Legatee if can accept and reject the same instrument.

Thangamani, J.

The appellant is the plaintiff in the trial court. Defendants 1 and 2 are his brothers. They are the sons of one Sankiah Pillai and Chithirathammal. While the third defendant is the wife of the first defendant, the fourth defendant is the wife of the second defendant.

Door No.2 in Ramu Pillai Lane, South Veli Street, Madurai, described as item 1 in ‘A’ schedule appended to the written statement of the first defendant originally belonged to the mother of Sankiah Pillai. On the death of his mother Sankiah Pillai became exclusively entitled to this house as his separate property. He was also assigned an extent of .5 cents in Maruthur village. Sankiah Pillai bequeathed these two items in favour of the appellant by his Will Ex.A-1, dated 210. 1966. The appellant claims that on the death of Sankiah Pillai on 29.121973, he became the exclusive owner of these properties. By the same Will Sankiah Pillai purported to bequeath ‘A’ schedule buildings and ‘B’ schedule lands and ‘C’ schedule nanja land described in the plaint. The appellant instituted O.S.No.213 of 1979 on the file of learned Subordinate Judge of Madurai for partition and separate possession of his 1/3 share in the abovesaid A, B and C schedule items and the items specified in Schedules D, E, F, G and H in the plaint. His claim was on the basis that A and B schedules are the family ancestral properties. The ‘C’ schedule property originally belonged to Chithirathammal, the wife of Sankiah Pillai. And on her death on 13. 1978 it devolved on the appellant and defendants 1 and 2 who are her heirs. Plaint D and E schedule are house property and vacant site in Survey No.44/5 of Thirumalai Nagar Colony. Plaint ‘F’ schedule items are vessels while ‘G’ schedule are furniture, garments and other articles. Plaint ‘H’ schedule are jewels. Alleging that Sankiah Pillai had no right to dispose of plaint A, B and C schedule properties under Ex.A-1 Will, the appellant ignored the provisions of the Will regarding these items and claimed his 1/3 share therein. However, he did not include Door No.2. Ramu Pillai lane and the 5 cents plot referred to above and described as items 1 and 4 respectively in ‘A’ schedule to the written statement of the first defendant. He omitted to include them in any of the plaint schedules.

2. Defendants 1 to 4 contended that plaint D and E schedules are the separate properties of defendants 3 and 4 respectively. All the items described in F, G and H schedules are not available. Out of items 1 to 44 specified in ‘F schedule, only 18 items are in existence. Of the silver articles, item 45 alone is available, and items 46 and 47 are not at all in existence. In ‘G’ schedule, items 1 to 3,13, 14 and 15 are not in existence. The other items are available only in Door No.50, one of the family houses where the appellant himself is residing. In ‘H’ schedule jewels items 1 to 11 are not in existence. Items 12 to 15 weigh only 33 1/2 sovereigns. The first defendant has paid Court Fees and prayed for the allotment of his share and the share of his brothers.

3. Their main contention is that the appellant cannot approbate and reprobate at the same time regarding the terms of the Will. He cannot be allowed to avail the portion which is beneficial to him and repudiate those which are against him. The trial Court held that the appellant must be deemed to have repudiated Ex.A-1 Will and that Sankiah Pillai died intestate. It also found that plaint D and E schedule items are the separate properties of defendants 3 and 4 respectively. Regarding plaint schedules F, G and H, items specified in schedules B, C and D appended to the written statement of the first defendant alone are available. It also held that the lands and buildings mentioned in ‘A’ schedule to the written statement including Door No.2 Ramu Pillai Lane and the 5 cents of nanja land at Maruthur village are available for partition. Accordingly, the preliminary decree for partition and separate