RAMACHANDRA BHAT v. SRIDEVIAMMA — 1973 DIGILAW 339 (KAR)

VENICATARAMIAH, J. ( 1 ) THERE was a certain Krishna Vokunnayya-1 who died some time prior to March 1909 leaving behind him his two sons vasudeva-I and Shankaranarayana-I. Vasudeva-I died leaving behind him two sons, Vasudeva-II and Krishna-II. Shankaranarayana-I had no issue. That on 3-3-1909 there was a partition of the family properties amongst vasudeva-II, Krishna-II and Shankaranarayana-I. At that partition certain properties were allotted to the share of Krishna-II. Krishna-II died on, 25-2-1919 leaving behind him his widow Rukminiamma and a daughter by name Srideviamma (plaintiff ). At the time of his death, Rukminiamma was pregnant and gave birth to a posthumous male child on 13-9-1919. ( 2 ) ACCORDING to law that was in force at the time of the death of Krishna-II the posthumous male child boon on 13-9-19 was the sole heir of the estate of krishna-II and hence the said child became the full and absolute owner of the same. The said male child died on 13-1-20. Rukminiamma the mother of the said child succeeded to his estate as a limited owner. The properties with which we are now concerned formed part of the said estate. On 4-8-1920 a document styled as 'vyavastha Pathra' was executtd by rukminiamma in favour of Vasudeva-II and one of his sons, Shankaranarayana-II. Under that document she transferred the possession of the properties referred to therein which had been inherited by her as a limited owner from the male child, subject to certain conditions. It is unnecessary to refer to those conditions for the purpose of this order. By several transfers that took place thereafter defendants 1 and 2 came into possession of the properties which were transferred under the 'vyavastha Pathra' and were in possession of the same on 17-6-1967 on which date Rukminiamma the limited holder under whom they claimed, died. After her death her daughter Sridevi (plaintiff) instituted O. S. No. 6/68 on the file of the Civil judge, Mangalore, out of which this appeal arises, for possession of those properties on the ground that she was the nearest heir to the last male holder and was therefore entitled to get possession of the properties. In the course of the written statement, the defendants contended that the plaintiff was not a reversioner in the eye of law who could maintain the suit. In the course of the written statement, the defendants contended that the plaintiff was not a reversioner in the eye of law who could maintain the suit. It was pleaded by them that at the time of the death of the male child which took place on 13-1-1920 the plaintiff could not have been the nearest heir to the estate of the last made holder according to law in force then, but Vasudeva-II was a nearer heir than the plaintiff. ( 3 ) THE Court below found that the plaintiff was entitled to, succeed to the estate of the last male holder in view of the provisions of S. 8 of the hindu Succession Act, 1956 (hereinafter referred to as the Act) as the intervening limited estate held by Rukminiamma had come to an end after the coming into force of the Act. ( 4 ) ON the above basis a decree was passed by the Court below in favour of the plaintiff. Aggrieved by the decree passed by the Court below, defendant 2 and defendant 3 who was brought on record as one of the legal representatives of defendant 1, have filed this appeal. ( 5 ) IN the course of his argument, Sri B. P. Holla, the learned Counsel for the appellants, brought to our notice a decision of this Court in kempiah v. Gengamma, AIR 1966 Mys 189. in which it had been held that where the last male holder died before the Act came into force and the subsequent widow's estate came to an end after the coming into force of the Act, the question as to who would be the next heir to the estate of the last male holder, should be determined in accordance with the law in force on the date of the actual death of the last male holder and not by the provisions of the Act and contended that in the absence of any evidence in the case that there were no other nearer heirs of the last male holder, the plaintiff had to fail. Sri Shivashankar Bhat, the learned Counsel for respondent 1 (plaintiff), argued that the view expressed by this Court in the above case was in conflict with the decision of the Supreme Court in Fateh Bibi v. Charan Doss, AIR 1970 SC 789 . Sri Shivashankar Bhat, the learned Counsel for respondent 1 (plaintiff), argued that the view expressed by this Court in the above case was in conflict with the decision of the Supreme Court in Fateh Bibi v. Charan Doss, AIR 1970 SC 789 . in which the Supreme Court while approving the decision of the Privy Council in Lala Duni Chand v. Mt, Anar Kali, AIR 1846 PC 173. had observed as follows :" This contention was rejected by the Judicial Committee, which observed as follows : in the argument before their Lordships reliance was placed on the words 'dying intestate' in the Act as connoting the future tense, but their Lordships agree with the view of the Lahore High Court in ilr 17 Lah. 356=air 1936 Lah 124, that the words are a mere description of the status of