S.C. Misra, J.

(1) The appellant, Mt. Asarfa Kuer, widow of Sukhdeo Rai, was defendant No. 3 in the suit giving rise to this appeal. The suit was brought by Bhuneshwar Rai, son of Ramadhar Rai, respondent No. 2, claiming one-sixth share in the joint family properties and for carving out a separate takhta in respect thereof. The genealogy on which he relied is as follows:

PARGAS RAI

Halkhori Rai Isar Rai Parsuram Rai

Sukhdeo Rai Ramadhar Rai Gaya Rai

Mt.Asarfa Kuer Bhuneshwar Rai Mathura Rai

His case was that Halkhori Rai, Isar Rai and Parasuram Rai, the three sons of Pargas Rai, were separate from one another and one third share of each of the three branches had been clearly defined, but no partition by metes and bounds had been effected. His father, defendant No. 1, Ramadhar Rai, had kept a concubine from whom he had a son. He was evil minded and had turned dishonest. He was out to ruin the family properties and benefit his son, Rambachan Rai, from his concubine. This embittered the relations between him and his father Ramadhar Rai and, accordingly, he requested him (Ramadhar) to separate his share. He also asked the other defendants to effect partition, but they were indifferent to his request, so that he had to institute a suit for partition of his share. Mathura Rai, son of Gaya Rai and grandson of Parasuram Rai, supported his case. He was likewise supported in his claim by defendant No. 3 Asarfi Kuer (Asarfa Kuer). Defendant no. 1, father of the plaintiff, alone controverted the main allegations of the plaintiff. He pleaded that there was already a partition of the joint family properties amongst the three branches of the sons of Pargas Rai by which the properties mentioned in Schedule Ka of his written statement were allotted to the share of Mathura Rai, defendant No. 2, and the remaining two thirds share was left joint. Halkhori Rai, the father-in-law of Asarfa Kuer, did not separate him. He continued to be in possession and occupation of the properties of his share as well as the share of Halkhori Rai. Defendant No. 3 Asharfa Kuer, had no right to the property of Halkhori. He stated further that the plaintiff was a misguided youngman under the influence of Mathura Rai, defendant No. 2, and was set up by him to harass him. He married a second wife after the death of the mother of the plaintiff and Rambachan Rai was born from her. After several years of that marriage, the plaintiff and his wife picked up quarrel with Rambachans mother and accordingly he had to be separated. In 1943, the plaintiff also separated from his father, defendant No. 1, and his share was also carved out, which is mentioned in schedule Kha to his written statement. Hence there was no unity of title and possession between the parties, and as such the suit was bound to be dismissed.

(2) The learned Subordinate Judge, First Court, Arrah, heard the suit. He held that there has been no partition by metes and bounds of the joint family properties among the members of the family and to that extent the plea of Ramadhar Rai was disbelieved. He ordered that Mathura Rai, defendant No. 2, was entitled to his one-third share in the immovable properties, excepting the residential house. The plaintiff was held entitled to one-sixth share in respect of all the properties except a sum of Rs. 300/- covered by a headnote in favour of Ramadhar Rai. The learned Subordinate Judge, however, held further that the appellant, Mt. Asarfa Kuer, was not entitled to a share inasmuch as in spite of separation beween Ramadhar Rai and Gaya Devi, father of Mathura Rai, the branches of Halkhori Rai and Ramadhar Rai continued to be joint. Sukhdeo Rai, the husband of the appellant, died 15-20 years prior to the suit and Halkhori Rai, the father-in-law of Asarfa Kuer, died in 194

5. Since Ramadhar Rai and Halkhori Rai continued to be joint in spite of the separation from Gaya Rai, Ramadhar Rai was entitled to the share of Halkhori Rai also by right of survivorship. Mt. Asarfa Kuer could, therefore, claim only maintenance and no share in the joint family properties. The learned Subordinate Judge, accordingly, passed a decree in favour of the plaintiff, Bhuneshwar Rai, as indicated above.

(3) Plaintiff and defendant No. 2 being satisfied with the decree have not come up in appeal to this Court. Mt. Asarfa Kuer alone is aggrieved as she has been deprived of her right to claim the share of her husband and father-in-law, viz., Sukhdeo Rai and Halkhori Rai.

