G.K. Misra, J.
1. Defendant is the appellant. Deceased Chaitanya Karji Ratna adopted Gadadhar who predeceased him in 1943-44. Plaintiff is the son of Gadadhar. In 1944, Jhampi, mother of the plaintiff, filed Original Suit No. 11 of 1944 in the Court of the Munsif, Berhampur, as the next friend of the then minor plaintiff, for a declaration that Gadadhar was validly adopted by Chaitanya, and for partition of the properties into two equal shares between the plaintiff and Chaitanya. That suit was decreed on compromise on 17-1-47 in terms of the compromise decree (Ex. B).
Admittedly the disputed property fell to the share of Chaitanya and his wife Jasoda-- Chaitanya died in 1947. Jasoda transferred the disputed land in favour of the defendant, her son-in-law, by a registered deed of gift (Ex. A) on 6-5-1947. The execution of the deed of gift by Jasoda and its acceptance by the donee had not been challenged by the plaintiff. He took the stand that Jasoda had no right of alienation under the compromise decree and the deed of gift was not binding on the plaintiff. The present suit is for declaration of title and recovery of possession and for mesne profits at the rate of Rs. 750/- per annum till recovery of possession.
2. Defendant contested the suit alleging that under the compromise decree both Chaitanya and Jasoda got the disputed property absolutely as joint tenants with the consequence that on the death of one, the other would also be absolutely entitled to the entire property. The conveyance of a valid title under the deed of gift was asserted. A further plea was taken that the defendant had spent about Rs. 3000/- over the marriage ceremonies of the 2nd and third daughter of Chaitanya. In pursuance of the deed of gift the defendant is in possession of the disputed property.
3. Both the Courts below have concurrently found that under the compromise decree Jasoda was allowed to enjoy half of the interest in the disputed property with her husband absolutely. But there being no definement of shares between Chaitanya and Jasoda, each of them was entitled to equal shares in the disputed property as tenant-in-common. The deed of gift was operative to the extent of half the interest of Jasoda conferring absolute title on the defendant. With regard to the other half, they, however, held that on the death of Chaitanya, Jasoda had a limited interest and the gift of such interest was not binding on the plaintiff after the death of Jasoda. Defendant's contention that the deed of gift can be construed as a sale for consideration and legal necessity was rejected by them. The trial Court declared plaintiff's title to half of the disputed property and put him in joint possession of the same with defendant until partition by metes and bounds.
Against the trial Court's decree, plaintiff filed Title Appeal No. 56 of 1961 and defendant filed Title Appeal No. 77 of 1961. Both the appeals were dismissed by the learned Additional District Judge. Against the decree in T. A. 77/61, defendant has filed Second Appeal No. 108 of 1962. Plaintiff did not file any appeal against the decree in T.A.56/61. He has, however, filed a cross-objection in S. A. 108 of 1962.
4. Before going to the merits of the appeal, it must, however, be noticed that the cross-objection is incompetent. In T.A. 56 of 1961, the concurrent findings of the Courts below that Jasoda had absolute title in respect of half the property and the conveyance by gift conferred a valid title on the defendant, concluded the matter. The decree in that appeal not having been challenged, that has become final and conclusive. The subject-matter of the appeal was not the subject-matter of dispute in T.A. 77/61 though both arose out of Title Suit No. 4 of 1950. The decree in T.A. 56/61 cannot be questioned in the second appeal. Moreover T.A. 77/61 determined the controversy as involved in that appeal wholly in favour of the plaintiff, and no cross-objection even under Order 41, Rule 22, C. P. C. lies. There is nothing in the decree in T.A. 77/61 adverse to the plaintiff against which he could have taken an appeal. The cross-objection is accordingly dismissed (see Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338).
Even otherwise the cross-objection has no merit. Clause (2) of the compromise decree makes it clear beyond any doubt that Chaitanya and Jasoda had absolute right, title and interest in the lands allotted to them and they had right of disposition over the same by transfer including sale and gift which were specifically mentioned. The reamed Courts below were right in holding that the interest conferred upon Jasoda under the compromise decree was absolute and not limited.
5. The point raised by Mr. Pal is that the Courts below acted contrary to law in holding that on the death of Chaitanya, Jasoda was not absolutely entitled to the entire disputed land so as toconfer a valid title on the donee by the instrument of gift. The learned District Judge's conclusion on this aspect of the case is :
'No doubt, after the death of Chaitanya Karji Ratno, her widow Jasoda was entitled to enjoy the share of her husband in the disputed property to the exclusion of the plaintiff, but she had only a widow's estate therein and after her death, the plaintiff being the next reversioner to the estate of Chaitanya Karji Ratno is entitled to get possession of the same. There is nothing to indicate in the compromise decree that after the death of Chaitanya Karji Ratno, his widow Jasoda would be entitled to the entire suit property. As the half share of her deceased husband over which she had only a limited interest was alienated without legal necessity, the deed of gift cannot bind the plaintiff to that extent.'
This finding was arrived at merely on the basis of the construction of the decree and not on any discussion of law.
6. A reference to the compromise decree shows that Chaitanya and Jasoda got the disputed property absolutely without there being any indication as to their respective shares in the same. Mr. Murty contends that in the absence of specification of shares of Chaitanya and Jasoda inter se,, they would take the disputed property as tenants-in-common and not as joint tenants.
