Sinha, J.

(1) The first appeal arises out of a decision of the learned Subordinate Judge of Gaya, dated 1st April 1946, for a declaration that certain transfers made by defendant 7 in favour of the defendants-first-party, that is to say, defendants 1 to 3, were fraudulent without consideration and inoperative as against the plaintiff. The second appeal is directed against the decision of the learned Additional District Judge of Gaya, dated 31st July 1946, affirming that of the Subordinate Judge of the same place in a suit for partition. As both the cases arise out of a dispute relating to the estate of the late Babu Kamta Prasad, and the matters in controversy are, more or less, allied to each other, the two cases have been heard together, and this judgment will govern them both.

(2) In the first appeal, the suit was commenced by Kedar Nath, brother of the late Babu Kamta Prasad, Mukhtar, who died sometime in November 1940, leaving him surviving his widow, defendant 7, and eight daughters, some married and others unmarried. The plaintiff claimed that Kamta Prasad died in a state of jointness with him, and that his widow and his daughters had no right except that of maintenance. The plaintiffs case further is that, on the death of Kamta Prasad, his widow, at the instigation of her sons-in-law instituted proceedings in the Land Registration Department in respect of certain estates which the plaintiff claims as joint family properties. The dispute was settled by a compromise whereby the plaintiff got a moiety share, and defendant 7 the other moiety in respect of the properties in dispute in those cases, namely, the revenue-paying estates. The plaintiff characterized certain recitals in the petition of compromise as wholly irrelevant to the matter then in controversy, and therefore, not binding on the parties. Defendant 7, after the compromise effected on 22nd/28th July, 1941, executed three sale deeds in 1941, 1942 and 1944, ostensibly in favour of third parties but really, the plaintiff further alleged, for the benefit of her sons-in-law without any consideration and without any legal necessity. He, therefore, claimed a declaration that those transactions are not binding on the plaintiff. It will thus appear that the suit has been framed as one by the next reversioner for a mere declaration that the alienations made by a limited owner having a Hindu Womans estate were not binding on the reversion.

(3) The suit was contested by the transferees chiefly on the grounds that the plaintiff had no locus standi, as a result of the compromise between him and defendant 7, to challenge the transactions, and that the alienations were for legal necessity, namely, for the marriage expenses of Kamta Prasads daughters and for other valid purposes.

(4) The suit leading up to the second appeal was instituted by one of the transferees aforesaid from defendant 7. He claimed to have purchased for Rs. 5000 certain houses and homestead lands in the town of Aurangabad, that is to say, the moiety share in them belonging to defendant 7 as a result of the compromise between her and Kedar Nath. The transferee prayed for partition as against Kedar Nath.

(5) The defendant contested the suit on the ground that the plaintiff had acquired no title by virtue of the purchase aforesaid, inasmuch as his brothers widow, who had purported to transfer the properties to him, had only a claim for maintenance in the joint family properties. It was also contended that, the plaintiff having purchased an undivided interest, the suit was not maintainable.

(6) Both the Courts below have decreed the suit for partition. Hence, the defendant has come up in appeal to this Court.

(7) The common question raised on both the appeals on behalf of the appellant is that Kamta. Prasads widow had no right to make the alienations in question; that the alienations by the lady were all fraudulent and collusive and without consideration; and that they were really meant to benefit the several sons-in-law of the lady. On behalf of the defendants, on the other hand, it was contended that the plaintiff has no locus standi. In the Court below, the plaintiffs right of suit was questioned on the ground that, by virtue of the compromise in the Land Registration Court, the entire family properties had been divided into two halves, and each of the two parties was given an absolute estate. In this Court, for the first time, another ground of attack has been raised, namely, that, by virtue of the Hindu Womens Rights to Property Act (18 of 1937) as amended by the Act of 1938, the half share of Kamta Prasad which devolved upon his widow, defendant 7, would go to Karnta Prasads heirs who, apart from his widow, would be his daughters, and, after them, their sons, and not the plaintiff, and hence he had no locus stand to institute the suit.

