Lord Tomlin.- In this case their Lordships, with reluctance, have come to the conclusion that they are not able to deal with the appeal in the absence of Sri Thakurji Maharaj, whose interest arises under the wakf, or his representative. In these circumstances, following the precedent in Pramatha Nath Mullick v. Pradyumna Kumar Mullick, AIR 1925 PC 139=52 IA 245=52 Cal 809=87 IC 305 (PC), their Lordships think that the decrees below must be set aside and the case must be remitted to the Chief Court for directions as to a new trial with reference to the effect of the wakf with the appropriate parties added.
So far as the costs are concerned their Lordships think that there should be no costs of this appeal, but that the costs which have hitherto been incurred below should be left to the discretion of the Chief Court to deal with after the new trial has been disposed of, whether or not there be an appeal after the new trial to the Chief Court. Their Lordships will humbly advise His Majesty accordingly.
Case remanded.