(4) Learned counsel for the appellant has raised a number of contentions and referred to certain authorities in support thereof. He has also endeavoured to show that the finding recorded by the Court below to the effect that Halkhori Rai died in a state of jointness with defendant No. 1 Ramadhar Rai, in 1945, as also the finding that Sukhdeo Rai, husband of the appellant, died long before the coming into force of the Hindu Womens Rights to Property Act (Act 18 of 1937) are erroneous. It is, in the first place, necessary to enter into the question as to whether Sukhdeo Rai, husband or the appellant, died about 1942 or so, as she alleged, or he died long before the passing of the Hindu Womens Rights to Property Act. It is so because upon this conclusion will depend whether this Act, which confers certain rights upon the widow and the widowed daughter-in-law, will be applicable to the facts of the present case or otherwise. The Court below concluded against the appellant on both the points set out above. Whatever might be said, however, with regard to the correctness of his finding on the question of the status of Halkhori Rai vis-a-vis Ramadhar Rai, but it appears to me that the conclusion that Sukhdeo Rai died long before the enactment of the Hindu Womens Rights to Property Act cannot be successfully challenged. (His Lordship then discussed the evidence and stated further as follows:) The learned Subordinate Judge, in my opinion, was right in concluding that the plaintiff had failed to prove that Sukhdeo Rai died after the passing of the Hindu Womens Rights to Property Act.

(5) The next point that arises for the decision of the present appeal is whether, in fact, Halkhori Rai died in a state of jointness with Ramadhar Rai as alleged by him or he died in a state of separation from him as alleged by the plaintiff, defendant No. 2 Mathura Rai and the appellant-defendant No.

3. The learned Subordinate Judge held that the appellant had failed to prove that her father-in-law Halkhori Rai was separate from Ramadhar Rai at the time of his death in 194

5. Both parties led oral and documentary evidence in support of their respective cases. The appellant filed some rent receipts, water-rate receipts, canal parchas and revenue parchas. They were, however, of recent dates. The water-rate receipt (exhibits A-3 to A-3(2)) were for the years 1946 and 194

7. The rent receipts were of 1350 and 1354 Fs. The amounts were deposited by Mathura Rai, defendant No. 2, who was on litigating terms with Ramadhar Rai. The learned Subordinate Judge discarded these documents as being of no value inasmuch as these came into existence at a time when Asarfa Kuer had already started setting up claim to the share of her father-in-law and a case in the Land Registration Department was instituted for that purpose. The learned Subordinate Judge drew an adverse inference against her on the ground that she was not able to file any rent receipts or receipts for the payment of canal rates of the time of her father-in-law, Halkhori, although she stated that Halkhori was living separate from Ramdhar, at least, for 9 years. Her evidence was that she used to keep the papers which were handed over to her by Halkhori, and yet she was not able to produce them and, in fact, on being questioned as to where they were, she kept silent and did not answer on repeated questions. The oral evidence led on her behalf which was that of one Fagu Ahir (D.W. 1), that he used to cultivate the lands separately, was discarded as he did not state that he cultivated any land as a Shikmidar of Halkhori Rai; although D.W. 2 stated that Anant Koeri and Fagu Ahir cultivated the land of Asarfa Kuer. On account of these contradictions, the evidence of D.Ws. 2, 3 and 4 was disbelieved. As opposed to the evidence led on behalf of defendant No. 3, defendant No. 1 filed exhibit A-1, which is a chowkidari receipt for the year 1939, and exhibit A-1(1), which is another chowkidari receipt for the year 1942, which stood in the name of Halkhori. Chowkidari receipts Exs. A-1(2) to A-1(4) were in the name of Ramadhar Rai. The contention raised on behalf of Ramadhar Rai was that so long as Halkhori was alive Chowkidari receipt was granted in his name alone, and after his death, it was granted in the name of Ramadhar Rai. Some rent receipts and canal rates receipts were also filed on his behalf to show that he was paying rent for more than one third of his share, which was consistent with the fact of jointness between Halkhori and Ramadhar. Mathura was, admittedly, paying his share of rent separately and Ramadhar was paying more than one-third share, and, therefore, the inference should be that he and Halkhori were still joint. The learned Subordinate Judge accepted the contention raised on behalf of Ramadhar and held that appellant Asarfa Kuer had failed to prove that her father-in-law Halkhori Rai died in a state of separation from Ramadhar. In that view of the matter, Ramadhar was entitled to the share of Halkhori Rai by .survivorship as a member of the joint family and that it could not be regarded as Halkhoris separate property in any view of the matter, and Asarfa Kuer was only entitled to maintenance and not to a share.

