JUDGMENT 1. THIS is an appeal from an appellate decree. The defendant Nos. 1 and 2 are the appellants The subject matter of challenge is a remand order dated December 4, 1982, passed by the learned district Judge, Howrah, allowing an appeal preferred by the plaintiff, being Title Appeal no. 206 of 1982. 2. THE suit properties set out in the two schedules to the plaint along with other properties admittedly once belonged to behari Lal and his brothers. Behari Lal died in the year 1928, leaving behind a widow Parbatimoyee and two daughters Ushangini and Brajabala. Brajabala is defendant No. 1 and brajabala's daughter bakshmibala is defendant No. 2. After the death of Behari Lal, admittedly there was a partition between Parbatimoyee, widow of Behari Lal and the other co-sharers. Such partition was effected by a registered Deed of Partition dated August 6, 1928. By this Deed of Partition admittedly the suit properties were allotted to Parbatimoyee. Admittedly again, both Brajabala and Ushangini for self and the natural guardian of her minor son ramdas. Ghosal were made parties to this deed of Partition. Ushangini died in the year 1951. Parbatimoyee died in 1954. Before her death Parbatimoyee executed a deed of Gift in favour of Brajabala, defendant no. 1, who in her turn transferred some of the properties to her daughter lakshmibala. There were further transfers in (favour of defendant Nos. 3 to 9. In that background Ramdas Ghosal, son of Ushangini instituted Title Suit No. 38 of 1977 for a declaration that the purported transfer of properties by Parbatimoyee and brajabala and all subsequent transfers thereto were void, illegal fraudulent, collusive and not binding upon the plaintiff and for injunction. In seeking such a relief, the plaintiff Ramdas pleaded that by the Deed of Partition dated August 6, 1928, Parbatimoyee, Ushangini and Brajabala were only given life interest for enjoyment of the suit properties while the entire 16 as. Title thereto was given to the plaintiff subject to the life interest in favour of the said three ladies. According to the plaintiff, both parbatimoyee and Ushangini being dead, brajabala may claim only a life estate to the extent of 1/3rd share, she was not entitled to any further right by virtue of the gift from parbatimoyee, nor could she transfer any right, title and interest in the suit property on her turn in favour of her daughter lakshmibala. According to the plaintiff, both parbatimoyee and Ushangini being dead, brajabala may claim only a life estate to the extent of 1/3rd share, she was not entitled to any further right by virtue of the gift from parbatimoyee, nor could she transfer any right, title and interest in the suit property on her turn in favour of her daughter lakshmibala. 3. THIS suit was contested by the present appellants, defendant Nos. 1 and 2. Their specific defence was that on the death of behari Lal his widow Parbatimoyee inherited the entire estate left by Behari Lal. By the dead 6f Partition no right, title and interest could be transferred in favour of any of his reversioners when the question who would really be the reversioner remained uncertain. Their further defence was that the Deed of Partition was a pure act of partition between the co-sharers; Brajabala anal Ushangini were made parties thereto only by way of confirming perfect they further claimed that on the death of parbatimoyee, her sole surviving daughter brajabala inherited the estate left by Behari Lal in the year 1954 and that the right, title and interest which she acquired by such inheritance became absolute after the Hindu succession Act came into force so that ramdas, the plaintiff acquired no title thereto. 4. ON the pleadings several issues were framed by the learned trial judge. Parties having adduced evidence, the learned trial judge on the interpretation of the Dead of partition held that the said Deed neither could nor did purport to -confer any right, title and interest on the plaintiff Ramdas as claimed. He accepted defence plea that, that was a Deed for partition simpliciter as between the then co-sharers including parbatimoyee. Ushangini and Brajabala were merely confirming parties to that partition. Accordingly, the learned judge over-ruled the plaintiff's claim of title based on the aforesaid Deed of Partition dated august 6, 1928, Incidentally he went into an issue as to whether Ramdas could claim title to the suit property as a reversioner on the death of Parbatimoyee though he found that on the pleading such an issue does not arise for consideration. He held that Ramdas cannot come in the line of succession because Ushangini died before the death of parbatimoyee and Brajabala succeeded to the estate left by Parbatimoyee on her death in the year 1954. He held