JUDGMENT D.N. Mitter, J. - This is an appeal by the Plaintiff against a preliminary decree for partition and accounts as well as for the administration of the estate of the ancestors of the Plaintiff and the Defendant who died possessed of considerable moveable and immoveble properties. The relationship between the parties to the suit is shown in the genealogical table which is annexed to the plaint. (See pages 26 and 27 of the first part of the Paper-Book). It appears from the said table that the Plaintiff who is now the Appellant before us is one of the five sons of Govinda Sundar Singha Choudhury whose estate is the subject-matter of partition in the present suit. Govinda Sundar executed a Will which is printed at page 1 of the second part of the Paper-Book on the 27th January, 1920, just three days before his death which happened on the 30th January of the same year. By the Will, after providing for several legacies as well as for the expenditure in connection with a Sanskrit Tol which was to be established on the Southern Bank of the tank called Shaitgerya, Govinda directed that the residue of his movable properties was to be divided in equal shares among his four sons and two grandsons by a predeceased son. There was a provision in the Will that there was to be no partition of the immoveable properties. The present Plaintiff who is one of the sons instituted the suit in which this appeal arises, praying amongst other reliefs for the construction of the Will, for partition of the movable and immovable properties and for accounts. Substantially, eleven reliefs were claimed in the plaint. It will be necessary to deal specifically with some of the reliefs regarding the accounts at a later stage as the question in controversy turns particularly on the mode in which reliefs had been granted by the Subordinate Judge with reference to accounts. By the terms of the Will Plaintiff himself was one of the co-executors along with his other three brothers who are Defendant No. 1, Defendant No. 2 and Defendant No. 5 as also his nephews Gopiballav and Radhaballav, Defendants Nos. 3 and 4, who are the sons of the testator's predeceased son Haray Krishna. By the terms of the Will Plaintiff himself was one of the co-executors along with his other three brothers who are Defendant No. 1, Defendant No. 2 and Defendant No. 5 as also his nephews Gopiballav and Radhaballav, Defendants Nos. 3 and 4, who are the sons of the testator's predeceased son Haray Krishna. It appears that the probate of the Will was obtained a short time after the death of the testator, and it is alleged that some of the sons, in particular Defendants Nos. 1, 2 and 5, were managing the estate for the period after the death of the testator and before the executor's had obtained the probate and taken possession of the estate. Among the immoveable properties of which the testator died possessed, there were certain properties which he held jointly with strangers to the suit. Although with reference to those properties partition was sought for in the present suit, the Subordinate Judge has directed that they should be left joint, as the strangers who are interested in the said undivided properties are not rightly impleaded in the present suit. Defendants who are the testator's grandsons filed separate written defences to the suit. One of the substantial defences taken by some of the Defendants was that the suit for partition does not lie, as there is a provision in the Will to which reference has already been made of putting restriction on partition. On the other hand, some of the other sons, in particular Defendant No. 5, alleged in the written statement that the restriction on partition was invalid and that he had no objection to the estate being partitioned. The plaint alleged in the matter of accounting that the Plaintiff was not aware of the full particulars of the movables and immovable properties of the estate and prays for discovery thereof from the Defendants Haray Ram, Hari Chaitanya and Ram Ram, that. is, Defendants Nos. 1, 2 and 5 as also of the dealings of the said Defendants in connection with their respective and joint management. The plaint further states in paragraph No. 35 that some movable properties, including money belonging to the estate which is left by the testator, came into the hands of the Defendants. is, Defendants Nos. 1, 2 and 5 as also of the dealings of the said Defendants in connection with their respective and joint management. The plaint further states in paragraph No. 35 that some movable properties, including money belonging to the estate which is left by the testator, came into the hands of the Defendants. It was also alleged that Defendant No. 5, Haray Ram Singha Chaudhury, used to look after the properties during the testator's life-time and the said Defendant has not accounted for his dealings with the movable and immovable properties which belonged to other Defendants also. With regard to this allegation, Defendants Nos. 1 and 2 who had subsequently taken probate and who were two of the executors. contended that they were only liable to account from