Take not as joint tenants, but as tenant-in-common:
In English law co-ownership is of two kinds; Joint tenancy and tenancy– in-common. When A and В are joint tenants on the death of one of them (A) the property survives to the other B. If A and В are tenants- in-common, on the death of A, his heirs take his share and В cannot claim by survivorship.
In Hindu law joint tenancy of this kind was unknown. The kind of Co- ownership in which the right of survivorship exists in Hindu law is what is called the coparcenary. In the coparcenary there is also right by birth in favour of male issue which is absent in the joint tenancy of English Law.
The Privy Council observed in Jogeswar Narain v. Ramachund Dutt, 23 Cal. 670. (P.C.): “The Principle of Joint tenancy appears to be unknown to Hindu Law, except in the case of coparcenary between members of an undivided family.”
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Venkayamma v. Venkataramanayamma, 25 Mad. 678 (PC):
ADVERTISEMENTS:
The Privy Council recognised joint tenancy of the English type in one case. In that case A and B, two brothers inherited their maternal grandfather’s property. This does not become their ancestral property because ancestral property should be derived from paternal ancestors.
Still the Privy Council held that on the death of A, his heirs cannot take his share of the property since В can claim it by survivorship. In short they recognised joint tenancy of the English type in this case. This is erroneous and is opposed to Hindu Law concepts.
Section 19 has now statutorily overruled the Privy Council decision. When property devolves upon a plurality of heirs, they take as tenants-in-common without the right of survivorship. So the correct Hindu Law concept has now been restored.
Division per Capita and Not Per Stripes:
ADVERTISEMENTS:
Suppose there are four heirs who take together. If they take per capita each will get 1/4th share. This is the normal rule. The Act, however, provides that in certain cases division of the property shall be stirpital. Thus s. 10 provides that among Class I heirs, there is the right of representation for the children of pre-deceased son and of pre-deceased daughters. In such a case the division is stripital, according to the branches.
Thus, if there is one son and also if there are three sons of a pre-deceased son the son takes half the property, and the three grandsons will each 1/6 only for between them they should together take the half- share of the branch of their father. So except as provided in the Act itself, co-heirs take only per capita.