JUDGMENT : J.J. Munir, J. 1. This is a defendant's second appeal arising out of a preliminary decree for partition. 2. Gokaran, the sole plaintiff of Original Suit No.20 of 1972, instituted a suit for partition of four houses, shown in the schedule, with their own boundaries at the foot of the plaint, giving rise to the suit and all located in Plot No.854/29. The plaintiff demanded partition of his 1/3rd share in the four houses aforesaid, hereinafter referred to as 'the suit property', that he claimed against the defendants on the basis of a registered sale deed dated 13.12.1971, executed in his favour by Smt. Jashoda widow of Patiraj. The suit property was originally owned by one Tirath Ram son of Patiraj, who had acquired it of his own exertions. Tirath Ram died on 14.10.1967. Smt. Jashoda was his mother. She executed a registered sale deed dated 13.12.1971 of her 1/3rd share in the plaintiff's favour. The plaintiff, besides seeking a decree of partition and separate possession, prayed that a decree for the recovery of a sum of Rs.2136/- be passed against defendant Nos.1 and 2, and another for Rs.840/- against defendant Nos.6 and 7, on account of his proportionate share in the rent that the said defendants had realized from the tenants in the suit property. 3. A moreful description of the facts, leading to this appeal, would be necessary. But, before a reference to the facts, it would be apposite to refer to the following pedigree, which the Lower Appellate Court has relied upon and shows the accurate relationship of parties, who were the original owners of the suit property: 4. The plaintiff instituted the suit with a case that Tirath Ram carried on the business of a jeweller in town Khalilabad, District Basti. He constructed four houses, detailed in Schedule A at the foot of the plaint. Tirath Ram died on 14.10.1967, survived by his widow Smt. Lakhraji and two daughters, Smt. Keshari Devi and Smt. Kapura Devi, besides his mother, Smt. Jashoda Devi. Apparently, he died intestate and the four of his heirs would inherit a 1/4th share in the suit property, but for a certain decision of his widow, Smt. Lakhraji. It is the plaintiff's case that amongst the Sonars, a community from which Tirath Ram hailed, there is an ancient custom of remarriage by women after the death of their husband. Apparently, he died intestate and the four of his heirs would inherit a 1/4th share in the suit property, but for a certain decision of his widow, Smt. Lakhraji. It is the plaintiff's case that amongst the Sonars, a community from which Tirath Ram hailed, there is an ancient custom of remarriage by women after the death of their husband. There is another custom that after remarriage, the woman is divested of the estate that she inherits from her husband, which then reverts to the husband's heirs next in order of succession. Smt. Lakhraji is said to have married one Phagoo, defendant No.1 in the month of April, 1968, in accordance with the community's custom. Phagoo shifted to Smt. Lakhraji's house and settled with her, becoming what is described as 'Ghar Baitha’ Husband. Both Lakhraji and Phagoo began a life together as man and wife, in consequence of which, Lakhraji lost all her rights and title to the suit property that she inherited from Tirath Ram. As a result, the share of the other heirs, to wit, Smt. Jashoda, Tirath Ram's mother and his two daughters, Smt. Keshari Devi and Smt. Kapura Devi, defendant Nos.9 and 10 in the suit, was enlarged to a 1/3rd. Smt. Jashoda transferred her 1/3rd share in the suit property vide registered sale deed dated 13.12.1971 in the plaintiff's favour for a total sale consideration of Rs.15,000/-, said to have been paid in cash. The plaintiff thus became a co-sharer in the suit property, comprising the four houses. 5. It is averred in the plaint that in the sale deed executed by Smt. Jashoda, her share has been mentioned as 1/2 due to a clerical error. Defendant Nos.1 to 7 to the suit are men, one of them a minor at the relevant time, to whom Smt. Lakhraji transferred her entire share in the suit property, she inherited from Tirath Ram through four sale deeds, being conveyances dated 28.05.1968, 01.03.1969, 21.05.1970 and 22.04.1971. All the four houses, comprising the suit property, were constructed by the late Tirath Ram, but in the sale deed dated 21.05.1970, there is a mention of the plot alone, whereon the houses were constructed. The plaintiff says that all these four sale deeds are fictitious and without consideration. These have been executed by Smt. Lakhraji, who had no title to convey. The plaintiff says that all these four sale deeds are fictitious and without consideration. These have been executed by Smt. Lakhraji, who had no title to convey. Defendant Nos.11 and 13 are tenants of the house on different rates of rent, from whom defendant Nos.1 and 2 have realized a sum of Rs.2136/- in rent during the last three years, proportionate to the plaintiff's share, which he is entitled to recover. Likewise, defendant Nos.6 and 7 have realized rents from tenants, Kishori, Gaya and Ram Khelawan, to whom they let out portions of the houses, comprising the suit property that they purchased from Smt. Lakhraji. The plaintiff claims a sum of Rs.840/- on account of rent realized by defendant Nos.6 and 7 from the tenants aforesaid, proportionate to his share in the suit property. 6. A written statement was filed by defendant Nos.9 and 10, admitting the plaint case to the extent of Tirath Ram's death, their relationship to him and that of Smt. Jashoda to the deceased. It is also admitted that defendant Nos.9 and 10 and Smt. Jashoda succeeded to Tirath Ram's estate as his heirs. These defendants, however, question the sale deed relied upon by the plaintiff as illegal and void on ground that it was never Smt. Jashoda's conscious act and an instrument executed without consideration or legal necessity. It is also pleaded that the sale deed was one obtained by means of undue influence, because Smt. Jashoda was aged 100 years, who had almost lost her eyesight and become very hard of hearing. To add to this, she was an illiterate and a rustic woman. Defendant Nos.9 and 10 claim that they are entitled to the whole of the suit property after Smt. Jashoda's demise. It is also their case that the plaintiff's brother Prahlad purchased a grove of Tirath Ram from Smt. Lakhraji on 10.04.1969, and, similarly one Shubhkaran, a son of Lalsa Ram, purchased a field belonging to Tirath Ram from Smt. Lakhraji on 09.04.1969. The plaintiff says that Smt. Lakhraji remarried Phagoo in April, 1968 in accordance with the ancient custom of the community. Since Phagoo stays with her as her husband, Smt. Lakhraji, by the other custom of the community, stands divested of her rights and title to the suit property. The plaintiff says that Smt. Lakhraji remarried Phagoo in April, 1968 in accordance with the ancient custom of the community. Since Phagoo stays with her as her husband, Smt. Lakhraji, by the other custom of the community, stands divested of her rights and title to the suit property. These defendants, therefore, say that the sale deeds, executed by Smt. Lakhraji in favour of defendant Nos.1 to 7 on the various dates indicated, are without title, fictitious and without consideration. These have been got executed by Phagoo, defendant No.1 in his own name and in favour of his relatives and friends. It is also the case of these defendants that the sale deeds that were executed by Smt. Lakhraji in collusion with Phagoo, as already said, are fictitious and without consideration. There is an alternate plea that if ultimately it is held that they are owners of a 2/3 rd share, the said share of theirs may be partitioned and separate possession delivered. 7. Defendant Nos.1, 2 and 8 have filed a joint written statement where they admit that Tirath Ram carried on a jeweller's business before his demise and constructed the suit property. He died in the year 1967. It is pleaded that his widow, Smt. Lakhraji, defendant No.8, succeeded to his estate as his heir and LR. It is not disputed that Smt. Lakhraji executed the various sale deeds in favour of defendant Nos.1 and 2, Phagoo and Ram Asrey, through which they have acquired title. According to these defendants, Tirath Ram was owner in possession of Plot Nos.857/4 and 275. He raised houses, making for the suit property, and Smt. Lakhraji inherited it as his widow and heir, after his demise. Khalilabad was under consolidation operations, when Tirath Ram passed away. Smt. Jashoda, Tirath Ram's mother, surrendered her rights in the suit property in favour of Smt. Lakhraji as also the other properties of Tirath Ram. This led Smt. Lakhraji, defendant No.8, becoming the sole bhumidhar in possession of the suit property, that was mutated in her name alone. The consolidation records became final and Smt. Jashoda did not press her claim during the currency of those operations. Smt. Jashoda was ill for a period of about two months, preceding her death and had lost her power of understanding, with the result that the sale deed relied upon by the plaintiff is a fictitious and forged document. The consolidation records became final and Smt. Jashoda did not press her claim during the currency of those operations. Smt. Jashoda was ill for a period of about two months, preceding her death and had lost her power of understanding, with the result that the sale deed relied upon by the plaintiff is a fictitious and forged document. It has been obtained by putting up an imposter for Smt. Jashoda. These defendants denied Smt. Lakhraji's remarriage and also the custom about divesting of a widow's rights that she has inherited from her husband upon remarriage. A plea of the bar of estoppel and acquiescence has also been raised. 8. Defendant Nos.3 to 5 filed their own written statement together, denying that Smt. Lakhraji remarried Phagoo. However, they do not deny the fact that Tirath Ram passed away in the year 1967 and Smt. Lakhraji succeeded to the estate as his widow. These defendants admitted the custom of Sagai in the community of Sonars as well as the fact that Smt. Lakhraji had executed a sale deed in their favour. They have pleaded that Tirath Ram was bhumidhar in possession of Plot No.154/21 and 275-M. He built houses thereon, which comprise the suit property. These defendants plead that they had good relations with Tirath Ram, on account of which, he agreed to give them some land for building a house, as they had expressed their desire to construct a house for themselves in Khalilabad for carrying on business. It is these defendants' case that that Tirath Ram agreed to transfer some land to them for a sum of Rs.1500/-. There were parleys held in September, 1967 between defendant Nos.3 to 5 and Tirath Ram, in consequence whereof, Tirath Ram put these defendants in possession of land, agreed to be sold to them. They had commenced laying foundation, when Tirath Ram passed away in October, 1967, without executing a sale deed. It is pleaded, therefore, that the sale deed executed by Smt. Lakhraji in their favour is to honour her husband's words. The defendants plead that they have incurred an expenditure of about Rs.10,000/- or more in laying the foundation and constructing a portion of the building. The sale deed relied upon by the plaintiff has also been challenged by these defendants as an act of Smt. Jashoda with her mind not accompanying it and not binding on the defendants at all. The defendants plead that they have incurred an expenditure of about Rs.10,000/- or more in laying the foundation and constructing a portion of the building. The sale deed relied upon by the plaintiff has also been challenged by these defendants as an act of Smt. Jashoda with her mind not accompanying it and not binding on the defendants at all. These defendants too raise a plea of estoppel. 9. There is another written statement filed by defendant Nos.11 and 13, again a joint one. These defendants admit that Lakhraji had remarried Phagoo and has been living with him as his wife. The said defendants admit the plaintiff's case that Smt. Jashoda executed a sale deed relating to her share in the suit property in the plaintiff's favour and put him in possession. These defendants have also admitted the execution of the sale deed in favour of defendant Nos.1 to 7 by defendant No.8 and the fact that they were tenants of House No.1 in the list of houses, shown in Schedule A to the plaint. They have been paying rent to the plaintiff relative to their share after execution of the sale deed. It is pleaded that these defendants have been impleaded to the suit without a cause. 10. An additional written statement has been filed by defendant No.12, denying the plaintiff's right, title to and possession of the suit property. He has questioned the plaintiff's right to institute the suit with a plea that the said defendant was a tenant of defendant Nos.1 and 2 and paying rent to them. He has also pleaded that he has vacated the premises and put defendant Nos.1 and 2 in possession. 11. The plaintiff has put in a replication and denied the case of a family arrangement, where Jashoda gave up her rights to her share in Tirath Ram's property. It is pleaded that she remained in her senses till her death. It is also denied that Smt. Lakhraji had secured the consent of defendant Nos.9 and 10, when she executed sale deeds in favour of defendant Nos.6 and 7. The plaintiffs have reaffirmed through another replication the custom of remarriage amongst the Sonars and the appended custom of divesting of rights of the widow in the estate inherited from the deceased husband. The plaintiffs have reaffirmed through another replication the custom of remarriage amongst the Sonars and the appended custom of divesting of rights of the widow in the estate inherited from the deceased husband. Defendant Nos.1 and 2, through a joint additional written statement, and defendant No.10 through another additional written statement, besides defendant Nos.6 and 7, through a separate additional written statement, have affirmed the cases respectively pleaded by them regarding the plaintiff not at all being the owner of the suit property. It has been reaffirmed that the plaintiff has no share in the suit property. 