M. Venkatasubra Rao, Kt., Officiating C.J.
1. The question referred to the Full Bench is, whether succession to a Hindu male dying before the passing of Act II of 1929, leaving a female heir (a limited owner under the law) who is alive after the Act has come into force, is governed by the provisions of that Act. The last male holder was one Venkatakrishna, who died a minor on the 11th July, 1927. He was succeeded by his mother, Lakshmi Ammal (the first defendant) against whom the. action has been brought by the plaintiffs claiming to be the presumptive reversioners, with a view to obtain certain reliefs in regard to her deceased son's estate. The plaintiffs' right is challenged by the sister of Venkatakrishna, Sundarathammal (the second defendant in the suit) and her son, who allege that under the Act, they have a preferential right to the succession; and if this contention is well founded, the plaintiffs would cease to be the nearest or presumptive reversioners. Act II of 1929 received the assent of the Governor-General on the 21st February, 1929, on which date it came into force. The short question to be decided is, whether the succession to Venkatakrishna, who died before the Act leaving his mother as his immediate heir, is governed by that Act or by the law in force previously. This in turn depends upon the question, when does the succession to a Hindu male open?
2. This Act, as its preamble shows, has been passed with a view to alter the order of succession to a Hindu male dying intestate. In the present case, if Venkatakrishna, who was succeeded by his mother, is to be deemed as having died in 1927, the provisions of this Act, can have no operation. But the true principle seems to be, that under the Hindu Law, it is the death of the female heir that opens the inheritance to the reversioners, who till then possess an inchoate right, generally termed a spes successionis; in other words, the male holder is regarded by the law as having lived up to and died at the moment of the death of the female heir. When a female heir intervenes therefore, the fictional death of a Hindu male is something different from his actual death, the result being that the date of his death is for this purpose postponed to the death of the limited owner. If this principle is kept in mind, the question presents no difficulty. It would be begging the question to say that to adopt this view would be to give retrospective effect to the Act. If a male intestate succeeded: by a female heir is assumed as dying on the day of his actual' death, which happens to be before the Act, to apply the provisions of this enactment to such a person would undoubtedly amount to giving it retrospective effect. But the true doctrine of the Hindu Law is thus declared by their Lordships of the Judicial Committee:
The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of that estate the property descends to those who would have been the heirs of the husband, if he had lived up to and died at the moment of her death'. (Moniram Kolita v. Keri Kolitani .)
3. The position of a Hindu widow or other female heirs is an anomalous one, for, although she is said to possess a qualified interest, she can in certain circumstances alienate the entire estate. That she is thus in one sense the heir of the last male holder, cannot be disputed. Referring to the widow, their Lordships say that what she holds is ' an estate of inheritance to herself and the heirs of her husband'. (Moniram Kolita v. KeriKolitani .) The persons described here as the heirs of the last male holder are the reversioners, whose interests, so long as the female holder is alive is only contingent, ' differentiated little, if at all, from a spes successionis'. (Janaki Ammal v. Narayanasami Aiyar (1916) 31 M.L.J. 225 : L.R. 43 IndAp 207 : I.L.R. 39 Mad. 634 (P.C.).) The case last cited is an instructive one. There, the Courts in India declared the plaintiffs to be the nearest reversionary heirs of the deceased Ramaswami Aiyar, after the lifetime of defendants Nos. 1 and 2, his widow and mother. Their Lordships of the Judicial Committee held that such a declaration was both unavailing and premature, for, as they point out:
The question of who is the nearest reversionary heir or what is the class of reversionary heirs, falls to be settled at the date of the expiry of the ownership for life or lives--that is to say, in the present case, at the death of the survivor of the appellant and her late husband's mother.
4. The Hindu Law conception is this:--So long as a female heir is alive, no one can claim any vested interest in the succession; a fortiori there is no vesting at the date of the male holder's death; in other words, the crucial date is that of the death of the female heir, on whose death alone the succession opens.
