Kumaraswami Sastri, J.
1. The only question raised in these appeals is whether the respondent, who is a legatee under the will of one O. Kandaswami Mudaliar, took the property bequeathed under the will as a tenant-incommon with his father and brothers or as a joint tenant.
2. The will which has been probated is filed as Ex. F. The testator Kandaswami Mudaliar died leaving a widow, three sons and two daughters. He also left two brothers one of whom was Kadirvelu Mudaliar (father of the respondent) who was appointed executor. There was another brother Krishnaswami Mudaliar who had two sons. So far as the respondent is concerned, the terms of the will concerning him are very short. Paragraph 4 of the will says:
Items 4, 5, 6, 7, 8 and 9 under assets in paragraph 1 above, 1 bequeath and leave to my brother G. Kadirvelu Mudaliar and his sons.
3. Paragraph 5 goes on to state that in consideration of the help given by Kadirvelu Mudaliar as regards the business carried on by the testator, he bequeaths to Kadirvelu Mudaliar and his two sons a half share in the stationery business carried on in the Minerva Press and Thompson and Company, that the stationery business should be conducted by Thompson and Company, that the profits arising from the same, as per accounts separately and correctly maintained, should be divided equally every year before the end of March between his sons on the one part and his brother and his. sons on the other. In case his sons do not agree with his brother and his sons, the stationery and stock-in-trade were to be valued and the testator's sons were to give Kadirvelu and his sons one-half of the estimated value.
4. It appears from the evidence, and it is not disputed before us, that the testator and his brothers were members of a divided family and that the brothers and their children were living together as members of an undivided family, though it is contended by the respondent's vakil that there was no joint family property owned by Kadirvelu and his sons who were legatees aforesaid. It is also clear from the evidence that Kadirvelu and his sons would not, in the ordinary course, succeed to the properties of the testator as the testator left a widow, sons and daughters and that Kadirvelu and his sons were at best only remote heirs.
5. So far as the terms of the will go, there is very little to indicate that Kadirvelu and his sons were to take the property as members of a joint family with rights of survivorship. It is argued by the vakil for the appellant that the fact that the testator gives the property to Kadirvelu and his sons without naming his sons and the fact that in paragraph 10 of the will the gift to the daughters provides for a sale of the house and the division of the sale-proceeds equally among the daughters, if necessary, indicate that the gift to Kadirvelu and his sons was a gift to them as members of a joint family. It is argued by the respondent's vakil that the fact that paragraph 3 of. the will which gives certain items to the sons of the testator expressly states that the property shall be the common property of his sons whereas the next paragraph which contains a gift to Kadirvelu and his sons does not make any such statement as to the property being common property shews that the testator's intention was the other way. It is also stated that the clause as regards the daughters in paragraph 10 of the will was so worded because one of the daughters was omitted and so it was necessary to mention the names and that as the property was a house which could not be divided equally, provision had to be made for the distribution of the sale-proceeds. If we had to depend solely on the will and look to its terms for a construction of the estate which Kadirvelu and his sons took, I do not think it can be said that there was an intention displayed by the testator in express language to indicate that Kadirvelu and his sons took the property as members of a joint family with all the rights and obligations arising therefrom. Some reliance was placed by the vakil for the respondent on the fact that Kadirvelu, who was execu tor and trustee under the will, shortly after the will executed conveyances to the various legatees including himself and his sons and that the terms of these conveyances indicate that the donees took the property as tcnants-in-common and not as joint tenants.
6. It was argued that even assuming that the intention of the testator was that the gift was to be taken by them as members of a joint family, the act of the executor in conveying the estate to the various legatees as tenants-in-common was sufficient to impress the legacy with that character whatever may have been the intention of the testator. This question was not raised in the pleadings nor was it put in issue and as pointed out by the vakil for the appellants there are subsequent documents which show the dealings with the property by the adult members of the joint family and I do not think this aspect of the question can be raised for the first time in appeal as it is a mixed question of law and fact as to how the property was treated after the death of the testator.
