A joint tenancy carries the right of survivorship, so when one co-owner dies the survivors take his interest and his heirs take nothing. A tenancy in common gives each co-owner a share of his own that passes to his heirs, and that is what Indian law presumes.
Two provisions carry that presumption, one for heirs and one for buyers. Section 19 of the Hindu Succession Act, 1956 says that heirs who succeed together take as tenants-in-common and not as joint tenants. Section 45 of the Transfer of Property Act, 1882 covers people who buy together instead, and it gives each of them an interest measured by the money he advanced, unless they have contracted otherwise.
The Supreme Court applied Section 19 to a partition dispute in 2026, in which the question was how much of the land one of the heirs was entitled to sell. Dajiba, a Hindu male, died intestate holding agricultural land and houses in Maharashtra. He left his second wife and the four daughters of his first marriage, and the daughters sued for partition in 1972.
Before the suit was decided the widow sold part of the land to a third party. She defended the sale on two grounds, that she was acting as karta of the family and that the sale met a legal necessity, being the marriage of one of the daughters. Both grounds assume that the land was joint family property in her hands.
Two questions then arose on the record, and in that order. The first was whether the five heirs took as joint tenants with a unified interest or as tenants-in-common with separate shares, and the second was whether a co-owner holding a separate share can sell on behalf of the others as karta. The trial court set the sale aside in 1995, the first appellate court restored it, and the Bombay High Court restored the trial decree in 2022. In Darubai v. Kamalabai, decided on 1 June 2026, the Supreme Court held that the five held as tenants-in-common with one fifth each, which left the widow able to sell her one fifth and nothing more.
Right of survivorship when a co-owner dies
The right of survivorship is the incident that makes a joint tenancy a joint tenancy. On the death of one holder his interest accrues to the surviving holders, and it never reaches his own heirs. A tenancy in common has no such incident, so the share of a co-owner who dies is an asset of his estate and devolves under his will or on his intestacy.
The Supreme Court in Darubai put the difference in terms of what each holder owns while alive. Joint tenants hold a single unified interest in which no holder has a distinct share, which is why there is nothing for a deceased holder to leave behind. Tenants-in-common each hold a separate and identifiable share, and the Court described those shares as eligible for further devolution among the heirs of each holder. The share is property in the ordinary sense, so it can be willed, it can be sold, and it can be attached by a decree-holder.
A co-owner in a true joint tenancy cannot leave his interest by will, because at the moment of death there is no interest left to pass. That is the consequence Indian buyers assume when two names go on a sale deed, and it is the wrong assumption in almost every case. The presumption in India runs against joint tenancy, though Section 45 of the Transfer of Property Act operates in the absence of a contract to the contrary, so the parties are not forbidden from agreeing otherwise.
The difference also operates while both co-owners are alive. A joint tenant who sells his interest severs the joint tenancy as to that interest, because the buyer takes at a different moment and under a different instrument, so two of the unities fail and what is left is a tenancy in common. A tenant in common who sells transfers a share and changes nothing about the tenure, since the buyer steps into the place of the seller and holds what the seller held. The second is what happens on almost every sale by a co-owner in India.
The four unities and the undivided share
The four unities are the conditions the common law requires before co-owners can hold as joint tenants, and they are possession, interest, title and time. Unity of possession means each holder is entitled to possession of the whole and none is entitled to any identified part. Unity of interest means the interests are of the same kind and the same extent. Unity of title means they arise under the same instrument, and unity of time means they vested at the same moment.
Tenancy in common requires unity of possession and nothing else. Two co-owners can hold unequal shares, acquired years apart, under separate instruments, and still be tenants-in-common. That is why the category absorbs almost every co-ownership that arises in practice, whether it comes about by purchase, by gift or by succession.
Take two buyers who sign one sale deed for a flat, where the first pays seventy per cent of the price and the second pays thirty. On the English test they cannot be joint tenants, because unity of interest fails at the moment of purchase, their interests not being of the same extent. The deed may describe them as joint owners, and the description does not repair the defect.
Unity of time fails as often as unity of interest, and succession is the usual reason. A man who buys a flat with his brother, and years later inherits a further share in the same flat from an uncle, takes the second share at a different moment and under a different title. Those two shares cannot be held on one joint tenancy, because neither the time nor the instrument matches. He holds as a tenant in common of the whole, with a larger share than his brother.
Section 45 of the Transfer of Property Act reaches the same result by a different route. Where the consideration comes from separate funds, the buyers are entitled to interests in proportion to the shares of the consideration each advanced, so the two in that example hold seventy and thirty. Where the money comes from a fund belonging to them in common, their interests in the property follow their interests in that fund. Only where there is no evidence of either are they presumed to be equally interested.
