JUDGMENT Mitter, J. - Protap Chandra Row Chowdhury was a successful Muktear of the Jangipore Bar. He acquired considerable properties. We do not know what was his income from his properties at the time of his death, but the evidence is that he left about 600 bighas of land, some held in khas and the rest let out to tenants. He died intestate at an advanced age in the year 1908, leaving him surviving his childless widow, Taranga Tarini and three nephews, Panchanan, Purna and Sarat, they being the sons of his predeceased brother Rati Kanta. He brought up his nephews. The eldest became a doctor and was an employee of the East Indian Railway. After retirement from service he settled down in Madhupore in Santhal Parganas, Purna also became a doctor but practiced at Raghunathganj a place adjoining Jangipore, where Pratap had his dwelling house. After Pratap's death he managed the properties on behalf of his widowed aunt Taranga Tarini, till about 1922 or so, when owing to differences between him and his aunt he was removed from management. Up to this time, no property of Protap had been alienated. Some portions of this estate, however, were lost, either by encroachment of the river or by dispossession by the Midnapore Zemindary Company, Ltd. More than two hundred bighas of land were still left and of that area a good portion was held in khas possession from which the lady got bhag produce. The net income of the estate about this time was about Rs. 1,500 a year. Protap not only brought up his nephews but supported his wife's brother Srish, and his family. After Protap's death his widow also maintained her brother and his family who continued to live with her up to about 1925. 2. After Purna had ceased to be her manager, one Bagala Charan Roy, who was previously her Gomostha, looked after her affairs, and continued to be in management of her estate till her death, which occurred on the 9th October, 1929. 3. After the dismissal of Purna, Taranga Tarini distributed printed notices to her tenants and bhagidars asking them not to pay rent or deliver bhag produce to Purna. She also inserted advertisements in the local newspapers to the same effect. This was done in September, 1923. 3. After the dismissal of Purna, Taranga Tarini distributed printed notices to her tenants and bhagidars asking them not to pay rent or deliver bhag produce to Purna. She also inserted advertisements in the local newspapers to the same effect. This was done in September, 1923. It appears differences between her and Purna increased with the result that in 1925 she left her husband's house and went to reside with Bagala in a house nearby in Raghunathganj. There she resided alone with Bagala and had not to maintain her brother's family. Purna tried to obstruct her in the management of her estate. Litigations, mostly in the Criminal Courts, followed. Only a few criminal proceedings were directly between her or her manager Bagala and Purna. Most of them were between the new bhagidars brought by her on the khas lands and the old bhagidars whom she turned out. In those litigations Purna instigated, and it may be, gave assistance to them. There were also some rent suits in which Purna took the side of the recalcitrant tenants. About this time she let out in tenancy most of the khas lands by taking selamis. On the 22nd June, 1925, she sold for Rs. 500, 18 bighas odd land to one Akel Mohammad Biswas by Exhibit C (3). The recital in the kobala is that she required money for meeting the cost of various civil and criminal litigations. There was no further sale till the year 1928. The sales began in February, 1928, and are crowded within a period beginning from that time till the time of her death on the 9th October, 1929. Five days before her death she executed a deed of gift of the properties described in Items Nos. 7 and 8 of Schedule Ka of the plaint to her brother Srish, who in turn sold them to Defendants Nos. 1 and 2 on the 21st November, 1929. By those transfers she alienated all the immovable properties of her husband save and except his dwelling house at Raghunathgunj, which was in the possession of her husband's nephews. 4. On the 28th June, 1940, Sarat as one of the reversioners of her husband filed this suit to recover the properties thus alienated by her. By those transfers she alienated all the immovable properties of her husband save and except his dwelling house at Raghunathgunj, which was in the possession of her husband's nephews. 4. On the 28th June, 1940, Sarat as one of the reversioners of her husband filed this suit to recover the properties thus alienated by her. The suit as originally filed was against twenty-six persons to whom properties had been transferred by her and by her brother, Srish, and covered a large number of properties described in Schedules Ka and Gha attached to the plaint. He made his brothers Panchanan and Purna pro forma Defendants Nos. 27 and 28. On the basis of an application made by him on the 27th November, 1940, which was allowed on the 29th November following, other immovable properties described in Schedules Cha to Tha were added and the persons to whom they had been transferred were added as Defendants Nos. 29 to 46. Defendants Nos. 29 to 31 were sued in their capacity as shebaits of the deity Issur Lakshmi Janardan Thakur. He claimed one-third share in the properties as one of the three reversioners of Protap and claimed possession of the said one-third share by partition with the principal Defendants namely, the Defendants to Whom the widow had transferred or who were in possession then by virtue of purchase made during the widow's life-time, or alternatively for joint possession with them. On the 20th March, 1940, Purna filed his written statement. In that 'written statement he did not deny the allegations in the plaint on which the Plaintiff maintained his claim as a reversioner of Protap, nor the allegations to the effect that the various alienations made by the widow were not for legal necessity, but refuted the Plaintiff's claim to a third share in all the properties included in the plaint and he claimed exclusive title in some of those properties which he specified in his written statement. On the 21st April, 1941, Panchanan (pro forma Defendant No. 27) made an application for being transposed to the category of Plaintiff. His application was allowed on the 6th May, 1941, and he was made Plaintiff No, 2. On the 5th December, 1941; pro forma Defendant No. 28, Purna, made his application for transposition to the category of Plaintiffs. By that application he withdrew his claim to the specific properties mentioned in his written statement. His application was allowed on the 6th May, 1941, and he was made Plaintiff No, 2. On the 5th December, 1941; pro forma Defendant No. 28, Purna, made his application for transposition to the category of Plaintiffs. By that application he withdrew his claim to the specific properties mentioned in his written statement. The application was made beyond twelve years of Taranga Tarini's death. It was allowed on the 13th January, 1942, and he was made Plaintiff No. 3. The prayers made in the original plaint were not, however, amended, but the suit proceeded in the lower Court on the footing that after the said transpositions the suit became a suit for recovery by the three Plaintiffs of sixteen annas share of the properties described in the plaint from the principal Defendants. By his judgment and decree dated the 8th June, 1942, the learned Subordinate Judge decreed the suit in full in favour of Plaintiffs Nos. 2 and 3 and in part in favour of Plaintiff No. 1, Sarat. He held that Sarat had recognised the permanent ijara by accepting rent and so was not entitled to any relief in respect of Items Nos. 1 to 4 of Schedule Ka to the plaint. His claim to the rest of the properties was decreed. Only Defendants Nos. 1, 2 and 29 to 31 have preferred this appeal. Defendants Nos. 1 and 2 are interested in the following properties namely:-- (1) Lot Nos. 1 to 4 of Schedule Ka. (2) Lot No. 5 of Schedule Ka. (3) Lot No. 6 of Schedule Ka and (4) Lots Nos. 7 and 8 of Schedule Ka. 5. Defendants Nos. 29 to 31 are interested in Schedule Ta of the plaint. The other Defendants who are interested in the remaining properties of the plaint have not preferred appeals. 