7. Another question which was raised before the learned Trial Judge was whether, if Kadirvelu and his sons had no joint family properties at the date of the gift, it can be said that they are members of a joint undivided Hindu family so as to call in aid the presumption that the gift to them was as joint tenants. The argument that found favour with the Trial Judge was that if there was no joint family property in existence there could be no joint family. In cases where persons live together and are joint in food and worship, it is difficult to conceive of their possessing no property not even the ordinary household articles which they would enjoy in common. There is nothing in Hindu Law which states that the properties should be immoveable properties or that there should be any minimum value which is required to constitute a joint family. It is therefore very difficult to say of any persons that live together, unless they are a number of ascetics owning no properties at all in the world, that there is no property-in-common of any sort or kind. Nor is there anything in Hindu Law which says that possession of property is a necessary requisite for the constitution of a joint family. It is no doubt true that so far as Courts are concerned, the affairs of a joint family can come before a Court only where property is involved, but that is due to Civil Courts not taking cognizance of disputes unless they are of a civil nature and such disputes can hardly arise where there is no property worth the name which the joint family possesses. Supposing that a family is joint and possess joint property, all of which is either destroyed by fire or flood or is stolen or alienated, can it be said that the moment this happens the family becomes a divided family, and does it become joint family again if properties are again acquired by the members? I think it will lead to strange consequences if such a doctrine was upheld. I am not prepared to assent to the broad view that the possession of property is a necessary element in determining whether persons are joint or separate. A joint family is composed of persons who live together and who are joint in food and worship and the possession of property is not a condition precedent to the establishment of their status.
8. I do not think that the question whether the donees had or had not joint family properties has any bearing on the construction of the will.
9. In this state of things we have to fall back upon the presumption that arises in cases of gifts of this kind, viz., gifts to persons who constitute a joint family.
10. In dealing with this class of cases I think that a difference should be made between cases where gifts to persons who form a joint family are made by persons to whom they would succeed according to the law of intestate succession if no will was made, for example, gifts by a father to his children and by a husband who dies without issue to his wife or daughter and cases where gifts are made by will by persons to whom the donees! would not inherit and who could have no interest in the properties on the death of the testator but for the will. In the former class of cases the authorities in Madras show that a presumption may be drawn that the donees were intended to take the estate as joint tenants but I do not think that in the latter class of cases there is any ground or necessity for drawing such a presumption. There is a conflict of opinion between the various High Courts even as regards cases where a father bequeaths property to his sons who are members of an undivided family. It is unnecessary to refer to the various decisions of the various High Courts as their Lordships of the Privy Council in Lal Ram Singh v. Deputy Commissioner of Partabgarh (1923) 47 MLJ 260 have summarized the authorities. Their
11. Lordships observed as follows:
It appears that there has been great diversity of opinion in the High Courts in India as to the effect in a Mitakshara family of a bequest, made by a father of property which in the father's hands was self acquired, to his sons. In Calcutta, in 1863, the point first arose in the case of Muddan Gopal v. Ram Buksh (1866) 6 WR 71 when it was held that such property would be ancestral, and this has been followed in the later case of Hazari Mall Babu v. Abaninath Adhurjya 17 CWN 280 decided in 1912. In Madras, upon the whole, the view seems to be that the father can determine whether the property, which he has so bequeathed, shall be ancestral or self-acquired on the principle of cujus est dare ejus est disponre, but that unless he expresses his wish that it should be deemed self-acquired it is ancestral. See Tara Chand v. Reeb Ram (1866) 3 MHC 50 and compare it with Nagalin-(jam Filial v. Ramachandra Tevar : (1901)11MLJ210 and other cases. In Bombay, on the other hand, the principle of intention seems to have been accepted if it makes the property ancestral, but if there be no expression of intention it is deemed self-acquired. See Jugmahondas Mangaldas v. Sir Mangaladas Nathubhoy ILR (1886) 10 bOM. 528 and Nanabhai Ganapatrao Dhairyavan v. Acharatbai ILR (1886) 12 Bom. 122 At Allahabad the decision was that such property is self acquired. See Parsotam Rao Tantia v. Janki Bai ILR (1907) All 354 decided in 1907. Finally in Oudh, in the case of Rameshar v. Mussammut Rukmin (1909) 14 OC 244 decided in 1909, after a review of all the cases, it was held that, where self-acquired property is bequeathed to sons, in the absence of language clearly indicating the testator's intention that the property should be held by the sons subject to the incident of survivorship. it should be presumed that each son takes an interest which passes to his heirs at his deathBut their Lordships deem it unnecessary to pronounce upon these points. It may be that some day this Board will have to decide between, the conflicting decisions of the Indian High Courts, and it may be that when this time comes, this Board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case.
