What is joint tenancy?
– S. Dey
In India, the rights of a person to immovable property flow from the Transfer of Property Act, 1882. While the Act doesn’t define the term “joint tenancy”, the provisions of sections 7, 44 and 45 and the principles laid down in various court judgements in India would govern the same.
A joint tenancy exists where a single property is owned by two or more persons under one instrument or by an act of the parties. Joint tenants hold a single unified interest in the entire property—each of them have undivided interest in the property. Joint tenants must have equal share in the property. Each joint tenant may occupy the entire property, subject to the rights of the other joint tenants. In other words, vis-a-vis any third party, the joint tenants hold the property as one single owner, but among themselves they have separate rights that are equal in all respects.
A joint tenancy has to satisfy four requirements or “four unities” of joint tenancy—unity of title, unity of interest, unity of possession and unity of time. Unity of title occurs when each joint tenant derives his/her interest by the same act, by the same instrument (i.e. through the same deed of conveyance or under the same will). Unity of interest arises when each joint owner has an identical interest in the whole property and every part of it. Unity of possession is when the possession of the whole property is vested in each joint tenant, jointly with the rest, and no joint tenant holds any part to the exclusion of the other i.e. they have undivided interest in the whole property and not divided interest in separate parts of property. Unity of time is when all acquire interest at the same time. Each of these unities must be present for any co-tenancy to be termed as “joint tenancy”.
Indian courts are normally not in favour of declaring a particular co-ownership as joint tenancy, unless the intention of the parties is clear. Thus, words such as “transferees take the land jointly/ as joint tenants/ in joint tenancy” or “the land is transferred to the transferees jointly or to the survivor of transferees” should be used to clearly indicate intention.
A joint tenancy may be severed by one of the joint tenants disposing of or contracting to sell his interest, or by mutual agreement, or by any course dealing by all the joint tenants sufficient to indicate a severance.
Joint tenancy has been recognised in case of bequeathing property to two or more legatees jointly, in case of gift of will, in case of Christians, Parsees and Muslims. It appears to be unknown to Hindu law, except in case of coparcenary between members of an undivided family. It has been held that even if grantees are members of a coparcenary, they will take as tenants in common, unless a contrary intention appears from the grant.
The difference between joint tenancy and tenants in common is that in case of the latter, upon death of one of the tenants, his interest in the property will devolve according to succession laws.
Shabnum Kajiji is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
Queries and views at firstname.lastname@example.org