Reuben, C.J.

1. This appeal arises out of a suit for the partition of a house situate in Mahalla Kharadi in the town of Bihar Sharif. The appellant was defendant No. 2 in the suit.

2. This house formerly belonged to a Joint Hindu family governed by the Mitakshra law, consisting of one Jhaman Ram and his son Rameshwar Ram, husband of Musammat Kapurni, who is defendant No. 1 in the present suit.

3. Rameshwar Ram died on 11-3-1938, and Kapurni succeeded to his interest in the property under the Hindu Womens Rights to Property Act, 1937, peelings between Musammat Kapurni and her father-in-law do not appear to have been pleasant, and on 12-7-1939, Jhaman Ram executed a deed of gift transferring the entire property to Bhagat Shukul, plaintiff in the present suit, who at the same time executed a mukarrari deed in favour of Jhaman Ram entitling him to remain in possession of the house so long as he lived. Musammat Kapurni thereupon filed a pauper suit, Title Suit No. 24 of 1940, in the court of the second Subordinate Judge, Patna, attacking the deed of gift as collusive and unreal. The suit was decreed and the decision was upheld both by the District Judge and by the High Court in -- Bhagwat Shukul v. Mt. Kapurni : AIR 1944 Pat 298 [LQ/PatHC/1944/42] (PB) (A). Bhagwat Shukul has now sued for partition, claiming an eight annas share in the property. He has succeeded in the Courts below. The appellant to whom Musammat Kapurni has transferred her interest in the property attacks the correctness of the decision on the ground that the plaintiff has no interest in the property.

4. Two points have been urged firstly, that it was decided in Title Suit No. 24 of 1940 that no interest passed under the deed of gift, and secondly, that the house being the property of a joint Hindu family it was not open to Jhaman Ram, who was merely a coparcener, to transfer his interest by way of gift.

5. In support of the first contention it is urged that the relief asked for in Title Suit No. 24 of 1940 was a declaration that the deed of gift and the mukarrari deed were collusive and nominal and not intended to transfer the property. The plaint in that suit has not been exhibited in the present suit, but reliance is placed on issue No. 7 as framed by the court of first instance which was enumerated by the court of first appeal as one of the points arising for decision. "Are the deeds of danpatra and mukarrari dated 12-7-1939, collusive and inoperative as alleged by the plaintiff" The only conclusion which the two courts came to under this issue was that the interest of Musammat Kapurni in the suit property could not be affected by the execution of the deed of gift. The statement of the case of Musammat Kapurni as given in these two judgments shows that both the courts regarded the suit as a suit for a decision that her interest in the property was not affected by the two deeds, and the declaration given by the court of first instance and upheld by the court of first appeal is to the effect that

"plaintiff has got interest in the property in dispute and her interest cannot be affected by the deeds of danpatra and mukarrari dated the 12th July, 1939."

In the second appeal also the suit was treated as one for a declaration that the interest of Musammat Kapurni was unaffected and the decision of the High Court as reported in -- : AIR 1944 Pat 298 [LQ/PatHC/1944/42] (FB) (A) is in the same terms as in the court of first instance. There is, therefore, no substance in the first contention.

6. The second contention is, in my opinion, barred by the rule of constructive res judicata. A declaration to the effect that Jhaman Ram as a mere coparcener could not by gift transfer his interest in the joint family property could have been asked for in Title Suit no. 24 of 1940. On i the merits also I do not think the contention can succeed. The position of a widow who succeeds her husbands interest under the Hindu Women Rights to Property Act, 1937, was considered by me sitting with Sinha. J. (as he then was) in -- Kedar Nath v. Radha Shyam : AIR 1953 Pat 81 [LQ/PatHC/1949/123] (E), and after the examination of a large number of authorities we came to the conclusion that 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 as the last male owner had and her interest is, therefore, liable to flurtuation by variations in the number of coparceners.

By reason of Sub-section (3) of Section 3 of the Act, however, her interest is a limited one of the nature known as a Hindu womans estate. Her position, however, is not that of a coparcener. After the death of Rameshwar Ram his father Jhaman was the sole surviving coparcener. I am unable to find in the Hindu Womens Rights to Property Act, 1937, anything to inhibit the operation of the ordinary rule of Hindu law that the sole surviving coparcener has absolute right of the disposal over the property of the joint Hindu family. This power is necessarily limited by the interest to which the widow of the deceased coparcener succeeds under the Act, as was held in -- : AIR 1944 Pat 298 [LQ/PatHC/1944/42] (FB) (A). Mr. Rajkishore Prasad has drawn our attention to an observation of Jagannadha Das, J. (as he then was) in -- Radhi Bewa v. Bhagwan Sahu (C) to the effect that a widow succeeding under the Act can "question alienations made or partitions effected behind her back after the right accrues to her." His Lordship points out that unlike the mother under the pre-existing law, who was entitled to a share only on partition, the widow under the Act has a present interest in the property; this interest, however, is not a coparcenary one. When, therefore, he speaks of her power to question alienations made or partitions effected after the right accrues to her, he does not mean a right of challenge wider than that which she was held to have in -- : AIR 1944 Pat 298 [LQ/PatHC/1944/42] (FB) (A).

The conclusion to which I have arrived is supported by the observation of their Lordships in -- Seethamma v. Veerana Chetty : AIR 1950 Mad 785 [LQ/MadHC/1949/368] (D):

"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."

7. It has been urged that since a widow succeeding under the Act is entitled to augmentation of interest owing to reduction in the number of coparceners, she has an interest in the entire property of the joint family. Therefore, it is argued, Musammat Kapurni had a sufficient interest in Jhaman Rams share of property to inhibit his power of transferring it by way of gift. It is obvious that such interest as Musammat Kapurni has in Jhamans share of the property was merely a spes successionis. To the extent that she had a present interest in the property she was entitled to and has obtained relief in Title Suit No. 24 of 1940. So far as her interest was merely a spes successionis she is entitled to no relief.

8. The appeal fails and is dismissed with costs.

Choudhary, J.

9. I agree.