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Shridhar Ghose v. Harimohan Sahu .
Factual and Procedural Background
The dispute arises out of a compromise decree dated 17-1-1947 in Original Suit No. 11 of 1944 (Munsif, Berhampur) in which Chaitanya Karji Ratna (hereafter Chaitanya) was held to have validly adopted Gadadhar. Gadadhar predeceased Chaitanya in 1943–44; the plaintiff is Gadadhar's son and his mother Jhampi had filed the 1944 suit as the plaintiff's next friend. The compromise decree (Ex. B) allocated certain disputed property to Chaitanya and his wife Jasoda (admittedly falling to their share).
Chaitanya died in 1947. Jasoda executed a registered deed of gift (Ex. A) dated 6-5-1947 transferring the disputed land in favour of the defendant (her son-in-law). The plaintiff did not challenge the execution or acceptance of the deed of gift but maintained that Jasoda had no right of alienation under the compromise decree and therefore the deed was not binding on him. The plaintiff sued for declaration of title, recovery of possession and mesne profits (claimed at Rs. 750 per annum).
The defendant contended that under the compromise decree Chaitanya and Jasoda took the disputed property absolutely, as joint tenants, and that the deed of gift conveyed valid title; the defendant also pleaded expenditure (about Rs. 3,000) on marriage ceremonies of Chaitanya's daughters and that he was in possession pursuant to the deed.
The trial Court held that the compromise decree gave Jasoda absolute title to half the property and that the deed of gift conveyed Jasoda's half to the defendant; but the trial Court concluded that the other half (Chaitanya's share) passed to the plaintiff on Chaitanya's death (i.e., Jasoda had only a limited interest in Chaitanya's half), and therefore declared the plaintiff's title to half the disputed property and ordered joint possession until partition.
Both parties appealed: plaintiff filed Title Appeal No. 56 of 1961 and defendant filed Title Appeal No. 77 of 1961; both appeals were dismissed by the Additional District Judge. The defendant filed Second Appeal No. 108 of 1962 (against the decree in T.A. 77/61). The plaintiff did not appeal against the decree in T.A. 56/61 but filed a cross-objection in S.A. 108 of 1962.
Legal Issues Presented
- Whether the compromise decree vested Chaitanya and Jasoda with joint tenancy (entitling Jasoda to the entire disputed property by survivorship on Chaitanya's death) or with tenants-in-common (such that Chaitanya's share would pass to his heir, the plaintiff).
- Whether Jasoda had the right of disposition (including gift) over the property under the compromise decree and, as a consequence, whether Jasoda's deed of gift (Ex. A) conveyed title to the defendant.
- Whether the plaintiff's cross-objection in the second appeal (S.A. 108 of 1962) was competent and maintainable.
- How principles of Hindu law concerning joint tenancy (and the applicability or non-applicability of the English rule presuming joint tenancy where shares are not specified) should be applied to the construction of the compromise decree.
Arguments of the Parties
Plaintiff's Arguments
- Jasoda had no right of alienation under the compromise decree; accordingly the deed of gift (Ex. A) was not binding on the plaintiff.
- Implicitly, the plaintiff's stance was that on Chaitanya's death his share should pass to the plaintiff (i.e., that Chaitanya and Jasoda were tenants-in-common, not joint tenants).
Defendant's Arguments
- The compromise decree conferred absolute title to the disputed property on both Chaitanya and Jasoda such that they took as joint tenants and, on the death of one, the other would be absolutely entitled to the entire property.
- The deed of gift (Ex. A) conveyed a valid title to the defendant.