6. Before we deal with the points in controversy in the appeal we propose to set out the title on the basis of which those Defendants Appellants resist the Plaintiffs' claim. 7. Defendants Nos. 1 and 2 claim to retain Lots Nos. 1 to 4 of Schedule Ka on the strength of a permanent ijara granted to them by Taranga Tarini by a potta dated the 22nd April, 1929 (Exhibit G). The consideration was Rs. 600 paid as selami and an annual munafa of Rs. 7. Defendants Nos. 1 and 2 claim to retain Lots Nos. 1 to 4 of Schedule Ka on the strength of a permanent ijara granted to them by Taranga Tarini by a potta dated the 22nd April, 1929 (Exhibit G). The consideration was Rs. 600 paid as selami and an annual munafa of Rs. 50 which was liable to be diminished if the superior landlord enhanced the head rent. Out of the selami Rs. 438 was retained by the said Defendants for payment of arrears of rent for four years then due to the superior landlord and the balance of Rs. 162 was paid to the lady. 8. The recital of legal necessity is that she required money to pay the arrears of rent due to the superior landlord for that property, which she could not pay on account of the expenses of many civil and criminal cases with Purna in which she became involved for maintaining her title and possession the expenses incurred in paying the salaries to her officers and the expenses incurred for her maintenance. 9. They claim Lot No, 5 (a tank) on the basis of a sale deed (Exhibit C 4) which the lady executed in favour of Defendant No. 2 on the 20th January, 1929, for Rs. 200. The recital of legal necessity is worded in a slightly different manner. It is that to meet the costs of the litigations with Purna and others, which were necessary for maintaining her title and not possession, she had to incur heavy debts; that as she had been deprived of her share of the bhag produce on account of the actions of Purna and others, she had become penniless and so could not pay rent due to the superior landlords in the least without recourse to borrowing and still large arrears were due to them and that she needed money for her maintenance and to repay those debts. The special question concerning Lots Nos. 1 to 5 is whether there was legal necessity for the transfers. 10. They claim Lot No, 6 which comprises a tenancy of 18 bighas odd land known as the Beliaghata property, on the basis of a conveyance (Exhibit C 5) which the lady executed in favour of Defendant No. 2 on the 2nd February, 1928, for a sum of Rs. 500. 10. They claim Lot No, 6 which comprises a tenancy of 18 bighas odd land known as the Beliaghata property, on the basis of a conveyance (Exhibit C 5) which the lady executed in favour of Defendant No. 2 on the 2nd February, 1928, for a sum of Rs. 500. In the conveyance she said that it was her stridhan property, but there is also the recital of legal necessity in terms similar to the recitals made in Exhibit C 4. The special questions are two in number, namely, (1) whether it was the lady's stridhan and (2) if not, whether there was legal necessity for the transfer. 11. Their root of title in respect of Lots Nos. 7 and 8 of Schedule Ka is the deed of gift (Exhibit X) which the lady executed on the 4th October, 1929, five days before her death, in favour of her brother Srish. In the document she asserted that the property was her stridhan. The subject-matter was a tenancy comprising 52 bighas odd, known as Shidhari Gopalnagar property. Defendants Nos. 1 and 2 purchased the property from Srish on the 21st November, 1929. The special question is whether it was the lady's stridhan. 12. Defendants Nos. 29 to 31 as shebaits of a deity, are the landlords of the property described in Schedule Ta which was held by Protap in tenancy right at an annual rental of Rs. 27-12-8. They instituted a suit for arrears of rent against Taranga Tarini in the year 1926 and obtained a decree. They purchased the land of the tenancy on the 19th September, 1928, in execution of that decree and obtained delivery of possession through Court on the 2nd December, 1928. The questions concerning this property are two in number, namely: (1) whether the Court sale had the effect of a sale under Chapter XIV of the Bengal Tenancy Act, and (2) whether the Plaintiffs' suit is barred by reason of the special limitation provided for in Article 3 of the Schedule III of the Bengal Tenancy Act. 13. We have indicated above the special questions which arise in the appeal in respect of the different items of property. Before we deal with them we will take up a general question which affects the Plaintiff No. 3's claim in respect of all the aforesaid properties. 13. We have indicated above the special questions which arise in the appeal in respect of the different items of property. Before we deal with them we will take up a general question which affects the Plaintiff No. 3's claim in respect of all the aforesaid properties. It is whether the claim of added Plaintiff No, 3, Purna is barred by limitation. 14. We have already stated that the lady died on the 9th October, 1929, and the suit was instituted by Sarat claiming his one-third share as one of the three reversioners of Protap on the 28th June, 1940. As the suit is governed by Article 141 of the Limitation Act it was filed in time, within 12 years of the lady's death but Purna who was pro forma Defendant No. 27 made his application for transposition more than twelve years after the lady's death. In view of that fact and the scope of the suit as originally filed by Sarat the question is whether Puma's claim is barred by time. The learned Subordinate Judge did not give any reasons in his order by which Purna was transposed. He considered the point of limitation in respect of Plaintiff No. 3's claim in his judgment and held that his claim was not barred by time, as in his opinion the case came within the last part of sub-sec. (2) of sec. 22of the Limitation Act. Though the point is not free from difficulty we prefer to hold otherwise. 15. According to its wording, sub-sec. (2) of sec. 22 of the Limitation Act specifies the exceptions to the substantive enactment contained in sub-sec. (1). It is in substance a proviso to the enactment as made in sub-sec. (1) in the first instance. Leaving out the cases of a Defendant, it contemplates the substitution of a new Plaintiff or addition of a new Plaintiff to the suit. The word suit must in our opinion refer to the suit as originally filed and what that sub-section enacts is that that suit, namely, the suit as originally filed, shall be deemed to have been filed so far as the substituted or added Plaintiff is concerned on the date on which the substitution or addition was made. The exception contained in sub-sec. The exception contained in sub-sec. (2) are, three in number, namely, (a) where the substitution made is by reason of devolution on death of an original Plaintiff or by reason of an assignment by him pendente lite; (b) where a Defendant is transposed to the category of Plaintiffs; and (c) where a Plaintiff is transposed to the category of Defendants. In all these three cases the date of the institution of the suit will be regarded as the relevant date for the purpose of computing limitation. 