A Hindu widow with a limited interest in her husband's property under the Hindu Women's Rights to Property Act, 1937, can convey the property to repay her husband's debts, provided that the transaction is fair and justified by Hindu Law.

1. THIS is a second appeal at the instance of the plaintiff. The suit was instituted for declaration of title and for permanent injunction.

2. ADMITTEDLY, the property in suit belonged to one Baren Saha. He left behind him two sons, namely, Posen Saha and Narasingha Saha. On the death of Baren Saha, Posen inherited the property to the extent of his share as one of the heirs of Baren Saha. Posen Saha died leaving behind two sons, namely, Fagu and Tutu. Tutu died bachelor. Fagu died childless leaving behind him his widow, namely, Gayamani. Gayamani died in the year 1954. Gayamani, before her death, by a registered kobala dated February 19,1935, transferred the property in favour of Khetranath Saha. It was stated in the deed that she was compelled to sale the property to repay the debts of her husband. Khetranath died leaving behind him his last will and testament bequeathing the property in favour of his son, namely, Bonomali Bonomali obtained probate of the will from the Court of the learned District Judge, Malda, in Misc. Case No. 40 of 1967. Thus, Bonomali became the absolute owner in respect of the property in suit.

3. THEREAFTER, the property in suit was sold to this plaintiff by a registered kobala dated January 17, 1979. As the defendant No. 1, Narasingha Saha, was disputing the title of this plaintiff, the suit was instituted for declaration and for permanent injunction.

4. NARASINGHA Saha contested the suit claiming that the transfer made by Gayamani, the widow of Fagu, in 1935 was a invalid transfer and, therefore, on the death of Gayamani, the property devolved upon him as her reversionary.

5. THE learned trial Judge dismissed the suit holding, inter alia, that under the old Hindu Law, the widow had limited life interest, but she had no right to transfer the property.

6. THE lower appellate Court, also, dismissed the appeal filed by the plaintiff.

7. BEING aggrieved, the plaintiff has come up with this appeal.

8. ALTHOUGH, the appeal was admitted for hearing under Order XLI, Rule 11 of the Code of Civil Procedure on May 6, 1991, no substantial question of law was framed.

9. FOR the purpose of disposal of this appeal, I frame the following substantial question of law:- Whether a Hindu widow, who had inherited a limited interest in the property in suit on the death of her husband, could convey the property to repay the debt of her husband ? In the deed dated February 19, 1935, which has been marked as Exhibit-2 in the suit, Narasingha Saha was a witness.

10. THE Hindu Women's Rights to Property Act, 1937 came into force on April 14, 1937. In view of the provisions of Sections 2 and 3 of the said Act, the widow, subject to provisions of sub-section (3) of Section 3 of the said Act, is entitled to the same share as a son. Under sub-section (3) of Section 3 of the said Act, the interest, thus, devolving on Hindu widow under the provisions of the said Act, is limited interest known as a Hindu Woman's estate. However, she is entitled to claim partition as a male owner.

11. THE obligation of a widow, taking her husband's property, to pay his debts has been held to be a pious duty coming under the head of religious benefit.

12. IN the case in hand, it was not alleged that the husband contracted the debts for immoral purposes or the husband repudiated it during his lifetime. Moreover, the defendant No. 1/reversioner was a witness to the deed. It raises a presumption that the transaction was a fair one and one justified by Hindu Law. Although the consent of reversioner, by itself, could not give validity to the alienation, but it raises a presumption that the transaction was a fair one and one justified by Hindu Law

13. THEREFORE, both the Courts below applied wrong legal test in dismissing the suit seeking declaration of title. However, both the Courts below, concurrently, found, as findings of fact, that the plaintiff was not in possession of the property in suit and as the plaintiff could not prove that he was in poss