1. We must accept the finding of the lower Appellate Court as to the genuineness of the Will, Exhibit I, and we agree in its construction of the gift-deed, Exhibit II, as being in favour of the two persons Arunachella and Balammal, and not, as appellant contends, for the sole benefit of Balaiumal.
2. These two persons would, however, take the gift as tenants-in-common; and not as joint tenants with right of survivorship, Jogeswar Narain Deo v. Ram Chandra Butt 23 I.A. 37.
3. It follows that, as regards Arunacbella's moiety of the property, the title of defendants Nos. 2 to 5 is established and the suit must fail.
4. The case of the other moiety which belonged to Balammal is more doubtful. It is admitted before us that on her death it would descend in accordance with the rules governing devolution of stridhanam property to her son, 1st defendant; but respondents contend that it passed from him by deed of gift, Exhibit C, to defendants Nos. 2 to 5, and is, therefore, not liable under the decree against 1st defendant. This question has not been enquired into, though it is suggested indirectly by the pleadings. Appellant impugns Exhibit C, on the ground that it is a transfer in fraud of creditors and voidable under Section 53 of the Transfer of Property Act.
5. We must, therefore, call for a finding on this issue:
Is Exhibit C a valid transfer: or is it voidable under Section 53 of the Transfer of Property Act?
6. Fresh evidence may be adduced. The findings should be submitted within two months from this date and seven days will be allowed for filing objections.
7. [The District Judge returned a finding to the effect that Exhibit C was a valid transfer, being executed when 1st defendant, though heavily in debt, was contemplating remarriage and was permitted to do so by the relatives of his first wife, on the condition that he transferred all his properties in favour of his children by his first wife.]
8. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court the Court delivered the following
9. We accept the finding and dismiss the appeal with costs.