A widow of a separated brother is not entitled to claim maintenance from her deceased husband's brother.

Kanhaiya Singh, J.

1. Jamuna Prasad Sahi, resident of Mauza Sandha, died leaving him surviving two sons, Ramashankar Sahi and Umashankar Sahi. In 1942 Ramashankar executed a usufructuary mortgage bond dated 21st December, 1942 (exhibit C) in favour of his brother, Umashankar, in respect of 3 kathas 11dhurs of land for a consideration of Rs. 50/-. There is a recital in this bond that after the death of their father the two brothers Ramashankar and Umashankar, separated in all respects and are still separate. In 1943 Ramashankar executed in favour of Srimatl Dulhin Radha Devi, wife of his brother Umashankar, a registered sale deed conveying to her 3 bighas 14 kathas 13 1/2 dhurs of kasht land i.e., all the lands he was possessed of, for a consideration of Rs. 500.00 (Vide exhibit A). Out of the consideration, the vendee retained with herself Rs. 50.00 for redemption of the aforesaid mortgage (exhibit C). The reason for the sale, as recited therein, was that three years before, Ramashankar had settled in mauza Bahur Chapra, his father-in-laws place and wanted to purchase lands there, as he felt considerable difficulty in cultivating those lands from a long distance. Ramashankar died in 1949, leaving behind him Sheodeni Kuer, his widow. The present suit was brought by her in forma pauperis on 20th December, 1951, against Umashankar and his wife, Srimati Dulhin Radha Devi, for partition of the disputed properties, on the allegations that her husband and Umashankar (defendant No. 1) constituted an undivided Hindu family, that her husband died in a state ot jointness with his brother, that the suit properties constituted joint family properties and that she was entitled 1o a partition of her husbands share therein under the Hindu Womens Rights to Property Act, 1937. In the alternative, she claimed maintenance at the rate of Rs. 900 per annum and also Rs. 2000 on account of arrears of maintenance. She averred that in her absence the defendants procured from her husband a usufructuary mortgage bond and a sale deed fraudulently, by practising fraud on him and that they (sic) were spurious deeds, not binding upon her.

2. Defendant No. 1 and his wife filed separate written statements, raising however, common defence. They denied jointness of the family and alleged that the plaintiffs husband and defendant No. 1 were separate in mess, business and property, that one had no concern with the other and that the usufructuary mortgage bond and the sale deed were genuine, valid and for consideration and binding upon the plaintiff. They further denied liability to maintain the plaintiff.

3. The learned Additional Subordinate Judge held that the two brothers, Ramshankar and Umashankar, were separate and that the usufructuary mortgage bond (exhibit C) and the sale deed (exhibit A) were genuine, valid and for consideration and that the plaintiff was not entitled to maintenance. He accordingly dismissed the suit. From that decree and judgment the present appeal has been preferred by the plaintiff.

4. The first and important question ior consideration is whether the plaintiffs husband and defendant No. 1 were separate. (After discussion of evidence His Lordship proceeded:)

Thus, the oral evidence of the defendants witnesses, supported by the earlier statements of Ramshankar Sahi, and the mutual transactions between them establish beyond any shadow of doubt that both the brothers were separate, and I hold accordingly.

5. As to the claim for maintenance, it is undeniable that the widow of a separated brother is not entitled to claim maintenance from her husbands brother. Mr. Mukherji urged that her claim for maintenance was founded upon the provisions of sec. 39 of the Transfer of Property Act. This section provides as follows:

"Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveabie property, and such property is transferred, the right may be enforced against the transf