16. Although transposition involves two processes, namely, striking out a party from one side of the plaint followed by his addition, to the other side of the plaint, that addition is not to be regarded as addition of a new Plaintiff or Defendant as the case may be. As transposition involves the addition, of a Plaintiff or Defendant, as the case may be, to the suit as originally filed, it would in our opinion follow that sub-sec. (2) would be applicable only to those cases where the claim of the person transposed as Plaintiff could have been sustained on the plaint as originally filed, or where the person remaining as Plaintiff after the transposition could have sustained his claim against the transposed Defendant on the basis of the plaint as originally filed. This is in our judgment the principle underlying the decision of the Madras High Court in the case of A.P.K.C. Periakaruppan Chetti and Others Vs. Mottayya Mudali and Others, AIR 1935 Mad 240 and of the Patna High Court in Stirajman Prasad Misra v. Sadamnd Misra I. L. R. 11 Pat. 616 at 623, (1932) and Devi Goa v. Tricumji Jivandas A. I. R. (1933) Pat. 230 at 241, Confining ourselves to the case of transposition of a Defendant to the category of the Plaintiff sub-sec. 616 at 623, (1932) and Devi Goa v. Tricumji Jivandas A. I. R. (1933) Pat. 230 at 241, Confining ourselves to the case of transposition of a Defendant to the category of the Plaintiff sub-sec. (2) would not in our opinion be applicable, where the person transposed as Plaintiff has either to sustain his claim to the subject-matter of the suit, as defined in the plaint as originally filed on a different cause of action a cause of action not pleaded in the original plaint, or where his claim though it may be supported on the cause of action as pleaded in the original plaint, is in respect of a subject-matter which was not included in the original plaint, but is in respect of a different subject-matter which has to be brought in by way of addition after he is transposed. In the last mentioned case for the purpose of limitation his position cannot be better than the position of a Plaintiff who after the period of limitation adds new items of property to his plaint. In this class of cases a Division Bench of this Court has held that the suit should be taken to have been laid as against the added properties on the date on which those properties were added to the plaint by the amendment of the plaint [per Woodroffe and Cuming, JJ., in Manindra Chandra Nandi Bahadur v. Ranglal Mondal A. I. R. 1918 Cal. 443 at 444]. In that case it was pointed out that a case falling within that type, namely, where the amendment of the plaint introduces new properties, is not to be regarded as a case of amendment properly so called, but as if a new plaint was filed on the date of amendment as against the added properties. In our opinion cases of transposition of parties which would come within the last part of sub-sec. (2) of sec. 22 must be of the type of Hossainara Begam v. Rakhimannessa Begam I. L. R. 38 Cal. 342 (1910) or of type of Dwarka Nath Das v. Monmohan Tofadar 19 C. W. N. 1269 (1915). 17. Leaving out the details, the relevant facts bearing upon the question in the first mentioned case was that a co-mortgagee had instituted a suit to enforce the mortgage making the other co-mortgagee a pro forma Defendant. 342 (1910) or of type of Dwarka Nath Das v. Monmohan Tofadar 19 C. W. N. 1269 (1915). 17. Leaving out the details, the relevant facts bearing upon the question in the first mentioned case was that a co-mortgagee had instituted a suit to enforce the mortgage making the other co-mortgagee a pro forma Defendant. The said pro forma Defendant was transposed to the category of Plaintiff more than 12 years after the mortgage money had become due. It was held that sub-sec. (2) of sec. 22 was applicable. 18. In the second case, a suit was brought by a person, who was not the holder to recover money on promissory notes. His case was that the person, Gopinath whose name appeared on the promissory notes as holder was his benamdar. Gopinath was made pro forma Defendant. Later on, but after the period of limitation, Gopinath was transferred to the category of Plaintiff. It was held that Gopinath's claim was not barred by time as sec. 22 (2) was applicable. In each of these cases the subject-matter of the suit from the beginning was the whole of the sum due and by the transposition the subject-matter of the suit was not enlarged either by the addition of a new claim based on a different cause of action or the claim did not become one against other properties not included in the plaint as originally filed. The suit continued in the same shape in which it was before. The cases cited by the Respondents' Advocate for supporting his contention that the claim of Purna is not barred are, with the exception of two cases, of the type of those two cases we have noticed above, though in some of them observations were made that sub-sec. (2) of sec. 22 of the Limitation Act lays down an absolute rule. We do not propose to deal with all of them in detail. Those cases are Nagendra Bala Debya v. Tarapada Acharjee I. L. R. 35 Cal 1065 (1908), Bhujanga Bhusan Mukherjee Vs. Kalidas Das and Others, AIR 1937 Cal 333 , Narsinh v. Vaman Venkatrao I. L. R. 34 Bom. 91 (1909) and Krishna Bai v. Parbati Bai I. L. R. (1944) Nag. 885 . Those cases are Nagendra Bala Debya v. Tarapada Acharjee I. L. R. 35 Cal 1065 (1908), Bhujanga Bhusan Mukherjee Vs. Kalidas Das and Others, AIR 1937 Cal 333 , Narsinh v. Vaman Venkatrao I. L. R. 34 Bom. 91 (1909) and Krishna Bai v. Parbati Bai I. L. R. (1944) Nag. 885 . In AIR 1934 462 (Oudh) it seems that 16 annas of the properties left by the last male owner, Thakur Din Pandey, which was in existence at his widow's death were included in the plaint as originally filed. No new subject-matter was introduced when Defendants Nos. 8 and 10 were transposed to the category of Plaintiffs or by reason of their transposition. This case is, therefore, of the same type as the cases mentioned above. The case of Rayegavda v. Ramlingappa I. L. R. 53 Bom. 472 (1929) was, however, of a different type. The facts were similar to the case before us. At the death of the widow five persons were entitled to the properties as reversioners. The widow had sold the properties to Defendant No. 6 without any legal necessity. The Plaintiff purchased the three-fifths share of three of those reversioners, who were made Defendants Nos. 1 to 3. The fourth reversioner Defendant No. 4 sold his share to Defendant No. 7 but the fifth reversioner Defendant No. 5 did not part with his share. In the suit the Plaintiff prayed for recovery of his 3/5th share from the purchaser from the widow, who was Defendant No. 6, and prayed for partition. It is not clear whether he prayed for partition with Defendants Nos. 5 and 7 or with Defendant No. 6. If his prayer was for getting his share after partition with Defendants Nos. 5 and 7, the subject-matter of