SHANTI Vs. BHAGWANI

JUDGEMENT

(1.) Whether the words 'any child' used is Section 109 of the Indian Succession Act, 1925 means "one child only" or it can mean "children" also, as the case may be, is the main point involved in this second appeal.

(2.) Raghunath had a wife, two sons and five daughters. He executed a will in favour of his sons Ishwar and Ram Kishan. Ram Kishan predeceased his father leaving his widow and a daughter. In 1977 Raghunath died. The widow, four daughters and children of the daughter of Raghunath filed the present suit to claim succession to the half share of the estate on the basis that since Ram Kishan legatee predeceased the testator that half share reverted to the estate of Raghunath under Section 107 of the Indian Succession Act, 1925 (hereinafter referred, to as 'the Act'), and, therefore, they were entitled to share in that half share in accordance with the Hindu Succession Act, 1956. The widow and daughter of Ram Kishan contested the suit and pleaded that Section 109 of the Act was applicable and not Section 107 of the Act. On this basis it was pleaded by them that the bequest made to Ram Kishan did not lapse and by fiction of law the same took effect as if the death of legatee happened immediately after the death of the testator. The plea of the defendants prevailed with both the Courts below and consequently the suit was dismissed. This is plaintiffs second appeal.

(3.) Shri P. S. Jain, Senior Advocate, appearing on behalf of the plaintiffs argued that Section 109 of the Act would apply only when bequest is made to a child or other lineal descendant of the testator, and in case bequest is made to two children or ho two lineal descendants then Section 109 of the Act. would not come into play and only Section 107 of the Act would be applicable. Unless legacy was made jointly in which case Section 106 of the Act would come into play. On this basis it is argued that Section 107 of the Act was applicable and since one of the legatees predeceased the testator so the share of that legatee would fall under the residue of the testator's property and succession had to be considered under the Hindu Succession Act, 1956.