(6) Learned counsel for the appellant has drawn our attention in this connection to the decision in the case of Bhagwati Prasad v. Rameshwari Kuer, AIR 1952 SC 72 [LQ/SC/1951/37] , wherein the proposition laid down is that where one of the coparceners separates from the other members of the joint family and has his share in the joint family partitioned off for him, there is no presumption that the rest of the coparceners would continue to be joint. In the present case, it is admitted by defendant No. 1 that Mathuras branch definitely separated from the other branches about 1939 and, in fact, Mathura Rai had his share given to him, which was mentioned in Schedule "Ka" attached to the written statement. According to the principle laid down in the above Supreme Court decision, the presumption, therefore, of jointness in regard to the remaining two branches of Halkhori and Ramadhar should also disappear. The burden, therefore, to prove that the two branches still continued to be joint would lie upon Ramadhar Rai. Learned counsel for the respondents, however, has urged that in the above decision there is a further proposition that "there is no presumption en the plaintiffs side too that because one

"member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief."

In the present case, the appellant Asarfa Kuer asserted that her father-in-law Halkhori Rai died in a state of separation and, therefore, she had to establish the iactum of separation on reliable evidence, which she failed to do. Mr. Awadh Bihari Saran, however, for the appellant, has contended that it was necessary in the present case for Ramadhar Rai to set up a case of re-united which was to be proved like any other fact in the case. In the first place, Asarfa Kuer was not the plaintiff because the suit was brought by Bhuneshwar Rai the son of Ramadhar Rai, and although he supported the plea of the appellant, nevertheless the appellant, for the matter of that, was not the plaintiff, in the suit. If defendant No. 1, Ramadhar Rai, resisted the claim of the appellant, it was for him to establish that, in spite of separation of the branch of Mathura, he and Halkhori Rai continued to remain joint. In tact, when one member separates from the joint family, an agreement amongst the remaining members of a joint family to remain united or to re-united must be proved like any other fact, vide decision in the case of Balabux v. Rukhmabai, 30 Ind App 130 (PC). Even in the aforesaid decision of the Supreme Court, it was held that after the separation of one member of the joint family, as happened in that case, it was necessary to prove re-union, in which event alone the principle of survivorship in a Hindu joint family would be applicable. The relevant facts of that case were that one Sheonarain Sah had three sons Imrit, Janki and Ramnarain. The plaintiff in that suit was the daughter of Rarnnarain. According to her case, there was complete separation between the three sons of Sheonarain in food, estate and business long ago but, after separation, Rarnnarain and Ramsaran, son of Janki, carried on the business jointly and also acquired properties in their joint names. These properties were held by them as tenants-in-common. The defendants, represented by the branch of Janki, denied that there was ever any separation between them and Rarnnarain. Their case was that Imrit alone separated himself from Rarnnarain and defendant No. 1 but Ramnarain and defendant No. 1 continued to remain joint as before. Rarnnarain died in a state of joint-ness. The trial Court dismissed the plaintiffs suit holding that she had failed to prove that her father Ramnarain died separate from defendant Nos. 1 to

4. There was an appeal preferred against that decision to the High Court and the appeal was allowed, against which the defendants went up in appeal to the Supreme Court. In that context, Mukherjea J. who delivered the judgment of the Court, observed:

"Except in the case of reunion, which is not set up in the present case, the mere fact that separated coparceners choose to give together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law."