12. In Naqalingam Pillai v. Ramachandra Tevar ILR (1901) Mad 429 which is the leading case on the subject in Madras, the will was by a Hindu father who was possessed of self-acquired property and the disposition was in favour of his sons. Shephard, J., after stating that the father might have bequeathed the property to a stranger and that his sons could not have called the dispositions in question observed:
As the father is at liberty to make any disposition he pleases or to leave his self-acquired property to descend as ancestral property, so when making any disposition in favour of his son, he is at liberty to preserve for the property the quality of ancestral property. Whether in any given case the property was intended to pass to the son as ancestral property, or as self-acquired property must he a question of intention turning on the construction of the instrument of gift. Following the principles laid down in Mahomed Shumsool v. Shevukram (1875) 2 I.A. 7. I think that if there are no words indicating a contrary intention, the natural inference should be that the father intended his sons to take his property as their ancestral estate.
13. Yathirajulu Naidu v. Mukunthu Naidu : (1905)15MLJ299 is also a case where a father bequeathed property to his sons; Subramania Aiyar; J.; at page 373 observes as follows:
The remaining point for consideration in connection with this house is whether the sons took it as tenants in common as contended on behalf of the 4th defendant. The decision of the Judicial Committee in Jogeswar Narain Das v. Ram Chund Dutt (1896) 6 MLJ 75 points out that the principle of joint tenancy as obtaining in England is quite foreign to the Hindu Law and that, when property is gifted to more than one, in the absence of anything in the grant to the contrary, the presumption is that the donees take as tenants-in-common. But as implied in that decision itself joint ownership of another description is of course not only not foreign to the Hindu system, but quite familiar to it; viz.; that special kind of which the joint holding by the members of an undivided Hindu family is the type. And in cases like the present, the question for determination is but one of intention to be ascertained with reference to the terms of the particular will. If the grant is to persons who are incapable of forming a Hindu joint family, they can of course take only as tenants-in-common. If, on the contrary, the grant is to persons who constitute such a family, even then it may be that the prima facie view is, that they take in severalty and that those who argue in favour of the opposite construction have to show some clear foundation for it in the terms of the will. Of course, the donees here, the sons, were persons who could be, and were, members of a joint family.
14. Venkaiaramiah Pantulu v. Subramaniam Pillai (1914) 16 MLT 489 was a case where the will was by a father giving property to his sons. Indoji Tithoji v. Kothapalli Rama Charlu (1919) 10 LW 498 was also a case of a Hindu father bequeathing his self-acquired property to his sons by will and Abdur Rahim and Spencer, JJ., referred to Nagalingam Pillai v. Ramachandra Tevar : (1901)11MLJ210 with approval. In Raja of Ramnad v. Sundara Pandiaswami Thevar : AIR1915Mad664 Seshagiri Aiyar J., considered the case where property was given to a son by a father and observed: 'In my view the fact that the defendant took the estate as a gift from his father will not take away the liability which would have devolved on him if he had succeeded to the property as son and heir. As pointed out in Nagalingam Pillai v. Ramachandra Tevar : (1901)11MLJ210 where property is given by will to a person who would otherwise be entitled to it as heir, the character of the property is not changed. The same principle should be extended to transfer inter vivos.'
