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Family and Personal Laws

Hindu Law
Widow
Co-widows
— Co-widow's inheritance of their husband's property as joint tenants —
Partition of the property — Absolute partition without other's consent not
possible — Arrangement for absolute division — Transfer of property together with
incidental right of survivorship — Effect of S. 6(a) of Transfer of Property Act,
1882 — Relinquishment of right of survivorship in the allotted portion — Oral
partition valid — Clear evidence to establish relinquishment necessary — Property
Law — Transfer of Property Act, 1882 - S. 6(a) — Property Law — Co-owner
Under the Hindu law as it stood in 1924, two widows inheriting their husband's properties took
together one estate as joint tenants with rights of survivorship and equal beneficial
enjoyment. They were entitled to enforce a partition of those properties so that each could
separately possess and enjoy the portion allotted to her. Neither could without the consent
of the other enforce an absolute partition of the estate so as to destroy the right of
survivorship.
But by mutual consent they could enter into any arrangement regarding their respective
rights in the properties during the continuance of the widow's estate, and could absolutely
divide the properties, so as to preclude the right of survivorship of each to the portion
allotted to the other. Likewise, two daughters succeeding to their father's estate as joint
tenants with right of survivorship could enter into a similar arrangement.
Such an arrangement was not repugnant to S. 6(a) of the Transfer of Property Act, 1882.
The interest of each widow in the properties inherited by her was property, and this property
together with the incidental right of survivorship could be lawfully transferred. Section 6(a) of
the Transfer of Property Act prohibits the transfer of the bare chance of the surviving widow
taking the entire estate as the next heir of her husband on the death of the co-widow, but it
does not prohibit the transfer by the widow of her present interest in the properties inherited
by her together with the incidental right of survivorship. The widows were competent to
partition the properties and allot separate portions to each and incidental to such an
allotment, each could agree to relinquish her right of survivorship in the portion allotted to
the other.
A partition may be effected orally. By an oral partition, the two widows could adjust their
diverse rights in the entire estate, and as part of this arrangement, each could orally agree
to relinquish her right of survivorship to the portion allotted to the other.
Mere partition of the estate between the two widows does not destroy the right of
survivorship of each to the properties allotted to the other. The party who asserts that there
was an arrangement by which the widows agree to relinquish the right of survivorship must
establish this arrangement by clear and cogent evidence.

Karpagathachi v. Nagarathinathachi,
1965 SCC OnLine SC 274 : (1965) 3 SCR 335 : (1965) 2 MLJ (SC) 61 : AIR 1965 SC 1752
SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 2 Tuesday, July 16, 2024
Printed For: Pravalika Reddy, Tatva Legal
SCC Online Web Edition: https://www.scconline.com
© 2024 EBC Publishing Pvt. Ltd., Lucknow.
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Bench Strength 3. Coram : K. Subba Rao, J.C. Shah and R.S. Bachawat, JJ.
[Date of decision : 18/03/1965]

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