- The defendant had expended about Rs. 3,000 on the marriage ceremonies of Chaitanya's daughters and was in possession pursuant to the deed of gift.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jogashwar Narain Deo v. Ram Chand Dutt, 23 Ind App 37 (PC) | Holds that the principle of joint tenancy (as in English law) is unknown to Hindu law except in the case of Mitakshara coparcenary. | Used to state the settled proposition that the English presumption of joint tenancy does not apply to Hindus except in Mitakshara coparcenary; forms part of the Court's analysis of whether Chaitanya and Jasoda were joint tenants. |
| Ram Charan Das v. Naurangi Lal, 60 Ind App 95 : AIR 1933 PC 72 | Reaffirmed the position that joint tenancy as a legal presumption from English law is foreign to Hindu law except in Mitakshara coparcenary. | The Court relied on this reaffirmation to support the statement that the English presumption cannot be indiscriminately imported into conveyances or settlements in favour of Hindus. |
| Nandi Singh v. Sitaram, 16 Ind App 44 (PC) | Illustrates that joint tenancy can be conferred by the intention of the transferor; where an estate is limited jointly to two, and one is incapable of taking, the capable one takes the whole. | Applied to show that although the general English presumption does not apply, a joint tenancy (with its incident of survivorship) may nonetheless be created by clear intention in the instrument; supports treating the compromise decree as creating joint tenancy if intention is clear. |
| Surareddy v. Venkata Subbareddi, AIR 1960 Andh Pra 368 | Described in the opinion as containing an instructive discussion on the question of joint tenancy versus tenancy in common. | Cited as an instructive authority informing the Court's consideration of how to determine whether a conveyance or settlement creates joint tenancy. |
| Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338 | Referenced in relation to the law on competence of cross-objections and the relevant procedural law (O. 41, R. 22 CPC issue). | Relied upon to support the Court's conclusion that the plaintiff's cross-objection in the second appeal was incompetent and had to be dismissed. |
Court's Reasoning and Analysis
The Court proceeded in two principal stages: a procedural analysis regarding the competence of the plaintiff's cross-objection, and a substantive construction of the compromise decree as regards the nature of the interest vested in Chaitanya and Jasoda.
Procedural analysis:
- The Court held the plaintiff's cross-objection in S.A. 108 of 1962 to be incompetent. It reasoned that the concurrent finding in T.A. 56/61 (that Jasoda had absolute title to half the property and that the gift conveyed a valid title to the defendant as regards that half) had not been appealed from and therefore had become final and conclusive. The subject-matter decided in that appeal could not be reopened in the second appeal filed in respect of the other Title Appeal. The Court further observed that T.A. 77/61 had determined the controversy in favour of the plaintiff and that there was nothing adverse to the plaintiff in that decree against which a cross-objection under Order 41, Rule 22 CPC would lie. The Court cited Badri Narayan Singh v. Kamdeo Prasad Singh in support of this procedural conclusion.
Substantive legal construction:
- The Court examined the language of clause (2) of the compromise decree and found it made clear that Chaitanya and Jasoda had "absolute right, title and interest" in the lands allotted to them and had the right of disposition (including sale and gift). The lower courts' conclusion that Jasoda's interest was limited in respect of Chaitanya's share was inconsistent with that language.
- The Court undertook a doctrinal analysis distinguishing joint tenancy and tenancy-in-common: it set out the modes of creation and the characteristic incidents (notably survivorship for joint tenancy and separable shares for tenancy-in-common).
- Addressing the applicability of English law, the Court observed that the presumption of joint tenancy in English law (where shares are unspecified) is not part of Hindu law except in the Mitakshara coparcenary context (citing Jogashwar Narain Deo and Ram Charan Das). Nonetheless, the Court noted that a joint tenancy may be created by clear intention of the donor, conveyancer or testator, and that such intention must be gathered from the instrument's language and, where ambiguous, from surrounding circumstances (relying on Nandi Singh and other authorities).
- Applying these principles to the compromise decree, the Court found no words of severance and concluded the language was unambiguous: Chaitanya and Jasoda were to take the disputed land jointly. The Court reinforced this textual conclusion by reference to surrounding circumstances: Chaitanya had sacrificed interest in most properties in the partition (the plaintiff obtained substantial acreage and movables while Chaitanya and Jasoda received only about three acres with absolute interest and full power of disposition), Jasoda remained in possession after Chaitanya's death until the deed of gift, and the plaintiff's conduct (not immediately claiming possession on Chaitanya's death) was inconsistent with the assertion that Chaitanya and Jasoda were tenants-in-common.
- On these bases the Court held that the lower Courts' construction (that Jasoda had only a widow's limited interest in Chaitanya's half and that the gift could not bind the plaintiff as to that half) was contrary to law and had to be set aside.
Holding and Implications
Holding: The second appeal is allowed (Appeal allowed). The Court set aside the construction of the lower courts and dismissed the plaintiff's cross-objection.
