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Arakal Joseph Gabriel Vs. Domingo Inas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1911)ILR34Mad80
AppellantArakal Joseph Gabriel
RespondentDomingo Inas and ors.
Cases ReferredMankamma Kunwar v. Balkishan Das I.L.R.
Excerpt:
joint tenancy, presumption of, where no words used - gift--donor guardian for donees--management handed over on different dates--effect of--transfer of property act, section 45. - .....is, whether the father had any interest in the property? it is argued that on the death of the two children the father inherited their two-thirds share to the exclusion of the surviving brother under the indian succession act. we are unable to agree with this contention; there are no words in the instrument of gift which indicate an intention to create tenancies in common. the rule of. english law is to presume that the doness are joint tenants, this principle is adopted by the indian legislature in the illustration to section 93 of the succession act. the illustration no doubt deals with the case of a legacy. but the same principle is applicable to wills as to gifts unless there are special rules justifying a deviation. we must therefore regard the gift in this case as joint. it has.....
Judgment:

1. The first defendant, a Native Christian, made a gift of property to his three children: two of them died. The father mortgaged the property to the plaintiff. The question is, whether the father had any interest in the property? It is argued that on the death of the two children the father inherited their two-thirds share to the exclusion of the surviving brother under the Indian Succession Act. We are unable to agree with this contention; There are no words in the instrument of gift which indicate an intention to create tenancies in common. The rule of. English law is to presume that the doness are joint tenants, This principle is adopted by the Indian legislature in the illustration to Section 93 of the Succession Act. The illustration no doubt deals with the case of a legacy. But the same principle is applicable to wills as to gifts unless there are special rules justifying a deviation. We must therefore regard the gift in this case as joint. It has been argued that Courts of Equity in England favour tenancies in common. But it has not bean pointed out that in any English case upon a simple gift to A and B, a tenancy in common was presumed by the Court of Equity. It is next urged that the father 'retains possession as guardian till the children attain majority which must be on different dates and that this indicates a severance of interest. But the vesting of the property is on the same date and the beneficial enjoyment of all commences at the same time. We cannot treat the difference in date as to the banding over of management as any ground for holding in favour of tenancy in common. No authority has been cited in support of this contention.

2. It is further argued that the English law ought not to be applied to this country. The decision in Navroji Manockji Wadia v. Perozbai I.L.R. (1899) Bom. 80, was no doubt in a case which arose within the original jurisdiction of the High Court of Bombay. But we see no objection to the application of the English rule in a matter in which the Indian legislature has shown its leaning in its favour.

3. Our attention was drawn to Section 45 of the Transfer of Property Act. That relates to transfers for consideration. The principle of that section does not apply to gifts. The amount of consideration paid by each measures the interest of each in the property bought. Gifts stand on a different footing. We must therefore agree with the learned Judge in the Court below that the mortgage by the first defendant passed no interest to the plaintiff. We may point out that the decision in Mankamma Kunwar v. Balkishan Das I.L.R. (1906) All. 38, in which the parties were Hindus does not apply. We dismiss the second appeal with costs.


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