Abdur Rahman, J.
1. The main point to be decided in this appeal relates to the character of the property held by Varada Pillai defendant No. 2. His father Vijayaraghava executed a will (Ex. B) on the 29th April, 1918 under which he bequeathed the property to his sons for enjoyment during their lives. It also provided against the alienations of this property by them but contained a clause that his grandchildren could do so after the property devolved on them subsequent to his sons' death. It contained a further provision for charity as well; but we are not at present concerned with the property which was reserved for charity or with the right and duty of conducting the same.
2. Vijayaraghava had three sons at the time when the will was executed, Thiruvengada Pillai, Varada Pillai and Krishna Pillai but the youngest of these (Krishna Pillai) died during his lifetime. Vijayaraghava died in October, 1918, and the eldest son of his, Tiruvengada, five years later.
3. Varada Pillai, the second defendant, entered into a partnership with the first defendant and carried on business for some time. They could not pull on satisfactorily and the first defendant brought a suit for dissolution of partnership and rendition of accounts in the Court of the District Munsif of Dharmapuri (O.S. No. 73 of 1926). A preliminary decree was passed and after the accounts were taken some money was found due to him by Varada Pillai. A final decree was consequently passed in favour of the first defendant. In execution of that decree he brought the properties in suit to sale and purchased them himself. The present plaintiffs 1 and 2 who are the daughters of Thiruvengada Pillai and the 3rd plaintiff who is the daughter of Varada Pillai brought the present suit asking for a declaration that they were the owners of the properties purchased by the first defendant and the first defendant had not acquired any proprietary rights in them by reason of his purchase through Court. The plaint also contained a prayer in the alternative that if Varada Pillai was found entitled to a third share of the income from the lands for his life time subject to the liability with which the said right was burdened under the will, that the first defendant should not get anything more than his (Varada Pillai's) right of enjoyment in a third of the suit properties during his life time. A prayer for injunction restraining the first defendant from interfering with the plaintiffs' possession of the suit properties was also included. The first defendant pleaded that the properties were the joint properties of Vijayaraghava and his sons and that the will of Vijayaraghava was for that reason invalid. The second objection raised by him was to the effect that the will was cancelled by Vijayaraghava during his lifetime and the cancellation was recorded on the back of the original will. The third plea, which is really the main plea in this appeal, was that the property was taken by Vijayaraghava's sons under the will as joint tenants and devolved on Varada Pillai as a survivor after the death of his brother Thiruvengada which he was entitled to enjoy for his life time in any case. The District Munsif of Krishnagiri held on the last the two points against the plaintiffs and dismissed their suit. On appeal to the Subordinate Judge of Salem this judgment was reversed and the plaintiffs' suit was decreed. Aggrieved by that judgment and decree the first defendant has come up to this Court in second appeal.
4. As observed by their Lordships of the Privy Council in Lal Ram Singh v. Deputy Commissioner of Pratabgarh (1923) 47 M.L.J. 260 : I.L.R. 45 All. 596 (P.C.), there is a great diversity of opinion in the High Courts in India as to the effect in a Mitakshara family of a bequest by a father of property, which in the father's hand was self-acquired to his son. No final decision was however arrived at by them and in the absence of any such decision the view consistently taken by this Court is that the father can determine whether the property which he has bequeathed shall be ancestral or self-acquired and that in the absence of any such declaration or of any circumstances which would point to a contrary intention, it would be presumed to be ancestral. This was conceded by learned Counsel for the respondents but he urged that the presumption is rebutted by the provisions in this will which indicate that Vijayaraghava did not wish to bequeath the property to his sons as ancestral property. Having gone through the will, with him I am of opinion that there is no force in this contention. There is nothing in this document which would show that Vijayaraghava did not want the property to devolve on his sons as ancestral property. The learned Subordinate Judge, on a wrong construction of this will, arrived at the conclusion that Thiruvengada's daughters would take their father's share of the property during the life time of their uncle Varada Pillai. Had this been so in fact, the presumption would have been rebutted and the decision of the lower Appellate Court would have been correct But unfortunately for the respondents it is not so. There is nothing in the will to show that the property bequeathed by Vijayaraghava or any share thereof devolved on Thiruvengada's children on their father's death. The facts that the shares were not specified in the will or the right of management was not given by Vijayaraghaya to any one of his sons do not point to the inference that the father did not want the sons to enjoy the property as ancestral. The fact that the sons had got a limited interest only in the property bequeathed to them would not also rebut the presumption of the joint tenancy. This was held by a Division Bench of the Allahabad High Court in Suraj Prasad v. Mt. Gulab Dei : AIR1937All197 , and this in spite of the fact that the view of that Court has been against the presumption as to the ancestral character of the property when bequeathed by a father which is raised in this Presidency. When a gift is made by a father to his sons the presumption of joint tenancy is stronger and it has been held to be so in a decision by a division Bench of this Court. Janakiram Chetty v. Nagamony Mudaliar I.L.R.(1925) Mad. 98 . For the above reasons I would hold that, in the absence of anything in the will which would lead me to infer Vijayaraghava's intention to be that the property should be enjoyed by his sons as tenants in common, it was enjoyed by them as joint tenants. Since one of the characteristics of joint tenancy is for the property to devolve by survivorship, Varada Pillai must be held to have, on his brother Thiruvengada's death, got the property by survivorship.
5. The second contention advanced by learned Counsel for the appellant was that inasmuch as the original will was not produced on behalf of the respondents, it would be presumed to have been cancelled by Vijayaraghava.
6. [His Lordship dealt with the evidence and concluded:]
7. At all events there is nothing on the record to show that this will was cancelled by Vijayaraghava and in the absence of any such evidence on the record the finding must have been, as it was, against the first defendant.
8. I would therefore hold that a decree should have been passed in favour of the plaintiffs even if the property was found to have been held, as I have now found it to be, by Varada Pillai as a joint tenant. The lower appellate Court has given an indication in its judgment of what the decree should have been in that event. Since I am not agreeing with the lower appellate Court's finding in regard to the tenancy being in common the alternative decree suggested by the lower appellate Court appears to be correct.
9. The result is that the appeal is accepted to that extent and a decree is passed in favour of the plaintiffs in the terms suggested by the learned Subordinate Judge in the event of the property in Varada Pillai's hands being found to be ancestral although limited as a life estate. In view of the fact that the first defendant is succeeding to a large extent I would give him two thirds costs in this and in the lower appellate Court and one third costs in the trial Court.