MUTHUKARUPPA MUTHIRIAN Vs. SIVABHAGYATHAMMAL

JUDGEMENT

(1.) In S.A. No. 1489 of 1922: The question at issue in this appeal is the construction of the will, of one Vythi Muthirian whereby he left his property ,to his senior wife and her daughter and to his junior wife, the first two being bequeathed a larger portion of the property than the latter. The question now is whether the senior wife and her daughter took the property as joint tenants or as tenants-in- common, the plea that they only took a life-estate not being seriously pressed before me.

(2.) The District Judge has considered the language of the will and the circumstances in which it was executed and has come to the conclusion that the bequest was to the wife and daughter as joint tenants. It is now contended for the appellants that this finding cannot be sustained as it is opposed to the decision of the Privy Council in Jogeswur Narain Deo V/s. Ram Chandra Dutt (1896) ILR 23 C 670 : 6 MLJ 75 (PC). In that case, in which there was a will of a somewhat similar nature, it was held that the legatees, mother and son, to whom a joint bequest was made, took the property as tenants-in-common and not as joint tenants. I may here point out that in the will under consideration in that case there were words of inheritance used after the bequest and there were no special circumstances to guide the Court in arriving at the intention of the testator. A case of this Court reported in Vydindda V/s. Nagammal (1888) ILR 11 M 258. was overruled. In that case the bequest to a nephew and to his wife was held to constitute a joint tenancy. The Judicial Committee overruled that decision on the ground that this High Court was not justified in importing into the construction of a Hindu will an extremely technical rule of English conveyancing and also on the ground that under the English Law a conveyance by one joint tenant operates as a severance. In addition there is a dictum of their Lordships upon which the appellants now rely and that is, "the principle of joint tenancy appears to be un- known to the Hindu Law except in the case of a coparcenaries between members of an undivided family." If that were a strictly accurate statement of Hindu Law and treated as an invariable proposition of law, there would be a very strong presumption that a bequest to two persons who are not members of an undivided family would not constitute joint tenancy, and such a presumption could only be rebutted by special words creating such joint tenancy. It, however, appears that this statement treated as a broad statement of law is not strictly accurate. As is pointed out in a subsequent case Fenkayamma Garu V/s. Fenkataramanlayamma Bahadur Garu (1902) ILR 25 M 678 at 687 (PC). by their Lordships there are instances of Hindus taking property jointly who are not co-parceners of a joint Hindu family. It was there recognised that widows succeed jointly, as also daughters, and it has also been held that this is the case with daughter's sons. Joint tenancy is not therefore unknown to Hindu Law and consequently there is not the same difficulty in inferring that such an estate has been created as if such an estate were entirely unknown to Hindu Law. There is a case reported in Narpat Singh V/s. Mahomed All Hussain Khan (1884) ILR 11 C 1 (PC). which is opposed to the decision in Jogeswar Narain Deo V/s. Ram Chandra Dutt (1896) ILR 23 C 670: 6 MLJ 75 (PC) and is not expressly overruled by the latter and consequently I think it must be taken that the latter is to be read solely with reference to the facts of that particular case and not as laying down a principle that no joint tenancy can ever be created by a Hindu testator without specific words to that effect. If that is conceded, as I think it must be, then the question of the testator's intention has to be considered with reference to the facts of each case. Here the learned District Judge has considered the language of the document and the fact that provision was made for one wife and her daughter apart from the second wife, for whom pro-vision was also made, and that provision was made for the joint payment of debts by the mother and daughter, and also other considerations specified in his judgment and has come to the conclusion that the testator did intend to create a joint estate in the mother and daughter, to which the survivor would succeed. This question of intention is one of fact and so long as the Judge makes no inferences which are not justified in law, the finding of intention is one which cannot be interfered with in Second Appeal. Assuming that the testator could create a joint tenancy, the question of whether he did so by his will and intended to do so is one of fact. I am not prepared to say that the District Judge's finding is wrong and accordingly the appeal must be dismissed with costs.

(3.) In S.A. No. 1490 of 1922 : This case follows the connected case and is dismissed with costs.