Further,

"As no case of re-union has been attempted to be made on behalf of the defendants, the facts that Ramnarain and Ram Saran lived in commensality, carried on business together and acquired properties in their joint names, or that their names were recorded as joint holders of properties in the settlement records might at best create a tenancy-in-common between them, but not a joint tenancy under the Mitakshara law which would attract the law of survivorship. Defendant No. 1, therefore, did not acquire any right by survivorship to the properties which were owned by Ram Narain and the plaintiff is entitled to succeed on this ground."

It is contended that in view of the aforesaid observation defendant No. 1 had to plead specifically a case of re-union. Such a case, however, was not pleaded. All that was said was that in spite of the separation of Mathura Rai, Halkhori Rai did not become separate and he died in a state of jointness with Ramadhar Rai. In the above Supreme Court case also such a plea was raised but it was not construed as a plea of re-union and the plaintiffs suit was decreed to show that Halkhori Rai and Ramadhar Rai had ever disposed of any property jointly or that there was any acquisition of any property in their joint names. The only evidence led on behalf of Ramadhar was with regard to the payment of rent and canal rates, jointly. Assuming that the rent was paid jointly as also the canal rates, it would not lead to the inference that Ramadhar and Halkhori still continued to be joint.

(7) From paragraph 13 of the written statement filed by defendant No. 1, it is clear that Ramadhar Rai and Halkhori Rai were separate in status at least in 194

3. In that paragraph defendant No. 1 stated "On account of this, dispute arose with this defendant on one hand and the plaintiff and his wife on the other hand. At last the plaintiff became separate from this defendant in 1943 and took the property of his share entered in Schedule Kha of this written statement and has been in separate possession and occupation thereof. If Kamadhar and Halkhori had been joint, it would have been incumbent on the plaintiff to have separated from both, and not from Ramadhar alone. From paragraph 13, it is clear that the share of the branch of Ramadhar must have been separated by metes and bounds before the plaintiff was given a separate takhta as alleged by defendant No

1. In the result, the finding of the Court below that Ramadhar Rai and Halkhori Rai had not separated, cannot be sustained. In my opinion, the contention of learned counsel for the appellant must be acceded to as it rests on the pronouncement of the Supreme Court in the above case.

(8) The two findings arrived at above, e.g., that Sukhdeo Rai, husband of the appellant, died prior to the passing of the Hindu Womens Rights to Property Act and that Halkhori was separate from Ramadhar, give rise to somewhat complicated legal question as to the nature of the ancestral property in the hands of Halkhori in relation to whether it would be heritable by Ramadhar or by his daughter-in-law, the appellant. The learned Subordinate Judge held that since Sukhdeo, the husband of the appellant, died prior to the passing of Act 18 of 1937, it was unnecessary to scrutinise whether the share of Halkhori in the joint family property would be his separate property or would continue to be treated as coparcenery property, on which point there appears to be some apparent difference in approach, with regard to the incidents of such property, between the case of Nandkumari Devi v. Mt. Bulkan Devi, AIR 1945 Pat 87 [LQ/PatHC/1944/38] , and the case of Umayal Achi Y. Lakhmi Achi, AIR 1945 FC 2 []

5. In my opinion, however, it is necessary to find out the correct legal position in regard to the nature of the interest of Halkhori in the joint family property as to whether it was separate property or continued to be joint family property, because it would materially affect the case of the appellant as to whether she had any right to a share in the suit properties or not. Learned counsel for the respondent Ramadhar has urged that the Court below was light in its view that out of the share of Halkhori in the suit properties, which admittedly were ancestral in the sense that they were coming from the time of Pargas Rai, the father of Halkhori, Isar and Parasuram, appellant could not claim any share on the authority of the case of Umayal Achi referred to above. That was a case from the Province of Madras wherein the suit properties belonged to one Arunachalam who died leaving behind two widows and a daughter-in-law, who was the widow of a predeceased son. She brought a suit for partition and delivery of possession in respect of her one-half share in the estate. A number of questions were involved in that litigation including the validity of Act 18 of 1937, with which we are, however, not concerned for the purpose of the decision of this appeal. The trial Court decreed her suit in respect of the immovable properties of Arunachalam situated in British India as also all the movable assets wherever to be found. An appeal was taken to the High Court of Madras against the decision of the trial Court. The High Court of Madras also affirmed the decree of the trial Court, except that it was confined to a share in the non-agricultural properties as also to a share in the movable properties of the deceased in so far, as they were to be found within British India. The plaintiff went up in appeal to the Federal Court against certain directions in the decree of the Court below including the rejection of her claim to a share in the management of the religious and charitable trust as also regarding her right to a share in the movable properties situate in British India alone. The respondents, however, raised the question of the correctness of the decision of the Court below in regard to the validity of Act 18 of 1937 with which, as I have said, we are not concerned in the present case. It was, however, further urged on their behalf that on a true construction of Act 18 of 1937 (Hindu Womens Rights to Property Act) the plaintiff-appellant was not at all entitled to a share in the property which formed the subject-matter in that litigation. It was also urged that she would not be entitled to more than one-third share. Varadachariar J., who delivered the leading judgment in the case, stated as follows with regard to the rights of the widow of the predeceased son, upon which reliance is placed by learned counsel for the respondent Ramadhar:--