the deceased and have no reference, and are not intended to have any reference, to the time of the death of a Hindu male. The expression merely means 'in the case of intestacy of a Hindu male'. To place this interpretation on the Act is not to give a retrospective effect to its provisions, the material point of time being the date when the succession opens, namely, the death of the widow. " ( 6 ) WE are in entire agreement with the above observations of the judicial Committee and accordingly hold that the point of time for the applicability of the Act is when the succession opens, viz. , when the life estate terminates. In consequence, it must be further held that the questions as to who is the nearest reversionary heir, or what is the class of reversionary heirs will fall to be settled at the date of the expiry of the ownership for life or lives. The death of a hindu female life-estate holder opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to the estate. The death of a hindu female life-estate holder opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to the estate. ( 7 ) IN view of the above conclusion, the Supreme Court was of the opinion that in a case where the last male holder had died on August 22, 1925, prior to the coming into force of the Hindu Law of Inheritance (Amendment) Act, 1929, the relevant date for purposes of determining the nearest reversionary heir was the date on which the person who succeeded to the last male holder, as the holder of a limited estate, died i. e. March 25, 1950, and not August 22, 1925, on which date the last male holder died. Consequently, it was held that the Hindu Law of Inheritance (Amendment) Act, 1929, which was in force at the time of the death of the limited holder governed the case. It was argued by Sri Holla that the decision of the Supreme Court in fateh Bibi's cose (2) was not applicable to the present case for the following reasons : (1) that the present case was one in which dependence was being placed by the plaintiff on the provisions of the Act, whereas the case decided by the Supreme Court was one in which the provisions of the Hindu law of Inheritance (Amendment) Act, 1929, had been considered. According to him, the language of S. 1 of the 1929 Act was different from the language of Section 8 of the. Act;' (2) that the provisions of S. 8 of the Act are prospective and therefore cannot apply to a case in which the death of the last male holder had taken place prior to the date of the coming into force of the Act; and (3) that the provisions of the Hindu Law of Inheritance (Amendment) Act 1929, also do not apply to this case because by the time the limited estate came to an end, the said Act had been repealed by virtue of Section 31 of the Act. ( 8 ) THE Counsel for the appellant, therefore, contended relying upon the decision of this Court in Kempaiah's case (1) that the law which was prevailing at the time of the actual death of the last male holder alone would govern this case and not the provisions of the Act. Having given our anxious consideration to the contentions urged by Sri Holla, we feel that the decision in Kempaiah's case (1) appears to be in conflict with the view expressed by the Supreme Court in Fateh Bibi's case (2 ). The fact that the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929, had come up for consideration before the Supreme Court in Fateh Bibi's case (2) and not the provisions of the Act, may not make any difference in the context of this case. The true principle governing the above question has been explained by the High Court of Madras in Lakshmi Ammal v. Anantharama Ayyangar, AIR 1937 Mad 699 FB. as follows :" The Hindu Law conception is this: So long as a female heir is alive, no one can claim any vested interest in 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. The Judicial Committee has repeatedly declared that the succession opens only on the death of the female heir. In 7 I. A. 115 as already stated, their Lordships observe: the succession does not open to the heirs of the husband until the determination of the widow's estate: page 154, again in 31 I. A. 67, 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 miapprehension, emphasize: whenever the inheritance opens by the death of the widow, the present decision will have settled nothing as to who should succeed: 31 I. A. 67 at page 70. The same idea that the succession does not open prior to the death of the female heir, is again expressed in 43 I. A. 207, already quoted, at page 209. " ( 9 ) THE above view of the High Court of Madras appears to have been approved by the Supreme Court in Fateh Bibi's case (2 ). The same idea that the succession does not open prior to the death of the female heir, is again expressed in 43 I. A. 207, already quoted, at page 209. " ( 9 ) THE above view of the High Court of Madras appears to have been approved by the Supreme Court in Fateh Bibi's case (2 ). In view of the foregoing, we feel that the decision in Kempaiah's cose (1) which lays down that the relevant law for purposes of determining the nearest reversionary heir at the termination of the limited estate is the