JUDGMENT : R.N. Misra, J. - The Plaintiffs are in appeal against a confirming decision of the learned Subordinate Judge of Jajpur in a suit for title, declaration that the decree in T.S. No. 12 of 1951 is invalid and inoperative, for setting aside the sale deed Ext. B by Krushna Das in favour of the father of Defendants 1 and 2, and for confirmation or in the alternative for recovery of possession of the disputed property. 2. The disputed property consists of two lots. 25? decimals out of 51 decimals of homestead lands constitute the first lot and 11? decimals out of 34 decimals of cultivable lands constitute the second lot. Admittedly one Suduri was the owner of the property. He left behind three sons-Dinabandhu, Sindhu and Hari. Dinabandhu's widow Saria died in 1943. Their son Krushna who had died in 1938 left behind his widow Hara, who also died sometime prior to 1943. Sindhu died after the current settlement without any heirs. Hari's son was Kanu and Kanhu's widow was Ketaki the original Plaintiff No. 2. Kanhu had two sons-Naba Plaintiff No. 1 and Nanda, Defendant No. 4 and as daughter Nila, Plaintiff No. 2. Dhinabandhu had died about 40 years prior to the suit. Sindhu sold away his interest in the property to Hari for consideration and sometime after the alienation he died. There was discord between the mother of Krushna and Hari which led Saria's expressing a desire to get separated from Hari. But as Krushna was then a minor and Saria could not affect a partition, she took the assistance of one Mohini Mohan Parida, uncle of Defendants 1 and 2 and executed a benami sale deed on 9-5-1932 purporting to be for a sum of Rs. 62/- (ext. B). This was mainly meant to bring about a partition. There was no passing of consideration under the document and it was absolutely a nominal one. Mohini effected a partition between Krushna and his uncle Hari who thereafter started living separately. Krushna died, as already stated, sometime in 1938. The disputed property continued to be in possession of the Plaintiffs until 1961 when they were dispossessed by the Defendants who claimed to have obtained a decree from this Court which confirmed a decree in favour of the Defendants in Second Appeal. Krushna died, as already stated, sometime in 1938. The disputed property continued to be in possession of the Plaintiffs until 1961 when they were dispossessed by the Defendants who claimed to have obtained a decree from this Court which confirmed a decree in favour of the Defendants in Second Appeal. On inquiry the Plaintiffs came to learn about the alienation, the previous suit being T.S. No. 12 of 1951 and the decree passed therein. That suit was brought about by Defendant No. 4. It is alleged that Defendant No. 4 was not the Karta of the family and the litigation was not fought on the basis that Defendant No. 4 represented the entire family. It is also contended that under the sale deed of 1932 possession had not at all been parted with and it was for the first time in 1961 that the Defendants came into possession. Therefore the suit was instituted on 2-5-1962. 3. Defendants 1 and 2 mainly contested. According to them, Plaintiff No. 1 was actually born by 1940 and he having not instituted the suit within 3 years of attaining majority the suit is barred by limitation. It is next contended that the Plaintiffs have been out of possession for more than the statutory period and as such even if they had any title it has been lost Defendant No. 4 is said to have been the karta of the family and in that capacity, is alleged, T.S. No. 12 of 1951 was filed. In view of the fact that the said suit has been lost after a keen contest, the present suit by some of the members of the family is barred by res judicata. The Defendants are said to have been in possession of the property for more than the statutory period. 4. The trial court came to find, (1) The sale deed Ext. B was genuine, for consideration and was also for the actual market price as prevailing in 1932; it was not a benami transaction as alleged by the Plaintiffs. (2) Under Ext. B the father of Defendants 1 and 2 and after his death Defendants 1 and 2 themselves have been in continuous possession of the disputed property in their own right. (3) Plaintiff No. 1 failed to show that he attained majority within three years prior to the institution of the suit. (2) Under Ext. B the father of Defendants 1 and 2 and after his death Defendants 1 and 2 themselves have been in continuous possession of the disputed property in their own right. (3) Plaintiff No. 1 failed to show that he attained majority within three years prior to the institution of the suit. Thus the suit at his instance is barred by limitation. (4) The decree in T.S. No. 12 of 1951 would not operate as res judicata as it would not bind either Plaintiff No. 1 or the original Plaintiff No. 2 Ketaki. 5. On appeal against this decree the learned Appellate Judge found, (1) The decree in T.S. No. 12 of 1951 is res judicata. (2) Ext. B is not benami. (3) The vendee under Ext. B came to possession in 1932 and after him Defendants 1 and 2 are continuing in possession. (4) The suit is not barred by limitation. On the question of applicability of Section 4 of the Partition Act, the claim has been negatived. He accordingly dismissed the appeal. The Plaintiffs are in appeal against this affirming decision. 