after the period when they took probate and took possession of the estate. In this connection it should be mentioned that the probate was granted to Defendants Nos. 1 and 2 on the 7th August, 1920, and the probate was actually issued on the 9th October, 1920. The defence of Defendant No. 5 which is material to be noticed for the controversy in the present appeal turns on the defence he has taken, namely that after his father's death he had nothing to do with the management of the estate sought to be partitioned and that he renounced his executorship and that he is not liable to render any account as asked for in the plaint. This defence, as will be seen hereafter, has prevailed with the Subordinate Judge of the Court below with the result that as against Defendant No. 5 the claim for accounts has been dismissed. 2. Before proceeding to deal with the points which have been raised in this appeal, it is also necessary to mention a few salient facts. It appears that on the 29th August, 1925, Ram Ram Singha Chaudhury, Defendant No. 2, had applied for being appointed a common manager in respect of the estate. Defendant No. 1 also made a similar application, but it appears that Defendant No. 2 was appointed the common manager and the Plaintiff has asked for accounts against Defendant No. 2, Ram Ram, of his dealings with the estate as common manager. See prayer No. 6 of the plaint. Defendant No. 1 also made a similar application, but it appears that Defendant No. 2 was appointed the common manager and the Plaintiff has asked for accounts against Defendant No. 2, Ram Ram, of his dealings with the estate as common manager. See prayer No. 6 of the plaint. It is also necessary to mention in particular that in prayer No. 9 of the plaint the Plaintiff asked for discovery of the full particulars of the moveable and immoveable properties. Prayer No. 10 of the plaint was for partition of the estate by metes and bounds into five equal parts after final administration of the estate and allotment to the parties entitled to such orders in severalty and absolutely. Prayer No. 11 asked for such directions, accounts and enquiries or orders as may be necessary to afford complete relief to the parties. 3. The pleadings in the case raised a number of issues which arose for decision in the case. It is not necessary to refer to all the issues, for the point in controversy in the present appeal relates to the issues with regard to the liability of Defendants Nos. 1 and 2 for accounting as well as the liability of Defendant No. 5 for accounting. Issue No. 4 refers to the footing on which the Defendant No. 1 should be held to be liable to account to the Plaintiff on the basis of wilful default and devastavit as alleged in the several paragraphs of the plaint. There was an issue also as to what properties does the estate of the late Govinda Sundar consist of. 4. All these issues were decided by the Subordinate Judge in a careful judgment where he has discussed all the points which arose for decision. He has passed a preliminary decree for partition of the moveable and immoveable properties. He has directed accounts against Defendants Nos. 1 and 2 He has also, with regard to the accounting, directed that the misappropriated moveables will form the subject-matter of accounts. See page 170 of the first part of the Paper-Book. He has, however, as has already been stated, dismissed the claim for accounts as against Defendant No. 5. He has given no order for costs, but he has directed the Plaintiff to put in the costs for appointment of a Commissioner to effect a division by metes and bounds as also for taking of account. He has, however, as has already been stated, dismissed the claim for accounts as against Defendant No. 5. He has given no order for costs, but he has directed the Plaintiff to put in the costs for appointment of a Commissioner to effect a division by metes and bounds as also for taking of account. The Plaintiff not being satisfied with the judgment and decree of the Subordinate Judge in so far as it related to accounts and also regarding the direction that some of the properties to which the strangers are interested should be kept joint, has preferred this appeal to this Court; and seven points have been taken before us by Mr. Ramaprosad Mukerji who appears for the Appellant. 5. In the first place it has been contended before us that the decree of the Subordinate Judge should be varied by directing accounts against Defendants Nos. 1 and 2 on the footing of wilful default. It is alleged that there are allegations in the plaint which would justify a prayer for accounts on the footing of wilful default, and there is an express prayer to that effect. See prayer (5) which runs as follows:-- For an account on the footing of wilful default to be taken by and under the directions of this Court (High Court) in respect of the dealings of the said Defendant Hari Chaitanya and Ram Ram as executors of the said estate. 