1. The appeal raises the question of the nature of the interest conferred upon three sisters in a Malabar Marumakkathayam family by reason of the acquisition of properties in their name with funds which have been held to have been supplied by their brother Chandu.
2. The appellant is the plaintiff who is the son of one of the sisters who died in 1903. Another sister died childless in the same year. In 1918, the brother Chandu and the surviving sister executed a gift deed in favour of the grandchildren of the surviving sister now represented by defendants 4, 5 and 6. Both the Courts held that the funds by which these properties were acquired were the funds of the brother Chandu and that he intended to create a beneficial interest in favour of his sisters. The trial Court held that the three sisters took the property as tenants-in-common and that therefore the plaintiff was entitled to claim one-third share as heir of his mother. The learned Subordinate Judge evolved a theory which was quite inconsistent either with the plaintiff's theory that the sisters were tenants-in-common or the defendants' theory that the sisters were benamidars. He observes that the fact that the documents of title were taken in the joint names of the three sisters discloses that Chandu's intention was that these sisters should hold together either as joint tenants or as members of a tavazhi with the incident of impartibility. 'Any thing like a tenancy-in-common was far from the contemplation of Chandu.' The learned Subordinate Judge observes:
If there had been any such intention, it would have been very easy to give effect to it by allowing the acquisitions to stand separately in the name of each of the three sisters.
3. These observations seem to me to involve an error of law and an error of logic. To say that a tenancy-in-common could have been created by taking the documents of title for the various items separately in the names of one or other of the three sisters seems to me to be a logical incongruity. To say that when a gift is put in the names of three sisters jointly, there is a presumption that they take as joint tenants with rights of survivorship is to apply to Indian conditions an English rule of conveyancing which has frequently been held to be inapplicable in India. It is unnecessary for me to enumerate the cases which have been cited before me on that subject. The law is clearly summarised in Mayne's Hindu Law (latest edition), page 903, where it is said that the principle of joint tenancy is unknown to Hindu Law except in the case of joint property of an undivided Hindu family and that the prima facie inference that a gift to undivided brothers makes them take as tenants-in-common can be displaced by express words or other sufficient indication making the estate granted a joint estate with rights of survivorship. But the learned Subordinate Judge after these observations does not proceed to infer that the transactions under consideration created a joint tenancy in favour of the three sisters only. What he does is to take into consideration subsequent dealings with another property acquired in the names of the three sisters contemporaneously with the acquisition of the suit properties and he comes to the conclusion that, because the brother and surviving sister dealt with this item of property on the assumption that no one besides themselves had any interest after the death of the two deceased sisters, the original intention when all these properties were acquired was to create a joint tenancy with rights of survivorship in favour not only of the three sisters but also of the brother with whose funds the properties were acquired. This conclusion seems to me to involve an inference that the three sisters held the properties as to three-fourths of their value beneficially and as to one-fourth of their value as benamidars for their brother.
4. There are cases in which it has been held that a document may convey a beneficial title as to one item, while being a benami transfer as to another item included in the genuine deed in order to defeat creditors. But I am not aware of any decided case in which it has been held that persons in whose favour a single property has been transferred can take a beneficial interest in that property while at the same time constituting themselves benamidars in an undivided and unspecified share in favour of the person who provides the funds. It seems to me that the evidence in this case is not sufficient to establish a joint tenancy with rights of survivorship at all. Such a tenure is certainly a very unusual tenure to create by means of a gift to persons of the community to which the parties belong and it would, to my mind, require very clear and positive evidence of intention on the part of the donor to justify any such inference. But the learned Subordinate Judge has inferred a still more unusual tenure, that is to say, a joint tenancy with rights of survivorship between the three nominal owners and a fourth person to whom the deed passes no title. I find it difficult to imagine any legal process by which such a result could be reached. The inference is based upon Ex. XXII and the connected document, which could equally well be explained by the theory that all the three sisters were benamidars for their brother. I do not want to be understood to express any opinion on the question whether these properties were held by the sisters beneficially or as benamidars for their brother. But I do find that the learned Subordinate Judge was wrong in inferring that there was no tenancy-in-common from the fact that the three sisters were made joint holders of the property in the documents of title and that he has come to a conclusion regarding the title to these properties which is not only foreign to the pleadings, but is incompatible with the form of the deeds.
5. In this view, I allow the appeal and remand it to the District Judge, North Malabar for fresh disposal in the light of this judgment. Costs will abide by the result.