"Taking next the case of the widow of a predeceased son or predeceased grandson, the difference between separate property in the strict sense and the other kinds of property above referred to is equally marked. In the case of property obtained by the father on partition or as sole surviving coparcener, the son or grandson would have become a coparcener with the father immediately be was born and when he predeceases the father or grand-father the widow of the son or grandson will get his share under Sub-section (2). But if it is the fathers self-acquired property, the predeceased son or grandson would have acquired no right and therefore his widow would be left without Soy claim to the property. That case is accordingly met by the proviso to Sub-section (1) of Section 3, and this explains why this case is dealt with as a proviso to that sub-section. Here again, the expression inherit in like manner as a son in the proviso is significant. That is opposite to a devolution of the fathers self-acquired property; but, in respect of the other two kinds of property, there will be no inheritance by the son as he would have become a coparcener with the father immediately he was born. "It is true that on the above view, the plaintiff in the present case will derive no benefit from the Act, though she happens to be the widow of a predeceased son. But that is due to the circumstance that her husband died before the passing of the Act."

Further on, his Lordship observed:

"I am accordingly of the opinion that property held by Arunachala as the last surviving coparcener of a joint family cannot be regarded as separate property within the meaning of Section 3(1) of Act 18 of 1937 and that the plaintiff is not therefore entitled to claim the benefit of the Act."

Learned counsel has urged that in the present case also the share of Halkhori, even assuming that he died separate from Ramadhar, would, still continue to be treated as coparcenary property and could not be taken as separate property within the meaning of Section 3(1) of Act 18 of 193

7. Learned counsel has contended that, in view of this clear pronouncement, the decision of the Patna High Court in the case of AIR 1945 Pat 87 [LQ/PatHC/1944/38] , which appears to lay down a contrary proposition, should not be accepted as binding. It is, no doubt, true that this pronouncement of Varadachariar J., has been quoted in many standard text books on Hindu Law as laying down a proposition that the expression "separate property" in Section 3(1) has been used in a narrow sense. In Mullas Hindu Law (11th edition, at page 27), it is stated: "The expression separate property in Section 3(1) has been used in the narrow sense of self-acquired property and it does not include property which the father gets on partition with his son." In my opinion, however, it is difficult to read that judgment as laying down a categorical proposition to the above effect. The ratio decidendi of that case has been explained in the following words:

"The difference between the position of a person owning self-acquired property and that of a person who happens to be the holder of property as a sole surviving coparcener for the time being is shown by the fact that in the latter case his right as full owner will be reduced to that of a coparcener, the moment an adoption is made by a predeceased coparceners widow. In the words of the Judicial Committee in Anant Bhikkappa v. Shankar Ramchandra 70 Ind App 232: (AIR 1943 PC 196 [LQ/PC/1943/44] ), this possibility challenges the character of the surviving coparceners right as an absolute right and creates qualifications which impair its completeness. It is an interest liable to fluctuate both during his life-time and even after his death. According to the observations of the Nagpur High Court, quoted with approval by their Lordships, the property held by a person, who is a sole surviving coparcener, has the potentiality of becoming joint family property at any moment so long as there is a widow entitled to add a male member to the family by adoption." This position can arise only in the Madras and Bombay Schools of Hindu Law. In most of the other Schools of Hindu Law, however, such a contingency can only arise where specific authority has been given to the widow by the deceased to adopt. In Mullas Hindu Law (11th edition, at p. 557, Article 452) the position has been thus explained: "45

