JUDGMENT A. Banerji, J.
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 Halsbury's 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 testator's 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 Section 106 is an exception to the Rule embodied in Section 105. If the legacy is given to two persons jointly, then it would not lapse on the death of one of them. In the case of the death of one of the legatees the other legatee takes the entire. The basis of this rule is the concept of joint tenancy between the legatees.
7. Section 107 is another exception to Section 105, but is different from Section 106. Section 107 reads as under:--
"107. If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property."
It will be relevant to quote the Illustration also.
"Illustration.--A sum of money is bequeathed to A, B and C, to be equally divided amongst them. A dies before the testator. B and C will only take so much as they would have had if A had survived the testator."
The provisions of this section make it clear that where the legacy is given to two legatees with distinct shares to each and one of the legatees dies before the testators, then the share which was intended to be given to the deceased legatee, will not go to the remaining legatee or legatees but will lapse and go to the share of the testator. That share will then be treated as intestate and the heirs will succeed to it in accordance with law. The principle on which this section is founded is the application of the rule of tenant-in-common. The distinction between "Joint tenants" and "Tenant-in-common" has been aptly put by Mulla in his Transfer of Property Act, 6th Edition at page 222 in the following words:--
"Joint tenancy connotes unity of title, possession, interest and commencement of title, in a tenancy in common, there may be unity of possession and co-commencement of title but the other two features would be absent."
Thus the distinction between Section 106 and Section 107 is clear. Section 106 proceeds treating the legatees on the principle of joint tenancy and the provisions of Section 107 proceed on the principle of tenancy-in-common.
8. Section 108 provides that where a share which lapses is a part of the general residue bequeathed by the will, that share shall go as undisposed of. That share will devolve on the heirs in accordance with law.
9. I then come to Section 109 which is another exception to the rule propounded in Section 105. It reads as follows---
"109. Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime 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."
It will be relevant to quote the illustration appearing under this section.
"Illustration.-- A makes his will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. B died before A, leaving a son, C, who survives A, and having made his will whereby he bequeaths all his property to his widow, D. The money goes to D."
The provision of this section is based on Section 33 of the English Wills Act, 1837. The purport of this section is to introduce a fiction that the original legatee survives till after the death of the testator so that the gift which is intended for him does not lapse. The will in such a case does not fail. A reference may be made to Jarman on Wills on this point. Reference may be made to p. 440 of the 8th Edition of the Book "A Treatise on Wills."
"A declartion by a testator that if a legatee shall predecease the testator leaving issue living at the testator's death the share shall not lapse but shall take effect as if the legatee had died immediately after the testator, is sufficient to make the legacy pass to the legatees personal representating as part of his personal estate." Again on page 450 it is stated.
"If a testator gives property to all his children living at his death and any of the children who may die in his lifetime leaving issue living at his death, this operates under Section 33 of the Wills Act, so that the share of a child dying before the testator and leaving issue, forms part of that child's estate. But as Section 33 only applies to gifts to the testator's own issue, a gift to the children of another person who dies in the testator's lifetime leaving issue is nugatory; those children who survive the testator take as a class under the gift. And the issue of a deceased child takes nothing by implication."
10. On p. 466 Jarman then considered the question whether a child who is not yet born, but is in the womb would succeed to his father's interest, where the father dies in the lifetime of his father the testator, Jarman then observed:
"The effect of the section is to prolong the life of the original devisee or legatee by a fiction for a particular purpose; that purpose is to give effect to the will in which the gift which would otherwise lapse occurs, and it only be given."
11. In Halsbury's Laws of England, III Edition, Vol. 39 p. 941 paragraph 1424 the rule contained in Section 33 of the English Wills Act, 1837 has been enunciated. It has been succinctly stated in the following words:--
"This rule is applicable in the case of a gift to a child dead at the date of the will, or where the issue surviving the testator was not living at the death of the devisee or legatee. The gift must, however, be to the legatee as a persona designata. The rule is not applicable where the gift is to a class not ascertainable until the death of the testator, even where there happens to be only one member of the class nor is it applicable to the lapse of a gift in joint tenancy where both the donees predecease the testator and one or both leave issue."
12. The exposition of the law, as seen above, does clarify the position. Jarman's observation on p. 450 of his book, refers to the testator giving his property to all his children and any of the children who may die in his lifetime leaving an issue is not deprived of his share. Children of the testator who are named as legatees form a distinct class and the provisions of Section 33 of the Wills Act, 1837 save their interest in favour of their issue or issues even though they may have died in the lifetime of the testator. The case law referred to in Jarman on Wills and Halsbury's Laws of England are in respect of gifts in favour of one child only and who predeceased the testator leaving an issue. Such cases do not lend any assistance.