12. The Trial Court framed the following issues: “1- Whether the suit is under valued? (b) Is the court fee paid insufficient? 2- Whether Smt. Lakhraji has remarried with Fagu defendant no.1 as alleged? If so its effect? 3- Whether there was any custom in the community of Tirath Ram of divesting the widow from the property of the deceased? 4- Is the share of plaintiff in the disputed property? 5- To what relief any is the plaintiff entitled? 6- Whether plaintiffs are entitled to recover the amount of rent from the defendants as alleged?” 13. The parties went to trial on the said issues leading both documentary and oral, where the Trial Court held in favour of the plaintiff on Issues Nos.1 and (b). Issue No.2 was answered by the Trial Judge in the negative and holding that the plaintiff had failed to prove that Lakhraji had married defendant No.1. Issue No.3 was also answered in the negative holding that the plaintiff failed to prove the custom in the community, to which Tirath Ram belonged, divesting the widow of her property received from her deceased husband upon remarriage. It was also held that she became absolute owner of the suit property upon her husband's death in view of the provisions of Sections 4 and 14 of the Hindu Succession Act, 1956 (for short, ‘the Act of 1956’) and that the provisions of the Hindu Widows' Remarriage Act, 1856 (for short, ‘the Act of 1856’) would not apply once the widow became full owner. It was, therefore, concluded that even if Smt. Lakhraji remarried Phagoo, it would not divest her of title in the suit property. It was, therefore, concluded that even if Smt. Lakhraji remarried Phagoo, it would not divest her of title in the suit property. Issue No.4 was answered in the manner that Smt. Jashoda had not executed the sale deed dated 13.12.1971 in the plaintiff's favour for reasons assigned there, including that a copy of Part II Yogya Praurh Register, Ex. A-14, shows that Jashoda had died on 10.12.1971 whereas the sale deed was executed on 13.12.1971. 14. So far as the share of Smt. Keshari Devi and Smt. Kapura Devi is concerned, the Trial Court has evaluated evidence, including the effect of a suit for partition filed by them, being Suit No.64 of 1968, that was dismissed in default, to infer that the case of a family partition taking place later, where defendant Nos.9 and 10 surrendered their rights to resolve the dispute is believeable. The Trial Court has relied, particularly, upon Ex. A- 9, Ex. A10 and Ex. A11, extracts of CH Form-23, which show that Lakhraji's name had been entered after Tirath Ram's death. It has been reasoned that Jashoda, who was alive at that time, did not object. It is inferred that Jashoda had surrendered her rights to Lakhraji. The four sale deeds executed by Smt. Lakhraji in favour of defendant Nos.1 to 7 were noticed to have been executed in Smt. Jashoda's lifetime without any objection from her, and, therefore, affording added reasons about Smt. Jashoda surrendering her rights. Coming back to the share of defendant Nos.9 and 10, is the fact that after dismissal in default of their own suit for partition, they did not get it restored and never entered the witness-box to support their claim. It is, particularly, remarked by the Trial Court that in the consolidation proceedings, where Smt. Lakhraji came to be recorded after Tirath Ram's demise exclusively, defendant Nos.9 and 10 did not raise any objection. There is an added observation that Lakhraji also executed a sale deed in favour of Shubhkaran and Prahlad. This sale deed is admitted by defendant Nos.9 and 10. There is no objection to the aforesaid deeds in favour of Prahlad and Shubhkaran, notwithstanding the case of a remarriage by Lakhraji and resultant divestment of her interest in Tirath Ram's estate. There is an added observation that Lakhraji also executed a sale deed in favour of Shubhkaran and Prahlad. This sale deed is admitted by defendant Nos.9 and 10. There is no objection to the aforesaid deeds in favour of Prahlad and Shubhkaran, notwithstanding the case of a remarriage by Lakhraji and resultant divestment of her interest in Tirath Ram's estate. From all this conduct and transactions, the case about defendant Nos.9 and 10 also surrendering their right in favour of Smt. Lakhraji has been accepted by the Trial Court. Based on all these facts, the learned Trial Judge dismissed the suit by means of his judgment and decree of 3rd November, 1980. 15. Aggrieved by the aforesaid decree passed by the learned Trial Judge, Gokaran, the plaintiff, instituted Civil Appeal No.492 of 1980 before the District Judge of Basti, seeking reversal of the Trial Court's decree. The appeal was admitted to hearing on 20.12.1980. Defendant Nos.9 and 10 too filed cross-objections in Civil Appeal No.492 of 1980, with a prayer that the findings of the Trial Court against the said defendants be set aside with costs. No variation, modification or setting aside of the decree was, however, sought. The Lower Appellate Court framed the following points for determination: “1. Whether Smt. Lakhraji remarried Phagoo? 2. Whether there was a custom amongst the Sonars of remarriage by the widows and if so, is there any custom regarding the divesting of the vested estate in the widow after remarriage? What is the effect of the provisions of Hindu Succession Act and Hindu Widow’s Re-marriage Act on the aforesaid custom? 3. Whether there has been a family settlement under which Smt. Lakhraji alone became owner of the disputed properties or alternatively whether Smt. Jashoda surrendered her rights in the properties of Tirath Ram which devolved on her after the death of Tirath Ram? 4. Whether Smt. Jashoda was dead on the date of the alleged execution of the sale-deed, dated 13.12.71, paper no. 140 C or she executed the sale-deed in question? 5. What, if any, was the share of Smt. Jashoda and what, if any, is the share of the plaintiff and defendants 9 and 10 each?” 16. The Lower Appellate Court allowed the plaintiff's appeal as also the cross-objections filed by defendant Nos.9 and 10. The Trial Court's decree was set aside and the suit decreed for relief of partition. 5. What, if any, was the share of Smt. Jashoda and what, if any, is the share of the plaintiff and defendants 9 and 10 each?” 16. The Lower Appellate Court allowed the plaintiff's appeal as also the cross-objections filed by defendant Nos.9 and 10. The Trial Court's decree was set aside and the suit decreed for relief of partition. The plaintiff was held entitled to a 1/3rd share in the suit property and defendant Nos.9 and 10 to a 2/3rd, which the two defendants would share equally. The plaintiff was also held entitled to recover a sum of Rs.2136/- from defendant Nos.1 and 2 and a sum of Rs.840/- from defendant Nos.6 and 7, respectively towards rent, received by the said defendants from the tenants. The plaintiff was held entitled to costs of the appeal throughout from all the defendants, including defendant Nos.9 and 10. Defendant Nos.9 and 10 were held entitled to costs of their cross-objections from the remaining defendants. 17. This appeal was admitted to hearing on the following substantial questions of law: “1. Whether the court below had the jurisdiction to entertain the appeal filed by the plaintiff? 2. Whether the court below has erred in law in considering the effect of the dismissal of suit no.64 of 1968? 3. Whether the court below has erred in interpreting the effect of Section 14 of the Hindu Succession Act over the provisions of Section 2 of the Hindu Widows Re-marriage Act, 1856?” 18. This appeal was heard and decided by this Court on an earlier occasion and it was quite a long time ago. This appeal was decided vide judgment and decree dated 24.04.2002, allowing it with costs, setting aside the decree of the Lower Appellate Court and restoring that of the Trial Judge. The judgment and decree of this Court was challenged in appeal by special leave before the Supreme Court, being Civil Appeal No. 2220 of 2006, where the appeal was allowed by a short order of their Lordships, holding that the High Court has not recorded any finding on Substantial Questions of Law Nos.2 and 3, perhaps, under an impression that once substantial questions of law are framed and the appeal admitted, this Court gets jurisdiction to re-appreciate evidence and set aside findings of fact recorded by the first Appellate Court. On this finding, the appeal was allowed and the judgment and decree earlier passed by this Court set aside with a remit of the appeal to this Court for decision afresh on the substantial questions of law already framed, or any additional substantial question of law, that may be framed under Section 100(5) of the Code of Civil Procedure, 1908 (for short, 'the Code'). 19. There is no cavil about the fact that Substantial Question No.1 was not pressed during hearing before this Court on the earlier occasion, but not after remand. During the resumed hearing of the appeal on 16.08.2021, four other substantial questions of law were framed, bearing Nos.4 to 7. The order dated 16.08.2021 reads: “Midway during hearing, it was pointed out by Mr. Pramod Jain, learned Senior Advocate assisted by Mr. Ashutosh Srivastava, learned Counsel for the appellant that the Supreme Court, while remanding the case, had left it open to this Court to frame any additional question that might arise. He submits that from the pleading of parties, a stand had been taken that the suit property is agricultural and there has never been a declaration under Section 143 of the Uttar Pradesh Z.A. & L.R. Act, 1950, the result whereof would be two folds: first, the jurisdiction of the Civil Court would be barred, and in the second place, the law governing succession would be the Uttar Pradesh Z.A. & L.R. Act and not the Hindu Succession Act. It is also submitted that respondent nos.9 and 10 suited their rights against Lakhraji before the Consolidation Authorities in title proceedings, on account of which the rights of the respondents are now barred by Section 49 of the Uttar Pradesh Consolidation of Holdings Act. The question go to the root of the matter, and, therefore ought to be dealt with in this appeal as substantial questions of law. Indeed, the way these are suggested, they appear to be substantial questions of law, subject to what the respondents say under sub-Section (4) of Section 100. It is agreed that the questions, that are now being formulated, shall be absolutely open to objection by the respondents under sub- Section (4) of Section 100 at the further hearing of this appeal. Indeed, the way these are suggested, they appear to be substantial questions of law, subject to what the respondents say under sub-Section (4) of Section 100. It is agreed that the questions, that are now being formulated, shall be absolutely open to objection by the respondents under sub- Section (4) of Section 100 at the further hearing of this appeal. The following additional substantial questions of law, therefore, appear to be involved (consecutively numbered after the questions already formulated): (4) Whether the property, subject matter of suit, in the absence of a declaration under Section 143 of the Uttar Pradesh Z.A. & L.R. Act, by its user as abadi, can be regarded as such? (5) Whether succession to the suit property would be governed by the provisions of the Uttar Pradesh Z.A. & L.R. Act or the provisions of the Hindu Succession Act? (6) Whether the suit would be barred by the provisions of Section 331 of the Uttar Pradesh Z.A. & L.R. Act? (7) Whether the suit would be barred by the provisions of Section 49 of the Uttar Pradesh Consolidation of Holdings Act? On the joint request of Mr. Pramod Jain, learned Senior Advocate assisted by Mr. Ashutosh Srivastava, learned Counsel for the defendant-appellant and Mr. B.P. Singh, learned Senior Advocate assisted by Mr. P.H. Vashistha, learned Counsel for the plaintiff- respondents, list this appeal in the additional cause list on 25.08.2021.” 20. On 26.08.2021, learned Senior Advocate appearing for respondent Nos.2 and 3 to the appeal, since long substituted by their heirs and LRs, indicated his intention to file some additional documents that could not earlier be discovered despite due diligence. These respondent Nos.2 and 3, represented through their heirs and LRs, are none else than defendant Nos.9 and 10, to wit, Smt. Keshari Devi and Smt. Kapura Devi. They did move an application under Order XLI Rule 27 of the Code, being Civil Misc. Application No.23 of 2021, but after hearing learned Counsel, it was rejected vide order dated 19.04.2022. The hearing of this appeal, therefore, after remand, proceeded before this Court on behalf of defendant-appellant Nos.1 to 4, all of whom are dead and represented by their heirs and LRs on one hand, and, on the other, the heirs and LRs of respondent Nos.2 and 3, or as already said, defendant Nos.9 and 10, Smt. Keshari Devi and Smt. Kapura Devi. 21. 