the suit as originally filed would be the sixteen annas of the property. In that case the cases relied on by Bakar, J., in coming to the conclusion that sub-sec. (2) of sec, 22 did not bar the claim of Defendants Nos. 5 and 7 to the remaining two-thirds share on partition although the written statement in which that claim was put forward had been filed beyond twelve years of the widow's death, had been, rightly applied, for we have already pointed out the fact that both in case of Narsinh v. Vaman Venkatrao I. L. R. 34 Bom. 5 and 7 to the remaining two-thirds share on partition although the written statement in which that claim was put forward had been filed beyond twelve years of the widow's death, had been, rightly applied, for we have already pointed out the fact that both in case of Narsinh v. Vaman Venkatrao I. L. R. 34 Bom. 91 (1909) and Nagendrabala Debya v. Tarapada Acharjee I. L. R. 35 Cal. 1065 (1908) there was no introduction of a new subject-matter as a result of the transposition. If, however, the prayer was for partition with Defendant No. 6, the purchaser from the widow, that case cannot be distinguished from the case before us as in that case a new subject-matter, namely, a further 2/5th share would be taken to have been added. In that event that case would be an authority for the proposition that the last part of sub-sec. (2) of sec. 22 of the Limitation Act, would be applicable to all cases of transposition, and even when the plaint as originally filed would not have sustained the claim or prayer of the Defendant who had been transposed. This wide view has also been taken by the Patna High Court in Rambeas Tewari and Others Vs. Akhauri Raj Mohan Sahay and Others, AIR 1932 Patna 304 , but we respectfully dissent from that view of the law. It may, however, be observed that in the plaint in that case the entire rent was claimed in the alternative. The view that we have taken does not involve any addition to sub-sec. (2) of sec. 22 of the Limitation Act. It proceeds upon the construction of sub-sec. (1), the point being what meaning is to be assigned to the word "suit" occurring in that sub-section. 19. In the case before us, in his plaint, Sarat prayed for declaration of his one-third share in the properties mentioned in the Schedules to the plaint. He rested his title and made his claim to that share on allegations which would have supported the claim of Purna also but what is of importance is that he asked for possession of his share by partition, not with his brothers who were made pro forma Defendants Nos. He rested his title and made his claim to that share on allegations which would have supported the claim of Purna also but what is of importance is that he asked for possession of his share by partition, not with his brothers who were made pro forma Defendants Nos. 27 and 28, but with the principal Defendants who by virtue of the challenged transfers from the lady or on the basis of events which had occurred in the lady's life-time, were in possession. His alternative prayer was for joint possession with those persons and not with his brothers. The subject-matter of the suit as originally filed was, therefore, one-third share in the items of property mentioned in the Schedules annexed to the plaint. A mere transposition of pro forma Defendants Nos. 27 and 28 to category of Plaintiffs would not have enabled them to get possession of their two-thirds share, for the plaint as originally filed related to a third share in those items of property. They could only get relief after the remaining two-thirds share were brought into the suit. This in essence would be addition to the subject-matter of the suit as filed by Sarat (namely, of the said two-third share) with a claim by them to the subject-matter so added. 20. In essence it would amount to a new-plaint by them in respect of another subject-matter. Their transposition would not be an addition as Plaintiffs "in the suit" which Sarat had filed. If, however, Sarat in his plaint had prayed for possession by partition with them or joint possession with them the position would have been different, for then it could have been said that the subject-matter of the suit as filed by Sarat was 16 annas share of the items of the property described in the Schedules. We have already stated that in his written statement Puma had to some extent preferred an adverse claim to Sarat. That also may have some hearing on the question, but we prefer to rest our decision on the reasons stated above. We, therefore, hold that for the purpose of limitation the relevant dates are the dates on which they, the Defendants Nos. 27 and 28, were transposed ; at any rate the date on which they made their applications for transposition. We, therefore, hold that for the purpose of limitation the relevant dates are the dates on which they, the Defendants Nos. 27 and 28, were transposed ; at any rate the date on which they made their applications for transposition. As the date when pro forma Defendant No. 27 was transposed was within twelve years of the lady's death his claim to the added third share in the items of property described in the Schedules to the plaint is not barred by time, but as the date of the application of pro forma Defendant No. 28 (Purna) for transposition was beyond the time limited by Art. 141 of the Limitation Act his claim to the remaining added one-third share is barred by time. 21. The learned Advocate for the Plaintiff Respondent No. 3 (Purna) contends that the Defendants Appellants are precluded from raising the question of limitation as they had received the costs which the Court had ordered the pro forma Defendant No. 28 to pay to the other Defendants, as a condition precedent to his application for transposition being granted. The facts bearing upon the question so raised by the learned Advocate appearing for Purna are as follows:-- On the 5th December, 1941, Purna made his application for transposition. The Court directed that application to be put for hearing on the 20th December, 1941. On that date the following order (Order No. 50.) was made Defendant No. 28's petition for being made a co-plaintiff is put up. Heard learned lawyers on both sides. ORDER The amendment petition will be allowed on payment of Rs 16/- as costs to the contesting defendants To 5th January, 1942 for orders. 22. The direction was not to deposit the costs in Court. The said Defendant No. 28 paid the said sum of Rs. 16 to the contesting Defendants out of Court and their pleader intimated to the Court that the costs had been paid. The matter was again put up on the 13th January, 1942. On that date the Court recorded the following order :-- Defendant No. 28 files a petition along with a court-fee stamp of Rs 226/- for share of his claim. Costs of amendment Rs 16/- paid. ORDER Amend the plaint and add defendant No. 28 as co-plaintiff. 23. The question as to whether Purna's claim to a third share was barred by time was not considered at this stage. Costs of amendment Rs 16/- paid. ORDER Amend the plaint and add defendant No. 28 as co-plaintiff. 23. The question as to whether Purna's claim to a third share was barred by time was not considered at this stage. It was raised at the time of the final hearing and was decided in the judgment under appeal. In the first place the case before us is not a case where the costs were deposited in Court by Defendant No. 28 and withdrawn by the contesting Defendants, and in the second place the question of limitation was decided later on namely, in the judgment under appeal. 