RAM NATH SINGH Vs. MTDHANWANTI KUAR

JUDGEMENT

(1.) 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 23 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 26 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 under Section 146, Criminal P.C., hence the suit giving rise to the appeal.

(2.) 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.

(3.) 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 Mt. Bahu Rani V/s. Rajendra Bakhsh Singh A.I.R. 1933 P.C. 72, 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.