(8) It is, therefore, necessary first to determine the question of whether the plaintiff has any locus standi to institute the suit. If this controversy is decided against him, then no other question need be gone into : it would not then be necessary to decide whether the alienations made, by defendant 7 were valid- and binding on the reversioners whoever they may be. This controversy has to be answered with reference to the provisions of the Hindu Womens Rights to Property Act (18 of 1937). The relevant provisions of the Act are in these terms: "

3. (1) ...... (2) when a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies intestate 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. (3) 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." In the present case, there has already been a controversy in the Land Registration Court as to whether the properties: in question are the joint family properties of the two brothers, Kamta Prasad and Kedar Nath, or the separate properties of Kamta Prasad who acquired them out of his own earnings as a Mukhtar practising at Aurangabad. Assuming for the purposes of this case that they are joint family properties, the question arises as to the extent and the nature of the interest taken by defendant 7 in the properties.

(9) Soon after the death of Kamta Prasad in November. 18-10, his widow, defendant 7, started proceedings for being mutated in place of her deceased husband in respect of certain estates, which were recorded in her husbands name, in the Court of Land Registration Officer at Gaya. apparently on the ground that she had inherited those properties from her husband. Kedar Nath, the surviving brother, opposed her supplication, and claimed mutation for himself as the surviving member of a joint Hindu Mitakshara family. Thai; dispute between the parties was settled by a compromise evidenced by the petition in that Court, Ex. A. The relevant portions of the compromise petition are as follows: "In the above mentioned cases a compromise has been arrived at privately between the parties as per terms mentioned below regardless of all facts : 1. The parties are related as own bhaujai (brothers wife) and debar (husbands brother). After the death of Babu Kamta Prasad Mukhtar aforesaid, the parties have got half and half title to all the properties, viz., Zamindari, Kasht lands, residential house, properties purchased, gola, movable and immovable properties whatever that be (till used) standing in the name of any of the parties. Now after the death of Babu Kamta Prasad, Mukhtar, the parties are not on good terms between themselves. Hence the parties. in a sound state of body and mind, in enjoyment of their full senses, of their own free will and in good intention, understanding their future benefit and loss and in good faith, shall after partitioning all the existing properties into two equal shares enter into possession and occupation of their respective half share as absolute owners according to (the terms of) taksimnama and none of them shall have any connection and concern with the share of the other". The petition further recites that Babu Kamta Prasad died leaving behind him eight daughters, besides his widow, and that, out of those daughters, three had been married in his life-time, and two were given in marriage in Asarh 1348 (May-June 1941) "by incurring debts"; and three daughters still remained to be given in marriage. The petition of compromise further recites that one half of the properties in dispute which will be allotted to the widow of Kamta Prasad will be treated as the properties of the family of the said Karnta Prasad after the death of the widow, and that the widow shall have the right to deal with the properties in whatever way she liked, even by executing out and out sale deeds, and that Kedar Nath shall have no right whatsoever to interfere with those transactions. The only restraint that was put on the power of alienation of the widow was that she will not be entitled to transfer any of the properties to her daughters and sons-in-law.

(10) If this compromise is binding on the plaintiff, Kedar Nath, it is clear that, by virtue of the compromise, she acquired an absolute interest in the properties left by her husband to the extent of a moiety share therein. It is equally clear that, so far as the proprietary interests which were in dispute in the Land. Registration Court were concerned, this compromise is binding on Kedar Nath by way of a family arrangement. The first transaction impugned by the plaintiff is evidenced by Ex. D in favour of defendant 2 for Rs. 250/- in respect of village Bara, tauzi No. 727

5. As this transaction is in respect of a property covered by the dispute in the Land Registration Court, which was compromised as aforesaid, the plaintiff has clearly no locus standi to impugn that transaction.

