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Judgment
The 1st defendant, a Native Christian, made a gift of property to his three children. Two of them died. The father mortgaged the property to the
plaintiff. The question is, whether the father had any interest in the property. It is argued that on the death of the two children the father inherited
their two-thirds share to the exclusion of the surviving brother under the Indian Succession Act. We are unable to agree with this contention. There
are no words in the instrument of gift which indicate an intention to create tenancies in common. The rule of English law is to presume that the
donees are joint tenants. This principle is adopted by the Indian Legislature in the Illustration to Section 93 of the Succession Act. The illustration,
no doubt, deals with the case of a legacy. But the same principle is applicable to wills as to gifts unless there are special rules justifying a deviation.
We must, therefore, regard the gift in this case as joint. It has been argued that Courts of Equity in England favour tenancies in common. But it has
not been pointed out that in any English case upon a simple gift to A and B, a tenancy in common was presumed by the Court of Equity. It is next
urged that the father retains possession as guardian till the children attain majority which must be on different dates, and that this indicates a
severance of interest. But the vesting of the property is on the same date and the beneficial enjoyment of all commences at the same time. We
cannot treat the difference in date as to the handing over of management as any ground for holding in favour of tenancy in common. No authority
has been cited in support of this contention.
It is further argued that the English law ought not to be applied to this country. The decision in Naoroji Maneckji Wadia v. Pherozebai ILR
(1899) B. 80 was no doubt in a case which arose within the original jurisdiction of the High Court of Bombay. But we see no objection to the
application of the English rule in a matter in which the Indian Legislature has shewn its leaning in its favor.
Our attention was drawn to Section 45 of the Transfer of Property Act. That relates to transfers for consideration. The principle of that section
does not apply to gifts. The amount of consideration paid by each measures the interest in the property bought. Gifts stand on a different footing.
We must, therefore, agree with the learned Judge in the Court below that the mortgage by the 1st defendant passed no interest to the plaintiff. We
may point out that the decision in Mankamna Kunwar v. Balkishna Das ILR (1905) A. 38 in which the parties were Hindus, does not apply. We
dismiss the second appeal with costs.