P. Rajagopalan, O.C.J.
1. The second plaintiff is the son of the first plaintiff. The first plaintiff was Venkatakrishnama Naidu's sister's son. Venkatakrishnama had no childeren of his own. The first defendant is the foster daughter of Venkatakrishnama, and the second defendant is her husband. They also lived with Venkatakrishnama in his house, No. 32, General Muthiah Mudali Street. On 1st December, 1943, Venkatakrishnama executed a deed of settlement, Exhibit P-1. He reserved a life interest in the house, the only piece of property dealt with under Exhibit P-1, for himself, after which it was to go to plaintiffs 1 and 2 for their life with a gift over to the descendants of the second plaintiff. Exhibit P-1 also provided for the payment of Rs. 25 a month by plaintiffs 1 and 2 to the first defendant, the foster daughter of Venkatakrishnama. It further directed the ' beneficiaries ', as plaintiffs 1 and 2 were styled, to perform every year at a cost of about Rs. 50 the Sri Alamelumanga Thayaramma Garudotsavam in the Bairagimadam Temple, Madras.
2. On 14th December, 1944, Venkatakrishnama executed Exhibit P-2 under which he purported to revoke the settlement effected under Exhibit P-1. It may not be necessary to refer to all the recitals or even to all the dispositions made under Exhibit P-2 except that defendant 5 was appointed a trustee and that in addition to the first defendant whose monthly allowance was reduced to Rs. 20, the second plaintiff defendant 2, defendant 3, defendant 4 and defendant 5 were to receive for their lives specified shares in the balance of the income from the house. Venkatakrishnama informed the plaintiff of the revocation of Exhibit P-1 and the execution of Exhibit P-2 in January, 1945, but they immediately repudiated his right to revoke Exhibit P-1. Venkatakrishnama died in January, 1948.
3. Shortly after the death of Venkatakrishnama, the plaintiffs instituted the suit, out of which this appeal arose for recovery of possession of the house from the defendants basing their claim on Exhibit P-1. That claim was resisted by defendants 1 and 2. They pleaded that, as the execution of Exhibit P-1 was vitiated by the exercise of undue influence, no rights could be based upon Exhibit P-1 and that Exhibit P-2 therefore should prevai1. Alternatively the defendants pleaded that even if Exhibit P-1 was not voidable, the plaintiffs were estopped from claiming any rights under Exhibit P-1. Exhibit P-1 had directed plaintiffs 1 and 2 to discharge the encumbrances which they did. But the plaintiffs reimbursed themselves by accepting a promissory note from Venkatakrishnama on 9th January, 1947. Balakrishna Ayyar, J., who tried the suit, rejected the plea of undue influence as unproved, and he held that Venkatakrishnama was not entitled to revoke Exhibit P-1, and that Exhibit P-2 did not therefore prevail as against Exhibit P-1. The learned Judge found that the first plaintiff had accepted from Venkatakrishnama the promissory note, dated 9th January, 1947, and that the effect of that transaction was that the first plaintiff released his rights under Exhibit P-1 in favour of Venkatakrishnama. The learned Judge held that that did not affect the rights of the second plaintiff under Exhibit P-1 and summed up:
In the result there will be a decree declaring that the second plaintiff is entitled in respect of one half of the suit property to an interest limited and defined by the terms of Exhibit P-1 and subject thereto giving him joint possession with the defendants.
The relief granted to the second plaintiff was thus explained by the learned Judge:
It is only on the death of the first plaintiff that the interest created in his favour by Exhibit P-1 would pass to the second plaintiff. The life estate of the first plaintiff would as a consequence of the release go back to the settlor and not having been disposed of by him would go to his heirs. The position therefore is that the first plaintiff is not entitled to the property while the second plaintiff is entitled to possession of only one half.
5. The plaintiffs appealed against the judgment of Balakrishna Ayyar, J. During the pendency of that appeal the first plaintiff died.
6. The main contention of the learned Counsel for the appellant before us was that after the death of the first plaintiff the second plaintiff was entitled to a life interest in the whole property under the terms of Exhibit P-1 subject of course to the other conditions imposed by Exhibit P-1.
