Section 109 of the Succession Act is a specific provision that applies to gifts in favor of children of the testator who die in the lifetime of the testator leaving an issue. Section 107, which applies to gifts to legatees with distinct shares, is not applicable in such cases.

( 1 ) THIS is a second appeal by the plaintiff-appellant. It raises a very interesting question under the Succession Act.

( 2 ) THE question is whether the daughter of a legatee who dies in the lifetime of the testatrix succeeds to the legacy when the will gave the estate to two daughters of the testatrix equally. The contention on behalf of the appellant is that she succeeds to the legacy of her deceased mother in view of the provisions of Section 109 of the Indian Succession Act, hereinafter referred to as the act. Learned counsel for the respondent con tended that the provisions of Section 107 of the Act would be applicable because under the will the properties of the de ceased testatrix were bequeathed to the two daughters equally. The trial court as well as the lower appellate court both have taken the view that the appellant does not succeed to the legacy. The lower appellate court has based its conclusion on the use of the expression "legacy" and "any child" in Section 109 to mean one legatee and one child. Learned counsel for the parties have argued the case more or less on the first impression and have stated that they have not been able to lay their hand on any decided case on the point.

( 3 ) THE point is not free from difficulty and there is no clear pronouncement cither way. It may be stated here that the provisions of Sec, 109 of the Act are based on Section 33 of the English wills Act of 1837. It will, therefore, be necessary to refer to some English cases and to halsburys Laws of England and Jerman on Wills as well.

( 4 ) IN order to appreciate the provisions of Sections 107 and 109 of the Act in true prospect it may be relevant to refer to Section 105 of the Act for it is well settled that Section 109 is an exception to the provisions of Section 105. It reads as follows:

"105 (1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testators property unless it appears by the will that the testator intended that it should go to some other person. (2) In order to entitle the representative of the legatee to receive the legacy, it must be proved that he survived the testator. "

This provision lays down in what case the legacy lapses. The principle laid down by the provisions of this section is that unless the legatee survives the testator the legacy is extinguished. Neither can the executors nor the administrators of the legatee can demand the legacy. The will does not take effect until the death of the testator and the will cannot communicate any benefit to persons who die before the death of the testator. Where a testator bequeathed his whole property to his brother and expressly directed that neither his widow nor his daughter would take any share of his property the death of the brother during the lifetime of the testator led to the position that the testator had died intestate. See Erosha v. Jerbai ( (1880)ILR 4 Bom 537 ). The position would be different if the testator intended that it should go to some other person in the event of the death of the legatee. The Illustration (iii) to Section 105 makes the position clear. The Illustration (iii) is-"a legacy is given to A, and, in case of his dying before the testator, to B. A dies before the testator. The legacy goes to B. "

( 5 ) THE provisions of Section 96 of the Act permit a testator to make a bequest in the alternative. Illustration (iii) to this section is similar to the Illustration (iii) of Section 105. It is also well settled that it will not be enough if the testator merely expresses his desire that the legacy should not lapse, but he must indicate clearly that in the event of the death of the original legatee it would go to another legatee.

( 6 ) SECTION 106 of the Act is also relevant. It reads as follows:-

"106. If a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole, it will be noticed that Secti