JUDGMENT MUNGESHWAR SAHOO, J. 1. The plaintiffs have filed this First Appeal against the Judgment and Decree dated 06.08.1984 passed by the learned 4th Additional Sub Judge, East Champaran, Motihari in title Suit No. 357 of 1969 and 15 of 1982 whereby the trial Court dismissed the plaintiffs suit for partition. 2. One Smt. Alakh Devi had filed the aforesaid suit praying for partition of her 1/4th share in the schedule II land of the plaint. She claimed the relief of partition of her 1/4th share alleging that Chattar Thakur had four sons, namely, Lakshmi Thakur, Kali Thakur, Mahinder Thakur and Sunder Thakur. Sunder Thakur died leaving behind his widow Ram Kumari and daughter Alakh Devi, the plaintiff. It may be mentioned here that the original plaintiff Alakh Devi died and in her place, the heirs have been substituted. It is stated that Sunder Thakur died in the state of separation from his brothers and nephews. After his death, according to Hindu Women's Right to Property Act, his widow, Ram Kumari came in possession of the property left by Sunder Thakur. She died leaving behind only her heir Alakh Devi who is in possession of the properties of her parents. 3. The further case pleaded is that about 40-43 years ago, all the aforesaid four brothers separated from one another by mess business and property by private partition. All the brothers got possession over their respective property separately. The mother of the plaintiff, i.e. widow of Sunder Thakur executed two sale deeds on 30.04.1958 in respect of seven bigghas of land in favour of Harinandan Ojha, i.e. her son. After substitution, this Harinandan Ojha became plaintiff No. 1(ka). Possession was delivered to the purchaser. 4. The further case of the plaintiff is that the defendants 1st set had filed title Suit No. 166 of 1966 challenging the aforesaid sale deeds and prayed for setting aside the said deed. The plaintiff filed her written statement in the said suit which was dismissed on 17.02.1969 holding that the plaintiff's father Sunder Thakur was separate from his brothers and nephews and mother of the plaintiff was found in possession of the properties held by her husband Sunder Thakur. Because there was no paper of partition, the defendants stated causing disturbances. The separation took place 42-43 years ago by private partition, therefore, the partition was not affected by metes and bounds. Because there was no paper of partition, the defendants stated causing disturbances. The separation took place 42-43 years ago by private partition, therefore, the partition was not affected by metes and bounds. The parties came in possession according to their convenience and they were dealing with the properties exclusively according to their needs. The partition claimed by the plaintiff was denied by the defendant, therefore, the suit was filed. 5. The defendant No. 1 to 6 filed contesting written statement. Besides taking various legal and ornamental please, the defendants mainly contended that Sunder Thakur died in the state of jointness, therefore, his property devolved on his brothers and never inherited by his widow or daughter. The alleged partition is denied. Although title Suit No. 166 of 1966 was dismissed but on appeal, the Judgment was set aside and the matter was remanded to the trial Court which is still pending. The plaintiffs have got no share in the property, therefore, the partition suit is not maintainable. All the properties of Sunder Thakur devolved on the copersoners. Sunder Thakur died in the year 1920. 6. The defendant 22 (ka) filed written statement supporting the plaintiff's case. The father of this defendant has purchased the property from Harinandan Ojha by sale deed dated 30.07.1966. According to his written statement, his father came in possession after purchase of the land. The defendant No. 37 to 45 supported the plaintiff's case. The defendant No. 46 also supported the plaintiff's case. 7. On the basis of the aforesaid pleadings, the learned trial Court framed the following issues:- (i) Whether the suit s framed is maintainable? (ii) Whether the plea of defendants 1st set regarding jointness and time of death of Sundar Thakur is barred by principle of res judicate? (iii) Whether the suit is barred by principle of adverse possession or ouster? (iv) Whether Sundar Thakur died in the state of partition from his brothers? (v) Whether there is unity of title and unity of possession in respect of suit land? (vi) Whether the plaintiffs are entitled to get decree as claimed for? (vii) To what relief or reliefs if any are the plaintiffs entitled to? 8. While deciding issue No. 2, the learned trial Court held that the contesting defendant are estopped from raising the plea of jointness and time of death of Sunder Thakur. (vi) Whether the plaintiffs are entitled to get decree as claimed for? (vii) To what relief or reliefs if any are the plaintiffs entitled to? 8. While deciding issue No. 2, the learned trial Court held that the contesting defendant are estopped from raising the plea of jointness and time of death of Sunder Thakur. The point regarding separation or jointenss of Sunder Thakur and time of his death have already been