JUDGMENT M. Madhavan Nair, J. 1. The appellant is the 1st defendant in a suit for partition of the properties of her deceased husband, Peru. Defendants 2 to 5 are their daughters. They had also another daughter by name Josephine, who pre-deceased Peru. The 1st plaintiff was the husband of Josephine whose only child is the 2nd plaintiff. The suit has been instituted by the 1st plaintiff for himself and on behalf of his minor daughter, the 2nd plaintiff, on the allegation that under the Cochin Christian Succession Act (6 of 1097) the plaintiffs 1 and 2 have inherited in equal moieties, one-sixth share in the estate of Peru. There are three schedules of properties appended to the plaint, the A schedule being the immovable and C schedule the movable properties that stood in the name of Peru at the time of his death. The plaint B schedule contains the immovable properties, inclusive of a mortgage right, which have been acquired by Peru in favour of his wife, the 1st defendant. According to the plaintiffs they also belonged to Peru and are as such divisible among the heirs of Peru. 2. The 1st defendant contended that the plaint B schedule properties belong to her absolutely, having been purchased in her name for her own benefit; that Josephine had been paid Rs. 5,000/- as Sthridhanam; that Peru had commissioned her to be the guardian of the 2nd plaintiff and that therefore the suit by the 1st plaintiff had to be dismissed. The court below found that Rs. 2,000/- only had been paid to Josephine as Sthridhanam, and decreed the suit allowing the shares claimed for plaintiffs 1 and 2 but subject to their paying 1/6 of Rs. 2,000/- to each of the defendants 1 to 5. 3. The 1st defendant had a case that on the morning of the day of death of Peru after he had taken the last sacrament and about two hours before he breathed his last, Peru had made an oral will in the presence of DWs 1, 2, 3, 5, the 1st defendant and her foster son. It is not necessary in this case to advert to the testimony of these witnesses as to the contents of that oral will for the obvious reason that even if Peru had made such a will it is null and void under the law. It is not necessary in this case to advert to the testimony of these witnesses as to the contents of that oral will for the obvious reason that even if Peru had made such a will it is null and void under the law. Admittedly Peru died on 15-11-1953 long after the Indian Succession Act (39 of 1925) was brought into force in this State. Under Section 63 of the Act, every testator, not being a soldier or airman employed on an expedition or engaged in actual warfare or a mariner at sea, shall execute his will in writing signed and attested in the manner provided in the Act. Under Sections 65 and 66 only the persons exempted above are allowed to execute wills by word of mouth. It follows therefore that even if Peru had made an oral will before his death that was of no legal consequence and has only to be ignored for the purposes of this case. On 21-7-1954 the above said witnesses to the oral will joined together and made a record of that oral will mentioned to them by Peru on 15-11-1953 in the handwriting of the clerk of the 1st defendant's advocate. This is so unusual a procedure as to excite suspicion in its good faith. Admittedly this record was made after the plaintiff had issued notice of his intention to file this suit. A written record made by persons other than the testator of an oral will cannot supply the want of a written will executed by the testator himself. The story of oral will has therefore been rightly discarded by the court below. 4. The 1st defendant has admitted that all the acquisitions that stand in her name had been made with funds supplied by Peru. It appears that Peru had purchased properties shown in the plaint A and C schedules in the name of himself, the plaint B schedule properties in favour of his wife the 1st defendant, and some other properties in favour of his foster son Joseph. Though the 1st plaintiff has vaguely alleged in the plaint that the acquisitions made in the name of the 1st defendant belonged to Peru himself he has not given any evidence in support of that allegation. Normally properties standing in the name of a person have to be presumed to belong to that person. Though the 1st plaintiff has vaguely alleged in the plaint that the acquisitions made in the name of the 1st defendant belonged to Peru himself he has not given any evidence in support of that allegation. Normally properties standing in the name of a person have to be presumed to belong to that person. Of course such presumption may be rebutted by proof of a benami or trustful character of the acquisition. But it