Narayan, J.

(1) This appeal arises out of a suit for partition. The plaintiff who is the son of one Halkhori Singh sued for the partition of several properties which have been described in four schedules in the plaint. The defendants Nos. 1 to 3 are the sons of the plaintiff, and the defendant No. 4 is the wife of the plaintiff. The defendant No 5 was Ramsaran Singh, another son of Halkhori Singh, who died during the pendency of this appeal. The sons of Ramsaran were impleaded as defendants Nos. 6, 7 and 8 in the action. The defendant No, 9 is the son of Ramkeshwar Singh who was another son of Halkhori Singh, and the defendants Nos. 10 to 12 are the sons of defendant No.

9. Besides these defendants, there are another set of defendants, namely, the defendants third party, and they have been described in the plaint as the co-sharers of the plaintiff and the defendants first and second parties in respect of several properties sought to be partitioned. Khatas Nos. 51 and 52 are included within Schedule No. 3 of the plaint, and partition is sought with regard to these khatas as well.

(2) Besides other defendants, the suit was resisted by the defendants Nos. 18 to 21, and their defence was confined to khatas Nos. 51 and 5

2. The plea set up by these defendants was that khatas Nos, 51 and 52, were property which had been acquired by Mana Singh, the deceased brother of the defendants 18 and 19 and the father of the defendants Nos. 20 and 2

1. The contention urged on their behalf is that the plaintiff or the defendants first and second parties could not seek a partition of these lands, inasmuch as these lands were the exclusive property of Mana Singh and had been acquired by him under certain sale-deeds.

(3) The learned Subordinate Judge after examining the evidence with regard to the lands of khatas Nos. 51 and 52 came to the conclusion that Mana Singh was a mere farzidar for Halkhori Singh, the ancestor of the plaintiff and the defendants first and second parties, and the father of Ramkeshwar Siigh, Ramsaran Singh and Saudagar Singh.

(4) The defendants Nos. 18 to 21 have, therefore, come up in appeal, and the only contention put-forward on their behalf is that the Court below was wrong in coming to the conclusion that this property (khatas Nos. 51 and 52) had been acquired by Halkhori Singh in the farzi name of Mana Singh, who is the son of one Deonath who was Halkhoris sisters son.

(5) The short point which arises for determination In this appeal, therefore, is whether the plaintiff has succeeded in proving that the property in dispute, namely, the lands of khatas Nos. 51 and 52, is a property belonging to Halkhori Singh and his descendants. Though we find that this appeal has abated, as both parties have submit ted their arguments even on the merits of the case. I should like to record a finding on the question as to whether the plaintiff has succeeded in proving that the lands of khatas Nos. 51 and 52 are property belonging to his family in which he is entitled to have a share on partition. There can be no doubt that the plaintiff has succeeded in establishing his claim with regard to these lands. (After considering the evidence his Lordship concluded :) Thus, I must hold, in agreement with the learned Subordinate Judge, that Mana Singh was a mere farzidar for Halkhori and that ever since these lands were purchased they were in possession of Halkhori and his descendants. The transactions of sale took place long ago, and after a lapse of so many years it was not possible for the plaintiff to produce direct evidence for proving the payment of the consideration. The motive for the benami transactions cannot also be properly ascertained after a lapse of so many years since the date of the transactions. On the merits, therefore, this appeal is bound to fail.

(6) It appears that Ramsaran Singh died during the pendency of the appeal, and besides his three sons, who are respondents Nos. 7, 8 and 9, he has left a widow who has not been substituted in his place. Because the widow has not been substituted, it was urged on behalf of the respondents that the whole appeal had abated. Ramsaran, as appears from the petition filed by the appellants on 3-3-1951, had died on 2-10-1950. In this petition, it was wrongly stated that his sole heirs and legal representatives were his three sons. On 2-4-1951, the respondents filed a petition of objection to the prayer for substitution as made by the appellants, and in this petition it was stated that Ramsaran had also left a widow named Ajhola Kuer. The office had pointed out that the date of death of Ramsaran being 2-10-1950 the petition for substitution was not in time and that it had not been accompanied by a petition for setting aside the abatement. In spite of the objection that was filed on behalf of the respondents and in spite of the office note that the petition for substitution was not filed in time, the appellants did not file any petition for setting aside the abatement or any petition for bringing the widow on the record, and on 24-4-1951, when the Counsel for the parties were heard with regard to the substitution matter, the following order was passed by a Bench of this Court :

"We have heard learned Counsel for the parties. It is stated by learned Counsel for the appellants that the widow of deceased respondent No. 6 is not a necessary party to this appeal. The question as to what is the effect of not substituting the widow of deceased respondent No. 6 will be considered at the time of the hearing of the appeal, ......"