21. The plaintiff, Gokaran, did not pursue this appeal after the judgment passed on the earlier occasion and remand by the Supreme Court. Likewise, appellant Nos.5, 6 and 7, who are defendant Nos.5, 6 and 7, did not appear at the hearing of this appeal. Appellant No.8, Smt. Lakhraji, who is defendant No.8, is dead and her interest was represented by appellant Nos.1, 2, 3, 4, 5, 6 and 7. Out of all these defendant-appellants, deceased- appellant Nos.1 to 4 are represented by their heirs and LRs, who have been heard in support of the appeal. They represented the interest of Lakhraji as well. After all, defendant- appellant Nos.1 to 7, which includes the absenting defendant Nos.5, 6 and 7, have all acquired their interest in the suit property through conveyances executed by Smt. Lakhraji, defendant No.8. To sum up, therefore, this appeal has been heard at the instance of the heirs and LRs of defendant- appellant Nos.1, 2, 3 and 4 on one hand and the heirs and LRs of defendant Nos.9 and 10 on the other. 22. Heard Mr. Pramod Jain, learned Senior Advocate assisted by Mr. Shreesh Srivastava, learned Counsel for the defendant- appellants and Mr. B.P. Singh, learned Senior Advocate assisted by Mr. P.H. Vashishtha, learned Counsel for the defendant-respondents. 23. It may be remarked at the outset that in a suit for partition, every party, whether plaintiff or defendant, occupies the position of a plaintiff in the sense that shares of one and all have to be declared. Of course, realization of shares of parties, who desire a partition by metes and bounds, depends upon them, seeking a final decree, subject to payment of court-fee. Thus, notwithstanding the fact that the plaintiff or some of the defendants may not have appeared at the hearing of this appeal, there has to be an accurate declaration of their shares, whether it is by affirmation of the decree passed by the Lower Appellate Court or its modification. When the hearing of this appeal commenced, after remand, learned Counsel for the parties persuaded this Court to formulate four additional questions under sub-Section (4) of Section 100 of the Code. 24. Upon hearing learned Counsel for the parties at length, what this Court finds is that the additional questions, that were formulated on 16.08.2021, are really not involved in this appeal. 24. Upon hearing learned Counsel for the parties at length, what this Court finds is that the additional questions, that were formulated on 16.08.2021, are really not involved in this appeal. The reason is that upon facts and some documentary evidence noticed by the Courts below, which is on record, these questions may appear to be attractive, but are indeed not involved. There was no case ever pleaded by any of the defendants that in the absence of a declaration under Section 143 of the Uttar Pradesh Z.A. & L.R. Act, the suit property cannot be regarded as abadi. This was never the parties’ case, upon which they went to trial or heard in appeal by the Lower Appellate Court. Likewise, the other two questions regarding the right to succession being governed by the Uttar Pradesh Z.A. & L.R. Act, or alternatively by the Act of 1956 was never a case that was suited between parties before both the Courts below. Also, there was never an issue raised or tried between parties, if the suit is barred by Section 331 of the Uttar Pradesh Z.A. and L.R. Act. There was also never a plea or a case by the defendants that the suit is barred by Section 49 of the Uttar Pradesh Consolidation of Holdings Act, which would have been determined by the Courts below, if agitated before them at the instance of the defendants. 25. In the absence of parties suiting a case before the Courts below that would support the additional questions, which are essentially questions, that are not pure questions of law, but would require consideration of some evidence, this Court does not think that the present appeal ought be determined on the added questions. 26. The first substantial question of law is, whether the Lower Appellate Court had jurisdiction to entertain the appeal. This question essentially relates to the pecuniary jurisdiction of the District Court, going by valuation of the suit for the purpose of hearing an appeal, determined by law at the relevant time. The learned Judge in the Lower Appellate Court has dealt with this question as a preliminary point in the appeal. The relief of partition, the plaintiff claimed, was with regard to a 1/3rd share in the property, the total value of which was Rs.45,000/-. The learned Judge in the Lower Appellate Court has dealt with this question as a preliminary point in the appeal. The relief of partition, the plaintiff claimed, was with regard to a 1/3rd share in the property, the total value of which was Rs.45,000/-. The valuation of the plaintiff’s share, the Lower Appellate Court has found, would work out to Rs.15,000/-, about which there is a remark that it is not disputed. The further claim of the plaintiff is with regard to recovery of Rs.2136/- and another sum of Rs.840/- as arrears of rent, which too is not disputed. An objection appears to have been taken before the Lower Appellate Court by one of the respondents that the relief of partition would involve cancellation of the four sale deeds executed by defendant No.8, Lakhraji in favour of defendant Nos.1 to 7, worth a total sum of Rs.20,000/-. The valuation of these deeds, if added to the valuation of the relief of partition and recovery of arrears of rent from defendant Nos.9, 10 and 11, would peg the valuation of the suit for the purpose of jurisdiction at a sum of Rs.37,976/-; and a fortiori that would be the valuation of the appeal for the purpose of pecuniary jurisdiction. Going by pecuniary jurisdiction of the District Court at the relevant time, the appeal would not be cognizable by the learned District Judge but the High Court. 27. This contention of the party, objecting to the jurisdiction of the District Judge to hear the appeal, was rejected on the foot of the cause of action pleaded by the plaintiff to support his claim for partition, where the four sale deeds executed by Lakhraji were claimed to be ultra vires, inasmuch as upon her remarriage to Phagoo, after the death of Tirath Ram, following a custom in the community of Sonars, permitting remarriage in the Sagai form to a widow, her share in her deceased husband’s property was lost by a further custom that remarriage of a widow led her to lose any interest in her husband’s estate that she inherited upon his demise. The Lower Appellate Court, therefore, regarded it to be a case where the sale deeds executed by Lakhraji were ultra vires and void, and relying upon the case of Shaukat Ali v. Kamal alias Abdulla 1980 LLJ 243 held that a sale deed that was alleged to be fictitious did not require cancellation or setting aside. It can be disregarded. 28. The Lower Appellate Court also considered the case of Kamla Devi v. Sunni Central Board of Waqfs, U.P., Lucknow through its Secretary and another, AIR 1949 All 63, where the plaintiff purchased some waqf property from the heirs of the waqif and then brought a suit for a declaration that the property purchased by him was not a waqf. Rather, the plaintiff was the owner thereof. It was held in that suit, as noted by the Lower Appellate Court, that in effect the suit was one for cancellation of or adjudging void the waqfnama in the plaint, for reason that the waqfnama executed by the waqif was sought to be cancelled on ground that it was not properly executed. The Lower Appellate Court remarked that the said case is distinguishable on facts. The plea of improper execution of a document is not the same as the executant not having power to execute it at all. The Lower Appellate Court opined that according to the plaintiff’s case, Lakhraji had no title at all to transfer, and, therefore, her deeds were void. This was premised on the case that her title had ceased upon remarriage in the customary form of Sagai to Phagoo. 29. About the cross-objections, the valuation of which is Rs.30,000/-, the Lower Appellate Court remarked that the cross-objections preferred by defendant Nos.9 and 10 were one that did not challenge the decree of dismissal of the suit nor a decree for declaration of their share was sought. Defendant Nos.9 and 10 laid a case in the cross-objections about the findings recorded by the Trial Court being wrong. The Lower Appellate Court, therefore, opined that the cross-objections cannot be regarded as an appeal and the valuation of the cross-objection made at Rs.30,000/- by the defendant, was of no consequence. It would not in any manner change the valuation of the appeal which would be governed by the valuation of the suit made by the Trial Court. The Lower Appellate Court, therefore, opined that the cross-objections cannot be regarded as an appeal and the valuation of the cross-objection made at Rs.30,000/- by the defendant, was of no consequence. It would not in any manner change the valuation of the appeal which would be governed by the valuation of the suit made by the Trial Court. The valuation of a suit for the purpose of jurisdiction is made on the basis of reliefs claimed by the plaintiff, founded on the case that he/ she pleads. We agree with the Lower Appellate Court that the plaintiff, in substance, claimed a partition of his 1/3rd share and recovery of rent in the specified sum from defendant Nos.9, 10 and 11. He valued the suit on the basis of the said relief. He did not value the suit for reliefs of cancellation of the four sale deeds executed by Lakhraji, because he regarded the same to be ultra vires and void. A document, that is void ab initio for want of even a semblance of title in the executant, can always be disregarded and other reliefs claimed by the plaintiff upon establishment of his right. A document or documents regarded by the plaintiff void need not be sought cancellation of, for these do not at all create any rights in derogation of the plaintiff’s, or for that matter, anyone else’s. This distinction between documents that according the plaintiff’s case pleaded are void ab initio and those that must be adjudged void and, therefore, require cancellation is well established. Since a relief for cancellation of a void document, according to the plaintiff’s case, is not necessary at all, the plaintiff was not required to seek cancellation of the four sale deeds, executed by Lakhraji, defendant No.8 in favour of defendant Nos.1 to 7. He was, therefore, not required to seek relief of cancellation or implicitly regarded as having sought a relief of cancellation, which would add to the valuation of the suit, and, a fortiori to the appeal. The Lower Appellate Court was, therefore, perfectly right in its reasoning to have kept the relief of cancellation out of the subject matter of the suit and, therefore, its valuation. 30. There is another vantage to it. The Lower Appellate Court was, therefore, perfectly right in its reasoning to have kept the relief of cancellation out of the subject matter of the suit and, therefore, its valuation. 30. There is another vantage to it. Though, a suit is to be valued according to the reliefs claimed in the plaint, the plaintiff in any case would never be required to seek cancellation of the four sale deeds. If Lakhraji had a right to execute those sale deeds, the suit being one for partition, the rights of co-sharers and parties to the suit would be determined on the basis that Lakhraji had a share. If Lakhraji did not have a share, the shares of parties to the suit would be determined accordingly. Therefore, in either event, there would be no necessity to seek cancellation of the four sale deeds executed by Lakhraji. 31. In the opinion of this Court, therefore, the suit and the appeal were rightly valued and the appeal was within the pecuniary jurisdiction of the Lower Appellate Court according to the law at the time that he heard the appeal. The learned Additional District Judge was also right in excluding from consideration the valuation shown on the cross-objection, because the cross-objection preferred by defendant Nos.9 and 10 did not claim any share in the decree or sought the decree of dismissal passed by the Trial Court to be reversed or modified. The cross-objection was limited to certain objections to the findings recorded by the Trial Court, which could in any case be objected to at hearing of the appeal before the Lower Appellate Court, without lodging cross-objections by defendant Nos.9 and 10. We, therefore, answer Substantial Question No.1 in the affirmative and hold that the learned District Judge had pecuniary jurisdiction to entertain and determine the appeal. 32. This takes to the second question, to wit, whether the Court below has erred in law in considering the effect of the dismissal of Suit No.64 of 1968. 33. After Tirath Ram’s death on 14.01.1961 and apparently after Smt. Lakhraji is said to have entered into a second marriage with Phagoo, defendant Nos.9 and 10, Smt. Keshari Devi and Smt. Kapura Devi, instituted a suit for partition against Smt. Jashoda and Lakhraji, seeking a declaration of their share and Jashoda, excluding Lakhraji. This suit was numbered as Suit No.64 of 1968. This suit was numbered as Suit No.64 of 1968. It is common ground between parties that the suit was one for partition and that it was dismissed. As appears from the record, Suit No.64 of 1968 was dismissed in default and never restored. It is contended by learned Counsel for defendant-appellant Nos.1 to 4 that Smt. Keshari Devi and Smt. Kapura Devi, having instituted a suit for partition of their share, which was dismissed in default and never restored, they have no right now in the present suit, instituted by Gokaran to seek a declaration of their share. Their right stands barred. The learned Counsel appearing for defendant Nos.9 and 10, on the other hand, contends that the earlier suit being dismissed in default, there is no res judicata that would come into play so as to bar defendant Nos.9 and 10 from asserting their claim to a partition of their share in the suit property. 