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Laws related to co-ownership of a joint property

हिंदी में पढ़ें
August 01, 2023
By Advocate Chikirsha Mohanty





What is Joint ownership or Co-ownership of property?

Co-ownership of property or joint ownership of property means when two or more persons hold title to the same property. Co-owners of a property mean all the owners of that particular property. Any co-owner can transfer his/her personal share in such property to a co-owner or even a stranger which results in that transferee stepping into the shoes of the co-owner. A co-owner generally has the right to possession, right to use, and even dispose of the property.  
 

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What are the types of co-ownership or joint-ownership of property in India?

There are two types of co-ownership of property that are recognised under Indian law. These have been explained below:

  1. Tenants in Common: When two or more people buy a property but do not specifically mention the share that each has in the property, a 'tenancy-in-common' is said to exist. All the co-owners can use the entire property and every co-owner is deemed to be having an equal share in the property. Each tenant-in-common has a separate fractional interest in the property. However, each tenant-in-common may possess and use the entire property. Each tenant-in-common can freely transfer his/her interest in such property. Tenants-in-common do not have the right of survivorship. Hence, if one dies, his/her interest passes by way of Will or through laws of intestacy to another individual who can then become a tenant-in-common, along with the surviving co-owners. 

  2. Joint Tenancy: Joint tenancy is a form of co-ownership where the property is owned by two or more persons at the same time in equal shares. This type of tenancy provides rights to ownership of the property for the co-owners who outlive other co-owners. Joint tenancy entails the right of survivorship. If one such co-owner dies, it is immediately passed on to the surviving/other joint tenants. All the joint tenants have a single unified interest in the whole property. The joint tenancy must have undivided interests in the entire property, and not divided interests into separate parts. A joint tenancy can be created by a Will or a Deed. Each joint tenant should have estates of the same type and duration as well. 
     

 



What is the difference between joint tenancy and tenants in common?

Joint tenancy and tenants in common are two ways that people can co-own property or assets. The main difference between them lies in how ownership is structured and what happens to the property or assets if one of the co-owners passes away.

Joint tenancy refers to a form of co-ownership in which two or more people own an undivided interest in the same property, with each owner having an equal right to the entire property. When one of the joint tenants dies, the ownership of the property automatically passes to the surviving joint tenant(s) without the need for probate. This is known as the right of survivorship.

In contrast, tenants in common refers to a form of co-ownership in which two or more people own a specific share or percentage of the same property. Each owner has the right to sell or transfer their share of the property without the consent of the other co-owners. When one of the tenants in common dies, their share of the property is passed on to their designated heirs or beneficiaries as part of their estate and is subject to probate.

So, joint tenancy provides for the automatic transfer of ownership to surviving co-owners upon the death of one owner, while tenants in common allows for individual ownership shares and allows for each owner's share to be passed on to their designated heirs or beneficiaries.
 



What kind of joint ownership of property exists between husband and wife?

The co-ownership or joint ownership of property that exists between husband and wife in India is called tenancy by entirety. This is a special form of joint tenancy when the joint tenants are namely the husband and wife -- with each owning one-half. To exist, tenancy by entirety requires the two co-owners to be married i.e., husband and wife. Under this type of co-ownership, no one spouse is allowed to convey or transfer his/her interest to a 3rd person. However, the husband or the wife can convey his/her share to their spouse. A tenancy by the entirety can only be terminated by way of a divorce, death, or a mutual agreement between the husband and wife. Such terminated tenancy becomes a tenancy in common. 
 

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What are the laws related to the transfer of property by a co-owner?

Section 44 of the Transfer of Property Act 1882 deals with transfer by a co-owner and it also deals with the rights of a transferee in this type of transaction.

According to this Act, every joint or co-owner has a proprietary right on the entire property. Hence, any sale has to be done with the consent of all co-owners involved. If, however, there are specific conditions in the agreement that gives co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion to whom he chooses.
 



What are the rights of a co-owner of a property in India?

A co-owner is entitled to three essentials of ownership:

  1. Right to possession

  2. Right to use

  3. Right to dispose of his share of the property if it is clearly stated, in the deed.

 

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Can a co-owner make a transfer without the consent of other co-owners?

As per Indian law, a co-owner cannot make a transfer of the property without the consent of other co-owners, unless there is a specific legal provision allowing for such a transfer. This is because all co-owners have an equal right to the property, and any transfer by one co-owner affects the rights of the other co-owners.

However, there are certain exceptions to this general rule. For example, if the co-owners hold the property as tenants in common, each co-owner has the right to sell or transfer their share without the consent of the other co-owners. Additionally, if the property is partitioned, meaning it is divided into separate portions, each co-owner can sell or transfer their share of the partitioned property. Similarly, if the property is jointly owned by two or more people, and one of the co-owners has obtained a court order allowing them to sell their share of the property, they may be able to do so without the consent of the other co-owners. Or, if there is a specific provision in the co-ownership agreement or deed that allows for a co-owner to sell or transfer their share of the property without the consent of the other co-owners, then such transfer may be allowed.