6. His complaint is that although an issue was raised specifically with regard to the mode of accounting (see issue No. 3), the Subordinate Judge committed an error in this respect--seeing that he has directed accounts on the ordinary footing against Defendants Nos. 1 and 2 and it is stated that there is at least one allegation in the plaint as has been noticed by the Subordinate Judge which would justify the claim for accounts on the footing of wilful default. The allegation on which this prayer for accounts on the footing of wilful default is made is based on the following circumstances. It is said that the sum of Rs. 5000 was lent to one Sourindra Babu on a mere hand-note at an interest of six per cent. per annum shortly after the Great European War. The allegation on which this prayer for accounts on the footing of wilful default is made is based on the following circumstances. It is said that the sum of Rs. 5000 was lent to one Sourindra Babu on a mere hand-note at an interest of six per cent. per annum shortly after the Great European War. Seeing that there is nothing to show that the testator used to lend such largo sums on similar terms, the burden of proof undoubtedly lies on the Plaintiff. The rule with regard to accounting by executor on the footing of wilful default is stated accurately in the treatise on the Law of Executors and Administrators, Volume II, 12th Edition, by Sir Edward Vaughan Williams. The rule is stated as follows:-- The burden of proof is on the party alleging wilful default, and he must show not only a loss, but a loss under such circumstances as to show default on the part of the executor or administrator. 7. See page 1293. It is said further that :-- Where wilful default has been alleged and a case is made for it on the pleadings, an account on the footing of wilful default can be directed either at the hearing, or trial of the action, or at any subsequent stage. This rule does not, however, apply to the case of a breach of trust. 8. See page 1292 of the same book. The only circumstance on which the claim for accounts on the footing of wilful default is based is with regard to the loan in favour of Saurindra Babu. The burden of proof being on the Plaintiff. it was for him to have examined Saurindra Babu to explain the circumstances under which this loan was taken, but Saurindra Babu has not been examined in the case and the Sub-ordinate Judge apparently did not think it right to pass a decree on the footing of wilful default in the absence of Saurindra Babu. A question might still arise as to whether the mere fact of the the lending of Rs. 5000 with an interest of six per cent. per annum on a hand-note to a gentleman of the position of Saurindra Babu would in itself amount to an allegation as to sustain the claim for accounts on the footing of wilful default. A question might still arise as to whether the mere fact of the the lending of Rs. 5000 with an interest of six per cent. per annum on a hand-note to a gentleman of the position of Saurindra Babu would in itself amount to an allegation as to sustain the claim for accounts on the footing of wilful default. But after accounts have been taken by the Commissioner and if, as the result of this investigation, it appears that there has been a wilful default with regard to this item or in respect of any other item, there would be nothing to prevent the Appellant from applying at a subsequent stage of proceedings for a claim for accounts on the footing of wilful default. Such a course is permissible as would appear from what is stated at page 1292 of the Treatise on Executors and Administrators by Williams. The is what the learned author states there:-- If the statement of claim alleges wilful default, but the judgment at the trial gives no relief on that footing, but does not dismiss the claim for that relief, the Court can, at any subsequent stage of the proceedings, upon evidence of wilful default, direct further accounts and inquiries on that footing. 9. It does not appear in the present case that the Subordinate Judge has dismissed the claim for accounts on the footing of wilful default in express terms. On the other hand, from the observations which he makes in his judgment (in the portion which is printed at page 163 of the first part of the Paper-Book) namely, that as he had decided to pass an account decree against Defendants Nos. 1 and 2, it was not necessary for him to deal any further with that alleged transaction at that stage, especially as Saurindra Babu had not been examined, it would appear that he has practically left the question open. We do not think at the present stage that we should give full effect to the contention of the Appellant and direct at this stage that accounts should be taken on the footing of wilful default. We do not think at the present stage that we should give full effect to the contention of the Appellant and direct at this stage that accounts should be taken on the footing of wilful default. All that we say is that if at any subsequent stage a case of wilful default is made out, it would be open to the Appellant to apply to Court for final decree and for amendment of the order of the mode in which accounts against Defendants Nos. 1 and 2 should be taken. In other words, if it appears in the course of proceedings before the Commissioner as well as before the Court dealing with the preliminary decree that there has been some case made out showing negligence or wilful default on the part of Defendants Nos. 1 and 2 in the management of the estate, the Appellant will be at liberty to apply to the lower Court, it being, however, distinctly understood, as has already been indicated, that the burden of proving wilful default or negligence on the part of the executors lies on the Plaintiff. 