Inheritance of jointly held house depends on mode of holding

In the case of joint tenants, upon the death of one of the joint tenants, his or her interest in the property automatically passes to the surviving joint owner


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I lost my husband last year. I wanted to know what will be my inheritance in a joint-flat owned by me and my late husband in the absence of a Will? I am a Muslim. Will I inherit the entire share of my late husband, or do I get only 50% of my share in the jointly-owned flat plus one-third of the share of my late husband? Will our children inherit the remaining two-third share that belonged to my husband?

—Fatima Sheikh

For the purpose of answering your query, I have assumed that your husband was Muslim and that your marriage was solemnised under the Muslim personal law.

I understand that your husband died intestate (i.e., without making a Will), and that you and your children are the survivors and immediate heirs. I have also assumed that you have equal ownership rights in the flat as the joint owner thereof.

In order to determine the share you would be entitled to upon the death of your husband in the flat held jointly by you and your husband at the time of his death, it would be important to first determine whether the flat was held by you and your husband as “joint tenants” or “tenants in common”.

In the case of joint tenants, upon the death of one of the joint tenants, his or her interest in the property automatically passes to the surviving joint owner. However, in the case of tenants in common, the interest of the deceased owner passes to his or her heirs in accordance with the rules relating to intestate succession under the personal law applicable to him or as per his or her Will, and not upon the surviving owner.

The manner in which you hold the flat (that is, as a joint tenant or a tenant in common) could be determined from the document pursuant to which you and your husband acquired the title to the flat and the facts applicable at the time of the purchase of the flat.

If you and your husband held the flat as joint tenants, his entire share in the flat would devolve upon you. However, if you and your husband held the flat as tenants in common, then his half share in the flat would devolve upon his heirs, according to the Muslim personal law applicable to inheritance.

Based on this, you (wife) would be entitled to a one-eighth share of your husband’s estate (as a sharer), since there are children.

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