Narayan, J.:— This appeal arises out of a suit for partition. The plaintiff who is the son of one Halkhori Singh sued for the partition of several properties which have been described in four Schedules in the plaint. The defendants nos. 1 to 3 are the sons of the plaintiff, and the defendant no. 4 is the wife of the plaintiff. The defendant no. 5 was Ramsaran Singh, another son of Halkhori Singh, who died during the pendency of this appeal. The sons of Ramsaran were impleaded as defendants nos. 6, 7 and 8 in the action. The defendant no. 9 is the son of Ranikeshwar Singh who was another son of Halkhori Singh, and the defendants nos. 10 to 12 are the sons of defendant no. 9. Besides these defendants, there are another set of defendants namely, the defendants third-party, and they have been described in the plaint as the co-sharers of the plaintiff and the defendants first and second parties in respect of several properties sought to be partitioned. Khatas nos. 51 and 52 are included within Schedule no. 3 of the plaint, and partition is sought with regard to these khatas as well.

Besides other defendants, the suit was resisted by the defendants nos. 18 to 21, and their defence was confined to khatas nos. 51 and 52. The plea set up by these defendants was that khatas nos. 51 and 52 were property which had been acquired by Mana Singh, the deceased brother of the defendants 18 and 19 and the father of the defendants nos. 20 and 21. The contention urged on their behalf is that the plaintiff or the defendants first and second parties could not seek, a partition of these lands, inasmuch as these lands were the exclusive property of Mana Singh and had been acquired by him under certain sale-deeds.

The learned Subordinate Judge after examining the evidence with regard to the lands of khatas nos. 51 and 52 came to the conclusion that Mana Singh was a mere farzidar for Halkhori Singh, the ancestor of the plaintiff and the defendants first and second parties and the father of Ramkeshwar Singh, Ramsaran Singh and Saudagar Singh.

The defendants nos. 18 to 21 have, therefore, come up in appeal, and the only contention put forward on their behalf is that the Court below was wrong in coming to the conclusion that this property (khatas nos. 51 and 52) had been acquired by Halkhori Singh in the farzi name of Mana Singh, who is the son of one Deonath who was Halkhori's sister's son.

The short point which arises for determination in this appeal, therefore, is whether the plaintiff has succeeded in proving that the property in dispute, namely the lands of khatas nos. 51 and 52, is a property belonging to Halkhori Singh and his defendants. Though we find that this appeal has abated as both parties have submitted their arguments even on the merits of the case, I should like to record a finding on the question as to whether the plaintiff has succeeded in proving that the lands of khatas nos. 51 and 52 are property belonging to his family in which he is entitled to have a share on partition. There can be no doubt that the plaintiff has succeeded in establishing his claim with regard to these lands. Admittedly, Mana Singh was a close relation of Halkhori Singh, and the lands had been acquired under four sale-deeds which are marked as exhibits 15, 15(a), 15(b), and 15(c) in this suit. Exhibits 15, 15(a) and 15(b) were executed in the name of Mana Singh in August 1901, and the unregistered sale-deed, exhibit 15(c), was executed in the name of Halkhori Singh himself on 30th Jeth 1304, which would correspond to the English calendar year 1897. It is significant that in the survey record not only the lands covered by exhibits 15, 15(a) and 15(b) were recorded in the name of Mana Singh, but even the land covered by exhibit 15(c) was recorded in his name. As these documents had been executed before the survey, they could not contain the plot numbers, but admittedly in the survey operations the lands covered by these sale-deeds were recorded under khatas nos. 51 and 52. No explanation could be offered as to how the land covered by the unregistered sale-deeds, exhibit 15(c), standing in the name of Halkhori Singh could be recorded in the name of Mana Singh. At one stage of his argument Mr. G.P Das, who argued this appeal on behalf of the appellants, was inclined to think that it had not been established that the land covered by the unregistered sale-deed was included under khatas nos. 51 and 52. But the learned Subordinate Judge has stated quite clearly in his judgment that it had been admitted before him that the lands covered, by all the four kebalas were recorded under khatas nos. 51 and 52. Moreover, the ground no. 14 of this appeal runs as follows:

“For that the Court below should not have drawn any adverse inference against defendants 18 to 21 by the fact that the lands covered by ‘the registered Kebala’ (which is a misprint for ‘the unregistered Kebala’) Ext. 31(c) was recorded in the name of Mana Singh is survey.

