1. This case raises a very short but very interesting and important point of Mahomedan law. The facts really are not in dispute. One Jusab Abdulla died on October 7, 1919, leaving him surviving his widow Fatmabai who is the defendant in this case, a daughter Khatoobai and the plaintiff who was a son by his predeceased wife.
2. On August 6, 1925, Fatmabai, the defendant, and Khatoobai purchased an immoveable property. It is not disputed that Khatoobai contributed Rs. 10,000 and the defendant Rs. 7,500 towards the purchase of this property. The mother and daughter obtained a conveyance in their favour which is a conveyance in English form drafted by a solicitor of this Court, and the particular provision in this conveyance to which attention might be drawn is the habendum clause which lays down the interest in the property which the mother and the daughter were to enjoy and this is how the habendum clause runs:
To have and to hold the hereditaments and premises hereby granted or expressed so to be unto and to the use of the purchasers for ever as joint tenants and not as tenants in common.
Khatoobai died on September 3, 1944. She left as her heirs, according to the Sunni Mahomedan law, by which she was governed, her consanguine brother, the plaintiff, and her mother, the defendant; and the plaintiff's contention is that as her heir he is entitled to his share in Khatoobai's interest in this immoveable property which she and her mother purchased in 1925. The answer given by the defendant is that the property was held by Khatoobai and Fatmabai as joint tenants; and on the death of Khatoobai, Khatoobai's interest in the property came to an end and Fatmabai became the absolute owner of the property and the plaintiff has no interest whatever in the property.
3. Mr. Boovariwala on behalf of the plaintiff has contended that joint tenancy is an estate unknown to Mahomedan law and in this particular ease the nature of the transaction is a gift and this is a gift which violates the fundamental principles of Mahomedan law inasmuch as it is a contingent gift, it is a gift in futuro and it is a gift of a musha'a because it is a gift of an undivided share in a property which is capable of division and which was in fact not divided. As I shall presently point out, in my opinion Mr. Boovariwala is not right when he contends that the real nature of the transaction is a gift. But even assuming it was a gift, would it be true to say that in Mahomedan law a gift cannot be made to joint tenants So authoritative a text-book on Mahomedan law as Hamilton's Hedaya expressly refers to a gift to joint tenants and expresses the opinion that a joint tenancy can be created validly under Mahomedan law-see Hamilton's Hedaya, Vol. III, 298. The way the matter is argued by Hedaya is very interesting. The illustration taken is that of a gift of a house to two men. Now, according to Haneefa, the gift is invalid because, according to him, the gift is of half the house to each of the donees and there is a danger of a mixture of property taking place. But in the opinion of two of his disciples-and that is the opinion to be preferred-the gift is valid because the gift is of the whole of the house to each of the donees. In other words, each of the donees has an interest in the whole of the house and not in any specific share in that house. I may point out that those are exactly the incidents of joint tenancy even under English law. As has been pointed out, there are four unities among joint tenants: of title, interest, possession and time. The right that each joint tenant has is to claim partition against his other joint tenant, and on such a partition the joint tenancy becomes severed. But if the joint tenant dies without claiming partition, his interest does not survive to the other joint tenant but his interest becomes extinguished.
4. Apart from Hedaya, the authorities of our Court are also clear that a gift to joint tenants has been recognized as good and valid under Mahomedan law. As far back as 1870, in Rujabai v. Ismail Ahmed (1870) 7 B.H.C.R. 27 Sir Charles Sargent, relying on this identical passage in the Hedaya to which I have referred, held that a deed of gift in English form of a house to three persons is good under the Mahomedan law as it showed a clear intention on the part of the donor to give the property in the whole house to each of the donees. Mr. Justice Tyabji, who is a distinguished scholar of Mahomedan law, in Ebrahim v. Bai Asi : AIR1934Bom21 has taken the same view, that a gift to two or more persons whether as joint tenants or as tenants-in-common, if completed by possession, is a valid gift; and our Court of Appeal in Musa v. Badesaheb : AIR1938Bom84 took the same view; and as pointed out by Sir John Beaumont, Chief Justice, a gift to joint tenants really gets over the difficulty created by the principle of musha'a because the gift being not of a share in the article but the gift of the whole article to each of the donees, the principle of musha'a does not come into operation.
