GITA DEVI Vs. MUNDER DEVI

JUDGEMENT

(1.) This is a second appeal by the plaintiff-appellant. It raises a very interesting question under the Succession Act.

(2.) The question is whether the daughter of a legatee who dies in the lifetime of the testatrix succeeds to the legacy when the will gave the estate to two daughters of the testatrix equally. The contention on behalf of the appellant is that she succeeds to the legacy of her deceased mother in view of the provisions of Section 109 of the Indian Succession Act, hereinafter referred to as the Act. Learned counsel for the respondent con tended that the provisions of Section 107 of the Act would be applicable because under the will the properties of the de ceased testatrix were bequeathed to the two daughters equally. The trial court as well as the lower appellate court both have taken the view that the appellant does not succeed to the legacy. The lower appellate court has based its conclusion on the use of the expression "legacy" and "any child" in Section 109 to mean one legatee and one child. Learned counsel for the parties have argued the case more or less on the first impression and have stated that they have not been able to lay their hand on any decided case on the point.

(3.) The point is not free from difficulty and there is no clear pronouncement cither way. It may be stated here that the provisions of Sec, 109 of the Act are based on Section 33 of the English Wills Act of 1837. It will, therefore, be necessary to refer to some English cases and to Halsbury's Laws of England and Jerman on Wills as well.