5. The Judicial Committee has repeatedly declared that the succession opens only on the death of the female heir. In Moniram Kolita v. Keri Kolitani as already stated, their Lordships observe:
The succession does not open to the heirs of the husband until the termination of the widow's estate.
6. Again in Thakurain Jaipal v. Bhaiya Inder (1904) 14 M.L.J. 149 : I.R. 31 I.A. 67 : I.L.R. 26 All. 238 (P.C.) after refusing to interfere with a declaration granted by the lower Courts in favour of certain reversionary heirs, their Lordships, in order to guard against any possible misapprehension, emphasise:
Whenever the inheritance opens by the death of the widow, the present decision will have settled nothing as to who should succeed.
7. The same idea that the succession does not open prior to the death of the female heir, is again expressed in Janaki Ammal v. Narayanasami Aiyar (1916) 31 M.L.J. 225 : L.R. 43 IndAp 207 : I.L.R. 39 Mad. 634 (P.C.) already quoted.
8. The plaintiffs' learned counsel has argued that there is what is known as a fixed line of succession, with which the Act could not have intended to interfere. The answer is simple. There is no interference with any vested rights at all. During the lifetime of the female heir it cannot be predicated who would be the reversioner who would succeed. Possibly, none who was alive at the death of the last male holder would eventually survive to succeed to his estate; how can it be then stated that any one's vested rights are interfered with Again, a case may be conceived where a suit is brought for the safe guarding of the estate by the presumptive reversioner on behalf of all the reversionary heirs, but at the death of the female heir, not one of the reversioners existing at the date of the action, may be alive to reap the benefits of the decree. The notion therefore of a fixed line of succession seems opposed to the principles governing this branch of the law.
9. In our opinion, therefore, the plaintiffs are not the presumptive reversioners of Venkatakrishna, and we base that view upon what we consider is the true doctrine of the Hindu Law. As for the authorities, in all the decided cases this view has been 'taken excepting Krishnan Chettiar v. Manick-ammal (1933) 66 M.L.J. 70 : I.L.R. 57 Mad. 718. In our opinion, that case, with great respect, was wrongly decided and it is unnecessary, having regard to what we have said, to discuss it in any detail. Moreover, in Allahabad, Lahore and Patna the view that we have indicated has prevailed Bandhan Singh v. Daulata Kuar : AIR1933All152 Rajpaliv. Surju Rai : AIR1936All507 Shib Das v. Nand Lat A.I.R. 1932 Lah. 361 Shakuntla Devi v. Kau-shalya Devi A.I.R. 1936 Lah. 124 and Chulhan v. Mt. Akli : AIR1934Pat324 and in some of those cases, especially in Shakuntla Devi v. Kaushalya Devi A.I.R. 1936 Lah. 124 the arguments adopted in Krishnan Chettiar v. Manickammal (1933) 66 M.L.J. 70 : I.L.R. 57 Mad. 718 have been fully answered.
10. In the result, we would answer the reference by stating that in a case like the present, the succession opens to the heirs of the last male holder after the passing of the Act and is therefore governed by its provisions.
[This Appeal and Memorandum of Objections came on for final hearing before Madhavan Nair and Stodart, JJ.]
The judgment of the Court was delivered by
Madhavan Nair, J.
11. The essential facts necessary for the disposal of the appeal have been stated in our order of reference to the Full Bench. The suit was instituted by the plaintiffs who were the nearest reversioners to the estate of the last male holder at the time of the institution of the suit. But the question was raised by the second defendant, having regard to Act II of 1929, that she and her son were nearer reversioners than the plaintiffs and that the latter are therefore not entitled to maintain the suit. The Full Bench has now answered the question that in a case like the present the succession opens to the heirs of the last male owner after the passing of the Act and is therefore governed by its provisions. It would follow from this decision that the second defendant and her son, that is, the sister and her son, are nearer reversioners to the estate of the late Venkatakrishna Aiyangar than the plaintiffs. It may be mentioned here that the son of the second defendant, who is a minor under her protection, is not a party to the suit.
