JANKIBAI Vs. SARHA

JUDGEMENT

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

(2.) THE suit house originally belonged to Bania who had gifted it absolutely to Mst Birawan by a registered gift deed Exh. D-5. Mst. Birawan bequeathed it to her husband's niece Mst. Manu and her sister's son Sarha by a will dated 10-3-1949 (Exh. 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.

(3.) THE Courts below have held that the suit house was bequeathed to Mst. Manu and Sarha as joint tenants and consequently under Section 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.