decided in title Suit No. 166 of 1966. Accordingly, the Court below held that the principle of res judicate is applicable. The learned Court below found that in title Suit No. 166 of 1966, the issue No. 7 was “whether Sunder Thakur died in the state of jointness or separation with his brothers”? And this issue was decided in the said suit and in the Judgment, Ext.3/A, it was held that Sunder Thakur husband of Ram Kumari Devi died in the state of separation with his brothers. The trial Court also found that there was private partition between Sunder Thakur and his three brothers. The Court below also found that the suit is barred by principle of adverse possession and the suit as framed is not maintainable. There is no unity of title and unity of possession between the plaintiff and contesting defendant in respect of the suit land. On these findings, the trial Court dismissed the plaintiff's suit. 9. The learned counsel, Mr. Bhupendra Narayan Sinha for the plaintiffs appellant submitted that the trial Court has committed mistake by recording a finding that there had been partition between the four brothers, i.e. Sunder Thakur and his three brothers. According to the learned counsel, the specific pleading of the defendant is that Sunder Thakur died in jointness, therefore, the plaintiff's case was admitted by defendants. Further the only case of the plaintiff is that Sunder Thakur was in separation with his brothers. It does not mean that there was partition by metes and bounds. Till the property is partitioned by metes and bonds, the suit for partition is maintainable but the learned Court below misconstrued the word separation and wrongly recording the finding that there was private partition and plaintiff's suit has been dismissed. 10. The learned counsel further submitted that in the earlier suit filed by the contesting defendant, the plea was taken by them that Sunder Thakur died in the year 1920. 10. The learned counsel further submitted that in the earlier suit filed by the contesting defendant, the plea was taken by them that Sunder Thakur died in the year 1920. The trial Court on the basis of evidence recorded the finding that Sunder Thakur died in the year 1938-39, therefore, now in this suit, the contesting defendants cannot agitate the same fact. When Sunder Thakur died in the year 1938-39, Hindu Women's Right to Property Act was in force, therefore, according to Section 3 of the said Act, widow of Sunder Thakur, i.e. Ram Kumari came in possession of the property of her husband. Since there was separation only and no partition by metes and bounds, the present suit for partition was filed. Admittedly, Ram Kumari Devi died after coming into force of Hindu Succession Act, therefore, Ram Kumari, the widow of Sunder Thakur who was in possession of her husbands property became the absolute owner after coming into force of Hindu Succession Act in the year 1956. In such circumstances, when the defendants were trying to disturb the possession of plaintiff, and when there was no paper proof, the present suit was filed. The learned counsel further submitted that the finding of the Court below regarding partition is wrong because the Court below wrongly held that the Judgment in the earlier suit will operate as res judicate without considering that always the case of the plaintiff in earlier suit and also in the present suit was that Sunder Thakur was in separation with his brothers, therefore, there is no case that there had been partition by metes and bounds. 11. On the other hand, the learned counsel, Mr. Jitendra Kishore Verma, for the respondent submitted that in the earlier suit, i.e. title Suit No. 166 of 1966, the appellate Court recorded a clear finding that Sunder Thakur was separate from his brothers and he was in separate possession of the properties allotted to him and naturally after his death, his widow was entitled to and succeeded to the properties left by him. Therefore, so far partition is concerned, the matter has already been decided in the said earlier suit. Nowhere, the Judgment and Decree has been challenged by the present plaintiff appellants. In the said suit, both the Courts held that Sunder Thakur died in the year 1938-39. Therefore, so far partition is concerned, the matter has already been decided in the said earlier suit. Nowhere, the Judgment and Decree has been challenged by the present plaintiff appellants. In the said suit, both the Courts held that Sunder Thakur died in the year 1938-39. Therefore, in view of the above findings recorded earlier, it will operate as res judicate in the present suit. In the sale deeds executed by Ram Kumari also she stated and admitted that Sunder Thakur and his brothers were separate. The judgment of the trial Court in the earlier suit has been produced by the plaintiff which has been marked as ext. 3/a and the Judgment of the appellate Court is ext.3 whereas the two sale deeds have been marked as ext. 1/e and 1/f. In such view of the matter, now the plaintiff cannot be allowed to say that there was no partition between the brothers of Sunder Thakur. The learned counsel further submitted that even in the plaint at paragraph 3, the plaintiff categorically admitted that there was partition between the brothers of Sunder Thakur. 