Judgment S.C.Prasad, J. 1. This is an appeal by the defendants against the judgment of the Additional Subordinate Judge of Arrah decreeing the suit of the plaintiff-respondent in part. The suit was for declaration of the title of the plaintiff to one-third share in the properties mentioned at the foot of the plaint and for partition of those properties with separate takhta in respect of her share. There was also a prayer that in case the plaintiff was found to be out of possession, she should be put in possession. 2. The facts of the case relevant for the purposes of this appeal may briefly be stated as follows : 3. One Hiranand Tewary was the owner of the properties in dispute. He had acquired these properties by his own money and, therefore, they were his personal properties. The respondent was his third wife . Hiranand Tewary had no children by his first two wives. Defendants 1 and 2 were born to Hiranand Tewary by the respondent. Hiranand Tewary and the respondent had a third son also, Srinivas Tewary, but he died, while still a minor, a few days after the death of Hiranand Tewary, which took place on 25-7-1944. 4. During the life-time of Hiranand Tewary the relation between the husband and the wife had become very much strained so much so that the respondent had left Hiranands place sometimes in April or May, 1943 and had gone to live with her relation, one Sitan Upadhaya in village Ariaon, a few miles away from the village of Hiranand, namely, village Murar. In October 1943 Hiranand executed a Will whereby he gave all the properties in dispute to his three sons in eqaul shares. He referred to the strained relationship between himself and his wife and made no arrangement for her maintenance. 5. After the death of Hiranand a probate proceeding was started by appellant No. 1 in 1949 for the grant of the probate of the Will which was resisted by the respondent, but ulimately probate was ordered on 23-2-1951 by the District Judge 08 Shahabad, to be granted to the appellant. Before this proceeding for probate was started, the respondent had already filed this suit in 1946 against the appellants. 6. Before this proceeding for probate was started, the respondent had already filed this suit in 1946 against the appellants. 6. The respondents case was that her husband, Hiranand Tewary, had acquired considerable properties, moveable and immoveable, some of which stood in his name, some in the name 08 this respondent and some others in the names of the defendants, namely, his sons; that Hiranand having died in jointness with the respondent and his sons, the parties had come in possession of the properties and were in joint possession thereof but due to quarrel between her on one side and the appellants on the other it had become difficult for her to remain joint with her sons. She, therefore demanded partition of the properties, but the defendants refused to accede to her request. She, then, filed this suit. 7. The respondent had also impleaded the wife of defendant No. 1 as a party to the suit, but she died during the pendency of this litigation and is no longer on the record. 8. The appellants filed a joint written statement alleging that the respondent had become unchaste and was living with her paramour, Jitan Upadhaya, at village Ariaon, since the life-time of her husband, Hiranand Tewary, and, therefore, she had forfeited all rights as a widow under the Hindu Law to inherit any property from her husband, consequently she could not claim partition of the properties in suit. They further claimed that they were in possession of all the properties as survivors after the death of Hiranand Tewary, who had acquired these properties. They also said that the respondent was in possession of the joint family jewelleries worth Rs. 10,000/-, but she had deliberately omitted to include those properties in the plaint. 9. During the course of the hearing of the suit before the trial court, the respondent amended the plaint and made an alternative claim to the one-third share on the ground that by virtue of the will left by Hiranand Tewary, her deceased son Srinivasa, had become entitled to this share and after his death, she, as his heir, was entitled to it. 10. An additional written statement was filed by the appellants against this claim. 10. An additional written statement was filed by the appellants against this claim. It was contended that the executor under Will, namely, Srinath Tewary, appellant No. 1, not having been impleaded in his capacity as an executor, the suit was defective, that the court had no jurisdiction to divest the executor under Will of any portion of the estate of the testator and to entertain a suit of this nature and for the reliefs claimed by the respondent in the plaint, because the legatees under a Will cannot claim recovery of possession of their respective shares except by a proper application before the District Judge, that Srinivas died joint with the appellants, his interests, if any, had passed to them, and that the rule of survivorship so far as the appellants were concerned had not been affected by the Will of Hirananda Tewary. It was also contended by the appellants that the legatees under the Will of Hiranand had received the properties not as tenant-in-common but as joint tenants, this intention of the testator being clear from the Will itself, the object of which was to disinherit the respondent and, therefore, she could not claim any share in the properties even as the heir of her deceased son, Srinivas. 