law that was: in force at the time of the actual death of the last male holder and not the law prevailing at the time of the death of the limited holder, requires re-consideration. At this stage we may mention that the High court of Punjab has consistently taken the same view in a. number of cases in which the facts were analogous to the facts of the present case. It is enough to refer to the decision in Harbhaj v. Mohar Singh, AIR. 1967 Pun. 184. in which it has been laid down that the law of succession in force on the date on which the limited estate comes to an end would govern the question as to who would succeed to the estate of the last male holder and not the law prevailing at the time of the death of the last male holder. ( 10 ) SRI Shivashankar Bhat has also brought to our notice a decision of a learned single Judge of this -Court in J. Sathyanarayana v. J. Seethomma, 1972 (1) Mys. L. J. 157. which is in accord with the view expressed by the High Court of Punjab. On going through the said decision, we find that the decision in Kempaiah's case (1) which is rendered by a Division Bench of this Court, has not been considered. ( 11 ) IN Shanmughasundarathammal v. Narayana Konar, 1972 (2) Mad LJ 336 also the same view has been taken. While doing so, the High Court of Madras did not follow the view expressed by this Court in Kempiah's case (1 ). ( 11 ) IN Shanmughasundarathammal v. Narayana Konar, 1972 (2) Mad LJ 336 also the same view has been taken. While doing so, the High Court of Madras did not follow the view expressed by this Court in Kempiah's case (1 ). Since we are in disagreement with the view expressed by a Division bench of this Court in Kempaiah's case (1), we consider it necessary to refer the following question for the decision of a Full Bench :" Whether the provisions of Sec. 8 of the Hindu Succession Act apply to a case in which a last male holder, governed by the Mithakshara Law, died intestate in the year 1920 leaving behind him his mother who succeeded him as a limited owner and who died after the coming into force of the Hindu Succession Act, for the purpose of determining the next reversioner to the estate of the last male holder. "we make a reference accordingly. ( 12 ) THE question referred to the Full Bench for its opinion is :" Whether the provisions of S. 8 of the Hindu Succession Act apply to a case in which a last male holder governed by the Mitakshara Law died intestate in the year 1920 leaving behind him his mother who succeeded him as a limited owner and who died after the coming into force of the Hindu Succession, Act, for the purpose of determining the next reversioner to the estate of the last male holder ? " ( 13 ) THE above question arises in the following way. At a partition which took place in 1909 amongst one Krishna, his brother , Vasudeva, and his paternal uncle, Shankarnarayana, Krishna was allotted certain properties. Krishna died on 23-2-1919 leaving behind him. his widow Rukminiamma and a daughter Srideviamma (the plaintiff ). At thei time of his death rukminiamma was pregnant and she gave birth to a posthumous male child on 13-9-1919. According to the law in force at that time, the estate of krishna devolved-on his son as his sole heir and hence the child became the full and absolute owner, of the same. The child died on 13-1-1920 and his mother, Rukminiamma, succeeded to his estate as a limited owner. The said estate comprised the properties with which we are concerned in these proceedings. The child died on 13-1-1920 and his mother, Rukminiamma, succeeded to his estate as a limited owner. The said estate comprised the properties with which we are concerned in these proceedings. On 4-8-1920 a document styled as 'vyavastha Pathra' was executed by Runkminiamma in favour of Vasudeva, the brother of krishna and Shankaranarayana, on of the sons of Vasudeva. Under that document the properties inherited by her as a limited owner, were transferred to the possession of Vasudeva and his son Shankaranarayana subject to certain conditions. On account of several transfers that followed, the properties were in the possession and enjoyment of defendants 1 and 2 on 17-6-1967 on which date Rukminiamma, the limited owner under whom they claimed, died. After her death, her daughter, Srideviamma, the plaintiff, instituted a suit in O. S. No. 6 of 1968 on the file of the Civil judge, Mangalore, out of which this appeal arises, for possession of those properties on the ground that she was the nearest heir of the last male holder when her mother, Rukminiamma, the limited owner, died and, was, therefore, entitled to the properties which formed part of the estate of the last male holder and were in the possessioon of defendants 1 and 2. One of the pleas taken by defendants 1 and 2 in their written statement, was that the plaintiff was not the next heir of the last male holder according to the law in force In 1920 when the last male holder, died and hence she could not institute the suit for possession. The contention of the plaintiff was that she was the next heir of the last male holder under the provisions of S. 8 of the Hindu Succession Act, 