Report No. 110
XV. Joint Legacies and Distinct Legacies
16.98. Section 106-Joint legacy.-
Under section 106, if a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole under the section. This section is understood as dealing with a bequest to two or more persons as 'joint tenants', in contrast with section 107, which is understood as dealing with a bequest as 'tenants in common.'
These expressions do not occur in the section, but they are convenient for indicating the two categories contemplated by sections 106-107. Under section 107, if a legacy 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, his share falls into the residue.
16.99. Case law on joint legacies.-
Section 106, has, however, given rise to a considerable amount of case law on the above point, and in each case, the court has had to determine, after some controversy and effort, whether the bequest was intended to be joint or several. It has even been held,1 that if a gift does not, in any way, indicate an intention to create a tenancy in common, the presumption will be in favour of a joint tenancy. It was also observed that the same principle is applicable to wills as to gifts, unless there are special rules justifying a deviation.2
1. Araokal v. Damineo, 1910 ILR 34 Mad 80 (SB) (case on section 93 of the 1865 Act) contrast.
2. There is no case law on section 106 from 1970 to 1982, laying down any new point.
16.100. Illustration from reported case.-
To illustrate what is stated above, it may be useful to refer to the facts of a reported Madras case.1 A person made a registered will, bequeathing certain properties to his second wife and her only daughter. The daughter predeceased the testator. After the death of the testator, a second daughter was born to the second wife. She was the plaintiff in this case. The defendants were the sons of the son of the testator by his first wife. The following pedigree will make the facts clear:
(Four sons)(defendants in the case)
Daughter (1) (pre-deceased)
Daughter (2) (subsequntly born-plaintiff in the case).
Prior to this will, the testator had divided himself from his sons, and they were living separately, the properties comprised in the will being the separate properties of the testator.
The plaintiff, (second daughter born to second wife) alleged that on the death of the testator, the second wife had taken possession of all the properties. She (the second wife) left a will, bequeathing all the properties to the plaintiff. The suit was for preventing the defendants from trespassing on the property in dispute.
The contention of the defendants was that as the first daughter predeceased the testator, her half share fell into the residue of the testator's properties and that the defendants were entitled to the same as their father's heirs.
The trial court accepted the plaintiff's claim that the mother became the sole legatee of the entire property on the death of her first daughter. On first appeal, the subordinate judge, and in second appeal the High Court affirmed the findings of the trial court. Hence the present Letters Patent Appeal.
1. Sinnarai v. Ramayee Animal, AIR 1969 Mad 96.
16.101. The first question considered by the High Court was whether the rule of English conveyancing that gift to two persons with words of limitation prima facie constitutes a joint tenancy between them, should be imported into the construction of a Hindu will. On a review of cases, the court came to the conclusion that the principle of joint tenancy was unknown to Hindu law, except in the case of joint property of an undivided Hindu family governed by the Mitakshara Law which, under that law, passes by survivorship.1
However, relying on some cases, the court held that this did not mean that because the principle of joint tenancy is unknown to Hindu Law outside the coparcenary, there can never be a bequest to be taken by two persons jointly.2 Therefore, there could be a joint gift in favour of two persons, even when the parties are Hindus. But, in this particular case, on an interpretation of the will, the High Court came to the conclusion that the parties were tenants-in-common.
1. (a) Reoti Devi (in re:) v. Rajendra Baksh Singh, AIR 1933 PC 72 (75).
(b) Bhagwan v. Reoti Devi, AIR 1962 SC 787.
2. Nandi Singh v. Sitaram, 1889 ILR 16 Cal 677 PC.
16.102. Relying on an unreported case, the court held that though section 106 occurs under the chapter, headed "of construction of wills", it is not a rule of construction of a will, but is a provision for devolution.
Regarding section 107, a plea was raised that if specific expressions providing for the legatees taking distinct shares were not found in the will, the will can be interpreted as amounting to a joint gift and section 106 should be applied.
The court refused to accept this argument.
In construing the will, the High Court relied on the following principle:
"Equity favours the construction that legatees were to take separate shares as tenants-in-common and hence the court would utilise even a very slight indication of such an intention, to draw that inference."1
Ultimately, the court came to the conclusion that the legatees were tenants-in-common. The case was, however, remanded to the trial court for recording extra evidence on a matter not relevant for the present purpose.
1. Robertson v. Fraser, 1871 Ch A 606.
16.103. Criticism of section 106 as unrecalistic.-
Reverting to section 106, it appears to us that the section, and some of the judicial decisions thereon,1 somehow appear to proceed on an unrealistic basis, unrealistic so far as Indian society is concerned. Indian testators hardly, if ever, contemplate that if a legacy is given to two persons, and one of them died before the testator, the other should take the whole. Courts in India lean against joint tenancies.2-3 Oridinarily, the intention of an Indian testator in India would be not to benefit the other person in such a situation, but to allow his share to fall in the residue.
In fact, in most of the reported decisions on the subject, courts have, ultimately regarded the case as falling under section 106, and have construed the words of the will as showing that the testator "intended to give them distinct share". But this conclusion has been reached after considerable amount of debate in each case. In our view, there is no reason why some simple method of reducing the scope for such controversy should not be devised.
1. Arakal v. Demingo, ILR 34 Mad 80.
2. Bahu Rani (in re:) v. Rajendra, AIR 1933 PC 72: 60 IA 75: 64 MLJ 365 (PC).
3. See also Jankibai v. Saha, AIR 1961 MP 139 (140).
16.104. Recommendation to amend section 107.-
In view of what we have stated above, we recommend that the presumption should be the other way, namely, if the will does not, in any manner, indicate an intention that the two persons are to take it jointly the presumption should be in favour of a tenancy in common. We recommend that the law should be amended, by adding an Explanation to section 107 somewhat in these terms:
"Explanation-the will does not, in any way indicate an intention that the legacy is given to two persons jointly, it shall be presumed that the testator intended to give them distinct shares of it.1
1. To be added to section 107.
16.105. Section 107 reads as under:
"If a legacy 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.
A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies before the testator. B and C will only take so much as they would have had if A had survived the testator."
Section 107 is dependent on it being first established that the testator intended to give two or more legatees distinct shares-in contrast with the case dealt with in section 106, where a legacy is given to two persons jointly. Whether the one or the other section applies, depends on the view that the court takes as to the nature of the legacy i.e. whether it is held to be joint or several.
16.106. We have, while discussing section 106, already1 made a recommendation for amendment of section 107. No further, comments are needed, but it may be stated that fairly recent judicial decisions2 show that the court more readily infers a tenancy in common than a joint tenancy.
1. See discussion as to section 106.
2. Sanjeeva Reddy v. Akhilendamnal, ILR (1968) 1 Mad 138.