Bequest of joint tenancy of Hindus.

This is a Letters Patent Appeal from the decision of our learned brother Srinivasar, J., and is preferred by the defenants in a suit relating to certain landed properties praying for permanent injunction or in the alternative for possession with future profits. The claim of the plaintiffs is rested on two wills, one dated 7th April, 1934, and the other dated 5th March, 1940, the latter by the person claiming the entirety of the properties under the earlier will. The decree of the trial Court accepting the plaintiffs’ claim and giving them possession, was confirmed on appeal by the learned. Subordinate Judge, Dindigul, and has been affirmed in Second Appeal in this Court. The plaintiffs have been awarded future mesne profits to be determined under Order 20, rule 12, Civil Procedure Code.

The principal questions that arise for consideration are the interpretation of the will dated 7th April, 1934, and the true scope and effect, if any, of sections 106 and 107 of the Indian Succession Act (XXXIX of 1925), in relation to that will. The suit properties, a tope, originally belonged to one Chinnathambia Pillai and he left the will dated 7th April, 1934, a registered instrument, bequeathing certain properties including the suit properties to his second wife Meenakshi Ammal and her only daughter Muthammal. The daughter Muthammal predeceased the testator — she died on 28th March, 1936. The testatordied on 4th November, 1936. The first plaintiff in the suit is a subsequently born daughter of the testator by the second wife Meenakshi Ammal and the second plaintiff in the suit is her lessee. Defendants 1 to 4 in the suit are sons of one Arunachalam, deceased son of the testator by his first wife. Prior to his will the testator had divided himself away from his son Arunachalam and they were living separately, the properties comprised in the will being the separate properties of the testator. It is the case of the plaintiffs that on the death of the testators, Meenakshi Ammal the second wife, entered into possession of all the properties, the subject-matter of the will, and continued in exclusive possession of the same till her death in 3rd May, 1959. It is claimed that she got patta for the properties transferred to her name. Meenakshi Ammal left a will bequeathing the properties to her only surviving daughter, Ramayee, the first plaintiff. The plaintiffs came to Court on the averment that after the first plaintiff entered into possession of the properties on the death of her mother and leased the suit properties to the second plaintiff, defendants 1 to 4 with the help of the other defendants attempted to trespass on the properties and prevented the enjoyment of the suit tope by the plaintiffs.

The defence as it ultimately emerged is simple. It is urged for defendants that as Muthammal predeceased the testator, the half share of the estate in the legacy intended for her, fell into the residue of the testator’s properties and Arunachalam, father of defendants 1 to 4, succeeded to the same as his father’s heir in Hindu Law. They plead that Meenakshi Ammal and Arunachalam were in joint possession of the properties as tenants-in-common and the tenancy-in-common was continued after the death of Arunachalam between defendants 1 to 4 and Meenakshi Ammal, till her death on 3rd May, 1959. For the plaintiffs it is contended that the original bequest of Chinnathambia Pillai was a joint bequest in favour of his second wife Meenakshi Ammal and his daughter Muthammal and that on the death of Muthammal. the second wife Meenakshi Animal took the entire estate in terms of section 106 of the Indian Succession Act. If the plea of joint bequest is upheld and section 106 applied there is no defence to the action. The defendants have not pleaded any adverse possession and they conceded possession of Meenakshi Ammal till her death in 1959. The Courts below, and our learned brother, Srinivasan, J., in Second Appeal, have upheld the plaintiffs’ contention that