1. I am of opinion that this appeal must be allowed and the judgment of the first court restored. The plaintiff has failed to make out a title. The only ground on which the lower appellate court has reversed the first court is contained in the view which it has taken that a conveyance to two or more persons without words specifying their shares constitutes a joint tenancy. One can understand the learned Judge, if the more recent cases were not brought to his notice, falling into that fallacy because it is contained in a two Judge decision of this Court, reported in Mankamna Kunwar v. Balkishan Das (1905) I.L.R. 28 All. 38.
2. But that case when studied appears to be merely a repetition of a highly technical rule of the interpretation which was placed upon language in an English conveyance at common law. There is no such thing as a technical art or system of conveyancing in India and, as has been pointed out in many cases in India and in the Privy Council, to which it is not necessary to refer, the application of that technical rule is inappropriate in India, and moreover, the statement of the rule, in my opinion, in I.L.R. 28 All., is only a half truth. If it were necessary, it would be easy to show, that in English law as it is today and has been for many years, the rule is more honoured in the breach than in the observance, because equity has always strongly leant against it and has seized upon any incident to raise the presumption against a joint tenancy and in favour of a tenancy in common, by reason of the disfavour with which it has regarded the rule of survivorship. And common law and equity having now for many years in England been fused, the rule is not, in my view, correctly stated in 28 Allahabad. I prefer the decision of this Court in Kishori Dubain v. Mundra Dubain (1911) I.L.R. 33 All. 665 which must be taken to represent the law in this Province and in India; rather than the dictum in I.L.R. 28 All. I am in favour of allowing the appeal.
3. I agree that the appeal should be allowed. The learned Judge of the court below has in my opinion wrongly held that the will executed by Ganesh Rai in the year 1869, by which he left a one-third share of his property to his daughter's sons Raghubar Dayal and Bishan Dayal, created a joint tenancy between them. The learned Judge relied on a decision of this Court which has been referred to by my learned colleague. That ruling has been dissented from in subsequent rulings of this Court. I may also mention that the principle laid down in the case relied upon by the learned Judge is against the ruling of their Lordships of the Privy Council in Jogeswar Narain Deo v. Ram Chandra Dutt (1896) I.L.R. 23 Calc. 670. I might also add that the law has been well expounded in the decision of the Bombay Court, Gordhan das Soonder das v. Bai Ramcoover (1901) I.L.R. 26 Bom. 449.
4. On the finding, therefore, that the tenancy created by this will was a tenancy in common, the plaintiff is out of court as regards one half of the property. As regards the other half the question remains as to whether it was disposed of by Raghubar Dayal, one of the tenants in common, by a will which he executed in the year 1907. Both the courts below have found that the document propounded as a will is a genuine document, and it is not to be denied that on the language used in that document the property was declared to be devoted to charitable purposes. I am satisfied that the share which was vested in Raghubar Dayal under the will executed by his maternal grandfather has been effectively disposed of and that there was nothing left for the plaintiff. I might add that the learned Judge seems to have been under a misapprehension of the law regarding conditions in restraint of alienation. It seems that under the will of 1869 executed by Ganesh Rai the devisees were to have no power of transfer. The only result of that was that they took a full title in the property and the condition against alienation was void. Raghubar Dayal had a full interest in the property which was left to him by his grandfather's will. I agree, therefore, that the appeal should be allowed, that the decree of the court below should be discharged and the decree of the court of first instance restored, and that the defendants should have their costs both here and in the courts below.
5. The appeal is allowed, the decree of the lower appellate court is set aside and that of the court of first instance restored with costs in all courts.