The term property in common parlance indicates the
economic status of a person.Any property is held by an individual to draw out
benefit from it. Transfers are made by owners themselves, ostensible owners and
the co-owners and the co owners or we can say joint owners.When two or more
persons enjoy common ownership of a property,for example say in coparcenaries
the male members and now even daughters have a common and equal interest in the
ancestral property,any co-owner can transfer his own share in the property to
a stranger or another co-owner. And that transferee steps in the shoes of the
co-owner (transferor) and gets clothed with all his assets and liabilities. We
can say that the transferee becomes the co-owner.
Transfer by one Co-owner where one of two or more
co-owners of immovable property legally competent in that behalf transfers his share
of such property or any interest therein, the transferee acquires, as to such
share or interest, so far as is necessary to give effect to the transfer, the
transferor's right to joint possession or other common or part enjoyment of the
property,and to enforce a partition of the same, but subject to the conditions
and liabilities affecting, at the date of the transfer, the share of interest
so transferred.
Where the transferee of a share of a dwelling house belonging
to an undivided family is not a member of the family, nothing in this section shall
be deemed to entitle him to joint possession or other common or part enjoyment of the house.
Who is a Co-owner?
Ownership consists of innumerable number of claims, liberties,
powers with regard to the thing owned. Ownership is of different kinds. There
are absolute and limited, sole ownership, co- ownership, vested ownership, contingent
ownership and corporeal.When a person owns a property in one time it is called
sole ownership, but if the property is owned by more than one person then it is
called joint ownership. By means of partition one can have co-ownership changed
into sole ownership.
The expression co-owner is wide enough to include all
kinds of ownerships such as joint tenancy, Tenancy in common, Coparcenaries, membership
of undivided Hindu family, Joint purchase of property etc. The very fact of the
reference to the property that the parties have certain shares, indicates that
they are co-owners.
In Indian Law, a co-owner is entitled to three essentials
of ownership-
1.
Right to possession,
2.
Right to enjoy,
3.
Right to dispose
Therefore, if a co-owner is deprived of his property, he
has a right to be put back in possession. Such a co-owner has an interest in every
portion of the property and has a right irrespective of his quantity of share,
to be in possession jointly with others. This is also called joint- ownership.
When the
type of co-ownership is not specifically stated, by default a tenancy in common
is likely to exist. Each tenant in common has a separate fractional interest in
the entire property. Although each tenant in common has a separate interest in
the property, each may possess and use the whole property. Tenants in common may hold unequal interest in the property, but the interests held by each
tenant in common are a fractional interest in the entire property.
Joint Tenancy
The most attractive feature of joint tenancy is the right
of survivorship. Upon the death of one joint tenant, his/her interest immediately
passes to the surviving joint tenants and not to the decedent’s estate. Joint
tenants hold a single unified interest in the entire property. Each joint
tenant must have equal shares in the property. For e.g. Band A hold a 50%
interest. Each joint tenant may occupy the entire property subject only to the
rights of the other joint tenants.
Unlike tenants in common, joint tenancy has several
requirements that must be met in order to be properly created. Massachusetts
law requires that in order for a joint tenancy to be created specific language
must be included in the conveyance or devise. Such language includes that the grantees
take the land: "jointly", "as joint tenants", "in
joint tenancy", "to them and the survivor of them", or using
other language in the instrument that it was clearly intended to create an
estate in joint tenancy. However, even if such language is contained in the conveying
instrument, a joint tenancy may not exist.
Tenancy by the Entirety
This type of co-ownership is exclusively for husband and
wife. Similar to joint tenancy, tenancy by the entirety provides the right of survivorship.
To exist, tenancy by the entirety requires that the four unities of joint tenancy
exist plus a fifth unity of marriage between the two co- owners. However, even
if all five unities exist, the type of co- ownership may still be joint tenancy
if the conveying instrument indicates such. Unlike joint tenancy, tenancy by the
entirety does not allow one spouse to convey his interest to a third party. However,
one spouse may convey his/her interest to the other spouse. A tenancy by the
entirety may only be terminated by divorce, death, or mutual agreement by both
spouses. A terminated tenancy by the entirety becomes a tenancy in common.
When is a co-owner legally competent to make a transfer?
Section 7 of the Transfer of Property Act, 1882 provides
that every person competent to contract i.e. a major and of sound mind or is
not disqualified by law for contracting. Therefore even the interest of a
co-owner or co-sharer can be sold, mortgaged, leased to another co-sharer or to
a stranger.The fact that the partition has not taken place by metes and bounds
does not stand in the way of the interest of a co-owner.
According to the law prevailing in some areas, a
coparcener of a Hindu Joint Family can alienate his share in the Joint Family Property for consideration. Such a coparcener is a legally competent person.But
in some cases of Mitakshara coparcenaries, the consent of other coparceners is
required before any such transfer.
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