A legacy vests in interest in the legatee on the testator's death unless a contrary intention appears by the will.

Raj Kishore Prasad, J.

1. This appeal, by the plaintiff, from a judgment of affirmance, involves the interpretation of the will, Ext. 2.

2. The circumstances, leading up to the present appeal, are these. The admitted pedigree, of the deceased testator, Churaman is as below:-

-

Churaman

D.1927

Wives

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__________________________________

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Murti Kuer died issueless Lilo Kuer died

on 17-5-1928 on 3-7-1958

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__________________________

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daughter son

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_________________________ |

| | Deonarain

Jageshwar Kuer Kapuri Kuer D.1914

D.1942 Plff. W=Radhe

| Kuer D.1948

___________________

| |

Deft.1. Deft.2.

3 Churaman Manto executed a will on the 1st July, 1918, (Ext. 2), in favour of his two wives, Murti Kuer and, Lilo Kuer, and, his widowed daughter-in-law, Radhe Kuer, and his two daughters. It is admitted, by both sides that Churarpan, by his said will, gave a life-interest to them and an absolute interest to his two daughters--Jageshwar Kuer and Kapuri Kuer born from his second wife, Lilo Kuer. Churaman died in 1927 and, thereafter, his first widow, Murti, also died in 1928. Deonarain, the only son of Churaman, from his second wife, Lilo Kuer, had predeceased him, having died before the will, in 1914, leaving behind his widow, Radhe Kuer.

4. Lilo Kuer applied for a probate in respect of the said will and she was granted a probate and Letters of Administration on 2-2-29, After the probate, Jageshwar Kuer, one of the two daughters of Churaman and mother of defendants I and 2, died in 1942. Radhe Kuer died in 1948, and, thereafter, Lilo Kuer also died on 3-7-56, leaving behind her daughter, Kapuri Kuer, the plaintiff, and, defendants 1 and 2, the two sons of her predeceased daughter, Jageshwar Kuer.

5. After the death of Lilo, the properties of Churaman, which were then in her possession, came in possession of the plaintiff and defendants 1 and 2. Defendants 1 and 2 thereafter, made certain alienations in favour of defendants 3 to 6.

6. There is no dispute regarding the moity share of the plaintiff in the estate of Churaman. The only dispute, in the Suit, as well as in the appeal, is with respect to the remaining moiety share in the estate of Churaman. The plaintiff claimed that, as Jageshwar Kuer, her sister, had died in the lifetime of her mother, Lilo Kuer, and that at the time of her death, she alone was the sole surviving legatee under the will, the entire estate of Churaman vested in her, and, therefore, she way entitled to the remaining halt share also owned and possessed by defendants 1 and 2 in the estate of Churaman. The plaintiff, therefore, brought the present suit in 1957 for a declaration of her title to the remaining half share in the properties in suit which were claimed by defendants 1 and 2, and for a further declaration that the alienation made by defendants 1 and 2 in favour of defendants 3 to 9 were null and void and not binding on her.

7. The suit wag contested by defendants 1 and 2 on the ground that both the daughters, Jageshwar Kuer and Kapuri Kuer, got a vested interest in them on the testators death, and that possession alone was postponed, and, therefore, even if Jageshwar Kuer was dead at the time of the death of Lilo Kuer, defendants 1 and 2, being her sons and representatives were entitled t