That last limb decides more cases than the first two, because contribution is rarely documented. A buyer who paid the larger part of the price and cannot prove it is presumed to hold an equal share, and the presumption is rebuttable only on evidence of what each person actually advanced. Bank statements, the source of the loan and the instalments paid on it are what a court works from. A co-buyer who wants an unequal share recorded is better served by reciting the contributions in the deed itself.
Unity of possession is the one unity every Indian co-ownership has, and it is the one the law here insists on. Each co-owner is entitled to joint possession of the whole, and none can point to a room, a field or a floor as his own until partition. A co-owner who wants an identified part has to obtain it by partition, whether by agreement or by a decree.
Tenancy in common as the default in India
Tenancy in common is the default in India because the Privy Council refused to import joint tenancy into Hindu law in 1896, and because Parliament wrote that refusal into statute sixty years later. The presumption applies whether the co-ownership arises by succession or by purchase. It is a presumption and not a prohibition, which matters when a deed says something different.
The default operates at two separate points. On succession, Section 19 of the Hindu Succession Act fixes the character of what co-heirs take from an intestate. On purchase, Section 45 of the Transfer of Property Act fixes the character of what co-buyers take from a seller. Neither section needs the parties to have thought about the question, which is why the default does most of the work in practice.
Succession is the more common route into co-ownership, because every intestacy with more than one heir produces it. When a Hindu male dies intestate his property devolves under Section 8 on the heirs specified in Class I of the Schedule, and where there are several of them each takes a definite share. The rules on intestate succession decide how large that share is, and Section 19 decides what kind of holding it is.
The purchase route produces the same holding by a different mechanism. Two people who buy together are not the heirs of anyone, so Section 19 has nothing to operate on and Section 45 of the Transfer of Property Act supplies the rule instead. Section 45 is an equitable rule about who paid for what, which is why it applies to co-buyers of every religion. The Privy Council rule and Section 19 are confined to Hindu law, while Section 45 is not.
The Privy Council rule of 1896
The Privy Council laid the rule down in 1896, in Jogeswar Narain Deo v. Ram Chund Dutt, holding that joint tenancy has no place in Hindu law. The dispute turned on a will. The testator had given a four annas share in a zamindary to his youngest wife and to the son born of her, with words of bequest reading that he gave it to them for their maintenance, followed by a power of alienation by sale or gift.
The question was whether the wife and the son took as joint tenants, so that the survivor would take the whole. The Judicial Committee held that they did not, in words that have been quoted ever since, that 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. The wife and the son held as tenants-in-common.
The Committee gave a second reason that is often left out of the citation. It said it was not right to import into the construction of a Hindu will an extremely technical rule of English conveyancing. Survivorship in English law is a consequence of the four unities, and the four unities belong to English conveyancing rather than to any general principle of property. The Committee declined to read an Indian testator as having intended a result that turned on a technical English doctrine.
The Supreme Court applied the same distinction in Bhagwan Dayal v. Mst. Reoti Devi, decided in September 1961 and reported at AIR 1962 SC 287. The proceedings had begun with a suit filed in 1939 in the Revenue Court, in which Reoti Devi sought recovery of her share of the profits of a village. Bhagwan Dayal resisted it, claiming the whole interest of his deceased brother on the footing that they had been members of a joint Hindu family so that survivorship applied. The Court found that he and his nephews did not form a joint family at all, and that they held the properties jointly as co-tenants, without the attributes of a joint family estate.
The Court reached that finding through two presumptions that decide most disputes of this kind. A Hindu family is presumed to be joint until the contrary is proved, which puts the burden on the person denying jointness. Where one coparcener has separated himself from the others, no presumption arises that the rest continued to constitute a joint family, so the burden moves back to the person asserting that they did. Bhagwan Dayal lost on the second of those, and what remained in his hands was a co-tenancy that carried no right of survivorship.
Statutory footing in Section 19 and Section 45
Section 19 of the Hindu Succession Act carries two directions in a single sentence, and each of them decides a different question. Heirs succeeding together take per capita and not per stirpes, which fixes the size of each share by counting heads rather than branches. They take as tenants-in-common and not as joint tenants, which fixes the character of what each of them holds. The second half is the one that removes survivorship.