10. With regard to accounts which have been ordered against Defendants Nos. 1 and 2, a cross-objection has been preferred to this Court on behalf of Defendant No. 1. The Appellant raised a preliminary objection to the hearing of the cross-objection on the ground that the cross-objection was not filed in time as contemplated by Or. 41, r. 22, of the Code of Civil Procedure. It appears that an application was made by Defendant No. 1 for extending the time for filing the cross-objection as the Court is entitled to do in an exceptional case, having regard to the provisions of Or. 41, r 22. The learned Judges who dealt with that application on the 10th March, 1933, allowed it, subject to any just exception being taken at the time of the hearing. But this was a procedure which should not have been followed, having regard to what has been said by their Lordships of the Judicial Committee of the Privy Council in the case of Brij Indar Singh v. Kanshi Ram ILR 45 Cal. 91: S.C. 22 C. W. N 169 (1917) that applications of this kind should be dealt with at the time when they are made and should not be left over for determination till the hearing of the appeal. 91: S.C. 22 C. W. N 169 (1917) that applications of this kind should be dealt with at the time when they are made and should not be left over for determination till the hearing of the appeal. Be that as it may, we have in the circumstances to determine as to whether a sufficient cause has not been made out in order to entitle Defendant No. 1 to have this cross-objection heard. An affidavit was filed on behalf of the said Defendant stating that be filed this cross-objection within one month of the date when he had actually got the notice of the appeal. It is stated in the said affidavit that the notice of appeal was not personally served on the Respondent-Defendant No. 1 inasmuch as he came to know of the filing of the appeal from others and he filed the cross-objection within one month from that date. This affidavit was not controverted on behalf of the Appellant. In these circumstances "we do not think that a case has not been made out for extension of time for filing of the cross-objection. We will accordingly entertain the cross-objection and proceed to deal with the merits of the same. 11. The cross-objection is directed against that portion of the decree of the Subordinate Judge which directs that as between Defendants Nos. 1 and 2, each will be responsible to the other for the consequence of his misconduct. See page 164, lines 22 and 23 of the first part of the Paper-Book. It is contended on behalf of the cross-objector that this is not the proper form in which the Court should have made the order. It is said that the proper form of the order should be as was directed in the case of Satya Kumar Banerjea v. Satya Kripal Banerjee 10 C.L.J. 503 (1909), which was cited before us. At page 515 of the report the learned Judge, Mr. Justice Asutosh Mookerjee, stated the principle applicable to cases of this description and referred to a passage in Williams on Executors, Vol. II, page 1467 (edition not given). The learned Judge said this:-- The principle applicable to cases of this description is thus stated in a work of high authority. [Williams on Executors Vol. Justice Asutosh Mookerjee, stated the principle applicable to cases of this description and referred to a passage in Williams on Executors, Vol. II, page 1467 (edition not given). The learned Judge said this:-- The principle applicable to cases of this description is thus stated in a work of high authority. [Williams on Executors Vol. II, page 1467) a devastavit by one of two executors or administrators will not charge his companion, provided he has not intentionally or otherwise contributed to it, for the testator's having misplaced his confidence in one, shall not operate to the prejudice of the others Williams v. Nivan, [1840] 2 Beav. 472. It is, however, the duty of all executors to watch over and, if necessary, to correct the conduct of each other, and an executor who stands by and sees breach of trust committed by his co-executor, becomes responsible for that breach of trust. [Styles v. Guy, [1848] 1 Mac. & G. 422 (433) Morton v. Brockleyhurst [1858) 29 Beav. 504. When, therefore, the accounts of the estate are taken, with regard to each disputed transaction, the conduct of each of the executors must be examined and his special liability, it' any, determined. 