(11) As regards the remaining two transactions, admittedly they relate to properties which were not the subject-matter of the dispute in the Land Registration Court. The question naturally arises whether the compromise by way of a family arrangement touching those properties can be proved with reference to the compromise petition (Ex. A) which is not registered. The Legislature, by amending the provisions of Section 17, Registration Act, has made it clear that any compromise relating to property not in dispute in a certain litigation must be evidenced by a registered deed, if the property dealt with is of the value of a hundred rupees or more. As the compromise petition (Ex. A) is not registered, there is a real difficulty in the way of the defendants relying upon Ex. A as barring the plaintiffs right to suit. Hence, it becomes necessary to decide the controversy between the parties with reference to the provisions of Act 13 of 1937. Before this legislation on the assumption that Kamta Prasad died in a state of jointness with his brother, Kedar Nath, the latter would have taken the entire property by survivorship subject to the liability to maintain the widow and the daughters, and give the latter in marriage at the cost of the joint family. But the Act in question has introduced far reaching changes in the Hindu law of coparcenary property. According to the provisions of Sub-section (2) of Section 3 of the Act, defendant 7 has acquired in the joint family properties the same interest as her husband; that is to say, the interest of a coparcener. Literally construed, the Act would confer upon the widow the rights of a coparcener in a joint Hindu Mitakshara family. But it is one of the fundamental principles of Mitakshara law of coparcenary that a female is not a coparcener in such a property. Furthermore, the interest which defendant 7 in this case acquired was "the limited interest known as a Hindu womans estate" subject to the proviso that she has the same right of claiming a partition as a male owner. As already stated, the widow and Kedar Nath, her husbands brother, agreed to take all the properties half and half. To that extent, the compromise petition (Ex. A) is certainly evidence. The law is well established that a registered document is not absolutely necessary to prove a cessor of jointness amongst members of a Mitakshara family. Hence, though the compromise petition (Ex. A) may not be admissible to prove that such and such properties were allotted as a result of a partition between the two branches, or that the widow has an absolute interest in her moiety share in the family properties, it is certainly admissible to prove a cessor of the jointness between her and Kedar Nath.

(12) The next question that arises for determination is whether, on the death of defendant 7, her moiety share in the joint family properties would devolve upon Kedar Nath by survivorship or upon the daughters, and, after their death, their sons (some of whom are already in existence) by inheritance. If there had been no cessor of jointness by virtue of the compromise aforesaid, it could have been seriously argued that the properties would go by survivorship; but, in view of the fact that it has been settled by a compromise between the parties that the widow would, hold a moiety share in her own rights apart from any other considerations, the moiety share of defendant 7 must devolve upon the heirs of Kamta Prasad by inheritance, and not by survivorship. On behalf of the appellant, reliance was placed upon a very recent decision of a Division Bench of the Sind Court in the case of -- Gangabai v. Parmesharibai, AIR 1949 Sind 5 to the effect that under Section 3(2) of the Act a Hindu widows interest in her husbands coparcenary estate, so long as she does not claim partition, is liable to be increased or decreased by the death or birth of a coparcener in the joint family in the same way as if her husband had been alive. For this proposition, their Lordships of the Sind Court made reference to a Division Bench decision of the Madras High Court in the case of -- Chinniah Chettiar v Sivagami Achi, AIR 1945 Mad

21. How far that decision is correct and consistent with the decision of a Division Bench of this Court in the case of -- Siveshwar Prasad v. Har Narain, 23 Pat 760, to which my brother Reuben J. was a party, is itself a question. Their Lordships of this Court have held that the interest which is acquired by a widow under the Hindu Womens Rights to Property Act, 1937, is not as a survivor but as an heir of her husband. For this proposition, their Lordships relied upon the decision of a single Judge of the Madras High Court in the case of --Saradambal v. Subbarama, AIR 1942 Mad 212 [LQ/MadHC/1941/323] .