1956 (hereinafter referred to as the act of 1956) as she was his sister. ( 14 ) THE Court below was of the opinion that the relevant law which should be applied to determine on whom the estate of the last male holder devolved after the death of the limited owner, was the law in force on the date of death of the limited owner and not the law in force on the date of death of the last male holder. Accordingly it found that the provisions of Sec. 8 of the Act of 1956 were applicable to the case on hand and that the plaintiff was the next heir of the last male older. The Court below, therefore made a decree in favour of the plaintiff. ( 15 ) AGGRIEVED by the decree passed by the Court below, defendant 2 and defendant 3 who was brought on record as one of the legal representatives of defendant 1, have filed this appeal. When the above appeal was heard by a 'division Bench of this Court, defendants 2 and 3 relied upon the decision of this Court in Kempiah v. Girigamma, in which it had been held that where the last male holder died before the Act of 1956 came into force and the subsequent woman's estate came to an end after the coming into force of the Act of 1956, the question as to who would be, the next heir to the estate of "the last male holder, should be determined in accordance with the law in force on the date of the actual death of the last male holder and not by the provisions of the Act of 1956 and contended that in the absence of any evidence that there was no other nearer heir of the last male holder as the law stood in 1920, the plaintiff had to fail. The Division Bench which heard the appeal having expressed its disagreement with the view expressed in Kempiah's case (1), referred the question set out above for the opinion of the Full bench. That is how this matter has come up before this Full Bench. ( 16 ) UNDER the Hindu Law if the next heir of the last male holder is a male he takes the estate of the last male holder immediately and on his death, devolution is traced from him, That means he is treated as a fresh stock of descent. If the next heir of the last male holder is a female she cannot except in Bombay become a fresh stock of descent. After her death the estate does not pass to her heirs but to the heirs of the last male holder. If that heir is also a female, it reverts again to the heir of the last male holder. After her death the estate does not pass to her heirs but to the heirs of the last male holder. If that heir is also a female, it reverts again to the heir of the last male holder. The above principle of law was accepted and applied in Moniram kolita v. Kerry Kolitany, 7 I. A 115, PC. in which Sir Barnes Peacock, speaking for the Judicial Committee, observed at page 154 as follows: -"according to the Hindu Law, a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or by survivorship (as to which see the Shivaganga case (9 M. I. A. 604)) does not take a mere life-estate in the property. The whole estate for the time vested in her absolutely for some purposes though in some respects for only a qualified interest. Her estate is an anomalous one and has been compared to that of a tenant in tail. It would perhaps be more correct to say that she held an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband. 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 upto and died at the moment of her death. " (underlining (italics) by us ). Although in the above passage, the case of a widow succeeding to her husband's estate is dealt with, the same legal principle is extended to every female whether she be a daughter, mother, father's mother or father's father's mother who succeeds to the property of a male. Such female takes only a limited estate in the property inherited by her and at her death the property passes not to her heir, but to the next heir of the male from whom she inherited it. Such female takes only a limited estate in the property inherited by her and at her death the property passes not to her heir, but to the next heir of the male from whom she inherited it. ( 17 ) THE point for consideration in this appeal is whether the question as to who is the next heir of the last male holder after the termination of the intervening estate of a limited owner, should be determined with reference to the law in force at the time of the death of the last male holder or with reference to law in force at the time of the death of the limited owner. The above question has been raised and decided by several High courts, the Privy Council and the Supreme Court in a number of cases in the context of the Hindu Law of Inheritance (Amendment) Act, 1929 (hereinafter referred to as the Act of 1929), by which a son's daughter, daughter's daughter, sister and sister's son were declared as being entitled to rank in the order of succession of a Hindu male dying intestate next after his father's father and before his father's brother. The said Act came into force on 21-2-1929. The relevant part of the said Act read as follows:"whereas it is expedient to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate, it is hereby enacted as follows: - 1 ** ** 2. A son's daughter, daughter's daughter, sister and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother. 