34. The Lower Appellate Court has remarked on the same lines about the issue as the learned Senior Advocate appearing for defendant Nos.9 and 10 contends. On this issue about the present claim asserted by defendant Nos.9 and 10 to a partition of their share being barred on account of an earlier suit instituted by them for partition being dismissed, albeit in default, it is remarked by the Lower Appellate Court in the following terms: “………. It may be also mentioned here that before this litigation there was a litigation between Smt. Lakhraji and Smt Jashoda on one hand and Smt. Kesari and Kapura on the other regarding the properties of Tirath Ram. Smt. Kesari and Kapura filed the suit in which according to written statement of Smt. Jashoda and Smt. Lakhraji (copy paper no.156 C), it was alleged that Smt. Lakhraji remarried Phagoo and it was also claimed in the plaint that there was a custom of remarriage in the Biradari of the Sonars which was linked up with the custom that on remarriage the widow ceases to have any interest in the property of her husband of which she becomes divested and these allegations were denied by Smt. Jashoda and Smt. Lakhraji. Smt. Kesari and Kapura are the own daughters of Smt. Lakhraji from her husband Tirath Ram and if there had been no remarriage, they would not have come out with that allegation against their own mother. Smt. Kesari and Kapura are the own daughters of Smt. Lakhraji from her husband Tirath Ram and if there had been no remarriage, they would not have come out with that allegation against their own mother. Therefore, this litigation (O.S. No.64/68) which was dismissed for default vide copy of the order dated 11.3.69, paper no.147 G, may be said to invoke one instance in === of inheritance divesting was claimed denied. This dismissal in default can have no effect on the merits of this suit because there was no judgment on merits vide A.I.R. 1964 Allahabed 302, Ram Prasad and another Vs. Chhajju and others.” 35. Now, a bar of the plaintiff’s right to institute a fresh suit under Order IX Rule 9 of the Code, if the suit was dismissed under Order IX Rule 8 of the Code, is entirely different from the bar of res judicata. It is attracted in a case where the defendant appears and the plaintiff does not, when the suit is called on for hearing and the Court dismisses it in default. The plaintiff is precluded from bringing a fresh suit on the same cause of action by virtue of Order IX Rule 9 of the Code. His remedy is to apply for an order to set aside the dismissal, i.e. if he satisfies the Court that there was sufficient cause for his non- appearance. If he does not seek restoration of a suit dismissed in the defendant’s presence, no fresh suit on the same cause of action can be instituted. However, a dismissal of this kind does not bring in any kind of res judicata. Whereas dismissal of a suit under Order IX Rule 9 merely bars the plaintiff’s remedy of instituting a fresh suit, res judicata prevents the issues involved in the earlier suit from being tried, because they are already decided. Res judicata comes into play when in an action instituted by the plaintiff and contested by the defendant, an issue is decided finally between parties, the effect of which is expressed in a decree. In consequence, the right of the plaintiff or the defendant in terms of the decision in the earlier suit on merits, creates a right in favour of one and extinguishes that of the other, who fails. In consequence, the right of the plaintiff or the defendant in terms of the decision in the earlier suit on merits, creates a right in favour of one and extinguishes that of the other, who fails. Therefore, while res judicata decides and determines the right of a party, where the party, who has the issue decided against him, loses his right that he claims, a dismissal of the suit does not lead to a destruction of the party’s right, whose suit is dismissed in default. It only bars the remedy. The right survives. Therefore, if in some other and later suit brought by other side, the right in respect of which the remedy to bring a fresh suit is lost to the defaulting defendant because of the provisions of Order IX Rule 9 of the Code, it does not mean that in such suit, rights of the party, whose suit has been dismissed in default, falling for determination, cannot be determined. They ought to be determined because dismissal of the suit under Order XI Rule 8, does not destroy the right itself, as already said. 36. On this reasoning of the matter, defendant Nos.9 and 10 in a suit brought by the plaintiff, where shares of parties have been opened up for determination by the Court, cannot be held barred on account of dismissal in default of the said defendants’ earlier suit brought against defendant No.8, Smt. Lakhraji and their grandmother, Smt. Jashoda, arrayed as defendants to the earlier suit. 37. There is another principle why Suit No.64 of 1968 would not bar, defendant Nos.9 and 10 from claiming the determination of their share in the present suit. It has been held for a principle that if in a suit for partition of property, a decree is passed after trial, but the execution of that decree becomes barred by limitation or otherwise, a second suit on the same cause of action for a partition and declaration of shares in the joint property would be maintainable, even by the plaintiff of the former suit so long as the property is joint. This principle is well settled by consistent authority spreading over a period of well over 100 years. This principle is well settled by consistent authority spreading over a period of well over 100 years. In Bisheshar Das and another vs. Ram- Parshad and another, (1906) 3 All LJ 379, a Bench decision of this Court, it was held by Stanley, C.J., speaking for the Court: “The principle laid down in the case of Nasratullah v. Mujibullah [[1891] I.L.R., 13 All., 309.] appears to us to govern this case. In that case it was held that where a decree declaring a right to partition has not been given effect to by the parties and the decree has become by lapse of time or otherwise unenforcible, it is competent to the parties or any of them, if they continue still to be interested in the joint property, to bring a fresh suit for a declaration of their right to partition. In the course of their judgment the learned Chief Justice, Sir JOHN EDGE, and one of us stated as follows:— “It appears to us that when a decree declaring a right to partition has not been given effect to by the parties proceeding to partition in accordance with it, it is competent for the parties or any of them if they still continue to be interested in the joint property, to bring another suit for a declaration of a right to a partition in case their right to partition is called in question at a time when by reason of limitation or otherwise they cannot put into effect the decree first obtained. In this respect suits for declaration of right to partition differ from most other suits, so long as the property is jointly held, so long does a right to partition continue. When a person having a right to partition and desiring to partition, has his right challenged, it appears to us he can maintain a suit for a declaration, provided his prior decree is not still enforcible.” As it appears to us the right to enforce partition is a legal incident of a joint tenancy and so long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the joint property. ” 38. ” 38. In Kannikandath Kizhe Purakkal Velia's Son, Thayan v. Kannikandath Kozhe Purakkal, 1934 SCC OnLine Mad 424 : AIR 1935 Mad 458 , a Bench decision of the Madras High Court, it was held: “The first point is whether the present suit is barred under O. 9, R. 9 by reason of the former suit Cases of a second suit for partition may fall under three classes: (1) Where the former suit ended in a final decree, e.g. 3 Bom. L.R. 91 [Soni v. Munshi, (1901) 3 Bom LR 94.] distinguished in 10 C.W.N. 839 [Madan Mohan v. Baikanta Nath, (1906) 10 CWN 839], cases where there was preliminary decree but not a final decree example of this are 1915 All. 1 [Mukerji v. Afzul Beg, 1915 All 1 : 27 IC 694 : 37 All 155], 33 Cal. 1101 [Mariamanessa Bibi v. Joyanan Bibee, (1906) 33 Cal 1101 : 4 CLJ 149 : 10 CWN 934] and 1918 Mad. 751 [Sethu Rama Sahib v. Chethu Rama Sahib, 1918 Mad 751 : 40 IO 820]. (3) Cases where the suit was dismissed for default: 28 All 627 [Bisheshar Das v. Ram Pershad, (1906) 28 All 627 : 3 ALJ 379 : 1906 AWN 142.]. The case before us falls under the last heading. Following the decisions in 28 All. 627 [Bisheshar Das v. Ram Pershad, (1906) 28 All 627 : 3 ALJ 379 : 1906 AWN 142] and 1926 Mad. 1018 [Madhura Gramani v. Sesha Reddy, 1926 Mad 1018 : 97 IO 622 : 49 Mad 939], we hold that the present suit is not barred. The reason is that, even after the dismissal of the former suit, the jointness continues and there is a continuing cause of action. It is unnecessary to consider the decision in 1918 Mad. 751 [Sethu Rama Sahib v. Chethu Rama Sahib, 1918 Mad 751 : 40 IO 820.] and whether 33 Cal. 1101 [Mariamanessa Bibi v. Joyanan Bibee, (1906) 33 Cal 1101 : 4 CLJ 149 : 10 CWN 934.] was rightly dissented from in it. The only other point relates to interest. The plaintiff will have interest only from the date of plaint vide 1930 Mad. 727 [Nanchappa Gounden v. Iuichana Mannadiar, 1930 Mad 727 : 127 IC 630 : 53 Mad 549.]. The decree is affirmed subject to this modification. The only other point relates to interest. The plaintiff will have interest only from the date of plaint vide 1930 Mad. 727 [Nanchappa Gounden v. Iuichana Mannadiar, 1930 Mad 727 : 127 IC 630 : 53 Mad 549.]. The decree is affirmed subject to this modification. As the appellant has substantially failed, he will pay the costs of the respondent.” 39. In Devendra Kumar Srivasatava v. Prabhat Kumar Srivastava and others, 2023 SCC OnLine Pat 2458, it was held by Sunil Dutta Mishra, J.: “10. In partition suit, the principle is well settled that the cause of action in fact is a recurring one and the contention with regard to Order IX Rule 9 or Order XXII Rule 9 CPC bar of subsequent suit is without substance. Even after dismissal of the former suit, the jointness continues and there is a continuing cause of action. In the present case, the earlier suit was not decided on merit but dismissed for default/non-prosecution. The petitioner if wants to transfer the suit from Siwan Civil Court to Patna Civil Court he can file the appropriate petition before this Court if so advised. The question whether the plaintiff/Respondent No. 1 has violated any order of this Court and committed contempt cannot be decided in the present proceeding.” 40. The issue also engaged the attention of the Himachal Pradesh High Court in Asha Sharma and others v. Amar Nath and others, AIR 2003 HP 32 , where it was held: “8. So far the question of suit being barred by principle of res judicata is concerned, such principles are not attracted in the present Case. There is no scope of dispute that an order made under Order 9, Rule 8 of the Code of Civil Procedure would not amount to res judicata, as such, a suit cannot be said to have been heard and finally decided by the order of dismissal made for the non-appearance of the plaintiffs under Order 9, Rule 8 of the Code. The only effect of an order made under Order 9, Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9, Rule 9 of the Code. The only effect of an order made under Order 9, Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9, Rule 9 of the Code. The question, in the circumstances, is whether the second suit for partition filed by the plaintiffs is not maintainable in view of the bar created under Order 9, Rule 9 of the Code. 17. It will also not apply to the cases where the cause of action is recurring or continuous. The right to enforce partition is a legal incident of a joint tenancy, and so long such tenancy subsists, a party has a continuous right for partition. 18. In Nasarat-Ullah v. Mujib-ullah (1) 1891 ILR 13, All 309, principle was laid that so long the property is jointly held, so long does a right of partition continuous. This principle was reiterated in Bisheshar Das v. Ram Prasad, 1906 ILR 28 All 627. In that case plaintiffs and defendants were members of Joint Hindu family. The plaintiffs filed a suit for partition of the joint assets. The suit was dismissed in default. The plaintiffs brought a fresh suit for partition of the assets. The trial Court dismissed the suit. However, the first appellate Court held that the second suit was barred, as the former suit was regularly dismissed and the remedy was only by way of an appeal. 19. A Division Bench of Allahabad High Court, in this background, held: “As it appears to us, the right to enforce partition is a legal incident of a joint tenancy, and so long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the Joint property”. 20. In Madhura Gramani v. Thumala Sesha Reddy, (1926) ILR 49 Mad 929 : (AIR 1926 Madras 1018), a suit for partition of certain property in which plaintiff claimed 3/4th share was dismissed in default under Order 9, Rule 8 of the Code. A second suit was brought for partition. It was contended that the second suit for partition was barred under Rule 9 of Order 9. 22. A second suit was brought for partition. It was contended that the second suit for partition was barred under Rule 9 of Order 9. 