is a matter to be pleaded and proved by the person who makes the allegation as to any secret nature of the acquisitions. The onus of proof lies upon him who affirms, not upon him who denies (Affirmanti non neganti incumbit probatis). Here there is no express allegation in the plaint that the acquisitions made in the name of the 1st defendant were benami for her husband. Even when the 1st plaintiff was in the box he has not stated so. No circumstance has been made out in the case to indicate any secret trust in the acquisition of the plaint B schedule properties in the name of the 1st defendant. The plaint allegation that the properties standing in the name of the 1st defendant belonged to her late husband stands without any proof. If the normal effect of documents of acquisitions be attached to them, the purchases in the name of the 1st defendant have to be taken as her own absolute properties. We hold that the plaintiffs are not entitled to any share in the plaint B schedule properties and the finding of the court below to the contrary has therefore to be vacated. 5. The question then arises as to what are the respective rights of these plaintiffs in the estate of the late Peru. Peru had left behind him a widow who is the 1st defendant in this case, and four daughters who are defendants 2 to 5. Admittedly he had a daughter by name Josephine who predeceased him on 11-4-1953. Under section 12 of the Cochin Christian Succession Act, where the intestate has left a widow and daughters a share equal to that of a daughter shall belong to the widow. Under section 20 of the Act, if all the lineal descendants of the intestate are daughters they are entitled to divide the estate equally among them. Under section 12 of the Cochin Christian Succession Act, where the intestate has left a widow and daughters a share equal to that of a daughter shall belong to the widow. Under section 20 of the Act, if all the lineal descendants of the intestate are daughters they are entitled to divide the estate equally among them. The latter section further provides that if a daughter of the intestate pre-deceased him leaving her lineal descendants the share which such daughter would have inherited, if she survived the intestate, will belong to her lineal descendants. It has therefore to be held that the one-sixth share which Josephine would have inherited, if she had survived Peru, has devolved on her lineal descendant who is the 2nd plaintiff in the case; and that her husband the 1st plaintiff does not get any share in the estate of Peru. 6. The learned counsel for the plaintiffs contended that as per the theory of representation Josephine must be deemed to have died immediately after the intestate's death, and the share which she would then have inherited must be deemed to have devolved on her heirs. If it were so, plaintiffs 1 and 2 would get equal moieties in what would have been Josephine's one-sixth share in Peru's properties. But the theory of representation can have no application where the heirs of an intestate are specifically defined and enumerated by statute. The Cochin Christian Succession Act has enumerated specifically the heirs of a Christian who dies intestate, after the commencement of the Act in 1921. In so enumerating the heirs of an intestate the Act has specifically provided that the share that a pre-deceased child would, if it survived the intestate, have inherited in the estate, shall belong to the lineal descendants of that pre-deceased child. The theory of representation cannot therefore be of any assistance to the plaintiffs in this case. Heirship is a matter of law and not of logic. Where law has been specific no logic or reason can prevail. The argument based on the theory of representation has only to be discarded. 7. The theory of representation cannot therefore be of any assistance to the plaintiffs in this case. Heirship is a matter of law and not of logic. Where law has been specific no logic or reason can prevail. The argument based on the theory of representation has only to be discarded. 7. It is interesting to note that in the Travancore Christian Succession Act (2 of 1092) the order of succession of an intestate Christian as provided in its S.25, is to the effect that where a person dies intestate the property left by him, after deducting the widow's share and the mother's share, if any, shall devolve on the "sons and daughters and the lineal descendants of such sons or daughters as shall have pre-deceased the intestate." This is further clarified by section 26 which reads: "If a son or a daughter ........ of an intestate, who, if alive at the time of the intestate's death, would have been a heir, shall have died in his lifetime, the lineal descendant or descendants of such heir, shall solely or jointly take the share which they would have taken if living at the intestate's death ........" The presumptive share of a pre-deceased son or daughter is to devolve only on the 'lineal descendant, and not on the 'heirs,' of such pre-deceased son or daughter. Section 21 of the Cochin Christian Succession Act also refers to the share of "a woman or her lineal descendant, as the case may be," at the intestacy of her father. It has therefore to be held that, under the Cochin (or Travancore) Christian Succession Act, the husband of a pre-deceased daughter of an intestate is not a heir and does not get any interest in his estate. 8. It follows therefore that Peru's estate has to be divided into six equal shares, defendants 1 to 5 as his widow and surviving daughters taking one share each, and the 2nd plaintiff as the lineal descendant of his pre-deceased daughter taking the remaining share. In other words, the 2nd plaintiff, the minor daughter of Josephine, has inherited one-sixth share in Peru's estate as any of the defendants 1 to 5 has done; and the 1st plaintiff is not entitled to any share therein. In other words, the 2nd plaintiff, the minor daughter of Josephine, has inherited one-sixth share in Peru's estate as any of the defendants 1 to 5 has done; and the 1st plaintiff is not entitled to any share therein. The averment in paragraph 2 of the plaint that plaintiffs 1 and 2 are entitled to an equal moiety in the one-sixth share which Josephine would have inherited in Peru's estate proceeds obviously on a misconception of the law. On our pointing out this legal defect in the suit, the learned counsel for the appellant, after some discussion, agreed to amend the plaint to accord with the above said view of the law. He has now filed an application to amend the plaint with the addition of a prayer to the effect that, in case it is found that the 1st plaintiff is not entitled to any share in the suit properties, the entire one-sixth share claimed in the suit may be awarded to the 2nd plaintiff; and that application is allowed by us by a separate order. As we have already found that the 1st plaintiff is not entitled to a share, and that the entire one-sixth share claimed in the suit belongs solely to the 2nd plaintiff, the suit has to be decreed in favour of the 2nd plaintiff alone. 9. As per Section 21 of the Cochin Christian Succession Act, the Sthri-dhanam received by a daughter has to be brought into the hotchpot for the purpose of determining the share of the daughter or her lineal descendant in the estate of the intestate. The effect of this provision is only to add the Sthridhanam paid to a daughter to the assets actually left by the intestate at the time of his death for the purpose of reckoning the total divisible assets, and then to allot a share to the daughter, or to her lineal descendant if she pre-deceased him, in the total divisible assets so found, the amount of the Sthridhanam paid being given credit to as part of her share therein. But she or her lineal descendant, cannot be compelled to pay the amount of the Sthridhanam or any part thereof to the other heirs of the intestate. But she or her lineal descendant, cannot be compelled to pay the amount of the Sthridhanam or any part thereof to the other heirs of the intestate. It follows therefore that the decree of the court below in so far as it directs payment by the plaintiffs of one-sixth share of the Sthridhanam received by Josephine to each of the defendants 1 to 5 cannot be sustained. The entire Sthridhanam of Rs. 2,000/- paid to Josephine will, of course, be given credit to in the share to be allotted to the 2nd plaintiff in this case. 10. According to the plaint, Peru had 20 carts at the time of his death which have been included as item No. 1 in the plaint C schedule. The 1st defendant contended that Peru had only 11 carts at the time of his death. There was no evidence worth the name in the case to show that Peru had 20 carts at the time of his death. Hence, in assessing the value of the C schedule properties for the purposes of division, the court below will proceed as if the first item referred to 11 carts only, instead of 20 mentioned therein. 11. As the 1st plaintiff has been meeting all the expenses of this suit out of his pocket, the costs decreed by the court below will belong to him personally and may be recovered as such by him. 12. In the result, the decree of the court below will stand modified as mentioned in paragraphs 4, 8, 9, 10 and 11 hereinabove and affirmed in all other respects. As both parties have won and lost in part, there will be no order as to costs in this appeal.