T.P. Naik, J.
1. This is second appeal by the plaintiff-appellant whose suit for the possession of a house situate in June Bilaspur Ward of Bilaspur town, more fully detailed in the plaint map, has been dismissed by the two Courts below.
2. The suit house originally belonged to Bania who had gifted it absolutely to Mst Birawan by a registered gift deed Exh. D-5. Mst. Birawan bequeathed it to her husband's niece Mst. Manu and her sister's son Sarha by a will dated 10-3-1949 (Exh. D-3). The question that arises for consideration in this appeal is whether the bequest conferred on the legatees the rights of joint tenants or the rights of tenants in common because if a joint tenancy was created, then in so far as one of the legatees viz. Mst. Manu had predeceased the testatrix, the whole legacy would devolve on Sarha, the only surviving legatee, and the plaintiff's claim would fail, while if tenancy in common was created, Mst. Manu's half share would fall into the residue of the testatrix's property and the plaintiff who claimed through Mst. Patola, a daughter of Mst. Manu, may be entitled to it, provided her claim to it as the only heir of Mst. Birawan was established.
3. The Courts below have held that the suit house was bequeathed to Mst. Manu and Sarha as joint tenants and consequently under Section 106 of the Indian Succession Act, the only surviving legatee on the death of the testatrix viz., Sarha would succeed to the whole of it. This finding is now challenged before me.
4. The relevant portion of the will (Exh. D-3) dealing with the legacy in question reads as follows :
^^ckn oQkr esjs ukrh eqlEeh ljg oks nsoj csVheq- ekuw tk;nkn eqUntStr tks n[kLr oQkr esjs ikl ekStwn jgsxh vk/kk vk/kk fgLlkikus ds gdnkj gksxs oks flok; buds nhxj fdlh okfjlku dks dksbZ gd fdlh fdLe dk
esjh tk;nkn ojh;r'kqnk ij u gksxk tks nwljsyksxksa l eq>s dtZ dk jde ikuk gS ftudk rQlh tSy gS og dqy dtsZ dh jde eqlEehljgk oks eqEekr ekuw vnkyr esa ukfy'k dj olwy dj ysosxsa ok ckn olwyh vk/kk jdeykful dj fcy mtz fdlh fdLe ds rdlhe dj ysosxs os olh;r'kqnk edku etdwj ls esjkuke dkVdj viuk 2 uke vk/kk vk/kk fgLlk ij dkxtkr ljdkjh ij ntZ dj ysosxs----------**
5. Where a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole (section 106). The reason is that in such case the bequest is of the whole to two persona as one and not a moiety to each. 'Each is a taker of the whole, but not solely, for the whole is devised to both, and not a moity to each' Davies v. Kempe, (1663) Cart 2. The question however whether a joint tenancy was created or a tenancy in common is a question to be decided on the facts of each case.
The Courts/however, lean against joint tenancy and whenever there is a doubt they lean towards a I tenancy in common. Booth v. Alington, (1857) 5 WR 811, and Jogeshwar Narain Deo v. Ram Chund Dutt, 23 Ind App 37 (PC), In, the instant case, the intention of the testatrix can be gathered with reasonable certainty by the words used by her in the will. The bequest is with a direction to divide the property half and half. Where a bequest or legacy is given to two or more persons by some such expression, which denotes a severance, the legatees are held to be tenants in common. (See Bryan v. Twigg (1867) 3 Eq 433; Heathe v Heathe, (1740) 2 Atk 121 : 26 ER 476; and Richardson v. Richardson, (1845) 14 Sim 526 : 60 ER 462.
We have also to remember that this is the case of a will by a Hindu widow and as pointed out by the Judicial Committee of the Privy Council in Mt. Bahu Rani v. Rajendra Baksli Singh, 60 Ind App 95 : (AIR 1933 PC 72),
'..... the principle of joint tenancy is unknownto Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship.'
In Buchibai v. Nagpur University, ILR 1946 Nag 433 : (AIR 1946 Nag 377), a Division Bench of this Court held :
'Kakolam was not related to Laxminarayan and Gangadharrao, and it is well settled in such cases that, even if Laxminarayan and Gangadhar Rao wera members of a coparcenary, they would take as tenants in common and not as joint tenants unless a contrary intention appears from the will, as was laid down in ILR 23 Cal 670 (PC).'
I am, therefore, of opinion that Sarha did not succeed to the whole of the house but only to the half of it and cannot lay claim to the whole of it as he seems to have done.
6. It is thus clear that Sarha was not entitled to more than half of the suit property but that by no means solves the question. Under Section 107 ofthe Indian Succession Act the other half of the house would fall into the residue of the testatrix's property and as there is no residuary legatee under the will, this shall be inherited by her legal heir who under her personal law would have been entitled to her undisposed of property.
This point has not been determined by the lower appellate Court and consequently the case shall now go back to it for a determination, whether Mst. Patola as the daughter of Mst. Manu was the sole heir to the undisposed of property of Mst. Birawan so that the half of the suit house court be claimed by the appellant as a transferee from her. The appeal is therefore allowed and the case remanded to the lower appellate Court for the determination of the aforesaid question and for disposing of the case according to law.
7. The costs of this appeal shall be borne by the parties as incurred. The casts of the other Courts shall abide the final result of the suit.