13. The position in the present second appeal is slightly different. The position is that the testator left behind two daughters and both were to take equally. One of them died in the lifetime of the testator leaving an issue. The question is whether that issue would succeed to the share of her deceased mother on the footing that the legacy was saved in view of the provisions of Section 109 of the Act. It has been seen above, that Section 107 indicates that where a legacy is given to legatees with distinct shares, and one of the legatees died before the testator, then the share of that legatee would fall into the residue of the testator's property. Section 107 is general in its application and the use of the expression "legatees" there applies to any two legatees or more. It will be seen that Section 107 makes no reference to the testator's child or children. This section also does not say anything where the legatee has left behind an issue. That question does not arise under Section 107. Therefore, it may be inferred that Section 107 speaks of a situation when the testator has bequeathed his property in favour of two or more legatees who may or may not be his or her children but indicating their distinct shares in the property. In such an event the legatee who dies his or her share goes back to the pool of the testator. Section 109 on the other hand, is a very specific provision. It takes care to save the property for the child of a deceased legatee who is a child of the testator. The primary consideration is that the legacy must not lapse, where the legatee who is the child of the testator dies in the lifetime of the testator leaving behind an issue. The emphasis is that the legatee must be an offspring of the testator. In other words, the emphasis on Section 109 is that the legatee must be a child of the testator. This is that distinguishes this section from Section 107. Once it is shown that the gift is in favour of a person or persons who come within the meaning of the word "child" of the testator and such a child dies in the lifetime of the testator leaving an issue the requirement of Section 109 is fulfilled. It was argued that Section 107 makes no such provision. This is correct for Section 107 is not confined to a gift in favour of the child of the testator. Section 107 envisages a gift in favour of any two or more persons, not necessarily the children of the testator. Consequently, the provision which has been engrafted in Section 109 could not be provided in Section 107.
14. It is well settled that when there is a specific provision it excludes the general provision. Section 107 would he the general provision and Section 109 would be the special provision. Consequently, where the major element of Section 109 is present, the principles embodied in Section 107 cannot be made applicable.
15. What will be the position if the testator instead of leaving one child as the legatee leaves two or more children as legatees? This is one of the principal questions in this case. Will the case come under Section 109 or must it necessarily fall, under Section 107? The lower appellate court has decided the question on the use of the word "legatee" in singular and giving the meaning of the words "any child"
as only "child". It would be grammatically incorrect to use the expression 'legatees' in Section 109 where earlier the expression "any child" has been used. The words "any child" do not, in my opinion restrict to only one child. The word 'any' is not restricted in its meaning as only.
This expression is wide enough to take in its fold more than one child. The word 'any' has been defined as 'indefinite numeral adjective' and also as "one indefinitely", "some; whichever, no matter which". It is, therefore, clear that it does not denote any particular number.
16. The words 'any one' have come up for consideration of the Supreme Court in AIR 1961 SC 838, Chief Inspector of Mines v. K.C. Thapar and also in Banwarilal v. State of Bihar (AIR 1961 SC 849). Their Lordships were considering the meaning of the expression 'any one of the directors' used in Section 76 of the Mines Act, 1952. Two possible interpretations were canvassed. One meaning "one only it matters not which one", and the other "every one of the director". Their Lordships chose the latter. Reference was made to the expression 'any one' in common conversation, literature and thereafter to Oxford English Dictionary. It is permissible and indeed profitable to turn in this connection to the Oxford English Dictionary at p. 378 of which, we find the meaning of 'any' given thus: 'In affirmative sentences, it asserts, concerning a being or thing at the sort named, without limitation as to which, and thus collectively of everyone of them'. One of the illustrations given is "I challenge anyone to contradict my assertions". Certainly, this does not mean that only one is challenged but that 'anyone' is not infrequently used to mean 'every one'. Reference was also made to the English case Isle of Wight Rly. Co. v. Tahourdin, (1883) 25 Ch D 320 where the expression 'any of the present directors' included all who were directors then. "Any", Lord Cotton L.J. pointed out would involve 'all'.
17. The principle to be followed was laid down in the following words:--
"Which of these two meanings was intended by the legislature in any particular statutory phrase has to be decided by the courts on a consideration of the context in which the words appear, and in particular, the scheme and object of the legislation."
18. Their Lordships were of the view that the expression 'any one of the directors' meant,--'every one of the directors'. This decision lends considerable support to the interpretation of the words 'any child' in Section 109 of the Act. It will, therefore, not be correct to hold that the word "any" in Section 109 means only one child and no more. The argument of the learned counsel for the respondent is that the words "any child" must be read as one child. This contention is not acceptable to me for the reason that the language of Section 109 does not limit the scope of Section 109 to such a narrow interpretation. The expression "any child" as indicated earlier, includes not only one child but also children of the testator. The bequest may be in favour of a child or children of the testator. It has nothing to do with the number of persons in whose favour such a gift is being made. We must not in this context lose sight of the object behind this provision. The object is clear viz., the testator wants to give his property to his child or children under the will but the child or children die in his lifetime leaving behind an issue, that issue must not be deprived of the property. If this object is kept in mind then it will be equally applicable to the issue of any child or children of the testator in whose favour there is a bequeathment. It does not matter whether there is one, two or more children of the testator who have been named as legatees under the Will. The principle embodied, in Section 109 would apply only where such a legatee dies in the lifetime of the father leaving behind an issue.
19. For the reasons indicated above I am of the view that the decisions of the courts below are not sustainable in law and must be set aside. It must be held that Sunder Devi the legatee who died in the lifetime of her mother leaving behind the appellant as her issue is entitled under law to the share of Smt. Sunder Devi. The view taken to the contrary is in my opinion incorrect and must be set aside. The appeal, therefore, succeeds, the judgment and decree of the court below must be set aside and it is held that the appellant takes an equal share with Smt. Munder Devi in the property bequeathed by Smt. Gobindi. The appeal is accordingly allowed, the judgment and decree of the lower appellate court are set aside and it is declared that the plaintiff has a half share in the house No. B5/196 situate in Mohall Dalipganj (Avadhgarbi), Varanasi City. A preliminary decree shall accordingly be drawn up. In the circumstances of the case I direct the parties to bear their own costs.