KARNAIL SINGH Vs. MOHINDER KAUR

JUDGEMENT

(1.) "Does the legacy qua the deceased legatee lapse, if the legatee or one of the legates, if there be more than one legatees dies issueless, during the lifetime of the testator?" is the substantial question of law which has arisen in the present Regular Second Appeal.

(2.) Gajjan Singh was the owner in possession of land measuring 85 Kanals 6 Marias situated in Village Manakwal, Tehsil and District Ludhiana as detailed in the head note of the plaint. He executed the Will on 4-10-1963 in favour of his three sons, namely, Karnail Singh, Malkeet Singh and Ajit Singh. Ajit Singh died on 17-1-1973. He left behind Mohinder Kaur his widow as the sole surviving legal heir. Gajjan Singh (hereinafter referred to as "the testator") died on 26-10-1975. All the three sons were said to be joint legatees under the will. Karnail Singh and Malkeet Singh (hereinafter referred to as "the plaintiffs") filed the present suit for permanent injunction restraining the defendants from alienating in any manner the suit land. The trial Court dismissed the suit. Aggrieved against the judgment of the trial Court, the plaintiffs filed appeal in the Court of O.P. Dharwal, Addl. District Judge, Ludhiana, which was also dismissed. Thus, the plaintiffs have filed the present Regular Second Appeal challenging the judgment of both the Courts below.

(3.) It was argued before both the Courts below that the present case is covered either by Section 106 or by Section 107 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act"). It was submitted that by virtue of Section 106 of the Act, the entire estate of the testator will devolve upon the plaintiffs because no specific share has been mentioned in the Will. In the alternative, it was submitted that even under Section 107 of the Act only l/3rd share of the estate shall fall into the residue of the estate of the testator. In that event, the plaintiffs as well as the defendants will be entitled to I/18th share each of the estate of the testator. On the other hand, it was argued that under Section 109 of the Act. the legacy of the pre-deceased son would be inherited by the widow-defendant No. 1. Both the Courts below have accepted the submissions made on behalf of the defendants.