The present reference to the Full Bench arises out of a suit for declaration filed by the plaintiff to the effect that certain alienations made by Mst. Ram Piari in favour of the appellant, Ajab Singh, be set aside. The Court below decreed the suit of the plaintiff respondent No. 1 and the defendants have appealed from the decree of the Additional District Judge, Jammu. The appeal was heard by a Division Bench of this Court. As the case involved interpretation of Ss. 12 and 13 of the Jammu and Kashmir Hindu Succession Act, 1956, the case has been referred to us. The Division Bench has not formulated the points for reference and it is, therefore, necessary to formulate the points which we have been called upon to decide in this reference.

(2) The point that arises for decision in this reference may be formulated as follows:

"Whether the present suit is maintainable in view of section 12(2) and S. 13 of the Jammu and Kashmir Hindu Succession Act, 1956?"

(3) Briefly put the facts of the present case are as follows:

(4) The property originally belonged to one Natha Singh who executed a will in favour of Ram Piari on 19th Jeth 1994 under which he bequeathed his properties to Ram Piari but gave her only a limited estate and prohibited her from making any alienations. According to the recitals of the will the property was to go to male collaterals after the death of Mst. Ram Piari and failing collaterals to the Arya Samaj. Natha Singh had a son Ram Singh, who was disinherited by a- previous will but the Court below has, however, held that he was not disinherited by the present will which revoke the previous will.

(5) The defence was that the alienations were justified by legal necessity and as Ram Singh was disinherited he could not maintain the present suit

(6) It is not necessary for us to go into the details of the case which will be decided by the Division Bench after we dispose of the present reference.

(7) The question as to whether S. 12 which is the same as S. 14 of the Hindu Succession Act applicable to India is retrospective does not really arise in this case as the present case is completely covered by sub-sec. (2) of S. 12. Sub-section (2) of S. 12 runs as follows:

"Nothing contained in sub-sec. (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property".

A perusal of this sub-section makes it abundantly clear that where the property has been made the subject-matter of gift or will S. 12(1) will not apply at all. It is not disputed in the present case that Natha Singh had executed a will in favour of Ram Piari under which he had given her only a limited estate. The intention of the Legislature in engrafting subsection (2) of S. 12 was clearly to leave untouched, transfers made by the last male holder in favour of a female, from the mischief of S. 12 of the Act.

In other words, if the last male holder intended that the female should take only a limited interest the Legislature did not intend to interfere with that intention and has clearly saved such transactions by virtue of the sub-section quoted above. In the present case S. 12(1) is clearly inapplicable because of sub-section (2) of S. 12. Mr. Inder Dass, however, argued that sub-sec. (2) had a limited operation and it referred only to particular kinds of restrictions under which the right of the female was limited and not to any other restrictions at all. In other words, Mr. Inder Dass relied on the words prescribe a restricted estate in such property.

The contention of Mr, Dass is that only restrictions with respect to the female holding a limited interest would be given effect to by virtue of sub-sec. (2) and as the Act has already destroyed reversionary interests the plaintiff could not in any event maintain the present