Immediate consequences for the parties:
- The Court concluded that under the compromise decree Chaitanya and Jasoda took the disputed property as joint tenants and that, on the death of Chaitanya in 1947, Jasoda's title to the entire disputed property vested in her by survivorship.
- Because Jasoda consequently held the entire estate, the deed of gift executed by Jasoda (Ex. A) must be understood against that legal backdrop; the Court's conclusion overturns the lower courts' finding that Jasoda's power to alienate Chaitanya's half was limited. (The second appeal having been allowed, the decree that limited the effect of the gift as to Chaitanya's half was set aside.)
- The plaintiff's cross-objection was dismissed as incompetent and on the merits.
- The appeal was allowed with costs throughout (as stated in the opinion).
Broader legal implications stated by the Court:
- The opinion reaffirms the settled principle that the English presumption of joint tenancy (where shares are unspecified) is not to be read into Hindu conveyances except in the special context of Mitakshara coparcenary; however, a joint tenancy may nonetheless be created by clear intention expressed in the instrument or deducible from surrounding circumstances.
- The decision, therefore, rests on applying established authority to the facts and construing the compromise decree; it does not purport to break new ground in principle but applies the prior authorities cited to the construction of the decree in this case.
BH/RTG/R.G.D
1. Defendant is the appellant. Deceased Chaitanya Karji Ratna adopted Gadadhar who predeceased him in 1943–1944. Plaintiff is the son of Gadadhar. In 1944, Jhampi, mother of the plaintiff, filed Original Suit No. 11 of 1944 in the Court of the Munsif, Berhampur, as the next friend of the then minor plaintiff, for a declaration that Gadadhar was validly adopted by Chaitanya, and for partition of the properties into two equal shares between the plaintiff and Chaitanya. That suit was decreed on compromise or 17-1-47 in terms of the compromise decree (Ex. B). Admittedly the disputed property fell to the share of Chaitanya and his wife Jasoda—Chaitanya died in 1947. Jasoda transferred the disputed land) in favour of the defendant, her son-in-law, by a registered deed of gift (Ex. A) on 6-5-1947. The execution of the deed of gift by Jasoda and its acceptance by the donee had not been challenged by the plaintiff. He took the stand that Jasoda had no right of alienation under the compromise decree and the deed of gift was not binding on the plaintiff. The present suit is for declaration of title and recovery of possession and for mesne profits at the rate of Rs. 750/- per annum till recovery of possession.
2. Defendant contested the suit alleging that under the compromise decree both Chaitanya and Jasoda got the disputed property absolutely as joint tenants with the consequence that on the death of one, the other would also be absolutely entitled to the entire property. The conveyance of a valid? title under the deed of gift was asserted. A further plea was taken that the defendant had spent about Rs. 3000/- over the marriage ceremonies of the 2nd and third daughter of Chaitanya. In pursuance of the deed of gift the defendant is in possession of the disputed property.
3. Both the Courts below have concurrently found that under the compromise decree Jasoda was allowed to enjoy half of the interest in the disputed property with her husband absolutely. But there being no definement of shares between Chaitanya and Jasoda, each of them was entitled to equal shares in the disputed property as tenant-in-common. The deed of gift was operative to the extent of half the interest of Jasoda conferring absolute title on the defendant. With regard to the other half, they, however, held that on the death of Chaitanya, Jasoda had a limited interest and the gift of such interest was not binding on the plaintiff after the death of Jasoda. Defendant's contention that the deed of gift can be construed as a sale for consideration and legal necessity was rejected by them. The trial Court declared plaintiff's title to half of the disputed property and put him in joint possession of the same with defendant until partition by metes and bounds.
4. Against the trial Court's decree, plaintiff filed Title Appeal No. 56 of 1961 and defendant filed Title Appeal No. 77 of 1961. Both the appeals were dismissed by the learned Additional District Judge. Against the decree in T.A 77/61, defendant has filed Second Appeal No. 108 of 1962. Plaintiff did not file any appeal against the decree in T.A 56/61. He has, however, filed a cross-objection in S.A 108 of 1962.
