Chandra Reddy, C.J.
1. These appeals are under Clause 15 of the Letters Patent against the judgment of our learned brother, Bhimasankaram J., in S. A. Nos. 923 and 924 of 3953.
2. The plaintiff is the appellant in both these appeals. He instituted two suits (O. S. Nos. 293 and 294 of 1950 on the file of the D. M. C. Nandyal) impeaching two alienations made by the 1st defendant, under Exhibits B.12 and B.13 dated 27-8-1937, and for a declaration in both the suits that' the relative alienations would not bind the reversion. The facts which have contributed to this litigation lie in a narrow compass and could be narrated in a few words. One Hanumantha Reddy, who was a divided brother of the appellant, had an only son who was afflicted with serious illness and which caused an apprehension in the mind of Hanumantha Reddy that his son might not survive long. He, therefore, made a will dated 18th June 1923 (Ex. B. 45), the relevant contents of which are given, hereunder :
'I have a son by name Sanjeevi Reddi who is aged only three years. He and I have been suffering from very serious illness. But apprehending that both of us may not recover from the illness we have been suffering from, I have made the following provision that after my death, both my wife and my son Sanjeevi Reddi shall enjoy the entire movable and immovable properties, the cattle, etc. which belong to me.
X X X X X This will, undeniably, reveals the intention of the testator that his properties should be enjoyed by his wife and son and none else, and that they should not go to his divided brother, i.e., the present plaintiff. Subsequently, two daughters were born to him, Subbamma, the 1st defendant herein and China Subbamma. Sanjeevi Reddi died in 1925. Despite this, Hanumantha Reddi did not think ot altering the will. He passed away on 17th October 1931.
3. On the assumption that she got the whole property under the will by reason of the death of her only son, Lingamma made a gift of it to the 1st defendant, as China Subbamma had pre-deceased her. Lingamma died within a month of this settlement. After coming into possession of these properties, the first defendant alienated them under Exhibits B.12 and B.13 in favour of the second defendant in O. S. No. 293 of 1950 and the pre-decessor-in-interest of defendants 2 and 3 in O. S. No. 294 of 1950. Several years thereafter, the present litigation was started by the divided brother of Hanumantha Reddi for purposes mentioned above.
4. The basis of these two suits was that the will was inoperative, that on the death of Sanjeevi Reddi the gift in his favour had lapsed, that in the other half Lingamma had only a life estate, that on her death the whole of the estate of Hanumantha Reddy devolved on the plaintiff and that, consequently, the sales were invalid and would not bind the reversion.
5. The defence was that the will could not be impeached on any ground and that as the gift was a joint one, the whole property was taken by Lingamma on the death of Sanjeevi Reddi and, consequently, no exception could be taken to the alienations.
6. The trial court, agreeing with the objection of the defendants, dismissed the suits. In its opinion, Section 106 of the Indian Succession Act (39 of 1925) was applicable to the will in question.
7. On appeal, the Subordinate Judge held that the provisions of the Indian Succession Act were inapplicable to the will in question, as it was executed before 1-1-1927, that no reliance could be placed on Section 106 in construing the will in question and that the dispositions in favour of Sanjeevi Reddi and Lingamma made them ten ants-in-common and, therefore, the share of Sanjeevi Reddi vested in the testator. The Subordinate Judge did not consider whether Lingamma did not get her moiety absolutely and whelher the sales in regard to her share were not good. In the result, he decreed the suit in toto. The aggrieved defendants brought two second appeals against the decrees and judgment of the lower appellate court.
8. In the second appeals no attack was directed against the will. It was further conceded on behalf of the plaintiff that the validity of the sales could be challenged only to the extent they bore on the share of Sanjeevi Reddi and they were effective as regards the other moiety of Lingamma. The learned Judge, who heard the second appeals, thought that the intention of the testator, as could be gathered from the document, was not to give his property to his wife and son in two distinct shares but to confer a right on them to the property jointly and that the principle underlying Section 108 of the Indian Succession Act governed the instant case. In this view, he allowed the appeals preferred by the defendant and dismissed the suit in toto. He, however, granted leave under Cl, 15 of the Letters Patent. Hence, these appeals.
9. The main point for consideration in these appeals is whether the construction placed by the learned Judge, namely, that the gift was a joint one, is correct. Before we proceed to consider the cases cited by Sri Kuppuswami, the learned counsel for the appellant, and the circumstances attending the execution of the will, it is convenient to read section 106 of the Indian Succession Act which is called in aid by the learned Judge in interpreting the will. It reads;
'If a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole. Illustration : The legacy is simply to A and B. A dies before the testator. B takes the legacy.''
This section, in terms, could not apply as this governs only wills executed after 1-1-1927, as could be seen from Section 57 read with III Schedule. It had extended the operation of the rule embodied in Section 106 only to wills made after 1-1-1927. Therefore, the question is whether the principle enshrined in this section could be invoked in regard to wills made prior to 1-1-1927.
10. We shall now deal with the contention advanced by Sri Kuppuswami that as joint tenancy is unknown in Hindu law, a gift made to two individuals by a Hindu governed by Mitakshara law should be deemed to be in equal shares and that the donees or the legatees, as the case may be, would take it only as tenants-in-common.