24. The cases lay down the principle that a party who has adopted an order of Court and had acted upon it cannot, after he has enjoyed a benefit under it, turn round later on and challenge the order. It is on this principle that a person who has voluntarily taken the benefit of an order for one purpose, cannot be allowed to challenge it in appeal, because he would not be allowed to contend that it is valid for one purpose and invalid for another. But if the order is so framed as to make it obligatory upon him to receive the benefit, as for instance a sum of money, this principle would not apply [Manilal Guzrati v. Harendra Lal Roy Chowdhwry 12 C. L. J. 556 (1910) and Banku Chandra Bose v. Murium Begum 21 C. W. N. 232 (1916)]. 25. The first thing to consider is whether it was obligatory on the part, of the contesting Defendants to accept the costs, which the Court had directed Purna to pay. The evidence is not clear as to whether the contesting Defendants accepted the cost under protest. We will assume that the Defendant Appellants before us, namely, Defendants Nos. 1 and 2 and 29 to 31 received the said sum of Rs. 16 without protest. In view of the Court's Order No. 50 Pro forma Defendant No. 28 had to pay the costs if he desired to have himself transposed to the category of Plaintiff. Payment by him of the sum of Rs. 16 was necessary but his transposition did not depend according to that order upon the acceptance or non-acceptance of the said costs by the contesting Defendants. Payment by him of the sum of Rs. 16 was necessary but his transposition did not depend according to that order upon the acceptance or non-acceptance of the said costs by the contesting Defendants. In these circumstances it may be a question whether the contesting Defendant's would come within the principle stated above. In Manilal Guzrati's case 12. C. L. J. 556 (1910) a distinction was made between the case where the Court directed payment of costs in Court followed by withdrawal from Court by the party concerned and where the order was for payment to the party direct. In our judgment that is a thin distinction. Probably the decision in that case that the appeal was not barred was really rested on the ground that the acceptance was under protest. In fact it is on that basis that that case was distinguished in Bankim Chandra Bose v. Mariam Bibi 21 C. W. N. 232 (1916) in which Mookerjee, J., who had decided Manilal Guzrzati's case 12 C. L. J. 556 (1910), was also a member of the Division Bench. The facts in the case before us are, however, different. Order No. 50 was an order for transposition only. No question of limitation regarding the claim of Purna was raised or decided in that order or at that stage. There is authority for the proposition that a question of limitation is not to be considered at the stage of addition of a party. It is only after he is added as Plaintiff or Defendant, as the case may be, that the question of limitation relating to his claim or the claim against him as the case may be is to be decided. It has been pointed out that the correct rule of procedure is not to refuse the addition of a party on the ground that if added his claim for relief would be met by the plea of limitation. This principle underlies the expression that "the power to add a party and the duty of that court to dismiss the suit on the ground of limitation are two different questions". [Imanuddin v. Liladhar I. L. R. 14 All. 524 at 528 (1892)] 26. The rule has been clearly expressed in Baldeo Prosad v. Bholanath I. L. R. 52 All 134 (1929). [Imanuddin v. Liladhar I. L. R. 14 All. 524 at 528 (1892)] 26. The rule has been clearly expressed in Baldeo Prosad v. Bholanath I. L. R. 52 All 134 (1929). No doubt the facts of that case were quite different but at page 138 of the report the learned Judges made the following observations : On the other hand the rule laid down in Nathilal v. Lata 9 All. L. J. 410 (1912) is in favour of the appellant. That principle is that in compliance with Order xxxiv rule 1 and Order I rule 9 and rule 10 (2) the Court should add necessary parties and after they have been added apply Section 22 of the Limitation Act to see the result on the relief asked for or against the parties added. 27. Other cases on the subject are noticed under Note No. 2 under Heading No. 13 in Chitaley and Rao's commentary on sec. 22 of Limitation Act (Chitaley and Rao on Indian Limitation Act, Vol. 1, p. 813, 1938 Edition). In our opinion, the same rule ought to be followed in the case of transpositions also. When an application for transposition is made the Court should consider whether it should be allowed, and if so on what terms. It is only after the order for transposition has been made and the party transposed that the Court should consider whether the claim of the transposed party, if he is transposed to the category of the Plaintiff, or the claim against him if transposed to the category of Defendant, is barred by time. In the case before us that has been exactly done, for the question whether Puma's claim was barred by time was considered much later. It was dealt with in the judgment under appeal, The effect of the acceptance of the costs by the Defendants Appellants ordered to be paid to them by Purna by Order No. 50 would preclude them from challenging the order for transposition, but would not in our opinion prevent them from challenging that part of the judgment where the question of limitation is dealt with, for there is no question of their accepting a benefit conferred on them by the decree of the learned Subordinate. Judge, as that decree is wholly against them. We accordingly hold that the claim of Purna to a third share is barred by time. Judge, as that decree is wholly against them. We accordingly hold that the claim of Purna to a third share is barred by time. Subject to what is said hereafter the appeal succeeds in part only. The decree passed by the learned Subordinate Judge must be modified by dismissing Plaintiff No. 3's claim to the items of property which are the subject-matter of the appeal before us. 28. We will now take up the question of legal necessity. The case of legal necessity is substantially the same in regard to all the alienations made by the widow. We do not propose to deal with the question in detail, because we agree with the finding of the learned Subordinate judge. In our judgment the evidence on the record establishes the following facts :-- (1) that the net income of the lady was about Rs. 1,500 per year before the alienations by her began; (2) that the lady got selamis by settling khas land with tenants. This began about the year 1925 or so. How much money she got on account of selamis does not, however, appear from the evidence ; (3) that after she had left her husband's house in 1925 and had gone to live with Bagala her expenses for maintenance and other personal expenses were very moderate and an appreciably large surplus from the net income must have been left ; (4) that the evidence does, not establish that her income from the properties was cut off to an appreciable extent by the hostile actions of Puma and of the dismissed bhagidars and recalcitrant tenants ; (5) that owing to the said hostile actions suits and criminal proceedings resulted. There is no evidence about the number or magnitude of those litigations or the expenses incurred; on the other hand there are indications that those litigations were mostly petty ones--the criminal