Thus, even the appellants have proceeded on the assumption that the land covered by the kebala, exhibit 15(c) is recorded in the name of Mana Singh in the survey. It is undoubtedly a very important circumstance to indicate the farzi nature of the transaction if it is found that even the land covered by the sale-deed standing in the name of Halkhori Singh was recorded in the survey in the name of Mana Singh. Besides this circumstance, the plaintiff has adduced very satisfactory documentary evidence for the purpose of showing that possession has always been with him or the other members of his family. The original sale-deeds as well as the original survey khatian and the rent receipts standing in the name of Mana Singh and covering a fairly long period have been filed by the plaintiff. The rent receipts which are exhibits 11 series are very important evidence in this case for proving that the plaintiff or the members of his family have been paying the rent of these lands. Most of these receipts show that the payment of rent was made by Saudagar Singh, the present plaintiff, and there can be no reasonable explanation for Saudagar paying the rent for so many years on behalf of Mana Singh. The learned Subordinate Judge has further rightly pointed out that the entries in these receipts we supported by the entries in the plaintiff's account-books, exhibit 12 series. The entries in the account-books go to establish that payment of rent was actually made by the plaintiff. The formal proof of these account-books was waived, and they are, therefore, to be treated as documents admitted by the defendants. In my opinion, the entries in the receipts showing payment by the plaintiff supported as they are by the entries in the account-books produced by the plaintiff are conclusive of the point of farzi and conclusive of it as against the present appellants. There are other documents also which go to establish that the persons really in possession of these lands were the plaintiff and the members of his family. There were two rent decrees obtained in the year 1940 with regard to these khatas, and these decrees had been paid, by the plaintiff Saudagar Singh, Ramsaran Singh (defendant no. 5) and Ragho Prasad Singh (defendant no. 9). The petition of satisfaction filed on behalf of the decree-holder is an exhibit in the case and it shows that the decretal amount had been paid by Ramsaran Singh, Saudagar Singh and Ragho Prasad Singh. Certainly, no reasonable explanation could be offered as to why in the satisfaction petition the names of these three men are mentioned as persons who had paid the decretal amount. The learned Subordinate Judge has referred to the other documents which support the plaintiff's version that Mana Singh was a mere farzidar for him or the members of his family, and the learned Counsel for the appellants was not able to point out any error of record in the discussion of the learned Subordinate Judge with regard to these documents. It is not therefore necessary for us to mention all the documents which have been referred to by the learned Subordinate Judge. It will be enough to say that the documentary evidence goes to establish conclusively the possession of the plaintiff and the members of his family over the lands in question. As against the evidence that has been adduced by the plaintiff for proving that Mana Singh was a mere farzidar for Halkhori and that Halkhori and his descendants have all along been in possession of these lands, there are only a few documents produced by the defendants which are of very recent dates. Certain copies which had been obtained in 1945 are of no consequence, and even the certified copy of the rent roll which was obtained in 1942 cannot improve matters for the defendants, inasmuch as, obviously, at that time some dispute; must have arisen between the parties. There is only one rent receipt produced by the defendants which is a vent receipt for the year 1351 fasli, corresponding to the English calendar year 1944, and which is marked. M exhibit C. This rent receipt stands in the name of Mana Singh who died long before 1944. Even in the Rent suits which had been instituted in the year 1939 the sons of Mana Singh had been impleaded as defendants. Mana Singh was dead before the year 1939, and his name could not find place in the rent receipt, exhibit C, which was granted in January 1944. The Canal parchas, exhibits G series, are also of very recent dates. The learned Subordinate Judge has discussed the oral evidence adduced by the parties on the question of possession, and we have no hesitation in agreeing with him that the oral evidence adduced by the plaintiff for proving his possession over the lands in question is preferable to the oral evidence adduced by the defendants. None of the defendants, who are elderly men, was examined in this case, the person examined on their behalf being D.W 1 who is the son of defendant no. 18, a young it an aged about 32 years. His evidence stands thoroughly discredited, inasmuch as he has stated that there were more than 100 palm trees on the also of the land. A pleader was deputed to hold local inspection, and he reported that the number of palm trees there was only 32. The learned Subordinate Judge was absolutely justified in rejecting the evidence of this witness as untrustworthy. Thus, I must hold, in agreement with the learned Subordinate Judge, that Mana Singh was a mere farzidar for Halkhori and that ever since these lands were purchased they were in possession of Halkhori and his descendants. The transactions of sale took place long ago, and after a lapse of so many years it was not possible for the plaintiff to produce direct evidence for proving the payment of the consideration. The motive for the benami transactions cannot also be properly ascertained after a lapse of so many years since the date of the transactions. On the merits, therefore, this appeal is bound to fail.