7. Though defendants 1 and 2 did not prefer a memorandum of cross objections with reference to the one half in the house, the right to possession of which by the second plaintiff was upheld by the learned Judge, the learned Counsel for the defendants respondents sought to sustain the judgment under appeal by putting forward the argument that the learned Judge's finding that the execution of Exhibit P-1 was not vitiated by the exercise of undue influence was incorrect. On merits that argument deserves little consideration. As the learned Judge pointed out though there was evidence to show that before the execution of Exhibit P-1 Venkatakrishnama had run the risk of being prosecuted by the police for preferring a false complaint of theft, there was really no evidence to show that the first plaintiff or the second plaintiff, or both together could have done anything to avoid that prosecution or to use that threat of prosecution for bargaining with Venkatakrishnama for the execution of Exhibit P-1. The learned Judge, in our opinion, rightly found that the execution of Exhibit P-1 was not in any way vitiated and that the settlor Venkatakrishnama was not entitled to revoke Exhibit P-1.
8. The learned Counsel for the appellants did not consider it necessary to challenge the correctness of the finding of the learned Judge, that the first plaintiff accepted a promissory note executed by Venkatakrishnama on 9th January, 1947, which in effect repaid the first plaintiff the monies he had expended in clearing the encumbrances on the house under the directions given in Exhibit P-1. We do not consider it necessary to discuss the legal effect of that transaction. The learned Judge, it should be remembered, held that the legal effect of that transaction was a release by the first plaintiff in favour of Venkatakrishnama of the first plaintiff's rights under Exhibit P-1. Whatever it was that the first plaintiff gave up and whatever be the validity of the transaction characterised as a release, that did not affect the interests of the second plaintiff; nor could it affect the second plaintiff's rights in the property after the lifetime of the first plaintiff. Those rights of the second plaintiff have to be determined only on the basis of Exhibit P-1.
9. In Exhibit P-1 plaintiffs 1 and 2 were designated the beneficiaries. The relevant portion of Exhibit P-1 ran:
The settlor hereby reserves a life interest for himself in the said immovable property...the settlor hereby grant, convey and assign unto the said beneficiaries subject to the said life interest of the settlor in the said immovable property and subject to the terms and conditions hereinafter mentioned...all the right, title and interest...to be hereby granted and conveyed and assigned unto the use of the said beneficiaries for their lifetime, with remainder absolutely to the use of the son or sons of the second of the beneficiaries above named severally and in equal shares...and in case the immediately foregoing limitation should not take effect at: the death of the beneficiaries above named with remainder absolutely to the use of the daughter or daughters of the second of the beneficiaries abovenamed severally and in equal shares with absolute powers of enjoyment and disposition...and in case neither of the two immediately preceding limitations should take effect at the death of the beneficiaries abovenamed, the said immovable property hereby conveyed and assigned shall be taken absolutely by the second of the beneficiaries himself.
Balakrishna Ayyar, J., held:
Though Exhibit P-1 does not in express terms say that the interest created in favour of the first and second plaintiffs is a joint interest, one may infer regard being had to the relationship between the first and the second plaintiffs and the ordinary notions of a Hindu, that Vonkatakrishnama Naidu intended to give them a joint estate.
10. Though we have reached the same conclusion, that on the death of the first plaintiff the second plaintiff became entitled to a life interest in the whole house, that conclusion cannot be based on any presumption of joint tenancy. It should be taken as well-settled now that no such presumption prevails in India. An inference can be drawn that the settlor intended to and did create a joint tenancy but that inference must be based primarily on the terms of the deed of settlement, in this case Exhibit P-1.
11. We have already set out the relevant terms of Exhibit P-1. The grant was to both the beneficiaries, the first and second plaintiffs. The rule of construction applicable to similar grants Was thus summed up in Theo bald on the Law of Wills, Eleventh Edition at page 436:
Where there is a gift equally between A, B and C during their respective lives and after the death of the survivor of them the whole property is given over, the Court has implied an intention on the part of the testator that the survivors or survivor of A, B and C shall after the death of one or more of them be entitled to the whole income down to the period of distribution. This result is reached either by treating, A, B and C as joint tenants, rejecting words importing a tenancy in common ; or by implying cross-remainders for life between them ; the latter theory is preferred in the modern cases.
Hobson, In re; Barwlck v. Holt L.R. (1912) 1 Ch. D. 626 and Stanley's Settlement) In re : Maddocks v. Andrews L.R. (1916) 2 Ch. D. 50, support that statement of law.
At page 631 of the report in Hobson, In re: Barwlck v. Holt L.R. (1912) 1 Ch. D. 626, Parker, J., said.