cases were small disputes concerning possession of lands and the civil cases were suits for rent. There was no suit in which the lady's title was directly challenged nor any litigation which was likely to be an expensive one. There was no suit in which the lady's title was directly challenged nor any litigation which was likely to be an expensive one. It appears that at least some of the expenses of the litigations with the old Bhagidars were borne not by her but by the new Bhagidars she brought upon the land ; (6) that although an attempt was made by the Defendants to establish by oral evidence that she had to incur debts on account of those litigations and other necessary expenses that attempt has failed. The oral evidence so led is not reliable. No documentary evidence is forthcoming. If she had incurred loans the creditors' account books could have been produced by citing the creditors but no such attempt was made by the Defendants Moreover none of the so-called, creditors have been examined as witnesses by the Defendants'. There is thus no evidence to show that she had incurred debts ; (7) the story of Gaya Sradh and of a feast thereafter is entirely false. Pratap died in the year 1908 and it is impossible to believe that his Gaya Sradh was postponed for such a length of time, and (8) the evidence of bona fide enquiry as to legal necessity by the transferees is worthless and cannot be believed. 29. Our conclusion is that the recitals made in the transfer deeds are false. It is the primary duty of a Hindu widow to pay rent out of the income she gets, and the evidence does not establish a state of affairs showing that she could not have paid rent, out of the income. The recitals that she had to incur heavy debts to meet the costs of litigations and management, and that she had no means to maintain herself and was penniless are all false recitals. In our judgment existence of legal necessity has not proved, nor has it been proved that the transferees had made bona fide enquiries about the existence of legal necessity and were satisfied as a result of their enquiries. 30. We will now take up the question relating to the property described in Schedule. The Defendant No. 31 has disclaimed interest therein. It was purchased on the 19th September, 1928, by Defendants Nos. 30. We will now take up the question relating to the property described in Schedule. The Defendant No. 31 has disclaimed interest therein. It was purchased on the 19th September, 1928, by Defendants Nos. 29 and 30 as shebaits of the deities Iswar Lakshmi Janardan Thakur in execution of a decree for arrears of rent which they had obtained as shebaits of the deities. Neither the plaint nor the decree of that rent suit being No. 641 of 1926, has been produced. Certified copies of the sale certificate (Ex. R 1), of the order-sheet of the rent suit (Ex. L 12), of the order-sheet of the rent execution case (Ex. L 10) of the writ for delivery of possession (Ex. O 1.) and the peon report (Ex. P 1) stating that possession had been delivered to the auction-purchasers on the 2nd December, 1928, have been filed. The certified copy of the decree for rent (Ex. L) obtained by the eight annas co-sharers landlords in the year 1899 against Protap shows that the tenancy was held at an annual rental of Rs. 27-12-8 gds. and the sole tenant was Protap. It would follow therefrom that Taranga Tarini was the only tenant of the said tenancy in 1926 when the relevant suit for arrears of rent was filed, and was the sole tenant when, the tenancy was sold at the Court sale to the deities represented by Defendants Nos. 29 and 30. The first question is whether the sale was held or could be held under Chapter XIV of the Bengal Tenancy Act. If the sale had the effect of a sale held under that Chapter, the tenancy itself, whether it was a tenure or a raiyati holding at fixed rate or an occupancy holding, passed at the sale and the reversioners would be bound by the sale, as the widow would be taken to have represented the estate of her husband in the rent suit. In that case the question of legal necessity would not be material, for legal necessity would not be necessary to sustain the claim of the deities represented by Defendants Nos. 29 and 30 to the property. In that case the question of legal necessity would not be material, for legal necessity would not be necessary to sustain the claim of the deities represented by Defendants Nos. 29 and 30 to the property. If, however, the sale was not held under Chapter IV of the Bengal Tenancy Act or in law could not be so held, only the right, title and interest of the lady would pass at the sale, for the execution would be one under the Code of Civil Procedure. The question whether the sale was, or could be held under Chapter XIV of the Bengal Tenancy Act would depend upon the question as to whether the decree for arrears of rent passed in Rent Suit No. 641 of 1926 was as it is popularly called a "rent decree" that is to say, a decree which had maintained the charge created under sec. 65 of the Bengal Tenancy Act. To have that effect that suit for recovery of arrears of rent must be shown to have been instituted by all the landlords as Plaintiffs or if the suit was brought by some of them as Plaintiffs it must be shown that the suit had been framed in accordance with the provisions of sec. 148A of the Bengal Tenancy Act as it stood before the amendment made by Act IV of 1928. The sale certificate Exhibit R (1) shows that the Plaintiffs were Pasupatty Chakravarty and Ramapati Chakravarty as shebaits of the deities Sree Sree Iswar Lakshmi janardar Thakur and the principal Defendant was Taranga Tarini. A number of persons are shown as pro forma Defendants. An inference can be drawn that those pro forma Defendants were the remaining co-sharer landlords. This inference is strengthened by the evidence of Sarat that the deities represented by the shebaits Pasupatty Chakravarty and Ramapati Chakravarty were co-sharer landlords and Elahi Bux was another co-sharer landlord., In fact the property is described in the plaint of the suit, which we have before us, as a tenancy held under Pasupatty, Ramapati and Kamala patty Chakravarty as shebaits of the Idols Lakshmi Janardan Thakur and under Elahi Bux Handle and others. There is no evidence to the contrary. It is, therefore, for the Defendants Nos. 29 and 30 to show that the plaint in that rent suit was framed in accordance with the provisions of sec. 148A of the Bengal Tenancy. There is no evidence to the contrary. It is, therefore, for the Defendants Nos. 29 and 30 to show that the plaint in that rent suit was framed in accordance with the provisions of sec. 148A of the Bengal Tenancy. Act as it stood then. A rent suit would be a suit framed under that section if all the following conditions had been satisfied, namely, (1) all the remaining landlords had been made Defendants; (2) in the plaint the co-sharer landlord Plaintiffs must sue for the whole of the rent in arrear for the entire tenure or holding, not only for what was due to them in their share, but also what was due to the shares of the co-sharer landlords made Defendants ; (3) that they can claim their share only when they are unable to ascertain whether anything was due for the period sued upon to the remaining co-sharer landlords on account of the latter's neglect or refusal to inform them. Even in such cases the decisions lay down that the suit would not be regarded to be one framed under sec. 148A unless a further statement had been made in the plaint to the effect that the Plaintiffs believed that the arrear in respect of the whole tenure or holding was what they were claiming in their share. 