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Judgment
Harries, C.J.—This is a Letters Patent, Appeal from a decision of Manohar Lall, J., dismissing a second appeal from concurrent f decrees of the Courts below. The suit out of which the appeal arises was brought by plaintiffs 1 and 2 for a declaration that the attachment of the lands in suit under the provisions of Section 146, Criminal P.C., should be set aside, so that the plaintiffs could recover possession'' of the lands which rightly belonged to them. There was also a claim for possession and for the recovery of certain surplus proceeds which were held by the Collector as a result of the attachment. The land in question belonged to one Deoki Singh who executed a will on 23rd March 1920, devising the property in question in favour of Bias Singh and Ramnath Singh, who were defendants 1 and 2 in the suit. These two were brothers governed by the Mitakshara School of Hindu law and were admittedly members of a joint Hindu family at the date of the will and when the will took effect. Deoki Singh died, and on 26th January 1926,, letters of administration were granted to* Bias Singh and his brother Eamnath. On the same date Bias Singh, defendant l, made a gift of his half share in the property devised to him in favour of Bisram Singh, the husband of plaintiff 2. At the date of the gift Bisram Singh was joint with his father who was plaintiff 1. Bisram Singh is now dead, and plaintiff 2 is in the array of parties as representing him. The claim was in respect of the half share of the property which had been devised to Bias Singh and gifted by him to Bisram Singh. Disputes had arisen between the parties as to possession of this property, and it had been eventually attached u/s 146, Criminal P.C., hence the suit giving rise to the appeal.
The only defence to the suit to which'' reference need be made in this appeal was that Bias Singh and Ramnath Singh took the property as coparceners and therefore that Bias Singh had no right to alienate his interest in the property to Bisram Singh. It was said that interest in the property was the undivided interest of a coparcener which could not be made the subject of a gift. On the other hand, the plaintiffs contended that Bias Singh and Ramnath Singh took the property under the will as tenants-in-common, and therefore Bias Singh was fully entitled to transfer his interest to Bisram Singh. If this interest held by Bias Singh was transferable, then the plaintiffs were bound to succeed.
The learned Munsif and the learned Subordinate Judge found in favour of the plaintiffs and their decision was affirmed in second '' appeal by Manohar Lall, J. He held that the two brothers took the property in question as tenants-in-common and that Bias Singh was entitled to transfer his interest which had become vested in the transferee Bisram Singh. It has been contended before us on behalf of the appellants that the two brothers, Bias Singh and Ramnath Singh, did not take this property as tenants-in-common, but on the contrary, took it as coparceners. Reliance has been placed on the terms of the will, and it is argued that these terms make it clear that it was the testator''s intention to give the property to the two brothers as e coparceners and. not to give them the property as tenants-in-common. The point now before this Court was considered by their Lordships of the Privy Council in AIR 1933 72 (Privy Council) ,in which it was laid down that whether a grant to persons who constitute a joint family was made to them severally or as a joint family depends upon the intention of the donor as expressed in the grant and that there was no presumption that the latter was intended. At p. 101, Sir John Wallis, who delivered the opinion of the Board, observed:
As to the question whether these grants were made to these two brothers severally or as members d of a joint family, that depends on the intention of the donor as expressed in the grants.
He then made the following observation:
Prima facie a gift to a member of a joint Hindu family is his separate property and will only become joint family property when it descends to his sons, unless he himself had made it joint family property by throwing it into the common stock. There is nothing in the terms of these maintenance grants to these two brothers to suggest that the Government intended to make a grant to a joint family. As regards the first grant, property granted to one of the two brothers and his heirs would clearly be taken by him as his separate property, and the fact that this grant was made to the two brothers and their heirs is not sufficient reason for placing a different construction upon the grant or holding that it was intended that they should take as members of a joint family.
From these observations, it is clear that unless the terms of the will indicate that the devisees are to take as coparceners they will take severally. The will has been placed before us, and in my view it is clear that-the testator did not intend the two devisees to take as coparceners, but, on the contrary, he intended them to take severally. The testator mentions that he has no issue and that Bias Singh and Ramnath Singh, who are his agnates and reversioners, have all along been obedient and dutiful to him egad A have been treated by the testator as his sons. He therefore leaves the property to them, because they have been so good and kind to him in his lifetime. It is not suggested that the property was being given to the joint family of which these two persons were members, but on the contrary, the property is given to these two particular persons because of their kindness and goodness to the testator in the past. The words suggest a gift not to coparceners or to a joint family but to two persons in their individual capacity.
