Appeal No 245 of 1965
396 Appeal by special leave from the judgment and order dated October 31 1962 of the Andhra Pradesh High Court in Appeal No 563 of 1959
KR Chaudhuri for the appellants
K Sen and T Satyanarayana for respondents Nos 1 to 3
The Judgment of the Court was delivered by Mitter J
This is an appeal by special leave from a judgment and decree of the High Court of Andhra Pradesh confirming the decree passed by the Subordinate Judge at Eluru in OS No 112 of 1955
The only question involved in this appeal is whether under the terms of the will of one Boddu Adilakshmi defendants 4 and 5 took her properties as joint tenants or tenants in common
The facts leading to the litigation may be stated as follows
The testatrix Adilakshmi who was childless herself brought up defendants 4 and 5 Boddu Ramarao and Kosury Lakshmamma from their infancy
At the date of the will executed on June 28 1913 the girl defendant 5 had been with her for 15 years and the boy defendant 4 for 10 years and both were minors at the time
In order to provide for them after her death she executed a will covering all her properties movable and immovable
The translation of the relevant portion of the will which was in vernacular is as follows     my entire property should hereafter my lifetime pass to
both these minors Lakshmamma and Ramarao that until their minority period is over Banda Ramaswamy Garu should act as their guardian and deal with all the affairs that after their minority period is over the entire property should be in possession of both of them that both of them should enjoy throughout their lifetime the said property without powers of gift transfer and sale and that after their death the children that may be born to them should enjoy the same with powers of gift transfer and sale
 The testatrix died within a few days after the execution of the will
Defendants 4 and 5 divided the properties left by the testatrix by a registered partition deed dated December 27 1929  by which those mentioned in Schedule A to the plaint fell to the share of the 4th defendant while the others mentioned in Schedule B fell to the share of the 5th defendant
The 4th defendant married the 1st defendant Boddu Satyavathi who is the daughter of the 5th defendant
The 2nd defendant is the daughter born out of this wedlock
Some years thereafter the 4th defendant married one Boddu Manikyam
the plaintiffs 1 to 4 being the issues of the marriage of the 4th defendant with her
The 5th defendant 397 and the 1st defendant mortgaged the B schedule properties with the 3rd defendant who brought a suit on the mortgage and obtained a decree
The plaintiffs filed the suit against all the defendants in 1955
for a declaration that after the death praying of defendants 4 and 5 the 1st defendant and the children of the 4th defendant or such of them as may be alive at the time would be entitled to share the properties in suit equally between them and that any alienation made by defendants 4 and 5 or their assignees or alienees would not bind the interests of the ultimate feversloners beyond their lifetime and further that the mortgage decree mentioned above was not binding on the plaintiffs or the ultimate reversioners
In the trial court a number of issues were framed but the only question canvassed before the High Court on appeal related to the effect of the will of Adilakshmi
The trial court came to the conclusion that defendants 4 and 5 were only the holders of life estate and that they had succeeded to the estate of Adilakshmi as tenants in common
The High Court held that the right of the children of defendants 4 and 5 to step into the shoes of the parents has been expressly mentioned in the instrument
The residuary estate has been given to the children
that may be bor n to the legatees who
it is provided should enjoy the properties with powers of gift
transfer and sale
A life estate has been given to defendants 4 and 5 and an absolute estate to their children
On a fair construction of the language
it is difficult to accede to the contention of the appellants that the children of defendants 4 and 5 who may be actually alive at the time of the death of defendants 4 and 5 would take the properties per capita The High Court further held that the conduct of the defendants in partitioning the properties went to fortify the above conclusion
The ultimate conclusion of the High Court was the bequest in favour of defendants 4 and 5 was that of a life estate with a vested remainder in favour of their children and that the children should take the vested remainder per stripes and not per capita In our view
the High Court came to the correct conclusion
Before examining the principles of law involved we may consider the intention of the testatrix in giving her properties to defendants 4 red 5
She brought them up like her own children but she did not want them to have the power of sale or alienation and desired that the properties be preserved for the benefit of their children
would be reasonable therefore for her to make provision in such way that the foster children would enjoy the income of the properties for their lives and that their children should inherit the Ip
C l68 111 398 properties as full owners on the death of their parents
The donees of the life estate were minors at the date of the will and there was no knowing when they would get married and how many children each would have
It would therefore be reason able to expect that the testatrix would so arrange her affairs that each of the foster children should get half of the income of the property for life and that their children should succeed to the respective interest of their parents
It is hardly likely that the testatrix would know the difference between joint tenants and tenants in common and she would naturally be eager to treat the foster children as her own children so that the heirs of the foster children would take share and share alike the properties be in divided per stirpes among them
Let us now consider the position in law
The law has bee n summarised in Mulla s Transfer of Property Act Fifth Edition at page 226
