Darubai vs Kamalabai
- Court
- Supreme Court
2026 INSC 613
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. __________________ OF 2026
(@ Special Leave Petition(Civil) No. 13232 of 2022)
DARUBAI & ANR. … APPELLANT(S)
VERSUS
KAMALABAI & ORS. … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
Signature Not Verified
Digitally signed by
SOURAV PAL
Date: 2026.06.01
16:53:45 IST
Reason:
Leave Granted.
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2. The original-defendant is the appellant herein and challenges
st 1
the final judgment and order dated 31 March 2022 passed by the
High Court of Judicature at Bombay, Aurangabad Bench, which
2 nd
overturned the judgment in First Appeal passed by the II
th
Additional District Judge, Nanded, dated 9 March 1999 which was
in turn directed against the judgment in the suit for partition and
3
separate possession in which the present respondent was the fourth
th
plaintiff. The suit was decreed in terms of judgment dated 20
October 1995.
3. The four plaintiffs including the present respondent had filed
th
suit for partition and separate possession claiming to be 4/5 owners
of the property of late Dajiba, being the successors-in-interest as his
daughters along with Darubai, who is the wife of Dajiba. In other
words, this dispute which has been ongoing for more than half-a-
century is a dispute between a step-mother and daughters. The suit
property is “land and two houses located at village Sapti bearing
No. 42/B area 2 Acres 23 Gunthas. Bearing No. 83/B Area 0.20
Gunthas, iii) Survey No. 146/C Area 2 Acres and 10, iv) Survey No.
1
Second Appeal No. 1648 of 2005
2
Regular Civil Appeal No. 234 of 1995
3
Regular Civil Suit No. 23 of 1972
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43/C Area 2 Acres 6 Gunthas, Houses: and two tiled houses out of
which one of the house of bounded by East-Road, West-House of
Sakharam, North-House of Baba, and South-House of Yadav, ii)
which is bounded as, East House of Sakharam, West-Road, North-
Road and South-House of Baba”.
4. The Civil Court decreed the suit holding the plaintiffs to be
entitled to their ask. The defendant’s reasoning that she had agreed
to sell a part of the suit property, as ‘ karta ’ to one Dattatraya, out of
legal necessity for the marriage of one of the plaintiffs, was rejected.
The First Appellate Court, reversed the findings and held the legal
necessity ground to be established along with the defendant’s right
to manage the property and so, the judgment of the Civil Court was
interfered with inasmuch as the sale to Dattatraya is concerned, only.
In the Second Appeal filed by plaintiff no.4, the judgment of the
Civil Court came to be restored. Hence, this appeal.
5. Two facets are not in dispute; the relationship inter parties ,
and the nature of the property as being the separate property of
Dajiba. The question that we are asked to decide is whether the
defendant could avail the ground of legal necessity as ‘ karta ’ of the
family, and whether the parties to the lis , would succeed to the suit
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properties as tenants in common or joint tenants, since their rights
4
flow from Section 8 of the Hindu Succession Act, 1956 .
6. The relevant provisions are as follows:
“8. General rules of succession in the case of
males.―The property of a male Hindu dying intestate
shall devolve according to the provisions of this
Chapter:―
(a) firstly, upon the heirs, being the relatives specified
in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the
Schedule;
(c) thirdly, if there is no heir of any of the two classes,
then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of
the deceased.
…
10. Distribution of property among heirs in class I of the
Schedule.―The property of an intestate shall be divided
among the heirs in class I of the Schedule in accordance
with the following rules:―
Rule 1.―The intestate’s widow, or if there are more
widows than one, all the widows together, shall take one
share.
Rule 2.―The surviving sons and daughters and the
mother of the intestate shall each take one share.
Rule 3.―The heirs in the branch of each pre-deceased
son or each pre-deceased daughter of the intestate shall
take between them one share. Rule 4.―The distribution
of the share referred to in Rule 3—
(i) among the heirs in the branch of the pre-deceased
son shall be so made that his widow (or widows together)
4
HSA
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and the surviving sons and daughters get equal portions;
and the branch of his pre-deceased sons gets the same
portion;
(ii) among the heirs in the branch of the pre-deceased
daughter shall be so made that the surviving sons and
daughters get equal portions.
And,
“19. Mode of succession of two or more heirs.―If two
or more heirs succeed together to the property of an
intestate, they shall take the property,―
(a) save as otherwise expressly provided in this Act, per
capita and not per stirpes; and
b) as tenants-in-common and not as joint tenants.”
