1. The relationship between the persons concerned is given in the genealogical tree attached to the plaint and is not disputed. There is no reason for doubting the correctness of the learned judge's conclusions that the suit house was the separate acquisition of the deceased Ramamma and the 1st defendant and that the suit land was the separate acquisition of the former. It is argued with reference to Sudarsana Maistri v. Narasimhula Maistri I.L.R. (1901) M. 149. that those two members of the family, one of dancing girls, comprised all the members of a sub-branch and could hold property jointly, as a distinct corporate unit within the larger corporate unit. There is no foundation for that argument, since there is no reason for regarding these two members as a sub-branch to the exclusion of the 1st plaintiff, their sister. The learned judge was, therefore, right in holding that the house was the common property of Ramamma and the 1st defendant and that the former's half share in it and the suit land passed to her mother, Seethamma, by inheritance on her death.
2. The learned judge's decision as to the suit jewels follows that regarding the house. The first plaintiff claimed both on the same basis. The 1st defendant who was alone concerned with the former no doubt claimed some of them as her separate acquisition in her written statement. But there was no distinct issue regarding them. The learned judge refers in his judgment to her case as being that they were acquired jointly. It is alleged and it is to be presumed in these circumstances that this was the case actually put forward at the trial. That it was so, is consistent with the 1st defendant's failure to give evidence and with the evidence of the defendant's 1st witness who alone was examined by her on the point. The claims to the jewels and the house were therefore dealt with rightly on the same footing.
3. These conclusions of the learned judge did not correspond either with the plaintiff's case, that the house, land and jewels were the joint property of the whole family or with the 1st defendant's that the two first were the joint property of Ramamma and herself and that some of the jewels were her own separate acquisitions. The argument to be dealt with next arises from these conclusions and therefore has been attempted first in this court. In plaint paragraphs 7 and 8 there is a reference to a will executed by Seethamma, mother of the 1st plaintiff and the 1st defendant' whereby she bequeathed all property to which she was entitled, to the 2nd and 3rd plaintiffs and nominated them executrixes. The plaintiffs submitted that Seethamma had no power to deal with the property by will, since (in accordance with their case) it belonged to the joint family; and the 2nd and 3rd plaintiffs therefore did not claim under the will. The 1st defendant has however argued here that this reference to a will must have effect that the property must be taken to have vested in accordance with its terms in the 2nd and 3rd plaintiffs and that in the absence of a conveyance by them to the 1st plaintiff, the latter has no title, on which she can sue in ejectment, as she in effect is doing.
4. It has been pointed out that the defendant's contention could not have been raised in their pleadings since it arises from the findings by the learned judge which are not in accordance with either party's case. The plaintiffs no doubt must not be prejudiced by the stage, at which that contention has been advanced; and it might have been necessary to grant a remand for a further trial after amendment of the plaint with reference to the will and filing of an additional written statement but that the 1st defendant's arguments must be held untenable for two reasons.
5. Firstly it is admitted that up to the date of the learned judge's decision the will had not been proved. It was made in Madras and under Section 2 Hindu Will Act, is subject to Section 187 Succession Act. No right therefore as legatee can be established under it.
6. It has been urged that Section 187 affects only the establishment of a right by the legatee himself or some persons claiming under him and does not debar the 1st defendant who desires to establish the legatee's right, merely as a jus tertii for the purpose of her defence. No authority has been cited and no reason suggested for such a distinction. It is said further that Section 187 is further irrelevant, when the plaintiffs have admitted the existence of the will and its terms. The answer is that, though they admitted the existence of the document they denied its validity on the validity of rights under it, and the fact that their denial was based on one ground which has been held to be mistaken cannot alter the scope of their admission or disable them from taking other available objections.
7. Then as to the merits of the 1st defendant's arguments. They depend on the assumption that Seetamma's will is effective. The 1st defendant's case is that the property bequeathed to the 2nd and 3rd plaintiffs vested in them; and, in our opinion, that is not sustainable. Section 91 Succession Act no doubt provides for the vesting of the estate in the legatee from the date of the testator's death. But the estate thus vested is not full or absolute, the reference is only to an interest in the legacy, not the legacy itself; and the distinction between a vesting in interest and in possession is implied in Section 106 and the illustration to Section 292 in which the effect of the executor's assent is dealt with. (Vide also Bachman v. Bachman I.L.R. (1884) . A. 583 and Doe v. Guy (1802) 3 East 120 s.c. 102 E.R. 543. Until that assent has been given, the legatee has in any case only an inchoate right to the legacy. Williams on Executors 10th Edn. p. 1101, so far no account has been taken of the effect of the legatee's disclaimer. There is very little English and no Indian authority regarding it. But in In re Hotchkys-Freeke v. Calmady (1886) 32 Ch. 408 there are references to the acceptance of the legacy as essential, which are inconsistent with its vesting in the legatee against his will. And at p. 84, Williams Law of Real Property 20th Edn. Nicholson v. Wordsworth (1818) 2 Swanston 365 s.c. 31 E.R. 655 is referred to, and it is said ' an heir at law is the only person in whom the Law of England vested property whether be would or not. If I make a conveyance of land to a person in my life time or leave him any property by my will, he may, if he pleases, disclaim taking it, and in such case it will not vest in him against his will '. Though this principle is not formally stated in the Indian Law it is reasonable and there is nothing repugnant to it therein or in Indian decisions. It may, therefore legitimately be adopted. The result is that the 2nd and 3rd plaintiffs' legacy did not vest in them completely or indefeasibly and that, as far as it vested at all, it would be divested by their disclaimer. Being undisposed of Seethammal's interest must go as the plaintiffs contend that it should, to the 1st plaintiff and to the 1st defendant in equal shares. Morarji Culliangi v. Nenbai I.L.R. (1893) B. 351
8. The 1st defendant objects to the application of the partition Acts for which the decree provides, The 1st plaintiff consents to its amendment by the removal of this provision. The appeal is therefore allowed to this extent, It is dismissed in other respects. The 1st defendant will pay the 1st plaintiff's costs.