Bombay High Court: Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.
The suit properties which included 4 agricultural lands and two-house properties, were the properties of Dajiba.
The four daughters of Dajiba had filed the suit against their stepmother for partition and separate possession of their share in the suit properties. The stepmother having agreed to sell one of the suit properties being Survey No. 42/B to respondent 2, was arrayed as defendant 2.
Trial Court decreed the suit awarding a joint 4/5th share to the daughters in all the suit properties.
The above-said judgment was challenged by the step mother and the purchaser and further, the appeal was partly allowed. Except for Survey No. 42/B, the share allotted to the daughters in all the suit properties was confirmed.
Further, the stepmother had agreed to sell it to the purchaser to meet the legal necessity of the family.
Aggrieved with the District Court’s decision, one of the daughters who was plaintiff 4 preferred the second appeal arraying her stepmother and the purchaser as also the remaining three sisters as respondents.
Analysis, Law and Decision
High Court noted that there was no dispute with regard to the suit properties and after the demise of Dajiba, his widow i.e., defendant 1 and daughters, who were the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act.
With regard to Section 19 of the Hindu Succession Act, all the above-stated heirs of Dajiba would inherit as tenants in common and not as joint tenants.
The very theory of existence of a karta and legal necessity presupposes that the sharers are joint, which is not the case in the matter in hand.
Bench stated that by virtue of the above-stated mode of succession by the widow and four daughters of Dajiba receiving the suit properties as heirs, they take their individual shares as tenants in common.
Since the suit properties were not joint, there was no question of the stepmother acting as a manager or karta of the family. Therefore, she had no right to deal with the suit properties even for legal necessity.
High Court relied upon the decision of Supreme Court in Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara Nagpur v. Seth Govindram Sugar Mills, AIR 1966 SC 24.
Bench added that it has been held that,
under Hindu Law coparcenership is a necessary qualification for becoming a manager of joint Hindu family and since a widow cannot be a coparcener she is not legally entitled to become a manager. Conspicuously, this was a position even prior to the coming into force of the Hindu Succession Act. By virtue of Section 19 it has been explicitly made clear that if two and more heirs succeed together to the property and in estate, they take the property as tenants in common and not as a joint tenants.
With regard to the present matter, the Bench held that, once it was established that the step mother was not entitled to act as a manager or karta of the family, there was no question of her having any power to deal with suit properties to the detriment of the stepdaughters.
Hence, the second appeal was allowed. [Kamalabai v. Darubai, 2022 SCC OnLine Bom 686, decide don 31-3-2022]
Advocates before the Court:
Mr. D.R. Shelke, Advocate for the appellant
Mr. P.G. Godhamgaonkar h/f. Mr. M.D. Godhamgaonkar, Advocate for respondent nos.1 and 2
Mrs. S.D. Shelke, Advocate for respondent nos.3a, 4 and 5