It's also worth noting that even if a co-owner makes a transfer without the consent of the other co-owners, the transfer may not be legally valid and can be challenged in court by the other co-owners. Therefore, it's important for co-owners to obtain the consent of all parties involved and follow proper legal procedures when making any transfers of property.
 

 



Why is co-ownership better?

If you are a married couple, co-owning a house with your spouse has many benefits. Both can get tax benefits. In the case of joint ownership, the husband, as well as the wife individually, will be able to claim deductions under Section 24 of the Income Tax Act. In order to understand why co-ownership is better, you must take the help of a good property lawyer, who will be able to guide you in the right direction after understanding the facts and circumstances of your case. 

 



What are some of the joint property rules in India?

In India, there are several joint property rules that govern the co-ownership and management of property that is jointly owned by multiple parties. Here are some of the key rules and considerations:

  1. Equal ownership: By default, co-owners of property in India are presumed to have equal ownership unless there is evidence to the contrary.

  2. Management: Co-owners have equal rights to manage the property and make decisions regarding its use and maintenance. However, major decisions that may affect the entire property or require significant investment, such as selling or mortgaging the property, may require the consent of all co-owners.

  3. Liability: Each co-owner is responsible for their share of any liabilities or expenses related to the property, such as property taxes or maintenance costs. However, if one co-owner incurs a debt or liability related to the property, all co-owners may be held jointly liable.

  4. Partition: Co-owners have the right to partition the property and divide it into separate portions or sell their share of the property, unless there is a legal restriction on doing so. If the property is sold, the proceeds are typically divided equally among the co-owners.

  5. Succession: If one of the co-owners passes away, their share of the property may pass to their legal heirs or as per their will, unless the co-owners have a specific agreement in place that governs the transfer of ownership.

  6. Registration: Joint property agreements should be registered with the appropriate authorities to ensure that they are legally valid and enforceable.

It's important to note that these rules may vary depending on the specific circumstances of each case, and it's advisable to seek legal advice to understand the applicable rules and obligations related to joint property ownership in India.
 

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What are some of the joint property ownership disputes in India?

Joint property ownership disputes are common in India, especially when there are multiple co-owners involved. Here are some of the most common types of disputes that can arise:

  1. Partition disputes: Partition refers to the process of dividing the joint property into separate portions, which can be sold or transferred to individual co-owners. Disputes can arise when there is disagreement over the valuation of the property or how the partition should be done.

  2. Management disputes: Co-owners may disagree over how the property should be managed, such as who is responsible for maintenance or repairs, or how rental income should be divided.

  3. Sale disputes: Co-owners may disagree over whether to sell the property or not, or how the sale proceeds should be divided among them.

  4. Succession disputes: Disputes can arise when a co-owner passes away and their share of the property is inherited by their legal heirs, who may not agree on how the property should be managed or sold.

  5. Title disputes: Co-ownership of property can lead to title disputes, especially if there are questions over who has legal ownership of the property or if there are multiple claims to the property.

  6. Construction disputes: If co-owners decide to construct additional buildings or make renovations to the property, disputes can arise over who is responsible for the cost or how the construction should be done.


These are just a few examples of the types of disputes that can arise in joint property ownership in India. It's important for co-owners to have a clear agreement in place and to seek legal advice from an experienced property lawyer to resolve any disputes that may arise. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert property lawyers.
 



These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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Comments by Users


Ashish
We have a property in name of my brother and my father, So what will be my rights on property in case of succession. Will it be 75% to my brother and 25% to me after my father or it will be 50-50?

Reply by LawRato
If your father has 50% of the property in his name, after his death, only that 50% will devolve upon his heirs as per the succession laws in case no Will has been written in that regard by your father. 

Vishnu datt
I, son & daughter in law jointly invested in a under construction property. Now want to register all three name with % of ownership as per investment. But building nor ready to put share of %

Reply by LawRato
More information is required in order to direct you in the right direction. The stage at which the property is right now is unclear. Information related to the investment ratios and any agreements between the parties is also required.

It is difficult to answer your query without more information on your case. It is therefore advised that you click on the link below and send in your detailed query for Free Legal Advice. 

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Alternatively, you can consult a lawyer by clicking on the link below

Top Property Lawyers in India

KR
I own a land with my mother. She wants to sell it. I am currently in the USA. What is the procedure to provide consent so that she can legally sell the land?

