The sole surviving coparcener in a joint Hindu family has the absolute right of disposal over the property of the joint Hindu family.

Reuben, 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/s. Mt. Kapurni, AIR 1944 Pat 298 (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 (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)