Section 109 of the Indian Succession Act, 1925 applies to a will in favor of any child or children of the testator or in favor of other lineal descendant or descendants of the testator, and such child or children shall be deemed to have died immediately after the death of the testator.

1. Whether the words any child used in Section 109 of the Indian Succession Act, 1925 means "one child only" or it can mean "children" also, as the case may be, is the main point involved in this second appeal.

2. Raghunath had a wife, two sons and five daughters. He executed a will in favour of his sons Ishwar and Ram Kishan. Ram Kishan predeceased his father leaving his widow and a daughter. In 1977 Raghunath died. The widow, four daughters and children of 5th daughter of Raghunath filed the present suit to claim succession to the half share of the estate on the basis that since Ram Kishan legatee predeceased the testator that half share reverted to the estate of Raghunath under Section 107 of the Indian Succession Act, 1925 (hereinafter referred to as the Act ) and, therefore, they were entitled to share in that half share in accordance with the Hindu Succession Act, 1956. The widow and daughter of Ram Kishan contested the suit and pleaded that Section 109 of the Act applicable and not Section 107 of the Act. On this basis it was pleaded by them that the bequest made to Ram Kishan did not lapse and by fiction of the same took effect as if the death of legatee happened immediately after death of the testator. The plea of the defendants prevailed with both the Courts below and consequently the suit was dismissed. This is plaintiffs second appeal.

3. Shri P.S. Jain, Senior Advocate, appearing on behalf of the plaintiffs argued that Section 109 of the Act would apply only when bequest is made to a child or other lineal descendant of the testator, and in case bequest is made to two children or to two lineal descendants Section 109 of the Act would not come into play and only Section 107 of Act would be applicable. Unless legacy was made jointly in which case section 106 of the Act would come into play. On this basis it is argued that Section 107 of the Act was applicable and since one of the legatees predeceased the testator so the share of that legatee would fall under the residue of the testator s property and succession had to be considered under the Hindu Succession, Act, 1956.

4. Controverting the argument, Shri U.D. Gaur, Advocate argued that Section 109 of the Act is an exception to Sections 105 to 108 of the Act, inasmuch as Section 109 of the Act would apply whenever a testament is made in favour of any child or children of the testator or lineal descendant or descendants of the testator or both of them, whereas in case the legatees are other than the child or lineal descendants of the testator, then provisions of Secs. 105 to 108 of the Act would apply. He further urged that in interpreting Section 109 of the Act singular would include plural on the basis of the provision contained in general Clauses Act unless the intention to the contrary is found in the section which is not there. He further contended that the words any child clearly indicate that the testament should not be to any one of the children but to any child , meaning thereby it may be to more than one child or to all the children.

5. After hearing the learned counsel for the parties, I am of the view that the Courts below correctly applied Section 109 of the Act to the facts of the present case.

6. Smt. Gita Devi V/s. Smt. Munder Devi, AIR 1980 All 372, is the only reported judgment which has been brought to my notice on the point involved in this appeal. In this case the will was made in favour of two daughters, one of whom predeceased the testator but left an issue. On those facts it was held by Banerji, J., that Section 109 of the Act was applicable and not Section 107 of the Act and by fiction of law it was deemed that the daughter died immediately after the death of the testator and in this manner the bequest regarding the daughter who predeceased her father was not allowed to lapse and the benefit of the same was given to the descendants of the predeceased daughter. The reasons for doing so are contained in paras 15 to 18 of the judgment wit