12. The learned counsel further submitted that had there been no partition between the brothers then in such circumstances, the property was joint being the copercenary property and Ram Kumari Devi on the death of her husband was only entitled to claim for partition in lieu of her maintenance as she became the limited owner in view of provision of Hindu Women's Right to Property Act 1937. In such circumstances, since she had not filed any partition suit, therefore, she was not in possession of any part of joint family property or share of her husband. According to Section 14 of the Hindu Succession Act, 1956, she would have been the absolute owner of that property which was possessed by her and not over the share of her husband. According to the learned counsel, if no partition was claimed then her interest was only life interest being the limited owner and on her death, the property will go to the coparcener and not to the heirs of her husband. Therefore, considering this position of law, earlier Judgment was passed holding that there had been partition between the brothers of Sunder Thakur and on death of Sunder Thakur, the property of Sunder Thakur allotted to him in partition was inherited by Ram Kumari, the widow. Therefore, considering this position of law, earlier Judgment was passed holding that there had been partition between the brothers of Sunder Thakur and on death of Sunder Thakur, the property of Sunder Thakur allotted to him in partition was inherited by Ram Kumari, the widow. That property will go to her daughter, the original plaintiff herein. It is not the case either in the earlier suit or in the present suit that the parties were cultivating the lands according to their convenience. The learned counsel submitted that since the issue between the parties in this suit has already been decided in the earlier suit, both the issues and finding will operate as res judicate, therefore, the learned trial Court has rightly held so. Unless the findings in the earlier suit is set aide no contrary finding can be recorded in the present suit. On these grounds, the learned counsel submitted that the F.A. is liable to be dismissed 13. The learned counsel, Mr. Binod Kumar Singh and the learned counsel Mr. Shailendra Kumar Sinha have supported the case of the appellant. All of them have filed written arguments in the case. 14. In view of the above contentions of the parties, the points arises for consideration in this present suit is as to whether the plaintiff's suit for partition is maintainable and whether the plaintiff is entitled to share claimed and as to whether the Judgment and Decree passed in the earlier suit, i.e. title Suit No. 166 of 1966 will operate as res judicate in the present suit and whether the Judgment and Decree passed by the Court will operate res judicate or not. 15. The original plaintiff is Alakh Devi, the daughter of Sunder Thakur. It is admitted fact that she will be entitled to a share in the property of her father only, if her father had separate property. If her father had no separate property, she will not be entitled to any share in the copercenary property. The daughter became the heir only after coming into force of Hindu Succession Act. In the present case, it is the case of the plaintiff that her father Sunder Thakur died in the year 1938-39. Therefore, on the death of Sunder Thakur, the widow Ram Kumari Devi became the limited owner with respect to the interest of her husband. The daughter became the heir only after coming into force of Hindu Succession Act. In the present case, it is the case of the plaintiff that her father Sunder Thakur died in the year 1938-39. Therefore, on the death of Sunder Thakur, the widow Ram Kumari Devi became the limited owner with respect to the interest of her husband. In such circumstances, unless it is shown that her father had separate property which devolved on the widow, the plaintiff will have no share in the joint family property. 16. At paragraph 3, it is specially pleaded by the plaintiff that 42-43 years ago, there was Batwara (partition) between Sunder Thakur and his brothers in all respect and they came in separate possession of their share. The learned counsel for the appellant submitted that the statement made in paragraph 3 of the plaint that had been explained subsequent in paragraph 7 of the plaint. At paragraph 7, it has been pleaded that the aforesaid partition was not by metes and bounds. The written statement filed by the contesting defendant is that there had been no partition. Ext.3 is the Judgment of the appellate Court whereas the Judgment of trial Court in title Suit No. 166 of 1966 is Ext.3/a. The suit was filed by the defendant herein. It appears that whatever pleading was there in the plaint of the aforesaid suit, in the present suit, the same pleading has been made in the written statement. 