The Judgment of the Court was delivered by

Lahiri, J.:— One Gagan Chandra Mitra, a lunatic, instituted a suit on the 5th October, 1945, against his wife Pannasashi Mitra for a declaration of his title to the properties described in the plaint, for confirmation of possession and also for a permanent injunction restraining his wife from selling the properties. The plaintiff's case was, that though the properties had been purchased in the name of his wife they really belonged to him and were purchased with his own money and that his wife was really his benamdar. In the plaint the plaintiff also alleged that though the defendant was his lawfully married wife she became unchaste and permanently left the plaintiff's protection in the year 1942. The defendant in her written statement denied the material allegations in the plaint and alleged that she had left her husband's protection on account of ill-treatment and cruelty. On the 28th June, 1951, the plaintiff died and on the 27th July, 1951, the petitioner before us named Kanailal Mitra applied for getting himself substituted in the place of the deceased plaintiff on the allegation that he being the plaintiff's sole surviving brother was his only heir and that the defendant Pannasashi being unchaste was excluded from inheritance. This application was opposed by the widow Pannasashi on the ground that under the Hindu Women's Rights to Property Act, namely, Act XVIII of 1937 as amended by Act XI of 1938 unchastity is not a ground of exclusion from inheritance and therefore she was a preferential heir. The objection of the widow has been upheld by the learned Subordinate Judge by his order dated March 13, 1954, and the application filed by the petitioner Kanailal Mitra has been rejected and as a result of the rejection of the petitioner's application the learned Subordinate Judge has come to the conclusion that the interest of the plaintiff has merged in the interest of the defendant with the result that the suit has abated automatically. Against this order of March 13, 1954, Kanailal Mitra, the applicant for substitution, has obtained the present Rule.

2. Mr. Ghose, appearing for the opposite party, has raised a preliminary objection to the maintainability of the application for revision on the ground that the order against which the petitioner has obtained this Rule is appealable and, therefore, no revision lies.

3. For this proposition, he has relied upon a decision of a single Judge of the Allahabad High Court in the case of Goswami Brij Jivanlal v. Goswami Shiam Lal (1) [I.L.R (1950) All. 975]. In that case it was held that in determining whether an order of abatement is open to appeal, a distinction should be drawn between those cases of abatement where it is due to the failure of the heirs being brought on the record within the period allowed by law or due to the court deciding that a particular applicant is not the legal representative and those cases where the abatement is due to the court deciding that the right to sue does not survive and it was further held that in the latter class of cases there is a decree which conclusively determines the rights of the paries with a right of appeal. In the case before us, however, the learned Subordinate Judge has in the first place rejected the petitioner's application for substitution and as a result thereof he has come to this further conclusion: “The application failing the suit abates automatically. I order accordingly.” The order before us is a combination of an order under Order 22, rule 5 and Order 22, rule 3 of the Code of Civil Procedure. The order of abatement passed by the learned Subordinate Judge is dependent upon his decision that the petitioner is not entitled to be substituted as the legal representative of the deceased plaintiff. In our opinion, the order of the learned Subordinate Judge, in so far as it decided the question of the right of the petitioner to get himself substituted in the place of the deceased plaintiff, is an order under Order 22, rule 5 and the petitioner has no right of appeal against that order and as such the: application for revision under section, 115 of the Code of Civil Procedure is maintainable. The preliminary point urged by Mr. Ghose, therefore, is overruled.

4. Before proceeding to dispose of the Rule on the merits, we must observe that the learned Subordinate Judge has not taken any evidence on the question whether Pannasashi, the widow of the plaintiff, was in fact unchaste nor has he recorded any finding on that point. He has proceeded on the footing that assuming Pannasashi was unchaste she was still entitled to inherit under the Hindu Women's Rights to Property Act and for this proposition he has relied upon the decision of Chunder, J., in the case of Surjya Kumar Sardar v. Manmatha nath Naskar (2) (56 C.W.N 841). The question of law decided by the learned Subordinate Judge arises for consideration only upon a finding of fact to the effect that Pannasashi was in fact unchaste. As a result of the omission of the learned Subordinate; Judge to come to a finding on this question of fact, we cannot decide this question finally in this Rule and we must have to send the case back to him if we disagree with the proposition of law decided by him. This is extremely unsatisfactory and we desire to point out that if a decision on a question of law depends upon a question of fact, the question of fact must be decided first in order to avoid the necessity of an order of remand.