22. In Mukha Singh v. Ramchariter Singh, AIR 1956 Patna 143, plaintiff, who was a co-sharer in certain lands, brought a suit for declaration of his title and confirmation of possession and, in the alternative, for possession on the allegation that a cloud was cast on his title by the rejection of his prayer for mutation by the Land Registration Deputy Collector. This suit was dismissed under Order 9, Rule 8 of the Code of Civil Procedure for non-appearance of the plaintiff. The plaintiff subsequently brought a suit for partition of his share in the land on the ground that he was finding it difficult to manage the land along with his co-sharers. 23. A single Judge of the Patna High Court held that the subsequent suit for partition was not barred by the provisions of Order 9, Rule 9 as cause of action for partition suit is recurring one and, therefore, the bar under Order 9, Rule 9 will not operate in the case of partition suits of the same property. 24. In Manohar Lal Behari Lal v. Onkar Das alias Omkar Dass, AIR 1959 Punjab 252, A Division Bench of Punjab High Court construing the provisions of Order 9, Rule 8 and Order 9, Rule 9 of the Code observed: “A suit for partition dismissed for default under Order 9. Rule 9 of the Code of Civil Procedure does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which ensures so long as the joint tenancy continuous”. 26. I have already observed that cause of action is continuous in partition cases which subsists so long the property is held jointly. In other words, the joint owner can file a suit for partition until partition is actually effected irrespective of the fact whether earlier suits for such partition were dismissed in default or an earlier decree for partition was not acted upon.” 41. The Kerala High Court in Manakkal Nadakumar v. M. Subramanyan and others, ILR 2017 (1) Kerala 907 was also confronted with the same issue, where after discussing a wealth of authority, it was held: “23. The Kerala High Court in Manakkal Nadakumar v. M. Subramanyan and others, ILR 2017 (1) Kerala 907 was also confronted with the same issue, where after discussing a wealth of authority, it was held: “23. So it is clear from the above dictums that in order to attract the bar of res judicata for a subsequent suit, it must be decided on merits and dismissal on technical grounds or it was dismissed as not pressed will not operate as res judicata in the subsequent suit as the issues have not been heard and decided finally on merit. Further it is also clear from the above dictums that in respect of suit for partition as well redemption of mortgage, the dismissal of an earlier suit as not pressed or dismissed on technical grounds will not amount to res judicata for filing a subsequent suit as it will be having recurring cause of action till the right to claim partition or redemption is totally extinguished.” 42. It must be added here that what this Court has observed regarding the right of a party to seek partition of a joint property, where his suit is dismissed under Order IX Rule 8 of the Code, is not in derogation of the wider principles, well acknowledged that a suit for partition after a decision of the first suit, where the decree is not executed for some reason, is not barred. What this Court has held is that notwithstanding the dismissal of a partition suit instituted by a co-sharer under Order IX Rule 8, even if it be regarded that his right to sue is barred, his right to claim a partition of his share in a suit brought by another co- sharer, can never be held barred. This principle is to be understood within the parameters of the wider principles, permitting a second suit for partition to be brought under the circumstances indicated in those decision. 43. In view of what has been said above, Substantial Question of Law No.2 must be answered in the negative holding that the Court below did not err in considering the effect of dismissal of Suit No.64 of 1968. 44. 43. In view of what has been said above, Substantial Question of Law No.2 must be answered in the negative holding that the Court below did not err in considering the effect of dismissal of Suit No.64 of 1968. 44. The next substantial question of law that falls for consideration and the last is, whether the Court below has erred in interpreting the effect of Section 14 of the Act of 1956 over the provisions of Section 2 of the Act of 1856. 45. Before we set about the task of answering the substantial question, we accept all findings of fact regarding the relationship of parties, the custom of remarriage amongst the community of Sonars, the factum of customary remarriage solemnized by Smt. Lakhraji, the custom of divesting the widow’s right to inherit her husband’s estate upon remarraige amongst the Sonars as correct, and, then proceed to determine how the law governed by Section 14 of the Act of 1956 and the provisions of Section 2 of the Act of 1856, would bear on the shares of parties, determined for them by the Lower Appellate Court. In working out the shares of parties on the above parameters, we also regard as correct, the finding of fact recorded by the Lower Appellate Court regarding the share inherited by Smt. Jashoda from her son, the late Tirath Ram in the suit property and the validity of disposition of her share made in favour of Gokaran by registered conveyance. 46. Needless to say that the Lower Appellate Court regarded the conveyance of her share in the suit property by Smt. Jashoda to be a valid disposition made through a registered conveyance in favour of Gokaran. It is on that basis that the Lower Appellate Court has granted a 1/3rd share in the suit property to Gokaran, the plaintiff. 46. Needless to say that the Lower Appellate Court regarded the conveyance of her share in the suit property by Smt. Jashoda to be a valid disposition made through a registered conveyance in favour of Gokaran. It is on that basis that the Lower Appellate Court has granted a 1/3rd share in the suit property to Gokaran, the plaintiff. The Lower Appellate Court has granted a 1/3rd share to Gokaran and the remainder 2/3rds in the estate of Tirath Ram to his two daughters, defendant Nos.9 and 10, Smt. Keshari Devi and Smt. Kapura Devi on a finding based on the interpretation of the provisions of Section 14 of the Act of 1956 and Section 2 of the Act of 1856, besides the effect of the custom of divesting amongst the Sonars to the effect that Smt. Lakhraji had lost the share that she had inherited from her husband, upon her customary re-marriage to Phagoo. 47. This Court, therefore, proceeds on the basis of the findings of fact recorded by the Lower Appellate Court that Smt. Jashoda, Smt. Keshari Devi and Smt. Kapura Devi, all have inherited shares in the suit property. The only question is how much. The answer to this depends on what the defendant- appellant Nos.1 to 4 have urged before us. It is urged that Smt. Lakhraji never lost the right to her share that she inherited, notwithstanding her customary remarriage to Phagoo. As already remarked, we accept as correct the findings of her customary remarriage to Phagoo and the existence of a custom regarding divestment of a widow’s interest in her husband's estate upon her customary remarriage to another man in the community of Sonars, to which the parties belonged. Section 14 of the Act of 1956 reads: "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. Section 14 of the Act of 1956 reads: "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 her 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 a 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.” 48. Section 4 of the said Act provides: "4. Overriding effect of Act.—Save as otherwise expressly provided in this Act,— (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.” 49. The learned Additional District Judge, who decided the appeal in the Lower Appellate Court, held that there was no inconsistency between the provisions of the Act of 1856 providing for the divestment of estate inherited from her husband upon remarriage and Section 14 of the Act of 1956. Likewise, it was held that there was no inconsistency between the customary Hindu law providing for forfeiture of an estate inherited by a widow from her husband upon remarriage, whether according to the custom in a particular community or the Act of 1856. Likewise, it was held that there was no inconsistency between the customary Hindu law providing for forfeiture of an estate inherited by a widow from her husband upon remarriage, whether according to the custom in a particular community or the Act of 1856. This was concluded on the foot of the reasoning that there was no inconsistency between absolute vesting envisaged under Section 14 of the Act of 1956 of property possessed by a Hindu female, inherited by her before or after commencement of the Act of 1956 and its forfeiture under the Act of 1856. In reaching that conclusion, the learned Additional District Judge followed Sankar Prasad Khan and others v. Smt. Ushabala Dasi and other, AIR 1978 CAL 525 and Gangadhar Charan Naga Goswami and others v. Sm. Saraswati Bewa and another, AIR 1962 Orissa 190. The learned Additional District Judge did not follow a contrary opinion expressed by the Rajasthan High Court in Mst. Bhuri Bai v. Mst. Champi Bai, 1967 SCC OnLine Raj 10, holding that the views of the Orissa and Calcutta High Courts appear to be more reasonable and acceptable. According to the learned Judge, there was, by time he rendered judgment, no decision in point of ours or the Supreme Court, that would bind him. 50. It would be apposite to consider the three decisions, two taking one view and one the other, which the learned Additional District Judge has dwelt upon in reaching his conclusions, that give rise to the present question. Sankar Prasad Khan (supra) was a decision, where the question arose if an estate, inherited by a Hindu widow, would, on her remarriage, be forfeited under the Act of 1856, or belong to her absolutely under Section 14 of the Act of 1956. The facts, giving rise to the issue, in Sankar Prasad Khan can best be noticed from the report, which read: “1. One Ushabala (plaintiff) filed the present suit on the allegation that the disputed properties belonged to her husband, Gostha Behari Khan. The latter died leaving her as widow and a son, Sashanka Sekhar. Her son also died leaving his minor widow, Kalibala, pro forma defendant No. 2. Defendant No. 1, Gobinda Charan Khan, who is Gostha Behari's elder brother, was appointed guardian of Kalibala's person and property by the District Judge, Midnapore, and so the property in question was under his management. Her son also died leaving his minor widow, Kalibala, pro forma defendant No. 2. Defendant No. 1, Gobinda Charan Khan, who is Gostha Behari's elder brother, was appointed guardian of Kalibala's person and property by the District Judge, Midnapore, and so the property in question was under his management. On the 29th of Ashar 1361 B. S. Kalibala was married to one Bhutnath Chowdhury, pro forma defendant No. 3. By such remarriage she was divested of her interest in the disputed property and the same devolved on the plaintiff as the next reversioner of her son Sashanka Sekhar. Hence, Gobinda Chandra's guardianship also came to an end with Kalibala's remarriage. He is in wrongful possession of the disputed property. The suit was filed for declaration of title and recovery of possession and mesne profits and also for injunction. Subsequently by amending the plaint the prayer for partition was added. 2. Defendant No. 1 filed a written statement denying the plaintiff's allegations. He alleged that he still continued to be Kalibala's guardian. The alleged remarriage was invalid because no consent of the Court guardian was obtained. 3. The learned Munsif accepted the plaintiff's version in part. He stated that since defendant No. 1 was appointed guardian by the Court, his possession was not wrongful. So he allowed the plaintiff's other prayers but refused the claim for mesne profits. 4. Against that decision defendant No. 1 preferred an appeal. The plaintiff also filed a cross-objection for getting the mesne profits. The learned Subordinate Judge, Midnapore, allowed the appeal and the cross-objection and remanded the case to find out whether all were ejmali properties and if the plaintiff was entitled to a partition of the same. Against that order the High Court was moved. The High Court stated that the marriage was true. The case was remitted to the Subordinate Judge, Midnapore, to determine the other points and to ascertain the quantum of mesne profits. 5. Thereafter the learned Subordinate Judge found in favour of the plaintiff on all the points. He stated that after Kalibala's remarriage the guardianship of defendant No. 1 came to an end for all intents and purposes. He also stated that with the enactment of Hindu Succession Act, 1956, the provisions of the Hindu Widow's Remarriage Act, 1856 were impliedly repealed. Against that decision the present appeal has been filed.” 51. He stated that after Kalibala's remarriage the guardianship of defendant No. 1 came to an end for all intents and purposes. He also stated that with the enactment of Hindu Succession Act, 1956, the provisions of the Hindu Widow's Remarriage Act, 1856 were impliedly repealed. Against that decision the present appeal has been filed.” 