17. In the Judgment, ext.3, i.e. appellate Judgment, the lower appellate court in earlier suit had clearly recorded a finding that there was partition between the brothers and Sunder Thakur came in possession of the property allotted to him. Therefore, on his death, the property of Sunder Thakur devolved on his widow Ram Kumari Devi. 18. The learned counsel for the appellant submitted that in that suit, Ram Kumari never appeared and moreover in that case also, the transferee claimed that there was separation between the brothers. In such circumstances, there is no case pleaded by the plaintiff or the vendee in the earlier suit that there was partition by metes and bounds. Therefore, that finding of the appellate Court cannot operate as res judicate because separation means that the parties were cultivating the lands separately but there had been no partition by metes and bounds. In such circumstances, there is no case pleaded by the plaintiff or the vendee in the earlier suit that there was partition by metes and bounds. Therefore, that finding of the appellate Court cannot operate as res judicate because separation means that the parties were cultivating the lands separately but there had been no partition by metes and bounds. The learned counsel further submitted that on separation, the coparcenary family seized but the right to file partition suit for partition by metes and bounds will never be barred. In support of his contention, the learned counsel relied upon the decision of the Apex Court in the case of Kalyani vs. Narayanan, AIR 1980 SC 1173 . 19. In the aforesaid decision, the Hon'ble Supreme Court has held that unequivocal indication to separate implies separation in interest and in right although, immediately not followed by defacto actual division of the property. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed in a broader sense. So far this principle laid down by the Apex court is concerned, there is no dispute about it but in the present case at our hand, the matter is different. In the earlier suit, a clear finding has been recorded that Sunder Thakur came in possession of the property allotted to him in partition. In the said suit, Ram Kumari Devi and present plaintiff were party. They did not challenge the said finding. They even did not contest the suit. Now, therefore, the finding recorded by the Court in ext.3 is binding on them. 20. It may be mentioned here that in support of the appellants case, the learned counsel, Mr. Binod Kumar Singh, appearing for the respond No. 34 and 35 who are purchaser from the grand son of Ram Kumari, namely, Harinath Ojha relied upon a decision of Supreme Court, i.e. 2009 (9) SCC 689 and submitted that partition is a re-distribution or adjustment of pre-existing rights among co-owners/co-personers, resulting in a division of lands or other properties jointly held by them into different plot or portions and delivery thereof to the respective allottees. According to the learned counsel, since there was no partition by metes and bounds, the present suit was filed for re-distribution according to shares of the co-owners. So far this decision is concerned, also it is not in dispute. According to the learned counsel, since there was no partition by metes and bounds, the present suit was filed for re-distribution according to shares of the co-owners. So far this decision is concerned, also it is not in dispute. Here, the finding in the earlier suit is that there was partition between the brothers of Sunder Thakur and Sunder Thakur came in the possession of property allotted to him. If there had already been partition and separate allotment was made to Sunder Thakur over which he came in possession then there is no question of further partition arises. 21. Admittedly, as stated above the finding recorded in Ext.3 was never challenged. The Hon'ble Supreme Court in the case of Sultan Sadik vs. Sanjay Raj Subba, AIR 2004 SC 1377 held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent Court. 22. Further in the case of M. Meenakshi & Others vs. Metadin Agrawal (dead) by LRs. & Others, 2006 (7) SCC 470 , the Hon'ble Supreme Court held as under:- “It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not nonest. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authority who were the authors thereof.” Same view has been taken by Hon'ble Supreme in the case of Sneha Gupta vs. Devi Swaroop, 2009 (6) SCC 194 . The same view has also been reiterated again in the case of Inderjeet Singh Grewal vs. State of Punjab, 2012 (1) BLJ 42 (SC). All the above decisions had again been reiterated 23. In view of the above settled proposition of law, the Judgment passed in the earlier suit, i.e. Ext.3 and 3/a cannot either be held void or voidable in the present suit which was filed for partition. That finding is, therefore, against the plaintiff. 24. All the above decisions had again been reiterated 23. In view of the above settled proposition of law, the Judgment passed in the earlier suit, i.e. Ext.3 and 3/a cannot either be held void or voidable in the present suit which was filed for partition. That finding is, therefore, against the plaintiff. 24. The Supreme Court in the case of U.P. State Road Transport Corporation vs. State of Uttar Pradesh, AIR 2005 SC 446 has held that the principle of res judicate is based on the need of giving a finality to judicial decision. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of Code of Civil Procedure in this respect. Here, admittedly, the issues, i.e. when Sunder Thakur died and whether he died in the state of jointness or separation has already been decided in earlier suit, i.e. Ext.3 and 3/a. Therefore, the principle of res judicate is applicable, no contrary finding can be recorded here to the effect that there was no partition between Sunder Thakur and his brothers. Likewise, no finding can be recorded that Sunder Thakur and his brothers were cultivating the lands according to their convenience only and some of the properties remained joint and that there was no partition by metes and bounds. This findings, if recorded, will be contrary to the findings in the earlier suit, i.e. both the findings will be conflicting findings. Moreover, in the present case also, in the plaint, it is specifically pleaded in paragraph 3 that there was private partition between the brothers. However, subsequently, the case has been developed with a view to explain the above findings in the earlier suit and the statement made in paragraph 3. 25. In the case of R.N. Gosain vs. Yaspal Dhir, AIR 1993 SC 352 at paragraph 10, the Hon'ble Supreme Court held as under:- “That Law does not permit a person to both approbate and reprobate. 25. In the case of R.N. Gosain vs. Yaspal Dhir, AIR 1993 SC 352 at paragraph 10, the Hon'ble Supreme Court held as under:- “That Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage." 26. In the present case at our hand, Ram Kumari Devi and the substituted plaintiffs were defendant in earlier suit. The sale deed executed by them in favour of transferee defendants No. 3 and 4 in that suit was under challenge by the defendants of this suit. Plea was taken by the purchaser that Sunder Thakur died in separation, therefore, property of Sunder Thakur devolved on his widow Ram Kumari Devi. By taking this plea, they obtained the relief that the transaction in their favour is a valid transaction because there had been partition between Sunder Thakur and his brothers. Now, contrary pleading has been made by the plaintiff to the effect that there was no partition by metes and bounds. Therefore, in the earlier suit, for obtaining advantage, plea of separation was taken and now for taking another advantage, the contrary plea is being taken to the effect that there was no partition by metes and bounds. The only argument has been advanced is that separation will never mean that there was partition by metes and bounds. So far this submission is concerned, it can be said that the use of the term separation will differ from place to place. In the present case, in the earlier suit, the plea was taken that Sunder Thakur died in the state of separation and his property devolved on his widow. The question is if the term separation pleaded in earlier suit cannot be said a partition then how the property became the property of Sunder Thakur which was allotted to him and how that property came in possession of his widow and she became the absolute owner after coming into force of Hindu Succession Act. 27. The learned counsel for the appellant, Mr. 27. The learned counsel for the appellant, Mr. Bhupendra Narayan Sinha and the learned counsel, Mr. Binod Kumar Singh, for respondent No. 34 and 35 submitted that Sunder Thakur only came in possession of some property while they separated and the said property came in possession of Ram Kumari Devi but after coming into force of Hindu Succession Act, she became the absolute owner of the share of her husband Sunder Thakur. Now, let us examine the position of law in this regard. According to the plaintiffs, there was private partition between the brothers (paragraph 3 of the plaint). He died in the year 1938-39 as pleaded by the plaintiff and found by the Court in the earlier suit. Since Sunder Thakur died in the year 1938-39, i.e. after coming into force of Hindu Women's Right to Property Act, 1937 which came into force on 14th April, 1937, his interest will devolved on his widow Ram Kumari Devi and she shall be the limited interest holder known as Hindu Women estate. For the better reference Section 3 of the aforesaid Act is quoted hereunder:- “3(1) When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow or if there is more than one. Widow all his widows together, shall subject to the provisions of sub-Section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. (2) 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. (2) 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. (3) Any interest devolving on a Hindu widow under the provisions of this sections hall 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. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends on a single heir or to any property to which the Indian Succession Act, 1925, applies. 