It appears that Ramsaran Singh died during the pendency of the appeal, and besides his three sons, who are respondents nos. 7, 8 and 9, he has left a widow who has not been substituted in his place. Because the widow has not been substituted, it was urged on behalf of the respondents that the whole appeal had abated. Ramsaran, as appears from the petition field by the appellants on 3rd March 1951, had died on 2nd October 1950. In this petition it was wrongly stated that his sole heirs and legal representatives were his three sons. On 2nd April 1951 the respondents filed a petition of objection to the prayer for substitution as made by the appellants, and in this petition it was stated that Ramsaran had also left a widow named Ajhola Kuer. The office had pointed cut that the date of death of Ramsaran being 2nd October 1950 the petition for substitution was not in time and that it had not teen accompanied by a petition for setting aside the abatement. In spite of the objection that was filed on behalf of the respondents and in spite of the office note that the petition for substitution was not filed in time, the appellants dated not file any petition for setting aside the abatement or any petition for bringing the widow on the record, and on 24th April 1951, when the Counsel for the parties were heard with regard to the substitution matter, the following order was passed by a Bench of this Court:

“We have heard learned Counsel for the parties. It is stated by learned Counsel for the appellants that the widow of deceased respondent no. 6 is not a necessary party to this appeal. The question as to what is the effect of not substituting the widow of deceased respondent no will be considered at the time of the hearing of the appeal …………”.

It is, therefore, manifest that in spite of the objection that was raised by the respondents, the appellants did not move this Court for setting aside the abatement or for bringing on the record the widow of the deceased respondent no. 6. But the Counsel for the appellants was at pains to impress upon us that the interest of the widow should be deemed to have been represented by the sons—an argument which appears to me wholly unsound in view of the status which has been created for the widow by Act XVIII of 1937. This Act lays down that 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. Sub-section (3) lays down that any interest devolving on a Hindu widow under the, provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she, shall have the same right of claiming partition as a male owner. The position, therefore, is that because of sub-section (3), the widow takes her husband's interest subject to the restrictions placed on her powers by this sub-section, which however recognizes her right of partition. The right of alienation may have been restricted by this sub-section, because she is to be regarded only as a limited owner, but the right of partition has been given by the sub-section and she can claim partition like any male owner. The Federal Court, while discussing this Act in In re Hindu Women's Rights to Property Act observed that the Act ought to receive a beneficial interpretation, inasmuch as it was a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief. Their Lordships quoted a passage from Gover's Case which runs as follows:

“If the enactment be manifestly intended to be remedial, it must be so construed as to give the most complete remedy which the phraseology will permit.”

In Saradambal v. S. Subbarama Ayyar Venkataramana Rao, J. has pointed out that the Act has taken away the rule of survivorship and allowed the property to descend to his wife and that once the rule of survivorship has ceased to operate, there is nothing to preclude a creditor from attaching the property. There was the question of attachment, and the view taken by the Madras Judge was followed by a Bench of this Court in Siveshwar Peasad v. Lala Har Narain*, C.J referred to the Madras case with approval, and quoted the passage where Venkataramana Rao, J., had said that a widow acquired under the Act the interest of her husband not as a survivor but as an heir of her husband, and therefore, the interest was an asset of her husband in her hands and was liable to be proceeded against by a creditor of the husband even though the interest be an undivided interest in the joint family property. Even in Jonnagadla Seethamma v. Jonagadla Veerana Chetty which was cited by Mr. Das on behalf of the appellants the Chief Justice of the Madras High Court has said that the status of a Hindu widow of a deceased member of a joint Hindu family governed by the Mitakshara under the provisions of the Act is not that of a coparcener but that of a member of the joint family with certain special statutory rights. I should like to quote the following passage from their Lordships' judgment:

“In our opinion, the status of a Hindu widow of a deceased member of a joint family governed by the Mitakshara under the provisions of the Act is not that of a coparcener, but that of a member of the joint family with certain special statutory rights. The death of a coparcener who is a member of a Hindu joint family does not effect a severance or disruption of the joint family, merely because he leaves behind him a widow who has certain, statutory rights under the Act. The widow cannot be regarded in any sense as the widow of a divided member. The result is that the joint family will continue as before except that the widow would have a special limited statutory right.”