2. Adoption by widow. The law as to adoption by a widow is different in different States;

1. In the Mithila a widow cannot adopt at all, not even if she has the express authority of her husband.

2. In Bengal, Benares and Madras a widow may adopt under an authority from her husband in that behalf. Such authority may be express or implied. It cannot be implied from the mere absence of a prohibition to adopt.

3. In the Madras State a widow may also adopt without her husbands authority, if where the husband was separate at the time of his death, she obtains the consent of his sapindas, and where he was joint, she obtains the consent of his undivided coparceners...........

4. In the Bombay State a widow may adopt even without any authority."

It is thus apparent that the decision of that case rested upon the peculiar position of the widow in the Madras State, inasmuch as there a widow can adopt a son to the deceased husband even without an authority from him; provided consent is given by his sapindas when the husband dies separate, or where consent is obtained of the undivided coparcener, where he dies in a state of jointness with others. Moreover, the peculiar facts of that case were that the deceased had left behind a will in which he specifically directed that the two widows were entitled to adopt two boys and the daughter-in-law was to adopt also a boy, respectively, so that they were on the facts of that case specifically authorised to make adoption. Pending adoption, the executors under the will, who were near relations of Arunachalam, were asked to manage the property. The adoptions were not made and the plaintiff brought the suit. It appears, therefore, that the potentiality of adoption had not come to an end and, therefore, the properties at the time would not be regarded as the separate property of Arunachalam as held solely by him independent of any one else. It is also clear that if their Lordships intended to lay down that because of the death of the husband of the appellant prior to the passing of Act 18 of 1937 she would not be entitled to any share, their Lordships would not have allowed the plaintiff to succeed to Arunachalams separate property in the narrow sense which would mean his self-acquisition, as opposed to the property which he once held in coparcenary with his son, the husband of the appellant. In that case, she would be entitled only to maintenance.

(9) The above construction of Umayal Achis case AIR 1945 F. C. 25, appears to be the true construction also with reference to the following excerpts from the cases of Bajirao Tukaram v. Ramkrishna, AIR 1942 Nag 19, AIR 1943 PC 196 [LQ/PC/1943/44] and AIR 1945 Pat 8

7. In AIR 1942 Nag. 19, the following passage occurs at page 24:

"We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in the nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member............."

In the case of AIR 1943 PC 196 [LQ/PC/1943/44] at p. 199, the above passage was quoted with approval and so also the following passage from Pratapsingh Shivsingh v. Agarsinghji Raisinghji, 46 Ind App. 97 at p. 107: (AIR 1918 PC 192 at p. 194): Again it is to be remembered that the adopted son is the continuator of his adoptive fathers line exactly as an aurasa son and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect: whenever the adopting may be made there is no hiatus in the continuity of the line. In fact as West and Buhler point out in their learned treatise on Hindu Law (3rd edition, p. 996, note (a) ), the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible. It may be mentioned that both these cases arose out of disputes raised by the adopted son after the disruption of the joint family and vesting of the estate in the heir other than the adopted son. Varadachariar J. in Umayals case AIR 1945 FC 25 [] also relied upon the principle in Anants case 70 Ind App 232 : (AIR 1943 PC 196 [LQ/PC/1943/44] ) to which I have referred above. In AIR 1945 Pat 87 [LQ/PatHC/1944/38] , dispute arose among the heirs of one Narayan Sao who died leaving valuable properties. On a point of fact it was stated in the judgment at page 88:

"Admittedly at the time of Narayan Saos death he was the sole surviving coparcener of the joint Hindu family of which he was also a coparcener until his death in 1937, and it is not the case of any of the parties that there was any posthumous son or any possibility that after the death of Narayan Sao a further coparcener could be introduced into the family by adoption or otherwise."