51. In answering the relevant issue in Sankar Prasad Khan, it was held by B.N. Maitra J.: “9. Let us then discuss the other aspects of the case. Section 4 (1) (b) of the Hindu Succession Act, 1956, says that save as otherwise expressly provided for in the Act any other law in force immediately before the commencement of the Act shall cease to apply to Hindus so far as it is inconsistent with any of the provisions contained in the Act. It does not appear that the provisions of Hindu Succession Act, 1956, are in conflict with Hindu Widows Remarriage Act, 1856, in this respect. The same view will appear from Mulla's Hindu Law, 14th Edition at page 869. Section 14 (1) of the Hindu Succession Act is important in this respect. That sub-s. (1) says that any property possessed by a Hindu female whether acquired before or after the commencement of the Act shall be held by her as full owner thereof and not as a limited owner. Of course the word 'possessed' used in that sub-section connotes both ownership and possession and not possession alone without any title, say the case of a trespasser widow. The principles of the cases of Mangal in AIR 1967 SC 1786 and Dindayal v. Rajaram in AIR 1970 SC 1019 may be cited. The relevant portion of section 2 of the Hindu Widow's Remarriage Act says that rights and interests which any widow may have in her deceased husband's property by way of maintenance or inheritance or by will or testamentary disposition without any express permission to marry shall, upon her remarriage, cease or determine as if she had then died. 10. Kalibala was re-married on the 14th of July, 1954 corresponding to the 29th of Ashar 1361 B.S. At that time Hindu Succession Act was not enacted. So in view of S. 2 of the Hindu Widows Remarriage Act, 1856, the interest which she acquired from her husband, Sashanka Sekhar in the suit land ceased to exist. 11. 10. Kalibala was re-married on the 14th of July, 1954 corresponding to the 29th of Ashar 1361 B.S. At that time Hindu Succession Act was not enacted. So in view of S. 2 of the Hindu Widows Remarriage Act, 1856, the interest which she acquired from her husband, Sashanka Sekhar in the suit land ceased to exist. 11. Then about the provisions of S. 14 (1) of the Hindu Succession Act. She was in constructive possession through the guardian (defendant No. 1) appointed by the District Judge. Now the important question arises if such constructive possession of Kalibala would confer on her an absolute estate, within the meaning of S. 14 (1) of the Act. It has already been pointed out that the expression 'possessed' denotes ownership and possession as well. After her remarriage there was no legal ownership in her regarding the disputed property. She continued to be in constructive possession of the disputed land through defendant No. 1 and that was her mere possession without any title. It is therefore held that the provisions of S. 14 (1) of the Hindu Succession Act did not confer any absolute estate in the disputed land in her favour.” 52. The other authority, which the learned Judge chose to follow and which he regarded as the correct law, adopting the same line of reasoning as Sankar Prasad Khan, was the Orissa decision in Gangadhar Charan Naga Goswami (supra). In Gangadhar Charan Naga Goswami, the facts can best be recapitulated by a reference to the report, which reads: “2. Sambhu died sometime in the year 1941 leaving his widow Saraswati Bewa (plaintiff) and his son Madhu. Madhu died sometime in 1952 leaving his widow Sukuri (defendant No.4). Sukurl sold a part of the suit land under Ext.A on 23-12-52 for a consideration of Rs.500/- in favour of defendant 1 comprising an area of 1.27 acres. On the same day she also fold under Ext.B.A.O.31 decimals of land to defendants 2 and 3 for a consideration of Rs.100/-.The plaintiff has filed the present suit for declaration that the sale deeds executed by defendant 4 in favour of defendants Nos.1 to 3 are fraudulent, collusive and without any legal necessity, and the defendants 1 to 3 have acquired no right, title or interest in the suit- lands. She has further claimed for recovery of possession and also for mesne profits; her alternative claim was a charge for her maintenance at the rate of Rs.15/- per month, which however was abandoned at the trial stage. She further alleged that defendant 4 having remarried one Kartic Mahanty (P.W.2) was civilly dead in Madhu's family. 3. Defendants 1 to 3 contested the suit on the ground that defendant 4 never remarried Kartic, and the alienations were for legal necessity and full consideration had passed, under them and they are in their possession. Defendant No.4 was a minor and was represented by a pleader guardian, but in course of the suit she attained majority and filed her written statement contending that the sales were for legal necessity and consideration, that is, to meet the funeral expenses of her husband Madhu and for her own maintenance and she had delivered possession of the suit property to defendants 1 to 3. She however denied her remarriage with Kartic. 4. The trial court held that the sale-deeds, Exts. A and B, were without legal necessity and without consideration, and no title had passed to defendants 1 to 3 thereunder; and defendant No.4 had remarried to Kartic sometime in Baisakha of 1953, that is, a few months subsequent to the sale-deeds. The appellate Court having confirmed these findings of the trial court, defendants 1 to 3, the alienees have preferred this second appeal.” 53. It must be remarked Gangadhar Charan Naga Goswami too was a case, where succession from the deceased husband opened out before enforcement of the Act of 1956 and the second marriage by the widow was solemnized in the year 1953, to be precise, in the month of Baisakha of that year. In answering the question if the widow forfeited her right under the Act of 1856 or Section 14 of the Act of 1956 would prevail to protect an absolute estate in her favour, it was held: “6. In answering the question if the widow forfeited her right under the Act of 1856 or Section 14 of the Act of 1956 would prevail to protect an absolute estate in her favour, it was held: “6. These very contentions as are now raised, were raised before the Division Bench of this Court and were negatived as would appear from the case reported in Sansir Patelin v. Satyabati Naikani, AIR 1958 Orissa 75, where a reversioner challenged the sale-deed on the ground that it was not for legal necessity; and their Lordships while dealing with the question of applicability of Sec.4 of the Hindu Succession Act held that it is only those provisions which are inconsistent with the provisions of the Act that stand and by virtue of section 4 and the other provisions must be taken to be prevailing. A careful perusal of the several provisions of the Act shows that it was never the intention of the Parliament to abrogate all other previous laws on Hindu Law prevailing before the Act came into force on 17-6-56. The conception of a reversioner therefore still remains in respect of the properties in which the widow does not get the right of a full owner by virtue of the provisions of Sec.14 of the Act. Thus, their Lordships held: "Where a female heir transfers the property inherited by her before the Act came into force without any legal necessity, she does not get any absolute status in respect of it as it cannot be said that the property was in her possession. Further, the provisions of the Act are not meant to enhance the rights of the purchasers who at the time of their purchase knew full well that the transaction was not for legal necessity. Further, the provisions of the Act are not meant to enhance the rights of the purchasers who at the time of their purchase knew full well that the transaction was not for legal necessity. In such a case the transferee would be entitled to the interest that the female heir had at the time when the transfer took place, namely, the limited interest of the female heir and as the provisions of the Act do not apply to such cases, the old law prevailing among the Hindus regarding the rights of a reversioner must remain intact and must be followed by Courts of Justice." Their Lordships on coming to the above decision had relied upon the case reported in Venkayamma v. Veerayya, (S) AIR 1957 Andh Pra 280 and Gostha Behari Bera v. Haridas Samantra, (S) AIR 1957 Cal 557 , wherein it was held that Sec.14 has no application to a case where the female owner has parted with her property before the Act. The Kerala High Court also took the same view as will appear from the case reported in Thailambal Ammal v. Kesavan Nair, AIR 1957 Kerala 86. In this connection an observation by a Division Bench of this Court in the case reported in Laxmi Debi v. Surendra Kumar (S) AIR 1957 Orissa 1, is pertinent. In that case a reversioner during the lifetime of a widow came with a suit for declaration of his right as reversioner, and their Lordships held that if actually the widows had alienated any of the properties before coming into force of the Act and which were not in their possession at the time of the Act came into force, they do not become full owners in respect of those properties by virtue of Sec.14 of the Act but as no such question regarding alienation arose in that appeal, the matter was left open.In a Full Bench decision of the Patna High Court reported in Harak Singh v. Kailash Singh, AIR 1958 Pat 581 , the scope and extent of the application of Sec.14 of the Hindu Succession Act came up for consideration. In that case the plaintiff asked for a declaration that the deed of gift executed by a widow is not binding on the reversioner and is not valid beyond the life-time of the donor. In that case the plaintiff asked for a declaration that the deed of gift executed by a widow is not binding on the reversioner and is not valid beyond the life-time of the donor. Their Lordships held that a female Hindu cannot be deemed to be a owner of the property of which she made an absolute alienation before the date of commencement of the Act, and Sec.14 cannot apply to such property and the limited interest of the widow in such property is not enlarged to an absolute interest. The Act was not certainly intended to benefit the alienees or to unduly enrich the alienees who with their eyes open purchased the properties from the limited owner without justifying necessity before the Act came into force, and at a time when the vendors held only limited interest of a Hindu woman. In coming to this decision, their Lordships of the Patna High Court relied upon the aforesaid decisions of Andhra Pradesh and Kerala High Courts noticed above. In view of this Full Bench decision of the Patna High Court as also of the Division Bench decision of this Court, which is also the view of the various High Courts in India on the subject, it is no longer open to the learned counsel for the appellants to raise this contention. In fact, these decisions give complete answer to the questions raised by him. 7. Learned counsel for the appellants also relied upon a decision of the Supreme Court reported in G.T.M. Kotturuswami vs. S. Veerayya, AIR 1959 SC 577 , in support of his contention that the possession of the vendee in a case of this nature shall be deemed to be the possession of the vendor (defendant No.4). In Supreme Court Case a reversioner challenged an adoption made by the widow and the nature of possession contemplated under Sec.14 of the Hindu Succession Act came up for consideration before their Lordships. In that case the possession of the adopted son was however permissive and their Lordships held that even if it is assumed that the adoption was invalid and the adopted son was in actual possession, his possession was merely permissive and the widow must be regarded as being in constructive possession through the adopted son. In that case the possession of the adopted son was however permissive and their Lordships held that even if it is assumed that the adoption was invalid and the adopted son was in actual possession, his possession was merely permissive and the widow must be regarded as being in constructive possession through the adopted son. Their Lordships of the Supreme Court in that case noticed the aforesaid decisions of the High Courts of Andhra Pradesh, Calcutta and Patna and accepted as correct the proposition of law as laid down in the Full Bench decision of the Patna High Court reported in AIR 1958 Patna 581.In the present case it is not a case of permissive possession of the defendants-appellants. They are in possession on their own right by virtue of the sale-deeds. Defendant 4, as stated earlier, had herself admitted to have parted with her interest and possession in the said property in favour of defendants 1 to 3. In view of this position, the decision of the Supreme Court noticed above cannot be said to support the contention raised on behalf of the appellants. No doubt, the possession under Sec.14 of the Act need not necessarily be physical, but may also include the possession of a licensee, mortgagee, lessee etc., from the female owner, but there must be something to show that she was still in control of the property as owner. Where, however, the property itself has been sold away and the possession delivered to the vendee, the vendor can in no sense be said to be still in control or possession of the property. In view of the findings of the Courts below that defendant 4 had already married sometime in Baisakha of 1953, it cannot be disputed that she had incurred a Civil death in her husband's family, of course after the alienations in question. Therefore in the circumstances, as aforesaid, it must be held that defendant 4, who had only a limited interest, had sold the same without any legal necessity and consideration. Therefore the sales are not binding on the plaintiff.” 54. The case that the learned Judge chose not to follow and one expressing an opinion contrary to what was regarded as the correct position of the law is Mst. Bhuri Bai (supra). 