Section 19 does not operate on its own. It applies where two or more heirs succeed under the Act, so the route in Darubai ran through Section 8 first, which governs succession to the property of a Hindu male dying intestate. The Supreme Court held that property devolving under Section 8 is the individual property of the heir and does not take on the character of joint family property in his hands. That holding rests on M. Arumugam v. Ammaniammal, (2020) 11 SCC 103, which the Court relied on.
The second half of Section 19 also settles who can act for the property. A joint family estate has a karta who manages it and who can bind the whole in defined circumstances, and a tenancy in common has no equivalent office. Each tenant in common deals with his own share and with nothing else, so no act of one of them binds the rest. That is the reasoning the Court applied in Darubai, where the claim of the widow to be karta failed because the holding she described did not exist on the facts.
The consequence in the case was arithmetic. The widow and the four daughters each held one fifth, separate and identifiable, from the moment Dajiba died. Because each share was already ascertained, there was no undivided family estate for anyone to manage, and the question of a karta selling on behalf of the family could not arise. The sale by the widow was good for her one fifth and for no part of the other four.
Section 45 of the Transfer of Property Act does the same work on the purchase side, subject to a qualifier that is easy to drop. The section fixes interests by the consideration advanced, or by the interests in the common fund, or equally where the evidence is silent, and each limb applies only in the absence of a contract to the contrary. Co-buyers who genuinely agree on survivorship and record that agreement are not defeated by the section. What they cannot do is achieve survivorship by writing the words joint owners on a deed and leaving it there.
Joint tenancy in a Mitakshara coparcenary
The Mitakshara coparcenary is the single holding Indian law has recognised as carrying the attributes of a joint tenancy, and the Privy Council said so in the same sentence in which it rejected joint tenancy everywhere else. A coparcenary is not created by a deed and it is not created by succession. It arises by birth into a joint Hindu family governed by Mitakshara law.
Co-ownership by succession and coparcenary differ at the root. Co-heirs under Section 19 take fixed shares at the moment of death, while coparceners hold an interest that has no fixed quantum until partition, because it rises and falls as members are born and die. That difference is what the widow in Darubai needed and did not have, since a karta manages an undivided estate and there was no undivided estate once the five shares were ascertained.
Coparcenary property and separate property can sit in the same hands at the same time. A Hindu male may hold an interest in his family coparcenary and, quite separately, property he inherited under Section 8 from his own father, and those two holdings are governed by different rules when he dies. The first question in Darubai was therefore which of the two the land was. The Court held, following M. Arumugam v. Ammaniammal, that property inherited under Section 8 is the individual property of the heir and does not acquire the character of joint family property in his hands.
Survivorship inside the coparcenary before 2005
Before 2005 the interest of a Mitakshara coparcener passed on his death to the surviving coparceners and not to his heirs, which is survivorship in substance. A son took an interest in the coparcenary property by birth, which the texts call unobstructed heritage. His interest expanded when a coparcener died and contracted when a son was born to another coparcener.
The resemblance to an English joint tenancy stops short of identity. No court applied a four unities test to a coparcenary, and no coparcener needed to take under the same instrument or at the same moment, because he took by birth. A coparcener could also demand partition and convert his fluctuating interest into a fixed share, which is a result an English joint tenant reached by the different route of severance.
The 1956 Act narrowed survivorship before it removed it. The proviso to Section 6 as it originally stood provided that where the deceased coparcener left a female relative specified in Class I, or a male claiming through such a female, his interest devolved by succession and not by survivorship. A coparcener survived by a daughter, a widow or a mother therefore fell outside the rule from 1956 onward, and his notional share was worked out on a deemed partition.
The deemed partition is a fiction and it does the arithmetic. The court assumes a partition took place immediately before the death, works out what the deceased would have received in it, and treats that figure as the interest available for succession. Nothing is actually divided by the exercise, and the family can remain joint as to the rest of the property. The proviso therefore produced a hybrid for close to fifty years, in which some coparceners passed their interest by survivorship and others passed it by succession, depending on which relatives survived them.
Section 6 after the 2005 amendment
Section 6 as substituted by the Hindu Succession (Amendment) Act, 2005 removed survivorship as the mode of devolution. Where a Hindu dies after the commencement of the amendment, his interest in the property of a Mitakshara joint family devolves by testamentary or intestate succession under the Act and not by survivorship. Survivorship was the whole of what made the coparcenary an exception in 1896, and after 2005 a coparcenary no longer has it.
The same section made daughters coparceners by birth, with the same rights in the coparcenary property as a son and the same liabilities. A daughter can demand partition, and her interest devolves on her own heirs when she dies. In Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, decided on 11 August 2020, the Supreme Court held that the right is conferred by birth and does not depend on the father having been alive on 9 September 2005. The coparcener in that case had died on 11 December 1999, leaving a widow, one daughter and three sons, and the daughter claimed a fourth share.
