The main legal point established in the judgment is that the widow became the full owner of her husband's share in the joint family property, regardless of whether her husband died before or after the Acts came into force.

Raj Kishore Prasad, J.

1. In this appeal by defendants 1 to 7 from the decision of the Court below decreeing the plaintiffs suit for partition, we are concerned only with defendant No. 8, who is respondent No. 1 to the appeal.

2. The facts leading to the present appeal may shortly be put as below :

3. There was one Babuji Jha, who had two sons; (1) Ramdhari Jha whose grandson is the plaintiff, and (2) Bachan Jha who died leaving behind five sons, namely, defendants 1 to 3 and two other sons, who are now dead, (1) Achki Jha whose widow is defendant No. 8 and (2) Sibu Jha whose widow is defendant 9. Defendants 4 to 6 are the sons of defendant No. 1. Defendant No. 7 is the son of defendant No. 2.

4. The plaintiff claimed partition in respect of his moiety share in the properties under partition, and, the remaining moiety share belonged admittedly to the defendants. Defendants 1 to 7 compromised with the plaintiff agreeing to divide trio suit properties according to the plaintiffs claim. Defendants 8 and 9, the two widows of the two deceased brothers of defendants 1 to 3 contested the suit claiming 1/10th share each in the properties under partition by virtue of the Hindu Womens Rights to Property Act, 1937. Their defence was that their husbands died in a state of separation from defendants 1 to 3, and, that they died after the passing of the Hindu Womens Rights to Property Act, 1937, and, therefore, they were entitled to enjoy the respective shares of their husbands in separation from the other defendants.

5. The Court below negatived the defence of defendants 8 and 9 that their husbands died in a state of separation from the other defendants, and, found that there had been no separation in the family of the defendants before the suit. The learned Additional Subordinate Judge, who decided the suit in the Court below, however, held that Achaki Jha and Sibu Jha, husband of defendants 8 and 9, died after the passing of the Hindu Womens Rights to Property Act, 1937 in 1938 and 1948 respectively, and, therefore, defendants 8 and 9 were entitled to their husbands share which was 1/5th each in half of the properties under partition, that is, each had 1/10th share in the properties under partition. On these findings, the learned Judge of the Court below decreed the plaintiffs suit in terms of the compromise as against defendants 1 to 7 and further orders that 1/5th share of each of the defendants 8 and 9 will be separated from half of the properties given to defendants 1 to 7. He accordingly, passed a preliminary decree for partition. From this decree, the present appeal has been presented by defendants 1 to 7 against defendants 8 and 9.

6. During the pendency of the appeal in this Court, defendant No. 9, the widow of Sibu Jha, compromised with the plaintiff, and, therefore, now we are left only with defendant No. 8, and, accordingly, Mr. A.C. Roy, who appeared for the appellants, confined his appeal only to the claim of defendant No. 8. Mr. A.C. Roy contended, in the first instance, that the finding of the Court below that Achaki Jha died in the year 1938 was not supported by any evidence; on the other hand, it was against the evidence on the record. He strongly relied on Exts. A and A(1) and contended on the basis of the same that Achki Jha died in or about the year 1932, long before the passing of the Hindu Womens Rights to Property Act, 1937. (After reviewing the evidence on this point his Lordship continued). In my opinion, therefore, the Court below has correctly come to the conclusion that Achki Jha died sometime in 1938 after the passing of the Hindu Womens Rights to Property Act, 1937, and, therefore, she was entitled to a share representing her husbands share in the properties under partition. I would, therefore, overrule the first contention of Mr. A.C. Roy.

7. Mr. B.B. Sen, who appeared for defendant No. 8--respondent No. 1, however, contended that, even assuming that Achaki Jha, husband of defendant No. 8, died befor