Case BriefsHigh Courts

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

Case BriefsHigh Courts

Jharkhand High Court: Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

Appellants preferred the present appeal against the order granting probate of Will executed by the testator in favour of his daughter (applicant) with respect to a land.

Applicant’s case was that the suit land was the self-acquired property of the testator who executed the Will.

It was asserted that the Will was executed out of free will and in perfect health.

Though the objector’s (son) case was that the testator never executed any Will and the said Will was forged and fabricated.

Analysis, Law and Decision

High Court expressed that a probate court is not competent to determine the title of schedule property.

Additionally, the Court observed that,

The jurisdiction of a probate court is limited to determination that the will executed by the testator was his last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application.

In the Supreme Court decision of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357, it was held that,

“the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court”. 

Further, the Bench added that,

Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree. It may result in complete disposition in favour of one of the heirs of the testator or it may even be in complete exclusion of any of the heir.

In view of the facts and circumstances of the case, Court affirmed the lower Court’s order. [Neelam Singh v. Sudha Sinha, Misc. Appeal No. 123 of 2012, decided on 10-3-2022]

Advocates before the Court:

For the Appellants: Mr. Anil Kumar Sinha, Advocates

For the Respondents: M/s A.K. Das & Swati Shalini, Advocates

Case BriefsSupreme Court

Supreme Court: The bench of Dipak Misra and R. Banumathi, JJ held that the brother of a married female tenant is neither a ‘heir’ as visualized under Section 3(a) nor ‘family’ within the meaning of Section 3(g) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

In the present case, the suit property was taken on rent by the father-in-law of deceased tenant and after his death, his son became tenant of the suit property. Upon his death, his wife i.e. the appellant’s sister became the tenant of the suit property.

The Court noticed that the word ‘heir’ is not defined in the Act and hence, it has to be given the same meaning as would be applicable to the general law of succession. Section 15 of the Hindu Succession Act lays down the general order of succession to the property of a female intestate who dies after the commencement of the Hindu Succession Act and the exception carved out in Section 15(2)(b) provides for a special order of succession in case of property inherited by her from her husband or her father-in-law; but its operation is confined to the case of her dying without leaving a son or a daughter or children of pre-deceased children to inherit her property. Language used in the section clearly specifies that the property inherited from the husband and father-in-law would devolve upon the heirs of husband/father-in-law from whom she inherited the property. Hence, upon death of the deceased tenant, in terms of Section 15(2)(b) of the Hindu Succession Act, in the absence of any son or daughter, the tenancy would devolve upon the heirs of her husband.

Determining whether the appellant was “family” as per Section 3(g) of the Act, the Court said that the said section defines ‘family’, in relation to landlord which includes the spouse that is husband or wife of a person, male lineal descendants which means his or her son, son’s son, son’s son’s son and so on, parents, grandparents, unmarried, widowed, divorced daughter or granddaughter, etc. The definition given in the clause is an inclusive one and is supposed to be construed in its technical meaning which implies what is not given has to be excluded as not forming part of the family of landlord or tenant. Therefore, sisters and brothers of landlord and tenant are excluded from his/her family.  [Durga Prasad v. Narayan Ramchandaani, 2017 SCC OnLine SC 103, decided on 07.02.2017]


Case BriefsHigh Courts

Madras High Court: While considering an interesting issue that whether the second wife of the deceased government employee is entitled to claim the family pension without production of her marriage certificate, the bench of Hariparanthaman, J., held that the petitioner (wife) is entitled to claim the family pension without requiring to present her marriage certificate before the concerned authorities if she proves herself to be the heir of the deceased.

The petitioner challenged the impugned Order by the respondent refusing her to claim the family pension. The counsel for the petitioner, R.Sunder Srinivasan contended that the petitioner, although the second wife of the deceased, had married him lawfully after the death of the deceased’s first wife therefore the respondent is not justified in refusing to grant family pension to the petitioner.

The Court on perusing the facts of the case observed that the petitioner has proved her eligibility as the heir of the deceased by producing documents like the death certificate of her husband and the birth certificate of her child, therefore the respondent is not justified in refusing the family pension to the petitioner as per the pension rules applicable to TANGDECO by making the production of the marriage certificate as a condition precedent to the grant of family pension. The Court directed the respondent to pay the family pension along with the due arrears to the petitioner, within eight weeks from the date of issuance of the Order. [G Pushpam v. Superintending Engineer, W.P(MD)No. 17926 of 2015, decided on 20.11.2015]