5. Before going to the merits of the appeal, it must, however, be noticed that the cross-objection is incompetent. In T.A 56 of 1961, the concurrent findings of the Courts below that Jasoda had absolute title in respect of half the property and the conveyance by gift conferred a valid title on the defendant, concluded the matter. The decree in that appeal not having been challenged, that has become final and conclusive. The subject-matter of the appeal was not the subject-matter of dispute in T.A 77/61 though both arose out of Title Suit No. 4 of 1959. The decree in T.A 56/61 cannot be questioned in the second appeal. Moreover T.A 77/61 determined the controversy as involved in that appeal wholly in favour of the plaintiff, and no cross-objection even under O. 41, R. 22 of the CPC lies. There is nothing in the decree in T.A 77/61 adverse to the plaintiff against which he could have taken an appeal. The cross-objection is accordingly dismissed (see Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338).
6. Even otherwise the cross-objection has no merit. Clause (2) of the compromise decree makes it clear beyond any doubt that Chaitanya and Jasoda had absolute right, title and interest in the lands allotted to them and they had right of disposition over the same by transfer including sale and gift which were specifically mentioned. The learned Courts below were right in holding that the interest conferred upon Jasoda under the compromise decree was absolute and not limited.
7. The point raised by Mr. Pal is that the Courts below acted contrary to law in holding that on the death of Chaitanya, Jasoda was not absolutely entitled to the entire disputed land so as to confer a valid title on the donee by the instrument of gift. The learned District Judge's conclusion, on this aspect of the case is:
“No doubt, after the death of Chaitanya Karji Ratno, her widow Jasoda was entitled to enjoy the share of her husband in the disputed property to the exclusion of the plaintiff, but she had only a widow's estate therein and after her death, the plaintiff being the next reversioner tattle estate of Chaitanya Karji Ratno is entitled to get possession of the same. There is nothing to indicate in the compromise decree that after the death of Chaitanya Karji Ratno, his widow Jasoda would be entitled to the entire suit property. As the half share of her deceased husband over which she had only a limited interest was alienated without legal necessity, the deed of gift cannot bind the plaintiff to that extent.”
8. This finding was arrived at merely on the basis of the construction of the decree and not on any discussion of law.
9. A reference to the compromise decree shows that Chaitanya and Jasoda got the disputed property absolutely without there being any indication as to their respective shares in the same. Mr. Murty contends that in the absence of specification of shares of Chaitanya and Jasoda inter se, they would take the disputed property as tenants-in-common and not as joint tenants.
10. It is necessary at this stage to notice the distinction between joint tenants and tenants-in-common. The mode of creation of both is different. Joint tenancy arises where a grant is made to several persons and there are no words indicating that the grantees are to take separate interests. When the grantees are directed to hold in moieties, or words are used in the grant showing that they are to take either in equal shares or in some other proportion, a tenancy-in-common arises. The words in the grant indicating that the tenants are to take distinct and separate interests or shares are called words of severance. In the absence of words of severance, a grant to a number of persons construed as conferring upon them the interests of joint tenants. A joint tenancy can be created only by the acts of parties and not by operation of law. A tenancy in common on the other hand can arise by operation of law.
11. The incidents of the two juristic concepts also fundamentally differ. The significant feature of a joint tenancy is the incident of survivorship. Each joint tenant represents the whole interest in the land and on his death the survivors alone represent that interest. As no tenant has a separate share in the whole interest, there is nothing which his heir can take on his death. Thus on the death of one tenant, his interest is extinguished and the survivors continue as joint tenants. If ultimately there is only one survivor, he gets the entire interest. On the death of the last survivor, the whole land devolves on his heir or devisee. The incidence of tenancy-in-common is that each tenant owns an undivided share. It may not be necessarily equal. In respect of that share, the tenant in-common is in the position of the owner of the entire and separate estate. On his death, the estate does not devolve upon the survivors but on his heir or devisee.
