Courtney Terrell, C.J.

1. This case comes before me in second appeal from a decision of the District Judge of Gaya. It raises a point of law of succession and it is important to realize the position of the parties. With an addition which I shall specify the genealogical table which affects the case is set forth in the original judgment of the Munsif. The common ancestor of the plaintiffs and the defendant was one Meghan Barai. He died long ago and left two sons Nasib Barai and Bala Barai. Nasib Barai was the father of plaintiff 1 and plaintiff 1 is the father of the other plaintiffs. Bala Barai had two sons. With the eldest we are not concerned. The second son Jatoo was married to one Mt. Akli who is still alive and is defendant 1. After the death of Jatoo Barai his widow married his younger brother Akhaj Barai.

2. The offspring of that marriage was a daughter named Gauri and a son named Mathura. Gauri had three sons and one daughter. Mathura died at some date which has not bean determined but at any rate before 1927. The plaintiffs brought a suit against the defendant in which they sought to impugn a mortgage deed which had been executed by her and they impugned it on the usual grounds that there was no legal necessity. The finding of the lower Court was that in fact the deed -was for no legal necessity and holding that the plaintiffs were the next heirs after Mathura's decease the first Court decreed the suit.

3. The defendant then appealed to the District Judge and by the time the appeal came before him Act 2 of 1929 had come into force. The effect of that Act is shortly that a sister's children take the estate in preference to a father's father. The Act was brought to the notice of the District Judge and he remanded the case to the Munsif with a direction to inquire whether as a matter of fact Mathura deceased had a sister and whether that sister in turn had had offspring. The Munsif having conducted the necessary inquiry reported that such was the fact.

4. The matter then coming before the learned District Judge together with the Munsif's additional findings he decided that effect must be given to Act 2 of 1929 and therefore that this sister and her children were the next heirs and the plaintiffs were not the next heirs and accordingly he held that their suit failed upon that ground.

At no time had the plaintiffs sought to make the sister of the deceased and her children parties to the suit. They did not make them parties to the suit up to the stage of the Munsif's further inquiry because in fact they were denying the existence of the sister and her children. Even after the Munsif had reported their existence and the matter came back before the District Judge they made no effort to bring them in as parties.

5. Now if the learned District Judge was right in his view that Act 2 of 1929 applied then it is clear that the plaintiffs were not the next reversionary heirs and accordingly they were not entitled to bring this suit unless under the general principles of Hindu Law which are stated in Section 207, Mulla's Hindu Law, they could prove that the next reversionary heirs had concurred in the act alleged to be wrongful or had colluded with the limited heir and were precluded from suing by their own act. In order to establish such a proposition it would be necessary of course to make the next reversionary heirs parties to the litigation.

6. Now the plaintiffs at no stage of the proceedings alleged that the next reversionary heirs had colluded as suggested or were precluded from suing so that the defendants to the suit might have contested the allegation; nor did they give the parties whom they now suggest were guilty of such collusion an opportunity of denying such allegations nor do I find on the face of the judgments the slightest suggestion of that which is said at this stage of the proceedings that they had been guilty, of any such acts. That being so, if Act 2 of 1929, is applicable, the plaintiffs not being the next reversionary heirs and not having taken the necessary steps to make the required allegations against the next reversionary heirs and make them parties they cannot succeed in the suit.

7. I now proceed to examine the question as to whether Act 2 of 1929 applies to this suit and I would say at the very beginning of the discussion that this is not a question as to whether or not the Act is to be said to be retrospective in effect. The learned advocate on behalf of the appellant has relied upon a judgment of the Madras High Court in the case of Krishnan Chettiar v. Manickanimal AIR 1934 Mad 138 where the learned Judges seem to have treated the matter as being one of whether the Act was retrospective or not and they took this attitude because in their view the critical date to be considered was the death of the last male holder.

8. They dissented from certain cases to which I shall in a moment refer decided by the Allahabad and Lahore High Courts. In my judgment the critical date for consideration is not the death of the last male holder but is the death of the limited owner. On the death of a Hindu the widow takes the whole estate. It is true that her powers of control over the property are limited. She cannot alienate it; she cannot waste it; but short of that she can enjoy it in any way which she thinks proper and her estate is a vested estate and is the only vested estate. The heirs of her deceased husband have a mere spes successionis and as to who they are and what share they will be entitled to cannot be decided until after the death of the lady. The heirs at one time may by the time of the death of the lady have ceased to exist.

9. Further more other members may be born into the family and take their rights as members of a Hindu co-parcenary and the heirship will be affected to a corresponding degree. That this is the correct view and that the succession opens on the death of the widow and not on the death of the last male owner is a recognized principle of Hindu law. In the case, Venkatanarayana Pillai v. Subbammal AIR 1915 PC 124, their Lordships of the Judicial Committee say:

Under the Hindu law the death of the female owner opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime however the reversionary right is a mere possibility or spes successionis.
In the case of Amrit Narayan Singh v. Gaya Singh AIR 1917 PC 95, their Lordships further say.

A Hindu reversioner has no right or interest in praesenti in the property which the female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign or to relinquish, or even to transmit to his heirs. His right becomes concrete only on her demise, until then it is mere spes successionis.
10. That being the law the Legislature thought fit before the death of the lady Mt. Akli (she has in fact not yet died) to alter the law as to succession to the estate of the last male holder and enacted, for the purposes of application when the succession opened, that the sister and the sister's sons should have what I may call a spes successionis which should be superior in fact to the spes successionis of the plaintiffs descended as they are from the father's father. It is clear that if the critical date is the death of the lady the plaintiffs are not the nearest reversioners. This view of the matter was taken by the Allahabad High Court in the case of Bandhar Singh v. Daulat Kuar AIR1933All152 which was a decision of the Court in a Letters Patent Appeal from the judgment of Sulaiman, J., with whose judgment the Chief Justice and Sen, J., agreed. The same view was taken by the High Court of Lahore in the case of Shib Das v. Nanda Lal AIR 1932 Lah 361.

11. That was a case in which the facts were almost exactly similar to the one which I am now considering and the whole point there was, as in the present case, that the widow was alive at the date of the coming into force of the new Act. It is not therefore a question of whether the Act is retrospective. If the critical date had been the date of the death of the person who was the husband of the widow then it is true that in order to make the Act applicable it would have to be held to be retrospective and to the extent only that the Act is not retrospective I venture to agree with the decision of the Judges of the Madras High Court. But taking the view that I do, that the critical date is that of the death of the lady, when the succession opens, and the Legislature having thought fit to interfere with the hopes of persons whose rights were not yet vested, in my opinion it is not a question of retrospective effect at all.

12. Holding the view that I do I dismiss this appeal with costs throughout.

The matter is an interesting one in which there is a conflict of decisions and I therefore certify that the case is a fit one for appeal under the Letters Patent.