Mr. D.N. Varma, who appeared on behalf of the appellants, contended that the same rule should be applied in this case as has been applied in cases where a father has given property by will to his sons. The effect of such a will has been the subject of much controversy, and the Courts in India have differed on the question as to whether the sons take individually or as members of a joint family, and this question has ween left open in a recent case by their Lordships of the Privy Council. However, it is clear that these cases have no application to the present case, because the gift here is not by a father but by a person not a direct ancestor but merely an agnate. The texts, upon which? some Courts have relied, in holding that sons, who take property by will from their father, take it as coparceners, have no application to cases where the gift is made by a person who is not a paternal ancestor. The effect of a gift or a bequest to two or more persons who are members of a coparcenary by some third party is stated in these terms in Mulla''s Hindu Law, Edn. 8 at pp. 464 and 465:
Where a gift or bequest is made to two or more persons who are members of a coparcenary, they nevertheless take as tenants-in-common, and not as joint tenants or coparceners, unless a contrary intention appears from the grant.
The statement is strictly in accordance with the observations of Sir John Wallis, to which I have already made reference. Cases very similar to the present are Bai Diwali v. Patel Bechardas (''02) 26 Bom. 445 in which it was held that where property is given jointly to two persons living as members of a joint Hindu family, each donee takes an interest in the property which passes to his heirs at his death, and not to the other donee by survivorship. In that case two brothers, living in union as a joint Hindu family, were jointly given certain property. One of them died childless, leaving a widow. The widow was held entitled to a moiety of the property as heir of her husband, as it did not pass to the other brother by survivorship. A similar view was taken in Musammat Rampiari and Another Vs. Musammat Krishna Piari, , in which it was held that a devise of separate property made by a maternal grandfather in favour of two grandsons without specifying what share each was to take had the effect of creating a tenancy in common and not a joint tenancy. In this case the same principle was applied as was laid down in an earlier Allahabad case, Kishore Dubain v. Mundra Dubain 33 All. 665, in which it was held that where property is given or devised, without specification of the individual interests of the recipients, to persons who are members of a joint Hindu family, it does not follow that they take such property as joint property, the principle of joint tenancy being unknown to Hindu law save in connexion with the joint Hindu family. The Madras High Court has taken the same view in Janakiram Chatty and Others Vs. G.C. Nagamony Mudaliar, , in which it was held that where a bequest was made by a Hindu to his divided brother and his sons, who were at the time members of a joint undivided family, but the will did not expressly indicate that the donees were to take the property as joint tenants the donees should be deemed to take the property as tenants-in-common.
Mr. D.N. Varma, on behalf of the appellants in particular relied upon a single Judge case in Shyama Bhai Vs. Purushothamadoss, , in which it was held that where there is a bequest to two persons, e.g., to two sons who form members of a joint Hindu family the ordinary presumption is that the grant is to them as coparceners. Unless the father in disposing of the properties expresses that they should be deemed self-acquired in the hands of the sons the properties should be treated as ancestral. This case however is a case of a gift by a father to sons, and as I have already stated, the Courts in India have differed as to the effect of such gift. It is to be observed that the learned single Judge who decided this case was a party to the case in Janakiram Chatty and Others Vs. G.C. Nagamony Mudaliar, and at p. 105 he mentions that there is a difference between cases of gifts to persons who form a joint family where such gifts are made by persons to whom they would succeed according to the law of intestate succession and cases where gifts are made by will J by persons from whom the donees would not inherit. In the present case the will was not made by a father but by an agnate, and in my view the cases to which I have referred establish beyond question that the devisees take as tenants-in-common and not as members of a joint family. They might take as coparceners if the will clearly indicated such an intention; but, as I have stated, the will in this case indicates a contrary intention, that is that they should take as individuals. That being so, Bias Singh and Ramnath Singh took this property under the will as tenants-in-common and Bias Singh was fully entitled to alienate his interest. The trans, free, Bisram Singh therefore acquired title to this property and his representatives were entitled to maintain the present suit and recover possession of the same. The result therefore is that this appeal fails, and I would dismiss it with costs.
Fazl Ali, J.
I entirely agree.