JUDGMENT

M.M. DAS, J. : This Second Appeal has been admitted on the following substantial question of law :-

“Whether appellate Court without consideration of material documents is correct in law in reversing the finding of fact of the Trial Court ?

During the course of hearing of the appeal, this Court found that another substantial question of law also arises for determination, which is as follows :-

“Whether the widow of Panchu, who is a Pre-Act widow, was legally competent to sell her alleged four annas share in the coparcenary property in 1929 to Bandhu and whether the appellants, who represent the branch of Bandhu can be held to be the owners of such four annas share sold by the widow - Tulasi ?

2.To appreciate the contentions raised by the respective parties, it is necessary to state the facts in gist, which has culminated in the present Second Appeal.

On the admitted genealogy of the parties, it is found that Kruti, who is the common ancestor, had four sons, namely. Dina, Panchu, Dharmu and Bandhu. Dharmu’s branch is represented by the plaintiffs respondents and Bandhu’s branch is represented by the defendants - appellants. Undisputedly, Dina died as a bachelor and Panchu died on 1923 leaving no issue. Tulasi was the widow of Panchu. There were two schedules in the plant, being Schedule-A and Schedule B properties, over which the plaintiffs claimed eight annas share. When defendants appellants attempted to raise construction over a portion of Schedule-A property allegedly in excess of their share, the plaintiffs-respondents filed the suit for partition claiming 1/2 half share.

The defendant’s case was that they have purchased four annas share from Tulasi, the widow of Panchu in the year 1929 and, as such, they are entitled to ten annas share in Schedule-A property.

3.The learned Trial Court after framing of issues and trying the suit came to hold that since the sale deed dated 28.1.1929 was executed by Tulasi in favour of Bandhu alienating 1/4th share of her deceased husband - Panchu and the genuineness of the execution of such sale deed is not challenged by the plaintiffs, the said sale deed is genuine document with consideration. If the sale is accepted, then Bandhu, the ancestor of the defendants will get four annas share of the property left by the common ancestor Kruti. They will also get two annas share from the property of Dina, who died issueless. Thus, they will be entitled to ten annas interest in Schedule-A property. Thus holding, the learned Trial Court decreed the partition suit preliminarily ascertaining the share of the plaintiffs to be six annas and that of the defendants-appellants to be ten annas share in both Schedules - A and B property of the plaint. None of the parties dispute their share over Schedule-B property as decreed by the learned Trial Court. However, being aggrieved by the judgment and decree of the learned Trial Court with regard to Schedule-A property, the plaintiffs - respondents filed T.A. No.74/41 of 1990/1998 before the learned District Judge, Bhubaneswar which was heard and disposed of by the learned Second Additional District, Judge, Bhubaneswar on 26.7.1993.

4.The learned lower Appellate Court on analyzing the facts of the case and the questions raised before it found that the crucial point, which requires determination, is whether Tulasi, the widow of Panchu, had any saleable right and the right in respect of the property sold by Tulasi by sale-deed in the year 1929 passed to Bandhu. Referring to the decision in the case of Lakhman Kumar Kar v. Basant Kumari and another 36(1970) CLT 72, where it has been laid down that the provisions of Hindu Women’s Right to Property Act, 1937 are not applicable to a widow whose husband died prior to coming into force of the said Act, 1937, the learned lower appellate Court came to the conclusion that Tulasi had no saleable right as no title passed to her after death of her husband and, accordingly, modified the decree in the suit by holding that both