11. The foundation for this argument is the ruling of the Privy Council in Jogeswar Narain Deo v. Ramachandra Dutt, ILR 23 Cal 670. There a Hindu testator made a bequest of a four anna share of a Zamindari to his youngest wife, Durga Kumari and her son for their maintenance with a right to alienate this property by sale or gift. Some time after the death of her husband, Durga Kumari sold the property without any reference to her son. The question arose whether the alienation made by the widow without the consent of the other legatee was ineffectual.
Ultimately, when the matter came up in appeal before their Lordships of the Privy Council, they upheld the sale in the view that the legatees did not become joint tenants in the sense of English law and the alienation of her share before it was served was effective. Their Lordships observed that the principle of joint tenancy was unknown to Hindu law except in the case of coparcenary between the members of an undivided Hindu family.
They overruled Vydi'nada v. Nagammal, ILR 11 Mad 258, which applied the principle of joint tenancy to the case of a will by a Hindu, observing that the Judges of the Madras High Court were not justified in importing into the construction of a Hindu will an extremely technical rule of English conveyancing.
12. This rule was reiterated by the Privy Council in Mt. Bahurani v. Rajendra Baksh, AIR 1933 PC 72. The doctrine of these cases was followed by the Madras High Court in Krishnaswami v. Avayambal, AIR 1933 Mad 204 and Seshureddi v. Mallareddi, AIR 1935 Mad 852. It is now well settled that the concept of joint tenancy as understood in English law is foreign to Hindu law and, therefore, could not be imported in construing the wills made by Hindus.
13. We have now to consider whether the principle enunciated in ILR 23 Cal 670 (PC), and that line of cases governs a will like the present one. In our opinion, without extending the rule of joint tenancy as understood in English law, a gift in favour of two or three individuals could be interpreted as a joint one, enabling the survivor of them to enjoy the subject matter of the bequest wholly. A joint gift does not involve the notion that they take the property as joint tenants as conceived in English Conveyancing.
It cannot be postulated that whenever a gift is made to two or more jointly they take it only as tenants-in-common, irrespective of the intention of the donor. It all depends On the intention of the testator as could be gathered from the language of the instrument and the surrounding circumstances. Such a construction does not in any way violate principles of Hindu law.
14. In this view of ours, we are supported by the pronouncement of the Privy Council in Nandi Singh v. Sitaram, ILR 16 Cal 677. In that case, the last male-holder executed a deed of gift of the property in dispute to his daughter and her husband and the gift was invalid as regards his son-in-law. For that reason, it was contended that the whole gift lapsed. This contention was negatived by the Privy Council in agreement with the Judicial Commissioner of Oudh who upheld the gift. In repelling the contrary proposition, their Lordships observed thus :
'The gift is to the two donees jointly, and in Humphrey v. Tayleur (Ambler, 138) Lord Chancellor Hardwicke said : 'If an estate is limited to two jointly, the one capable of taking, the other not, he who is capable shall take the whole.' This principle does not depend upon any peculiarity in English law, and is applicable to this deed of gift.'
It is immediately clear that their Lordships were making a distinction between a gift in favour of two persons jointly and the creation of joint tenancy, peculiar in English law. This being the position, we are unable to accede to the contention pressed upon us by Sri Kuppuswami that this decision of the Privy Council runs counter to ILR 23 Cal 670 (PC) as also AIR 1933 PC 72.
15. It must be mentioned here that in no subsequent case was this dissented from by the Privy Council. That being the situation, we should take it that the two sets of decisions embody two different principles, one stating that a joint gift is valid and the other enunciating the doctrine that joint tenancy is unknown to Hindu law.
16. Further, Section 106 of the Indian Succession Act does not embody any principle of law but it contains only a rule of construction of statutes. It is not as if for the first time the legislature was introducing a new concept as applicable to wills made by Hindus. The legislature merely laid down the rule fo enable Courts in construing wills. It is axiomatic that Courts should ascertain the wishes and the indentions of the testator in construing a will.
As pointed out by their Lordships of the Privy Council in Narasimha v. Parthasarathy, ILR 37 Mad 199 (PC), the Courts must consider 'the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure 'The Court is entitled to put itself into a testator's arm-chair.' Therefore, it is not inappropriate to say that although Section 106 of the Indian Succession Act in itself is inapplicable, the rule underlying it could be made use of in construing a will of this type.
17. Now, sitting in the arm-chair of the testator and considering the will as a whole and the attendant circumstances, we have no hesitation in holding that the intention of the testator was that the property should be solely enjoyed by his wife and son. He was also conscious of the fact that his son might not survive long, which means that in the event of the death of his son, he wanted that his wife should take the property as a whole and that under no circumstances should the property be inherited by his brother. There is no scope on the language ofthe will to interpret it as creating a tenancy in common. It is clear that the wish of the testator was thathis wife and son should enjoy the property together.
18. For these reasons, we agree with the conclusions of our learned brother, Bhimasankaram J.,and dismiss these appeals with costs.