G.K. Misra, J.
1. Plaintiffs are the appellants against a confirming judgment. Plaintiff No. 2 is the son of plain-tiff-1. Plaintiff-1 had a brother named Haraprasad who died in 1954. Haraprasad's wife is Jadi, who is not a party to the suit. Jadi executed a registered sale deed (Ex. 4) on 24th July 1956 in favour of the defendant. Plaintiffs' case was that piaintiff-2 was the adopted son of Haraprasad and Jadi had no power of alienation of the disputed land without legal necessity. The suit was for declaration of title, confirmation of possession and in the alternative for recovery of possession and also for setting aside the sale deed. The defendant contested the suit alleging that plaintiff-2 was not the adopted son of Haraprasad, and that on the death of Haraprasad Jadi was entitled to his interest under the Hindu Women's Rights to Property Act, and she had absolute power of disposal subsequent to Hindu Succession Act, 1956 (hereinafter to be called the Act.)
2. The Courts below concurrently found that Haraprasad died in a joint status with the plaintiffs in 1954 and the plaintiff No. 2 was not the adopted son of Haraprasad. As the alienation was subseauent to the Act, no finding was recorded as to whether the alienation was for legal necessity. They therefore dismissed the suit.
3. In Second appeal, Mr. Das does not contest the concurrent findings of fact. The only point raised by him is that Jadi had no power of alienation of the disputed property without the consent of the plaintiffs as there was no disruption of the joint status in the family. This point is permitted to be argued for the first time in the High Court, though not taken up in the courts below, as it is a pure question of law arising out of the concurrent findings, namely, Haraprasad died in joint status and the alienation was effected by Jadi at a time when the coparcenery did not disrupt.
4. This contention is absolutely without force. In Kunja Sa.hu v. Bhagaban Mohanty, ILR (1949) Cut 483, Ray, C. J. after a thorough analysis of the legal position, observed- :
'I am unhesitatingly of opinion that defendant No. 2 was competent to alienate the interest that devolved on her on the death of her husband in the joint family estate and the defendant No. 1 (transferee) had acquired a good title therein.'
5. Mr. Das fairly concedes that if tins decision stands as good law, his contention cannot be sustained. The correctness of this decision was challenged on the basis of some observations made in Keluni Dei v. Jagabandhu Naik, AIR 1958 Orissa 47. The passage relied upon by Mr. Das is to the effect :
'The third important point which also has been the accepted view is that the interest which the widow gets is, a fluctuating one liable to be enhanced by the death of some coparceners in the family, or be diminished by subsequent births. It is never a fixed interest as the husband had never a fixed interest. She gets whatever interest her husband had at the time of his death only by the special provisions of the Act itself.'
6. Kunja Sahu's case, ILR (1949) Cut 483 is still good law and has not been affected by the subsequent decisions of this Court. The theory of fluctuation of interest is not inconsistent with the existence of widow's right of alienation. This is sufficient to dispose of the appeal and reject the contention of Mr. Das.
7. Section 6 of the Act lays down that when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act. This would operate subject to the Proviso appended to the section. Explanation 1 enacts that for the purpose of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It is clear from the Explanation that the theory of fluctuation is no longer applicable to cases where a male Hindu dies after the commencement of the Act. A question, however arises if the theory of fluctuation still applies to cases governed by Section 14 of the Act. There is no express pro-vision in Section 14 say'ng as to how the interest of a Hindu Mitakshara coparcener shall be deemed to have beers carved out as is given in Explanation 1 to Section 6. The point is, however, academic in this case. The point for consideration is whether the right of alienation, which the widow had on the basis of the authority in Kunja Sahu's case, ILR (1949) Cut 483, can be said to have been extinguished the moment she got absolute ownership under Section 14(1) of the Act. The Act purports to give better rights to widows and in the absence of any statutory restriction with regard to alienation of pronerty, there is no reason to assume that the right was restricted. Before the passing of the Act the widow was not a co-parcener and until she exercised her right to parfiticn, the theory of survivorship was kept in abeyance. Even after the passing of the Act, she does not also become a member of the (sic). These persons who acquire by birth an interest in the co-parcenery property are only coparceners. The widow does not acquire any interest by birth and still continues to be a statutory heir without being a coparcener. She is therefore not a coparcener but merely a member of the joint family with power of alienation. She need not therefore take the consent of other coparceners for a valid alienation, that is, Jadi's alienation cannot be questioned.
8. The appeal fails and is dismissed but without costs'.