31. There are many reported cases which show that although a co-sharer landlord intended to frame his suit for rent under sec. 148A by making the remaining landlords Defendants his object was not fulfilled by the reason of the technical defect that there was no statement in the plaint to show that what he was claiming as due to him represented according to his information the whole of the arrears due in respect of the entire tenancy. In the case before us the plaint of the rent suit has not been produced by Defendants Nos. 29 and 30 and having regard to what we have stated above we cannot presume that the suit was framed in terms of sec. 148A from that the fact that other co-sharer landlords had been made pro forma Defendants to the suit. There is also no evidence that those pro forma Defendants were all the remaining co-sharer landlords. 29 and 30 and having regard to what we have stated above we cannot presume that the suit was framed in terms of sec. 148A from that the fact that other co-sharer landlords had been made pro forma Defendants to the suit. There is also no evidence that those pro forma Defendants were all the remaining co-sharer landlords. It is on these grounds that we hold that the decree passed in that suit has not been proved to have the effect of a "rent decree." We may add that we cannot support the view of the learned Subordinate Judge that the judgment of this Court in Civil Revision Case No. 231 of 1930 (Exhibit 6) established that the decree in that suit had the effect of a money decree. The proceeding arose out of an application by a sub tenant to set aside the sale. Such an application could at that time be made only under Or. 21, r. 90 of the CPC for at that time sec. 174 of the Bengal Tenancy Act was different from sec. 174 as it is now after the amendment by Act IV of 1928 as sub-sec. (3) was not there. We have already held that there was no legal necessity as it has not been shown that Taranga Tarini was unable to pay the arrears of rent from out of her income. 32. The remaining question in respect of this item of property is whether the claim of the reversioners (the Plaintiffs) is barred by the two years' rule of limitation presented by Article 3 of Schedule (sic) of the Bengal Tenancy Act. 33. We may take it that the view that the dispossession of the tenant by the landlord must be qua-landlord and not through the agency of the Court in order to attract that Article is not now the generally accepted view. But that Article applies only to cases of recovery of possession by a raiyat or under-raiyat. The tenancy must, therefore, be a raiyati or under-raiyati holding. If the subject-matter of the suit is a tenure that Article would not apply, but the appropriate Article in the Indian Limitation Act--generally Article 142 would apply. But that Article applies only to cases of recovery of possession by a raiyat or under-raiyat. The tenancy must, therefore, be a raiyati or under-raiyati holding. If the subject-matter of the suit is a tenure that Article would not apply, but the appropriate Article in the Indian Limitation Act--generally Article 142 would apply. The period of limitation would not in that case be two years from the date of dispossession but twelve years under Article 142, and the suit was instituted within time even if Article 142 was the proper Article to apply. We are not at present considering Article 141. There is no evidence on the record that the tenancy was a raiyati or under-raiyati one. In fact in the rent Suit No. 641 of 1926, the status of the tenant was left open (order-sheet in the rent suit (Exhibit L 12). Even if the tenancy had been proved to be a raiyati or under-raiyati one we would have held Article 141 of the Indian Limitation Act and not Article 3 of Schedule III of the Bengal Tenancy Act to be applicable. Dispossession implies a tortuous act. The turning out of Taranga Tarini by Defendant Nos. 29 and 30 as auction-purchasers through the process of Court was a lawful act, for the decree in execution of which they purchased was a good decree against Taranga Tarini. As long as Taranga Tarini was alive their possession was lawful. Retention of possession by them after Taranga Tarini's death was in the circumstances of the case unlawful, but only by invoking a fiction their continuance in possession after Taranga Tarini's death, can be held to be dispossession, that fiction in our opinion is not admissible. The view we are taking is supported by the decision in Srish Chandra Bhaduri v. Brojobashi Pramanik 48 C. L. J. 554 (1928) and Muni Lal Jha v. Nath Sahay Singh I. L. R. 9 Pat 634 (1929). 34. The last question that remains to be considered is whether Items Nos. 6, 7 and 8 of Schedule Ka to the plaint were the stridhan properties of Taranga Tarini. We will take up Item No. 6 separately. 35. The document by which it was originally purchased has not been produced. We do not, therefore, know whether the title deed stood in Protap's name or in the name of his wife Taranga Tarini. 6, 7 and 8 of Schedule Ka to the plaint were the stridhan properties of Taranga Tarini. We will take up Item No. 6 separately. 35. The document by which it was originally purchased has not been produced. We do not, therefore, know whether the title deed stood in Protap's name or in the name of his wife Taranga Tarini. The onus is on the Plaintiff to prove that it was Protap's property as their claim to it as reversioners of Protap has been denied in the written statement. Sarat and Purna in their examination-in-chief stated generally that the properties in suit belonged to Protap. That general statement does not carry great weight and no implicit reliance can be placed on their testimony as they are vitally interested in the suit. Nor can any reliance be placed on the evidence of D. W. 5 Abdul Aziz Biswas as he is not a competent witness on this point and besides being an officer of Defendants Nos. 1 and 2 is equally interested in supporting the case of his master. The recital in the conveyance Exhibit C 5 by which Defendant No. 2 purchased it from Taranga Tarini is no evidence against the reversioners of Protap. The positive evidence is that the property belonged originally to Protap Kansari who sold it away. His son Jamini Mohan Kansari has been examined. He states that his father sold it to Protap about 40 years back for a little cash and undertook to pay the arrears of rent then due to the superior landlord which amounted to Rs. 100 or so. An unwilling witness Bhujanga Bhusan Roy examined by the Defendants admitted in cross-examination that the lands in Mausa Balighata belonged to Protap. The property is known as the Balighata property being situate in the Mauza of that name. This witness was Gomostha of the superior landlord from 1914, and was so competent to speak in whose name the property originally stood in the landlord's Sheristha. Defendant's witness No. 5 Abdul Aziz gives out in his evidence that at the time of the purchase by Defendant No. 2 from Taranga Tarini the latter showed them documents showing this piece of land and other lands to be her stridhan properties. No document in respect of the property has been produced by the Defendants Nos. 1 and 2. Defendant's witness No. 5 Abdul Aziz gives out in his evidence that at the time of the purchase by Defendant No. 2 from Taranga Tarini the latter showed them documents showing this piece of land and other lands to be her stridhan properties. No document in respect of the property has been produced by the Defendants Nos. 1 and 2. It strikes us as strange that those Defendant's did not insist on the original documents being made over to them, and to say the least did not even think it necessary to have copies thereof. In this state of the evidence we hold that this item of property was Protap's. 36. Item Nos. 7 and 8 go together, and have been designated in the evidence on the Shidhori-Gopalnagar properties. 