Balakrishnan, J. - (1.)DEFENDANTS 1 and 2 in O. S. 105 of 1982 on the file of Sub Court, Manjeri are the appellants. First respondent herein filed the suit ixir partition of the plaint schedule properties consisting of landed property, bank deposits and movable items. The suit was decreed in part. That is challenged in this appeal. The respondent had filed a cross objection against the decision of the court below so far as it is against his contentions.
(2.)PLAINTIFF is the son of deceased Gopalakrishnan nambiar through his first wife by name Narayani. Narayani died and thereafter gopalakrishnan Nambiar married one Sarojini Amma and the first defendant is the daughter of Gopalakrishnan Nambiar through his second wife. Second defendant in the suit is the uncle and guardian of the first defendant. Gopalakrishnan nambiar died on 24-3-1982. After the death of Gopalakrishnan Nambiar, plaintiff filed the suit alleging that the entire properties belonged to his father gopalakrishnan Nambiar and he was entitled to get one-half share in the property. Defendants 1 and 2, the appellants herein contested the suit and alleged that Gopalakrishnan Nambiar had executed the will on 17-11-1971 and the plaintiff was aware of the will and he filed this suit only to harass the defendants. These appellants also contended that the plaintiff was having no right over the mo vable items and the bank deposits. These appellants further contended that defendants 3 and 4 were unnecessary parties as they were residing in the house only as tenants. After the filing of the written statement, plaintiff amended the plaint and contended that the will executed by deceased Gopalakrishnan Nambiar was not a true and genuine document and that the bequeath made in favour of minor daughter was not in favour of the first defendant but in favour of another child born to Gopalakrishnan Nambiar through the second wife. Court below framed several issues and found that the will executed by Gopalakrishnan Nambiar was a true and genuine document. It was held that the minor child'referred to in the will was none other than the first defendant. It was further held that by Ext. B3 will the legatees acquired right over the plaint schedule property as tenants in common and on the death of one of the legatees the rights reverted back to the testator and thus the plaintiff was entitled to 1/4 share over the plaint schedule immovable property.
Appellants herein contended that by Ext. B3 will the legatees acquired the property as joint tenants and, therefore, under S. 106 of the Indian Succession Act on the death of one of the legatees before the death of testator the other legatee, namely, the first defendant became the full owner of the property. The contention of the appellants-is that by Ext. B3 will the legacy was given jointly to first appellant and deceased Sarojini Amma and on the death of Sarojini Amma it did not revert back to testator, but the first appellant Dakshayani stakes the whole legacy. First respondent-plaintiff disputes this proposition and contends that there was no joint tenancy but distinct shares were given to Sarojini Amma and Dakshayani and, therefore on the death of Sarojini Amma before the death of testator so much of the legacy granted to her reverted back to the testator and the first respondent was thus entitled to get share in the property.

The crucial question to be considered in this appeal is whether S. 106 or 107 of the Indian Succession Act is applicable to the facts of this case. It is useful to extract Ss. 106 and 107 of the Indian Succession act: "106. Legacy does not lapse if one of two joint legatees dies before testator.-If a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole. " 107. Effect of words showing testator's intention to give distinctshare.- If alegacy is given to legatees in words which show that the testator intended to give them distinct shares of it, 'then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property". S. 106 of the Indian Succession Act is applicable in a case where there was joint tenancy. Whenever legacy is give to persons jointly and one of them happens to the during the lifetime of the testator the other legatee takes the whole. In the case of a joint tenancy, there must be unity of possession, unity of interest, unity of title and the unity of time regarding the commencement of such title. But in the case of tenancy in common there is no such unity of possession or unity of interest or unity of title. When the legacies are given to several persons as tenants in common, the aggregate fund is to be divided among them in equal shares and if any of them dies before testator, what was intended for the deceased legatee will lapse into residue.

(3.)IT is generally held that if the grant is to persons who are incapable of forming joint Hindu family in India, the donees take the property as tenants in common. IT has been held by an early decision of the privy Council in Babu Rani v. Rajendra Baksh (AIR 1933 Privy Council 72) that: "the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an individed Hindu family governed by the Mitakshara law which under that law passes by survivorship". That was a case in which grant was made to two brothers, and the question as to whether the grants were made to the two brothers severally or as members of a joint family. IT was held that, "prima facie a gift to a member of joint Hindu family is his separate property and will only become joint family property when it descends to his sons, unless he himself has made it joint family property by throwing itinto the common stock". This observation of the Privy council was approved by the Supreme Court in venkatakrishna Rao v. Sathyavathi (AIR 1968 SC 751) and similar observations were made by the Judicial Committee in Jogeswar Narain Deo v. Ram Chand Dutt (1896 23 Ind App 37 ). Therefore, under normal circumstances, if the bequeth is in favour of two person, it is presumed tht they take only as tenants-in-common. But, if there are clear and distinct words to the effect that the testator intended that there shall be a joint tenancy then, of course, the legatees will take the property as joint tenants. Here, the relevant words in the Will reads as follows: (To my wife Sarojini Amma, aged 31 and 10 months old daughter Dakshayani alone shall keep in possession and enjoyment of the property alter paying customary dues and land tax and they shall have right of assignment of the property ).
From the words extracted above, it cannot be said that there was a joint tenancy. It is not mentioned that they should enjoy the property jointly and that there is no unity of interest or unity of title in respect of the property bequeathed in favour of Sarojini Amma and Dakshayani. It is to be presumed that distinct shares have been given to both, the legatees. Under such circumstances, it is to be held that the legatees took the property as tenants-in-common.

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