A Hindu widow who takes possession of her husband's share in a joint Hindu family property after his death prescribes only for a widow's estate unless she can show that she intended to claim an absolute estate.

AGARWALA, J.:- This is a plaintiffs appeal arising out of a suit for possession of a property which was in possession of one Mst. Newasi while she was alive and which she had, during her life-time, transferred by means of a sale deed to the respondent. The facts briefly stated are as follows:

There were three brothers, Debi Prasad, Shiva Prasad and Mahabir, who formed a joint Hindu family. Shiva Prasad died in 1906 leaving Smt. Sambodha as his widow; Mahabir died in 1916 leaving Smt. Newasi as his widow; and Debi Prasad died in 1925 leaving Smt. Tulsa as his widow. As the brothers were all members of a joint Hindu family, on the death of Shiva Prasad the estate passed to Debi Prasad and Mahabir; and on the death of Mahabir, Debi Prasad was the sole surviving coparcener of the property, and in law became the exclusive owner of the property, and the widows had only a claim for maintenance.

The plaintiff-appellant is a collateral of Debi Prasad. On the deaths of Shiva Prasad and Mahabir, however, the names of their widows were entered. Smt. Sambodhas name was entered over one-third of the property and so was the name of Newasi entered over another one-third of the property. Apparently the names of Shiva Prasad, Mahabir and Debi Prasad were entered on the record as owners of the property in equal shares, though no village record has been filed in the case showing the nature of the entry.

2. After the death of Shiva Prasad and Mahabir, Smt. Sambodha, jointly with Debi Prasad, executed a simply mortgage in favour of Cava Deen plaintiff-appellant on 24-6-1922. In this deed of mortgage it was stated that they were mortgaging their one-third shares over which they were in possession. On 31-12-1943, after the death of Debi Prasad, Smt. Sambodha transferred her one-third share in the property to the wife of the plaintiff-appellant on the allegation that she was transferring her share which was in her possession.

The necessity recited in the deed of mortgage was the payment of debts and family expenses; while in the deed of sale it was shown as Kharch Khangi, payment of Malguzari and payment of debts.

3. On 18-1-1944, Newasi made a sale deed of her entire one-third share in favour of the defendant-respondent. In this deed she stated that she was transferring the share in her possession and that the transferee would become absolute owner of the property. It would be observed that neither Smt. Sambodha nor Smt. Newasi claimed absolute title in themselves in respect of the properties which they were transferring.

4. Smt. Newasi died in 1944,: and soon after her death the appellant filed the present suit for possession over her share of the property on the ground that he was the next reversioner of Mahabir, that the sale deed executed by Smt. Newasi in favour of defendant-respondent was without any legal necessity and, as such, he was entitled to the possession of the property.

5. The defence of the defendant-respondent was that since Mahabir and his brothers were members of a joint Hindu family, on the death of Mahabir the sole surviving owner was Debi Prasad, and that Smt. Newasis possession was adverse and was in the nature of a full absolute ownership and that therefore, she had every right to transfer her property to the defendant. In the alternative it was claimed that even if Smt. Newasi was in possession as a Hindu widow, the sale deed was made by her for legal necessity.

6. The trial court held that the sale deed was not for legal necessity and that Smt. Newasis possession was in the capacity of a Hindu widow and that therefore, the transfer was invalid. In the result the suit was decreed.

7. This decree was reversed by the lower appellate court holding on the above circumstances that Smt. Newasis possession was in the capacity of an absolute owner of the property and not as a Hindu widow, and that therefore, her transfer could not be questioned by the reversioner of her husband.

8. In this appeal by the plaintiff it has been strongly