DAVE, J. - (1.) THIS is defendant's appeal against the judgment and decree of the High Court of the former State of Jodhpur., dated the 27th October, 1948. It was presented in the Ijlas-i-khas of the former Jodhpur State and has come before us by virtue of Ordinances Nos. XL of 1949 and XII of 1950.
(2.) THE facts giving rise to it are that the defendant appellant Mst. Sire Kanwar is the widow of one Kishenlal Vyas who was resident of Jodhpur. Kishenlal adopted a son Kanwarlal who is plaintiff respondent in this case. On Besakh Vadi 1, Svt. 1912 corresponding to May, 1925 (Kishenlal executed in favour of his wife, the appellant, a will whereby he bequeathed his entire property, to her and authorised her to sell or mortgage that property during her lifetime and it was provided that whatever property would be left after her death would go to his son Kanwarlal. On the 6th of April, 1937 Kanwarlal brought a suit for partition of the property against his father. THE appellant was also impleaded as a party. On the 31.5.1939, the then District Judge of the former Jodhpur State passed a preliminary decree declaring that the plaintiff and the two defendants were each entitled to one-third share in the joint family property. After this preliminary decree, Kishenlal died on the 17th September, 1940. THEreafter, on the 7th November, 1940, Kanwar Lal applied for final decree. THE property was partitioned by metes and bounds in three equal shares. One of the shares was allotted to the plaintiff Kanwarlal and the other of his mother Mst. Sire Kanwar. As regards the third share of the deceased Kishenlal it was ordered by that Court that it should be handed over to Mst. Sire Kanwar as a trustee for the person who may ultimately be declared to be entitled to receive it by the civil court. Against this decision there was an appeal to the High Court of the former Jodhpur State. THE High Court remanded the case to the trial court with a direction to determine the question as to which of the contending parties i.e. Kanwarlal or his mother, was entitled to receive the deceased Kishanlal's share. On the 30th March, 1948, the District Judge's Court No. 1, Jodhpur, gave its judgment and decree in favour of Mst. Sire Kanwar on the ground that a severance of the status of joint family had already taken place before Kishenlal's death and that since he had bequeathed his property in favour of his widow and she had taken out a probate of the will, she was entitled to receive his share. Against this decision Kanwarlal went in appeal to the High Court of the former Jodhpur State. On the 27th October, 1948, it was decided by that Court on the date when the will was executed by Kishenlal, Kanwarlal had already been adopted by him as his son, add since Kishenlal was not the sole surviving coparcener he was not competent to execute a will in respect of the entire property or his undivided share in the joint family property and the will being invalid it could confer no rights upon this widow. THE decree of the trial court was set aside and Kishenlal's one-third share was ordered to be given to the plaintiff Kanwarlal. It is against this decree, that Mst. Sire Kanwar has come here in appeal. The appellant's learned advocate contends that although the will was executed by the deceased Kishenlal at a time when the family was joint, it was to take effect after his death. Since he died after the preliminary decree was passed, he had unfettered capacity to dispose of his property before his death and therefore the will was perfectly valid. It is prayed that the decision of the High Court of former State of Jodhpur proceeds on an erroneous view of law and, therefore, it should be set aside and the decree of the trial court should be restored. The respondent's advocate on the other hand has tried to support the view of the High Court of the former Jodhpur State. Both learned advocates have referred to certain authorities which will be discussed below. The main point which calls for determination in this appeal is whether the validity of a generic will like the one in the present case should be judged from the time it is executed or from the time it is to take effect. In Halsbury's Laws of England (Vol. 34 (Halisham Ed.) page 236) para 291runs as follows - "A will unless a contrary intention appears therein must be construed, with reference to the real estate and personal estate comprised in it, to speak and take effects as if it had been executed immediately before the death of the testator and as if the condition of things to which it refers in this respect is that existing immediately before his death." This passage is based on several decisions of their lordships of the Privy Council including the case of Higgins vs. Dawson (1) (1902 A-Cs., 1.). Sec. 90 of the Marwar Succession Act 1936, which corresponds to the same section of the Indian Succession Act 1925 reads as follows : - "The description contained in a will of property the subject