JUDGMENT A.H. Saikia, J. 1. Heard Mr. B.R. Dey, learned senior counsel assisted by Mr. M.A. Sheikh and Mr. S Dutta, learned Counsel appearing for the appellants. Also heard Mr. A.C. Sarma and Mr. P. Chakraborty, learned Counsel representing the respondents. 2. This Second Appeal has been preferred against the judgment and order dated 8.9.1994 passed by the learned Distt. Judge, Dhubri in Title Appeal No. 3/93 allowing the appeal preferred by the plaintiffs/respondents herein and reversing the judgment and decree dated 30.6.1993 passed by the learned Asstt. Distt. Judge, Dhubri in Title Suit No.8/85 by which the suit instituted by the plaintiffs/respondents for partition of their ancestral property was dismissed. 3. On 17.2.1995 at the time of admission of this appeal, the Ground Nos. 1, 2 and 3 enumerated in the Memo of Appeal were formulated as the substantial questions of law which are as follows: (i) For that the question of law arises whether partition can be made part of ancestral property at Dhubri Town leaving aside the property at Salkocha without the consent of the heir appellant. (ii) For that the question of law arises whether the decision in Title Suit No. 323 of 1974 operates as res judicata so far the present suit is concerned. (iii) For that question of law arises whether the defendant appellant has acquired right of adverse possession since he has been in exclusive possession from 1944 and paying all revenue and taxes. 4. Mr. Dey, learned senior counsel assisted by Mr. M.A. Sheikh, learned Counsel for the appellant has in his usual fairness, submitted that he does not want to press the Ground Nos. 2 and 3 as those grounds can not be the substantial questions of law on mere perusal of the impugned judgment and order. On the other hand he has wanted to put all his emphasis on Ground No. 1 as substantial question of law which relates to permissibility of the partition of the ancestral property partially leaving other properties from partition situated in other places. 5. To justify his submission as regards the substantial question of law No. 1 as mentioned above, Mr. Dey has forcefully argued that ancestral property cannot be partitioned partially between the legal heirs unless there is consent from one of the legal heirs. 5. To justify his submission as regards the substantial question of law No. 1 as mentioned above, Mr. Dey has forcefully argued that ancestral property cannot be partitioned partially between the legal heirs unless there is consent from one of the legal heirs. The suit was filed for partition amongst the 8 brothers wherein the appellant has been made sole defendant by the plaintiffs/respondents who are 7 in numbers for the partition of their ancestral plot of land situated at Dhubri without partitioning the other plot of land situated at Salkocha in the district of Dhubri. His categorical statement is that unless the entire property situated at Dhubri as well as at Salkocha are subjected to partition, no partition in part is permissible under the law. In support of such submission, Mr. Dey has relied on following judicial pronouncement, namely, (i) Kashinathsa Yamosh Kabadi v. Narsinghsa Bheskarsa Kabadi reported in [1961] 3 SCR 792 (ii) Kalayani v. Narayanan and Ors. reported in [1980] 2 SCR 1130 (iii) Kenchegowda (since deceased) by legal representatives v. Siddegowda alias Motegowda reported in (1994) 4 SCC 294 and (iv) Billa Jagan Mohan Reddy and Anr. v. Billa Sanjeeva Reddy and Ors. reported in [1994] 1 SCR 429. 6. Referring to the law laid down by the Apex Court in those decisions and also depending upon the facts and circumstances of the case, Mr. Dey has contended that the appellate court was wholly unjustified in allowing the partition in favour of the 7 respondents with 7/8th shares and such finding being contrary to the established law of partial partition of the ancestral property, requires interference by this court. 7. Supporting the impugned appellate judgment and decree, Mr. Sarma, on the other hand, has argued that the substantial question of law so formulated can not be sustained in view of the simple reason that there was no bar in partitioning the ancestral property leaving other plot of land unpartitioned which can be divided later on under the Hindu law of partition and as such there is no illegality or infirmity with the findings of the appellate court. 8. 8. I have given my anxious consideration to the forceful submissions of learned Counsel for the rival parties and also have carefully perused the impugned appellate judgment and decree including the judgment and decree passed by the trial court as well as the pleadings relied on by the parties at the time of hearing. 9. It appears that both the parties herein, being brothers, are, Hindus from the State of Assam and as such they are governed by Dayabhaga School of Hindu law, being applicable only in Assam and Bengal. Dayabhaga School, also known as Bengal school, prevails and is the supreme authority in Bengal and Assam as the reformed school with particular difference from Mitakshara school, an orthodox school, prevailing almost in other parts of India, as regards law of inheritance and the joint family system. 10. Under Dayabhaga law, every adult coparcener, i.e., one who shares equally with others in inheritance in the estate of a common ancestor male or female, has a right to call for and is entitled to enforce a partition of the coparcenary property and he has, even whilst the family remains undivided, a certain definite share in the joint property of which he is the absolute owner. To constitute a partition according to Dayabhaga law, there must be a separation of the shares and the assignment to each coparcener of specific portions of the joint property. 11. In the backdrop above textual law on Dayabhaga school, there is no bar for getting the particular ancestral properties partitioned amongst the coparceners partly, the other property being left from partition for the time being. It is, therefore, held that after death of the ancestor, the surviving heirs are entitled to get their ancestral land partitioned accordingly their respective entitlement to the defined share even partly. 12. Coming to the judicial pronouncements relied upon on behalf of the appellants, it transpires that all the cases cited above by Mr. It is, therefore, held that after death of the ancestor, the surviving heirs are entitled to get their ancestral land partitioned accordingly their respective entitlement to the defined share even partly. 12. Coming to the judicial pronouncements relied upon on behalf of the appellants, it transpires that all the cases cited above by Mr. Dey are related to Hindu joint family system under Mitakshara law.' Wherein the partial partition of the ancestral property is permissible only with the consent of the parties and the suit for partial partition, where all the joint family properties are not made the subject-matter of the suit nor have the co-sharers been impleaded, is not maintainable, suit the instant suit relates to partition under Dayabhaga law where consent of the other coparcener is not necessary for partition of the ancestral property partly as each member constituting the coparcenary is having definite share in the ancestral property. The judicial authorities above referred to by the learned Counsel for the appellants, are, therefore, not applicable to the facts and circumstances of the instant case. 13. That being the legal position, under the Dayabhaga rule of the Hindu law, the part partition of the ancestral property can be said to be permitted. 14. In view of the above observations, this Court is of the view that the substantial question of law so formulated upon which Mr. Dey, learned senior counsel for the appellant has placed reliance to the exclusion of other substantial questions of law formulated i is answered accordingly. 15. In the result, this Second Appeal fails and stands dismissed. No costs. Appeal dismissed.