Judgment The advocate for the appellant has argued that the bequest in favour of Kathayee and Natesa Udayan under Ex. D. 2 is really a joint bequest with benefit to survivorship between them. He relies on the principle of section 106 of the Succession Act. It is true that the will in question is not governed by the provisions of the Succession Act. It is now well settled that unless we find some indications in the document itself to show that it is a joint bequest, the prima facie rule of construction is that the parties take it as tenants in common. The fact that the legatees are husband and wife is no such indication nor is the fact that they are to enjoy the properties from generation to generation. This would indicate only the nature of the estate in their hands. In these circumstances, I agree with the lower appellate Court in its view that the parties are entitled only to one half of the properties each. In this view the decree for one half share of A and B schedule properties in favour of the plaintiffs and second defendant is correct. It is next argued that in view of the fact that Kathayee died leaving a daughter, there is no lapse of her half share. Reliance is placed upon the principle of section 109. It was decided by a Division Bench of this Court in Ramamirtham v. Ranganadhan1, that the principle of the rules under section 109 (old section 96) will not be applicable to Hindu wills not governed by the Act. This is because the general rule of lapse is based upon a well established proposition that the legatee must survive the testator. It was only a statutory modification of this rule which was made by section 33 of the Wills Act of 1837 in England. That is the basis of the corresponding section 96 of our Succession Act of 1865, now replaced by section 109 of the present Succession Act. Prior to 1837 there does not appear to be any rule of construction laid down by the Equity Courts in England in favour of recognising this exception to the doctrine of lapse. Moreover as pointed out by Mr. Ramachandra Aiyar the learned counsel for respondents the rule is not one of construction. Prior to 1837 there does not appear to be any rule of construction laid down by the Equity Courts in England in favour of recognising this exception to the doctrine of lapse. Moreover as pointed out by Mr. Ramachandra Aiyar the learned counsel for respondents the rule is not one of construction. This is really a statutory modification because it is not a substitution of the legal representative of the deceased child by the legatee. It is really as if the law provides that the property is vested in the child though predeceased and it will thereafter devolve as the property of the child including not only the legal heirs in case of intestacy but legatees in case where a will had been left. A modifica-cation of the rule in the above terms cannot therefore be recognised in the absence of any statutory provision extending to the will in question. In these circumstances the argument against lapse prevails and therefore the conclusion on the first point stands without any need for any modification. It is next argued that the lower Courts were wrong in directing a retrial with regard to the properties covered by C and D Schedules. As regards the D Schedule properties there appears to have been no issue at all raised in the trial Court. The appellate Court was therefore right in remanding the case for trial. No doubt, as regards the C Schedule properties there was an issue. The trial Court held that there is no evidence but that observation does not seem to be correct, because there is some evidence on record. The trial Court has not rejected the evidence but has observed that there is no evidence. In these circumstances, I maintain the order of the lower appellate Court as regards both the C and D schedules. The second appeal fails and is dismissed with costs. No leave. My attention is drawn to the decree of the appellate Court as drafted at page 26 of the printed papers. The view of the appellate Court was that the plaintiffs and second defendant were entitled to one half of the properties in A and B Schedules. But the decree says it confirms the decree of the lower Court. This is obviously a mistake. The view of the appellate Court was that the plaintiffs and second defendant were entitled to one half of the properties in A and B Schedules. But the decree says it confirms the decree of the lower Court. This is obviously a mistake. The decree will be amended accordingly to the following effect: “Plaintiffs are entitled to one fourth share and 2nd defendant to one fourth share of the properties in A and B Schedules. A preliminary decree to that effect will be passed. Parties will have the liberty to apply for a final decree.” The question of mesne profits will be decided on an independent application in this suit. V.S. ----- Appeal dismissed.