The Hindu Succession Act by Section 19 clearly provides that each of the co-heirs takes per capita and takes as a tenant-in-common and not at all as a joint tenant or a joint owner. In the case of joint owners or co-owners or joint landlords on the death of one of them, the other co-owners or joint owners or joint landlords take the land by survivorship. That is not so in the case of tenants-in-common. On the death of any tenants-in-common the share of such a tenant-in-common goes not by survivorship, but to his or her own successors and the incidents of the joint tenancy and tenancy in common are distinct and separate. A distinction has been brought about between the joint tenants and the tenants-in-common in the definition of these two terms in the book 'Law Terms and Phrases' by Aiyer. "Tenancy-in-common" is where two or more persons have undivided possession but distinct estate in any subject of property, in equal or unequal shares, and either by the same or by different titles. On the death of a tenant-in-common the share goes to his representative, and not, as in a joint tenancy, to the survivors. Then a distinction has been brought about between a 'tenancy in common and joint tenancy' thus:
"The joint owners may be tenants-in-common or joint tenants (or coparceners), in the case of tenant-in-common they own the property in ascertained or defined shares, but the property has not been divided into 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 tune 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."
Bombay High Court
Umabai Trimbakrao Talukdar And ... vs State Of Maharashtra And Ors. on 26 March, 1971
Equivalent citations: AIR 1971 Bom 293
Bench: D.B.Padhye
1. Field Survey No. 402, area 30 acres 1 guntha of Jarud was owned by Kashibai wife of Balwantrao Kalamkar. She was a widow having lost her husband in about the year 1951 and herself died on 2-6-1964. The respondent No. 3 Pralhad has been a tenant of this field since the time of Kashibai. After the death of Kashibai, the field was inherited by her three daughters Umabai, Radhabai and Shakuntala, who are the petitioners in this case. Out of them, the petitioner No. 1 Umabai is a widow since about the year 1921. On the death of Kashibai, the petitioners succeeded to the property left by Kashibai in equal shares and under Section 19 of the Hindu Succession Act, inherited the property as tenants-in-common and not as joint tenants. Each of them took the property per capita and not per stirpes, each of them having one-third share in the field in dispute.
2. Suo motu proceedings were started by the Agricultural Lands Tribunal, Morshi after the death of Kashi bai under Section 48 of the Bombay Tenancy and Agricultural Lands Act, 1958 (hereinafter called the Tenancy Act) to determine the extent of the Land which stands transferred to and vest in the tenant and the purchase price thereof in accordance with Section 47 of the Tenancy Act, The petitioner No. 1 Umabai raised a contention that her share amounting to one-third in the aforesaid field could not vest in the tenant as she is a widow. The Agricultural Lands Tribunal allowed the respondent No. 3 to purchase two-thirds share in the aforesaid field representing the shares of the petitioners 2 and 3. It was held by it that the one-third share of the petitioner No. 1 did not stand transferred to the tenant-respondent No. 3.
3. The tenant Pralhad preferred an appeal against this decision. The Sub-Divisional Officer as an appellate Court held that the tenant was entitled to purchase the whole of the suit field Including the share of the petitioner no. 1 and remanded the case to the Agricultural Lands Tribunal for fresh decision and for deciding the purchase price of the whole field. This order was challenged by the petitioners before the Maharashtra Revenue Tribunal. The Revenue Tribunal upheld the view of the Sub-Divisional Officer, holding that the ownership of the whole field vested in the tenant under the provisions of Section 46 of the Tenancy Act. The Revenue Tribunal took the view that after the death of Kashibai, the petitioners became the owners and also landlords of the field in suit and since these rights had devolved on them by operation of law, they are joint landlords of the field. It was then held that since only one of those joint landlords is a widow, but the other two are not, the fact of the petitioner No. 1 being a widow will not prevent the vesting of ownership in the tenant under the first proviso to Sub-section (2) of Section 41 of the Tenancy Act. The latter two orders are challenged by this petition.
