1. This is an appeal against the judgment in R. A. 66 of 1946-17 on the file of the Additional Subordinate Judge, Bangalore, dismissing the appeal and confirming the judgment in O. S. No. 168 of 1945-46 on the file of the Second Munsiff, Bangalore.
2. The suit was for declaration of plaintiff's title to and for possession of the suit property with mesne profits. It is not disputed that Venkatappa was the original owner of the property and that he under a will bequeathed the suit property to his grand daughter the first defendant and her husband deceased Ramiah, with a life estate to Thimmi the mother of the first defendant. Thimmi and Ramiah are dead. The plaintiff claims the properties as the adopted son of Ramiah. The learned Munsiff held that the adoption was not true and dismissed plaintiff's suit. The learned Subordinate Judge holds that under the will the first defendant and her husband took a joint tenancy and as she was the survivor of the whole property, the adoption even if true did not divest her of the suit property which is her sthridhana property. On the other hand it is contended that the first defendant and her husband took the property under the will as tenants in common and that after the death of Ramiah his heir acquired his interest.
3. The main point, therefore, for consideration in this case is, whether, when a property is bequeathed under a will to more than one person, they take the property as joint tenants or tenants in common. The question has often come up before this Court for consideration when properties had been bequeathed or gifted to more than one person. In some of the cases they were members of a Joint family and in some other cases they were, as in this case, husband and wife, but the principle well recognises in all cases of this kind is the same and it is to find out from the document and the surrounding circumstances the intentions of the donor or testator. There is, however, it is urged some conflict of opinion in the decision reported in 32 Mys C C R 164 and 6 Mys L J 301. It was observed in the latter case, in a case of a gift to a daughter and son-in-law by a person who had no sons:
'that the daughter and the son-in-law took the bequest as tenants in common and not as Joint tenants and that on the death of either of themthe interest of the deceased would pass to his or her heirs.'
A contrary view is taken in '32 Mys C C R 104 and that is why the matter needs some consideration.
4. As observed in the case reported in '32 Mys C C R 164 at p. 172 after considering a number of decisions:
'It is very hard therefore to import from the decisions any general rule to suit cases of all documents, 'Bitti Bibi v. Jai Gopal Singh', 20 Ind Gas 756 (All), nor can there be in the absence of rules for deviation any distinction in the matter between wills and gifts, 'Arakal Joseph Gariel v. Domingo Inas', 31 Mad 80. The only rule of construction is to find out the meaning of the testator or settlor taking the whole of the document together, with special care however not to judge the language used by the Hindu solely according to the technical rules of English law which are applicable to a different state of society. Mayne's Hindu Law, 9th Edition, page 605 and 'Ram Piari v. Krishna Piari', 63 Ind Cas 301. In 'Mahomed Shumsool Hooda v. Shewukram', 2 Ind App 7, their Lordships of the Privy Council say: 'In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that, an estate....shall be retained in hisfamily.' Again in 'Soorgeemoney Dossee v. Deno bundoo Mullik', 6 Moo I A 526 the Judicial Committee observe, 'The Law no less than the English Law points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition. Primarily, the words of the will are to be considered. They convey the expression of the testator's wishes, but the meaning to be attached to them may be affected by surrounding circumstances.'
It is no doubt true that their Lordships of the Privy Council in 'Jogeswar Narain Deo v. Rama-chandra', 23 Cal 670, pointed out that the principle of joint tenancy appears to be unknown to Hindu Law, except in the case of coparcenary between the members of an undivided family. Phillips, J., has pointed out in 'Muthukaruppa Muthirian v. Siva-bhagyathammal', 49 Mad L J 338, that the dictum in 'Jogeshwar Narain Deo v. Ramachandra', 23 Cal 670, was too broadly stated and not strictly accurate and in fact in a later case of the Privy Council 'Venkayyammagaru v. Venkataramanayyamma Bahadur'. 35 Mad 678, instances of persons other than coparceners taking property jointly according to Hindu Law have been recognised as observed in '32 Mys CCR 164.'