11. The learned Subordinate Judge found that the appellants had failed to prove that the respondent had become unchaste and had, therefore, forfeited her rights to inherit the properties of Hiranand as one of the heirs under the law, that assuming that she had become unchaste, she was still entitled, as the heir of her deceased son, Srinivas, to one-third share in the disputed properties, because under the Will of Hiranand, the legatees had been constituted tenants-in-common and not joint tenants in respect of the properties (in dispute, that though the respondent had title to this share, having regard to the fact that the administration of the estate of Hiranand was not yet complete, the property was to remain vested in the executor for all practical purposes, and, therefore, it was not within her competence to claim recovery of possession, it being, open to her to institute an appropriate proceeding under the law for the administration of the estate after which alone an action for recovery of possession could He. As in this case no such proceeding had been taken out, she was not entitled to recover possession of the share of Srinivas in the disputed property. The learned Subordinate Judge negatived the other pleas of the appellants raised by them. Consequently he held that the respondent was entitled to a declaration that she was the heir of Srinivas Tewary under the Will and was, therefore, entitled to succeed to his share. Accordingly the suit was decreed by the learned Subordinate Judge in part, whereby, he only declared respondents title to the share in dispute and dis-allowed the claim for partition and recovery of possession. 12. The defendants have appealed against this judgment of the learned Subordinate Judge, They have not challenged the findings of facts of the learned Subordinate Judge. The only point, which was pressed before us, was about the construction of the Will of Hiranand Tewary. It was contended that the construction of the Will by the court below was erroneous. According to the learned Counsel for the appellants the learned Subordinate Judge should have held that under the Will the legatees were constituted joint tenants and the interest which was given to them was a joint interest, so that after the death of one of the legatees his right in the property had passed by survivorship to the surviving legatees and not to his heir. Consequently on the death of Srinivas Tewary which had taken place a few days after the death of Hiranand Tewary, the testator, his share in the property in dispute had devolved to claim his share. No declaration of title, therefore, should have been granted to her by the learned Subordinate Judge, The respondent has not filed any cross appeal against the adverse findings and directions recorded by the learned Subordinate Judge in his judgment against her. 13. It is clear, therefore, that the only question which is to be decided in this appeal is about the effect of the Will and the interest created thereby in favour of the legatees. 13. It is clear, therefore, that the only question which is to be decided in this appeal is about the effect of the Will and the interest created thereby in favour of the legatees. The contention of the learned Counsel for the appellants, as I have understood it, was that if, under the Hindu Law the self-acquired property of the father becomes the joint family property in the hands of his sons when it passes to them as heirs at law, the mere fact that the same property comes into their hands by means of a Will as legatees does not bring about any change in this legal effect, the sons, nevertheless, taking the properties as joint tenants. 14. The second line of the argument of the learned Counsel for the appellants was that the terms of the Will properly considered along with the surrounding circumstances, the most significant of which was the fact that Hiranand Tewary wanted to disinherit his wife, clearly indicated that Hiranand Tewary intended that his sons alone should enjoy the properties as owners and never his wife, and therefore, also the respondent was not entitled to claim any share in the property as the heir of her deceased son. 15. It was also contended that when a Will was made by any Hindu father in favour of his sons in respect of his self-acquired property, the presumption was that these properties were intended to go to his sons as joint family properties, each of them having a right of a coparcener and that this presumption could be rebutted only by the clearest possible expression of a contrary intention by the testator in the grant itself. It was suggested that in this particular case, this presumption had not been rebutted and, therefore, also the appellants were alone entitled to succeed to the properties in dispute. 