(13) The question now before us did not directly arise for decision before their Lordships of the Federal Court when the Act itself was referred to that Court for its opinion as to the applicability of the Act to agricultural lands, In the matter of Hindu Womens Rights to Property Act, 1937, AIR 1941 FC 7

2. In the course ox his opinion, the learned Chief Justice of India made the following observations : "in addition to the constitutional points above summarized, a suggestion was made on the construction of the Act that it does not provide for the devolution of any property by survivorship nor confers on the widow a right by survivorship, though it gives her the same interest in the joint property as her deceased husband had. This does not seem to be tenable. It is true that Section 3 of the Act does not use the word "survivorship", and it may be that the widow taking a share under the Act does not become a coparcener with the other sharers; but there can be no doubt that in the cases in which it gives to the widow of a deceased coparcener a right to a share in the joint property which she did not possess under the pre-existing law. it takes away to that extent the benefit of the rule of survivorship which would have accrued to the remaining coparceners. The reference must, therefore, be dealt with on the footing that so far as its effect goes, the Act does legislate "with respect to" the law of survivorship." Their Lordships appear to have been inclined to the view that the change effected by the statute had the effect of giving her a share in the coparcenary property. It is settled law that, in a joint Hindu Mitakshara coparcenary, no member has any defined share, and, as soon as the shares of different coparceners are ascertained, it ceases to be a coparcenary property so called in the law of Mitakshara, so far. at least, as the Banaras School is concerned. If the widow does not get into the coparcenary as a result of the provisions of this Act, she gets only a share in the coparcenary property equal to that of her husband, as if there had been a partition just before his death. The observations of a Division Bench of the Lahore High Court in the case of -- Vinod Sagar v. Vishunbhai, AIR 1947 Lah 388, that merely by expressing her unequivocal intention to claim partition a widow does not and cannot bring the joint status of a family to an end, and the property would not, in spite of her claim, lose the joint family character permanently do not appear to be sound and in consonance with the fundamental concept of a joint Hindu Mitakshara coparcenary. In the case of -- Kallian Rai v. Kashi Nath ILR (1943) All 307, a Division Bench of the Allahabad High Court held that the provisions of Sub-section (2) of Section 3 of the Act do not automatically operate to bring about a partition in the joint family, though it is open to the widow to claim a partition under the provisions of Sub-section (3) of that section even as any other male owner could have done. Hence, their Lordships concluded that, so long as such a partition has not been effected, the status of the joint family as such continues, and the widow is capable of being represented in business transactions and in suits by the karta of the family. The question now before us has not been, dealt with by their Lordships in that case. In that case, they had only to consider whether the suit by the karta of the joint family without impleading as plaintiff the widow of a deceased member of the coparcenary, which was the creditor, was properly constituted so as to entitle the plaintiff to obtain a full decree against the debtor of the family. Their Lordships held that such a suit was properly constituted. In a Dayabhag Hindu family, where the shares of all the coparceners are ascertained from the very inception of the coparcenary, it is open to the karta of the family to institute a suit on behalf of the entire family, which may include the widow of a deceased coparcener. Hence, the decision of their Lordships of the Allahabad High Court does not touch the controversy before us.

(14) In my opinion, there is no justification for holding that defendant 7 in the present case, on her husbands death, became a coparcener with Kedar Nath, the plaintiff, in full sense of the term, so as to attract the rule of survivorship. The better opinion, in my view, is that the widow takes the property, the share of her deceased husband, by inheritance, with the result that, on her death, the property goes not by survivorship to the plaintiff but by inheritance to her husbands heirs, namely, in the present case to the daughters, and, after them, to such of the sons of the daughters as may then be in existence. That being so, it must be held that the plaintiff has no locus stand to institute the suit. The first appeal must, therefore, be dismissed with costs without deciding the other controversies raised by the plaint, inasmuch as the decision of those controversies at this stage will be only of an academic value, as this is not a suit by a presumptive or even a remote reversioner.

(15) As a corollary to the foregoing decision, it must be held that the plaintiff in the partition suit was entitled to claim a separate block out of the joint properties as his share which he had acquired by virtue of the sale deed executed in his favour by the widow of Kamta Prasad. The second appeal must also be dismissed with costs. Reuben, J.

(16) I agree, but, as the case is one of first impression, I should like to place my reasons upon record.