28. In view of the aforesaid provision, she shall have the same right of claiming partition as a male owner. This Act gave the right to the widow for claiming partition, that is the same right which her husband was entitled to claim. Here in the present case, she never claimed partition. Therefore, the property remained the joint family property and she was only a maintenance holder. But it may be mentioned here that according to the finding in the earlier suit, there had been partition, therefore, the property of Sunder Thakur devolved on his widow. Section 14 of the Hindu Succession Act, 1956 reads as follows:- “14. Property of a female Hindu to be her absolute property :- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation :- In this sub-section, “Property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 29. In view of these provisions the female Hindu shall become the absolute owner of the property possessed by her on the date of commencement of the Hindu Succession Act. The property possessed by her may be either movable or immovable. 30. Section 3 sub Section 1 of Hindu Women's Right to Property Act, 1937, the widow shall be entitled in respect of property of her husband if he died intestate, therefore, if the property of the Hindu was his property then only the widow will be entitled in respect of the said property. If he had no separate property then according to sub Section 2 of Section 3, the widow shall have same interest as her husband subject to sub Section 3 of Section 3. In view of this provision in respect of the joint family property, the widow was given the right of claiming partition only. Therefore, if there had been no partition between the brothers of Sunder Thakur then there is no question of any property of Sunder Thakur arises. It is not the case of either party that the subject matter of the suit was the property of Sunder Thakur. On the other hand, the specific case of plaintiff is that it is joint family property and there had been no partition. In view of the case of the plaintiff Sunder Thakur had interest in the joint family property, therefore, sub Section 2 of Section 3 will apply which will be subject to sub Section 3, i.e. Ram Kumari Devi had the right to claim partition in respect of the interest of her husband in the joint family property and in that case, the interest devolving on her would have been her limited interest. 31. In a Full Bench decision of this Court in Mt. 31. In a Full Bench decision of this Court in Mt. Khatrani Kuer vs. Smt. Tapeshwari Kuer, AIR 1964 Patna 261, it has been held that a Hindu widow, when she gets the interest of her husband under S. 3(2) of the Hindu Women's Rights to Property Act (1937) does not become the coparcener in the joint family since under the Hindu Law it is only male members who can become one such, and he obtains this status by the mere circumstance of birth in a Mitakshara Hindu joint family. What the section gives to a widow is her husband's interest in the joint property and not his status or position in the joint family. Further the interest she gets is the limited interest known as Hindu Women's estate under Section 3 sub Section 3 of the 1937 Act. The interest in the joint family property taken by a widow under Section 3 Sub Section 2 is not taken by her by survivorship nor by inheritance. The right which the widow gets under this Section is a statutory right based on the fixation that half the body of the deceased husband survived in her. Section 3 sub Section 2, however, does not confer on her all the rights of her deceased husband though the interest she gets in the joint property is the same as that of her husband. This means that so long as she does not claim partition, her interest is liable to fluctuate, i.e. to increase or decrease on the death or birth of a copersoner because though she does not become a copersoner in the family, she become a family member with especial statutory rights. Further if the widow asks for a partition, the joint family become disrupted and whatever share is given to her, on her death would pass on to her husband's heir but if she dies without asking for partition of her share and copersoner of her husband are living, the interest held by her would pass to those copersoner by survivorship, the reason being that during the life time of the widow, statutorily inheriting her husband interest right of survivorship of her husband's copersoner is only kept in abeyance. If there is no copersoner living at the time of death of the widow, the property held by her would again pass to her husband's heir. 32. If there is no copersoner living at the time of death of the widow, the property held by her would again pass to her husband's heir. 32. In the present case, if there had been no partition between the copersoner then the interest of Sunder Thakur on the death of Ram Kumari Devi would have been devolved on the copersoner by the rule of survivorship. Because of the fact that there had been partition and the property of Sunder Thakur was inherited by Ram Kumari Devi, the sale deed executed by her was held to be valid and genuine sale deed because she was possessed of the property of her husband on the commencement of Hindu Succession Act, 1956 and, therefore, she became the absolute owner of the property of her husband which she was possessed of so she had the right to transfer the same. 33. So far Section 14 of the Hindu Succession Act is concerned, it only says that any property possessed by her shall be held by her as full owner. It is not the