16. In order to determine the question raised by the learned Counsel for the appellants on their behalf before us, it is necessary to examine and find out the true legal position. The whole basis of the argument of the learned Counsel for the appellants seems tp be that if the appellants and his deceased brother. Srinivas, had received the properties of Hiranand Tewary by descent on intestacy, those properties would have become joint family properties in their hands. The whole basis of the argument of the learned Counsel for the appellants seems tp be that if the appellants and his deceased brother. Srinivas, had received the properties of Hiranand Tewary by descent on intestacy, those properties would have become joint family properties in their hands. The mere fact, therefore, that they had received the properties by a Will had not changed this character of the properties, because the decisive factor in such cases was the source from which the properties had come and not the mode of transmission, Now, exactly the same point had been the subject-matter of conflict of opinions between different High Courts when it had come before them as a result of disputes between the legatees or donees or their transferees on one side and the sons and the grandsons Or other heirs of the former, on the other. This conflict of opinions, has been set at rest by the recent decision of the Supreme Court in the case of Arunacliala Mudaliar V/s. Muruganatha Mudaliar, (AIR 1953 Supreme Court 495). It has been laid down by their Lordships of the Supreme Court that in view of the settled law that a Mitakshara father had absolute right to dispose of his self-acquired property in any way he liked to which his male descendants were not entitled to object in any way, it followed that such property bequeathed or gifted to a son could not be held to rank, as ancestral property in the hands of the donee, so that his sons were entitled to acquire co-ordinate interests in it. It was further observed that the father was competent to provide expressly either that the donee or the legatee was to take the property exclusively for himself or that it was for the benefit of his branch of the family. If there were express provisions to that effect, there could be no difficulty in the matter and the interest of the son would depend upon the terms of the grant. In case there were no such clear words, the intention of the donor or the testator was to be fathered by the court from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. 17. In case there were no such clear words, the intention of the donor or the testator was to be fathered by the court from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. 17. The facts of that case were that a suit had been filed by the son against his father claiming one-third share in a property. It was resisted by the father on the ground that he had received that property by a Will of his father and, therefore, it was his self-acquired property in which his son - could claim any share. The substantial point, therefore, which required consideration by their Lordships was whether the property which the father had got under a Will of his own father was to be regarded as ancestral or self-acquired property in his hand. The Will had been executed by the father in favour of three sons, each of them had been given properties according to three separate schedules attached to the Will, A, B and C. One of the schedule properties had been given to the father against whom the son had brought the suit for his share. The sons, according to the Will, were: "to enjoy the properties allotted to them with absolute, rights and with powers of alienation such as gift exchange, sale etc. from son to grandson hereditarily." It was in these circumstances that the aforesaid principles were laid down by their Lordships of the Supreme Court and it was held that by the Will in question there, the father had got the properties as his self-acquisitions. 18. The learned Counsel for the appellants has relied upon this case in favour of his contentions but it seems to me that this authority, instead of supporting his contentions, goes counter to them. 19. It is true that in that case the dispute was between the legatee and his son, the other sons who were co-legatees with the father were perhaps not parties in that suit and no point had been raised there that by the Will then in question they and their brother against whom the son had brought the suit, had all got the properties under the Will as ancestral properties. In other words, the point in controversy in the instant appeal before us had not come up for consideration before their Lordships of the Supreme Court in the above case in its present form, nevertheless, in my view, the principles of the Supreme Court decision apply to the present case also. The mere fact that the dispute here is between the legatees, the sons of the testator inter se, does not make any substantial difference so as to eliminate the application of the principles of law laid down by the Supreme Court in the above case. Under the Hindu Law the separate property of a father becomes ancestral property in the hands of the sons if they get that property by inheritance and any grandson who is living at the time of the inheritance or born thereafter also gets a co-ordinate right by birth in that property in the same way as the sons get this right. Therefore, if in the case of the devolution of such a property, under a Will or gift by the father, upon the son, the law, as between that son and his son or grandson, is as has been laid down by the Supreme Court, in the above case, a fortiori, the same principles of law should apply to the case where, as here, the property has been bequeathed by the father to the sons so far as the determination of their rights inter se, as joint tenants or tenants in common, is concerned. 