12. We think having regard to the view taken in the case just referred to, the proper order to make is that when the accounts of the estate are taken with regard to each disputed transaction, the conduct of Defendants Nos. 1 and 2 must be examined and the special liability of the one or the other Defendant, if any, will be determined. We have heard the argument of the learned Advocate for the Appellant contesting this position taken against the co-Respondent, but we are not impressed by his argument; and we think that the proper order to make in this case is as has just been indicated that the Court passing the final decree will determine the respective liability of Defendants Nos. 1 and 2 in view of the observations which we have made. To this is extent the cross-objection succeeds. 13. The second ground taken in the appeal is that the suit for accounts as against Defendant No. 5 should not have, in any event, been dismissed in its entirety and the prayer No. 9 of the plaint should have been allowed as against Defendant No. 5. To this is extent the cross-objection succeeds. 13. The second ground taken in the appeal is that the suit for accounts as against Defendant No. 5 should not have, in any event, been dismissed in its entirety and the prayer No. 9 of the plaint should have been allowed as against Defendant No. 5. It is said that for the purpose of determining the assets, the movables or immovables which existed at the time of the testator's death for the purpose of taking accounts as against the executors Defendants Nos. 1 and 2, it will be necessary to find out what those assets were and if any of the two executors Defendants Nos. 1 and 2 be found to have misappropriated any of the moveables, the Court shall direct that he will have to account for such misappropriation. It is contended that having regard to the frame of the plaint--the allegations made in paragraph No. 35 of the plaint --there is no reason why a similar order should not be passed with regard to Defendant No. 5. Paragraph No. 35 of the plaint states that the Plaintiff is unaware of the full particulars of the movable and immovable properties of the estate and claims discover; thereof from the Defendants Haray Ram, Hari Chaitanya and Ram Ram as also dealings of the said Defendants in connection with their respective and joint management. Some movable properties including money belonging to the estate which is left by the testator came into the hands of the Defendants Haray Ram, Defendant No. 5, who used to look after the properties during the testators life-time and the said Defendant had not accounted for the same. In so far as the last portion of paragraph No. 35 of the plaint is concerned, we are of opinion that having regard to the evidence in this case and the time when the present suit was instituted, it is not right that we should direct an enquiry as to the movables which Defendant No. 5 might have possessed during the testator's life-time which he has not accounted for. Surely Defendant No. 5, as well as Defendants Nos. 1 and 2, are liable to account for any misappropriation with regard to any movables which descended to them on death of their father Gobinda Sundar. Surely Defendant No. 5, as well as Defendants Nos. 1 and 2, are liable to account for any misappropriation with regard to any movables which descended to them on death of their father Gobinda Sundar. As has been pointed out in a case which was taken in appeal from this Court to the Privy Council and affirmed by the Judicial Committee that in an ordinary suit for partition of joint family property, in the absence of fraud or other improper conduct, the only account the karta is liable for is as to the existing state of the property divisible, and the enquiry directed by the Court must be in the manner usually adopted to discover what in fact the property now consists of. See the case of Parmeshwar Dube v. Gobind Dube ILR 43 Cal. 459: S.C. 20 C.W.N. 25 (1913). It is pointed out in that case that for the purpose of finding out what the property is at the time of the partition it will be necessary to enquire what the assets were at the material date, namely, at the date of the death of Gobinda. As Mr. Justice Fletcher points out: " The parties have no right to look back and claim relief against past inequality of enjoyment of the members of other matters. But of course this does not mean that the parties are bound to accept the statement of the karta as to what the properties consist of. That would not be an account at all. The karta is the accountable party and the enquiry directed by the Court must be conducted in the manner usually adopted to discover what in fact the property (not what the karta says it) now consists of." Mr. Justice Richardson who delivered a separate judgment in this case pointed out that the mode of accounting should be as laid down by the Judicial Committee in the case of Shookmoy Chandra Das v. Monohari Dassi L.R. 12 IndAp 103, 111 (1885). Having regard to these observations, we are of opinion that for the purpose of ascertaining what the existing assets were at the time of the partition, it will be necessary to ascertain what the movables were at the time of the testator's death. Having regard to these observations, we are of opinion that