7. Now, we explore joint tenancy and tenancy in common. In a
joint tenancy, all co-owners together constitute ownership. It is
governed by the rule of survivorship. When one joint tenant dies, his
interest automatically accrues to the surviving co-owners, and not
on his own progeny. What this means is that while the joint tenancy
subsists, none of the co-owners have a separate inheritable share.
For instance, suppose ‘A’ and ‘B’ jointly hold a property under the
Mitakshara system,if ‘A’ dies, ‘B’ automatically absorbs ‘A’s
interest by survivorship. There is no question of it devolving upon
‘A’s widow or children. Ownership, therefore, continues in the
surviving coparcener without any separate succession taking place.
5
As far back as Jogeswar Narain Deo v. Ram Chund Dutt , it was
5
1896 SCC OnLine PC 5
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recognized that joint tenancy does not fit into the scheme of Hindu
law of succession. Watson LJ held “ The principle of joint tenancy
appears to be unknown to Hindu law, except in the case of
coparcenary between the members of an undivided family .”
On the other hand, in tenancy-in-common, each co-owner
possesses a distinct, undivided share in the property. Physical
possession may remain joint, the ownership of each individual co-
owner is identifiable and notionally separate. Survivorship has no
place in this form of devolution. Upon the death of one co-owner,
his share devolves upon his own heirs according to the law of
succession. To illustrate, suppose ‘A’ dies intestate leaving behind
‘B’ and ‘C’ as his heirs,under Section 8 read with Section 19 of the
HSA, ‘B’ and ‘C’ inherit the property as tenants-in-common. Each
acquires a definite share. If ‘B’ later dies, ‘B’s share will devolve
upon ‘B’s own legal heirs and will not automatically pass to ‘C’.
The difference in the two systems determines the nature of property
inherited by a son from his father.
Ram Lall J. of the Lahore High Court in 1939 in Nawab Nisar
6
Ali Khan v. Sardar Nawazish Ali Khan , said thus:
6
1939 SCC OnLine Lah 153
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“8….The distinction appears to us to lie in this, that
where there is a jointness of title, each coparcener is
in possession of every portion of the joint property
while his share is not defined … Such jointness of title
can ordinarily exist in the case of a coparcenary
property only, but where the shares of co-owners are
known and ascertained, a suit for partition is virtually
a suit to enforce a right to a share in joint family
property.”
A 1957 judgment of the Allahabad High Court, Azizun Nisa
7
v. Assistant Custodian , aptly captures the distinction between the
two concepts discussed above, as follows:
“18. This distinction between interest arising out of a right
existing in the property and interest arising independently of
any such right is very material when one has to consider a
property owned by two or more persons. The joint owners
may be tenants-in-common or joint tenants (or coparceners).
In the case of tenants-in-common they own the property in
ascertained or defined shares, but the property has not been
divided into the shares. In the case of joint tenancy the joint
owners own the property in coparcenary and their shares have
not been ascertained and cannot be ascertained except
perhaps at the time of partition. In a tenancy-in-common a
joint owner's share is inherited on his death by his personal
heirs, whereas in a joint tenancy on the death of a joint owner
the property belongs to the surviving joint owners. In a
tenancy-in-common each joint owner owns or has a right in
his share; in a joint tenancy all the joint owners together own
the property, a joint owner having no ascertained share cannot
be said to own a particular share in it. If a property is owned
by two persons in equal shares, each is an owner of a moiety
in it and each can have his moiety separated from the other.
7
1957 SCC OnLine All 83
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But if two persons have an interest in a property, their
interests cannot be separated and must always remain joint.
There can be extinction of the interest of one of them but not
partition. Assets of a company became evacuee property on
account of an evacuee share-holder's having an interest, but
since the interest extended over the entire property, the entire
property must become evacuee property. In the case of
tenancy-in-common every joint owner owns his share in the
property and his share can always be separated from the
others' share. The share owned by him could alone become
evacuee property. He could be said to have an interest in the
whole property, but since his interest was derived from his
share in the property, which share could be partitioned off
leaving him without any interest in the rest of the property, it
would have been unnecessary and unreasonable to make the
whole property evacuee property. So it could not have been
intended by the Legislature that the whole should become
evacuee property. This intention could be effectuated by
interpreting the words “or interest” as suggested above.”
In the very same judgment, the Allahabad High Court, has
also referred to a case appearing in the All England Law Reports
titled In re Schar Midland Bank Executor and Trustee Co.