law that the interest of her husband in the joint family property shall be held by her as full owner thereof. Therefore, if there is no partition as claimed by the plaintiff then Ram Kumari Devi was not in possession of any property and she had the only right to claim partition which she did not avail, therefore, on her death, the devolution of interest of Sunder Thakur which was kept in abeyance will devolve on the copersoner. If there had been partition then the property which was allotted to her husband came in possession of Ram Kumari on the death of Sunder, therefore, she became absolute owner of those properties which she was possessed of on commencement of Hindu Succession Act. In such circumstances, if there had been a partition then there is no question of second partition arises. It may be mentioned here that the right of partition was given to the widow only. The said right cannot be exercised by her daughter. 34. In Manno Chaudhary vs. Munsi Chaudhary, AIR 1918 Patna 320, a Division bench of this Court has held that a private partition is bar to the subsequent partition. 35. It may be mentioned here that the right of partition was given to the widow only. The said right cannot be exercised by her daughter. 34. In Manno Chaudhary vs. Munsi Chaudhary, AIR 1918 Patna 320, a Division bench of this Court has held that a private partition is bar to the subsequent partition. 35. In the earlier suit, if there had been no partition then the sale deed could not have been held to be valid and genuine sale deed because on the commencement of Hindu Succession Act, the widow had a right to claim partition only and he was not possessed of any property separately. 36. The Hon'ble Supreme Court in the case of Vaddeboyina Tulasamma vs. Vaddeboyina Sesha Reddi, AIR 1977 SC 1944 has held that the words possessed of mean the state of owning or having in once hand or power. It need not be actual or physical possession or personal occupation of the property by Hindu female but may be possession in law. It may be actual or constructive or in any form recognised by law. Therefore, sub Section 1 of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and when such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. This view has been reiterated by the Supreme Court in the case of Raghubar Singh vs. Gulab Singh, AIR 1998 SC 2401 . 37. In Satrughan Isser vs. Sabnjpari, AIR 1967 SC 272 the Supreme Court has held that the interest acquired by widow under Section 3 (2) is subject to the restriction on alienation which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, as a male owner may. If the widow after being introduced into family to which her husband belong does not seek partition on the termination of her estate, her interest will merge into the copersonery property. But if she claims partition, she is savored from the other members and her interest become a define interest in the copersonery property and the right of the other copersoner to get that interest by survivorship will stand extinguished. But if she claims partition, she is savored from the other members and her interest become a define interest in the copersonery property and the right of the other copersoner to get that interest by survivorship will stand extinguished. If she died after partition or her estate is otherwise determine, the interest in copersonery property which has vested in her will devolve upon the heirs of her husband. In the present case at our hand, as stated above, Ram Kumari never claimed any partition, therefore, her share was never defined. In such circumstances, if there was no partition then her interest will devolve on the copersoner. 38. In Kalawati Bai vs. Soirya Bai, AIR 1991 SC 1581 , the Hon'ble Supreme Court has held that a female Hindu possessed of a property on the date the Act came into force could become absolute owner only if she was a limited owner. The Legislature did not intend to extent the benefit of enlargement of estate to any or every female Hindu irrespective of whether she was a limited owner or not. 39. Further, it is held that in the case of an alienation by Hindu widow without legal necessity, the reversioner are not bound institute a declaratory suit during the life time of a widow. They would wait till her death and then sue the alienee for possession of alienated property treating the alienation as a nullity. It appears that in that case also, the widow who alienated died in the year 1968, i.e. after coming into force of Hindu Succession Act, 1956. In the present case also, Ram Kumari Devi died in the year 1964 after coming into force of Hindu Succession Act, 1956. 40. In view of the above discussion, the following matters arises:- (a) If it is held that there had been no partition as pleaded by plaintiff then the interest of Sunder Thakur will devolve on the copersoner on the death of Ram Kumari Devi because she did not claim partition nor got the interest defined by filing partition suit, therefore, she was not in possession of any property as such she will not be absolute owner of any property. (b) If it is held that there had been partition then the property of Sunder Thakur which he got in partition will devolve on his widow Ram Kumari Devi and then on her death to the husband's heirs, i.e. the plaintiff. Now if it is held in this suit that there had been no partition then this finding will be inconsistent to that of the earlier finding in earlier suit. Therefore, this finding cannot be recorded here in the present case because of the fact that the earlier finding will operate a res judicate. 