for the purpose of ascertaining what the existing assets were at the time of the partition, it will be necessary to ascertain what the movables were at the time of the testator's death. As a matter of fact, if any specific enquiry is to be directed as against Defendant No. 1, we do not see any reason why a distinction should be made in this behalf between the cases of Defendants Nos. 1 and 2 on the one hand and Defendant No. 5 on the other. The learned Subordinate Judge in his judgment directs that the mis-appropriated movables will form the subject-matter of accounts as against Defendants Nos. 1 and 2. See page 17 of the first part of the Paper-Book. We think that the same order should be made with regard to Defendant No. 5. Defendant No. 5 will have to show what movables came into his possession at the time of his father's death and to account for the same. If it is found that he has misappropriated the movables and the said movables were not used for joint family purposes, he will have to account for them on the footing of wilful default. To this extent the claim with regard to accounts is allowed. As a matter of fact, there is a prayer for the discovery of the full particulars of movable and immovable properties which is decreed both against Defendants Nos. 1 and 2 and also against Defendant No. 5. This point succeeds to the extent which we have just indicated. 14. The third point taken is that the Plaintiff should not be made liable to account. The form of the decree is this:-- '" It is further ordered and decreed that those executors, namely the Plaintiff and the Defendants 1, 2, 3, and 4, do render accounts of their administration of the estate as directed in the judgment both as executor, as Common Manager or otherwise and that a Commissioner be appointed to take and examine such accounts of Defendants Nos. 1 and 2, 3 and 4. 15. We do not see any reason why any discrimination should be made between the case of the Plaintiff who is one of the executors and the case of Defendant No. 1 who is also one of the executors and who has been made liable to account. 1 and 2, 3 and 4. 15. We do not see any reason why any discrimination should be made between the case of the Plaintiff who is one of the executors and the case of Defendant No. 1 who is also one of the executors and who has been made liable to account. This is a suit for partition and the position of the parties is one of the nature of counter-claimants. If one party asks for accounts, the other parties are equally entitled to ask for accounts. There is no substance in this ground and it must fail. 16. The fourth ground taken is that the learned Subordinate Judge has committed an error in leaving certain properties joint. These are properties which were possessed by Gobinda Sundar in common with strangers who are not parties to the present suit; and although the general rule is that a suit for partition must embrace all the joint properties, there are certain recognised exceptions to the said rule. One of them is that where properties are held jointly by all the co-sharers with strangers who cannot conveniently be added as parties to the suit for partition between members of the joint family, such joint properties should be excluded from partition as forming an exception to the general rule. This is one of the recognised exceptions. The same thing is pointed out in the case of Rajendra Kumar Bose v. Brojendra Kumar Bose 37 C.L.J. 191 (1922) where this exception is recognised and the question has been elaborately discussed and we need simply to refer to it. This is really a rule of convenience and it does not seem right that a stranger who might be interested in a very small fractional part should be made to appear in the trial of the suit for partition between the members of a joint family in order that that very small fraction of the joint family properties may be specifically determined. There is good sense in this exception to the rule and we see no reason to depart from this rule. This ground must also fail. 17. The fifth ground which was taken was that Defendant No. 5 who was managing the estate was taken possession of, after their father's death and the time when the estate was taken possession after issue of the probate by Defendants Nos. This ground must also fail. 17. The fifth ground which was taken was that Defendant No. 5 who was managing the estate was taken possession of, after their father's death and the time when the estate was taken possession after issue of the probate by Defendants Nos. 1 and 2 should be made liable to account as an executor de son tort. The difficulty we feel in entertaining this objection is that this case did not find any place in the plaint as originally filed. An attempt was made in the Court below to amend the plaint. The application for amendment was rejected and then the Appellant did not take any step to move this Court against that order rejecting the prayer for amendment. Besides, it appears that the application for amendment was made at a very late stage in the case. Many questions will have to be considered with reference to the