The change matters beyond the generation it operates on. A coparcener who dies now leaves an interest that his heirs take under the Act, and where there are two or more of them Section 19 makes them tenants-in-common of that interest like any other set of co-heirs. A generation later, property that began as coparcenary property is held in fixed shares by people who are not coparceners of one another. Each death therefore moves a further part of the property out of the coparcenary and into a tenancy in common.
The coparcenary survives as an institution while survivorship no longer survives as its mode of devolution. Property held by a coparcenary still differs from property held by co-heirs, because the shares remain unascertained until partition and a karta can still act for the family in a way a tenant in common cannot. What the 2005 amendment changed is the moment of death, since the interest of the deceased coparcener now goes to his heirs by succession rather than to the survivors.
Sale of an undivided share by a co-owner
A co-owner may sell his own undivided share without the consent of the others, and Section 44 of the Transfer of Property Act, 1882 tells the buyer what he has bought. The sale is valid to the extent of the share of the seller. It does not bind the shares of the others, which is what defeated the sale of the whole in Darubai.
The right to sell follows from the tenure. A tenant in common has a distinct share, and a distinct share is property that can be transferred like any other. A joint tenant has no distinct share while the joint tenancy lasts, which is why an English joint tenant who sells severs the tenancy instead of conveying a share out of it.
Section 44 also defines the family it protects. For the purposes of that section an undivided family includes a group of persons related in blood who live in one house, or under one head, or under one management. The definition is wider than a Mitakshara coparcenary, so a family holding by succession that has never been a coparcenary can still fall within it. The restriction in the second paragraph of the section therefore turns on the family being undivided, not on the property being coparcenary property.
Rights the buyer of a share acquires
The buyer of a share acquires the right of the transferor to joint possession or other common or part enjoyment of the property, and the right to enforce a partition of it. Section 44 gives him those rights so far as is necessary to give effect to the transfer. He takes them subject to the conditions and liabilities affecting the share at the date of the transfer, so a mortgage or a charge on the share of the seller follows that share into his hands.
What he does not acquire is possession of any identified part. Until partition the property is undivided, and the buyer stands where the seller stood, entitled to joint possession of the whole and to no particular portion of it. A buyer who wants an identified portion has to sue for partition, and Section 44 gives him the standing to do it.
The other co-owners cannot refuse to recognise the sale, and they do not have to be parties to it. Their remedy is partition, in which the buyer is allotted the share of the seller and the holding is divided. That remedy is available to any co-owner, so a sale to an outsider ordinarily converts a dispute about occupation into a partition suit.
Buying out a stranger from a family dwelling house
A dwelling house of an undivided family is the exception, and Section 44 states it in its own second paragraph. Where the transferee of a share in such a house is not a member of the family, nothing in the section entitles him to joint possession or common enjoyment of the house. He owns the share and he cannot move in.
Section 4 of the Partition Act, 1893 completes the answer. When a transferee who is not a member of the family sues for partition of such a dwelling house, the court shall allow a shareholder of the family who undertakes to buy his share to do so. The consideration is settled by the court where the parties cannot agree on it. The outsider is therefore paid out rather than let in, and the house stays with the family.
Both provisions exist for the same purpose, and the courts state it in the same terms. They keep a stranger out of a family dwelling house, so that the co-sharer who has not sold can buy up the stranger purchaser and the privacy of the house is preserved. Courts read the expression dwelling house of an undivided family liberally, so that adjacent buildings, a courtyard, a garden and whatever else is needed for the convenient occupation of the house come within it. In Bhanumathi v. K. Abdurahiman Haji, decided in September 2022, the Kerala High Court held that the right to buy the stranger out survives until the decree is fully satisfied, which keeps it available at the stage of execution.
A separate right operates earlier, before the outsider is ever in the picture. Section 22 of the Hindu Succession Act gives a Class I heir a preferential right to acquire the interest that a co-heir proposes to transfer, so the family can keep the property without waiting for a partition suit. In Babu Ram v. Santokh Singh the Supreme Court held in 2019 that the right applies to agricultural land as much as to any other property, and that its true character is succession rather than the regulation of transfers. The Court confirmed that reading in 2026 in Mahinder v. Puran Singh, holding that Section 22 is confined strictly to succession, that no tenant and no distant blood relation can invoke it, and that it is therefore distinguishable from the Punjab pre-emption provisions struck down in Atam Prakash.