3 ** **" in Lakshmi Ammal v. Anantharama Iyengar, AIR 1937 Mad, 699. the question arose whether the Act of 1929 was applicable to a case where the last mala holder had died before the said Act came into force to determine who were his presumptive reversioners in the following way. The last male holder who Was one Venkatakrishna died unmarried on 11-7-1922. He was-succeeded by his mother Lakshmiammal against whom the plaintiff, claiming to be presumptive reversioner, filed a suit in 1927 for certain reliefs in respect of the estate of the last male holder which was in her hands. The last male holder who Was one Venkatakrishna died unmarried on 11-7-1922. He was-succeeded by his mother Lakshmiammal against whom the plaintiff, claiming to be presumptive reversioner, filed a suit in 1927 for certain reliefs in respect of the estate of the last male holder which was in her hands. Lakhmiammal's daughter and her son contended that after the Act of 1929 came into force, they were the presumptive reversioners and the plaintiff had ceased to be a presumptive reversioner. The Madras High court observed in that case as follows: ''but the true principle seems to be that under the Hindu Law it is the death of the female heir that opens the interitance to the reversioners who will till then possess an inchoate right, generally termed as a spes successionis; in other words the male holder is regarded by the law as having lived upto 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 some thing 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. " ( 18 ) ULTIMATELY the High Court of Madras held that in that case the succession opened to the heirs of the last male holder after the passing of the Act of 1929 and was therefore governed by its provisions. In Shakuntala Devi v. Kaushalya Devi, AIR 1936 Lah. 124. Rojpali Kunwar v. Sarju Rai, AIR 1936 All 507. Pokhan Desadh v. Mt. Mansha, AIR 1937 Pat 117. and Bindeshart Singh v. Baijnath Singh, AIR 1937 Oudh 402. also it was held that when the last male holder had died before the Act of 1929 came into force and the estate was in the possession of a widow or a mother who died after the coming into force of the Act of 1929, the succession to the estate of the last male holder must be considered to have opened only after the termination of the life estate and the Act of 1929 would apply in considering the heirs of the last male holder at the termination of the life estate. The Judicial Committee of the Privy Council had occasion to consider the above question in Lola Dunichand v. Mt. Anarkali, AIR 1946 PC 193. The Judicial Committee of the Privy Council had occasion to consider the above question in Lola Dunichand v. Mt. Anarkali, AIR 1946 PC 193. It approved the view expressed by the several High Couts referred to above, after rejecting the contention that the words 'hindu male dying intestate' occurring in the preamble to the Act of 1929 connoted future tense and hence they referred only to the case of a Hindu male dying after the Act of 1929 cam into force, as follows :"in the argument before their Lordships reliance was placed on the words 'dying intestate' in the Act as connoting the future tense, but their Lordships agree with the view of the Lahore High Court in i. L. R. 17 Lah. 356 (AIR 1936 Lah. 124) that the words are a mere description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of the hindu male. The expression merely means 'in the case of Intestacy of a, Hindu male'. To place this interpretation on the Act is not to give retrospective effect to its provisions, the material point of time being the date when the succession opens, namely, the death of the widow. "in Fateh Bibi v. Charan Doss, AIR 1970 SC 789 . the Supreme Court fully approved the decision of the Privy Council in Lola Dunichand's case (8) in the following words: - "we are in entire agreement with the above observations of the judicial Committee and accordingly hold that the point of time for the applicability of the Act is when the succession opens viz. , when the life estate terminates. In consequence, it must be further held that the question as to who is the nearest reversionary heir, or what is the, class of reversionary heirs, will fall to be settled at the date of the expiry of the ownership for life or lives. The death of a Hindu female life estate holder opens the inheritance to the reversioners and the one most nearby related at the time to the last fullowner becomes entitled, to the estate. We hold that the Act applies also to the case of a Hindu male dying intestate before the Act came into operation and has been succeeded by a female heir who died after that date. . . We hold that the Act applies also to the case of a Hindu male dying intestate before the Act came into operation and has been succeeded by a female heir who died after that date. . . " ( 19 ) THE Act of 1956 came into force on 17-6-1956. By that Act the Act of 1929 was repealed. In this case the limited owner died on 17-6-1967 and the succession opened after the coming into force of Act of 