37. The first item is in Mouza Shidhori and is a tenancy covering 10.43 acres and held at a rental of Rs. 57-12. The second item is a tenancy covering 1.25 acres in Mauza Gopalnagore hearing a rental of Rs. 5. Both these items were purchased on the 21st January, 1902, by the kobala, Exhibit C from Bahar Ali Mondal. The name of Taranga Tarini appears in the instrument as the purchaser. She must, therefore, be presumed to be the owner until the contrary is proved. The case of the Plaintiffs is that she was benamidar for her husband Protap. The fact that her father was poor and that it was unlikely that she got any sum of money from her father or from her father's side is not conclusive to prove that she had no funds of her own. The learned Subordinate Judge rightly points out that her husband being in comparatively affluent circumstances the possibility of her having money sufficient enough for that purchase cannot be ruled out. 38. Sarat in his evidence tries to make out a motive for a benami purchase by Protap. He, however, admits that Protap did not purchase any other property in benami either before or after this purchase but states that this purchase was made by Protap in the benami of his wife as at that time Protap had a litigation with Gour Das Dhar pending in the High Court. He admits that Protap had no debts at the time and that he won that suit. There is no evidence about the nature of the suit or that the stakes were high. He admits that Protap had no debts at the time and that he won that suit. There is no evidence about the nature of the suit or that the stakes were high. In these circumstances we hold in agreement with the learned Subordinate Judge that (sic) for a benami has not been made out. The fact that Protap was not in the habit of making benami purchases is also a relevant element, though by itself it has not great weight. The direct evidence on the point of benami is the evidence of P. W. 7, Anadi Bhusan Roy. His evidence is so unreal that we cannot believe him, though the Subordinate Judge has recorded favourable remarks on his demeanor in the witness box. He remembers the details of a transaction which had occurred 40 years ago, although he had left Jangipur shortly thereafter. He was a dependant of Protap earning a small salary of Rs. 15 a month at the Toll Office. It is unlikely that Protap would approach a man like him for accommodation. His explanation is that Protap needed Rs. 100 as accommodation, because having already drawn money from his postal Savings Bank Account during that week he could not draw money again during that week by reason of the Postal Savings Bank rules. This explanation is worthless, because the conveyance was executed on a Tuesday and was not registered till the week following. To make out a case that he had the ability to pay he stated that he had inherited some money from his father which he kept in a Postal Savings Bank account. We refuse to believe that Protap required a short time accommodation or if he required it, would approach the witness for it. There is thus no evidence on the record to rebut the presumption arising from the tenor of the sale deed Exhibit C Even there has been slight evidence in support of benami we would have agreed with the learned Subordinate Judge. The apparent must be presumed to be the real and so we hold that it has not been established by the Plaintiffs that these items of property were Protap's. 39. The result is that this appeal succeeds in part. The claim of all the Plaintiffs in respect of Items Nos. The apparent must be presumed to be the real and so we hold that it has not been established by the Plaintiffs that these items of property were Protap's. 39. The result is that this appeal succeeds in part. The claim of all the Plaintiffs in respect of Items Nos. 7 and 8 of Schedule Ka of the plaint is entirely dismissed and the claim of plaintiff No. 3 (Puma Chandra Roy Chowdhury) is also dismissed in its entirety in respect of the remaining properties which are the subject-matter of the appeal before us, namely, in Items Nos. 1 to 6 of Schedule Ka and in the property described in Schedule Ta annexed to the plaint. Plaintiffs Nos. 1 and 2 would have their 2/3rd share declared in the last mentioned properties, namely, Items Nos. 1 to 6 of Schedule Ka and the property described in Schedule Ta. Plaintiffs Nos. 1 and 2 would get joint possession of the properties in Items Nos. 5 and 6 with Defendants Nos. 1 and 2 and joint possession of the property described in Schedule Ta with the deity represented by its shebaits Defendants Nos. 29 and 30, Plaintiff No. 2 (Panchanon) would get joint possession in respect of his one-third share in properties Nos. 1 to 4 of Schedule Ka with Defendants Nos. 1 and 2 but the Plaintiff No. 1 (Sarat) would get from those Defendants 1/3rd share of the ijara rent payable on the basis of the ijara potta Exhibit G. Regarding costs of the appeal. 40. Plaintiff No. 3, Purna, would pay as costs of the appeal to the Defendants Appellants one-third of the hearing-fee payable under the rules. He is not to pay the costs of the paper-book. The Defendants Appellants must pay one-fourth of the hearing-fee payable according to the rules to Plaintiff Respondent No. 1, Sarat and one-fourth of the like amount to Plaintiff Respondent No. 2, Panchanan, Parties must themselves bear their respective costs of the paper-book Regarding costs of the suit. 41. As Plaintiff No. 3, Purna's claim has been entirely dismissed as against the Defendants Appellants he cannot have any costs against them. He must pay on the other hand, Rs. 200 to the Defendants Appellants before us as costs of the suit. 41. As Plaintiff No. 3, Purna's claim has been entirely dismissed as against the Defendants Appellants he cannot have any costs against them. He must pay on the other hand, Rs. 200 to the Defendants Appellants before us as costs of the suit. As a result of this Puma would get costs of the suit against the other Defendants who have not appealed, save and except Defendant No. 4 which we assess at Rs. 166 8. As Defendants Nos. 29 and 31 have not succeeded in the appeal as against the Plaintiffs Nos. 1 and 2, the order for costs as made against them and in favour of the Plaintiffs Nos. 1 and 2 by the lower Court must remain. As Defendants Nos. 1 and 2 have succeeded in the appeal as against the Plaintiffs Nos. 1 and 2 in respect of Items Nos. 7 and 8 of Schedule Ka of the plaint, the decree for costs in their favour has to be modified. They the said Defendants Nos. 1 and 2 are to pay only half of the amount mentioned in the Schedule of costs calculated in favour of the Plaintiffs Nos. 1 and 2 to those Plaintiffs and not 3/4 thereof as had been decreed by the the learned Subordinate Judge. Subject to the aforesaid modifications including the modification in the order for costs the decree of the learned Subordinate Judge is affirmed. Sharpe, J. I agree.