( 1 ) THIS is a plaintiffs appeal arising out of a suit for possession and for recovery of Rs. 337-8-0 as mesne profits.

( 2 ) THE case first came up for hearing before a learned Single Judge of this Court and as in his opinion it raised an important question of law on which there was a divergence of judicial opinion he referred it to a Division Bench.

( 3 ) THE facts giving rise to the aforesaid appeal are as fallows :

The plaintiff is the widow of one Sudama who died in 1935, as an unseparated member of a joint Hindu family consisting of himself, his father Ra-ghunath and the defendants. In 1937 raghunath separated from the defendants and became the sole surviving co-parcener qua the properties which fell to his lot in that partition. He died on 17-11-1942, leaving the plaintiff, the widow of his predeceased son, as the sole representative of his branch of the family. On 26-9-1945 the defendants succeeded in obtaining mutation in respect of Raghunaths properties from the Revenue Court and hence the present suit by the widowed daughter-in-law of raghunath. The case of the plaintiff was that as the properly left by Raghunath was his separate property within the meaning of Section 3 (1) of the Hindu Womens Rights to Property Act, 1937, and as she was his only heir being the widow of his predeceased son she was entitled to all that property under the First Proviso to that section. The defendants who are the son and grandson of Ram Roop, a brother of Raghunath, raised several pleas in defence. It was contended (1) that the plaintiff was not the widow of Sudama, the real widow being one manthrana, who had become mad and whose whereabouts were not known, (2) that there was no partition between the defendants and Raghunath and that they had always remained joint and (3) that the property in suit was the ancestral property of the joint Hindu family to which the defendants and Raghunath belonged and as such the defendants succeeded to it by the rule of survivorship.

( 4 ) THE trial court decreed the plaintiffs suit but on appeal the learned Civil Judge reversed that decree and dismissed the suit. Both the courts found in favour of the plaintiff on the questions of fact involved in the case but differed on their interpretation of the expression separate property used in Section 3 (1) of the Hindu Womens Rights to Property Act, 1937.

( 5 ) ACCORDINGLY the only point which was very vehemently canvassed before us was as to the interpretation of the expression separate property used in Section 3 (1) of the Hindu Womens rights to Property Act, 1937. In order therefore to appreciate the rival contentions a reference to section 3, of the Hindu Womens Rights to Property Act is necessary. That section runs thus :

3 (1 ). When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow or it there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son; provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be limited interest kn