15. In fact it was conceded in the course of the arguments that all the Madras cases with the exception of the case reported in Mahalakshmi Amma v. Nagappa (1921) 62 IC 814 are cases where the gifts are by a father to his sons. Mahalakshmi Amma v. Nagappa (1921) 62 IC 814 was no doubt a case where the gift was by a person to whom the donees would not be heirs in the ordinary course of events; but the judgment proceeds on the ground that the terms of the will indicate that the donees were intended to take the gift as members of a join family, the circumstance being that the adult member was to manage the properties. As regards cases where the donees, though forming members of a joint family, would not succeed in the ordinary course, I see no reason to extend the same principle. I can find nothing in the authorities which state that the mere fact that a gift was to persons who formed the members of an undivided family by a person to whom they would not succeed on intestacy or by a stranger, without more, necessarily implies that the donees were intended to take the gift with all the incidents of joint family property, because they are members of a joint familyespecially as members of a joint family can and often do own separate or self-acquired property. It is a well-settle rule of Hindu Law that in cases of obstructed inheritante a male succeeding takes the property as a tenant-m-common and not as a joint tenant. If, as I take it in Nagalingam Pillai v. Ramachandra Tevar : (1901)11MLJ210 the ratio decidendi is that because but for the will the donee would have taken it as ancestral property, it is therefore a reasonable presumption to draw that where a testator gives property to such a person without in terms indicating his intention he intended it to be taken in the same character as he would have taken but for the disposition this would not apply to cases where the donees would succeed, if there was an intestacy, as tenants-in-common, or in eases where they would not be even rever-sioners to the estate but strangers. There is no reason for it. In Mahomed Shumsool v. Sevakram (1875) 2 IA 7 their Lordships of the Privy Council remark that it may be assumed that a Hindu knows as a general rule at all events women do not fake absolute estate of inheritance which they are entitled to alienate, and that, in construing the will of a Hindu, it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the disposal of property. In cases of persons who, like the respondent, his father and brothers in the present case, would, if they succeed eventually take as tenants-in-common under Hindu Law, there is no reason to suppose that the testator, knowing this fact, intended them to take as joint tenants, it is more reasonable to presume that he wanted them to take the ordinary estate they would have taken if they succeeded on intestacy and to require express words if the contrary was intended by the testator. There is in my opinion little reason to apply the observations of the Privy Council to cases of bequest to persons who would not take the estate as joint tenants if they succeeded on intestacy and much less to persons who would not be heirs in any event. In Rewun Persad v. Mussamat Radha Beebi (1856) 4 MIA 137 the testator gave his widow a life-estate in all his property and after her decease he gave one-half to his brother and his sons. It was held that the sons took a vested interest in the property as tenants-in-common and not as joint tenants. The facts of this case show that at the date of the death of the testator the brother and his sons to whom one-half was given were members of an undivided family and that the division was only afterwards, and their Lordships of the Privy Council observed: 'The testator after the death of his widow, gives the property to his brother Beekhary Das. After his death it becomes divisible into two parts. We apprehend that they would take as tenants-in-common; in fact, that they had each of them a vested interest in one-fourth share not to come into actual enjoyment till the death of the widow.'
16. It is difficult to distinguish the facts of that case from those of the present one with the exception that the sons were named by the testator in Rewan Persad v. Mussamat Radha Bibi (11856) 4 MIA 137 but in the present case the gift was to the father and his sons, the sons not being named; but I do not think that makes any difference. In Karuppai Nachiar v. Sankara narayana Chetti (1904) 13 MLJ 398 Sir Arnold White, C.J. and Subramania Aiyar and Bhashyam Aiyangar, JJ., who constituted the Full Bench observed at page 305:
It would be revolutionary to hold that all property which comes to two or more persons who happen to be members of an undivided family is taken by them with benefit of survivorship, and there is no warrant whatever in the Mitakshara for such a general proposition. It has been held in more cases than one that the property which comes to members of an undivided family by devise or gift is not taken by them with benefit of survivorship.