(17) The Hindu Womens Rights to Property Act, 1937 has made considerable alteration in the Hindu law as to the devolution of property. Where the death intestate occurs of a Hindu governed by the Dayabhag School, or of a Hindu governed by any other school of Hindu Law or by customary law, the widow or widows of the deceased shall be entitled to succeed to the property of the former or the separate property of the latter in the same share as a son. The widow of a predeceased son and the widow of a predeceased son of a predeceased son are also brought into the picture as heirs: The former will succeed in the same manner as a son if there is no surviving son of the predeceased son and shall inherit in the same manner as a sons son if there is a surviving son or sons son of the predeceased son. The same rule mutatis mutandis will apply to the widow of a predeceased son of a predeceased son. As regards a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law, who at the time of his death has an interest in a Hindu joint family property, the Act provides that his widow shall have in the property the same interest as he himself had. The Act further provides that any interest devolving on a widow under these provisions shall be the limited interest known as a Hindu Womans estate, subject to the proviso that she shall have the same right of claiming partition as a male owner. The question which arises here is the effect of these provisions on the devolution of the property on the death of a widow who has succeeded to it under the Act, In the particular case before us, we are concerned with what was the joint family property of a Hindu governed by the Mitakshara Law. I have not been able to find a direct authority, but the principles on which the decision must depend will appear from an analysis of the reported cases.

(18) The Act first came under the considera tion of the Court in a reference under Section 213, Government of India Act, 1935, made to the Federal Court (In the matter of the Hindu. Womens Rights to Property Act, 1937, A. I. R. 1941 F C 72), The questions referred were (1) whether either the Hindu Womens Rights to Property Act, 1937. or the Hindu Womens Rights to Property (Amendment) Act, 1938, ope rates to regulate (a) succession to agricultural land, and (b) devolution by survivorship of property other than agricultural land, and (2) whether the subject of devolution by survivor ship of property other than agricultural land is included in any of the entries in the three Legislative Lists in Schedule 7, Government of India Act, 193

5. Thestatute was, therefore, considered by the Federal Court entirely in its constitu tional aspects. In the course of his discussion, however, Gwyer C. J. made the observations which have been cited by my learned brother. He was definitely of the opinion that the widow does not succeed by survivorship, and he sug gested, that, by taking a share under the Act, she does not become a coparcener with the other sharers.

(19) The question that arose in--Saradambal v. S. Subbarama Ayyar, AIR 1942 Mad 212 [LQ/MadHC/1941/323] was the right of a judgment-creditor to proceed against the share in joint family property of a judgment-debtor in the hands of his widow, who had succeeded to it under the Act. The learned Judge pointed out that under Section 3, Sub-section (2), the interest taken by the widow is the same interest as the husband himself had, that is to say, she took the interest subject to the rights and obligations attached to that interest and, subject, further, to the restrictions placed on her powers by Section 3, Sub-section (3). By this latter sub-section, she took a Hindu womans estate, that is to say, she was competent to alienate the interest only for purposes sanctioned by Hindu law and the interest was liable to be seized in execution of decrees for the payment of the debts of the last male owner. To the contention, that, her husband having died undivided and his share not having been attached during his lifetime, the judgment-creditors remedy was defeated by the rule of survivorship, his Lordships replied that the effect of the Act was that the existence of the widow suspended the operation of the rule of survivorship. The interest of her husband, therefore, remained in existence and was liable to attachment in execution of the decree.

(20) The question in -- Natarajan Chettiar v. Perumal Animal, AIR 1943 Mad 246 [LQ/MadHC/1942/273] was whether an indorsee from the widow and the two sons of the payee of a promissory note was entitled to maintain a suit on the foot of the promissory note without obtaining a succession certificate. Horwill, J. held that, though the widow under the Act does not succeed to her husband by survivorship, her succession is not one by inheritance so as to make a succession certificate necessary before her right could be enforced in Court. In his Lordships view, the effect of Section 3, Sub-sections (2) and (3) of the Act is a survival of the husbands persona in the wife, giving her the same rights as her husband had except that she has a limited power of alienation.

