1. One Kanakaraya by his will dated 15th July 18y7 gave cash, jewels and other moveable property to defendant 1, a lady who had been living with him as his wife; and to the husband of the plaintiff he devised a certain house. The testator died in 1914. It appears that after his death the plaintiff's husband as well as defendant 1 and her daughters continued to live in this house. The plaintiff's husband died in 1919, and in 1929 his widow, the present plaintiff, brought a suit to recover possession of this house as her husband's heir. The defence was that the house was the property of defendant 1, acquired by her with her own money, and that Kanakaraya had no power to dispose of it by his will. The lower appellate Court has found as a fact that the house was the self acquired property of defendant 1, but has held that she must be presumed to have made her election to take the legacy given her by the will and consequently to have affirmed the devise of the house in favour of the plaintiff's husband by that same will. The doctrine of election rests on the equitable rule that a beneficiary cannot both take against the will and claim its benefits. In Williams on Executors, Vol. 2, p. 977, Edn. 12, it is stated:
It is a principle of equity that a person who accepts a benefit under an instrument must adopt the whole, giving full effect to its provisions, and renouncing every right inconsistent with it. It follows that ' if a testator gives property by design or by mistake which is not his to give, and gives at the same time to the real owner of it other property, such real owner cannot take both.' In such a case the real owner is put to his election. He may elect to take either under or against the instrument.
2. This principle is embodied in Part 6, Succession Act. The amendment of that Act which subjects all wills made after 1st January 1927 to the provisions of Part 6 does not affect this will which was made very much anterior to that date. But being an equitable principle it is applicable to all wills notwithstanding that the provisions of Part 6 may not be in force : Mangal Das v. Ranchhod Das Bhavanidas (1890) 14 Bom 438.
3. In the plaint there is a distinct allegation that defendant 1 took the benefits given to her by the will, and I do not find that this allegation is denied in the written statement. The written statement says that the will was never acted upon; but this is an evasion and not a denial of the plaintiff's averment. It must, therefore, be taken to be admitted that defendant 1 did take the bequest made to her by the will. That being so, it has to be determined whether defendant 1 must be deemed to have made her election. It has been contended by Mr. Rajah Ayyar that there is nothing to show that defendant 1, who has been described as an illiterate woman, had knowledge of her right to elect; and acceptance of a benefit without knowledge of the right to elect will not make an election. But Section 188, Succession Act, provides that such knowledge shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the will without doing any act to express dissent. I have already said that Part 6 which contains Section 188 does not apply to this will But I think that the rule may be invoked as an equitable rule in this case. In fact I think it would be most inequitable after this very long lapse of time to draw any other inference than that defendant 1 has elected to affirm the will. It follows that she must be taken to have adopted the will in its entirety, including the disposition of the house in favour of the plaintiff's husband.
4. The result is that this appeal must be dismissed with costs. Leave to appeal is refused.