JUDGMENT :- The 6th defendant in O. S. No. 14 of 1958 on the file of the Munsiff's Court, Chowghat is the appellant.

2. The 1st respondent herein filed the aforesaid suit for partition and separate possession of a half share in plaint schedule items 1 to 5 inclusive of the house situated in item No. 1 and for recovery of possession of plaint items 14 to 16 as belonging to him exclusively. The 6th defendant resisted the suit in so far as it relates to plaint item No. 1 and the building situated therein on the ground that the property had been validly assigned to him under a sale deed, Ext. B-2 executed in his favour by the plaintiff's mother Annamma acting for herself and as guardian of the plaintiff who was then a minor, and by the plaintiff's brother the 2nd defendant who was a major. The Courts below negatived the contentions of the 6th defendant and granted the plaintiff a decree as prayed for. Hence this appeal by the 6th defendant.

3. The plaintiff and defendants 1 to 5 are the children of one Kunhu Vareed by his wife Annamma. The plaint schedule properties admittedly belonged to Kunhu Vareed. He died on 19-3-1943 leaving a registered will evidenced by Ext. B-1 dated 9-4-1942. The main controversy between the parties is in regard to the interpretation of the provisions contained in this will. It is provided under the will that should Annamma survive the testator she should keep possession of all the properties and enjoy them with full rights and that after her death the properties should go to the testator's children in absolute rights in accordance with the allotment of properties made in the will whereby specific items have been separately earmarked for each of the children. The will contains three schedules of which the A schedule consists of 19 items of immovable properties owned by the testator, the B schedule of 3 items of outstandings which the testator had to realise from others and the C schedule mentions one item of debt due by the testator which stood charged on item No. 10 in the A schedule. It is not necessary for the purpose of this second appeal to go into the details of the allotment of immovable properties made under the will as amongst the testator's children.

4. After the death of Kunhu Vareed his widow Annamma and the three sons, viz., the plaintiff and defendants 1 and 2, entered into a partition with respect to items 1 to 16 in the A schedule mentioned in the will. This was apparently done on the basis that Annamma having survived the testator, she obtained absolute rights in all the properties under the will and that the provisions of the will regarding the division of the properties amongst the children would be operative only in the event of Annamma predeceasing the testator. The plaintiff was a minor at the time of this partition and the document was executed on his behalf by Annamma acting as his guardian. It is subsequent to the aforesaid partition and on the strength of the allotment made thereunder that plaint item No. 1 was assigned to the 6th defendant by the 2nd defendant and Annamma, the latter acting as guardian of the plaintiff. The plaintiff's contention is that under the will Annamma got only a life-estate and there was a gift over of all the properties in favour of the children, specific items being set apart separately to each of them. The partition as well as the assignment Ext. B-2 entered into during the plaintiff's minority were, therefore, contended to be invalid as against the plaintiff. The 6th defendant, on the other hand, contended that an absolute estate was created in favour of Annamma in respect of all the properties in the event of her surviving her husband and that no vested interest was created in favour of the children under the will excepting on the happening of the contingency of Annamma predeceasing her husband. The Courts below have upheld the plaintiff's contention and rejected the defendant's plea that Annamma got an absolute estate.

5. The learned counsel for the

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