that Ramdas cannot come in the line of succession because Ushangini died before the death of parbatimoyee and Brajabala succeeded to the estate left by Parbatimoyee on her death in the year 1954. The plaintiff preferred an appeal The learned District Judge upheld the finding of the learned Subordinate Judge to the effect that the Deed of Partition dated August 6, 4928, was a partition simpliciter as between the then co-sharers including Parbalimoyee and that plaintiff Ramdas acquired no right, title and interest in the suit property by virtue of the said Deed. . It appears, however, that at the hearing of the appeal a prayer was made on behalf of the plaintiff appellant Ramdas that he should be given an opportunity to amend the plaint and claim title by inheritance from Beharilal by way of reversion on the death of Parbatimoyee. The learned District Judge did not go into the question whether the plaintiff ramdas could claim as such in law as a reversioner of Beharilal because according to him that would require adjudication on evidence after such a case is duly pleaded in the plaint. The learned District Judge, however, took the view that it would be just and proper to give the plaintiff an opportunity to plead and prove such a case and his claim should not be overruled only because of the defective pleading. Accordingly, the judgment and decree passed by the learned Subordinate Judge being set aside, the suit was remanded giving liberty to the plaintiff to amend the plaint to plead a case of inheritance in respect of the suit property from Beharilal as the next reversioner on the death of Parbatimoyee. Feeling aggrieved, the defendant Nos. 1 and 2 have preferred the present appeal. 5. MR. Mukherji appearing in support of this appeal has raised two points. In the first place it has been contended by Mr. Mukherji that Ramdas the plaintiff was a party to the Deed of Partition dated August 6,1928, and on the terms thereof defendant no. 1 Brajabala alone inherited the estate left by Beharilal on the death of Parbatimoyee. What Brajabala got by virtue of the said Deed of Partition was an absolute estate and, as such, Ramdas can no longer put forward any claim as a reversioner. Secondly, it has been contended by Mr. 1 Brajabala alone inherited the estate left by Beharilal on the death of Parbatimoyee. What Brajabala got by virtue of the said Deed of Partition was an absolute estate and, as such, Ramdas can no longer put forward any claim as a reversioner. Secondly, it has been contended by Mr. Mukherji that even according to the Hindu law as prevailing at the time of Parbatimoyee's death, that is, before the hindu Succession Act, Brajabala being the sole surviving daughter was the preferential reversioner and, as such, inherited the estate Left by Beharilal on the expiry of the life estate by Parbatimoyee. Both points thus raised by Mr. Mukherji have been seriously contested by Mr. Mitter appearing on behalf of the plaintiff/respondent. According to Mr. Mitter even upon the concurrent findings of the two courts below the Deed of Partition dated August 6, 1928 was a simple Deed of Partition as between the then co-sharers including Parbatimoyee, it purported to confer no title on any reversioner, more so when the reversion itself was uncertain. Such would be the position, according to Mr. Mitter, even on independent construction of the Deed of partition. Therefore, according to Mr. Mitter, if the plaintiff had failed to derive any title by the said Deed; the defendant no. 1 Brajabala too can derive no title thereby. So far as the second point raised by Mr. Mukherji is concerned, according to Mr. Mitter, Brajabala being a daughter who was the mother of a daughter only, she was excluded from inheritance. Therefore, when Parbatimoyee died in the year 1954 the estate left by Beharilal devolved upon his the then reversioner, namely, Ramdas, the sole surviving daughters son of the deceased Beharilal. 6. WE have carefully considered both the points thus raised by Mr. Mukherjee and seriously contested by Mr. Mitter. So far as the first point raised by Mr. Mukherji is concerned, we have carefully read the Deed of Partition dated August 6, 1928. We feel no hesitation in upholding the concurrent finding of the two courts below, namely, that it was a simple Deed of Partition as between the then co-sharers including parbatimoyee. No doubt Brajabala and ushangini were parties to this Deed of partition and Ushangini also joined as the guardian of. Ramdas Ghosal. But they were made parties only for the purpose of confirming the allotments subject to other terms in favour of Parbatimoyee. No doubt Brajabala and ushangini were parties to this Deed of partition and Ushangini also joined as the guardian of. Ramdas Ghosal. But they