JUDGMENT : The appellants are the plaintiffs in O.S.No.1162/2006 on the files of the II Additional Munsiff's Court, Ernakulam, as well as the appellants in A.S.No.391/2008 on the files of the VI Additional District Court, Ernakulam. They have suffered the decree, rejecting their claim for partition over the plaint schedule property, from the courts below. The suit was one for partition and permanent prohibitory injunction. The parties are referred to as in the Original Suit. 2. The plaintiffs 1 to 4 are the children of Velukutty in his first wife and the defendants are the 2nd wife and the children of the said Velukutty. The plaint schedule property originally belonged to the father of Velukutty. Subsequently, after the death of his father, the property devolved upon Velukutty and in 1979, Velukutty obtained the Purchase Certificate in respect of the plaint schedule property. The said Velukutty had one more son in the 1st defendant by name Sujith. Velukutty had executed Ext.A1 Will in favour of the said Sujith. As per the Will, the right of residence, after the death of Velukutty, was reserved in favour of the 1st defendant. According to the plaintiffs, even though Velukutty bequeathed the property in favour of his son Sujith, after the death of Velukutty, Sujith has not taken possession of the property at any point of time, till his death. Velukutty died in the year 1994 and Sujith died on 12/2/2004. Since the Will has not come into force, after the death of Sujith, the plaint schedule property devolved upon the legal heirs of Velukutty, namely, plaintiffs 1 to 4 and defendants 2 to 5. The 1st defendant is having no absolute title and ownership over the property since she enjoyed only a right of residence in the property by virtue of Will executed by Velukutty. So, the plaintiffs are entitled to get 1/8th share each. Hence the suit for partition. 3. In the written statement, the defendants challenged the maintainability of the suit. They also admitted that Velukutty was the absolute owner in possession of the property. The execution of Ext.A1 Will was also admitted. So, the plaintiffs are entitled to get 1/8th share each. Hence the suit for partition. 3. In the written statement, the defendants challenged the maintainability of the suit. They also admitted that Velukutty was the absolute owner in possession of the property. The execution of Ext.A1 Will was also admitted. According to the defendants, after the death of Velukutty, Sujith has become the absolute owner in possession of the plaint schedule property and when Sujith died on 12/2/2004, the 1st defendant, being the sole legal heir left by the deceased Sujith, became the absolute owner of the plaint schedule property. She is residing in the house situated in the plaint schedule property. Hence, the plaintiffs cannot raise any right over the property and the property is not a partiable one. The 1st defendant alone is the successor in interest of Sujith. Hence they prayed for dismissal of the suit. 4. On the rival pleadings, both parties adduced evidence - oral and documentary, consists of Exts.A1 to A4, B1 to B7 and the oral testimony of P.W.1 and D.W.1. After evaluating the evidence, on record, the trial court found that the plaintiffs have no right over the plaint schedule property, as the 1st defendant alone is the successor in interest of the deceased Sujith under the Indian Succession Act. Though the plaintiffs have preferred the aforesaid appeal, the appellate court also dismissed the appeal confirming the findings of the trial court. This is the concurrent findings; whereby the courts below found that the plaintiffs are not entitled to get any right over the plaint schedule property, as the plaint schedule property is not a partiable one, are challenged in this Regular Second Appeal. 5. Being a Second Appeal, the scope of consideration is confined to the substantial question of law only. The only question to be considered in this appeal is, whether the courts below are justified in finding that Ext.A1 Will has come into force and the legatee under the Will survived the testator and thereby the legacy will not go back to the testator as residue under Sec.105 of the Indian Succession Act. 6. Heard the learned counsel for the appellants. 7. It is not disputed that the plaint schedule property, originally belonged to Velukutty, who executed Ext.A1 Will bequeathing the entire property in favour one of his sons born in the 1st defendant, by name, Sujith. 6. Heard the learned counsel for the appellants. 7. It is not disputed that the plaint schedule property, originally belonged to Velukutty, who executed Ext.A1 Will bequeathing the entire property in favour one of his sons born in the 1st defendant, by name, Sujith. In Ext.A1 Will, a right of residence was reserved in favour of the 1st defendant, the mother of the legatee. Velukutty died on 13/1/1994 and Sujith, the legatee, died on 12/2/2004. As rightly observed by the lower appellate court, according to Section 104 of the Indian Succession Act, 1925, if a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator and if he dies without having received it, it shall pass to his representatives. Further, according to Section 105 of the said Act, 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 properties, unless it appears by the Will that the testator intended that it should go to some other person. On a combined reading of Sections 104 & 105 of the Indian Succession Act, it is well decipherable that unless otherwise proved the legacy passes to the legatee on the death of the testator. In the instant case, there is nothing to hold that Sujith did not get the ownership of the property or the legacy created by Ext.A1 Will did not take effect during his lifetime. The dates of death of the testator and legatee are not disputed. So, the courts below are justified in finding that on the death of Velukutty Ext.A1 Will has come into force and Sujith took possession of the property under the Will. 8. It is not disputed that Sujith was a bachelor and he died intestate. Therefore, the devolution of the property would be under Section 8 of the Hindu Succession Act, 1956. According to Section 8 of the said Act, the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being the relatives specified in class-I of the Schedule. In the instant case, the first defendant alone is the sole relative specified in class-I of the Schedule. Therefore, the first defendant has become absolute owner of the property. According to Section 8 of the said Act, the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being the relatives specified in class-I of the Schedule. In the instant case, the first defendant alone is the sole relative specified in class-I of the Schedule. Therefore, the first defendant has become absolute owner of the property. Needless to say that the plaintiffs have no right over the said property and the property is not partible. I do not find any kind of illegality or impropriety in the findings whereby the courts below found that the first defendant is the sole owner in possession of the property. Hence this Regular Second Appeal is devoid of merits and dismissed accordingly.