17. And after preferring to the decision of their Lordships of the Privy Council in Venkayamma Garu v. Venkataramay-amma Bahadur Garu (1902) 12 MLJ 299 they observed:
But their Lordships have abstained from laying down that, as a universal rule, a heritage which devolves upon coheirs who happen to be all or some of the members of an undivided family under the Mitakshara is taken by them with benefit of survivorship.
18. Reference has been made by Mr. Alladi Krishnaswami Aiyar to Chakara Kantian v. Kunhi Pokker (1916) 29 MLJ 48 which was a case of gift by a person to his wife and children following the Marumakkatayam law and it was held that the donees took the property with the incidents of tarwad property. Here again it is a case where the gift is by a father to his wife and children and even though there was no marriage in the strict sense of the term in Malabar the same intention can be assumed where a father gives property to his wife and children as was assumed in Nagalingam Pillai v. Ramachandra Tevar : (1901)11MLJ210 Moreover, it would be unsafe to apply to a joint family under the Mitakshara the same principle as would apply to tarwads in Malabar where partition is, except by consent of all parties, impossible.
19. The view 1 take is that in cases where the donees are the sons and grandsons and would succeed to the property of the testator in the absence of any testamentary disposition and take the property as ancestral property, the presumption may be drawn, where the will is silent as to the nature of the estate conferred, that they would take it as unobstructed heritage with the same incidents as would follow if there was no will. But where the donees, though members of a joint undivided family, are not related to the testator or, though related to him, would in the absence of any will either immediately or at a later stage take the property as obstructed heritage and only as tenants-in-common, there is no reason for applying the presumption that the testator by devising the property to them intended that there should be a joint tenancy. As pointed out by their Lordships of the Privy Council in Jogeswar Narain Das v. Ram Chund Dutt (1896) 15 MLJ 299 which overrules the decision in Vydinada v. Nagammal (1887) 11 Mad 258 the principle of joint tenancy is quite foreign to Hindu Law and that the ordinary rule is that where property is given to two or more persons they take it as tenants in common. It is no doubt true as pointed by Subramania Aiyar, J., in Yethirajulu Naidu v Mukunthu Naidn : (1905)15MLJ299 gifts may be made to a joint family but I think that unless the gifts are made in such terms as would clearly indicate that the donees should take them as joint family members with the rights of survivorship, the mere fact that the donees are members of a joint family ought not to determine that they take it with benents of survivorship and with all the liabilities of properties which are joint family properties.
20. I think the decision of the learned Trial Judge is correct and would dismiss the appeals with costs.
21. The point for decision in these appeals is what estate did plaintiff and his brothers and his father Kathir-velu Mudaliar take in the suit properties under the will of his father's divided brother Kandaswami Mudaliar, Ex. F, was it a joint estate with incidents of joint family property attached to it or did they take each an one-sixth share separately as tenants-in-common?.
22. The decision turns on the words of the will. The will says in paragraph 4, Items Nos. 4, 5, 6, 7, 8, and 9 under assets in paragraph 1 above, '1 bequeath and leave to my brother O. Kathirvelu Mudaliar and sons.' It is not denied that under this clause the five sons and their father are joint legatees of the properties mentioned, some of which are the suit properties; it is not argued that the words 'and his sons' are mere words of purchase. As the testator was dealing with his self acquisition it is clear that it was open to him to give the properties to Kathirvelu and his sons as joint family property just as it was open to him to give them separate shares in the property. The question is what did he do in this case.