(21) Satyanarayana Charlu v. Narasamma, AIR 1943 Mad 708 [LQ/MadHC/1942/287] was also concerned with a suit on a handnote, the plaintiff being the son of the promisee. The defence was that under the Hindu Womens Rights to Property Act of 1937 the widow of the promisee became entitled to a half share and that the plaintiff was not entitled to bring the suit without impleading his mother. Horwill J. repelled this contention. According to him, the effect of the death of a coparcener is that a widow stands in the shoes of her deceased husband and, although she is not a coparcener, she has the rights of her husband who was a coparcener. She is a member of the joint family and the karta of the family is entitled to sue on behalf of that family including her us a member. The suit was, therefore, competent. 21A. The same question arose in -- Kallian Rai v. Kashi Nath, AIR 1943 All 188 [LQ/AllHC/1942/62] . The promisee Sahu Gopi Nath had died leaving two widows and it was contended that in the absence of the widows the suit was incompetent. Their Lordships observed : "The Act was intended to give better rights to women in respect of property--that is the Preamble to the Act--but there is no indication that the Act intended to interfere with the established law relating to joint family. Whatever inroads it may have made on the doctrine of survivorship, it does not effect a, statutory severance or disruption of the joint family. The widow as a member of a joint Hindu family is to have the same interest in the joint property as the deceased husband had and this devolution does not otherwise affect the joint family status unless the widow availing herself of the provisions of Sub-section (3) claims a partition. As long as she does not do so, the status of a joint Hindu family continues and although she may not be a coparcener with the other sharers as was held in In re Hindu Womens Rights to Property Act, 1937, A. I. R. 1941 F. C. 72 (ante) at page 74 in the sense that the principle of survivorship no longer subsists it cannot be said that she is not a member of a joint Hindu family as long as there is no partition. She is therefore capable of being represented by the karta of the family". They held that under Section 3, Sub-section (2), the interest taken by the widow is that of an undivided member of a joint family in the joint family property.

(22) In -- Seethabai v. Narasimha,- A. I. R. 1945 Mad 306, [LQ/MadHC/1944/305] the question of the position of a widow succeeding under the Act arose in connection with an application under the Guardians and Wards Act, 1890. One Ramchandra Krishna Shet had died leaving behind two minor sons and three widows. On an application by Narasimha Shet, grand-uncle of one of the two minors, for being appointed guardian of the properties of the minor, it was contended that, as the properties of the two minors belonged to a joint Hindu family coparcenary, the application was not maintainable. Their Lordships pointed out that the incompetence of such an application arises because in an undivided Mitakshara family there is usually a manager or a karta entitled to be in possession of the properties on behalf of the family and no individual member of the family can predicate what his share in the property is. In the case before their Lordships, however, the coparcenary consisted of only two members, the widows, although they got an interest in the property under the Act, not being members of the coparcenary, and, therefore, not being entitled to act as a manager or karta. In the circumstances their Lordships held that the guardian could be appointed in respect of the joint family property of the two minors. This decision is not free from difficulty, but, for the purposes of the case before us, it is not necessary to analyse it any further.

(23) A new point was considered in--Chin-niah Chettiar v. Sivagami Achi, AIR 1945 Mad

21. This case arose out of a suit for partition filed by a Hindu widow who had succeeded to her husbands interest in the joint family property under the provisions of Section 3, Sub-section (2), of the Act. At the time of his death, her husband was the only son of his father. Subsequent to his death and before the filing of the partition suit, the appellant had adopted another son. The question was whether the plaintiff was entitled to a half share or only to a one-third share in the family property. Their Lordships pointed out that what the widow gets under the above provisions is the same interest as her husband had and that that interest, being a coparceners interest, is not a fixed interest, but an interest liable to alteration by fluctuations in the number of coparceners. During his life time, her husbands interest was an uncertain one. His father might have had a son born to him, thus, reducing her husbands share. It was open to him to fix his share by insisting upon partition, but he did not do so. The section did not give the widow any greater rights than those possessed by her husband and, when she sought partition, the joint family had been increased by the adoption of another son. Therefore, all that she was entitled to was a share of one-third in the estate.