12. In the aforesaid test is applied to this case, Chaiianya and Jasoda were clearly joint tenants, and on the death of Chaitanya, the entire property would devolve upon Jasoda absolutely. The parties are, however, Hindus. It is settled by the decision of their Lordships of the Judicial Committee that the principle of joint tenancy is unknown to Hindu law except in the case of coparcenary between the members of an undivided Mitakshara Hindu family (Jogashwar Narain Deo v. Ram Chand Dutt, 23 Ind App 37 (PC)). Despite this decision, in several Indian cases the English principle—that in the absence of specification of shares, the presumption is that the done are joint tenants was made applicable in India. But their Lordships of—the Judicial Committee reaffirmed the position in Ram Charan Das v. Naurangi Lal, 60 Ind App 95 : (AIR 1933 PC 72), and put the matter beyond doubt. The result is that it must be taken as settled that the concept of joint tenancy in English law is foreign to Hindu Law except in Mitakshara coparcenary and cannot be imported in construing conveyances or settlements made in favour of a Hindus. Chiatanya and Jasoda did not constitute a Hindu Mitakshara coparcenary and they could not be treated as joint tenants in the sense as it is used in English law.
13. The fact of non-applicability of the rule of English law to presume that the donees were joint tenants does not, however, postulate that either by conveyance or by settlement no joint tenancy can be conferred. It would depend upon the intention of the donor or testator. This intention would be gathered from the language of the, instrument, if it is clear. In case of ambiguity, the surrounding circumstances also may be looked into.
14. The principle is well founded on the authority of their Lordships of the Privy Council in Nandi Singh v. Sitaram, 16 Ind App 44. In that case, the father executed a deed of gift in favour of the daughter and the son-in-law. The deed, of gift was admittedly invalid as regards the son-in-law as the custom did not authorise the same. It was contended that the deed was invalid as regards both; but the contention was negatived. It would be instructive to quote the terms of the deed of gift:
“I promise and agree in writing that the donee may, from the date of execution of this instrument, take proprietary possession similar to mine over the gifted property. There has been left no claim, right or dispute to me or any of my heirs”. The contention advanced before their Lordships was that the gift being invalid as regards the son-in-law was also invalid as regards the daughter. Their Lordships construed the gift as one jointly made to the two donees. Their Lordships laid down;
“If an estate is limited to two jointly, the one capable of taking, the other not, he who is capable shall take the whole. This principle does not depend upon any peculiarity in English law, and is applicable to this deed of gift.”
15. This decision illustrates the other branch of law that joint tenancy can be conferred by contract, conveyance or settlement if the transferor, testator or settlor so intends. There is no inconsistency between the two lines of decisions in 23 Ind App 37 (PC) and 60 Ind App 95 : (AIR 1933 PC 72) on the one hand and 16 Ind App 44 (PC) on the other. In Surareddy v. Venkata Subbareddi, AIR 1960 Andh Pra 368 an instructive discussion on the question has been made.
16. Looking to the terms of the compromise decree, it is clear that no words of severance were used in the document. The language used in the document leads to the only irresistible conclusion that Chaitanya and Jasoda were to take the disputed land jointly. There is absolutely no ambiguity. The same conclusion is also irresistible by reference to the surrounding circumstances. Though Chaitanya was entitled to half of the entire properties comprising about 33 acres in partition, he sacrificed his interest in most of the properties. Plaintiff got about 30 acres of land and all the moveable properties while Chaitanya and Jasoda were given only three acres and odd with absolute interest in the same and full power of disposition. If in respect of the interest of Chaitanya the property would go to his heirs to the exclusion of Jasoda, clear words to that effect would have been mentioned.
17. The surrounding circumstances also are consistent with that inference. Chaitanya thed in 1947. If Chaitanya was a tenant-in-common, immediately on his death plaintiff would have been entitled to his interest to the exclusion of Jasoda and would have claimed possession of the property forthwith. Plaintiff's admission that Jasoda had limited interest till her death in half the disputed land is not consistent even with the concept that Chaitanya and Jasoda were tenants-in-common. If they were joint tenants, Jasoda would get the property by survivorship on the death of Chaitanya. If they were tenants-in-common, plaintiff would be entitled to half of the property on the death of Chaitanya. There is no question of his waiting to file the suit till after the death of Jasoda. The possession continued all through with Jasoda till the deed of gift and thereafter with the defendant. This is consistent with the construction that the compromise decree conferred joint tenancy on Chaitanya and Jasoda. They were joint tenants and not tenants-in-common. In this view of the matter, the construction put by the learned Courts below is contrary to law and must be set aside. In the result, the second appeal is allowed with costs throughout and the cross-objection is dismissed.
BH/RTG/R.G.D
18. Appeal allowed.
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