12. On the answer of the Full Bench it is argued by the appellants that the plaintiffs not being the nearest reversioners, are not entitled to institute the suit and it must therefore be dismissed. On the other hand the respondents argue that the suit of the plaintiffs being of a representative character, need not necessarily be dismissed and that the merits of the appeal should be gone into. On these arguments the first question for our decision is whether the appellants' contention should be accepted and the suit should be dismissed.
13. The appellants' learned counsel referred to various cases. In the leading case of Rani Anand Kunwar v. The Court of Wards to which reference is usually made in all the decisions dealing with this question, their Lordships of the Privy Council laid down the general rule that a declaratory suit
must be brought by the presumptive reversioner, that is to say, by the person who would succeed if the widow were to die at that moment. Such a suit may be brought by a more distant reversioner if those nearer in succession are in collusion with the widow or have precluded themselves from interfering The right to sue must, in their Lordships' opinion, be limited. If the nearest reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act or conduct from suing or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue... In such a case the Court must exercise a judicial discretionin determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit.
14. In Kali Char an Singh v. Bageshra Kunwari I.L.R. (1925) All. 929 it was held that there is no ground for the proposition that it is competent to persons who are not in fact the nearest reversioners to sue where the actual nearest reversioner is a minor. In that decision it was pointed out by the learned Judges:
Indeed, so far as we are aware, there is nothing to prevent the minor suing through a next friend at this stage.
15. In Shib Das v. Nand Lal I.L.R. (1931) Lah. 178 Mst. R., having succeeded to the property of her deceased son, made a gift of the same to her daughter's son. The reversioners in the fourth degree were in April, 1925, granted a decree declaring that the gift would not affect their rights after the death of Mst. R., but while the appeal from this decision was pending and while Mst. R. was still alive, the Hindu Law of Inheritance (Amendment) Act(II of 1929)came into force. This altered the order of succession so as to make the donee (sister's son), rank before the plaintiff-reversioners. It was held that as Mst. R. was still alive at the date of the coming into force of the new Act, the appeal must be accepted and the suit must be dismissed. (See the head-note.) In Sita Saran v. Jagaf I.L.R. (1927) All. 815 it was held, following the Privy Council decision in Rani Anand Kunwar v. The Court of Wards that if the nearest reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act or conduct from suing, or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue. In such a case, upon a plaint stating the circumstance under which the more distant reversionary heir claims to sue, the Court must exercise a judicial discretion in determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit. Amongst the other cases cited, reference may be made to Ram Tawakal Tewari v. Mt. Dulari : AIR1934All469 and Chulhan v. Mt. Akli : AIR1934Pat324 .
16. Relying on these cases the appellants' learned counsel argues that the plaintiffs had no justification to proceed with the suit seeing that they are not the nearest reversioners, especially so since they did not make the minor son of the second defendant a party, even though it was pointed out to them that they should do so having regard to Act II of 1929.
