Jankibai vs Sarha

T.P. Naik J.

This is second appeal by the plaintiff-appellant whose suit for the possession of a house situate in Juna Bilaspur Ward of Bilaspur town, more fully detailed in the plaint map, has been dismissed by the two Courts below.

The suit house originally belonged to Bania who had gifted it absolutely to Mst. Birawan by a registered gift deed Ex. D-5. Mst. Birawan bequeathed it to her husband''s niece Mst. Mami and her sister''s son Sarha by a will dated 10-3-1949 (Ex. D-3). The question that arises for consideration in this appeal is whether the bequest conferred on the legatees the rights of joint tenants or the rights of tenants in common because if a joint tenancy was created, then in so far as one of the legatees viz. Mst. Manu had predeceased the testatrix, the whole legacy would devolve on Sarha, the only surviving legatee, and the plaintiff''s claim would fail; while if tenancy in common was created, Mst. Manu''s half share would fall into the residue of the testatrix''s property and the plaintiff who claimed through Mst. Patola, a daughter of Mst. Manu, may be entitled to it, provided her claim to it as the only heir of Mst. Birawan was established.

The Courts below have held that the suit-house was bequeathed to Mst. Manu and Sarha as joint tenants and consequently u/s 106 of the Indian Succession Act, the only surviving legatee on the death of the testatrix viz. Sarha would succeed to the whole of it. This finding is now challenged before me.

The relevant portion of the will (Ex. D-3) dealing with the legacy in question leads as follows :-

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Where a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole (section 106). The reason is that in such case the bequest is of the whole to two persons as one and not a moiety to each. ''Each is a taker of the whole, but not solely, for the whole is devised to both, and not a moiety to each'' Davis Vs. Kemp, Carth 3. The question however, whether a joint tenancy was created or a tenancy in common, is a question to be decided on the facts of each case. The Courts, however, lean against joint tenancy and whenever there is a doubt they lean towards a tenancy in common: Booth Vs. Alington 5 W. R. 811, and Jogeshwar Narain Deo Vs. Ram Chand Dutt 23 I. A. 37. In the instant case, the intention of the testatrix can be gathered with reasonable certainty by the words used by her in the will. The bequest is with a direction to divide the property half and half. Where a bequest or legacy is given to two or more persons by some such expression which denotes a severance, the legatees are held to be tenants in common. (See Bryan Vs, Twigg L. R. 3 Eq. 433; Heathe Vs. Heathe 2 Atk. 122: 26 E. R. 476; and Richardson Vs. Richardson 14 Sim. 526-60 E. R. 462. We have also to remember that this is the case, of a will by a Hindu widow and as pointed out by the Judicial Committee of the Privy Council in Bahu Rani Vs. Rajendra Bakhsh Singh 60 I. A. 95, ".........the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship." In Buchibai Vs. Nagpur University I. L. R. 1946 Nag. 433, a Division Bench of this Court held:-

"Kakolam was not related to Laxminarayan and Gangadharrao, and it is well settled in such cases that, even if Laxminarayan and Gangadharrao were members of a co-parcenery, they would take as tenants in common and not as joint tenants unless a contrary intention appears from the will, as was laid down in Jogeshwar Narain Deo Vs. Ram Chandra. Dutt I. L. R. 23 Cal. 670 P. C."

I am, therefore, of opinion that Sarha did not succeed to the whole of the house but only to the half of it and cannot lay claim to the whole of it as he seems to have done.

It is thus clear that Sarha was not entitled to more than half of the suit property but that by no means solves the question. u/s 107 of the Indian Succession Act the other half of the house would fall into the residue of the testatrix''s property and as there is no residuary legatee under the will, this shall be inherited by her legal heir who under her personal law would have been entitled to her undisposed of property. This point has not been determined by the lower appellate Court and consequently the ease shall now go back to it for a determination, whether Mst. Patola as the daughter of Mst. Manu was the. sole heir to the undisposed of property of Mst. Birawan so.that the half of the suit-house could be claimed by the appellant as a transferee from her. The appeal is therefore allowed and the case remanded to the lower appellate Court for the determination of the aforesaid question and for disposing of the case according to law.

The costs of this appeal shall be borne by the parties as incurred. The Costs of the other Courts shall abide the final result of the suit.