1956. The question is whether provisions of S, 8 of the Act of 1956 which deals with the succession to a Hindu male dying intestate after the Act of 1056 eanie into force can be applied while considering the question as to who is the next heir to the estate of the last male holder which had been inherited by the limited owner, who dies after the said Act has come into force. The decision in Kempiah's case (1) no doubt supports the contention of Sri B. P. Holla,, learned counsel for defendants 2 and 3. We'are now called upon to examine the correctness of the said decision. The facts of that cese were these. The last male holder died in 1918 and after his death, his mother succeeded him as a limited owner. She executed a settlement deed on 12-5-1919 under which the property inherited by her was transferred in favour of defendant-2 in those proceedings. She died in 1958 after the Act of 1956 came into force. Thereafter the plaintiffs, claiming to be the reversioners to the estate of the last male holder in view of the provisions of S. 8 of the 1956 Act, filed the suit for possession of the same. The defendants resisted the claim mainly on the ground that the succession to the estate was regulated by the law in force when the last male holder actually died and not by fee provisions of the Act of 1956. When the matter came up before this Court in a second appeal, Hegde, J. was of the view that the matter required to be considered by a Division Bench as he felt that an earlier decision of this Court had not been correctly decided. In his order of reference to the Division Bench, he however observed that the case was governed by the provisions of Section 8 of the Act of 1956. In his order of reference to the Division Bench, he however observed that the case was governed by the provisions of Section 8 of the Act of 1956. ( 20 ) THE Division Bench which consisted of Somnath Iyer and Gopivallabha, iyengar JJ. took the view that the case was governed by the law which was in force when the last male holder actually died and not by the provisions of S. 8 of the Act of 1956. The reasons given by the Division Bench to come to that conclusion were: (1) that the Act of 1956 was prospective and hence could not apply to the estate of a male who had died before the said Act came into force; (2) that since no provision had been made in the Act of 1956 for the devolution of the property on the termination of the limited estate, the law prevailing prior to its coming into force alone continued to apply to such a case; and (3) that the decision of the Privy council in Lala Dunichand's case (8) could not be relied upon because- (i) the Privy Council had not taken into account the words ' shall be entitled to rank' in the Act of 1929, (ii) that a statute had to be interpreted in accordance wih the language employed in it, and (iii) S. 8 of the Act of 1956 referred to the case of actual death of a Hindu male after that came into force. With great respect to their Lordships, we do not agree with the view expressed in the above case as we are not convinced of any of the reasons given in support of the decision. ( 21 ) IT is seen from the above decision that no attention has been given to the principle of law applicable to the case viz. With great respect to their Lordships, we do not agree with the view expressed in the above case as we are not convinced of any of the reasons given in support of the decision. ( 21 ) IT is seen from the above decision that no attention has been given to the principle of law applicable to the case viz. , that the succession does not open to the heirs of the last male holder until the termination of the limited estate; and upon the termination of that estate the property descends to those who would have been the heirs of the last male holder if he had lived upto and died at the moment of her death, although the said principle was expounded by the Privy Council in Moniram Kolita's case (2) in 1880 and had been followed by all Courts in India while dealing with the cases arising under the Act of 1929. If the above principle of law had been noticed then there would have been no difficulty in applying the Act of 1956 to the case before them. While deciding the above case, their Lordships reversed the process by first coming to the conclusion that the Act of 1956 was prospective and then holding that it did not apply to the estate of a Hindu male who had died before the said Act came into force. The logical method was to find out first when the succession opened and then to apply the law in force on the date when the succession opened. ( 22 ) IF that method had been adopted, it would have been clear that in fact no retrospective effect was being given to the provisions of the act of 1956 as observed by the Privy Council in Lala Durdchand's case (8) with reference to the Act of 1929. It is no doubt true that the Act of 1956 does not deal with devolution of estate held by a limited owner but it contains s. 8 which is relevant for deciding the case on hand. It is again erroneous to think that s. 8 applies only to a case where the death of the male holder takes place after the