1. The plaintiff in O.S.No.112 of 1989 and the defendants in O.S.No.129 of 1988 are the appellants. The appellants are brother and sister. The respondents are their brothers. The suit properties belonged to Mariamma Nadachi, the paternal grandmother of the appellants and respondents. According to respondents, she executed a will on 5.11.1986 marked as Ex.A2 bequeathing the properties in favour of the respondents. She died on 26.12.86. With a prayer to grant probate of the said will, the respondents filed O.P.No.68 of 1987. In view of the contest, it was numbered as O.S.No.129 of 1988.

2. The 1st appellant filed a suit in O.S.No.112 of 89 to divide the suit property on the basis that the property was given to his father Varuvel Nadar by Mariamma Nadachi under the settlement deed dated 17.9.1946, marked as Ex.A10. He has also defended the petition filed by the respondents for the purpose of granting probate. The respondents contested the suit for partition on the basis of the will in their favour marked as Ex.A2.

3. The trial court tried the both the suits jointly and delivered common judgment. The trial court found that the will, Ex.A2 dated 5.11.86 is valid and it would bind the appellants herein. While dealing with the genuineness of Ex.A2 executed by Mariamma Nadachi, the trial court found that Mariamma Nadachi had executed the will on her own will and with the good and disposing state of mind. On the basis that the will is valid, the trial court decreed the suit in O.S.No.129 of 1988 filed by the respondents and dismissed the suit for partition in O.S.No.112 of 1989 filed by the 1st appellant. Hence this C.M.A. and the Appeal Suit.

4. Thepoints for consideration in this Appeal and the Appeal Suit are:-

1) Whether the respondents have established the genuineness of the will as it has been disputed by the appellants?

(2) Is not the trial court committed error in not dealing with the case on the basis of Ex.A10 settlement deed dated 17.9.1946 executed by Mariamma Nadachi on the basis of which the appellants have filed the suit for partition.

5. Learned counsel for the appellants submitted that Mariamma Nadachi had already executed Ex.A10, dated 17.9.1946 settling the suit properties in the name of her son Varuvel Nadar, the father of the appellants and respondents herein. Varuvel Nadar died during the lifetime of Mariamma Nadachi and so by virtue of Sec. 109 of the Indian Succession Act, hereinafter called ‘the Act’, the heirs of Varuvel Nadar are entitled to get the properties equally and the respondents cannot rely on Ex.A2, the will execute d by Mariamma Nadachi claiming right in the suit properties, as no right can be derived under the said document.

6. Learned counsel for the respondents while answering this point, submitted that by executing the will under Ex.A2, Mariamma Nadachi had shown the contrary intention and so the appellants cannot rely on Sec. 109 of the Act to say that Ex.A10 did not lapse by the death of Varuvel Nadar.

7. Though the learned counsel for the appellants tried to submit that Ex.A10 is a settlement and by that Varuvel Nadar got right in the property even during the lifetime of Mariamma Nadachi, on perusal of Ex.A10, I am able to see that Varuvel Nadar could get the property only after the lifetime of his mother. Merely because of a restriction to sell the property by his mother during her lifetime, it cannot be said that she had passed on her right in favour of her son Varuvel Nadar even during her lifetime. So the said document can be construed only as a will in favour of Varuvel Nadar, bequeathing the properties in his favour by his mother, Mariamma Nadachi.

8. Now, we have to proceed to appreciate the scope of Sec. 109 of the Act with reference to the facts of the present case on the basis that Ex.A10 is a will.

9. Sec.109 of the Act reads as follows:-

“When bequest to testator’s child or lineal descendant does not lapse on his death in testator’s lifetime Where a bequest has be