A Hindu widow who inherits her husband's interest in a joint Hindu family property under the Hindu Women's Right to Property Act, 1937, acquires a limited estate known as a Hindu woman's estate, which is subject to the same restrictions and limitations as the interest held by her husband, including the inability to alienate the property without legal necessity.

Shib Chandra Prasad, J.

1. The plaintiffs have appealed against the judgment of the Additional Subordinate Judge, Dhanbad, confirming the decision of the Additional Munsif of the same place in a suit filed by them for declaration of title to and recovery of possession of the lands mentioned in schedule A of the plaint and for declaration of title and confirmation of possession in respect of the lands mentioned in Schedule B of the plaint. There was also a prayer for injunction against the defendants.

2. The lands originally belonged to one Chha-tradhari Pandey. He left two sons Indranarain Pandey and Lalmohan Pandey. Lalmohan died in 1944 leaving behind his widow, Sabitri. It has been alleged by the plaintiffs that there had been a partition between Indranarain and Lalmohaa, whereby the lands in dispute were allotted to Lalmohan so that after his death his widow Sabitri came in possession of these lands and in 1950 executed a kebala in favour of plaintiff no. 1 in respect of these lands for legal necessity. The other plantiffs are members of the family of plaintiff No. 1. It was alleged by the defendants that they had taken settlement of a portion of plot No. 28, one of the plots in dispute from Indranarain and Lalmohan by a Sada Hukumnama dated 23-1-1944 on payment of salami and since the date of settlement they had been in possession of the same.

Subsequently, after the death of Sabitri, widow of Lalmohan, Indranarain sold some share in the village to the defendants covering the lands in dispute, and this amounted to the transfer of the disputed lands to the defendants. Thereafter dispute arose between the parties resulting in a criminal proceeding under Sec.145 of the Code-of Criminal Procedure in respect of section A lands which was ultimately decided against the plaintiffs appellants who alleged that they had been dispossessed by the defendants on the strength of that decision.

3. I have set out the facts material for the disposal of this appeal. The findings of the Courts below are as follows. (It may be mentioned that both the courts below have come to concurrent findings). They have held that there had been no partition between Indranarain and Lalmohan, that Sabitri had a limited estate in the property, that she had no right to alienate the lands in dispute to the plaintiffs and that the kebala executed by her transferring these lands to the plaintiffs, was not for legal necessity. The Hukumnama set up by the defendants was held to be a collusive document.

4. The points raised before me are as follows. Firstly, it is said that the finding that there had been no partition between Indranarain and Lal-mohan was vitiated by error of law, because the learned Subordinate Judge had rejected the evidence of some of the witnesses on the ground that it was hearsay, although that was not correct; secondly, that under the provisions of the Hindu Womens Right to Property Act, 1937, Sabitri had a widows estate in the interest of her husband which had devolved on her after his death, and as a consequence of one of the incidents of the widows estate, she was entitled to alienate the property inherited by her and as such she had a right to sell the lands in dispute even though there had been no partition between the two brothers Indranarain and Lalmohan, in favour of the plaintiffs by the kebala in question; thirdly, that the courts below had not considered the aspect of the matter that the kebala in dispute itself contained recitals which constituted an expression of her will to separate from Indranarain, and which therefore resettled with severance of status, and, consequently even if there had been no partition by metes and bounds, she became entitled to sell the property to the plaintiffs, notwithstanding that she as a widow may have had no such right to make any alienation even for legal necessity, prior to there having been no severance in the status of the members of the joint family of Indranarain and Lalmohan; fourthly