8
Ltd. v. Damer which held as follows: “ the unity of the estate and
of the interest in the estate enures for the benefit of each and all
and….. each and all have one undivided and indivisible property in
the subject-matter. ”
8
(1950) (2) A.E.L.R., 1069, at p. 1072.
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The issue stands conclusively settled in CWT v. Chander
9
Sen . The Court held that when property devolves upon a son under
Section 8, the son takes it in his individual capacity and not as karta
of his own Hindu Undivided Family. Once again, employing the
means of a simple illustration-suppose ‘A’ dies intestate after 1956
leaving behind his son ‘B’. ‘B’ inherits ‘A’s property under Section
8. Under Mitakshara doctrine, ‘B’s son ‘C’ would automatically
acquire a birthright in that property, and ‘B’ would hold it as karta
of the joint family consisting of himself and ‘C’. However, since the
property devolved through Section 8 succession, ‘B’ takes the
property as his separate property. ‘C’ acquires no right in it by birth
merely because it once belonged to ‘A’ . This is in accordance with
10
Yudhishter v. Ashok Kumar , where Sabhyasachi Mukherji J.,(as
he then was) who was also the author of the decision in Chander
Sen (supra), reiterated that property inherited under Section 8 does
not automatically assume the character of coparcenary property. It
was held that descendants of the heir do not acquire rights in such
property by birth because the inheritance is individual and statutory
in nature.
9
(1986) 3 SCC 567
10
(1987) 1 SCC 204
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Recent iteration of this understanding was expressed in M.
11
Arumugam v. Ammaniammal , by this Court as follows:
“15. In Appropriate Authority (IT Deptt.) v. M.
Arifulla [ Appropriate Authority (IT Deptt.) v. M.
Arifulla , (2002) 10 SCC 342] the issue which arose was
whether the property inherited in terms of Sections 6 and
8 of the Succession Act was to be treated as the property
of co-owners or as joint family property. The Court held
as follows: (SCC p. 344, para 3)
“ 3 . … This Court has held
in CWT v. Chander Sen [ CWT v. Chander
Sen , (1986) 3 SCC 567 : 1986 SCC (Tax)
641] that a property devolving under
Section 8 of the Hindu Succession Act, is
the individual property of the person who
inherits the same and not that of the HUF.
In fact, in the special leave petition, it is
admitted that Respondents 2 to 5 inherited
the property in question from the said T.M.
Doraiswami. Hence, they held it as tenants-
in-common and not as joint tenants.”
17. There is another reason to take this view. Section 30
of the Succession Act clearly lays down that any Hindu
can dispose of his share of the property by will or by any
other testamentary disposition which is capable of being
so disposed of by him. The Explanation to Section 30
clearly provides that the interest of a male Hindu in
Mitakshara coparcenary shall be deemed to be property
capable of being disposed of by him within the meaning
of Section 30. This means that the lawmakers intended
that for all intents and purposes the interest of a male
Hindu in Mitakshara coparcenary was to be virtually like
11
(2020) 11 SCC 103
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his self-acquired property. Furthermore, when we
conjointly read Section 30 with Section 19, which
provides that when two or more heirs succeed together to
the property of an intestate, they shall take the property
per capita and as tenants-in-common and not as joint
tenants. This also clearly indicates that the property was
not to be treated as a joint family property though it may
be held jointly by the legal heirs as tenants-in-common
till the property is divided, apportioned or dealt with in a
family settlement.”
(Emphasis supplied)
Accordingly, in the context of Section 8, the question of
karta-ship ordinarily does not arise merely because the property has
come from a paternal ancestor. The heirs succeed as tenants-in-
common with definite and separate shares, and the property
devolves by succession rather than by survivorship.
8. In view of what has been discussed hereinabove, it has been
held that upon the death of Dajiba, Darubai and her four step
daughters became tenants-in-common with definite and separate
th
shares, to the tune of 1/5 each. When each of them have separate
and identifiable shares, in the considered view of this Court, there
arises no question of the defendant acting as karta to sell off a part
of the property on account of legal necessity, be it for whatever
reason, for she only had the right to do whatever she wished with
th
the 1/5 share of the property that vested with her.
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9. Consequently, the appeal fails and is dismissed. We only hope
that with the finality that accompanies the above conclusion, the
long-standing dispute between the parties can, in true effect, be put
behind them, by the parties and they can truly move on to a better,
more peaceful tomorrow for all those involved. In the
circumstances, there shall be no order as to costs.
Pending applications, if any, shall be disposed of.
………………………………………J.
(SANJAY KAROL)
………………………………………J.
(AUGUSTINE GEORGE MASIH)
New Delhi;
June 1, 2026
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