20. In several cases it has been held, and it has by now become a fairly established rule of Hindu Law, that when a gift or bequest is made to two or more persons who are members of a coparcenary, they nevertheless take as tenants-in-common, and not as joint tenants or coparceners, unless a contrary intention appears from the grant; see the case of Mt. Bahu Rani V/s. Rajendra Baksh Singh, 60 Ind App 95: (AIR 1933 PC 72), where the Government had made a grant of some landed property to two brothers, who were members of a joint Mitakshra family. A question arose whether the property had been taken by the two brothers jointly. Bahu Rani V/s. Rajendra Baksh Singh, 60 Ind App 95: (AIR 1933 PC 72), where the Government had made a grant of some landed property to two brothers, who were members of a joint Mitakshra family. A question arose whether the property had been taken by the two brothers jointly. Their Lordships of the Privy Council observed as follows:- - "The principle of joint tenancy is unknown in Hindu Law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara. Whether a grant to persons who constitute a joint family was made to them severally or as a joint family depends upon the intention of the donor as expressed in the grant; there is no presumption that the latter was intended." 21. The same principle was applied in the case of the sons taking the property as donees or legatees in Y. Ethirajulu Naidu V/s. Mukunthu Naidu, ILR 28 Mad 363 where a Hindu father had bequeathed his house to his three sons saying that they were to enjoy the house from son to grandson and so on in succession without power to gift or to sell the same. As regards his other properties, he had directed that the income thereof was to be divided among his sons in equal shares and the corpus was to be divided among his grandsons after the death of his sons according to their respective shares. One of his sons died leaving a son, who died leaving a widow who claimed a third share in the house alleging that the three sons took the house as tenants-in-common. It was observed! by Subrahmania Ayyar J. as follows:- -(see at page 373). "In cases like the present, the question for determination is but one of intention to be ascertained with "reference to the terms of the particular Will. It was observed! by Subrahmania Ayyar J. as follows:- -(see at page 373). "In cases like the present, the question for determination is but one of intention to be ascertained with "reference to the terms of the particular Will. If the grant is to persons who are incapable of forming a joint Hindu family, they can of course take only as tenants-in-common, If, on the contrary, the grant is to persons who constitute such a family, even then it may be that the prima facie view is that they take in severalty and that those who argue in favour of opposite construction have to snow some clear foundation for it in the term of the Will.........." It was held that the legatees had taken the first house as joint tenants because the testator had clearly expressed his intention in that behalf in the Will itself but they had taken the income of the other houses as tenants in common and, therefore, the widow was entitled to it. 22. In the case of Bai Diwali V/s. Patel Bechardas, ILR 26 Bom 445 a Hindu executed a deed of gift by which he gave the property to two persons who were brothers and members of a joint family, it was held that the donees took them as tenants-in-common and on the deatk of either of them his share passed to his heirs by succession. 23. In Ramnath Singh V/s. Mt. Dhanwanti Kuar, AIR 1942 Pat 136, an agnate gave his properties by a Will to two brothers. Bias Singh and Ram Nath Singh, who were members of a joint Hindu family. One of the legatees subsequently gifted his snare in the properties, which he had got, to one Bisram Singh whose widow and father filed the suit claiming the property in dispute against the legatee Ramanath Singh and others, the property having been attached under Section 146 of the Code of Criminal Procedure. In defence the question raised was that the two legatees Bias Singh and Ramnath Singh, the two brothers, had taken the properties as coparceners and, therefore. Bias Singh had no right to make a gift of his share to Bisram Singh. It was held that Bias Singh had taken the properties severally, there being nothing in the deed to indicate that they were, to take as coparceners. 24. Bias Singh had no right to make a gift of his share to Bisram Singh. It was held that Bias Singh had taken the properties severally, there being nothing in the deed to indicate that they were, to take as coparceners. 24. In Terumal Sethurayar V/s. Subhulakshmi Nachiar AIR 1939 PC 95, there are observations which support this view in the case of bequest to sons. A reference has been made in this case to another appeal disposed of by the Privy Council see Ajai Verma V/s. Mt. Vijai Kumari, AIR 1939 PC 22. In this latter case Raja Fateh Singh, a Hindu governed by the Mitakshra and owner of an impartible estate in the Shahjahanpur, district of Agra, had made a Will whereby half the estate was left to his eldest son and half to his second son, Vijai Verma, who died leaving behind an only daughter Vijai Kumari. It was held that the property of Vijai Verma would have come into the hands of Vijai Kumari but according to the custom which had been proved in that case she as a female, was not entitled to inherit any property of her father. The High Court of Allahabad had held that the property in question had become the self-acquired property of Vijai Verma, because under the rule of primogeniture he was not entitled to inherit the property. Their Lordships of the Privy Council while referring to the case of Vijai Verma observed as follows:- -(See at p. 98). "While their Lordships do not doubt that the High Court of Allahabad rightly held in that case that the property in question, it it passed under the Will to Vijai Verma became his self-acquired property, they are not to be taken as affirming that any different result would have ensued, had Vijai Verma been the person entitled to inherit. They say nothing here as to family arrangement or the power of a grantor to impose conditions but otherwise, so far as regards the joint family, they see considerable difficulty in giving different effect to an alienation made under the power declared to exist in Sartaji Kumari V/s. Deeraj Kumari, 15 Ind. App. They say nothing here as to family arrangement or the power of a grantor to impose conditions but otherwise, so far as regards the joint family, they see considerable difficulty in giving different effect to an alienation made under the power declared to exist in Sartaji Kumari V/s. Deeraj Kumari, 15 Ind. App. 51 (PC) according as the grant be made voluntarily or for consideration, comprises the whole or only part of the estate, is in favour of member of the family, or a stranger, or in favour of the person entitled to succeed or of some other member of the family. They recognise however that as between the grantee and his sons questions may arise upon which these considerations, or some of them, may have importance." The learned Counsel for the appellants relied upon the case reported in Bhagwat Shukul V/s. Mt. Kaporni, AIR 1944 Pat 298 and urged that when the self-acquired property is gifted by the father to his son, the latter takes it as ancestral property. It is not clear to me how this helps the appellants in this case. Moreover, in the judgment itself the original texts of the Mitakshra have been quoted and examined. It has been observed that wherever Mitakshra speaks about any property obtained by the son as a favour from his father, it says that it will not be partible (vide clause 19 of Sec.1. Clause 28 of Sec. 4 and Clauses 14. 15 and 16 of Sec. 6 of Chapter I of the Mitakshra). These texts occur under the topics "Definition of Inheritance and of Partition: Disquisition on Property; Effects not liable to Partition, Rights of posthumous son and one born after partition." It has been observed in this case that these texts relate to the question which arises between the donee and his brodiers. It is, therefore, clear that according to these original texts also, any property, which the son of a Hindu father receives by gift or by Will from him, is not partible between him and his other brothers. In other words, it is his separate and personal property. It is, therefore, clear that according to these original texts also, any property, which the son of a Hindu father receives by gift or by Will from him, is not partible between him and his other brothers. In other words, it is his separate and personal property. This case, therefore, supports the view that if the legatees happen to be the sons of the testator or the donor, and are members of a joint Hindu family, they take the self-acquired property given to them by their father as testator or donor under his Will or gift, as the case may be, as tenants-in-common and not as joint tenants, so that in case one of the legatees or donees dies., his share shall not pass to the surviving legatees or donees by the right of survivorship but would go to his heir. That the father, being the full owner of the property, is entitled to impose conditions while making the gift or bequest, indicating that the legatees or the donees, as the case may be, should take the property as members of a joint family with right of survivorship inter se, is not denied, but in order to effectuate this position, there should be such an intention on the part of the donor or the testator appearing from the grant itself. The true legal position may, therefore, be formulated as follows:- - (1) Unless there is an intention expressed by the grantor to the contrary, the sons, taking the self-acquired property of their father under a will or gift by him, take it as tenants-in-common and not as joint tenants. (2) In case the grant is silent and no clear intention has been expressed, the true intention of the grantor is to be gathered from the terms of the grant in accordance with the accepted canons of construction, in the context of the surrounding circumstances of each case. 25. If the facts of the present case are examined in the light of the aforesaid legal position, it will be clear that the appellants and their deceased brother had been granted rights of tenants-in-common and not as joint tenants in the properties which were bequeathed to them by their father by his Will of 1943. 