Joint tenancy exists where a single estate in property is owned by two or more persons
What will be the inheritance of a Christian widow in a joint-flat owned by her and her late husband in the absence of a Will? Will the widow inherit the entire share of the late husband, or does she get only 50% of her share in the jointly-owned flat plus one-third of the share of the late husband? Is the balance two-third share that belonged to the late husband inherited by the children?
While responding to this query we have assumed that the deceased is survived by his wife and children only and he hadn’t drawn up a Will.
In the first instance, it would be important to determine whether the flat was held by the widow (A) and her late husband (B) as “joint tenants" or “tenants in common".
A joint tenancy exists where a single estate in 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, i.e., each have undivided interest in the property.
One of the differences between joint tenancy and tenants in common is that in case of the latter, upon the death of one of the tenants, his interest in the property will devolve according to the laws of succession and not by survivorship. Thus, the legal heir will step into the shoes of the deceased, and assume all the benefits and liabilities attached to such interest.
To put it simply, if A and B were “joint tenants", B’s share in the flat would automatically pass to A. However, if A and B were “tenants in common", upon the demise of B, his share (either defined or undivided) in the flat passes to his heirs (i.e., B’s heirs, who would in this case are widow A and children) in accordance with the rules relating to intestate succession as per the provisions of the law applicable to him. Thereafter the heirs or beneficiaries of B will hold the property with A, again as “tenants in common".
Normally, unless the title document of a property expressly states that the owners of a particular property shall hold the same as “joint tenants", it is presumed under law that the owners of the said property are “tenants in common".
Furthermore, decisive factors to consider, each of which will have to be established, would be: situation 1) whether the flat was entirely purchased by B out of his own money or earnings and whether A was made a joint holder merely for convenience; or, situation 2) whether A and B contributed equally towards the purchase of the flat; or, situation 3) whether the flat was purchased entirely by A out of her own money or earnings and B was made a joint-holder merely for convenience.
If it can be established that A and B held the flat at joint tenants/owners, then B’s share will automatically devolve on A. Also, if the facts in situation 3 above can be conclusively established, a court could hold that the entire flat would belong to A.
However, if Situation 3 cannot be established or it cannot be established that A and B held the flat as joint tenants/owners, and if A and B were “tenants in common" then the shares would be determined as per the provisions of the Indian Succession Act, 1925 (Act). Chapters I and II of Part V of the Act would be applicable in this case. If a Christian intestate is survived by his widow and lineal descendants, then, the widow takes one-third of the deceased’s property and the lineal descendants among themselves take two-third.
If Situation 1 above is established, then a court could hold that the entire flat belonged to B and the distribution of the entire flat between the widow A and the lineal descendants of B should be in the ratio of 1/3rd:2/3rd. However, if Situation 2 is established then, the widow A would get a one-third share of B’s share in the flat (and would hold it with her existing 50% share in the flat) and the other lineal descendants would inherit the balance two-third of the B’s share in the flat.