It is, therefore, manifest that in spite of the objection that was raised by the respondents, the appellants did not move this Court for setting aside the abatement or for bringing on the record the widow of the deceased respondent No. 6. But the Counsel for the appellants was at pains to impress upon us that the interest of the widow should be deemed to have been represented by the sons -- an argument which appears to me wholly unsound in view of the status which has been created for the widow by Act 18 of 193

7. This Act lays down that when a Hindu governed by any school of Hindu law other than the Dayabhaga. 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 tq the provisions of Sub-section (3) (of Section 3), have in the property the same interest as he himself had Sub-section (3) lays down that any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu womans estate, provided however that she shall have the same right of claiming partition as a male owner. The position, therefore, is that because at Sub-section (3), the widow takes her husbands interest subject to the restrictions placed on her powers by this sub-section, which however recognises the right of partition. The right of alienation may have been restricted by this sub-section, because she is to be regarded only as a limited owner, but the right of partition has been given by the sub-section and she can claim partition like any male owner. The Federal Court, while discussing this Act in Hindu Womens Rights to Property Act, 1937, In the matter AIR 1941 FC 72 [] (A), observed that the Act ought to receive a beneficial interpretation, inasmuch as it was a remedial Act seeking to remove or to mitigate what the legislature presumably regarded as a mischief. Their Lordships quoted a passage from Govers case (1875) 1 Ch D 182 (B), which runs as follows :

"If the enactment be manifestly intended to be remedial, it must be so construed as to give the most complete remedy which the phraseology will permit." In -- Saradambal v. Subharama Ayyer, AIR 1943 Mad 212 (C), Venkataramana Rao J. has pointed out that the Act has taken away the rule of survivorship and allowed the property to descend to his wife and that once the rule of survivorship has ceased to operate, there is nothing to preclude a creditor from attaching the property. There was the question of attachment, and the view taken by the Madras Judge was followed by a Bench of this Court in -- Siveshwar prasad Narain Singh v. Harnarain Mal, AIR 1945 Pat 116 [LQ/PatHC/1944/59] (D). Fazl Ali C. J. referred to the Madras case with approval, and quoted the passage where Venkataramana Rao J. had said that a widow acquired under the Act the interest of her husband not as a survivor but as an heir of her husband, and therefore, the interest was an asset of her husband in her hands and was liable to be proceeded against by a creditor of the husband even though the interest be an undivided interest in the joint family property. Even in -- Seethamma v. Veerana Chetty, AIR 1950 Mad 785 [LQ/MadHC/1949/368] (E), which was cited by Mr. Das on behalf of the appellants the Chief Justice of the Madras High Court has said that the status of a Hindu widow of a deceased member of a joint Hindu family governed by the Mitakshara under the provisions of the Act is not that of a coparcener, but that of a member of the joint family with certain special statutory rights. I should like to quote the following passage from their Lordships judgment :

"In our opinion, the status of a Hindu widow of a deceased member of a joint family governed by the Mitakshara under the provisions of the Act is not that of a coparcener, but that of a member of the joint family with certain special statutory rights. The death of a coparcener who is a member of a Hindu joint family does not effect a severance or disruption of the joint family, merely because he leaves behind him a widow who has certain statutory rights under the Act. The widow cannot be regarded in any sense as the widow of a divided member. The result is that the joint family will continue as before except that the widow would have a special limited statutory right."