6. Mr. Pal, first of all contended that Defendant No. 4 did not institute the earlier suit as the karta of the family and, therefore, the decree in that suit would not be res judicata for the present suit. His next contention is that at any rate so far as Ketaki was concerned she being a post - Act widow (Kanhu having died after 1937) her interest could not have been represented by coparcener, Defendant No. 4. He next contended that the present disputed property is not covered under Ext. Band as such there is no scope for the,lea of res judicata. He then contended that the finding on the question of application of Section 4 of the Partition Act and Section 44 of the T.P. Act is grossly illegal and cannot be sustained. He also faintly tried to contend that the finding of benami is erroneous and cannot be sustained. Each of these contentions of Mr. Pal requires consideration. 7. There is not much dispute that Nanda, Defendant No. 4, is elder to Bana, Plaintiff No. 1 and as such he would really be representing the family as the karta. Both the Courts below have recorded a finding that Defendant No. 4 had conducted the earlier suit as the karta. Each of these contentions of Mr. Pal requires consideration. 7. There is not much dispute that Nanda, Defendant No. 4, is elder to Bana, Plaintiff No. 1 and as such he would really be representing the family as the karta. Both the Courts below have recorded a finding that Defendant No. 4 had conducted the earlier suit as the karta. No positive material has been placed before me to show that this conclusion of the Courts of fact is vitiated and I can disturb the said finding. I would accordingly uphold the finding of the lower appellate Court that Defendant No. 4 acted as the karta in the previous suit and sought to represent the family. 8. Next is the question as to whether Defendant No. 4 could represent the original Plaintiff No. 2. This contention of Mr. Pal is on the basis that by operation of the 1937 Act Ketaki came to acquire the interest of her husband and she ceased to be a member of the family and was no more representable by the karta. This proposition of Mr. Pal does not appeal to me. The law seems to be clear that even a widow under the 1947 Act, thought not a coparcener, continues to be a member of the joint family and the karta of the joint family qua the widow also exercises his kartaship. The position in law seems to have been well stated by 0. Division Bench of the Madras High Court in Jonnagadla Seethamma and Another Vs. Jonnagadla Veerana Chetty and Others Rajamanner, C.J. speaking for the Bench stated, In our opinion, the status of a Hindu widow of a deceased member of a joint family governed by the Mitakshara under 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. 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. Because the joint family continues, its well-recognised incidents will also continue, namely, the right of the karta to represent the family and to be in management of its affairs. This view more or less has been supported by a Division Bench of the Andhra Pradesh High Court in Jilledumudi Parvathamma Vs. Vempati Subhadramma and Others. In Jiwanandan Singh Vs. Sia Ram Prasad Singh the same view has also been taken. Gajendragadkar, J. as he then was, sitting with Justice Vyas in Shivappa Laxman and Another Vs. Yellawa Shivappa Shivagannavar and Others Stated, The position of a Hindu widow's interest in the family properties is, in our opinion, somewhat analogous to the undivided right of the coparcener at least so far as the manager's powers of management and alienation are concerned; so that if the said interest of the Hindu widow is sought to be defeated by an unjustified alienation, she would be entitled to challenge it just in the same manner as a coparcener would. It may be that the effect of this Act is not, to cause the severance of status automatically on the death of a coparcener and that the family may continue to be joint; in that case the manager would still be entitled to exercise his ordinary powers under Hindu law. The same view has been taken by another Division Bench of that Court in Mahadu Kashiba Varnekar Vs. Gajarabai Shankar Varnekar. It has been stated therein, Her (Widow's) interest is, like the interest of her husband, an undivided interest in the joint family properties, and even though she is entitled to file a suit for partition, the interest does not get separated, at any rate, until the suit for partition is filed by her. The family consequently continues to be a joint one, till the widow files a suit or a separation of interest is otherwise brought about. Therefore, the manager of a joint Hindu family can alienate for legal necessity joint family property, including the interest in the property of the widow of a predeceased coparcener. The law on this point, therefore seems to be well settled. Mr. Therefore, the manager of a joint Hindu family can alienate for legal necessity joint family property, including the interest in the property of the widow of a predeceased coparcener. The law on this point, therefore seems to be well settled. Mr. Pal in support of his contention sought to rely upon some observations of this Court in Chandamani Meher and Ors. v. Khageswar Meher and Ors. ILR 1958 Cutt 82. I find it difficult to agree with Mr. Pal that the proposition advanced by him in this appeal was at all upheld by the Division Bench of this Court. In law, therefore, there was no bar to Defendant No. 4 representing the family. The Courts below as a fact have found that Defendant No. 4, 8 litigation (T.S. No. 12 of 1951) was on behalf of the family. Therefore, they have found that the present suit is barred by res judicata. On the aforesaid analysis, I think that the finding for the Second Appeal has to be sustained. I would accordingly hold that the present Second Appeal is not maintainable on account of res judicata. 