The central legal point established in the judgment is the application of Sections 105 and 106 of the Indian Succession Act in determining the devolution of property rights under a will.

ORDER

1. Petitioner / defendent No.1 challenging the order dated 29/10/2021 passed by learned IV Additional District Judge, Rewa in MCA No.28/2021 in this petition under Article 227 of the Constitution of India on the ground that the Court below has committed an error in accepting the appeal under Order 43 Rule 1 of the CPC and directing the defendant No.1 by way of temporary injunction that neither they shall cause any interference in the possession of the appellants therein i.e. plaintiffs nor shall cause any interference through anybody else.

2. The only issue involved in this Miscellaneous Appeal is that Chiddi author of the will executed the will on 27/08/2014 in favour of one Ramkalesh and Babua. Ramkalesh died on 30/01/2017 during the lifetime of Chiddi.

Thereafter, Chiddi executed the registered will only in favour of Babua. This registered will is the bone of contention.

3. However, it is an admitted fact and accepted by the learned 1st Appellate Court that Ramkalesh died on 30/01/2017 prior to death of Chiddi.

4. Thus, the issue which emerges for decision is whether the 1st Appellate Court was justified in granting injunction and directing respondent Babua to hand over possession of 50% of the property in question in favour of legal heirs of Ramkalesh or not ?

There is lack of requisite assistance from the arguing counsel on the other side.

5. None of them have brought any book or law journal in support of their case.

6. Issue involved is that when a testator of Will is alive and during his / her lifetime the beneficiary dies, then what will be the impact of such event and whether legacy will lapse or not.

7. Section 105(1) of the Indian Succession Act, 1925 provides that if the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the Will that the testator intended that it should go to some other person.

8. Sub-Section (2) of the Section 105 of the Indian Succession Act provides that in order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.

9. Section 106 of the Indian Succession Act further provides that legacy does not lapse if one of two joint legatees die before testator. It reads that "if a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole".

10. Thus, when facts of the present case are examined that Ramkalesh Yadav from whom the plaintiffs are claiming their rights admittedly died on 30/01/2017, while the testator Chhiddi died after him, in terms of provision contained in Section 105 & 106 of the Indian Succession Act, it cannot be said that any right had devolved in the property of Chhiddi in favour of the plaintiffs on the strength of a Will during the life time of the testator.

11. Thus, first Appellate Court erred in passing the impugned order and at best it could have directed the defendants herein or the petitioners therein to preserve the suit property and not to create any third party right instead of directing them to not to interfere in half of the suit property.

12. In view of such facts impugned order cannot be given a seal of approval as mutation alone does not give rise to any title. Accordingly, impugned order is modified and it is directed that petitioner shall not cause any third party interest in the suit property during the pendency of the suit and with this direction and in terms of the settled legal position discussed above as is contained in Section 105 & 106 of the Indian Succession Act this petition is disposed of.