Photo: iStock
Photo: iStock

In joint tenancy, if one owner dies, his share goes to second owner

If the property in question was owned by the deceased man and his brother as joint tenants, then after the death of the man, his share in the property would have vested in his brother who was the joint owner

A Hindu unmarried male aged 40 died in 1967 intestate. His property is co-owned by one of his brothers, B1. He had three other brothers and three sisters at the time of his death. All his brothers and sisters are now not alive. All brothers and sisters were married and have children. Who all will have right on the property of the person who died intestate? Will sisters’ children have any right (at the time of death of unmarried brother, all three sisters were married off well before 1955). The brother B1, who is a co-owner, is in possession of the entire property, without any claim till today. Can the brother B1 transfer the title of the property in his favour? Is the limitation law applicable? 

—Sita Vallabhav

As the man was a Hindu he will be governed by The Hindu Succession Act, 1956. If the property in question was owned by the deceased man and his brother as joint tenants, then after the death of the man, his share in the property would have vested in his brother who was the joint owner. However, if the property was co-owned by them as tenants-in-common, then the share of the deceased man would pass on to his legal heirs. I understand that there were eight siblings in all (that is the deceased man, one brother with whom he co-owned the property and three other brothers and three sisters). I have assumed that his mother and father had predeceased him. Also, from the facts described by you, it appears that the man’s seven siblings were all alive at the time of his death. In this case, since the man was unmarried, as per Section 9 of the Act, his heirs would be his brothers and sisters (being his heirs falling under Entry II of Class II of the Schedule to the Act). In this case, each of the Class II heirs, being his seven siblings, would get an equal share in his property. 

I have assumed that the property in question is an immoveable property. As per Article 65 of the Schedule of the Limitation Act, 1963, a suit for possession of immoveable property or any interest therein based on title, has to be filed within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. In other words, the period of 12 years has to be calculated with reference to the date when the person in adverse possession denies the claim of the true owner (see (2006)7SC C 570). The facts would need to be examined in further detail to ascertain the date when and if adverse possession is claimed by the person in possession. 

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries. Queries and views at mintmoney@livemint.com

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