JUDGMENT : STANLEY, J. The principle laid down in the case of Nasratullah v. Mujibullah, [1891] I.L.R., 13 All., 309 appears to us to govern this case. In that case it was held that where a decree declaring a right to partition has not been given effect to by the parties and the decree has become by lapse of time or otherwise unenforcible, it is competent to the parties or any of them, if they continue still to be interested in the joint property, to bring a fresh suit for a declaration of their right to partition. In the course of their judgment the learned Chief Justice, Sir JOHN EDGE, and one of us stated as follows:— “It appears to us that when a decree declaring a right to partition has not been given effect to by the parties proceeding to partition in accordance with it, it is competent for the parties or any of them if they still continue to be interested in the joint property, to bring another suit for a declaration of a right to a partition in case their right to partition is called in question at a time when by reason of limitation or otherwise they cannot put into effect the decree first obtained. In this respect suits for declaration of right to partition differ from most other suits, so long as the property is jointly held, so long does a right to partition continue. When a person having a right to partition and desiring to partition, has his right challenged, it appears to us he can maintain a suit for a declaration, provided his prior decree is not still enforcible.” As it appears to us the right to enforce partition is a legal incident of a joint tenancy and so long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the joint property. For these reasons the Courts below have erred in dismissing the suit. We must therefore allow the appeal. For these reasons the Courts below have erred in dismissing the suit. We must therefore allow the appeal. As the case in both the lower Courts was determined upon a preliminary point, we set aside the decrees, remand the suit to the Court of first instance through the lower appellate Court, with directions that it be re-instated in the file of pending cases, in its original number and be disposed of on the merits.- Costs here, including fees in this Court on the higher scale, and hitherto will abide the event.