In my opinion it is quite clear on the authorities that where there is a gift equally between A, B and C during their respective lives and after the death of the survivor of them the whole property is given over, the Court has implied an intention on the part of the testator that the survivors or survivor of A, B and C shall after the death of one or more of them be entitled to the whole income down to the period of distribution, and that conclusion appears to have been arrived at in one of two ways. In the first place and in the earlier cases the Judges have said that a gift in equal shares during their respective lives only prima facie creates a tenancy in common, and that, if the Court can gather an intention on the face of the will that the tenancy was intended to be not a tenancy-in-common but a joint tenancy, it will treat the words ' in equal shares ' or other similar words as not destructive of what would otherwise be a joint tenancy ; and that interpretation is one which would in the ordinary course lead to the desired effect. On the death of A, for instance, Band C would continue to be joint tenants of the whole, and on the death of B, C again would become tenant of the whole. That is one way of meeting the difficulty...; but in other cases the rule has been rested on different grounds in this way. It has been said that where there is a gift to A, B and C equally during their respective lives, and after the death of the survivor over, an intention is manifested that A, B and C or such of them as shall be living for the time being, shall enjoy the property down to the period of distribution and, that the best way of effecting that intention is to imply a gift over on the death of any of them of his or her share as well original as accruing to the survivors or survivor; and some of the cases have, I think, been decided on what I may describe as a mixture of those two theories.
12. The head note in Stanley's Settlement, In re: Maddocks v. Andrews L.R. (1916) 2 Ch. D. 50, runs:
In 1860 S (Stanley) by deed settled leasehold property of his own in trust for his daughters M (Mrs. Morgans) and R. (Mrs. Rees) for and during the terms of their natural lives as tenants-in-common and not as joint tenants and from and immediately after the decease of the survivor of them ... then to the use of their respective child or children of the said M and R share and share alike as tenants-in-common and not as joint tenants.
M died in 1867 leaving children, R died in 1914 without having had a child :-Held that, on the death of M.R. took a life estate by implication in the moiety of M and that on the death of R the children of M took the whole of the settled property.
Sargant, J., observed at page 55 ;
Then is there enough in the deed before me from which to imply a life interest to Mrs. Rees Mrs. Morgans had four children and died many years ago. Mrs. Rees never had any child and died in 1914. In my opinion, it is right to hold that Mrs. Rees took a life interest in her sister's share on that sister's death not on the ground that there was a joint tenancy,because that is expressly excluded, but following the rule of construction laid down on the other and as I think better view of the principle on which in Armstrong v. Eldridge (1791) 3 Bro. C.C. 215 ; Pearce v. Edmeades 3 Yavdc Ex. 246 and In re Richerson L.R. (1893) 3 Ch. 146, were decided, namely, that a life interest is to be implied in favour of the survivor of the tenants-in-common. It is better to say that they are tenants-in-common for life with a life interest in remainder to the survivor, . . It is sufficient to say that there is enough on the will to enable me to hold that each sister took a life estate in remainder in the other sister's share on that sister's death.
13. No doubt in addition to the specific provision that Mrs. Morgans and Mrs. Rees should take their interest as tenants-in-common, there was also a specific provision in that case for the gift over to operate on the death of the survivor of the two beneficiaries, Mrs. Morgans and Mrs. Rees. But the latter provision made no real difference to the principle enunciated by the learned Judge in inferring on the terms of the deed a provision for what has been termed a cross-remainder, which was what the learned Judge explained, that each sister took a life estate in remainder in the other sister's share on that sister's death .
14. It was the same principle of cross-remainder that was applied at least as an alternative basis by their Lordships of the Privy Council in Lalta Baksh Singh v. Phool Chand (1945) 2 M.L.J. 393 At page 398 is the observation :-
It is true that no express provision has been made by the testator for the junior widow, but their Lordships feel no doubt that she takes an interest for her life whether by implication under the death will as the High Court thought or under the Hindu Law, it is not necessary to determine.
Their Lorships pointed out that when after the death of the senior widow, the junior widow remained in possession of the entire property, it was quite in accordance with the intention and wishes of the testator as expressed in the will.
15. In Chandra Mohan v. Sasibala Dasi : AIR1922Pat68 , the document provided:.Srimati Sunayana Dasi and. the widow of late Prasanna Kumar Dutta will take into possession the lands of Schedule KHA for maintenance for life...After the death of both of them the plaintiff will take possession of the lands....
