JUDGMENT: 1. THIS is a second appeal at the instance of the plaintiff. The suit was instituted for declaration of title and for permanent injunction. 2. ADMITTEDLY, the property in suit belonged to one Baren Saha. He left behind him two sons, namely, Posen Saha and Narasingha Saha. On the death of Baren Saha, Posen inherited the property to the extent of his share as one of the heirs of Baren Saha. Posen Saha died leaving behind two sons, namely, Fagu and Tutu. Tutu died bachelor. Fagu died childless leaving behind him his widow, namely, Gayamani. Gayamani died in the year 1954. Gayamani, before her death, by a registered kobala dated February 19,1935, transferred the property in favour of Khetranath Saha. It was stated in the deed that she was compelled to sale the property to repay the debts of her husband. Khetranath died leaving behind him his last will and testament bequeathing the property in favour of his son, namely, Bonomali Bonomali obtained probate of the will from the Court of the learned District Judge, Malda, in Misc. Case No. 40 of 1967. Thus, Bonomali became the absolute owner in respect of the property in suit. 3. THEREAFTER, the property in suit was sold to this plaintiff by a registered kobala dated January 17, 1979. As the defendant No. 1, Narasingha Saha, was disputing the title of this plaintiff, the suit was instituted for declaration and for permanent injunction. 4. NARASINGHA Saha contested the suit claiming that the transfer made by Gayamani, the widow of Fagu, in 1935 was a invalid transfer and, therefore, on the death of Gayamani, the property devolved upon him as her reversionary. 5. THE learned trial Judge dismissed the suit holding, inter alia, that under the old Hindu Law, the widow had limited life interest, but she had no right to transfer the property. 6. THE lower appellate Court, also, dismissed the appeal filed by the plaintiff. 7. BEING aggrieved, the plaintiff has come up with this appeal. 8. ALTHOUGH, the appeal was admitted for hearing under Order XLI, Rule 11 of the Code of Civil Procedure on May 6, 1991, no substantial question of law was framed. 9. 6. THE lower appellate Court, also, dismissed the appeal filed by the plaintiff. 7. BEING aggrieved, the plaintiff has come up with this appeal. 8. ALTHOUGH, the appeal was admitted for hearing under Order XLI, Rule 11 of the Code of Civil Procedure on May 6, 1991, no substantial question of law was framed. 9. FOR the purpose of disposal of this appeal, I frame the following substantial question of law:- Whether a Hindu widow, who had inherited a limited interest in the property in suit on the death of her husband, could convey the property to repay the debt of her husband ? In the deed dated February 19, 1935, which has been marked as Exhibit-2 in the suit, Narasingha Saha was a witness. 10. THE Hindu Women's Rights to Property Act, 1937 came into force on April 14, 1937. In view of the provisions of Sections 2 and 3 of the said Act, the widow, subject to provisions of sub-section (3) of Section 3 of the said Act, is entitled to the same share as a son. Under sub-section (3) of Section 3 of the said Act, the interest, thus, devolving on Hindu widow under the provisions of the said Act, is limited interest known as a Hindu Woman's estate. However, she is entitled to claim partition as a male owner. 11. THE obligation of a widow, taking her husband's property, to pay his debts has been held to be a pious duty coming under the head of religious benefit. 12. IN the case in hand, it was not alleged that the husband contracted the debts for immoral purposes or the husband repudiated it during his lifetime. Moreover, the defendant No. 1/reversioner was a witness to the deed. It raises a presumption that the transaction was a fair one and one justified by Hindu Law. Although the consent of reversioner, by itself, could not give validity to the alienation, but it raises a presumption that the transaction was a fair one and one justified by Hindu Law 13. THEREFORE, both the Courts below applied wrong legal test in dismissing the suit seeking declaration of title. Although the consent of reversioner, by itself, could not give validity to the alienation, but it raises a presumption that the transaction was a fair one and one justified by Hindu Law 13. THEREFORE, both the Courts below applied wrong legal test in dismissing the suit seeking declaration of title. However, both the Courts below, concurrently, found, as findings of fact, that the plaintiff was not in possession of the property in suit and as the plaintiff could not prove that he was in possession of the property in suit, no decree for permanent injunction could be passed in his favour. Section 34 of the Specific Relief Act, 1963, runs as under:- "34. Discretion of Court as to declaration of status or right- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a 'person interested to deny' a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee." 14. SECTION 34 of the said Act, therefore, provides that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 15. ON the date of institution of the suit, the original plaintiff was not in possession of the property in suit, but he did not ask for recovery of possession. 16. ALTHOUGH, I declare title of the plaintiffs by virtue of their acquisition of property from the original owner, I am not in a position to grant them a decree for recovery of possession in the absence of such prayer. 17. THE Supreme Court of India, in the case of Mst. 16. ALTHOUGH, I declare title of the plaintiffs by virtue of their acquisition of property from the original owner, I am not in a position to grant them a decree for recovery of possession in the absence of such prayer. 17. THE Supreme Court of India, in the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors., reported in AIR 1960 SC 335 , held that it was a well settled rule of practice not to dismiss the suit automatically, but to allow the plaintiff to ask for amendment, if he seeks to do so, in terms of Section 42 of the Specific Relief Act, 1877. 18. IT is, only, necessary to add that provisions of Section 42 of the Specific Relief Act, 1877, have been engrafted in Section 34 of the Specific Relief Act, 1963, and in view of that an opportunity should be given to the plaintiff to amend the plaint. 19. THEREFORE, I accept the prayer of Ms. Indrani Pal, learned Advocate appearing for the appellants, and grant liberty to his clients to apply for recovery of possession by way of amendment of plaint. 20. THE impugned judgment and decree are, therefore, set aside. 21. THE suit is sent back on remand to the Court below with liberty to the plaintiffs to apply for amendment of plaint seeking recovery of possession. 22. IN the event, an application, as aforesaid, is filed, the learned trial Judge shall allow such application for amendment of plaint, grant liberty to the defendants to file their additional written statement, allow the parties to adduce further evidence in support of their respective cases and, thereafter, decide the prayer for recovery of possession in accordance with law. 23. THIS appeal is, therefore, allowed in part declaring the title of the plaintiffs in respect of the property in suit without any order as to costs. Office is directed to send down the lower Courts' records of this case together with a copy of this order to the Courts below immediately.