A widow's interest in a joint family property, inherited under the Hindu Women's Rights to Property Act, 1937, is a Hindu woman's estate, which can be transferred during her lifetime without legal necessity.

Das, J.

1. This is a second appeal by the plaintiff, and raises the interesting question of an interest which has devolved on a widow under Sub-section (2) of Sec.3 of the Hindu Womens Rights to Property Act, 1937, as applied to agricultural land in Bihar, can be transferred by her during her life-time. The short facts out of which the question has arisen are these. One Bhoju Mahto had two sons, named Pem and Teko. Pem is the appellant before us. Teko died in 1946 leaving a widow named Mossamat Lilia who was defendant No. 3 in the suit. On the 8th April 1948. Mossamat Lilia executed a sale deed in respect of the interest of her husband which had devolved on her, in favour of defendants 1 and 2. The appellant brought the suit for a declaration that the aforesaid sale deed was void and not binding on him.

2. The learned Munsif, who dealt with the suit in the first instance, found (1) that Mossamat Lilia was not the widow of Teko, (2) that Teko died in a state of jointness with his brother Pem, and (3) that the sale deed in favour of defendants 1 and 2, respondents before us, was a sham transaction. The learned Subordinate Judge reversed the first finding of the learned Munsif and held that Mossamat Lilia was the married wife of Teko. He further found that there was no separation between Pem and Teko, and Teko died in a state of jointness with Pem. The learned Subordinate Judge held however, that the right or interest in the joint family property which had devolved on Mossamat Lilia on the death of her husband Teko could be transferred by her in favour of defendants 1 and 2 and as Mossamat had admitted the execution of the sale deed, the sale deed was good during her life-time. On these findings, the learned Subordinate Judge allowed the appeal and dismissed the suit. Against this decision of the learned Subordinate Judge, the present second appeal has been preferred by the plaintiff Pem Mahton.

3. Learned Counsel for the appellant has frankly conceded before us that he is not in a position to challenge the "finding of the final court of fact that Mossamat Lilia was the married wife of Teko Mahton. The only point which he has argued before us is that on a proper interpretation of sub-sections, (2) and (3) of Sec.3 of the Hindu Womens Rights to Property Act, 1937, it should be held that Mossamat Lilia had no right to transfer her interest to respondents 1 and 2 during her life-time. The argument of learned Counsel for the appellant is that under the Mitakshara law as administered in Bihar, no coparcener can alienate even for value his undivided interest without the consent of the other coparceners, unless the alienation be for legal necessity, or for payment by a father of antecedent debts; therefore, Teko had no right to alienate his undivided interest in the joint family property, and under Sub-section (2) of Sec.3 of the Hindu Womens Rights to Property Act, 1937 Mossamat Lilia had in the property the same interest as Teko himself had. If, therefore, Teko did not have any right to alienate his interest in the joint family property, Mossamat Lilia had also no right to alienate that interest during her lifetime -- this, in substance, is the argument of learned Counsel for the appellant.

4. An exactly similar argument was made in Kunja Sahu V/s. Bhagaban Mohanty, AIR 1951 Orissa 35 (A), and the decision of their Lordships of the Orissa High Court in that case completely covers the present case. I can do no better than quote the observations which Pani grahi, J. made in that case. His Lordship said at page 39 of the report.

"As I read the two sub-sections, I come to the conclusion that Sub-section (2) limits the extent of the widows estate to the same interest as her husband had while Sub-section (3) describes the character of that estate as a Hindu Womans estate. The proviso to Sub-section (3) creates a right in the widow to reduce the interest of her husband to her separate possession by claiming partition as a male owner.