The main legal point established is the interpretation of the will and the application of S.106 and S.107 of the Indian Succession Act to determine the rights of the parties, as well as the principles of presumption of advancement and resulting trust in property partition cases.

Balakrishnan, J.

Defendants 1 and 2 in O.S.105 of 1982 on the file of Sub Court, Manjeri are the appellants. First respondent herein filed the suit ixir partition of the plaint schedule properties consisting of landed property, bank deposits and movable items. The suit was decreed in part. That is challenged in this appeal. The respondent had filed a cross objection against the decision of the court below so far as it is against his

contentions.

2. Plaintiff is the son of deceased Gopalakrishnan Nambiar through his first wife by name Narayani. Narayani died and thereafter Gopalakrishnan Nambiar married one Sarojini Amma and the first defendant is the daughter of Gopalakrishnan Nambiar through his second wife. Second defendant in the suit is the uncle and guardian of the first defendant. Gopalakrishnan Nambiar died on 24-3-1982. After the death of Gopalakrishnan Nambiar, plaintiff filed the suit alleging that the entire properties belonged to his father Gopalakrishnan Nambiar and he was entitled to get one-half share in the property. Defendants 1 and 2, the appellants herein contested the suit and alleged that Gopalakrishnan Nambiar had executed the will on 17-11-1971 and the plaintiff was aware of the will and he filed this suit only to harass the defendants. These appellants also contended that the plaintiff was having no right over the mo vable items and the bank deposits. These appellants further contended that defendants 3 and 4 were unnecessary parties as they were residing in the house only as tenants. After the filing of the written statement, plaintiff amended the plaint and contended that the will executed by deceased Gopalakrishnan Nambiar was not a true and genuine document and that the bequeath made in favour of minor daughter was not in favour of the first defendant but in favour of another child born to Gopalakrishnan Nambiar through the second wife. Court below framed several issues and found that the will executed by Gopalakrishnan Nambiar was a true and genuine document. It was held that the minor child'referred to in the will was none other than the first defendant. It was further held that by Ext. B3 will the legatees acquired right over the plaint schedule property as tenants in common and on the death of one of the legatees the rights reverted back to the testator and thus the plaintiff was entitled to 1/4 share over the plaint schedule immovable property.

3. Appellants herein contended that by Ext. B3 will the legatees acquired the property as joint tenants and, therefore, under S.106 of the Indian Succession Act on the death of one of the legatees before the death of testator the other legatee, namely, the first defendant became the full owner of the property. The contention of the appellants-is that by Ext. B3 will the legacy was given jointly to first appellant and deceased Sarojini Amma and on the death of Sarojini Amma it did not revert back to testator, but the first appellant Dakshayani stakes the whole legacy. First respondent-plaintiff disputes this proposition and contends that there was no joint tenancy but distinct shares were given to Sarojini Amma and Dakshayani and, therefore on the death of Sarojini Amma before the death of testator so much of the legacy granted to her reverted back to the testator and the first respondent was thus entitled to get share in the property.

4. The crucial question to be considered in this appeal is whether S.106 or 107 of the Indian Succession Act is applicable to the facts of this case. It is useful to extract Ss.106 and 107 of the Indian Succession Act:

"106. Legacy does not lapse if one of two joint legatees dies before testator.-If a

legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole."

107. Effect of words showing testator's intention to give distinctshare.- If alegacy is given to legatees in words which show that the testator intended to give them distinct shares of it, 'then, if any lega