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Gopi Vs. Jaldhara - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.697
AppellantGopi
RespondentJaldhara
Excerpt:
hindu law - will--construction--tenancy-in-common or joint tenancy. - - according to the will of mohan la], which is a short document, after setting out that life was transient and, therefore, it was necessary for every person to make arrangements during his life-time so that after his death his name may be perpetuated and commemorated, he directs that after his death his daughters, musammats lila and maya, shall be the owners in possession of the whole of the property in his possession like himself......namely, lila and maya. both these daughters were married, bhaskaran being the husband of lila. lila left a daughter, namely, the plaintiff jaldhara. according to the will of mohan la], which is a short document, after setting out that life was transient and, therefore, it was necessary for every person to make arrangements during his life-time so that after his death his name may be perpetuated and commemorated, he directs that after his death his daughters, musammats lila and maya, shall be the owners in possession of the whole of the property in his possession like himself. nothing' is to be found in the will to qualify the terms of his gift. the sole question before us is whether or not this gift to his two daughters was a gift to them as tenants-in-common or as joint.....
Judgment:

1. The sole question in the appeal depends upon the true construction of the Will of one Mohan Lal, dated the 28th of February, 1881. Mohan Lal had two daughters, namely, Lila and Maya. Both these daughters were married, Bhaskaran being the husband of Lila. Lila left a daughter, namely, the plaintiff Jaldhara. According to the Will of Mohan La], which is a short document, after setting out that life was transient and, therefore, it was necessary for every person to make arrangements during his life-time so that after his death his name may be perpetuated and commemorated, he directs that after his death his daughters, Musammats Lila and Maya, shall be the owners in possession of the whole of the property in his possession like himself. Nothing' is to be found in the Will to qualify the terms of his gift. The sole question before us is whether or not this gift to his two daughters was a gift to them as tenants-in-common or as joint tenants. Bhaskaran, the husband of Lila, and Maya executed a mortgage on the 31st of May, 1900, of a house which belonged to the testator, in favour of the defendant-appellant Gopi, and it is his contention that the gift was a gift to the two daughters in joint tenancy, and, therefore, the survivor Maya was able to give a valid mortgage of the entire house. On the other hand, it is contended that according to the rule of construction to be applied in the case of a Hindu Will the gift in question was a gift to the two daughters as tenants-in-common. The Court below held that it was such a gift and decreed the plaintiff's claim for a declaration that the plaintiff is the owner in possession of one-half of the property in dispute by right of inheritance from her mother Lila.

2. The question appears to us to be concluded by the ruling of their Lordships of the Privy Council in the case of Jogeswar Narain Deo v. Ramechand Butt 23 I.A. 37 : 23 C. 670. The testator in that case made a gift in the following terms: 'The remaining 4 anna share I give to you Srimati Rani Doorga Kumari, and the son, born to your womb, Jogeswar Narain Deo, for your maintenance.' This was followed by a direction in the following terms: 'Upon my death you and your sons and grandsons, coetera, in due order of succession, shall hold possession of the zamindari et ctera, according to the above distribution of shares. And I give to yon the power of making alienation by sale or gift.' It was there contended, upon the authority of Vydinada v. Nagammal 11 M. 258, that by the terms of the Will the Rani and her son, Jogeswar Narain Deo, became joint tenants of the 4 and share and not tenants-in-common. In Vydinada v. Nagammal 11 M. 258 a Hindu by his Will granted jointly to his brother's son and Nagammal, the wife of the latter, certain lands with power of alienation, and it was held in accordance with the rule of English Convincing governing a gift of the kind that the grantees were joint tenants and not tenants-in-common. Their Lordships of the Privy Council overruled this decision, stating that there were two substantial reasons why it ought not to be followed as an authority, the first of these being 'that the learned Judges of the High. Court of Madras were not justified in importing into the construction of a Hindu Will an extremely technical rule of English Convincing.' 'The principle of joint tenancy,' they observed, 'appears to be unknown to Hindu law, except in the case of co-parcenary between the members of an undivided family.' By this decision of their Lordships we are bound in the present case, the facts of which appear to be on all fours with those in the case of Jogeswar Narain Deo v. Ramchand Dutt 23 I.A. 37 : 23 C. 670. We may point out that the gift was not made to members of a joint Hindu family but to the two daughters of the testator, both of whom were married women. It is most unlikely that the testator would, under such circumstances, have given his property to his own daughters in joint tenancy. We think, therefore, that the decision of the Court below was correct and dismiss this appeal with costs.


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