When two or more persons have common ownership of a property, it is termed as coownership. In case of a coparcenary, the male members and daughters have a common and equal interest in ancestral property. Any co-owner can transfer his own share in the property to a stranger or another co-owner, and the transferee steps into the shoes of the coowner. The transferee therefore becomes a co-owner.
'Co-owner' refers to all the owners of a property. If a property is owned by more than one person, it is called joint ownership. One can have co-ownership changed into sole ownership through a partition. The term co-owner is wide enough to include all forms of ownership such as joint tenancy, tenancy-in-common, coparcenary, membership of Hindu Undivided Family etc. The very fact that some parties have certain shares in a property indicates that they are co-owners.
Under the law, a co-owner is entitled to three essentials of ownership - right to possession, right to use and right to dispose off the property.
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.
These are the forms of coownerships:
When the form of co-ownership is not specifically stated, by default, a tenancyin-common exists. 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 interests in a property but the interests held by each are fractional interests in the entire property. Each tenant-in-common may transfer his interest in the property.
Tenants-in-common do not have the right of survivorship. Therefore, on the death of one tenant-in-common, his interest passes through a Will or through the laws of intestacy to another person who will then become a tenant-in-common with the surviving coowners.
This entails the right of survivorship. On the death of one joint tenant, his interest passes on 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. Each joint tenant may occupy the entire property subject only to the rights of the other joint tenants.
Joint tenancy has several requirements that must be met in order to be properly created. For a joint tenancy to be created, specific clauses must be included in the conveyance such as 'the grantees take the property jointly', 'as joint tenants', 'in joint tenancy', 'to them and their survivor' etc. The clauses in the instrument should show it was clearly intended to create an estate in joint tenancy.
These four common legal requirements are necessary to create a joint tenancy:
Interests of the joint tenants must vest at the same time The joint tenants must have undivided interests in the whole property and not divided interests in separate parts
The joint tenants must derive their interests from the same instrument
Each joint tenant must have estates of the same type and same duration
All these four unities must exist. If one unity is missing at any time during the joint tenancy, the form of co-ownership automatically changes to a tenancy-incommon.
A joint tenancy may be created by a Will or deed, but can never be created by intestacy because there has to be an instrument expressing joint tenancy. A joint tenancy is freely transferable.
Transfer by co-owner
Section 44 of the Transfer of Property Act 1882 deals with the transfer of share by one of the co-owners. It also deals with the rights of a transferee in this transaction. Where one of two or more co-owners of a property transfers his share, the transferee acquires the transferor's right to joint possession and other common use of the property, and to enforce a partition of the property.
If the transferee of a share of a house belonging to a Hindu Undivided Family is not a member of the family, he will not be entitled to joint possession or other common use of the house.
A person who takes the transfer, steps into the shoes of the transferor, and is vested with all the rights and becomes subject to all the liabilities of the transferor. He becomes as much a co-owner as his transferor was before the transfer. A coparcener of a Hindu Undivided Family can alienate his share in the joint family property for a consideration. Such a coparcener should be a legally competent person.
But in some cases of Mitakshara coparcenary, the consent of other coparceners is required before any such transfer.
Courtesy times property dtd 10/10/2010