Further, it is laid down ;--

"It follows that although there may be at a particular time only one surviving co-parcener of a Hindu joint family there may still be joint family property or coparcenary property in which any new male member introduced into the joint family will take an interest by birth or adoption."

Bearing this distinction in mind, the Division Bench of this Court came to the conclusion that Narayan Saos property would go to his daughter-in-law Rama Devi, the widow of his predeceased son who died in 1937, Narayan himself having died in 1938. If, therefore, the ratio of Umayals case AIR 1945 FC 25 [] is considered along with the ratio in Nandkumari Devis case AIR 1945 Pat 87 [LQ/PatHC/1944/38] and they are set along side the ratio in the Nagpur case and that of the Privy Council in 70 Ind App 232 : (AIR 1943 PC 196 [LQ/PC/1943/44] ), it is clear that Nandkumari Devis case AIR 1945 Pat 87 [LQ/PatHC/1944/38] is not in any way inconsistent with the decision in Umayals case AIR 1945 FC 2 []

5. The observation, therefore, in the case of Bhaoorao v. Chandrabhagabai, AIR 1949 Nag 108, that Patna view is not valid in view of the decision in Umayals case AIR 1945 FC 25 [] is not, with respect, sound. The construction put upon Umayals case AIR 1945 FC 25 [] in Maynes Hindu Law and Usage (11th edition) at page 705 is also too wide. The passage runs thus : --

"The Federal Court has held in AIR 1945 FC 25 [] that the expression separate property may be the antithesis of three other expressions viz., ancestral property, coparcenary property and joint family property, that having regard to the contingency requiring legislative interference, the property held by a person as the last surviving coparcener of a joint family cannot be regarded as separate property within the meaning of Section 3 (1), wherein the term refers to property in respect of which the son of the surviving co-parcener would not be entitled to co-parcenary rights but only to a right of inheritance on the fathers death if he survived him, 1945 FCR 1 : AIR 1945 FC 2 []

5. On the other hand, the Patna High Court had earlier held that separate property meant property which the intestate held separately, in the sense that he held it without the participation of other co-parceners and that the words the same share as a son in Section 3 (1) meant the same share as if she were a son 23 Pat 508 : AIR 1945 Pat 8

7. In this view, Sections 3 (1) and 3 (2) taken together would exhaust the possible circumstances in which a male Hindu may the intestate leaving property or an interest in property. It was decided in the Nagpur High Court that separate property in Section 3 (1) means self-acquired property in the narrow sense of what was acquired by a man by his own exertions and that the Patna view is not good law ILR 1948 Nag 465 : AIR 1949 Nag 108."

The correct view appears to be that so long as there is a possibility of a certain property, held by a Hindu as separate, being converted into a joint family property by adoption or birth, it cannot be regarded as separate property within the meaning of Section 3(1) of Act 18 of 1937, and Umayals case AIR 1945 FC 25 [] proceeded on that footing alone.

(10) It is thus clear that there is no conflict between this case and the decision in the case of AIR 1945 Pat 87 [LQ/PatHC/1944/38] wherein a proposition was laid down that the words "separate property" in Section 3 (1) also have a reference to the mode of possession or enjoyment. In other words, the phrase "separate property" in Section 3 (1) is in contrast not with the words joint family property" in Section 3 (2) but with the words "an interest in a Hindu joint family property", laying particular emphasis on the word "interest". The sole surviving coparcener of a Mitakshara joint Hindu family has not merely an interest in the property, but holds the property exclusively or separately whatever its character. Therefore, the words "separate property" in Section 3 (1) must be taken to mean property which the intestate held separately in the sense that he held it without the participation of other coparceners. In this connection, we had occasion to consider the case of Moni Dei v. Hadibandhu Patra of the Orissa High Court (S) AIR 1955 Orissa 73, which is a Full Bench decision. The proposition of law referred to the Full Bench of the Orissa High Court in that case was "Whether the provisions of Section 3 (2), Hindu Womens Rights to Property Act, 18 of 1937 as "amended by Act, 11 of 1938 are retrospective so as to apply to the case of a widow whose husband died prior to the date when the said Act came into force". It is thus apparent that the real point for consideration in that case was the applicability of Section 3 (2) of the Hindu Womens Rights to Property Act and not Section 3 (1). Section 3 of the Act runs thus : --

"3 (1). When a Hindu governed by the Dayabhag school of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son : Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son : Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son

. (2) When a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had."