55. In Mst. Therefore the sales are not binding on the plaintiff.” 54. The case that the learned Judge chose not to follow and one expressing an opinion contrary to what was regarded as the correct position of the law is Mst. Bhuri Bai (supra). 55. In Mst. Bhuri Bai, the same issue as to whether upon a widow’s remarriage, she would be divested of property inherited from her deceased husband in accordance with the provisions of the Act of 1856, or she must he held to have inherited an absolute estate, of which she could not be divested upon remarriage arose. This question arose in the context of facts, where the succession opened out upon the husband’s demise in the year 1950 before the Act of 1956 had come into force, but the widow solemnized her second marriage, either in the year 1957 or 1958, i.e. after the Act of 1956 had come into force. The widow claimed right to the inherited property as her absolute estate, whereas the husband’s heirs claimed it by reversion, on account of forfeiture of the limited estate that the widow received, in consequence of her second marriage that she had no power to alienate. The widow had in fact alienated. In answering the question, Chhangani, J. observed: “15. Next, it was contended that even if the limited estate inherited by Mst. Champi Bai was converted into full estate by sec. 14 of the Act still her right or interest in the property stood forfeited on account of her remarriage with the defendant Nathuram. It was contended that sec. 2 of the Hindu Widow's Remarriage Act (hereinafter referred to as the Act of 1856) has not been expressly abrogated by the Act and that it cannot be considered as having been abrogated by virtue of the provisions of sec. 4(1) of the Act. It was submitted that sec. 2 of the Act of 1856 lays down an independent rule providing for the effect of remarriage on the estate inherited by a widow and that it stands quite unaffected by the provisions of the Act. 4(1) of the Act. It was submitted that sec. 2 of the Act of 1856 lays down an independent rule providing for the effect of remarriage on the estate inherited by a widow and that it stands quite unaffected by the provisions of the Act. The learned counsel relied upon the opinion of Shri Gupte expressed in his commentary on the Hindu Law of Succession, 1963 Edition— “It is, however, still possible to urge as a matter of construction of S. 2 of the Hindu Widows Remarriage Act that she would forfeit her estate, though full, especially as that Act has not been repealed. If an estate is liable to forfeiture it should make no difference whether the estate is converted into a full estate by S. 14 or not. Any estate either absolute or limited may in law still be liable to forfeiture in certain circumstances and situations by an independent rule such as the rule in S. 2 of the Hindu Widows Remarriage Act which has not been repealed.” Referring to the difficulty arising on account of the absence of any rule in the present Act providing for the devolution of the property so forfeited as also on account of the Act not contemplating succession opening second time except to a very limited extent the author says, “But s. 2 of the Hindu Widows' Remarriage Act in fact provides for devolution on forfeiture Neither the said provision nor the scheme of succession indicated in that section is repugnant to the scheme of succession under this Act………Although S. 2 of the Hindu Widows' Remarriage Act was drafted at a time when a widow succeeding to her husband or to his lineal successor took only a limited estate, the language of that sec. is, it is submitted, capable of applying to a widow having an absolute estate. It is also submitted by S. 2 of that act is not affected S. 4(2) of this Act.” 16. In answer, the counsel for respondents submitted that remarriage of widow after the promulgation of the Act is not a valid ground for divesting an estate inherited by her from her husband and contended that the rule laid down in the Act of 1856 cannot apply to a case covered by the Act. The counsel relied upon some observations made in Mulla's Hindu Law, 1966 Edition, page 796. The counsel relied upon some observations made in Mulla's Hindu Law, 1966 Edition, page 796. “The rule laid down in that enactment cannot apply to a case covered by the present Act and a widow becomes full owner of the share or interest in her husband's property that may devolve on her by succession under the present sec. Her remarriage, which would evidently be after the vesting in her or her share or interest on the death of the husband, would not operate to divest such share or interest. The Hindu Widow's Remarriage Act, 1856, is not repealed but sec. 4 of the present Act in effect abrogates the operation of that Act in the case of a widow who succeeds to the property of her husband under the present sec. and sec. 14 has the effect of vesting in her that interest or share in her husband's property as full owner of the same.” It was also urged that the interest contemplated by sec. 2 of the 1856 is confined or limited to her life time and that it will not apply to an absolute interest legally acquired by the widow. In support of this, reliance was placed on Lakshmi Ammal v. Thangavel Asari (5) and Ballabha Pani v. Jasodhara Pani (6). The learned counsel emphasised the following observations in Lakshmi Ammal's case (5)— “The words “shall upon her remarriage cease and determine as if she had then died; and the next heirs of her deceased husband or other person entitled to the property on her death, shall thereupon succeed to the same, afford the clue to the scope of the sec. They indicate that the interest contemplated by the sec. is confined or limited to her life time. The sec. will not apply to an absolute interest legally acquired by the widow.” In this case, the following observations made in an earlier decision reported in Bangaru Reddi v. Mangammal (7) were quoted— “It is clear, that this sec. has no effect on property belonging to the widow absolutely on the date of the re-marriage.” 17. I have given very careful consideration to the matter and have felt inclined to accept the position taken on behalf of the respondent for reasons which follow:— The present Act provides that the widow succeeding to her husband shall take an absolute estate. has no effect on property belonging to the widow absolutely on the date of the re-marriage.” 17. I have given very careful consideration to the matter and have felt inclined to accept the position taken on behalf of the respondent for reasons which follow:— The present Act provides that the widow succeeding to her husband shall take an absolute estate. It further provides that any limited estate which the widow inherited before the promulgation of the Act shall be converted into absolute estate if the widow had been in possession of the estate at the time of the promulgation of the Act. The Act further makes a widow a fresh stock of descent. Sec. 2 of the Act of 1856 contemplated the inheritance of limited estate by a widow and does not treat her as a fresh stock of descent and provides for the vesting of the property forfeited by the widow on her husband's heirs. There is thus some kind of inconsistency between the provisions of sec. 2 of the Act of 1856 and the present Act. While in the present Act the property has to be inherited by the widow's heirs under the Act of 1856 the property vests in the husband's heir. This inconsistency should not be brushed aside because the scheme of succession indicated in sec. 2 is not repugnant to the scheme of succession under the Act as has been done by Gupte in his observations quoted above. In principle, there is an inconsistency between the two enactments on account of the widow being treated as a fresh stock of descent in one case and not so in the other. In this view of the matter, it must be held that sec. 2 of the Act of 1856 cannot apply to a widow who has become full owner under the provisions of the present Act. 18. In this view, I am supported by the provisions embodied in sec. 24 of the Act. In this view of the matter, it must be held that sec. 2 of the Act of 1856 cannot apply to a widow who has become full owner under the provisions of the present Act. 18. In this view, I am supported by the provisions embodied in sec. 24 of the Act. This section lays down that “any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married” To constitute a disqualification for succession according to this provision remarriage must have taken place before the opening of the succession and this section does not provide for the divesting of the estate vested in the widow on her remarrying subsequent to the date the succession opens. When the widows specified in sec. 24 do not forfeit the property vested in them on remarriage, it will be hardly proper to hold that the widow of intestate himself should forfeit the property on remarriage even after she has become absolute owner. It is true sec. 24 of the Act does not include the widow of the intestate but the omission appears to be due to the fact that it is not possible to conceive of a person leaving a widow who had remarried. I am clear that while the principle embodied in sec. 24 of the Act points out towards the non applicability of sec. 2 of the Act of 1856 to a widow succeeding or acquiring absolute estate under the Act, the omission of the intestate widow in sec. 24 cannot lend support to a contrary view. 19. There is yet one more consideration very strongly persuading for the adoption of the above view. Indisputably the social, economic and political conditions changed tremendously during the past few decades. The old attitude towards the women changed considerably and it is some times expressed that the progress of civilization moves parallel with the progress of women. In the present conditions women do earn and acquire property and husbands are entitled to inherit partially or wholly the property of their wives. The old attitude towards the women changed considerably and it is some times expressed that the progress of civilization moves parallel with the progress of women. In the present conditions women do earn and acquire property and husbands are entitled to inherit partially or wholly the property of their wives. There is no process providing for the forfeiture of the property inherited by a husband from a deceased wife on his contracting a re-marriage. Naturally, in these changed conditions there was a strong movement for remedying the defects of the old Hindu Law of Succession showing very scant regard for the women and for according equal status and treatment to the women in the matter of succession which eventually culminated in the promulgation of the Hindu Succession Act. Considering the social and economic back ground the movement for the reforms in the old Hindu Law of Succession to secure equality for the females and the scheme of the Act under which the widow inherits an absolute estate from her husband and is made a fresh stock of descent, it will be in furtherance and promotion of the objects sought to be achieved by the Act to hold that sec. 2 of the Act of 1856 cannot affect the position of a widow re-marrying after the promulgation of the present Act.” 56. In our opinion, there is no conflict between the two decisions of the Calcutta and the Orissa High Courts on one hand and the Rajasthan decision on the other, as the learned Additional District Judge has thought. As the Calcutta High Court decision would show that succession had opened out in favour of the widow before enactment of the Act of 1956 and she solemnized a second marriage before the enforcement of the said Act. To be precise, in Sankar Prasad Khan, that is to say, the Calcutta High Court decision, the widow inherited upon her husband’s death prior to enforcement of the Act of 1956. She remarried on 14.07.1954, again before enforcement of the Act of 1956. It was in that context held that she would forfeit her estate under Section 2 of the Act of 1856 that she had acquired from her husband, on account of remarriage. There cannot be any doubt about this principle. 57. She remarried on 14.07.1954, again before enforcement of the Act of 1956. It was in that context held that she would forfeit her estate under Section 2 of the Act of 1856 that she had acquired from her husband, on account of remarriage. There cannot be any doubt about this principle. 57. Likewise, in Gangadhar Charan Naga Goswami, the Orissa High Court decision, the facts show that the widow inherited the suit property from her husband, Madhu sometime in the year 1952 and remarried one Kartik sometime in the month of Baisakha of the year 1953. Both these events took place before enforcement of the Act of 1956. It was in the context of these decisive events that it was held that the widow suffered a civil death in her deceased husband’s family upon her remarriage in the month of Baisakha in the year 1953 and would forfeit her inheritance upon remarriage. Decidedly, by that time the Act of 1956 had not come into force. By contrast, the facts in Mst. Bhuri Bai would show that the widow inherited from her husband in 1950. Champi Bai solemnized a remarriage, as the report of the decision would describe ‘sometime either in the year 1957 or 1958’. By the time, the widow remarried, the Act of 1956 had come into into force and it was in the context of these very different facts, where the Act of 1956 would enlarge the widow’s estate into an absolute one that it was held that Section 2 of the Act of 1856 would not apply and the widow would take the property absolutely, her remarriage notwithstanding. There is, thus, no conflict at all between the decisions in Sankar Prasad Khan and Gangadhar Charan Naga Goswami on one hand, and, that in Mst. Bhuri Bai, on the other. 