Incidents of tenancy - Indian Laws - General

Incidents of tenancy Incidents of tenancy in common have been cited from Halsbury s Laws of England, 5th Edn., vol. 87 in which nature of such tenancy has been discussed before 1925 in para 220. In para 221 nature of such tenancy since 1925 has been discussed. It has been observed that tenants in common have several interests, where joint tenants, whether at law or in equity, have one interest. The tenants in common may be entitled to equitable shares in the land in unequal shares and for interests which may be unequal in duration; different shares would be subject to different limitations and the limitations may include entailed interests. No new entailed interests can be created either in real or personal property, but this does not affect any entailed interests created before 1.1.1997 considering the provisions of the Trusts of Land and Appointment of Trustees Act, 1996 as applicable in the area for which it has been enacted. There is no right of survivorship and on the death of a tenant-in-common, his share passes according to its own limitation. In para 224 the modes of effecting partition of tenancies-in-common have been dealt with in general and the position before 1925 and subsequent thereto has been taken into consideration considering the enactments which have been made applicable from time to time. Thus, it is apparent that the incidents of such joint tenancy and tenants in common are further subject to the law by which parties are governed and in that context, we have to examine a case . There is no dispute with the general principles of joint tenancy and tenants in common but the same would also depend upon in their application with respect to the law by which the parties and the lis in question are governed. In a case belonging to Muslims, incidents of Muslim Law, their law of inheritance has to be considered, in particular with respect to rights of tenants in common. Right of disposition by a testament is also different in the Muslim law. There cannot be testamentary disposition for more than 1/3rd of the property held by testator. The power of alienation in Muslim law is different from Hindu law. In Hindu law, there is difference in Dayabhaga and Mitakshara school of law. Muslim law may be akin in some respect to Dayabhaga law but not with Mitakshara Law. However, in Mitakshara Law in Bombay School and in Banaras School, power of alienation is different. A co-parcener cannot alienate without consent of other co-parceners in Banaras School of Mitakshara Law. In Bombay School of Mitakshara Law, a co-parcener can alienate for value his undivided interest or his co-parcenery property without consent of other co-parceners. However in the area which is governed by the Banaras School of Mitakshara Law, sale of his undivided share in a co-parcenery property without consent of other co-parceners is voidable at the instance of non-alienating co-parcener. [ T. RAVI AND ORS. VERSUS B. CHINNA NARASIMHA AND ORS.- 2017 (3) TMI 1924 - SUPREME COURT ]