INTRODUCTION
In June 2026, the Supreme Court of India delivered a stark warning to real estate buyers in Darubai v. Kamalabai[1], ending a bitter dispute between a step-mother and her daughters that had spanned over half a century.
The original owner, Dajiba, passed away intestate, leaving his separate property to his widow, Darubai, and four step-daughters. Sometime later, claiming a need to fund a daughter’s marriage, Darubai identified a purchaser, Dattatraya, and agreed to sell a part of the property. To justify conveying the title, she represented herself as the karta acting out of “legal necessity”. Dattatraya entered the transaction, only to face a lawsuit for partition and separate possession by the daughters. The Supreme Court ultimately ruled against the buyer’s defence, declaring that Darubai only had the right to dispose of her own 1/5th share.
This case highlights a devastating legal error: conflating the pre-1956 concept of a Hindu joint family managed by a karta with the post-1956 reality of individual statutory co-ownership.
This blog breaks down why the “karta and legal necessity” defence fails as a matter of law when property devolves under Section 8 of the Hindu Succession Act, 1956[2].
EVERYDAY TRAP: HOW BUYERS WALK INTO IT
Property transactions in India are frequently rushed, and the due diligence that sellers are asked to provide is often accepted at face value. A seller claims to be the ‘head of the family’, says the money is needed for an urgent family obligation (daughter’s wedding, a medical emergency, or a debt). The buyer, eager to complete the deal, takes her word for it and believes the deed to be legally sound.
The confusion is historically understandable. In traditional Hindu joint families, the karta has broad powers to alienate coparcenary property to meet a “legal necessity.” However, buyers erroneously assume this customary doctrine applies to property inherited after 1956 under the HSA. It does not. Falling into this trap can buy a purchaser 50 years of relentless litigation, as seen in the present case[3].
To understand why, one must look at what Section 8 of the HSA actually does.
THE SECTION 8 GUILLOTINE: HOW THE HSA CHANGED EVERYTHING
To understand why the buyer’s defence collapsed, one must analyse the jurisprudential mechanism established by Section 8 of the Hindu Succession Act, 1956. Before 1956, when a male Hindu died, his property would often pass to his sons via the rule of survivorship, maintaining its status as an undivided coparcenary estate[4].
Section 8 dismantled that regime for intestate succession. It dictates that when a Hindu male dies without a will, his property devolves upon the heirs specified in Class I of the Schedule, firstly including the widow, sons, daughters, and the mother[5].
The crucial point of law lies in the capacity in which each heir inherits. Under Section 8, each heir takes the property in their absolute, individual capacity. The Supreme Court in Darubai explicitly relied on the landmark precedent set in Commissioner of Wealth Tax, Kanpur v. Chander Sen[6] and reinforced by Yudhishter v Ashok Kumar[7] to reaffirm that when property devolves under Section 8, the heir takes it in an individual capacity, and it does not assume the character of coparcenary property.
Consequently, Darubai and the daughters inherited individual shares. The HUF did not exist in relation to this property. This is the Section 8 guillotine: it cleanly severs the connection between intestate inheritance and the joint family structure. Without an existing HUF, the Court noted that the question of karta-ship does not arise, and the doctrine of “legal necessity” has nothing to operate upon.
THE TENANCY-IN-COMMON BARRIER: THE FINAL NAIL
Section 19 of the HSA[8] delivers the finishing blow to the buyer’s case. It mandates that when two or more heirs succeed to intestate property simultaneously, they hold it as tenants-in-common, not as joint tenants.
A tenancy-in-common gives each co-heir a defined, separate, and alienable share. As the Court held in Darubai,[9] drawing on principles reiterated in recent jurisprudence, the widow and the four step-daughters each became tenants in common with a distinct 1/5 share of the property. Darubai legally owned (and could only do what she wished with) her individual one-fifth fraction. A karta manages undivided joint family property; you cannot have a karta in a tenancy-in-common.
The buyer paid the price for the entire property but received a valid title to only a fraction of it, as no representation by Darubai could transfer what was not hers to give.