(24) This decision was followed in--Ganga-bai v. Sm. Parmesharibai, AIR 1949 Sind 5, which also arose out of a suit for partition. There, a decrease had occurred in the number of coparceners by the death of one Chainomal. Counsel on behalf of the appellants contended that, while the interest of a widow representing that of her husband in the joint family was liable to be diminished by, an increase in the members of the undivided family, it was not liable to be augmented by the death of a member. He abandoned the contention on a ciose reading of -- Chinniah Chettiar v. Sivagami Achi, AIR 1945 Mad 21 [LQ/MadHC/1944/215] (ante).

(25) The only decision of this Court which I have been able to find is -- Siveshwar Prasad v. Lala Har Narain, 23 Pat 760. The respondent in that case had obtained a decree in a money suit brought by him against Siveshwar Prasad Narain Singh and against Mr. Kalawati, widow of Madhusudan Prasad Narain Singh, in which a decree was prayed for against the person and property of Siveshwar Prasad Narain Singh and the assets of Madhusudan Prasad Narain Singh in the hands of Mt. Kalawati. In execution, it was objected by Siveshwar Prasad Narain Singh that execution could not proceed against the undivided interest of Mt. Kalawati in the joint family property. Fazl All C. J., with whom I agreed, held that under the Act Mt. Kalawati did not succeed to her husband by survivorship, that she acquired the interest as an heir and, therefore, the interest remained in her hand as an asset of her husband liable to be proceeded against by the creditor. He cited with approval -- Saradambal v. Sub-barama Ayyar, AIR 1942 Mad 212 [LQ/MadHC/1941/323] (ante).

(26) The only case which strikes a discordant note is -- Vinod Sagar v. Vishunbhai, A I R 1947 Lah 388. It arose out of a suit in ejectment filed by one Vinod Sagar. The one defence taken was that the suit was incompetent because three widows, being his mother, his grandmother and the widow of a predeceased brother, who had acquired an interest in the property on the death of their respective husbands, had not joined as plaintiffs, although, by declaring their intention to separate, they had become tenants in common in respect of the property. Abdur Rahman J., who delivered leading judgment held that, even conceding that they were tenants in common, the plaintiff was entitled to maintain the suit, it being the right of every cosharer "to protect the property in his own interest as well as in that of his tenants in common and to oust the trespasser although undoubtedly he would be doing so not for his own exclusive benefit but for the benefit of all those who are co-owners in the property". He went on, nevertheless, to consider whether the widows in question were tenants in common or joint tenants and, in the course of this consideration, made the observations which are relevant to the present case. His Lordship stresses the word "interest" in Section 3, Sub-section (2) of the Act. Under the Act, the widow gets the same interest in the joint family property as her husband had. This has the effect, in his Lordships opinion, of placing her "on the same level as the male issue of the last owner along with the male issue or in default of them" and of vesting her husbands interest in the joint family property in her by succession, to this extent abrogating the law of survivorship. He points out, however, that the Act says nothing about the interest which the husband possessed in the coparcenary as distinct from his interest in the coparcenary property. His widow would, therefore, not become a coparcener, but would continue to be a member of the joint Hindu family as she was even during her husbands lifetime. Therefore, in his opinion, the right of partition given to the widow by Sub-section (3) of Section 3 is confined to the property and does not extend to the coparcenary. In the words of his Lordship "It is not impossible to conceive that members of a joint Hindu family may partition their property, at least partially leaving the status of tne joint family undisturbed." From this he concludes that "the contention does not appear to be legitimate that by a mere declaration of her unequivocal intention as to partition of her husbands interest in the property she should be taken to have disrupted the family as well in the same way as a coparcener could have done." He adds : "Wnether its character would change even after a partition by metes and bounds does not arise for decision at this stage, although as at present advised I seem inclined to the view that it would not." He further expressed a doubt as to whether her interest would be subject to fluctuation by births and deaths in the family as her husbands interest would have been. He is inclined to stress the word "had" in Sub-section (2) of Section 3, and argues that what the widow gets is the interest wnich her husband had at the time of his death and not what he might have had if he had continued to live. With respect, I would prefer the view expressed in the Madras case that the interest which the widow gets is of the nature of the interest which the husband had, that is to say, an interest liable to fluctuation. On the view as expressed by his Lordship, the conclusion naturally followed that, whatever the widows might have done, the family remained undividsd and the karta was entitled to maintain the suit. These observations of his Lordship are all in the nature of obiter dicta, and the other member of the Bench, who merely concurred in the order proposed, did not associate himself with them.