5. Turning now to the merits of the Rule, it is important to note that in the present case it is admitted that the plaintiff Gagan Chandra Mitra died without leaving any son or the heir of a son. Under the Dayabahaga School of Hindu Law by which the parties to the present Rule are governed, the widow is entitled to inherit her husband's estate provided she does not suffer from any of the disabilities which exclude an heir from inheritance. Before the coming into operation of the Hindu Women's Rights to. Property Act of 1937, the existence of a son would exclude a widow from inheritance. Under the provisions of section 3 of that Act, however, a widow is entitled in respect of her husband's property to the same share as a son. The preamble of the Hindu Women's Rights to Property Act of 1937 shows that this Act was intended to give better rights to women in respect of property. One of the hardships intended to be removed by the Act was to confer on the widow a right of inhertance even where she had a son which right she did not possess under the pre-existing Hindu Law of succession. It seems to us that in a case where there is no son, the widow succeeds to her husband's estate not under the Hindu Women's Rights to Property Act but under the general principles of the Dayabhaga School of Hindu Law. In cases where a widow has a right of succession under the general law of the Dayabhaga School we do not see any reason why she should have to take resourse to the special provisions of the Hindu Women's Rights to Property Act which was intended to remove defects in the pre-existing Hindu Law. The view that section 3 of the Hindu Women's Rights to Property Act applies only to cases where the owner left a widow as well as a son is supported by the decision of the Federal Court in the case of Umayal Achi v. Lakshmi Achi, (3) [reported in A.I.R (1945), Federal Court 25 : 1945 Federal Court Report, page 1]. At page 32 of the report in the All India Reporter, Varadachariar, J., makes the following observation: “It is true, as the preamble enacts, that the measure was intended ‘to give better rights to women’ but it must be remembered that the Act was not a codifying Act nor even a general amendment of the Hindu Law of inheritance. It will help us to ascertain the precise scope of the Act if we can ascertain the defects which it sets out to remedy. Even under the ordinary Hindu Law, a widow would in certain circumstances have succeeded to the property held by her husband as the last surviving coparcener………….. By themselves these; cases would not call for the interference of the Legislature. It is only if the owner had sons (including in that terms grandsons and great grandsons) that the widow would be excluded by the sons. Legislative interference was required to obviate hardship when the owner left a widow as well as sons.” These observations, in our opinion, clearly mean that section 3 of the Act comes into play only when the last owner left a widow as well as a son. In view of these observations of the Federal Court, we cannot agree with the view expressed in Mayne's Hindu Law, 11th Edition, pages 704-705, to the effect that section 3 of the Act applies to cases where the widow alone is the heir and there is neither male issue, nor widowed daughter-in-law nor grand daughter-in-law. As in the case before us the widow has no son we hold that her right of succession should be determined not by the Hindu Women's Rights to Property Act of 1937, but under the general principles of Dayabhaga School of Hindu Law and her right of succession to her husband's property is restricted by the limitations which are to be found in the Dayabhaga School of Hindu Law.

6. Assuming for argument's sake, however, that the Hindu Women's Rights to Property Act applies to the present case, we cannot agree with the view that this Act has the effect of abrogating the pre-existing rule of Hindu Law which disqualifies a widow from inheriting her husband's property if she is unchaste. Chunder, J., held in the case of Surjya Kumar Sardar v. Manmatha Nath Naskar (2) (56 C.W.N 841), that the combined effect of sections 2 and 8 of the Act is that the provisions in the Hindu Law of a widow being deprived of her inheritance because of unchastity stands abrogated. This is also the view taken by a single Judge of the Bombay High Court in the case of Akoba Laxman Pawar v. Sai Kom Genu Pawar (4) [I.L.R (1941) Bom. 438]. With great respect to the learned Judges who decided those cases, we cannot agree with that view. The provisions of section 2 of the Act to the effect that section 3 will apply notwithstanding anything in the Hindu Law or custom to the contrary, in our opinion, means nothing more than this that anything in the Hindu Law which is contrary to what is enacted by section 3 stands abrogated. The effect is merely this that whereas under the pre-existing law a Hindu widow would be excluded from inheritance by a son, grandson or great grandson, under the new Act she is entitled to inherit a share equal to that of a son. We cannot agree with the view that section 2 has the effect of removing all the disabilities which would exclude an heir from inheritance under the Hindu Law. It has been pointed out by Viswanatha Sastri, J., in delivering the judgment of the Full Bench of the Madras High Court in the case of Ramaiya v. Mot-tayya (5) [A.I.R (1951) Mad. 954 : I.L.R (1952) Mad. 187] that: “This Act (Act XVIII of 1937) is not exhaustive nor self-contained and must be fitted into the context of the exist-ing Hindu Law except to the extent forbidden by its plain terms”. We respectfully agree with these observations as to the scope and object of the Hindu Women's Rights to Property Act of 1937. In this Full Bench case the Madras High Court elaborately considered the question whether section 2 of the Hindu Women's Rights to Property Act abrogates the rule of Hindu Law excluding an unchaste widow from succession to her husband's property and came to the conclusion that it does not. Rajamannar, C.J, quoted a passage from Maxwell on Interpretation of statutes which runs as follows: “Legislature does; not intend to make any substantial alteration in the law beyond what it expressly declares either in express terms or by clear implication or in other words beyond the immediate scope and object of the statute.” Viswanatha Sastri, J., after considering several decisions of the Federal Court came to the conclusion that though the Hindu Women's Rights to Property Act conferred new rights of succession upon widows, yet in view of its far-reaching consequences on other branches of Hindu Law, the Act should be so construed as to make no further inroad into Hindu Law than is warranted by its plain terms. We respectfully agree with the above view as to the scope and effect of the Hindu Women's Rights to Property Act of 1937 and we hold that section 2 of that Act has not removed the disqualification of a Hindu widow from succeeding to the estate of her husband if she is found to be unchaste.

7. For the reasons given above, we make this Rule absolute and set aside the order of the learned Subordinate Judge and direct him to take evidence on the question as to whether the allegation made by the petitioner before us to the effect that Pannasashi was unchaste is true. If upon the evidence to be adduced by both sides he comes to the conclusion that Pannasashi Mitra was unchaste during the lifetime of her husband or at the time of his death, the widow Pannasashi Mitra should be excluded from inheritance and the application filed by the petitioner for substitution will be granted. If, on the other hand, upon the evidence, he comes to the conclusion that Pannasashi Mitra was not unchaste the order made by him will stand,

8. The petitioner will have his costs of this Rule.

Mitter, J.:— I agree.

S.K.B