GOMTI SINGH Vs. ANARI KUAR

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit brought by Mt. Anari Kuar, wife of Basdeo Singh, against him and his transferees for the cancellation of a deed of gift dated 23 April 1925. According to the findings of fact of the District Judge, which we must now accept as final, it appears that Basdeo Singh married two wives and the usual quarrels ensued between his wives. The matter came to a head in 1924 and Basdeo Singh executed a document called a tamliknama on the 25 August 1924 under which he made himself and his two wives Mt. Parbati Kuar and Mt. Anari joint owners of his property on the following terms: (1) The deed was to come into force immediately. (2) Basdeo Singh gave his property to his two wives who along with Basdeo Singh were to be the owners in possession of the property and would remain so. (3) Basdeo Singh would get the names of his wives entered in the revenue papers along with his own name and if he failed to do so his wives would have a right to get their names entered. (4) Neither Basdeo Singh nor his wives would have the right to transfer the property separately unless all combined. They would have the right to manage their affairs from the income of the property. (5) From the date of the execution of the document Basdeo Singh and his two wives became the owners of the property jointly.

(2.) The document did not specifically state whether the three persons would have a definite share, viz., 1/3 each in the property which was the subject-matter of the tamliknama, nor did it specify who would be the heir after the death of one of them. The learned District Judge has recorded a finding that this tamliknama was the result of settlement between Basdeo Singh and his wives to put a stop to the quarrels and "to settle 2/3rds of his property on his wives" Soon afterwards, viz, on the 21 April 1925 Basdeo Singh executed a fresh document purporting to cancel the previous tamliknama of 1924. Having revoked the previous document, he proceeded to transfer his property on account of which the present suit has arisen. The contention on behalf of the appellant who has been impleaded as a pre-emptor of this property is to the effect that the tamliknama was void inasmuch as it purported to create a joint tenancy which is unknown to Hindu Law, and that in any case the restraint on alienation, being absolute, was void, and that Basdeo Singh had authority to transfer his own share of the property.

(3.) So far as the question of the creation of a joint tenancy is concerned there is no doubt the observation of their Lordships of the Privy Council in the case of Jogeswar Narain Deo V/s. Ram Chandra Dutt [1396] 23 Cal. 670, that joint tenancy, except in the case of the members of a Mitakshara joint Hindu family, is unknown to Hindu Law. We may assume for the purpose of this appeal that Basdeo Singh had no power to create a joint tenancy in the sense known in English Law with the necessary consequence of the rights of survivorship on the death of one of the beneficiaries. But it does not follow that Basdeo Singh who had an absolute power of disposal over his own property, could not make his wives joint owners of the property along with himself. We have quoted the terms of the tamliknama, and they do not necessarily amount to the creation of a joint tenancy with a right of survivorship. We accept the finding of the Court below that his intention was to create a tenancy-in-common with them, with the result that 2/3rds share in the property was transferred to his two wives, that is to say it was a gift of 1/3rd share to each of his wives. The remaining 1/3 remained vested in him. In these circumstances Basdeo Singh had no power to revoke the tamliknama so as to deprive his wives of the property which had passed to them.