The share obtained by a coparcener on partition is not separate property within the meaning of Sec.3 (1) of the Hindu Womens Rights to Property Act (Act No. XVIII of 1937).

1. The question of law involved in this appeal is whether the share of ancestral properties allotted to Bauku on partition is "separate property" within the meaning of Sec.3 (1) of the Hindu Womens Rights to Property Act (Act No. XVIII of 1937).

2. The plaintiffs Doman Mahto and Satranghan Mahto brought the suit on the allegation that they had obtained title to the disputed land by purchase from defendant No. 5, Mt. Jajba, by a registered Kobala dated the 3rd March, 1947. The case of the plaintiffs was that Makhan had four sons, Bauku, Sube, Trisul and Jugeshwar. Trisul and Jugeshwar are defendants 1 and 2. Sube died leaving a widow, Musammatt Jiwachi, defendant no, 4. Bauku died on the 1st of" December, 1946, before his son Chandreshwar. The case of the plaintiffs is that Musammat Jajba, defendant No. 5 was entitled to 1/4th share of the properties of Makhan and that the Kebala executed by defendant No. 5 on the 3rd March, 1947, conveyed valid title to the plaintiffs with regard to 1/4th share of the properties of Makhan.

The trial court found that Bauku and his brothers had separated in 1943, that Chandreshwar died first, on the 1st of Novembar, 1946, and that Bauku died on the 1st December, 1946, about a month later. The trial court also found that the plaintiffs were not entitled to 16 kathas 19 dhurs, as stated in the plaint, but were only entitled to 14 kathas 9 dhurs. The Munsif accordingly gave a decree for joint possession to the plaintiffs along with defendants 1, 2, 3 and 4. The finding of the Munsif was affirmed by the learned Subordinate Judge of Darbhanga. On the question of the quantum of the area purchased by the plaintiffs, the learned Subordinate Judge held that the calculation of the Munsif was not correct and there was no material on the record to determine what wa9 the area to which defendant No. 5 was entitled. The learned Subordinate Judge, therefore, granted the plaintiffs a decree for 1/4tn share of Makhan, namely, the share obtained by Bauku on partition without mentioning any specific-area of land.

3. The sole question for determination in this appeal is whether the plaintiffs are entitled to the entire share of Bauku on partition, namely, the 1/4th share of the properties of Makhan, or whether the plaintiffs are entitled to a decree for possession of half the share of Bauku, or, in other words 1/8th share of the ancestral properties of Makhan. On this point learned Counsel for the defendant-appellants made the submission that the property obtained by Bauku on partition in 1943 was not separate property. within the meaning of Sec.3 (1) of the Hindu Womens Rights to Property Act, and that the daughter-in-law of Bauku, defendant No. 5 had, therefore, no right to the entire share of Bauku. In support of this proposition learned Counsel relied upon a decision of the Federal Court in Umayal Achi V/s. Lakshmi Achi, AIR 1945 FC 25 (A). The opposite view point wag put forward by learned Counsel for the respondents and it was submitted that the share obtained by Bauku on partition of the joint family properties was separate property within the meaning of Sec.3 (1) of Act No. XVIII of 1937, and, therefore, the lower courts were right in granting a decree to the plaintiffs for the entire share of Bauku in the ancestral properties. In supports of his argument learned Counsellor the-respondents relied upon a decision of a Division Bench of the Patna High Court in Nandkumari Devi V/s. Bulkan Devi, ILR 23 Pat 508 : (AIR 1945 Pat 87) (B).

In our opinion, the argument addressed by learned Counsel for the appellants is correct and it must be held that the share obtained by Bauku on partition of the joint family properties was not separate property within the meaning of Sec.3 (1) of Act No. XVIII of 1937. It is true that a Division Bench of this High Court, held in ILR 23 Pat 508: (AIR 1945 Pat 87) (B) that the expression separate property in Sec.3 (1) of Act No. XVIII of 1937 meant property which the intestate