58. The same position of the law received the imprimatur of the Supreme Court in Velamuri Venkata Sivaprasad (dead) by LRs v. Kothuri Venkateswarlu (dead) by LRs and others, (2000) 2 SCC 139 . In Velamuri Venkata Sivaprasad (supra) two questions were considered by their Lordships of the Supreme Court and first of these reads: “Whether remarriage of a widow prior to the Hindu Succession Act, 1956 would divest her of even the limited ownership of her deceased husband's property, having due regard to the provisions of Section 2 of the Hindu Widow's Remarriage Act, 1856?” 59. Shorn of other details, what is relevant is that the widow in this case one Lakshmamma had acquired a very limited kind of a right under her husband’s Will to some properties, which substantially went to the deceased’s mother by the same device and in an earlier suit between the deceased’s mother and his widow, a compromise was entered into. Venkayamma was the deceased’s mother and she filed a second suit in the year 1950, seeking a declaration that Lakshmamma was not entitled to adopt any more in terms deceased’s will, and for a further declaration that Venkayamma was entitled to adopt a boy herself. This suit was lost by the deceased’s mother up to the appellate stage. Still later in the year 1969, Venkayamma, the deceased’s mother and her daughter Sitharamamma filed another suit for declaration of title to the suit property and possession, besides mesne profits on ground that Lakshmamma did not take the adoption as directed by the device and also because of her remarriage in the year 1953, forfeited all her rights to her deceased husband’s estate. The widow remarried apparently much before the Act of 1956 came into force. It was in this context held by their Lordships of the Supreme Court that the widow’s rights to her husband’s estate would not be protected by Section 14(1) of the Act of 1956, because of her remarriage solemnized prior to the said Act coming into force. In Velamuri Venkata Sivaprasad, in answering the question, it was held: “47. Incidentally, be it noted that the Succession Act of 1956 obviously is prospective in operation and in the event of a divestation prior to 1956, the question of applicability of Section 14(1) would not arise since on the date when it applied, there was already a remarriage disentitling the widow to inherit the property of the deceased husband. The Act of 1856 had its full play on the date of remarriage itself, as such the Succession Act could not confer on the widow who has already remarried, any right in terms of Section 14(1) of the Act of 1956. The Succession Act has transformed a limited ownership to an absolute ownership but it cannot be made applicable in the event of there being a factum of pre-divestation of estate as a limited owner. The Succession Act has transformed a limited ownership to an absolute ownership but it cannot be made applicable in the event of there being a factum of pre-divestation of estate as a limited owner. If there existed a limited estate or interest for the widow, it could become absolute but if she had no such limited estate or interest in lieu of her right of maintenance from out of the deceased husband's estate, there would be no occasion to get such non-existing limited right converted into full ownership right. 49. It may be noted here that even though strong reliance was placed on this decision but by reason of the contextual facts as noticed above, the decision is clearly distinguishable since remarriage in 1953 as noted above makes all the difference having due regard to the Act of 1856. 52. Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage; while it is true that the section speaks of a pre-deceased son or son of a pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule. As a matter of fact she takes her share absolutely and not the widow's estate only in terms of Section 14. Remarriage of a widow stands legalised by reason of the incorporation of the Act of 1956 but on her remarriage she forfeits the right to obtain any benefit from out of her deceased husband's estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on to the next heir of her deceased husband as if she were dead. Incidentally, the Act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14(1) of the Hindu Succession Act was relied upon by Defendant 1.” 60. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14(1) of the Hindu Succession Act was relied upon by Defendant 1.” 60. The principle laid down in Velamuri Venkata Sivaprasad was followed in a very recent decision of the Supreme Court in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki, 2024 SCC OnLine SC 517, where the vesting of an estate in the widow upon her husband’s demise and inheritance from him, upon her remarriage, was held forfeited because both the events happened much prior to coming into force the Act of 1956. 61. The very differing effect, if both or either events take place after the coming into force of the Act of 1956, would be evident from the authority of the Supreme Court in Cherotte Sugathan v. Cherotte Bharathi, (2008) 2 SCC 610 . In Cherotte Sugathan (supra), the question involved and the facts that have to be read together may best be described in the words of their Lordships, which read: “2. Whether Section 2 of the Hindu Widows' Re- marriage Act, 1856 would apply to the facts of the present case is the question in this appeal. 3. The fact involved herein is as under: The properties in dispute belonged to one Shri Pervakutty. He had three sons and two daughters, namely, Sugathan, Surendran, Sukumaran @ Soman, Soumini and Karhiayani. He allegedly executed a will on 11-10-1975 bequeathing the said properties in favour of his sons. In the said will, provisions were allegedly made for payment of monthly allowance to the wife of Shri Pervakutty, Defendant 3 (since deceased) as also right of residence in the house situated therein. Shri Pervakutty died on 20-10-1975. Sukumaran died on 2-8-1976. 4. The first respondent is his widow. The first respondent remarried one Elambilakkat Sudharkaran. Sudhakaran died on 12-9-1979. She filed a suit on 31-12-1985 for partition claiming 1/3rd share in the suit property. The appellant herein, inter alia, contended that she, in terms of Section 2 of the Hindu Widows' Re-marriage Act, 1856, having ceased to have any right in the properties inherited by her from her husband Sukumaran, the suit was not maintainable. Respondents 2 and 3, the daughters of Shri Pervakutty, inter alia, raised a contention that the purported will dated 11-10-1975 was not a valid one. 5. Respondents 2 and 3, the daughters of Shri Pervakutty, inter alia, raised a contention that the purported will dated 11-10-1975 was not a valid one. 5. By a judgment and order dated 31-3-1992, the said suit for partition was decreed declaring 1/3rd share in the suit properties in favour of the first respondent. It was opined that since the testator bequeathed the tenancy right as contained in Item 2 of the Schedule, the same was available for partition. The appellants preferred an appeal there against. Respondents 2 and 3 (Defendants 4 and 5) also preferred separate appeals. 6. By reason of the impugned judgment, the High Court allowed the appeals preferred by Respondents 2 and 3 holding: “In this case, the plaintiff has claimed succession on the basis of will. If that be so, the lower court was correct in holding that Section 23 of the Hindu Succession Act is not applicable to Defendants 1 and 2. But if the succession is not on the basis of will, then Defendants 1 and 2 will be entitled to the benefit of Section 23 of the Hindu Succession Act.” In regard to the applicability of the 1856 Act, it was held: “So far as this case is concerned, according to us, Section 24 of the Hindu Succession Act applies and the plaintiff is entitled to succeed.” It was directed: “In the above view of the matter, the appeals are disposed of as follows: The case is remanded to the lower court to frame issue regarding the validity of the will and to give an opportunity to the parties to adduce evidence regarding the same and decide the issue whether the will is valid or not. The other findings in the judgment are upheld except the finding regarding the building house in Item 1 of ‘A’ schedule. If the court below takes the view that the will is not valid, then the contention of Defendants 1 and 2 regarding residence in the building house should be considered again.” 62. In Cherotte Sugathan, the question involved was answered thus: “11. The Act brought about a sea change in Shastric Hindu Law. Hindu widows were brought on equal footing in the matter of inheritance and succession along with the male heirs. In Cherotte Sugathan, the question involved was answered thus: “11. The Act brought about a sea change in Shastric Hindu Law. Hindu widows were brought on equal footing in the matter of inheritance and succession along with the male heirs. Section 14(1) stipulates that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, will be held by her as a full owner thereof. Section 24, as it then stood, reads as under: “24. Certain widows remarrying may not inherit as widows.—Any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried.” 12. Upon the death of Sukumaran, his share vested in the first respondent absolutely. Such absolute vesting of property in her could not be subjected to divestment, save and except by reason of a statute. 13. Succession had not opened in this case when the 1956 Act came into force. Section 2 of the 1856 Act speaks about a limited right but when succession opened on 2-8-1976, the first respondent became an absolute owner of the property by reason of inheritance from her husband in terms of sub-section (1) of Section 14 of the 1956 Act. Section 4 of the 1956 Act has an overriding effect. The provisions of the 1956 Act, thus, shall prevail over the text of any Hindu Law or the provisions of the 1856 Act. Section 2 of the 1856 Act would not prevail over the provisions of the 1956 Act having regard to Sections 4 and 24 thereof.” 63. Therefore, what is relevant is the date when succession opened out in favour of the widow, and more than that, the date when she remarried. If both dates fall after the enforcement of the Act of 1956, even in a case when the Act of 1856 was still in force, the widow would not be divested of her right at all. If both dates fall after the enforcement of the Act of 1956, even in a case when the Act of 1856 was still in force, the widow would not be divested of her right at all. In case, the succession opened out before enforcement of the Act of 1956, but the widow remarried after the enforcement of the last mentioned Act, the provisions of Section 2 of the Act of 1856 would not apply and there would be no divestment of property that vests in her absolutely under Section 14(1) of the Act of 1956. Likewise, the Act of 1956 having overriding effect on all laws, if either of the two events have happened after the enforcement of the Act of 1956, any custom or uncodified law, would not apply to divest the widow. 64. In the present case, Lakhraji’s husband died on 14.10.1967 and she remarried Phagoo in a customary form of marriage, called Sagai, native to the community to which she belonged, in the month of April, 1968. By the time both events happened, the Act of 1956 had come into force. This, then being the position on facts, Smt. Lakhraji must be held to have inherited the suit property from her deceased husband in the specified share as her absolute estate, of which she could not be divested, either by custom or by virtue of Section 2 of the Act of 1856. The issue, if she was in possession of the suit property when succession opened out, is not seriously or even slightly in issue in this appeal, because it is not in dispute that in whatever manner, she was duly recorded in the revenue records to the exclusion of the other heirs entitled. There is also evidence that she was in possession of the suit property and no one has disputed the said fact. Smt. Lakhraji’s share would, therefore, vests in her absolutely, of which she would not be divested upon remarriage to Phagoo. 65. Substantial Question of Law No.3 is, therefore, answered in the affirmative and it is held that the Court below erred in interpreting Section 14 of the Act of 1956 regarding its effect on the provisions of Section 2 of the Act of 1856. 66. 65. Substantial Question of Law No.3 is, therefore, answered in the affirmative and it is held that the Court below erred in interpreting Section 14 of the Act of 1956 regarding its effect on the provisions of Section 2 of the Act of 1856. 66. The result of these conclusions would be that the plaintiff- respondent, Gokaran, who has been held entitled to a 1/3rd share and defendant Nos.9 and 10 to a 2/3rds jointly by the Lower Appellate Court, would each have their share diminished to a 1/4th individually together with a 1/4th in favour of Smt. Lakhraji, now held by her transferees and their LRs. 67. In view of the aforesaid conclusions, this appeal succeeds and is allowed in part. The impugned decree passed by the Lower Appellate Court is modified and it is ordered that the appellants together will be entitled to a 1/4th share in the suit property, the plaintiff a 1/4th share and defendant Nos.9 and 10, each to a 1/4th share. 68. Looking to the partial success that the appeal has met with, costs throughout shall be proportionate to the success and failure of parties. 69. Let a decree be drawn up accordingly. 70. Let the Lower Courts’ record be sent down at once.