of gift, shall, unless a contrary intention appears by the will, be deemed to refer to and comprise the property answering that description at the death of the testator." It is argued by learned advocate for the respondent that the Marwar Succession Act was brought into force in 1936 and since the words "to any will made or intestacy occurring before the first day of January 1866" appearing in sec. 23 of the Indian Succession Act were deleted from sec. 23 of the Marwar Succession Act 1936., this law did not apply to wills which were executed before it came into force. It is urged that only the Hindu Law which prevailed at the time should be applied to the present case and other considerations should not be brought in. It is quite true that the Marwar Succession Act could not be applied to the present case. But sec. 90 contains only a broad principle underlying the interpretation of wills and therefore, so far as the principle involved therein is concerned, at cannot be lost sight of. It lays down the principle that unless a contrary intention appears by the will itself, the will should be interpreted as speaking at the death of the testator and any property described in the will should be understood as comprising the property answering to the description at the death of the testator. The effect of this section is that bequest passes., not that property which the testator means to leave at the time of executing the will, but whatever is in existence at the time of his death. It may be that some property may cease to exist after the execution of the will and before the death of the testator, or the testator may acquire some property after the execution of the will and before his death. So unless there is a specific mention in the will itself, the property which is left at the time of the testator's death passes to the legatee and on this principle the will would speak as at the death of the testator and not as at the time it is made. In the case of Shib Sabitri Prasad vs. The Collector of Meerut (1) (I.L.R. XXIX All., 82) one Nanakchand residing in Meerut had executed a will on the 20th of January, 1885. He died on the 16th of October, 1899. A suit was thereafter instituted by certain persons who claimed the property of the testator as his next of kin against the Collector of Meerut who had taken possession of the property as trustee under the terms of the will for purposes therein set forth. An argument was raised in that case on behalf of the plaintiffs that the testator was joint at the time of the will and, therefore, the will was invalid. It was found, however, that the testator had separated from the rest of the family in 1886 and that he was separate when he died. Adverting to the question of the invalidity of the will, it was remarked by their lordships: - "The rule enacted in 1 Vict., Chap. XXVI, sec. 24, namely, that a will is to be construed as speaking and taking effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will, has been embodied in the Indian Succession Act, 1865, sec. 77. That section has been incorporated in the Hindu Wills Act of 1870. It is true that this Act does not extend to these provinces; but we see no reason whatever why the principle should not be held applicable to the case before us. We hold, therefore, that, even if it had been shown that Nanak Chand was joint at the time when he made the will, the will must be construed as speaking and taking effect with reference to the state of things in existence1 immediately before the testator's death, when admittedly he had separated from the members of his family." In the lease of Krishnamurthi Ayyar vs. Krishnamurthi Ayyar(2) (A.I.R. 1927 P. C. 139.) it was observed by their lordships of the Privy Council that : - "When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For the will speaks as at the death of the testator, and the property is carried away before the adoption taken place." The last sentence is very significant and in the present case also even if the Marwar Succession Act, or the Hindu Wills Act may not be applicable, the principle that the will should take effect at the death of the testator and not at the time when it is made, cannot be ignored. In the case of Bodi vs. Venkataswami (1) (A. I. R. 1915 Mad. 1077.) where a Hindu had made a will of his ancestral property and had a son subsequently born to him who, however, predeceased the testator, it was held on the same principle that the will was not revoked by the subsequent birth of the son. It was remarked : - "It cannot be doubted that property which a person does not possess at the time of the will may be validly bequeathed. There is no reason why the same principle should not apply with respect to the property which he owns absolutely, both at the time of the bequest and at the time of his death, but with respect to which he loses the right of testamentary disposition during some time between the two dates." Learned counsel for the respondent