7. It is necessary at this stage to notice the distinction between joint tenants and tenants-in-common. The mode of creation of both is different. Joint tenancy arises where a grant is made to several persons and there are no words indicating that the grantees are to take separate interests. When the grantees are directed to hold in moieties, or words are used in the grant showing that they are to take either in equal shares or in some other proportion, a tenancy-in-common arises. The words in the grant indicating that the tenants are to take distinct and separate interests or shares are called words of severance. In the absence of words of severance, a grant to a number of persons construed as conferring upon them the interests of joint tenants. A joint tenancy can be created only by the acts of parties and not by operation of law. A tenancy in common on the other hand can arise by operation of law.
The incidents of the two juristic concepts also fundamentally differ. The significant feature of a joint tenancy is the incident of survivorship. Each joint tenant represents the whole interest in the land and on his death the survivors alone represent that interest. As no tenant has a separate share in the whole interest, there is nothing which his heir can take on his death. Thus on the death of one tenant, his interest is extinguished and the survivors continue as joint tenants. If ultimately there is only one survivor, he gets the entire interest. On the death of the last survivor, the whole land devolves on his heir or devisee. The incidence of tenancy-in-common is that each tenant owns an undivided share. It may not be necessarily equal. In respect of that share, the tenant-in-common is in the position of the owner of the entire and separate estate. On his death, the estate does not devolve upon the survivors but on his heir or devisee.
If the aforesaid test is applied to this case, Chaitanya and Jasoda were clearly joint tenants, and on the death of Chaitanya, the entire property would devolve upon Jasoda absolutely. The parties are, however, Hindus. It is settled by the decision of their Lordships of the Judicial Committee that the principle of joint tenancy is unknown to Hindu law except in the case of coparcenary between the members of an undivided Mitakshara Hindu family (Jogashwar Narain Deo v. Ram Chand Dutt, 23 Ind App 37 (PC) ). Despite this decision, in several Indian cases the English principle-- that in the absence of specification of shares, the presumption is that the donees are joint tenants--was made applicable in India. But their Lordships of the Judicial Committee reaffirmed the position in Ram Charan Das v. Naurangi Lal, 60 Ind App 95 : (AIR 1933 PC 72), and put the matter beyond doubt. The result is that it must be taken as settled that the concept of joint tenancy in English law is foreign to Hindu Law except in Mitakshara coparcenary and cannot be imported in construing conveyances or settlements made in favour of Hindus. Chiatanya and Jasoda did not constitute a Hindu Mitakshara coparcenary and they could not be treated as joint tenants in the sense as it is used in English law.
8. The fact of non-applicability of the rule of English law to presume that the donees were joint tenants does not, however, postulate that either by conveyance or by settlement no joint tenancy can be conferred. It would depend upon the intention of the donor or testator. This intention would be gathered from the language of the instrument, if it is clear. In case of ambiguity, the surrounding circumstances also may be looked into.
The principle is well founded on the authority of their Lordships of the Privy Council in Nandi Singh v. Sitaram, 16 Ind App 44. In that case, the father executed a deed of gift in favour of the daughter and the son-in-law. The deed of gift was admittedly invalid as regards the son-in-law as the custom did not authorise the same. It was contended that the deed was invalid as regards both; but the contention was negatived. It would be instructive to quote the terms of the deed of gift :
'I promise and agree in writing that the donee may, from the date of execution of this instrument, take proprietary possession similar to mineover the gifted property. There has been left no claim, right or dispute to me or any of my heirs.' The contention advanced before their Lordships was that the gift being invalid as regards the son-in-law was also invalid as regards the daughter. Their Lordships construed the gift as one jointly made to the two donees. Their Lordships laiddown : '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.'
This decision illustrates the other branch of law that joint tenancy can be conferred by contract, conveyance or settlement if the transferor, testator or settlor so intends. There is no inconsistency between the two lines of decisions in 23 Ind App 37 (PC) and 60 Ind App 95 : (AIR 1933 PC 72) on the one hand and 16 Ind App 44 (PC) on the other. In Surareddy v. Venkata Subbareddi, AIR 1960 Andh Pra 368 an instructive discussion on the question has been made.
9. Looking to the terms of the compromise decree, it is clear that no words of severance were used in the document. The language used in the document leads to the only irresistible conclusion that Chaitanya and Jasoda were to take the disputed land jointly. There is absolutely no ambiguity. The same conclusion is also irresistible by reference to the surrounding circumstances. Though Chaitanya was entitled to half of the entire properties comprising about 33 acres in partition, he sacrificed his interest in most of the properties. Plaintiff got about 30 acres of land and all the moveable properties while Chaitanya and Jasoda were given only three acres and odd with absolute interest in the same and full power of disposition. If in respect of the interest of Chaitanya the property would go to his heirs to the exclusion of Jasoda, clear words to that effect would have been mentioned.
The surrounding circumstances also are consistent with that inference. Chaitanya died in 1947. If Chaitanya was a tenant-in-common, immediately on his death plaintiff would have been entitled to his interest to the exclusion of Jasoda and would have claimed possession of the property forthwith. Plaintiff's admission that Jasoda had limited interest till her death in half the disputed land is not consistent even with the concept that Chaitanya and Jasoda were tenants-in-common. If they were joint tenants, Jasoda would get the property by survivorship on the death of Chaitanya, If they were tenants-in-common, plaintiff would be entitled to half of the property on the death of Chaitanya. There is no question of his waiting to file the suit till after the death of Jasoda. The possession continued all through with Jasoda till the deed of gift and thereafter with the defendant. This is consistent with the construction that the compromise decree conferred joint tenancy on Chaitanya and Jasoda. They were joint tenants and not tenants-in-common. In this view of the matter, the construction put by the learned Courts below is contrary to law and must be set aside.
10. In the result, the second appeal is allowed with costs throughout and the cross-objection is dismissed.