Thus, the authorities are unanimous in holding that by this Act a special limited statutory right has been created in favour of the widow, and if this is the position in law, then it will not be correct to contend that the interest of the widow of Ramsaran was represented by his sons. This was a suit for partition, and one of the contentions which was urged on behalf of the defendants was that a simple suit for partition was not maintainable because the property stands in the name of a stranger. In other words, the point which the defendants have sought to make out was that because the property stands in the name of a stranger, it was incumbent on the plaintiff to seek a declaration of title with regard to it and to pay the court-fee according to the value of the property. Fortunately, Mr. Das did not press before us the untenable point that without a declaration of title the plaintiff could not maintain this action for partition with regard to the lands covered by khatas nos. 51 and 52. The plaintiffs had made out a case that like other properties these lands had also been treated as family property and had been in possession of the descendants of Halkhori Singh. It is the defendants who contended that the property did not belong to the plaintiff but to Mana Singh who had absolute title to it. The adjudication that has been made in this suit to the effect that the property belongs to the family of the plaintiff is certainly an adjudication of which the lady, namely the widow of Ramsaran, can take advantage. She can, as a result of this adjudication, claim an interest in this property and seek a partition with regard to her share. In Churaman Mahto v. Bhatu Mahto it was held by a Bench of this Court that where, in a partition or a mortgage suit, the death of one of the respondents does not make the representation of the interests involved incomplete, there is no abatement and the appeal can proceed, but where such death makes the representation incomplete, an abatement of the appeal as a whole takes place. In Sheo Hart Lal v. Ramesher Lal, disposed of on the 29th January 1952, a Bench of this Court held with regard to an appeal from a mortgage decree that the whole appeal must be deemed to have abated as the widows of a deceased decree-holder had not been substituted in his place. This decision was referred to and followed by another Bench of this Court in Awadh Bihari Prasad v. Jhaman Mahton, and their Lordships said that the case was governed by the aforesaid decision where it had been held that it was necessary to substitute the widows of the plaintiff who had died during the pendency of the appeal in this Court, and that in the absence of substitution being effected, the whole appeal must be deemed to have abated. I have no doubt that in view of the peculiar status created for the widow under the Act the sons could not represent her interest and, therefore, it was incumbent on the present appellants to substitute her in place of the deceased Ramsaran. In a suit for partition every defendant is in the position of the plaintiff, and the Widow can claim the property on the basis of the decree which has been passed by the learned Subordinate Judge. If, therefore, this appeal is allowed to proceed, there is the chance of having two in consistent or contradictory decrees, which under the law must be avoided. I am, therefore, of the opinion that this appeal must be deemed to have abated.

This learned Counsel for the appellants had submitted during the course of his argument that the suit had abated because no substitution had been made in place of the deceased defendant no. 22, and in fact one of the grounds taken in this appeal is that the suit should be held to have abated because no substitution had been made in place of the deceased defendant no. 22. Rut it has been pointed cut before us that the defendant no. 22 had no interest whatsoever in Schedule no. 3 property in which are included the two khatas, namely khatas nos. 51 and 52. The description of Schedule no. 3 property as given in the plaint shows that only the plaintiff and the defendants first and second parties have got interest therein. The defendant no. 22 was one of the defendants third party and had got no concern whatsoever with Schedule no. 3 property which include;; the present disputed land, and ultimately Mr. Das had to concede that this objection was not fit to be entertained. As a matter of fact it appears from the written statement of defendants 18 to 21 themselves (paragraph 10) that the defendant no. 22 had been impleaded because he had interest in the milkiat property of mauza, Aslampur Abdullah which is one of the properties sought to be partitioned. The statement in paragraph 10 is that these defendants have purchased 3 annas and odd share from defendant no. 22 under a sale-deed dated 2nd. July, 1944 which was executed after the institution of this suit. In view of this statement and the description given in respect of Schedule no. 3 property of the plaint the learned Counsel had to give up this, point. Moreover, if the appeal itself has abated, oven, this contention cannot be entertained here.

In the result, therefore, I hold that this appeal has abated, and I would dismiss it with costs.

Imam, C.J:— I agree.

K.D

Appeal dismissed.