Coutts, J., observed:
It appears to me that there can be no doubt as to the construction of this term of the compromise. It is clearly a grant of this land to the two ladies for life as maintenance, that is to say, they are joint tenants of the property and even on the first sentence of this portion of the compromise alone I would be prepared to hold that the plaintiff was not entitled to recover possession until the death of both the ladies.
But if there were any doubt that doubt is set at rest by the last sentence: ' After the death of both of them the plaintiff will take possession of the lands.' This is a clear statement that it is only after the death of both ladies that the plaintiff will get possession and in my view there can be no possible ambiguity.
16. From the terms of Exhibit P-1 which we have set out above it seems clear to us that the settlor intended the gift over to the descendants of the second plaintiff to operate only after the death of both the beneficiaries, the first plaintiff and the second plaintiff. That was made even clearer by the provision that the second beneficiary, the second plaintiff, should take an absolute interest in the property if he had no children at all, sons or daughters. We are not of course concerned now in this case with the question, at what point of time the life interest of the second plaintiff becomes enlarged into an absolute interest in the property under the terms of Exhibit P-1. We have referred to that provision only to gather what the settlor provided should happen when one of the beneficiaries died. In our opinion the claim of the second plaintiff that he took a life interest in the whole of the property on the death of the first plaintiff should be sustained on the application of the principle of cross-remainder. The deed of settlement by necessary implication granted such a life interest in favour of the survivor of the two beneficiaries, plaintiffs 1 and 2. That would be the principle to apply even on the assumption, that in the absence of any express words in Exhibit P-1 the first and second plaintiffs were only tenants-in-common. The settlor by necessary implication granted a life interest in the whole of the property in favour of the survivor of the tenant-in-common. To adapt the words of Sargant, J., on the terms of Exhibit P-1 it should be more proper to hold that the first plaintiff and the second plaintiff were tenants-in-common for life with a life interest in remainder to the suvivor, or in other words, the second plaintiff took a life estate in remainder in the first plaintiff's share on the death of the first plaintiff.
17. The learned Counsel for the respondents urged that even if a joint tenancy was created as between the first and second plaintiffs by the terms of Exhibit P-1 that was put an end to when the first plaintiff released his rights in favour of the settlor, and that that interest did not survive to the second plaintiff on the death of the first plaintiff. It may not be necessary to canvass the correctness of this contention, because we have declined to hold that it was joint tenancy that was created under the terms of Exhibit P-1. The learned Counsel for the respondents referred to Ammani, Ammal v. Periasami Udayan (1923) 45 M.L.J . We are unable to see anything in it to support the contention of the learned Counsel for the respondents. If anything it militates against the acceptance of the view put forward by the learned Counsel. But, as we have pointed out, it may not be necessary to pursue the matter further because the basis of the argument was that a joint tenancy had been created by Exhibit P-1 and that contention we have not accepted.
18. The determination of the main question in the appeal turned on an event that was subsequent to the institution of the appeal. The first plaintiff died during the pendency of the appeal. The second plaintiff is certainly entitled to be granted relief at this stage after taking into account that subsequent event. As we have held that the second plaintiff was entitled to a life interest in the whole house after the death of the first plaintiff, the decree under appeal will have to be modified and the second plaintiff will have to be granted a decree entitling him to possession of the whole of the property.
19. Balakrishna Ayyar, J., directed each side to bear its costs, and there is no justification to interfere with that direction. Since the apeal itself had to be decided on the basis of an event subsequent to the institution of the appeal, we consider that the appropriate course would be to direct the parties to the appeal to bear their respective costs.
20. The appeal is allowed.
21. Then there is the question of mesne profits. The learned Judge did not give any directions. But then it should be remembered that the question of mesne profits is normally reserved for adjudication in proceedings after the decree.
22. Since we did not go into the question whether it was Venkatakrishnama's heirs or of the first plaintiff that was entitled to possession of one half of the house, it may not be possible to grant any direction with reference to mesne profits calculated with reference to one half of the house up to the death of the first plaintiff. We have held that the second plaintiff was entitled to possession of the whole house from the date of the death of the first plaintiff. From that date and on that basis the defendants in possession will be liable to pay mesne profits to the second plaintiff. Under the terms of the decree of Balakrishna Ayyar, J., the second plaintiff was found entitled to one half of the house, and the defendants will be liable for mesne profits for that one half of the house from the date of this suit and up to the date of the death of the first plaintiff, the liability to be ascertained and enforced in the usual course.