The occasion for the Full Bench reference arose because the Special Bench of that Court in the case of Radhi Bewa v. Bhagawan Sahu, AIR 1951 Orissa 378, had held that Section 3 (2) of the Act is retrospective in operation and, consequently, the widow of a Hindu who had died before the Act came into force would be entitled to her husbands share in the joint family if it continued till the date when the partition was demanded. The specific question with regard to the meaning of "separate property" occurring in Sub-section (1) of Section 3 was not considered in that case. It is true, no doubt, that there is an incidental reference to it in so far as it was mentioned that

"Section 3 provides for two classes of property left by a Hindu. Sub-section (1) of that section deals with property over which a Hindu has a power of disposition by a testament. Such property, in the case of a Dayabhaga Hindu, is the share in the joint family property, and in the case of a Mitakshara Hindu is his self-acquired property. Both these kinds of property are capable of being disposed of by a Will. Sub-section (2) of Section 3 applies to ordinary coparcenary property of a Hindu when he dies as an undivided member of a Mitakshara family. Such property is incapable of being disposed of by a Will. The frontier dividing self-acquired and co-parcenary properties is recognised by the two parts of Section 3 and the fight to succeed to either kind of property is conferred by the two sub-sections."

It is thus possible to contend that the Orissa Full Bench also referred to the meaning of separate property in Sub-section (1) of Section 3 of the Act as self-acquired property, as opposed to coparcenary property. In my opinion, however, since the point was not considered in the light in which I have gone into the question with reference to AIR 1945 FC 25 [] and, further, that the point did not arise for specific consideration, the observation referred to above of the Orissa Full Bench in regard to the meaning of separate property has no bearing on the question which is being specifically canvassed in the present case. Learned counsel for the appellant has drawn our attention to a single Judge decision of the Nagpur High Court reported in Rani Bai v. Ishwardin 1950 Nag LJ 369 in support of his contention that in that case also the view appears to have been adopted that the widow of a predeceased son would be entitled to the benefit of Sub-section (1) of Section 3 of the Hindu Womens Rights to Property Act, 1937, if her father-in-law died after the passing of the Act, even if her own husband predeceased his father. Since, however, the report is not available, it is difficult to say what exactly was decided in that case. In any view, the conclusion which follows on a careful consideration of Umayal Achis case AIR 1945 FC 25 [] is that the meaning of "separate property" as given in that case must be confined to the facts of that case or to the Madras School of Hindu Law and it cannot apply to the Banares or Mithila School.

(11) In the present litigation it is clear that Halkhoris widow predeceased him and hence there was no question of any adoption by her. But it may be necessary at this stage to dispose of a contention which could be built on this state of facts which was advanced in Nandkumaris case AIR 1945 Pat 87 [LQ/PatHC/1944/38] by learned counsel for the appellant and which was left open by that Bench. It was that before a predeceased sons widow could be held entitled to inherit under the proviso to Section 3 (1), it postulated the existence of the widow. Beevor, J., who delivered the judgment, did not decide the point observing that the widow of Narayan was alive and hence that point did not arise. In the present case, Halkhoris widow was dead at the time of his death and hence that point, has to be decided. In my opinion, there would be no force in this contention as the language of the proviso makes it clear that the widow of the predeceased son would inherit as a son and in that view of the matter it is immaterial whether the widow of the propositus would be alive or dead when the succession opens. If the widow of the propositus be alive it would no doubt affect the quantum of the share of the daughter-in-law, but her existence is not a condition precedent to the right of the daughter-in-law conferred upon her by this proviso.

(12) In the result, the appeal must be allowed, the judgment and decree of the Court below set aside in so far as the share of the appellant is concerned, and it must be held that she is entitled to one-third share in the family properties to which her father-in-law Halkhori had a right, and her share also must be carved out in the partition proceedings and incorporated in the final decree. In the circumstances of the present case, however, parties will bear their own costs. B.N. Rai, J.

(13) I agree.