has referred to the cases of Lakshman Dada Naik vs. Ramchandra Dada Naik(2) (7 I. A. 181.) and Harilal Bapuji vs. Bai Mani(3) (I.L.R. 29 Bom. 351.). In the former case it was held by their lordships that: - "Under the Mitakshara law as received in Bombay, a father cannot by will make an unequal distribution of ancestral property, whether moveable or immoveable, between his sons. Although one of several co-parceners has under the same law the power of alienating his undivided share in ancestral estate without the consent of his co-sharers by deed executed for valuable consideration; and although such share may be seized and sold in execution for the separate debt of the co-sharer, at least in the life-time of the judgment-debtor, yet such alienation cannot be made by will." In the next case(7) a Hindu, who had a son living jointly with him, made a will whereby he appointed son as heir to his whole property, which was ancestral, and also appointed trustees in order to administer the property until his son should attain 21 years of age. The trustees were further empowered to take the whole of the property into their possession. In these circumstances, it was held that the appointment of trustees was void since at the moment of the testator's death the whole of the property became the property of the son. It may be pointed out that these cases do not help the respondent because the testator in these cases had died as a member of the joint family. The joint family property, therefore, devolved upon the son by survivorship. The father had no separate property of his own at the time of his death and, therefore, he could not make a valid will. In the present case, as pointed out above, the testator was admittedly not a member of the joint family at the time of his death. A separation had already taken place and, therefore, his separate property could pass to the legates by his will. The respondent's learned advocate has also urged that according to Hindu Law a Hindu cannot by will bequeath property which he could not have alienated by gift inter vivos. It is urged that at the time the testator made a will be could not make a gift inter vivos of the property since the family was joint at the time. He has proceeded to argue that just as a person who is a minor or of unsound mind cannot dispose of his property by will, so also Kishenlal, according to Hindu Law, could not make a valid will in the year 1925 and, thus, the will was void ab initio. It is urged that the will which was originally invalid could not be validated later on because the family stood divided at the time of the testator's death. This argument, though plausible, does not appear to be sound. The analogy of a minor or a person of an unsound mind cannot be justly applied to a member of a joint family who is major and of sound mind. In the case of a person who is minor or of unsound mind there is an inherent incapacity to make any valid disposition. In the case of a member of a joint family, he is not inherently incapable to make any disposition. If he has any separate property, he can certainly dispose it of in any manner he likes. The restriction which the Hindu Law imposes on him is only with regard to the property which is joint. If such property, therefore, becomes separate before his death, his original incapability to dispose of that property is automatically removed and if he has not revoked his previous will, there is no reason why it should not take effect. As regards the principle that a Hindu cannot by will bequeath property which he could not alienate by gift, it may be pointed out that this only means that he cannot will away that property which he could not validly give in gift at the time of his death. If Kishenlal had died as a member of joint family, the will made by him would certainly have been invalid because at the time of his death, the right of Kanwarlal's survivorship as a coparcener would have come in conflict with Mst. Sire Kanwar's right by devise. ("But since the family was divided before his death and a preliminary decree was passed, the will was perfectly valid at the time of his death and simply because it was made at a time when he was a member of the joint family, it cannot be held to be invalid. We may, however, make it clear that in the present case, the will under our consideration is of a generic nature and our remarks should be considered to be confined to wills of that nature. In our opinion, the decision of the learned Judges of the High Court of the former State of Jodhpur cannot be upheld. We, therefore, allow the appeal, set aside the judgment and decree of that Court dated the 27th October, 1948, and restore the decree passed by the District Judge of the former Jodhpur State on 30th March 1948. The District Judge had made the costs easy by the said decree (dated 30.3.1948) and, therefore, the appellant will get her costs from the respondent in this Court and the High Court of former Jodhpur State. ;