4. Section 41 of the Tenancy Act provides that a tenant is entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally. However, if the landlord is of any of the categories mentioned in Sub-section (2) he will be entitled to purchase the land only on certain contingencies which have been stated therein. For example, if the landlord is a widow the tenant will be entitled to purchase the land only after the interest of the widow in the land ceases to exist. There is, however, a proviso to Sub-section (2) which provides that where land is held by the tenant under two or more joint landlords, and if at least one joint landlord is outside the categories specified in this sub-section, then the provisions of Sub-section (2) will not apply and the tenant will be entitled to purchase the land under Sub-section (1) of Section 41. Under Section 46 of the Tenancy Act as and from 1st of April, 1961 the ownership of all lands held by tenants which they are entitled to purchase from the landlords shall stand transferred to, and vest in, such tenants. On 1st April, 1961 Kashibai was the sole owner of the field in question and she being a widow the respondent No. 3 was not entitled to purchase the land under Section 41, nor did the ownership vest as from 1-4-1961 in the respondent No. 3 under Section 46 of the Tenancy Act.
5. All women have not been given protection under Section 41 of the Tenancy Act, but it is only in the case of a widow-landlord that ownership in the land does not vest in the tenant during her lifetime. However, if there are two or more joint landlords and if at least one of them is outside the categories mentioned in Sub-section (2) of Section 41, then even the person under disability loses the protection given under Sub-section (2) of Section 41. The proviso, however, will come into operation only if the land is held by the tenant under two or more joint landlords. It is contended on behalf of the petitioners that the three petitioners who have inherited the field as co-heirs on the death of Kashibai in specific and well-defined shares cannot be categorised as joint landlords as contemplated in the proviso to Sub-section (2) of Section 41 and as such, this proviso will have no application to the present case. It is contended that the three petitioners on the death of Kashibai have inherited one-third share each in the said field as tenants-in-common and not as joint owners and as such, each petitioner's case is required to be considered separately and the provisions of Sub-section (2) of Section 41 have to be applied to each owner independently. The Hindu Succession Act by Section 19 clearly provides that each of the co-heirs takes per capita and takes as a tenant-in-common and not at all as a joint tenant or a joint owner. In the case of joint owners or co-owners or joint landlords on the death of one of them, the other co-owners or joint owners or joint landlords take the land by survivorship. That is not so in the case of tenants-in-common. On the death of any tenants-in-common the share of such a tenant-in-common goes not by survivorship, but to his or her own successors and the incidents of the joint tenancy and tenancy in common are distinct and separate. A distinction has been brought about between the joint tenants and the tenants-in-common in the definition of these two terms in the book 'Law Terms and Phrases' by Aiyer. "Tenancy-in-common" is where two or more persons have undivided possession but distinct estate in any subject of property, in equal or unequal shares, and either by the same or by different titles. On the death of a tenant-in-common the share goes to his representative, and not, as in a joint tenancy, to the survivors. Then a distinction has been brought about between a 'tenancy in common and joint tenancy' thus:
"The joint owners may be tenants-in-common or joint tenants (or coparceners), in the case of tenant-in-common they own the property in ascertained or defined shares, but the property has not been divided into 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 tune 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."
Azizunnissa v. Assistant Custodian, has been cited in support.
6. There is, therefore, a clear distinction between a joint tenancy and a tenancy-in-common which have now become terms of art. When the term 'joint landlords' has been used in the proviso to Sub-section (2) of Section 41, it has been used in the same sense which is understood in legal parlance, such as in the case of joint tenants or joint owners. The words 'joint landlords' therefore in the proviso to Sub-section (2) of Section 41 must be given the same meaning which is attributed to the terms 'joint tenants' or 'joint owners' and the incident of such joint ownership would be the passing of the interest on the death of one of them by survivorship to others, which is not the case in the case of tenants-in-common. The petitioners, therefore, could not be said to be joint landlords so as to attract the operation of the said proviso. The proviso, therefore, will not apply to the petitioners who are only tenants-in-common holding their separate and distinct shares to the extent of one-third each and their cases have to be independently considered while applying the provisions of Section 41. So applying it will be clear that the petitioner No. 1 Umabai being a widow and covered by Sub-section (2) of Section 41 had not been a joint landlord and her share did not stand transferred to the tenant during her lifetime. The case of the other two petitioners Nos. 2 and 3, however, is different. The Sub-Divisional Officer and the Revenue Tribunal, therefore, were not right in holding that even the share of Umabai, petitioner No. 1, stands transferred to the respondent No. 3 tenant. The order of the Agricultural Lands Tribunal holding that the one-third share of the petitioner No. 1 Umabai did not stand transferred to or vest in the respondent No. 3 tenant was the correct order and is upheld. The orders of the Sub-Divisional Officer and Revenue Tribunal are set aside.
7. The petition, therefore, succeeds so far as the petitioner No. 1 Umabai is concerned. Costs of the petitioner No. 1 will be paid by the respondent No. 3.
8. Petition allowed in part.
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