoy Kant's petition, dated the 6th December 1906 (supported by an affidavit), and the 5th para, of that person's own affidavit, dated the 11th December 1906, in the matter of the money that was required to be deposited in Court for preparation of the paper-book in the case. In the first-mentioned paper, it would appear that Hridoy Kant was able to raise the money in the month of April, but not before then, while, according to the other document, he was not in possession of the funds required, and, therefore, he had to arrange with a vakil for the preparation of the paper-book and to pay the costs by instalments. This matter bears, to some extent at least, upon the question whether he was not in a position to make his application for substitution and payment of the money required to be deposited in Court before April 1906. This matter bears, to some extent at least, upon the question whether he was not in a position to make his application for substitution and payment of the money required to be deposited in Court before April 1906. In the next place, it seems to be plain enough, upon the affidavit of the opposite party, that Hridoy Kant applied in different Courts for the substitution of his name in place of the deceased lady; one of these applications being even before Probate was obtained of the Will; and the other being in the proceeding out of which another Appeal No. 305 of 1906,The judgment in that appeal (which was delivered on the same day) is reported at p. 239 of this volume which is also now before us, arises, thereby negativing the story now told that he was not in possession of the paper in connection with the estate left by Tripura Sundari, and that he was, therefore, ignorant that any application for substitution had to be made in this case. In the third place, it seems upon the affidavits of both parties, that Hridoy Kant was in possession of funds from which he might have, if he had chosen, paid in the costs of the preparation of the paper-book in this case. In the fourth place, we find, upon the exhibits annexed to the affidavit of the other side, that Hridoy Kant omitted to mention the Government Promissory Notes, the subject-matter of this appeal, in the valuation paper connected with the estate, "moveable and immoveable property of Tripura Sundari" that was filed in the Probate case. In the fifth place, we observe it stated in the affidavit of Hridoy Kant (see para. 14) that it was not until April 1906 that he sought the advice of certain vakils as to the course he should adopt in this case, thereby indicating clearly that till then he had not made up his mind whether he should prosecute this appeal. And there was good reason why he could not apparently make up his mind, and to this matter we proceed now to refer. 7. The Government Promissory Notes formed part of the corpus of the estate, left by Mohini Mohun Roy, which notes the Subordinate Judge held, had already been divided by his four sons and could not be brought into partition in this partition suit. 7. The Government Promissory Notes formed part of the corpus of the estate, left by Mohini Mohun Roy, which notes the Subordinate Judge held, had already been divided by his four sons and could not be brought into partition in this partition suit. If Tripura Sundari had been alive to prosecute this appeal, a Serious question would, no doubt, have arisen whether the Court below was not wrong in holding that she had acquiesced in the division of the Promissory Notes in question on receipt of a monthly allowance of Rs. 500, and that such acquiescence was a bar to those notes being now brought into partition, when there is sufficient property left after the partition of those notes, from which her maintenance could be paid. However that may be, now that Tripura Sundari is dead, such a question can hardly arise; for, as correctly stated in the judgment of the Court below, when the Hindu law prescribes a share being allotted to a woman upon a partition after her husband's death, it is a share given to her simply in lieu of maintenance, and that such share reverts, according to the Bengal School, upon her death, to those heirs of her husband, out of whose portion the said share was taken [see Kedar Nath Coondoo v. Hemangini Dassi I. L. R. 13 Cal. 336 (1886)]; so that Tripura's claim to a share in the Promissory Notes in question apparently come to an end upon her death, and necessarily the right of prosecuting the appeal did not survive in her legal representative. It was probably upon this consideration that Hridoy Kant did not think it necessary to seek the advice of eminent vakils of this Court for some months together after Tripura's death, as to the advisability of prosecuting this appeal, and incurring costs for that purpose. Upon all these considerations, we are of opinion that no sufficient cause has been shewn before us why no application was made for the substitution of the name of Hridoy Kant Bhattacherjee in place of Tripura Sundari within the statutory period and the result must be that this appeal should abate:-[See in this connection Raj Chunder Sen v. Ganga, Das Seal ILR 31 Cal. 487 (1904)]; and we order accordingly. Costs to the Respondents Rs. 200.