17. The respondents contend that though suits by reversioners when nearer reversioners are in existence had been dismissed, it does not necessarily follow that they should in all cases be dismissed, that the Court has a discretion in such cases and that the plaintiffs may be allowed to go on with the suit. In Deoki v. Jwala Prasad I.L.R. (1928) All. 678 the plaintiff alleging himself to be the nearest reversioner of her husband brought a suit against a Hindu widow. At the time of the suit there was in existence a nearer heir, a minor daughter of the defendant who lived with her, but she was not made a party to the suit. The learned Judges pointed out that although it is not correct to say that the existence of a nearer female heir can always be ignored by the next male heir, yet even without any express proof of refusal, concurrence or collusion on her part the Court may exercise its discretion and grant declaratory relief to the male reversioner and without insisting upon the female heir being joined in the suit provided such a course is not prejudicial to her interests. This case is strongly relied upon by the respondents to show that cases may arise where even when a nearer reversioner is not made a party relief may be given in a suit by a remote reversioner. In Subba Rao v. Venkayya (1936) M.W.N. 1111:
Plaintiffs as reversioners brought this suit in 1927 for a declaration that an adoption alleged to have taken place in June, 1921, was neither true nor valid. By the time the suit came on for trial Act II of 1929 had been passed, with the result that defendants 5 to 7 became nearer heirs than the plaintiffs, and got themselves impleaded as parties. Defendants S to 7 did not support the adoption but asked for a declaration in terms of the plaint. It was contended that the plaintiffs ceased to be the nearest reversioners as soon as Act II of 1929 came into force and that they had no locus standi to maintain the suit. The learned Judges held that there was no legal bar to the maintainability of the suit and that the declaration could be granted. A dismissal of the suit in the circumstances would practically amount to the preclusion of the possibility of the declaratory suit in this case and defeat the policy of the law underlying the principle that suits relating to the status of a person should as far as possible be tried within a reasonable time and, before evidence bearing upon the question is lost by lapse of time. (See the headnote.)
18. Reference was also made to the decision in Baldeo Dube v. Shamdhur Pande (1914) 23 I.C. 809 to show that declaratory reliefs are always matters of discretion for the Court.
19. An examination of the above decisions reveals that though the law does not generally encourage declaratory suits by remote reversioners when nearer reversioners are in existence, still it is not always necessary that such suits should be dismissed, for Courts in a proper case may well allow the suit to go on, taking care to safeguard the interests of the nearer reversioners in existence. In this connection attention may be drawn to the following passage in Rani Anand Kunwar v. The Court of Wards already quoted:
In such a case the Court must exercise a judicial discretion in determining whether the remote reversioner is entitled to sue and would probably require the nearest reversioner to be made a party to the suit.
20. In the present case the entire evidence with respect to the relief asked for has been given by the plaintiffs and Ex. G has been declared by the lower Court to be valid only during the lifetime of the first defendant. The acts of the first and second defendants have been shown to be prejudicial to the interest of the plaintiffs. They may be prejudicial to the interest of the minor son of the second defendant also. Of course the second defendant sided with the first defendant, her mother. What the attitude of the minor son in this matter may be, cannot be stated at the present moment because he is not a party to the suit. As pointed out in Rani Anand Kunwar v. The Court of Wards and in Kali Charan Singh v. Bageshra Kunwari I.L.R. (1925) All. 929 it appears to us that the proper action to be taken in this case should be to ask the plaintiffs-respondents to make the minor son of the second defendant a party-defendant to the suit, so that the case on behalf of the reversioners may once for all be tried and disposed of. At present the second defendant's son is a minor and under the protection of his mother. He being a minor his interest will have to be represented by a guardian. In the circumstances of this case it will not be proper to make the mother his guardian. We would therefore set aside the decision of the lower Court and give permission to the plaintiffs to proceed with the suit making the second defendant's minor son a party to the suit represented by a proper guardian. We are told that his paternal uncle and paternal grandfather could well represent his interests; but who his proper guardian should be, must be left for the decision of the parties and of the Court. After the minor son is made a party-defendant, if his guardian wishes he may transpose himself as a plaintiff if necessary. We asked the counsel whether they would be in a position to agree, after making the second defendant's son a party to the suit, to accept the evidence already recorded as evidence for the purpose of the continuance of the case, but they have not been able to give us any assurance on the point. If the guardian insists that the case must go on afresh, he may file his statement and the case will have to be heard and tried de novo. We set aside the decision of the lower Court and remand the entire case for proper disposal according to law in the light of our observations. Having regard to the course the case has taken we express no opinion on the various findings recorded by the lower Court. The appellants are entitled to get the costs of this appeal. No costs on the memorandum of objections. The other costs will be provided for in the decree of the lower Court.
21. The court-fee will be refunded both in the appeal and in the memo, of objections.