Frequently asked questions
If a flat is bought in two names, does the surviving owner get the whole of it?
The surviving owner does not take the whole of it by the fact of joint ownership alone. Two names on a sale deed create a tenancy in common in the ordinary case, which means the share of the co-owner who dies passes to his heirs under his will or on his intestacy, while the survivor keeps only his own share. Section 45 of the Transfer of Property Act fixes the size of each share by what each buyer paid, and presumes the two to be equally interested only where there is no evidence of contribution.
Does calling the buyers joint owners in a sale deed create a joint tenancy?
The words joint owners on a deed do not by themselves create a joint tenancy, because they describe the holding rather than record an agreement on survivorship. Indian conveyancing uses the phrase loosely for any co-ownership, and a court reads the deed as a whole along with the evidence of who paid what. Section 45 of the Transfer of Property Act applies in the absence of a contract to the contrary, so an agreement on survivorship has to be made out on the terms of the instrument and cannot be inferred from a label.
What happens to the share of a co-owner who dies without a will?
The share of a co-owner who dies without a will devolves on his own heirs under the succession law that applies to him, and not on the other co-owners. For a Hindu male that is Section 8 of the Hindu Succession Act, which passes the property to the heirs specified in Class I of the Schedule. Where there are two or more of them, Section 19 makes them tenants-in-common in turn, so the property can end up held by a larger group in smaller shares with each successive death.
Can one co-owner sell the entire property without the consent of the others?
A co-owner can sell only his own undivided share, and a sale of the entire property does not bind the shares of the others. That was the point decided in Darubai v. Kamalabai in June 2026, where a widow holding one fifth had sold part of the land as though she were karta of a joint family, and the Supreme Court confirmed that her sale was good for her one fifth alone. A buyer who has paid for the whole is left with the share of the seller and a claim against the seller for the rest.
Can the family stop a co-owner from selling a share to an outsider?
The family cannot forbid the sale, and it has two ways of answering it. Section 22 of the Hindu Succession Act gives a Class I heir a preferential right to acquire the interest the co-heir proposes to transfer, which operates before the transfer is made. Where the property is a dwelling house of an undivided family and the outsider has already bought in, Section 44 of the Transfer of Property Act keeps him out of possession, and Section 4 of the Partition Act, 1893 lets a member of the family buy him out when he sues for partition.
References
- Darubai and Anr. v. Kamalabai and Ors., 2026 INSC 613, Supreme Court of India, 1 June 2026, reported as 2026 LiveLaw (SC) 581. https://www.livelaw.in/supreme-court/
- Jogeswar Narain Deo v. Ram Chund Dutt, (1896) LR 23 IA 37, ILR 23 Cal 670, Judicial Committee of the Privy Council, 1896. The respondent name is also reported as Ram Chand Dutt and as Ram Chandra Dutt; the Supreme Court quoted the case as Ram Chand Dutt in Boddu Venkatakrishna Rao v. Boddu Satyavathi, 23 November 1967. https://indiankanoon.org/doc/784942/
- Bhagwan Dayal v. Mst. Reoti Devi, AIR 1962 SC 287, Supreme Court of India, 4 September 1961. https://indiankanoon.org/doc/1983017/
- M. Arumugam v. Ammaniammal, (2020) 11 SCC 103, 2020 INSC 14, Supreme Court of India, 8 January 2020.
- Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, Supreme Court of India, 11 August 2020. https://indiankanoon.org/doc/67965481/
- Babu Ram v. Santokh Singh (deceased) through his LRs, (2019) 14 SCC 162, Civil Appeal No. 2553 of 2019, Supreme Court of India, judgment 7 March 2019, review dismissed 23 July 2019. https://indiankanoon.org/doc/58994651/
- Mahinder and Ors. v. Puran Singh, 2026 INSC 698, Supreme Court of India, 15 July 2026, Karol and Kotiswar Singh JJ. https://www.verdictum.in/supreme-court/
- Bhanumathi and Anr. v. K. Abdurahiman Haji and Ors., 2022 LiveLaw (Ker) 492, Kerala High Court, 22 September 2022. https://www.livelaw.in/news-updates/
- The Hindu Succession Act, 1956, sections cited being 6, 8, 19 and 22. https://indiankanoon.org/doc/589488/
- The Transfer of Property Act, 1882, sections cited being 44 and 45. https://indiankanoon.org/doc/513068/
- The Partition Act, 1893, section cited being 4. https://indiankanoon.org/doc/1643206/
This article is for informational and educational purposes only and does not constitute legal advice. Readers should consult a qualified advocate before acting on any point discussed here.