23. A good deal of argument was addressed to us as to what proper presumption is to be drawn in such a case. It has been held in Madras that where a father gives his self-acquisitions to his sons by a will the proper presumption is that he gave them a joint estate with the incidents of joint family property unless the contrary is clear from the words of the will or otherwise. This was so laid down in Nagalingam Pillai's Case (5), and that view has since been followed in this Court. The same view is taken in Calcutta but in Bombay and Allahabad the presumption is held to be in favour of the view that the sons take such property as self-acquired property. This conflict of opinion was brought to the notice of he Privy Council in the recent case of Lal Ram Singh v. Deputy Commissioner of Partabgurh (1923) 47 MLJ 260 but while their Lordships set out what they consider the views of the different High Courts to be on page 604 they decided it unnecessary to pronounce on the point. We must therefore follow the Madras view on the point. The present case however is not on all fours with the Nagalingam Pillai's case (5) as here we have a bequest by a Hindu to his divided brother and hi;; sons and not one by a Hindu father to his sons. The Privy Council point out in page 605 that 'the principle upon which it is contended that such property (that is property bequeathed by the father to his sons) should be deemed ancestral is that the son is only getting by his father's will that which, but for the will, he would have received by descent according to the Mitakshara Law.' Now this principle obviously cannot apply to the bequest by the divided brother as the legatees will not get the properties by inheritance except for the bequest. The remote contingency or their taking as reversioners does not affect the question.
24. On the other hand it is argued that in all cases where property is given to more than one person the donees take separately as tenants-in-common and not as joint tenants and reliance is placed on the ruling of the Privy Council in Jogeshwar Narain Das v. Ram Chandra Dull (1896) 6 MLJ 75 . No doubt that case lays down that the principle of joint tenancy is quite foreign to Hindu Law and that where property is given to two or more donees they take as tenants-in-common. But as pointed out by Subramania Aiyar, J., in the case of Yelhirajulu Naidu v. Mukunthu Naidu : (1905)15MLJ299 Hindu Law is quite familar with one kind of joint tenancy, namely, the joint holding, by members of an undivided Hindu family. If property is therefore given in terms expressly to a joint Hindu family in my opinion the family would take it with all the incidents of ancestral or joint family property. There is nothing in the Privy Council decision or in the principles laid down by their Lordships contrary to the above veiw. If the gift is to the family, the family will take the property and hold it as other family property and it would not matter who made the gift. The question therefore has to be decided on the words of the will whether the bequest was to the joint family or to the members of it individually 'in which case they would no doubt take in severalty.
25. I do not agree with the learned Judge that Kathirvelu and his sons did not constitute a joint family on the ground that they had no property at all. The learned Trial Judge has accepted the argument that the existence of joint property is an essential requisite to constitute a joint family. With respect I am unable to accept this position. Hindus get a joint family status by birth and the joint property is only an adjunct of the joint family. So long as the status continues the family constitutes a joint family. The plaintiff's vakil concedes that even according to his argument the existence of a Chembu or a pot common to all the members is sufficient to constitute a joint family. That shows to my mind the unreal character of the contention. When asked what the position of the family is before it gets joint property, whether it is a divided family or joint family the plaintiff's vakil could not say. According to him the joint family ceases every time when joint property is wholly lost and revives again when any joint property is again acquired. We cannot accept a contention leading to such a position. The possession of joint property is no doubt a normal incident of joint Hindu family but it is not in my opinion a pre-requisite for its constitution. In the passage in Sir Bhashyam Aiyangar's judgment in Sudarsanam Maistri v. Narasimhulu Maistri : (1901)11MLJ353 quoted by the learned Trial Judge, he was discussing the Mitakshara doctrine of point family property and not the requisites of a joint family. I have no doubt that Kathirvelu and his sons constituted a joint Hindu family when the will took effect. But it cannot be said that there is anything in the will to show definitely and clearly that the bequest was to the family and not the individual members thereof separately. The ordinary presumption that when there are several joint donees they take as tenants-in-common must therefore prevail. I agree with my learned brother that these appeals fail and must be dismissed with costs.