5. In considering the nature of a gift or a will It is unnecessary to begin with an idea that under no circumstances the donees or legatees take the property as joint tenants. The question has to be decided after finding out the intention of the donor or testator as could be gathered from the gift deed or the will and the surrounding circumstances, though in the case reported in '48 Mys H C R 368, it was observed that the principle of Joint tenancy is unknown to Hindu Law which governs the parties except in the case of the joint property of an undivided Hindu family governed by the Mitakshara Law, and that where a gift is made to two or more donees prima facie they will take the property as tenants in common, the decision makes it clear that the Courts have to depend upon the intention of the donor, to decide whether the donees take the property as joint tenants or tenants in common. As observed in that case:
'Where a gift is made to the members of a joint family by a paternal ancestor, whether they takethe property as joint family property or self-acquired property would depend on the question whether the ancestor intended that the property should be taken by them as members of a joint family on behalf of the family. If the gift is to the family, the members take the property and hold it as joint family property. Where the gift is only to some members of a joint family, they must be deemed to take the property as tenants-in-common in the absence of anything to the contrary.'
The same principle has been recognised in the full Bench Decision of this Court reported in 'Abdul Wazid v. Viswanath', 55 Mys H C R 67. Though, when a property is gifted to all the members of a joint family by one of the ancestors it may be said that it would be correct to presume that the property was intended to be taken as joint family property of all the members, the gift deed may show that the reverse is the case. It may be clear from the gift deed that different portions of the property was intended to be taken by each of the donees separately as laid down in the decision reported in 9 Mys I, J 435.' On the whole it will be seen that the trend of all the decisions makes it clear that whether the donees or the legatees take the property as joint tenants or tenants in common depends upon the intention of the donor or testator as could be gathered from the gift deed or the will and the other surrounding circumstances. No such question of finding out the intention of the donor or testator arises where the intention is apparent on the face of the document as in the case reported in '21 Mys C C R 114.'
6. Whether it is a case of a gift or a will in favour of the members of a joint family or of a will or gift in favour of a husband and his wife, the same principle is applicable. The case on hand is exactly similar to the one considered in the decisions reported in '32 Mys C C R 164. In that case under a gift deed some properties were bequeathed to Chikkaparvathamma and her husband Basappa, daughter and son-in-law of the donor. Basappa died earlier and Chickaparvathamma later. It was observed as follows:
'Now considering the facts in the present Instance we have no doubt that it is a case of joint tenancy. If Chicka Parvathamma had only died before her husband, in all probability the plaintiff himself would have been foremost in settling up a joint tenancy; yet the deaths of Easappa and Lingappa before Chickaparvathamma were due to bare chances, and it is absurd to make the construction of the deed depend upon any such contingencies; We must took at the question from a layman's point of view putting ourselves in the position of Lingegowda an aged person who being sonless and having only a daughter presumably wanted to provide for those nearest and dearest to him and could not have intended that the property should in any event pass to the cousins of his son-in-law Basappa. The feelings that actuated Lingegowda in making the settlement, as in the case of all fathers and grand-fathers and is also deposed to by witness Gopalakrishnayya an old man of sixty who wrote the deed of settlement must naturally have been to make provision for his daughter and her offspring. In fact it might not be unreasonable even to hold that the document created a joint tenancy in favour of the married couple and their offspring; it would be a gift to ' A & B who could marry, and the heirs of their bodies' A and E enjoy the property during their lives the survivor takes the whole and it descends on the children born of their marriage -- See Nelson's Law of property, page 242.'
The above observations are applicable to the present case as both the cases are exactly similarAccording to the will in this case the testator's intention is clear from the following extract:
'My son Venkataranga died five or six years ago since then his widow Thimmi with her daughters Rangi aged about ten years and Thimmi, aged about 8 years are with me and under my protection. After considering the question of the future conduct of my family I celebrated the marriage of my grand-daughter Rangi with my daughter-in-law Thimmi's brother Rama, aged about 18 years and am having this boy with me alter this marriage. Therefore the house in my patta and the wet and dry lands in my daughter-in-law Thimmi's patta more fully described here-under, shall be enjoyed after my and my daughter-in-law Thimmi's death by my grand-daughter Rangi and her husband Rama. No portion of my properties shall go to any of my dayadees.'