position now taken up as to whether the amendment would deprive the parties of a valuable right which they might have secured by reason of the statute of limitation and question may arise whether the trustee de son tort is an express trustee within the meaning of sec. 10 of the Limitation Act,--authorities were cited before us in support of the proposition that a trustee de son tort is an express trustee within the meaning of sec. 10 of the Indian Limitation Act. But having regard to the fact that the amendment was not allowed and no steps were taken to get that order rejecting the prayer for amendment set aside, we do not think that we should permit the Respondent to take this point affecting the question of limitation. This ground must also fail. 18. The sixth ground is that there is no direction with regard to costs. Now the ordinary rule in suits for partition is that all costs up to the time of preliminary decree are borne by the parties themselves. That rule has been stated in the case to which we have already referred as also in the subsequent cases of this Court. Now the ordinary rule in suits for partition is that all costs up to the time of preliminary decree are borne by the parties themselves. That rule has been stated in the case to which we have already referred as also in the subsequent cases of this Court. In the case of Satya Kumar Banerjee v. Satya Kripal Banerjee 10 C.L.J. 503 (1909) the rule stated with regard to costs is that ordinarily in a suit for partition pure and simple, the parties are to bear their own costs of the suit up to the stage of the preliminary decree; but when the Defendant contests the right of the Plaintiff to claim partition, he may be liable for costs unnecessarily incurred by reason of his or her unfounded opposition. It does not appear in this case that there has been any contest on the question of title. All that some of the Defendants stated in their written statements is that on a proper construction of the Will of the testator there could be no partition of the properties of Gobinda Sundar and that is founded on the clause which puts a restriction on partition. But while some of the Defendants maintained that position another Defendant,, namely Defendant No. 5 maintained the position that such a clause putting restriction on partition was invalid and he wanted a partition of the said properties. It is very difficult to discriminate with regard to the question of costs which might have been awarded in this particular case as after all costs are determinable on the construction to be put upon the Will. We do not think that this contention should be given effect to. On this question it appear-- that the Subordinate Judge has directed that the Commissioner appointed at the suggestion of the Plaintiff should take accounts and effect the partition. With regard to these costs up to the preliminary decree the proper order should be that the costs up to the preliminary decree should be borne by the parties in equal shares. In other words these costs should really come out of the estate and in passing the final decree the Subordinate Judge will bear in mind these observations in the matter of costs. 19. In other words these costs should really come out of the estate and in passing the final decree the Subordinate Judge will bear in mind these observations in the matter of costs. 19. The seventh ground taken is that the direction given by the Subordinate Judge with regard to the Receiver's account (the Plaintiff having been appointed Receiver after the institution of the suit) as against Defendant No. 2 is erroneous. What the Subordinate Judge has done is that he has directed the Commissioner to take accounts of the Plaintiff Receiver along with other accounts as the executor of the Will for the period prior to the institution of the suit. The Plaintiff has been appointed Receiver. Ordinarily his accounts as Receiver is taken separately after the disposal of the suit or when occasion arises. So we think we should modify the order of the Subordinate Judge and direct that the accounts of the Plaintiff as Receiver should be taken by the Subordinate Judge separately and this matter of accounting should not be relegated to the Commissioner. 20. The portion of the order of the Subordinate Judge on this head is that the Commissioner who will be appointed to take accounts from the executors' Will in proper time take accounts from the Receiver also. We vary this order and direct that the accounts of the Receiver must be taken by the Subordinate Judge and not by the Commissioner. The Commissioner's ordinary work should not be further complicated by this additional work of taking Receiver's account. 21. Subject to the variations indicated In our judgment, the decree of the Subordinate Judge will stand. The appeal is partly allowed and partly dismissed. The Plaintiff Appellant is entitled to one-third of the costs of this appeal as against Defendant No. 5. We assess the hearing-fee at 10 gold mohurs. The cross-objection is partly allowed. No order is made as to costs of the cross-objection. Patterson, J. I agree.