1. The plaintiff sued to recover possession of certain immoveable properties belonging to one Jivanlal, for an account of the management of Defendants Nos. 1 and 2 as executors and trustees of the will of Jivanlal, and for an injunction restraining Defendant No.4 from obtaining attachment or sale of the dehla (one of the immoveable properties claimed) belonging to Jivanlal in execution of a, decree obtained by defendant No. 4 in the Bombay Small Causes Court against the assets of Jivanlal in the hands of Defendants Nos. 1 and 2.
2. Harilal, Chunilal and Himatlal were three brothers. Harilal died leaving three sons, the plaintiff Gordhandas, his brother Vadilal, and their step-brother, the abovementioned Jivanlal. After Harilal's death, his brothers, Himatlal and Chunilal, divided the family property with Harilal's sons in 1901. Thereafter there was a partition between the plaintiff and Vadilal on the one hand and Jivanlal on the other, Vadilal died. The immoveable property in question in the present suit had come to the share of Jivanlal in that partition. Jivanlal died on January 2-4, 1921, having made a will, dated January 22, 1921 Clause 5 of that will is as follows:
My wife should continue to receive whatever income that may be derived from my immoveabla property. But my wife Lalita shall not have the right to transfer my immoveable property either by sale, encumbrance or gift. As also she should receive whatever rent that may be derived from my Dehla every year. But my wife should not give the same on rent for a long period. She is only to maintain herself from income thereof.
My wife is pregnant at present. God willing she would give birth either to a son or daughter, he or she will be the owner of my property. The household expenditure, till he or she attains the age of in majority, should be defrayed from the income as stated above. However, God willing, if the son or daughter happen to die and if my wife shall choose not to live as my wife, but shall resort to other's house (i.e. remarry) she shall have no right whatever to my property. And thereafter the following persons, whom I trust and in whom 1 confide, shall take over my property in their possession with all the rights and dispose of the same for charitable purposes specified thereunder.
3. On February 2, 1921, Lalita gave birth to a son Babla, who died on April 3,1921. On April 17, 1921, Lalita sold the ground-floor of one of the properties to Defendant No. 3. Lalita died on May 27, 1921. Defendants Nos. 1 and 2, as trustees and executors of Jivanlal's will, obtained probate of the will on February 10, 1922. Defendants No. 4 is the son of Defendant No. 1. He obtained the money decree already referred to.
4. The plaintiff claims the property in suit as the reversionary heir of Babla on Lalita's death, alleging that Jivanlal's will was invalid, it having been made with regard to joint ancestral property after Babla was conceived. The Judge held that Jivanlal's will was invalid according to law and decreed the plaintiff's claim against Defendants Nos. 1, 2 and 3. The claim for injunction against Defendant No. 4 was dismissed. There was no stay of execution of the decree which was obtained by the plaintiff, and the decree has now been executed. Therefore, the cross-objections of the plaintiff to the Judge's order dismissing the claim for an injunction are no longer competent.
5. Now, it is clear from Jivanlal's will that he was aware that his wife was pregnant, and he provided for the possibility of a son being born to him by directing that his property should go to that son. But a member of an undivided family cannot make a bequest of ancestral property. His interest in such property ceases at his death. As any will by him takes effect as from the date of his death, it must follow that any attempt to deal by will with ancestral property, even the undivided share belonging at that time to the testator, must be incompetent.
6. It has been suggested that Babla elected to take under the will. There is no evidence to support any such suggestion. And even supposing that Lalita as guardian of Babla had made a declaration on his behalf that he intended to take the property under the will, instead of as a surviving coparcener, we doubt very much whether any such declaration could have effect. But it is not suggested in this case that the widow as such guardian attempted to make any such election on behalf of Babla. It must follow then that the will of Jivanlal was invalid. At Babla's death Lalita would succeed to a limited estate as his heir, and she would not be competent to sell any part of the ancestral property to Defendant No. 3, even if she considered that she was carrying out the directions of her husband with regard to that property. We must, therefore, dismiss bath appeals with costs. The cross-objections are dismissed with costs.