41. From perusal of the impugned Judgment, it appears that the Court below has considered the admission of Ram Kumari Devi in the sale deeds executed by her. In ext. 1/e, i.e. sale deed 30.04.1958 executed by Ram Kumari Devi widow of Sunder Thakur in favour of substituted plaintiff, Hari Narayan Ojha and the other sale deed ext. 1/f, it is clearly recited that Sunder Thakur and his brother were separate and accordingly, R.S. khatiyan was prepared. Now, therefore, there are documentary evidences on the question of previous partition. The findings in the earlier suit ext.3 and 3/a and the sale deeds executed by Ram Kumari widow of Sunder Thakur admitting the fact that there had been partition. In paragraph 3 of the plaint also, the plaintiff admitted that there had been private partition. Ext.1-2 to 1-2/3 are the sale deeds executed by the original plaintiff Alakh Devi in favour of the purchaser defendant No. 37 to 45. 42. The plaintiffs have also examined witnesses in support of the fact that there had been no partition. P.W.2 has stated that some lands are cultivated jointly by the parties. P.W.3 has stated that some grains was given to him in lieu of share in the joint land. That is the evidence of P.W.5 also. In view of the documentary evidences discussed above, on the basis of these statements of these witnesses, it cannot be said that some property was partitioned and some are still joint or that the parties are in possession according to convenience. P.W.7 has stated that after the death of Sunder Thakur, his widow got possession over the property of her husband. This could be possible only if there was partition. The other witnesses, i.e. P.W.9, P.W.12 has also stated the same thing that the parties are cultivating according to their convenience. 43. P.W.7 has stated that after the death of Sunder Thakur, his widow got possession over the property of her husband. This could be possible only if there was partition. The other witnesses, i.e. P.W.9, P.W.12 has also stated the same thing that the parties are cultivating according to their convenience. 43. In view of the above discussion, I find that there had already been partition between Sunder Thakur and his brothers and they all were separate which is the findings also in the earlier suit, i.e. title Suit No. 166 of 1966, therefore, the findings by the appellate Court in the earlier suit will operate as res judicate. Since there had already been partition, therefore, second partition suit is not maintainable. The case of the plaintiff that the parties were cultivating lands according to convenience is not reliable. Therefore, the plaintiffs present simple suit for partition is not maintainable. The learned court below has, therefore, rightly held that the plaintiffs suit for partition is not maintainable and the judgment passed in earlier suit will operate as res judicate. Therefore, the findings are hereby confirmed. 44. It appears that the Court below also recorded a finding that the suit is barred by principle of adverse possession. So far this finding is concerned, it is unwarranted finding. When the Court below held that the suit is not maintainable because barred by res judicate, the Court should have refrained from any finding regarding adverse possession. 45. A Division Bench of this court in the case of Rajesh Kumar Singh vs. Reeta Singh, 2000 (2) PLJR 120 has held that once a Court comes to the conclusion that the proceeding before it was not maintainable, it has no jurisdiction to go into its merit, but if any such decision is rendered on merit, the same shall not operate as res judicate in a subsequent proceeding or different stage of the said proceeding as the case may be. In the present case, the trial Court has held that the simple suit for partition is not maintainable as barred by res judicate and I have also confirmed the aforesaid finding, therefore, when the suit itself was not maintainable, there is no question of investigation on merit or deciding the question of adverse possession arises. In the present case, the trial Court has held that the simple suit for partition is not maintainable as barred by res judicate and I have also confirmed the aforesaid finding, therefore, when the suit itself was not maintainable, there is no question of investigation on merit or deciding the question of adverse possession arises. Therefore, I held that the findings of the Court in the impugned Judgment that the suit is barred by principle of adverse possession is without jurisdiction and will not operate as res judicate between the parties in any subsequent suit or proceedings with respect to the suit property. 46. In the result, I find no merit in this First Appeal and accordingly this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost.