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Daughters and widow of a deceased would inherit properties of the deceased as tenants in common and not joint tenants :Bombay High Court

The Bombay High Court has upheld that daughters and widow of a deceased would inherit properties of the deceased as tenants in common and not joint tenants through Justice MANGESH S. PATIL in the case of Kamalabai v. Darubai (SECOND APPEAL NO.1648 OF 2005)

FACTS OF THE CASE:

The suit properties, which include 4 agricultural lands and two house properties, were the properties of one Dajiba. The suit was filed by his four daughters against their step-mother for partition and separate possession of their share in the suit properties. The step mother having agreed to sell one of the suit properties to respondent no.2, he was arrayed as defendant no.2. The trial court decreed the suit in entirety awarding a joint 4/5 th share to the daughters in all the suit properties.

The step mother and the purchaser challenged the judgment and decree before the district court. By the judgment and order under challenge, the appeal was partly allowed. The share allotted to the daughters in all the suit properties, except Survey No.42/B, was confirmed. It was held that the step mother had agreed to sell it to the purchaser to meet the legal necessity of the family i.e. marriage of one of the daughters and the medical treatment of Dajiba.

Being aggrieved and dissatisfied with the judgment of the district court, one of the daughters, who was plaintiff no.4 filed a Second Appeal arraying her step mother and the purchaser as also the remaining three sisters as respondents.

JUDGEMENT:

The Court noted that since neither the purchaser nor the plaintiff’s stepmother had objected to the trial court’s judgement and decree insofar as it upheld the plaintiff’s claim to a share in all the suit properties other than Survey No.42/B, neither had they objected to the district court’s ruling either. As a result, the Second Appeal’s scope is limited to the incident involving Survey No.42/B.

Furthermore, it was observed that there was no dispute about the fact that the suit properties were the separate properties of Dajiba. After his demise somewhere in the year 1966-67 his widow i.e. defendant no.1 and daughters, who were the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act. However, in view of provision of Section 19 of that Act, all these heirs of Dajiba would inherit as tenants in common and not as joint tenants. 

Moreover, the widow and four daughters of Dajiba inherit the suit properties in accordance with this manner of inheritance, and they each take a part as tenants in common. Because the suit properties were not jointly owned, it was not possible for the stepmother, defendant no 1, to serve as the family’s manager or karta. Therefore, even for the sake of legal necessity, she had no authority to deal with the suit possessions.

The Court hed that it would have been appropriate to order an adjustment of equities because the stepmother-defendant No. 1 is not contesting that she agreed to sell the suit property, Survey No. 42/B, to the buyer-defendant No. 2, but since they have not raised any cross objections, even that is not possible in this Second appeal.

Thus, the Second Appeal was allowed.

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JUDGEMENT REVIEWED BY REETI SHETTY

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