The extract of the gift deed considered in 'Basavayya v. Lingiah', 32 Mys C C R 164 is as follows:
'I have no sons and I have grown old. I have enjoined on you to protect me and my wife as long as we live, perform our obsequies alter our death, and enjoy the properties. Our Gnathies have no kind of right or interest in the said properties. I have executed this document in favour of my daughter Parvathamma and my son-in-law Basavegowda out of my free will so that henceforward they and their posterity may enjoy all the properties herein mentioned with all rights and benefits appertaining thereto.'
In both the cases it is clearly stated that no portion of the properties should go to any of the Dayadees. It is clear that what was intended by the testator is that both the wife and husband should take the property as Joint tenants, the survivor becoming the owner of the entire property. After the death of Ramiah, the husband of the Respondent Rangamma alias Venkatarangamma gamma, she became the absolute owner of the entire property and the Plain-tilt appellant even if he is her adopted son cannot divest her of her Sthridhana property. It is no doubt true that the decision in 6 Mys L J '01 lays down in almost a similar case that the daughter and son-in-law took the bequest as tenants in common and not as joint tenants and that consequently upon the death of the wife her half share in the properties passed to the heir of her Sthridhana property, namely, her husband. There is no discussion on the point now under consideration as in that case it did not arise for consideration at all. In that case the daughter died first leaving her husband as her heir to her Sthridhana property. He would have got the property even if they took the property as joint tenants he being the survivor of the two. The opinion expressed in 6 Mys L J 301, is therefore, it must be stated with respect, an obiter dictum and the decision in '32 Mys CCR 164' has to be followed.
7. The opinion of the learned Subordinate Judge that the adoption must be held to be true is not correct. He is also wrong in holding that the suit is not barred by 'res judicata.' Respondent Ran-gamma alias Venkatarangamma had executed Ex. A dated 2-2-1931 in favour of Byrappa father of the plaintiff enabling him to look after the management of the property. At the same time a mention had been made in the document that the plaintiff had been taken by her in adoption. She filed 3, suit in O S 373 of 1939-40 on the file of the Second Munsiff, Banaglore, against Byrappa as well as the present plaintiff. It was alleged in that case, as is clear from the copy of the plaint Exhibit I, that the plaint Schedule properties are the Sthridhana properties of Rangamma the plaintiff in that case. It is also stated that she executed only an agreement for management of the properties and that the plaintiff (defendant ?) is wrongly setting up the second defendant as the owner of the scheduleproperties. As against both the defendants a declaration was sought for that the plaintiff in that suit as the owner of the properties and that both of them had no manner of Interest or title to the property. That unit was decreed. Therefore both the plaintiff and his father are barred by the principles of 'res judicata' from filing a suit like the present one to establish their title to the plaint schedule property. As regards the question if adoption the learned Subordinate Judge was of opinion that the adoption is binding on the respondent Ran-gamma as she did not get Ex. A cancelled. It must be remembered that Ex. A is not a deed of adoption. It contains only an admission of the respondent Rangamma that the boy was taken in adoption by her. Nothing comes in the way of a person who has made an admission in a document from showing that that admission is not true and that it was taken fraudulently. It is unnecessary to get a deed containing an admission cancelled to enable the person who has made that admission to plead and to prove that what is admitted is not really true. Considering that the only reason that induced the learned Subordinate Judge to reverse the finding of the learned Munsiff on the question of adoption is the wrong view that Ex. A should be got cancelled by the respondent before she could deny the adoption, it has to be stated that on this aspect of the matter, the view of the learned Munsiff has to be accepted. The plaintiff has not only failed to make out that he is the adopted son of Ramiah, but also to show that he has any interest in the properties. Since he failed to set up the plea of adoption in the previous suit filed by Rangamma for declaration of her title to suit property denying his title, and since that suit was decreed, the present, suit by plaintiff is barred by principles of 'res judicata.' The lower Courts are right in deciding the case against him. The appeal stands dismissed with costs.
8. I agree.
9. Appeal dismissed.