THE DUE DILIGENCE CHECKLIST: HOW TO AVOID THE TRAP
The legal principles established by the judiciary translate into a concrete, practical rule for every real estate transaction involving a deceased Hindu male who died intestate: an acquirer must never accept the title of a single co-heir as a clear title to the whole property. The safeguards required are simply a matter of thorough due diligence applied before the sale deed is executed.
Step 1: Verify the mode of succession
The foundational step is establishing exactly how the current sellers came to hold the title. The acquirer must demand the death certificate of the original owner and ascertain whether a testamentary document exists. The burden of proving testamentary succession rests entirely on the party asserting it. If no will is found, the transaction defaults to Section 8 of the HSA, and the joint family regime is permanently out of the picture.
Step 2: Map out the family tree
Acquirers must map out the complete family tree to identify every Class I heir alive at the time of the original owner’s death. A buyer cannot rely solely on the representations provided by the willing seller, as a single overlooked co-heir creates a severe cloud on the title. Counsel must cross-reference the seller’s claims with independent public records, including revenue records, school certificates, and the dakhil kharij (mutation entries) in the land registry (while dakhil kharij helps identify who is paying revenue, a buyer cannot rely on it as definitive proof of ownership or the exclusion of other legal heirs).
Step 3: Obtain legal heirship
Informal understandings of who inherited the property are legally insufficient. The acquirer must insist on the production of a formal legal heirship certificate or a succession certificate issued by a competent court or revenue officer. This document formally crystallises the identity of the heirs and establishes the exact fractional share that each tenant-in-common holds, thereby protecting the buyer and creating a reliable public record.
Step 4: Require all signatures
Because the heirs hold the property as distinct tenants-in-common under Section 19, every single co-heir must execute the sale deed for the buyer to acquire a clear and marketable title to the whole. If any co-heir is unwilling to sell, the buyer must recognise that they can only legally purchase the fractional shares of the willing sellers. Paying for the whole property while only securing the signatures of a fraction of the owners guarantees litigation. If any co-heir is a minor, appropriate court permission must be obtained under the law[10].
Step 5: Consult a specialist
The intersection of HSA succession and property law is a highly specialised domain. General practitioners who merely review the drafted sale deed without examining the underlying title documents are missing the most critical vulnerability of the transaction. A statement from a seller claiming to be a karta acting for legal necessity must be treated as a severe red flag demanding immediate escalation of due diligence, not a green light to expedite closure.
CONCLUSION
The karta trap is not new; courts have warned against it from Chander Sen[11] in 1986 all the way to Darubai[12] in 2026. Section 8[13] creates individual inheritors, not joint co-owners; Section 19[14] creates separate shares, not a managed estate. Yet buyers keep falling for it, because the law moves more slowly than the deal. The fix is simple: trace the title, find every co-heir, and get every signature.
Author(s) Name: Abha (Panjab University)
References:
[1] Darubai v Kamalabai 2026 SCC OnLine SC 1054
[2] Hindu Succession Act 1956, s 8
[3] Darubai v Kamalabai 2026 SCC OnLine SC 1054
[4] Courts have long recognized that the principle of joint tenancy and survivorship is unique to the Mitakshara coparcenary system and alien to general rules of succession, see Jogeswar Narain Deo v Ram Chund Dutt 1896 SCC OnLine PC 5
[5] Hindu Succession Act 1956, s 8
[6] Commissioner of Wealth Tax, Kanpur v Chander Sen (1986) 3 SCC 567
[7] Yudhishter v Ashok Kumar (1987) 1 SCC 204
[8] Hindu Succession Act 1956, s 19
[9] Darubai v Kamalabai 2026 SCC OnLine SC 1054
[10] Hindu Minority and Guardianship Act 1956
[11] Commissioner of Wealth Tax, Kanpur v Chander Sen (1986) 3 SCC 567
[12] Darubai v Kamalabai 2026 SCC OnLine SC 1054
[13] Hindu Succession Act 1956, s 8
[14] Ibid, s 19