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"105. In what case legacy lapses:
(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 representatives of the legatee to receive the legacy, it must be proved that he survived the testator.

106. Legacy does not lapse if one of two joint legatees dies before testator: If a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole.

9. The aforesaid sections have been interpreted by the Allahabad High Court in the case of Smt. Gita Devi v. Smt. Munder Devi, A.I.R. 1980 Allahabad 372. In this case it has been held that the Section 105 lays down that unless the legatee survives the testator, the legacy is extinguished. It has been further held 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 the 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. Section 107 has been held to be another exception to Section 105. Under this section, it is provided that where the legacy is given to two legatees with distinct shares to each and one of the legatees dies before the testator, 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 residue estate 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. Thus the distinction between sections 106 and 107 is that Section 106 proceeds treating the legatee on the principle of joint tenancy and section 107 proceeds on the principle of tenancy in common. According to Section 108 where the share which lapses is a part of the residue bequeathed by the will that share shall go as undisposed of. That share will devolve on the heirs in accordance with law. Considering the further distinction between Sections 107 and Section 109, it has been held as follows-
"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 life time 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 dies 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 by 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 life-time 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 provisions which has been engrafted in Section 109 could not be provided in Section107.
14. It is well settled that when there is a specific provision it excludes the general provision. Section 107 would be the general provision and Section 109 would be the special provision. Consequently, where the major element of Section 109 is present, the principles embodies in Section 107 cannot be made applicable."

I am in respectful agreement with the interpretations placed on the various provisions of the Act by A. Banerji, J. of the Allahabad High Court.

10. As noticed above Section 109 of the Act deals with the special circumstances when bequest is made to the testator's child or lineal descendant. This section provides that bequest shall not lapse when it is made to any child or lineal descendant of the testator, even if the legatee dies in the life-time of the testator, provided any of his lineal descendant survives the testator. In other words, if the legatee dies leaving behind a son or daughter or any other lineal descendant who is alive at the time of the death of the testator, the bequest shall not lapse. But if the pre-deceased legatee dies issueless, would tile bequest be covered under Section 109 of the Act?