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1. One Gagan Chandra Mitra, a lunatic, instituted a suit on 5-10-1945 against his wife Pannasashi Mitra for a declaration of his title to the properties described in the plaint, for confirmation of possession and also for a permanent injunction restraining his wife from selling the properties.

The plaintiff's case was that though the properties had been purchased in the name of his wife they really belonged to him and were purchased with his own money and that his wife was really his benamidar. In the plaint the plaintiff also alleged that though the defendant was his lawfully married wife she became unchaste and permanently left the plaintiff's protection in the year 1942.

3. Before proceeding to dispose of the Rule on the merits, we must observe that the learned Subordinate Judge has not taken any evidence on the question whether Pannasashi, the widow of the plaintiff, was in fact unchaste nor has he recorded any finding on that point. He has proceeded on the footing that assuming Pannasashi was unchaste she was still entitled to inherit under the Hindu Women's Right to Property Act and for this proposition he has relied upon the decision of Chunder J. in the case of -- 'Surja Kumar v. Manmatha Nath', (B).

5. Assuming for argument's sake however that the Hindu Women's Right to Property Act applies to the present case, we cannot agree with the view that this Act has the effect of abrogating the preexisting rule of Hindu law which disqualifies a widow from inheriting her husband's property if she is unchaste.

Chunder J. held in the case of (B), that the combined effect of Sections 2 and 3 of the Act is that the provisions in the Hindu law of a widow being deprived of her inheritance because of unchastity stands abrogated.

6. For the reasons given above, we make this Rule absolute and set aside the order of the learned Subordinate Judge and direct him to take evidence on the question as to whether the allegation made by the petitioner before us to the effect that Pannasashi was unchaste is true. If upon the evidence to be adduced by both sides he comes to the conclusion that Pannasashi Mitra was unchaste during the lifetime of her husband or at the time of his death, the widow Pannasashi Mitra should be excluded from inheritance and the application filed by the petitioner for substitution will be granted. If, on the other hand, upon the evidence, he comes to the conclusion that Pannasashi Mitra was not unchaste the order made by him will stand.