IMPORTANT POINT
Death of legatee--Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the life time of the testator but any lineal descendant of his survives the testator, the bequest shall not lapse but shall take effect as if the death of the legatee had happened immediately after the death of the testator unless a contrary intention appears by the Will

1. The substantial question of law involved in this appeal is that "In case a Testator bequeaths his property jointly to two lineal descendants by way of a Will and if one of the legatees dies during the lifetime of the testator, whether the bequeathed property would be taken away by other surviving legatee in terms of Section 106 of the Indian Succession Act, 1925 , (in short, the Act) or if the legatee dies during the lifetime of the testator leaving behind his mother as Class-I heir and has no lineal descendant, should the mother take the share of that legatee in view of Section 109 of the Act and whether mother is a lineal descendant".

2. The facts first :

The appellant is the mother-in-law of respondent Bhupinder Kaur. Kartar Singh (since deceased) had two sons called Ujjagar Singh and Saudagar Singh. Ujjagar Singh had a wife Surjit Kaur and two sons Harinder Singh and Avtar Singh. Harinder Singh had a wife Bhupinder Kaur and a minor son Amritpal Singh, whereas Avtar Singh was Bachelor and issueless.

The pedigree table is as under :

cairph01.htm

3. Bhupinder Kaur filed the present suit for joint possession against Surjit Kaur alleging that the plaintiff is the widow of Harinder Singh. Kartar Singh, the original owner of the suit land executed a registered Will on 25-3-1987 in favour of his grandsons Harinder Singh and Avtar Singh. Avtar Singh was unmarried and had died issueless on 8-12-1993 and left no lineal descendant. Avtar Singh pre deceased Kartar Singh who died on 27-2-1994. Ujagar Singh died on 8-12-1992 and Harinder Singh died on 24-8-1998. It was claimed that the Will was executed jointly in the names of Avtar Singh and Harinder Singh and since Avtar Singh pre deceased Kartar Singh without leaving any lineal descendant, therefore, the entire estate of Kartar Singh bequeathed by way of Will dated 25-3-1987 devolved upon Harinder Singh. It was averred that Mutation No. 425 of village Bhagwantpur regarding the estate of said Kartar Singh was wrongly sanctioned in favour of Harinder Singh and Avtar Singh on 21-4-1994, though Avtar Singh had expired and had pre deceased Kartar Singh and on the basis of wrong entries in the revenue record on the basis of mutation No. 425 in favour of Avtar Singh, mutation No. 437 of the said village has been sanctioned in favour of Surjit Kaur regarding the estate of Avtar Singh. It was asserted that the plaintiff is the owner of the share recorded in the name of the defendant but on the basis of wrong entries in the revenue record, the defendant has started claiming her ownership over the suit land and is taking steps to alienate it.

4. On notice in the suit, defendant appeared and filed the written statement in which besides preliminary objections, it was averred on merits that the pedigree table has not been correctly depicted in the plaint since daughters of Kartar Singh have not been shown. It was alleged that the plaintiff has wrongly mentioned the date of death of Kartar Singh. It was further denied that after the death of Avtar Singh, who died unmarried and issueless, his property devolved upon his mother Smt. Surjit Kaur, therefore, mutation on that basis has been wrongly sanctioned in her favour.

5. On the pleadings of the parties, following issues were framed by the trial Court:

1. Whether the plaintiff is entitled to the joint possession as prayed for ? OPP

2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD

3. Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties ? OPD

4. Whether the suit of the plaintiff is estopped by her own act and conduct ? OPD

5. Whether the suit of the plaintiff is barred under Order 2, Rule 2, CPC? OPD

6. Relief:

6. The plaintiff examined Sher Singh as P.W. 1 and herself appeared into the witness box as P.W. 2, whereas the defendant examined Gurcharan Singh as D.W. 1 and Bhajan Singh as D.W. 2.

7. The learned trial Court dismissed the suit of the plaintiff, whereas the