Summary
Heirs who succeed under Section 8 of the Hindu Succession Act, 1956 take the property as tenants-in-common with definite shares, not as joint tenants. The widow, who held only a one-fifth share in her husband's separate property alongside four step-daughters, could not sell part of it as 'karta' on the ground of legal necessity. The High Court's restoration of the partition decree was upheld.
Issues
- Whether the widow of the deceased could rely on legal necessity, as 'karta' of the family, to sell part of her late husband's separate property.
- Whether heirs succeeding to a male Hindu's separate property under Section 8 of the Hindu Succession Act, 1956 hold it as tenants-in-common or as joint tenants.
Provisions considered
- Section 8, Hindu Succession Act, 1956The rights of the widow and the four daughters flowed from Section 8, as the suit property was the separate property of the deceased; following Chander Sen, the Court held that property devolving under Section 8 is taken by the heir individually, not as karta of a joint family. (¶¶ 5, 6, 7, 8)
- Section 10, Hindu Succession Act, 1956Quoted as the rule for distributing an intestate's property among Class I heirs, under which the widow and each daughter take one share; this gave each of the five heirs a one-fifth share. (¶¶ 6, 8)
- Section 19, Hindu Succession Act, 1956Section 19(b) requires two or more heirs succeeding together to take as tenants-in-common and not as joint tenants; read with Section 8, it meant each heir held a definite, separate share that devolves by succession, not survivorship. (¶¶ 6, 7, 8)
Held
- In a joint tenancy all co-owners together own the property, no co-owner has a separate inheritable share, and the interest of a deceased joint tenant passes to the survivors by survivorship. In a tenancy-in-common each co-owner has a distinct, ascertainable though undivided share, which on his death devolves on his own heirs by succession. (¶ 7)
- Property devolving under Section 8 of the Hindu Succession Act is taken by the heir in an individual capacity and does not assume the character of coparcenary property. Under Section 19, heirs succeeding together hold as tenants-in-common with definite shares, so the question of karta-ship ordinarily does not arise merely because the property came from an ancestor. (¶ 7)
- On the death of the deceased, his widow and four daughters became tenants-in-common with a one-fifth share each in his separate property. Since each had a separate and identifiable share, the widow could not act as karta to sell part of the property on the ground of legal necessity; she could deal only with her own one-fifth share. (¶ 8)
Result
Appeal dismissed; the High Court's judgment restoring the trial court's partition decree was upheld; no order as to costs.