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 oat a title. The only ground on which the lower Appellate Court has reversed the judgment of 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 notion, falling into that fallacy, because it is contained in a two Judge decision of this Court reported as Mankamma Kuar v. Balkishen Das 28 A. 38 A.W.N. (1905) 170, 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 rules in my opinion in Mankamma Kuar v. Balkishen Das 28 A. 38 A.W.N. (1905) 170 is only a half truth. If it were necessary, it would be easy to show that in English Law as it is to day and has been for many years the rule id more honoured in the breach than in the observance because equity has always strongly leant against it and has seizad 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 Mankamma Kuar v. Balkishen Das 28 A. 38 A.W.N. (1905) 170. I prefer the decision of this Court in Kishori Dubain v. Mundra Dubain 10 Ind. Cas. 565 : 33 A. 665 : 8 A.L.J. 757, which must be taken to represent the law in this Province and in India rather than the dictum in Mankamma Kuar v. Balkishen Das 28 A. 38 A.W.N. (1905) 170. I am in favour of allowing the appeal.
2. 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 one-third share of his property to his daughter's sons, Raghuhar Dayal and Bishun 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 23 C. 670 : 23 I.A. 37 : 7 Sar. P.C.J. 13 : 6 M.L.J. 75 : 12 Ind. Dec. (N.S.) 445. I might also add that the law has been well expounded in the decision of the Bombay Court which is reported as Gordhan das v. Bai Ramcoover 26 B. 449 : 3 Bom. L.R. 857.
3. 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 1937. 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 1369 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. In this Court fees will be allowed on the higher scale.
4. 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, unlading in this Court fees on the higher scale.