9. Mr. Pal had contended that the property now in suit was not covered under Ext. B and so there was no scope for the plea of res judicata to be raised against the present suit on account of determination in T.S. No. 12 of 1951. Such a stand would run counter to the very plaint case. The Plaintiffs have proceeded on the basis that the disputed property is not affected by Ext. B as a part of it was purported to have been dealt with under that document. I, therefore, find it difficult to sustain the contention of Mr. Pal on that footing. Ext. B has no assertion that the subject matter of that document was the separate property of the executant. Whether the document is benami or not is a question of fact and in Second Appeal there is no room to come to a different conclusion by reappreciating the evidence. The lower appellate Court came to conclude, I am of opinion in agreement with the learned Munsif that Ext. B is genuine, for consideration, acted upon and possession is exercised by Defendants since 1932. These are all facts found by the final Court of fact and in Second Appeal there is no room to reconsider these findings. 10. The lower appellate Court came to conclude, I am of opinion in agreement with the learned Munsif that Ext. B is genuine, for consideration, acted upon and possession is exercised by Defendants since 1932. These are all facts found by the final Court of fact and in Second Appeal there is no room to reconsider these findings. 10. I will now examine the final contention of Mr. Pal resting on Section 4 of the Partition Act and Section 44 of the T.P. Act. The learned Appellate Judge did not entertain this contention, because according to him Krushna had died in the state of completed partition and Ext. B came into existence after such partition had been effected. According to the lower appellate Court there was no joint family dwelling homestead or house for the application of the aforesaid two provisions of the statute. As a matter of fact, in para 5 of the judgment of this Court in the earlier litigation (Ext. B) the following finding had been reached: Mr. Rao, appearing on behalf of the Appellant however, has taken up a point relying upon the provisions of Section 4 of the Partition Act, that is, his client should be allowed the option of purchasing Krishna's interest in the homestead, which has passed on in favour of the stranger-Defendants, on a reasonable value to be ascertained by the trial Court. This position was canvassed before the Courts below. Strictly speaking Section 4 of the Partition Act does not come into operation in a suit of this nature where the Plaintiff prays for declaration of his title and for possession. Section 4, according to the plain language of the provision, applies only in a suit for partition. But that apart, the definite features arising in the case negative the force of the contention based upon the provisions of Section 4. It was the case of the Plaintiff in the plaint that in fact Krishna had separated and not only that but Krishna had also separate possession of his properties after separation from Hari. The finding of the lower appellate Court is definitely to the effect that the Defendant-strangers are in exclusive and separate possession of specific land since long. This is also supported by evidence on record. The finding of the lower appellate Court is definitely to the effect that the Defendant-strangers are in exclusive and separate possession of specific land since long. This is also supported by evidence on record. On this basis that so far as the disputed lands are concerned they were in separate possession of the vendor Krishna after separation and further that they are in exclusive and separate possession of the Defendants themselves since the date of the kabala, it cannot be held that the homestead or the Bari is an undivided dwelling house. As I have already mentioned, Section 4 of the Partition Act does not come to play in a suit of this nature. The only provision that can be availed of by the Plaintiff is of Section 44 of the Transfer of Property Act, the second paragraph of which runs as follows: Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. This section has no application in view of the finding of the lower appellate Court that the Defendants are in separate and exclusive possession of the "disputed land ever since 1932. The trial Court who had granted a partial decree in favour of the Plaintiff has also considered the position arising out of Section 4 of the Partition Act and had negatived the contention of the Plaintiff. In my view the Plaintiff is not entitled to the protection of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act. This finding concludes the present claim of the Plaintiffs. Once the earlier decision is res juricata, this question is also not open to registration. Thus, on a review of the entire matter I do not think Mr. Pal's contentions are entitled to any consideration. The Second Appeal fails and is dismissed. There would be no order as to costs of this Court. Final Result : Dismissed