5. Mr. Boovariwala has strongly relied on the decision in Kasam v. Gokarnaya (1903) 5 Bom. L.R. 701. With great respect to that very distinguished Chief Justice, Sir Lawrence Jenkins, the facts are not clearly stated in the judgment and the reasoning also does not appear. What the Court was there doing was to construe a certain bequest of a land to three persons. The Subordinate Judge took the view that the bequest was of one-third land to each of the legatees. The Assistant Judge took the view that it was a joint gift; and Sir Lawrence Jenkins agreed with the view of the Subordinate Judge. But I do not find from the judgment or the report as to what exactly were the terms of the bequest.
6. Now I may point out that there is no doubt that in India the Courts must strongly lean against holding any particular bequest or grant as a joint bequest or a joint grant. The presumption in India must always be in favour of a tenancy in common rather than a joint tenancy. But there is nothing to prevent the Court coming to a contrary conclusion if that presumption is displaced by clear and cogent language to the contrary. In this particular case there can be no doubt that the parties intended to hold this property as joint tenants and not as tenants-in-common. As I have already said, it is a conveyance in the English form drafted by a solicitor of this Court and the language leaves no doubt whatever as to what interest the parties intended to create in the property. Not only the habendum clause says that the property was to be conveyed to the purchasers as joint tenants but in order to leave no ambiguity goes on to say 'not as tenants in common.'
7. In my opinion this is not a case of a gift at all. It is a case of a contract or a grant. The mother and daughter in this case contributed certain sums of money in order to purchase a property, and they stipulated with the vendor or the grantor that he should convey the property to them as joint tenants and the grant in fact is in their favour as joint tenants. What I have therefore to construe is the grant, and on the construction of the grant I have no doubt that the interest created in favour of the grantees is that of joint tenants. The question, therefore, is: Is there anything in Mahomedan law which is repugnant to the creation of a grant of joint tenancy if the parties so desire it Mr. Boovariwala contends that although the Courts in India might have held that joint tenancy can be created, there is no decision which lays down that the incident of the benefit of survivorship which attaches to the principle of joint tenancy has been held to be good and valid under Mahomedan law. Now I cannot frankly understand a joint tenancy which does not carry with it the necessary and inevitable consequence of the benefit of survivorship. The very basis of a joint tenancy, as I have already pointed out, is that no joint tenant has any specific interest in the property but has an interest in the whole of the property which, if not specified by a partition, becomes extinguished on the death of the joint tenant. It is not enough for Mr. Boovariwala to say that the benefit of survivorship is unknown to Mahomedan law. He must go further and satisfy me that it is repugnant to any principle of Mahomedan law. I fail to see why it is opposed to any principle of Mahomedan law or why it is repugnant to the conception of Mahomedan law for parties to agree that they would acquire a particular property and hold it in any particular manner as joint tenants with the benefits of survivorship rather than as tenants-in-common with the share of each devolving upon his own heirs. I agree, as I have already said so, that the Court would lean against any such presumption as far as possible. But if the evidence is clear and emphatic, there is no principle of Mahomedan law which should disentitle the Court to come to that conclusion and hold that an estate of joint tenancy has been created. Mr. Boovariwala says that I have not before me sufficient evidence to displace the ordinary presumption in favour of tenancy-in-common. I do not agree with that contention. As I have said, this is a case where I have to construe a grant. I have got to determine what is the interest which the mother and daughter took under the terms of the grant. They were the purchasers; they were contributing the purchase money; and it was at their request that the vendor conveyed to them the property in the manner in which he has done. What stronger evidence is required than the fact that the two purchasers required the vendor to convey the property to them as joint tenants and not as tenants-in-common? I do not see why any further evidence is necessary as to any contract between the purchasers themselves. The terms of the grant themselves make it perfectly plain that the intention of the purchasers was to hold the property as joint tenants and not as tenants-in-common.
8. I am, therefore, of the opinion that it is permissible to persons governed by Mahomedan law to hold a property as joint tenants with the benefit of survivorship and that such an interest in the property is not opposed to or repugnant to Mahomedan law. In this case, in my opinion, the interest of Khatoobai in this property was extinguished on her death in 1944 and there is no interest of hers outstanding in this property to which the plaintiff as her heir can lay a claim.
9. The plaintiff's suit must, therefore, fail and must be dismissed.
10. Mr. Boovariwala on the question of costs urges that the point I have just decided is a novel point on which there is no decision by any High Court in India and that by bringing the suit to this Court he has given me an opportunity of deciding this point for the first time, and on that ground he says that he should not be mulcted in costs. As the plaintiff is admittedly the heir of Khatoobai and as the matter was not free from difficulty or doubt, I think the fairest order to make is that each party shall bear its own costs.