1. We are of opinion that the Subordinate Judge rightly decided that Ichharam, the executor of the deceased Lalbhai's will, was not a necessary party to the suit. The will was made when Act XXI of 1870 was in force, and under that Act, Section 179 of Act X of 1865 had no application to it so far as it related to any property out of Bombay. The property of Lalbhai did not, therefore, vest in the executor at any time before Act V of 1881 came into force.. It is contended, however, that the effect of Section 4 of Act V of 1881 was to vest the property in Ichharam, and that he alone, therefore, could sue. We cannot yield to this contention, for Lalbhai and his son Magan were presumably joint in estate, and on Lalbhai's death the estate vested in Magan by survivorship. On Magan's death in 1877 it vested in his. widow, the minor Magangauri on whose behalf the present suit is brought by the administrators of her property appointed under Act XX of 1864. Under the provisions, therefore, of Section 4 of Act V of 1881, if that Act can be held to operate at all in the Mofussil before a notification is issued under Section 2, the estate could not vest in Ichharam, as it had passed by survivorship to another person long before the Act came into operation.
2. As regards the ornaments included in list E, the evidence relied on by the defendant is vague, and we think that the Subordinate Judge rightly allowed the plaintiffs' claim to recover them.
3. As regards, however, the property included in list H, worth Rs. 6,329, we cannot uphold the Subordinate Judge's decision. Bai Harkor has adduced evidence (her own and that of witnesses Nos. 101, 111, 112, 176), which is not met by any evidence on the other side. She has all along consistently claimed these ornaments as having been given to her by her husband on their betrothal. The evidence relied on by her sufficiently supports her claim, which is consistent with Hindu custom on such an occasion. We, therefore, disallow the plaintiffs' claim to recover those ornaments.
4. The effect of this decision will be to vary the decree of the lower Court by striking out of it the paragraph relating to the ornaments in list H.
5. Before, however, we can make a final decree in this appeal, it will be necessary to ascertain the amount of money to be paid as an alternative if delivery of the moveable property decreed to the plaintiffs cannot be had. Section 208 of the Code of Civil Procedure, the provisions of which have been overlooked by the Subordinate Judge, requires that the decree should state this amount. The Subordinate Judge should certify a finding on this point within two months, after taking such evidence as the parties may offer.