The property obtained by a father on partition with his son is not 'separate property' as understood in Sub-section (1) of Section 3 of the Hindu Women's Rights to Property Act, 1937, but is 'joint family property' as understood in Sub-section (2). Therefore, the widow of a Hindu father who died intestate after partition with his son is entitled to the same interest in the properties left by her husband which he had, that is, the entire interest.

NARASIMHAM, J.

( 1 ) THIS is an appeal by defendant No. 1 against the decision of the Subordinate judge of Berhampur decreeing the plaintiff's suit for partition of the properties described in Schedules 'a' and 'b' of the plaint and for other consequential reliefs.

( 2 ) DEFENDANT No. 1. is the widow of the T. Ramayya Naidu who died intestate on 17-12-46. The plaintiff is their only SOL. He, separated from his father on 19-91938 after executing a registered deed of partition by which the disputed properties described in Schedules 'a' and 'b' of the plaint fell to his father's share. The plaintiff has a sister named Kalimoui and in the deed of partition between the father and the son it was provided that each of them should contribute Rs. 3,000/for her marriage expenses. For some reason or other, her marriage was not solemnised during the life-time of ramayya Naidu. After his death, the plaintiff's mother, (defendant No. 1) performed the marriage of Kalimoni on 22-4-1947 and for that purpose she sold half share of their house described in Schedule 'b' to defendant No. 2 for a sum of rs. 10,000/ -. The plaintiff alleged that there was no legal necessity for such sale, that he had already contributed his share of Rs. 3,000/-for his sister's marriage expenses and that adequate cash had been left by his father for the same purpose and that his mother (defendant No. 1) tell under the clutches of defendant No. 2 who was a designing intriguer and alienated valuable house property without legal necessity for a grossly inadequate price. The plaintiff, however, conceded that his mother (defendant No. 1) was entitled to half share of the properties left by his father and while asking for partition of the properties described in Sehedules 'a' and 'b' further prayed for a declaration that the sale deed dated 20-4-1947 executed by his mother (defendant No. 1) in favour of defendant No. 2 was fraudulent collusive and not binding on him.

( 3 ) DEFENDANT No. 1 contended that by virtue of the provisions of the Hindu women's Rights to Property Act, 1937 (Act 18 of 1937) (hereinafter referred to as the Act) she was entitled to the whole of the properties left by her husband in as much as the plaintiff had separated from him as early as 1938. She further stated that the alienation made in favour of defendant No. 2 was not collusive but for legal necessity as the plaintiff made absolutely no arrangements for his sister's marriage. Defendant No. 2 also contested the suit in the lower Court stating that the alienation in his favour was for legal necessity and binding on the plain tiff.

( 4 ) THE trial Court held that out of the consideration of Rs. 10,000/-, Rs. 9,000/was actually spent for the marriage and other incidental expenses of Kalimoni and thus the transaction was for legal necessity. But he thought that the price paid for the property was grossly inadequate and that there were some other circumstances connected with the transaction which indicated that it was not 'above board' and was not therefore valid and binding on the plaintiff. As regards the share of the plaintiff in the disputed properties the learned lower, Court accepted his contention that he was entitled to half share. Hence, he passed a preliminary decree for partition. But at the same time he gave a declaration to the effect that the sale deed executed by defendant No. 1 in favour of defendant No. 2 would not be binding on the plaintiff on condition that the entire consideration money was paid to the second defendant within a specified period.

( 5 ) DEFENDANT No. 1 alone appealed to this Court. Defendant No. 2 was made a respondent; but he has not cared to enter appearance in this appeal or to contest the decision of the lower Court regarding the setting aside of the alienation on certain conditions. This portion of the judgment of the trial Court must therefore be taken as final.

( 6 ) THE only question that was pressed before us was the question about the share of the P