Act of 1958 came into force and not to any other case. It is again erroneous to think that s. 8 applies only to a case where the death of the male holder takes place after the Act of 1958 came into force and not to any other case. In the matter of devolution of the estate of a Hindu male who is succeeded by a limited owner, there is a legal fiction which lays down that the last male holder should be deemed to have lived upto and died at the moment of the death of the limited owner as already stated above, and that legal fiction should be carried to its logical conclusion in applying the same in a given case. It is relevant to refer here to the observation of lord Asquith of Bishopstone in east End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109, 132. which are as follows :" If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents of which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from 1939 level of rent. The statute says that you must imagine a certain state of affairs; it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs. " ( 23 ) THE above passage was quoted with approval by the Supreme Court in m. K. Venkatachalam v. Bombay Dyeing and Manufacturing Co. Ltd. , AIR 1958 SC, 875. Hence3 we have to imagine in this case that the last male holder actually died at the moment when the limited owner who succeeded him died for the purpose of determining the next heir, and apply that law which would be applicable to his estate if he had actually died at the time of the death of the limited owner. It follows that the provisions of the Act of 1956 alone would be applicable to this case as the death of the limited owner took place after the coming into force of the Act of 1956. Sri B, P. Holla next relied upon the decision of the Supreme Court in Eramma v. Veerupanna, AIR 1966 SC. 1879 . It follows that the provisions of the Act of 1956 alone would be applicable to this case as the death of the limited owner took place after the coming into force of the Act of 1956. Sri B, P. Holla next relied upon the decision of the Supreme Court in Eramma v. Veerupanna, AIR 1966 SC. 1879 . and contended that S. 8 of the Act of 1956 was only prospective. That case is of no assistance to him because the supreme Court was not dealing with a case like the present one in that case and further as we have already observed, we are not at all treating the said provision as having retrospective effect in order to decide the question before us. ( 24 ) IT was lastly argued by Sri B. P. Holla that the words 'dying intestate ' taken along with ' shall devolve' in. S. 8 of the Act of 1956 meant that they referred to a future event as the finite verb in the sentence was in future tense. This is merely a futile exercise in semantics as the case is not taken any further by the above argument. With great respect we do not also agree with the views expressed on the abova question in Renuka Bala Chatterji v. Aswini Kumar Gupta, AIR 1961 Pat. 498 . Nathuni Missir v. Ratna Kuer, AIR 1963 Pat. 337 . Chaturbhuj Pradhan v. Sarbeswar Pradhan, AIR 1967 Pat. 138 . Mst, Jandebi v. Upendra Sahu, AIR 1968 Orissa 187. Sampath Kumari v. Lakshmiammal, AIR 1963 Mad. 50 . and Rameswar v. Hordes, AIR 1964 All. 308 . In all these cases the view expressed by the Privy Council in Lala Dunichand's case (8) which has been later approved by the Supreme Court in Fateh Bibi's case' (d) regarding the time at which the succcession opens has either been lost sight of or has not been given due weight in deciding the question. In view of the decision of the Supreme Court in Fateh Bibi's case (9), the view expressed in these cases to the contrary should be treated as having been overruled. ( 25 ) OUR view on the question referred to the Full Bench receives support from the decisions reported in Hiralal v. Kumud Bihari, AIR 1957 Cal. 571 . Bepin Bihari v. Smt. Laksha Sona Dassi, AIR 1959 Cal. 27 . ( 25 ) OUR view on the question referred to the Full Bench receives support from the decisions reported in Hiralal v. Kumud Bihari, AIR 1957 Cal. 571 . Bepin Bihari v. Smt. Laksha Sona Dassi, AIR 1959 Cal. 27 . Ratna Kumari v. Sundarlal, AIR 1959 Cal. 787 . Mt. Taro v. Dorshan Singh, AIR 1960 Pun. 145. Kuldip Singh v. Karnail Singh, AIR 1961 Pun. 573. Smt. Basno v. Charan Singn, AIR 1961 Pun. 45. Harbhaj v. Moftar Singh, AIR 1967 Pun. 184. Ramulu v. Govur Venfcanna, AIR. 1965 AP. 466. Sanmuga Sundarathammal v. Narayana Konar, AIR 1973 Mad 335 . and J. Sathyanarayana v. J. Seethamma, 1972 2 Mys. L. J. 15. We respetfully agree with the opinions expressed therein. In conclusion, we hold that Kempaiah's case (1) has been wrongly decided and we overrule it. ( 26 ) OUR answer to the question referred to the Full Bench is that the provisions of S. 8 of the Hindu Succession Act apply to a case in which a last male holder governed by the Mitakshara Law, died prior to the coming into force of that Act, leaving behind him his mother who succeeded him as a limited owner and who died after the coming into force of the Hindu succession Act for the purpose of determining the next reversioner to the estate of the last male holder. --- *** --- .