Thus, the authorities are unanimous in holding that by this Act a special limited statutory right has been created in favour of the widow, and if this is the position in law, then it will not be correct to contend that the interest of the widow of Ramsaran was represented by his sons. This was a suit for partition, and one of the contentions which were urged on behalf of the defendants was that a simple suit for partition was not maintainable because the property stands in the name, of a stranger. In other words, the point which the defendants have sought to make out was that because the property stands in the name of a stranger, it was incumbent on the plaintiff to seek a declaration of title with regard to it and to pay the court-fee according to the value of the property. Fortunately, Mr. Das did not press before us the untenable point that without a declaration of title the plaintiff could not maintain this action for partition with regard to the lands covered by khatas Nos. 51 and 5

2. The plaintiff had made out a case that like other properties these lands had also been treated as family property and had been in possession of the descendants of Halkhori Singh. It is the defendants who contended that the property did not belong to the plaintiff but to Mana Singh who had absolute title to it. The adjudication that has been made in this suit to the effect that the property belongs to the family of the plaintiff is certainly an adjudication of which the lady, namely, the widow of Ramsaran, can take advantage. She can, as a result of this adjudication, claim an interest in this property and seeks a partition with regard to her share. In --Churaman Mahto v. Bhatu Mahto, AIR 1935 Pat 241 (P), it was held by a Bench of this Court that where, in a partition or a mortgage suit, the death of one of the respondents does not make the representation of the Interests involved incomplete, there is no abatement and the appeal can proceed; but where such death makes the representation Incomplete, an abatement of the appeal as a whole takes place. In--Sheo Hart Lal v. Ramesher Lal, A.P.O.D. No. 124 of 1946, D/- 29-1-1952 (Pat) (G), a Bench of this Court held with regard to an appeal from a mortgage decree that the whole appeal must be deemed to have abated as the widows of a deceased decree-holder had not been substituted in his place. This decision was referred to and followed by another Bench of this Court in --Awadh Bihari Prasad v. Jhaman Mahton, AIR 1953 Pat 324 [LQ/PatHC/1952/99] (H), and their Lordships said that the case was governed by the aforesaid decision where it had been held that it was necessary to substitute the widows of the plaintiff who had died during the pendency of the appeal in this Court, and that in the absence of substitution being effected, the whole appeal must be deemed to have abated. I have no doubt that in view of the peculiar status created for the widow under the Act the sons could not represent her interest and, therefore, it was incumbent on the present appellants to substitute her in place of the deceased Ramsaran. In a suit for partition every defendant is in the position of the plaintiff, and the widow can claim the property on the basis of the decree which has been passed by the learned Subordinate Judge. If, therefore, this appeal is allowed to proceed, there is the chance of having two inconsistent or contradictory decrees, which under the law must be avoided. I am, therefore, of the opinion that this appeal must be deemed to have abated.

(7) The learned Counsel for the appellants had submitted during the course of his argument that the suit had abated because no substitution had been made in place of the deceased defendant No. 22, and in fact one of the grounds taken in this appeal is that the suit should be held to have abated because no substitution had been made in place of the deceased defendant No. 2

2. But 16 has been pointed out before us that the defendant No. 22 had no interest whatsoever in Schedule No. 3 property in which are included the two khatas, namely, khatas Nos. 51 and 5

2. The description, of Schedule No. 3 property as given in the plaint shows that only the plaintiff and the defendants first) and second parties have got interest therein. The defendant No. 22 was one of the defendants third party and had got no concern whatsoever with Schedule No. 3 property which includes the present disputed land, and ultimately Mr. Das had to concede that this objection was not fit to be entertained. As a matter of fact it appears from the written statement of defendants 18 to 21 themselves (Para 10) that the defendant No. 22 had been impleaded because he had interest in the milkiat property of muza Aslampur Abdullari which is one of the properties sought to be partitioned. The statement in Para. 10 is that these defendants have purchased 3 annas and odd share from defendant No. 22 under a sale-deed dated 2-7-1944 which was executed after the institution of this suit. In view of this statement and the description given in respect of Schedule No. 3 property of the plaint the learned Counsel had to give up this point. Moreover, if the appeal itself has abated even this contention cannot be entertained here. In the result, therefore, I hold that this appeal has abated, and I would dismiss it with costs.