1. The suit in this case was instituted by a legatee under a will executed by a Hindu, for recovering the properties devised to him. The first defendant is the widow of the testator. Various pleas were raised in answer to the plaintiff's claim but it is unnecessary to refer to them all, as the contentions in this Second Appeal have been confined to the points of law raised. The first of them is that the will ceased to be legally operative, as it related to the ancestral property of the testator and as a son was subsequently born to him, by which he ceased to have any power of testamentary disposition over the property. It is admitted that the testator was quite competent to dispose of the property by will at the time when he executed it. Mr. Seshagiri Ayyar, the learned vakil for the appellant, argues that the cessation of the testator's absolute estate in the property in consequence of the subsequent birth of a son had the effect of revoking the will in law. He relies on the statement of the law in England as laid down in Jarman on Wills, volume I (page 161), with regard to freehold lands before the enactment of the Wills Act, The learned author says: 'Under the old law, it was essential to the validity of a devise of freehold lands, that the testator should be seised thereof at the making of the will, and that he should continue so seised without interruption until his decease.' The appellant argues that this is a general principle of law which is applicable to wills in this country, although it is no longer the law in England in consequence of the enactment of the Wills Act. The next sentence in the learned author's treatise however shows that the observation in question is really made only with respect to cases where the testator subsequent to his will alienates the land devised, by his own act.
2. It does not appear that he means to state that a change in the nature of the estate possessed by the testator in consequence of supervening external events and not due to his own voluntary act or to a sale directed by a Court would have the effect of revoking the will. Mr. Seshagiri Ayyar refers also to a passage in 40 American Cyclopedia, page 1207, 'An involuntary conveyance of property previously devised also removes it from the operation of the will and has the effect of revoking the will to the extent of the property conveyed.' It is not clear that this passage goes further than that cited from Jarman, and that the involuntary conveyance referred to is meant to comprise anything more than a conveyance directed by a Court. He refers also to a note at page 1212 where reference is made to Long v. Aldred 3 Addams. Eccl.,48, in the following terms: 'Where a woman executed a will and then married and subsequently became a widow, her will, which was revoked by the marriage, was not revived by the death of her husband.' The passage is of no use to the appellant, for it only lays down that, when a will is revoked by an event which has that effect in law, a subsequent event which makes the testator again competent to make a will will not revive it. The revocation having taken effect, the will ceases to have any validity and the testator if he desires to dispose of his property by testament must execute a fresh will. The same rule applies where the revocation of a will is made by means of an instrument executed for the purpose. If such an instrument is itself subsequently revoked the revoked will would not thereby revive. Apart from the fact that the earlier English authorities do not seem to go to the extent contended for by Mr. Seshagiri Ayyar we do not think that the rule in question should be applied in this country on the ground that it embodies a general principle of law. In the first place, we cannot accept the argument that the sound rule of law with regard to wills is embodied in the earlier rule and not in the Wills Act. It is admitted that according to the latter, a will is to be understood as speaking at the death of the testator and its validity is to be determined accordingly. 1 Vict., e. 26, Section 23, says: 'No conveyance or other act made or done subsequently to the execution of a will of or relating to any Real or Personal Estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such Real or Personal Estate as the testator shall have power to dispose of by will at the time of his death.' The same principle applies to cases of conversion by operation of law, as, by an Act of Parliament or by an order for sale pronounced by a Court. The reason of the earlier rule was that a will was regarded as a conveyance speaking at the time of its execution but the disposition made thereby to come into effect after the death of the testator. See William's Real Property, page 242, 19th Edition. It was therefore held that, if the property ceased to belong to the testator subsequent to the will, it ceased in law to have any operation. The principle applicable' in this country is that adopted in the English Wills Act that a will has the same effect as if it were executed at the time of the testator's death [See Section 77 of the Succession Act which lays down the rule as to the interpretation of wills.]. Moreover, as pointed out in Subba Reddi v. Doraisami Bathen I.L.R. (1907) Mad. 369, the statutory law of wills here has not adopted the principle that a will should be deemed to be revoked in consequence of a change in the circumstances of the testator or a change with respect to his right to the property disposed of by the will (see Section 57 of the Indian Succession Act). 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 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. In the present case the change resulting by the birth of the son consisted in the conversion of the testator's absolute right in the property disposed of to the fluctuating right of a Hindu co-parcener in joint family property, But the fluctuation eventually resulted in his acquiring absolute estate again before his death. We see no reason for holding that this intermediate alteration in the character of his right in the property should render invalid a disposition which he could validly make, both when he executed the will and when the will came into operation in law. Section 4 of the Probate and Administration Act vests the property of a testator in his executor excepting that which would have passed by survivorship to some other person. The effect of the section is merely to prevent the vesting of the property, which the testator had no right to bequeath at the time of his death. Survivorship has the effect of rendering a will invalid only with respect to property which the testator could not dispose of at the time of his death. All other dispositions made by him are valid. Mr. Seshagiri Ayyar was not able to cite any decided case in respect of his contention. On the other hand, there is a dictum of the Allahabad High Court against him [Shib Sabitri Prasad v. The Collector of Meerut I.L.R. (1907) All. 82.] We hold that the will was not revoked by the subsequent birth of a son to the testator.
3. The next contention urged for the appellant is that the plaintiff is not entitled to the property before the death of the testator's widow. There is no substance in this contention. The will does not vest any estate in the widow. Her right under it is only to maintenance. The provision that the plaintiff should support the widow during her life-time and that, after her death, he should perform her funeral rites, and then take full possession of all the properties bequeathed to him means no more than that, during her life-time, the property should be subject to her right of maintenance. This is made perfectly clear by a later provision in the will.
4. The last contention raised is that inasmuch as the will provides that, in case a son or sons are born, certain specified properties and all other properties which the testator might subsequently acquire should go to him or them and inasmuch as a son was in fact born, the plaintiff has no right to any property to which the subsequently born son would have been entitled, if he had survived the testator. This argument is also baseless. The plaintiff is the residuary heir under the will, and is, therefore, entitled to all the property not validly disposed of in favour of any one else. The will does not divest the plaintiff of any properties in consequence of the birth of the son except of such as might in fact pass to such son. In the result we dismiss the Second Appeals with costs.