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The possession of an immovable property could also be
generally classified into six sorts. The property could also be owned by a
personal company. excluding this, the property may additionally be owned by 2 or a lot of persons, put together
referred to as co-owners. Co-ownership is of 3 types (1) Joint tenants(2)
tenants-in-common (3) Co-parceners. The other variety of possession, are Benami
possession, dual possession, trustee and beneficiary, legal and equitable,
ownership. We tend to shall discuss every type:
a)Joint possession or Joint occupancy
Joint possession or occupancy is made by grant, device, and
dissension. once a property is purchased by quite one person put together and
therefore the deed will specify that the every vendee has separate interest
within the property, the possession is named joint occupancy. The joint
occupancy has four characters. Unity in title, unity in interest, unity in possession,
and unity of your time. every owner has common interest within the property as
a full the interest of the every of the house owners is comparable in extent,
nature and period.
Similarly once the property is bequeathed put together to
quite one person, while not specifying the every beneficiaries specific share,
the owner-ship is joint occupancy and interest of every is comparable in
extent, nature, duration. No easy owner has priority of title interest, right
over others or separate interest right or title.
Acquiring the property below joint occupancy by
dissersion quite one person enter into possession while not title below such
circumstances, the statutes of limitations possession titled in joint occupancy
unless the circumstances purpose to contrary.
In case of joint occupancy or joint possession the property goes to the opposite co-ownership, survivorship and nor to the legal
heirs of deceased co-owners. this idea of joint occupancy is essentially a
British thought, however unknown in india except in cases of joint family
property of undivided family ruled by Mithakshara law. Law wherever the passes
by survivorship. It’s to be noted that transfer of property act doesn't offer
for formation of joint occupancy. but Section forty five of the act states that
once a property is purchased for thought by quite one person and once the
thought is paid out of common fund, bequeathing to any or all, and once the
terms of contract doesn't offer, however the property is to shared, right,
title and interest of all the purchases is as that of what they are entitled to
the common fund and within the absence of proof of share of every in common
fund all are plausible to be equal interest. The joint occupancy is in our
country is associate outcome of contract and nor a matter of law. As such if
just in case of joint purchasers, if the purchasers, needs to the property to
command as joint tenants. Wherever the succession is by survivorship, a
selected clause thereto result ought to be additional within the document. Within
the absence of such clause, the 2 courts could take into account the title of
occupancy in common. We tend to may additionally talk over with section 106 of
succession act 1925 that acknowledges the joint occupancy. The section states
that if an quality is given to 2 a lot of pensions, put together and if one in
all the beneficiaries dies before the person can (one who makes the will), the
opposite beneficiary takes the complete property. This section is applicable to
Hindus additionally. although this section prefers to solely 2 beneficiaries,
it's been command that relation to quite one person put together means that and
includes not simply 2 persons.
This mode of joint occupancy is of solely temporary
nature and ceases once one in all the owner allotted his undivided share to a
3rd party or once of the, owner contract to sell his share, by mutual agreement
of all the house owners by reverence of possession or partition, by notice by
one or a lot of house owners to others or once the complete property vests with
last extant co-owner.
b) Occupancy in common
This is completely different from joint occupancy or
joint possession. If joint possession has four deciding parameters unity in
interest, title, possession and time the occupancy is common has 2 characters,
unity of occupancy wherever the house owners don't have distinct share and own
the property as a full the occupancy in common, every owner has some specific
undivided share within the property. This right, is passed to their legal heirs
or beneficiaries below can and to not different tenants in common. Their share
within the property is as per the terms of contract, or coupled in their
investment in property. Within the absence of any proof terms to share within
the property is as per the terms contract, or coupled to their investments in
property. Within the absence of any proof terms to share in investments. All
the house owners have equal shares within the property.
c) Hindu co-parceners
Hindu co-parceners ar joint body of persons of Hindu
undivided joint family. every of the members ar associated with the pinnacle of
the family inside four degrees. The possession of the property is like that of
joint occupancy / possession. wherever every co-parcener don't have specific,
distinct separate Share within the property, till partition is accomplished, on
death of any co-parcener, the extant co-parceners wherever is inside four
degrees to the hand of the family succeeds to the property as a member of
co-parceners.Every member for in joint family, acquires the correct within the
family by birth.
d)Benami possession
In Benami group action, the person who invests is
completely different, and therefore the person to whom property is transferred
is completely different. The substance of the Benami group action is that the
thought for transfer should result one person and transfer is taken within the
name of another person and therefore the thought therefore purchased transfer
of the property is nor a present to the person to whose name the property is
transferred. The Benami group action prohibition act, 1988 fully prohibits the
Benami group action. The act has inherit result from 18th could 1988. Section
3(1) of the act provides that not everybody shall enter into a benami group
action, and succession three x four makes benami group action, a criminal
offence. principally exception is that the purchase of property within the name
of adult female or divorced girl. but acquisition of the property within the
name of the adult female of co-parcener is benami group action.
Section four of the act doesn't permit any legal
proceeding by the important owner to enforce his right against benamidar with
some exceptions. once an individual in whose name the property is command as a
co-parcener is Hindu, undivided family that command for the good thing about
such family and once an individual who is holding the property is trustee
Section five are a lot of attention-grabbing. It provides that properties
command in benami are subject to acquisition while not compensation. However,
benami transactions created before the act don't seem to be unlawful, however
can not be implemented intrinsically by courts.
e)Dual possession
In twin possession the land belongs to 1 person and
therefore the structure on the land belongs to different person. so the
property has 2 house owners, one for the land and another for the structure.
this sort of twin possession is extremely common wherever the owner of the Land ceases the Land to a different with right to contract structures on the land
and revel in the fruits of such structures. The lease are sure as shooting
specific amount. The terms of the lease offer for on however the possession of
the structure is to be determined once the end of the lease amount. The
possession of structure could depart this world the owner of the land or he
could have paid specific amount to the leaseholder of the land to accumulate
the possession of the building. typically in most cases the lease are revived.
f)Trustee and beneficiary
The trust indeed is another mode of twin possession.
There are 2 house owners to the property in trust. Trustee and beneficiary.The
trustee is that the legal owner and therefore the beneficiary is that the
useful owner. The possession of trustee is of special kind. Anyway he's not
absolutely the owner, and he needs to abide by the terms and conditions of deed
of trust, and therefore the author of the trust. He cannot exercise his rights
for his profit that for the good thing about the beneficiary.
g)Legal and equitable
possession
In English law the possession could of 2 sorts, legal
possession and equitable possession.
Legal possession has originated from common law and equitable possession from principles of equity.But
indian law doesn't acknowledge the possession by equity although sure equitable principles are recognized in India.
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