As early as 1896 it was held by the Judicial Committee of the Privy Council in Jogeswar Narain Deo vs Ram Chand Dutt  others1 that The principle of joint tenancy appears to be unknown to Hindu law
except in the case of coparcenary between the members of an undivided family and that it was not right to import into the construction of a Hindu will an extremely technical rule of English conveyancing
Many years later the principle was reiterated in the case of Babu Rani vs Rajendra Baksh Singh2
It was argued before us that there were indications in the will that the intention of the testatrix was that the foster children should take as joint tenants and that this was apparent from the clause in the will which provided that the entire property should be in possession of both of them and that both of them should enjoy throughout their lifetime the said property and that after their death the children that may be born to them should enjoy the same   We do not think that from this one can spell out a joint tenancy which is unknown to Hindu law except as above stated
The testatrix did not expressly mention that on the death of one all the properties would pass to the other by right of survivorship
We have no doubt on a construction of the will that the testatrix never intended the foster children to take the property as joint tenants
The foster children who became tenants in common partitioned the property in exercise of their right
1 23 IA 37 at 44
2 60 l
A95 at 10 399 As by the will the foster children were to have a life interest with a vested remainder to their children the latter could only take per stirpes and not per capita
As Halsbury points out Volume 39 Third Edition at page 1106 article 1638 that a stirpital distribution would be adopted where the gift was to a number of parents and their children in such a manner that the children were substituted for or took on the death of their respective parents and gifts to several parents and at or after their deaths to their children or to their issue have received this construction as meaning at or after their respective deaths
 It is not necessary to cite many instances where this construction has been adopted
In re Hutchinson s Trusts1 the testatrix bequeathed personality in trust for AB for life and after his decease for his issue and on failure of his issue to FHS and RS share and share alike and after the decease of the said FHS and RS to their children share and share alike and to their heirs for ever
Kay J felt that he was bound by authority to say that the words after the decease of the said Francis Hutchinson Synge and his brother Robert Synge mean after their respective deaths or after the decease of each of them and that there is a disposition of the share of each which was an absolute interest in the first instance upon his death see at page 816
This rule was further amplified by Romer
J in Errington In re
Gibbs vs Lassam1 where he said at p 425 The rule stated in its simplest way is this Where a testator gives the income of his estate to two people A and B for their lives and follows that gift by a direction that at their death or at their deaths or at or after the death or deaths of A and B the property is to go to their issue the Court does not construe the gift as a gift only to take effect on the death of both in favour of the issue of both but construes it as a gift to take effect on the death of each of the share to the income of which the deceased was entitled to the issue of the deceased 1 2 400 In Mcdonnell vs Neil1 the Judicial Committee referred to the dictum of Kay J in re Hutchinson s Trusts2 and observed that the construction was borne out by a long line of authority
In the result the appeal will stand dismissed with costs
appellant must pay the court fees
GC Appeal dismissed


Summary:
A childless Hindu lady brought up a boy B and a girl K as foster children
She made a will whereby after her death B and K were to get a life estate in her property and after their death the children that may be born to them should enjoy the same with powers of gift transfer and sale 
After the lady s death B and K divided the property in equal shares by a partition deed
B married K s daughter and had a child by her
He then took another wife and had four children by her
The said four children filed a suit for a declaration inter alia that after the death of B and K their children namely K s daughter and B s children would be entitled to take the property in equal shares
The trial court as well as the High Court held that B and K had inherited a life estate as tenants in common and their descendants would inherit per stirpes and not per capita
The plaintiffs appellants came to this Court
It was urged on their behalf that B and K had inherited as joint tenants and not as tenants in common
HELD A joint tenancy is unknown to Hindu law except in the case of a coparcenary between members of an undivided family
The terms of the will also did not in the present case spell out a joint tenancy
As by the will the foster children were to have a life interest with a vested remainder to their children the latter could only take per stirpes and not per capita
398 G 399 A Jogeswar Narain Deo vs Ram Chund Dutt  Ors
23 IA 37 and Babu Rani vs Rajendra Baksh Singh 60 IA 95 relied on
In re Hutchinson s Trusts  Errington In re Gibbs vs Lassam
and Mcdonnel vs Neil  referred to
The donees of the life estate were minors at the date of the will and there was no knowing when they would get married and how many children each would have
It would therefore be reasonable to expect that the testarix would so arrange her affairs that each of the foster children should get half of the income of the property for life and that their children should succeed to the respective interests of their parents
It is hardly likely that the testatrix would know the difference between joint tenants and tenants in common and she would naturally be eager to treat the foster children as her own children so that the heirs of the foster children would take share and share alike the properties being divided per stirpes between them
1398 A B