26. There is no intention expressed by Hiranand that his sons were to take his properties as members of Hindu Mitakshra joint family. 26. There is no intention expressed by Hiranand that his sons were to take his properties as members of Hindu Mitakshra joint family. On the contrary, as the learned Subordinate Judge has shown, the operative portions of the Will clearly indicate that the sons were to take them in equal shares and were to be full, perfect and absolute owners of their shares with all rights of transfer: It is further mentioned in this Will that so long as his other two sons, namely, appellant No. 2 and the deceased Srinivas were minors appellant No. 1 would be in possession as their guardian and after they had attained majority, they would come in possession of their respective shares. In my view this is a clear expression of the intention of the father that his sons were to take the properties as tenants-in-common. 27. It is true that there is a recital in this Will that in case any of his sons died during his life time the remaining claimants, who will be alive, shall be the owners and in possession of all the properties, but this does not mean that the interest of the deceased son would go to the surviving son or sons. Had that been the intention of the testator, Hiranand Tewary, there was nothing, to prevent him from saying so in the Will itself that in case any of the legatees died after they had got the properties after his death, his share will go not to the heirs of that legatee but to the remaining surviving legatees. Indeed, this clause in the Will is redundant because it was not a gift inter vivos by which the property was given to his sons by Hiranand Tewary in his life time. It was to come into effect after his death and, therefore, during, his life time if any of the legatee died, the position was not to be affected in any way, especially when at one place in the Will itself there is a direction by Hiranand Tewary that so long as he lived, he shall remain the owner and in possession of all the properties. The utmost which can possibly be urged on the basis of this clause in the Will is that the intention of the testator was that so long as he was alive, none of the legatees was to get any vested interest in the properties. The legatees were to be only such of them as happened to be alive at the time of his death so that if any of the legatees died during his life time, the heir of that legatee could not lay any claim to his share on the ground that even during the life, time of the testator Hiranand Tewary that legatee had acquired vested interest in the share given to him by the Will and, therefore, the share of the deceased legatee, even though he had died in the life time of the testator, would come into their hands, as his heir after Hiranands death. Beyond this nothing can be urged in favour of the proposition that this clause had the effect of indicating the character of the property which was intended to be given by Hiranand Tewary to his sons, namely, the proposition that the sons had been given rights of survivorship inter se in respect of the property of each of the sons given to them by this Will. 28. There is no force in the contention that if the intention of Hiranand Tewary was to disinherit the respondent because of her strained relationship with him under this Will, she was debarred from getting any share in the property even as a legal heir of her deceased son, Srinivas. The testator had not cared to touch the question of inheritance to the shares given by him to his sons, by his Will. His intention clearly was to leave it to be determined by the general law. Indeed, having given full rights of ownership to his sons, he could not disinherit the heirs of any of these legatees. 29. The testator had not cared to touch the question of inheritance to the shares given by him to his sons, by his Will. His intention clearly was to leave it to be determined by the general law. Indeed, having given full rights of ownership to his sons, he could not disinherit the heirs of any of these legatees. 29. In my considered view the learned Subordinate Judge has rightly construed the Will as conferring on the legatees, the two appellants and their deceased brother, Srinivas, an interest in the property which was inheritable by law according to the rule of intestacy and, therefore, after the death of Srinivas Tewary in whom one-third share in the disputed properties had vested, after the death of Hiranand Tewary, his mother, the respondent, became entitled to this share as his heir. The learned Subordinate Judge has, therefore, rightly declared the title of the respondent to the share claimed by her in the disputed properties. I find, therefore, no merit in this appeal. It is dismissed with costs. B.N.Rai, J. 30 I agree.