(1.) THIS is a plaintiff's second appeal in a suit for cancellation of sale-deed dated 9th September, 1959 executed by the 1st defendant in favour of the defendants no. 2 and 3. The sale-deed comprised certain agricultural land as also house property. Two sets of defendants, namely, defendant no. 1 and defandants no. 2 and 3 filed two separate written statements and as many as 23 issues were framed by the trial court after recording the statements of counsel for the parties under Order 10 Rule 1 of the Code of Civil Procedure: but the defendants absented themselves at the final hearing. The plaintiff relied on the documents and also examined one witness. However, inspite of the proceedings being ex parte against the defandants, the trial court dismissed the suit. On the findings that the first defendant had a half share in the land in suit; that the findings of the consolidation authorities in respect of the agricultural land, that the sale-deed was not valid as it was without consideration and because specific plots were not transferred, was not binding on that court; that the sale-deed was not for specific plots but for the entire 1/2 share of the first defendant in the land; and that the suit was not maintainable in the life time of the first defendant; Smt. Bhagga, as she had the full right to sell her share and "in any amount and even without amount" and, if at all, it could be challenged by Smt. Bhagga alone, and no one else. The plaintiff appealed to the District Court. The first appeal was heard by the court of Temporary Civil and Sessions Judge, Etawah. The defendant did not appear at the hearing of the appeal also. However, the appeal was also dismissed. The lower appellate court held that the judgment of the Joint Director of Consolidation dated April 3, 1963 (Ext I) in which it was held that the first defendant-Smt. Bhagga was the Co-sharer and had a half share in the Bhumidhari land along with the plaintiff was final between the parties and could not be questioned before the Civil Court, and that so far as the residential house is concerned, it being the own case of the plaintiff that the husband of the first defendant had died 40 years ago, she, the first defendant, became the absolute owner of the property under Sec. 14 of the Hindu Succession Act and the plaintiff had no interest in the residential house as well, and could not, therefore, challenge any alienation thereof by the first defendant. In this view of the matter the lower appellate court held that a decree for declaration could not be granted to her even if the transfer in question was not valid. Mr. K.B.L. Gaur, learned counsel for the plaintiff appellant has urged before me that both the courts below have non-suited the plaintiff on an altogether erroneous view of the law. His contentions are: the matter with regard to the agricultural land having become final between the parties in view of "decisions of the consolidation authorities, the dispute between the parties is now confined to the house property which was the subject matter of the sale-deed in question. Under Section 31 read with section 32 of the Specific Relief Act, 1963, it is not possible to adjudge the instrument valid in part only and to let it remain for the remainder but the instrument has already been adjudged void by the consolidation authorities in respect of the agricultural land and accordingly if the court comes to the finding that the instrument was liable to be adjudged void in respect of the house property. It could do so in respect of that property alone, and on the other hand if it comes to the conclusion that it was not liable to be so adjudged void, the suit could be dismissed without in any manner effecting the decision of the consolidation authorities in respect of the agricultural land. The relevant facts are these: Gayadin, the common ancestor had two sons, Sheo Bux and Ajodhya Prasad. Sheo Bux died issueless. It has been stated before me that Ajodhya Prasad died before 1937, i.e., before the Hindu Women's Rights to Property Act, 1937 was enforced. Ajodhya Prasad had 3 sons, Rup Narain, Soney Lal and Munshi Lal and two daughters Smt. Sultani and Ram Devi. Smt. Ram Devi is the plaintiff. Rup Narain and Soney Lal pre-deceased Ajodhya Prasad. Soney Lal left no issue but Rup Narain left his widow, who is Smt. Bhagga the first defendant. It is the plaintiff's case that Munshi Lal became the sole surviving male owner of the property possessed by the family. The house properties were admitted ancestral and presuming the family to be a Hindu Joint family the position in law would be that Munshi Lal who died in 1958 was the last male owner of the property which had come to him as the sole surviving co-partner. On these facts it has not been disputed before me that Smt. Bhagga the first defendant, got only a right of maintenance from out of the joint family assets and a right of residence in the joint family house. But Mr. Virendra Dixit, learned counsel for the defendants no. 2 and 3 has invited my attention to paragraph 24 of the written statement and the statement under Order 10 Rule 1 C.P.C. of Sri J. N. Tandon, counsel for the defendants no. 1 to 3 in the trial court, as also to issue no. 15 in the suit, and has contended that if there was a partition between the two brothers Rup Narain and Munshi Lal some 50 years ago as alleged, and the house in suit had come to Rup Narain as his exclusive property as a result of that partition, the position would be entirely different. However, since the defendants absented themselves at the trial and even at the hearing of the first appeal. The opportunity which was theirs was not availed of by them to prove the fact of partition. The question is whether they can be allowed that opportunity now at this stage. Mr. Virendra Dixit says that the defendants had good reasons to believe that the plaintiff's suit was liable to be dismissed as not maintainable and it was in fact so dismissed not only by the trial court but also by the lower appellate court inspite of the fact that the defendants had absented themselves at the trial as also at the hearing of the first appeal. Under the circumstances it cannot be said that this plea of the defendants was initially unfounded. The view of the lower court that the first defendant, Smt. Bhagga became the full owner under Section 14 of the Hindu Succession Act, 1956 of the pro perties received by her husband some 40 years ago, does not appear, on the facts of the case, to be correct. In law, inasmuch as unless a partition between Munshi Lal and Rup Narain before the latter's death is proved as a fact, Rup Narain's widow-Smt. Bhagga, could have nothing more than a right to maintenance and residence in the ancestral house from out of the joint family estate, because Rup Narain had died before the Hindu Women's Rights to Property Act, 1937 was enforced. THIS bare right of being maintained out of the joint family estate and of residences in the joint family house, could not be said to be such a property as may have been possessed by the widow within the meaning of section 14 of the Hindu Succession Act, 1956 so as to make her a full owner of any property, unless some property had been specifically earmarked and settled on her in lieu of that right of maintenace. However, in the view that I have taken, namely, that the suit must be tried afresh, I need not express any concluded opinion in the matter. In this result, the appeal succeeds and is allowed. The judgments and decrees of the two courts below are set aside. The suit is remanded to the trial court for a fresh trial. However, it shall not be open to the trial court to try issues no. 3 and 6 in so far as they relate to Bhumidhari rights in agricultural land about which there has already been a final adjudication of the rights of the parties by the consolidation authorities. Costs incurred so far shall abide the result.