(27) There are two further cases to which I would like to refer, although they relate to families governed by the Dayabhag law.

(28) In -- Kamalabala v. Jiban Krishna, 50 Cal W N 555, one Ganesh Chandra Bose, a Hindu governed by the Dayabhag School, had died possessed of certain property and leaving him surviving his widow Binodini, two sons Jiban and Tincori and a daughter-in-law Kamala, widow of his predeceased son Sushil. After his death. Ksmala filed a suit for partition im-pleading her mother-in-law and the two brothers-in-law. Under Sub-section (1) of Section 3 of the Act each of the parties was entitled to a one-fourth share. In the course of the suit, the mother-in-law died. The question was what should happen to her share. Das J. held that, under the provisions of Sub-section (1) read with Sub-section (3) of Section 3, a widow is put in the same position as a son except that she is subject to certain restrictions as regards alienation and. on her death, the share goes not to her stridhan heirs but to those who would inherit had the last male owner died at the moment of her death. There is nothing in the Act to suggest that the sons or their representatives have a vested remainder in this share. According to him, therefore, the test for deciding how the share of the mother-in-law should devolve was to find out who would be the heirs of Ganesh Chandra Bose if he had died on the day when his widow died.

(29) A similar question arose before this learned Judge in -- Provash Ch. Roy v. Pro-kash Ch. Roy, 50 Cal W N 559. There, one Purna Chandra Roy, a Hindu governed by the Dayabhag School, had died intestate leaving him surviving two sons Provash and Prokash, a widowed daughter-in-law Usha, widow of a predeceased son Pratap, and a grand-daughter Shantilata, daughter of Pratap. In 1942, Provash sued Prokash for the partition of the estate left by their father, and, subsequently, on an objection by Usha, she and Shantilata were added as defendants. A preliminary decree was passed declaring the two brothers and Usha to be entitled to each to one-third share. Then Usha died and the question arose as to who was entitled to her share. Again, relying on Sub-sections (1) and (3) of Section 3, his Lordship held that, Usha having succeeded directly to her father-in-law and holding a Hindu womans estate, on her death, the succession opened as if the last male owner, that is, her father-in-law, had died on the date of her death and the property passed not to her husbands heirs, but to the heirs of her father-in-law.

(30) To sum up, the weight of judicial opinion appears to be that under the Act the widow succeeds not by survivorship but by inheritance or something akin thereto. The property in her hands is liable to be followed in execution of the debts of the previous male owner. She continues to be a member of the joint Hindu family and, as such, can be represented by the karta in proceedings in Court. She has the same interest in the property, subject to Sub-section (3) of Section 3, as the last male owner had. Her interest is, therefore, liable to fluctuation by variations in the number of coparceners. Her interest is a limited one of the nature known as a Hindu womans estate, but she has the same right of claiming partition as a male owner. She continues in herself the persona of the previous male owner, and, on her death, the property devolves as it would have devolved if he had died on the date when she dies.

(31) With respect, I am unable to agree with the opinion of Abdur Rahman J. regarding the limited extent of the widows power to effect a partition. I agree with my learned brother that her power is co-extensive in this respect with that of a male coparcener. Therefore, in the present case, the effect of the compromise between her and Kedar Nath Amasta appellant was a severance in status. In determining how the property is to descend on her death, the test will, therefore, be as if her husband died in a state of separation. As things now stand, her slaughters are the preferential heirs and the plaintiff-appellant had no locus standi to institute this suit.