were made parties only for the purpose of confirming the allotments subject to other terms in favour of Parbatimoyee. By this deed of Partition, no right, title or interest was sought to be transferred or created in favour of any of these confirming parties. That apart Parbatimoyee not having relinquished her life estate, the question who would be the next reversioner on her death was entirely uncertain and, therefore, there could be no curtailment or derogation of the right, title and interest of the possible reversioner by such a Deed of Partition. We are, therefore, of the opinion that neither Ramdas, the plaintiff nor Brajabala, the defendant No. 1 is entitled to claim any night, title and interest in any of the properties left by Beharilal which fell in the share of Parbatimoyee by virtue of the said Deed of Partition. So far as the second point raised by Mr. Mukherji is concerned, it has been strongly contended by Mr. Mukherji that under the then Dayabhag succession, a daughter being a preferential heir to a daughter's son brojabala inherited the property left by behari Lal as the sole surviving reversioner on the death of Parbatimoyee. Ushangini having pre deceased her mother in the year 1951. Mr. Mitter however, seriously contests such a claim. According to Mr. Mitter, daughters who are barren or are widows without male issue or are mothers of daughters only are excluded from inheritance. Reliance is placed by Mr. Mitter on mulla's Hindu Law Chapter VII, Article 88. Mr. Mukherji, however, claims that there is no such exclusion, on the other hand that only indicates the priority amongst 1he daughters. 7. ON a careful review of the legal position it, however, appears to us that there is much substance in the contention of Mr. Mitter. The law of succession on the point based on scriptures appears to us to be now settled. 7. ON a careful review of the legal position it, however, appears to us that there is much substance in the contention of Mr. Mitter. The law of succession on the point based on scriptures appears to us to be now settled. A Division Bench of this court as early as in the year 1865 held in the case of Benode Kumari Debi v. Purdhan gopal Sahi 2 Weekly Reporter 176: "by the law of Bengal, the unmarried daughter is first entitled to inherit if there be no maiden daughter then the daughter who has and the daughter who is likely to have male issue are together entitled to the succession. Daughters who are barren, or widows without male issue or mothers of daughters only can under no circumstances inherit. " 8. THIS enunciation of law finds; support in later Bench decision of this court: in the case of Mukunda Lai v. Manmohini 19cwn 472. The same view has been accepted by the Allahabad High Court in the case of Pramila Devi -v- Chandra Sekhar chatterjee AIR 1921 Allahabad 122 and the patna High Court in the case of Sewdutt v- Akoli Bhoomijani AIR 1953 Patna 374. Such being the position in law Mr. Mukheji cannot succeed in his extreme argument that Brajabala merely by virtue of the fact that she was the sole surviving daughter of beharilal on the death of Parbatimoyee would become a reversioner preferential to ramdas, the son of her sister Ushangini. As rightly pointed out by the learned District Judge, it would depend upon the further question as to whether she was the mother of a son or when the inheritance opened whether she was likely to have a male issue or not Neither of these two contingencies being fulfilled she would be excluded from inheritance and naturally Ramdas would become the reversioner to the estate of Beharilal on the death of Parbatimoyee. Since all these aspects have to be gone into and can be decided only on evidence, the learned District Judge was right in directing a remand of the suit for re-trial upon appropriate amendment to the plaint in this regard by the plaintiff? Since all these aspects have to be gone into and can be decided only on evidence, the learned District Judge was right in directing a remand of the suit for re-trial upon appropriate amendment to the plaint in this regard by the plaintiff? The plaintiff is required to plead his title as the preferential reversioner on the death of Parbatimoyee to the estate of his maternal grand-father Beharilal and establish the same on evidence before he can succeed to lay his claim in this regard subject to other defenses that may be taken by the defendants. In the result, we would uphold the order of remand passed by the learned district Judge and dismiss the appeal without any order for costs. Since the appeal is disposed of, the application becomes infructuous and is disposed of accordingly. 9. NO formal decree need be drawn up but the order be communicated to the court below forthwith. Appeal disposed of.