The expression "separate property" in Section 3(1) of the Hindu Women's Rights to Property Act, 1937, means self-acquired property and not property held by a sole surviving coparcener or a coparcener holding property allotted to him on partition.

K.Sahai, J.

1. This case has been placed before this Bench because there are conflicting decisions of this Court on some of the points of law involved in it of the case may be summarised as follows. I may first give short geneology.

2. This appeal by the defendant, Khatrani Kuer, arises out of a suit for partition. The facts of the case may be summarized as follows. I may first give short geneology.

Bisheshwar

______________________|______________________

| | |

Sidhnath Gauri Jagannath

(died in 1953)

=Jasmati Kuer

(died in 1954).

|__________________________

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Chandrapal Daughter

(died before 1953) Tapeshwari Kuer

=Khetrani Kuer (Plaintiff)

(defendant).

There was a partition between Sidhnath and his brothers in 1939 after the death of Bisheshwar, and they were separate from each other. We are not concerned with the properties allotted to Gauri and Jagannath because the controversy in this case relates only to the property held by the branch of Sidhnath. As I have indicated, Chandrapal died in a state of jointness with his father before 1953 but long after 1937, when the Hindu Womens Rights to Property Act, 1937 (hereinafter to be referred to as the Act) came into effect. His father, Sidhnath, died in 1953, and his mother, Jasmati, died in 1954. Thereafter Tapeshwari instituted the suit out of which this appeal arises, and framed it as a simple suit for partition. The defendant alleged that plaintiff Tapeshwari was not the daughter of Sidhnath but that of Gauri. She also alleged that Tapeshwari was not in possession, and hence a simple suit for partition did not lie.

3 The Subordinate Judge, who tried the suit, held that the plaintiff was not the daughter of Sidhnath, that she was not entitled to any part of the property held by his branch even if she was his daughter, and that she was not entitled to maintain a simple suit for partition as she was not in possession. On these findings, he dismissed the suit.

4. On appeal, the 1st Additional District Judge of Gaya has held that the plaintiff is the daughter of Sidhnath, that she is entitled to half of the property held by his branch, and that she can maintain the suit as, being a cosharer, she must be deemed to be in possession. He has also referred to the fact that ouster has not been pleaded. He, therefore, allowed the appeal, and passed a preliminary decree for partition.

5. Appearing on behalf of the appellant Mr. Balbhadra Prasad Singh has challenged the lower appellate Courts finding that the plaintiff is the daughter of Sidhnath; but he has not been able to advance any reason in support of his argument. The finding is one of fact, and, in the absence of any good ground for interference, it must be accepted.

6. It has not been disputed before us that Chandrapal had, at the time of his death, an interest, along with his father, in a joint Hindu family property, and hence, by operation of Sub-section (2) of Sec.3 of the Act, his widow, Khatrani, came to have, in the property, the same interest as Chandrapal had. It is not alleged that Khatrani claimed partition, nor that there was a partition between her and Sidhnath or Jasmati. That the interest of Sidhnath passed to his widow, Jasmati, on his death in 1953 has also not been questioned. The first point, however, which learned counsel for both sides have agitated, is whether the property field by Sidhnath at the time of his death was his separate property within the meaning of Sub-section (i) of Sec.3 of the Act. The controversy has centered round the point whether the expression separate property as used in that Sub-section means only self-acquired property or it covers also property held by a sole surviving coparcener and property allotted on partition to a coparcener who has no male issue.

7. There is no doubt that, under the ordinary Hindu Law, separate property meant n