The main legal point established in the judgment is the interpretation of Sec. 109 of the Indian Succession Act and the residuary clause in the will, which influenced the court's decision on the validity of the will and the entitlement to properties and fixed deposits.

VISWANATHA IYER, J. :- Appellant herein filed the suit for partition and separate possession of his 1/6th share in the plaint schedule properties. These properties admittedly belonged to one Kunkan Adiyodi, who died on March 2, 1977 at the age of about 92. Kunkan Adiyodi had four sons, namely the plaintiff, defendants 1 and 2 and one Padmanabhan Nambiar who was dead prior to the filing of the suit, and whose heirs at law are defendants 10 to 16. Kunkan Adiyodi had also two daughters, namely the 3rd defendant and one Madhavi Amma who was also dead before the filing of the suit and whose heirs are defendants 4 to 9. Plaintiff claimed 1/6th share in the properties which belonged to Kunkan Adiyodi as if he died intestate.

2. The 1st defendant, the 2nd defendant, the 3rd defendant and defendants 4 to 9 filed separate written statements contending that the plaint schedule properties were not partible as claimed by the plaintiff, inasmuch as Kunkan Adiyodi had executed a will on January 6, 1971, a registration copy of which was produced and marked as Ext. B3 in the suit, and that the properties had devolved on the various parties as per the terms of the will. Plaintiff had right only over the property described in Schedule C to the will, namely item No. 8 in the schedule to the plaint and therefore he was not entitled to any share over the other properties.

3. The fact that Ext. B3 will contain the signature of Kunkan Adiyodi is not in dispute. What was contended by the plaintiff in the lower Court and which was repeated before us was that Kunkan Adiyodi was not in a sound disposing state of mind at the time when Ext. B3 was executed and that, therefore, Ext. B3 should be eschewed from consideration.

4. As per Ext. B3, Kunkan Adiyodi had bequeathed the properties belonging to him, described in the A schedule, to Madhavi Amma, in B schedule to the 3rd defendant, in C schedule (which happens to be the residential house) to all the children including the plaintiff, in the D schedule and the amount due under decrees, investments or otherwise, to the first defendant and in the E schedule to a niece of his, namely, Devaki Amma. It is pertinent to note that despite being a legatee under the will, the plaintiff did not choose to make Devaki Amma a party to the suit though any decision in his favour regarding the validity of the Will will adversely affect the interests of Devaki Amma.

5. At the time of his death, Kunkan Adiyodi owned the immovable properties described in the plaint. There were also fixed deposits aggregating Rs. 60,000/- in his name in the State Bank of India and in the Corporation Bank. It was the contention of the first defendant that these fixed deposits have been bequeathed to him as a residuary legatee. Plaintiff's contention in regard to these fixed deposits was that the bequest to the first defendant was only of amounts receivable by Kunkan Adiyodi under decrees and investments and therefore the fixed deposits were not part of the bequest to the first defendant.

6. Madhavi Amma, the predecessor of defendants 4 to 9, to whom the properties described in A schedule to the will had been bequeathed, had pre-deceased the testator. Accordingly and based on S.109 of the Indian Succession Act XXXIX of 1925, the heirs of Madhavi Amma, namely, defendants 4 to 9 claimed to be entitled to the said properties.

7. The lower Court held that Ext. B3 will had been executed by Kunkan Adiyodi while in a sound disposing state of mind, that its execution has

been proved beyond doubt and that it was the last will and testament of Kunkan Adiyodi. The properties were thus held to have devolved on the parties in accordance with the directions contained therein. The lower Court also upheld the plea of defendants 4 to 9 of being entitled to the properties described in the A schedule to the will under Sec. 109 of the Indian Succession Act. The Court also held that the fixed deposits of Rs. 60,000/- devolved on the first defendant under the lega