Reply by LawRato
If you are a co-owner of the land with your mother in India, you need to provide your consent for the sale of the land. As you are currently residing in the USA, you can provide your consent through a Power of Attorney (POA) given to someone you trust in India, such as a family member or a friend. A POA is a legal document that gives a person the authority to act on your behalf in legal or financial matters, including the sale of property. 
It is advisable to consult with a lawyer to ensure that the POA document complies with the legal requirements in India and to understand the implications of granting a POA to someone. You may consult with a lawyer who will guide you after understanding the facts of your case better. You can do so by clicking on the link below -
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Meeran
Can a co owner sell his/her share of the property if he/she is not allowed to do so as per the Sale Deed/Purchase Deed (Agreed by both the owners)

Reply by LawRato
A co-owner can sell his share of the property with the consent of all other joint-owners. You can consult with a lawyer, and after he/she understands the clauses of of your Agreement, you may be directed to sign another agreement or memorandum of understanding between the joint-owners.

You can consult a property lawyer by clicking on the link below:

Expert Property Lawyers in India

savita
My flat is jointly hold by me and my mother in law. she expired last year. so who will get the ownership of the flat

Reply by LawRato
If there is joint-ownership and one of the owners dies, such share automatically transfers to the other owner / owners of the property. However, if they are tenants in common, in case of death, his/her share(s) pass on to the legal heir.

Khadija
We have a flat on an emi my dad has a first name in the property and my brother has a second name now he denies to pay the emi nor he leaves here can we put a leagal action on him to remove his name

Reply by LawRato
In order to remove one co-applicant from your home loan agreement and ownership deed, you can ask your lender for a novation. A novation is a statement that the loan reimbursement obligation is shifted to just 1, rather than 2 individuals.

Prince
My father bought a 3 room house with my uncle and than he constructed 2 more floors to that house and now my uncle is claiming half share of the whole property.... Is it legal.

Reply by LawRato
It is important to understand the details given in the agreement(s)(if any) signed between your father and uncle to this effect. Only after understanding the terms and conditions upon which the property was bought, shared, divided and built upon, can you be given proper legal advice.

Since your question is specific and requires more information in order to guide you better, it is advised that you click on the link below and send in your query for Free Legal Advice. 

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Sunny
Took home loan to buy flat(owner is mom).Cant claim tax benefit on loan.I am not co-owner. After Gift deed, To avail the whole tax benefit, % of share in property wont affect this

Reply by LawRato
Since your question is very specific and requires more information in order to guide you better, it is advised that you click on the link below and send in your detailed query for Free Legal Advice. 

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madan lal garg
family partnership firm (lease property) me 1 bhai apna share family me 50,% trasfer kar deta he to u p me stamp duty kitni deni hogi

Reply by LawRato
Stamp duty varies from State to State in India. Since your question requires more information in order to guide you better, it is advised that you click on the link below and send in your query for Free Legal Advice. 

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P Roy
I have land property jointly with vousins.one has given a power of attorney to a stranger.can thst personn sell land without informing me?

Reply by LawRato
Co-owner can sell only his share of the property, however, he cannot sell the entire land / property without the consent of the co-owners. Thus, even if there is a power of attorney involved, entire land cannot be sold without your consent. 

Prabs
Me & my brother are owning a flat. He had paid his share in cash but I pay my share via partial (80%) loan. Now my brother denies to sell the property. How can I take my share?

Reply by LawRato
The Transfer of Property Act permits a co-owner of a property to independently sell or transfer his share in the property the way he wishes. Thus, in case the co-owner is not willing to sell the entire property, you may move forward with selling your undivided share in the property.  

Ravish kumar
A constructed house has 4 co-owners and what if 1 co-sharer want to sell amd get his share but rest 3 co-sharers are not willing to sell . What remedy is available for that 1 co-sharer ?

Reply by LawRato
A co-owner can sell his share in the property without the consent of the other co-owners as per provisions of the Transfer of Property Act (Section 44).

Ganesh G Garag
My father has sold his property to me by registering sale deed will my sister claim for the same property after father death

Reply by LawRato
No, your sister cannot claim property after your father's death. Once a sale deed is registered, it is a legally binding document that transfers ownership of the property to the buyer. This means that you are now the sole owner of the property and your sister has no legal claim to it since the self-acquired property was sold to you.

Kartik
Can I buy a property with my girlfriend as a co-owner?

Reply by LawRato
Yes you can buy property with your girlfriend as co-owner. The most common manner in which unmarried couples may purchase a property is as tenants in common.

Sadesh kumar pal.
Can a co-owner of a particular property can make a will in favour of his daughter after his death for his share in the said property?

Reply by LawRato
Yes, a co-owner can make a Will in favour of any person for his share in a joint property, unless barred by a right of survivorship clause in the title documents. It is recommended that you consult with a family lawyer  to understand the right direction after your facts and cisrcumstances are stated in detail. 

P Rao
Can a father jointly purchase property with daughter, by sharing 30% cost,?

Reply by LawRato
Yes, there is no embargo in law preventing a father and daughter to purchase a property together. Such a property will be held by the father and daughter as co-owners, with each having an independent right over their share in the property.

UVb
My sister and i a co owner of a flat .. she has kept a roommate without my consent and m not comfortable with him ..can I ask the roommate to leave as a 50 %owner or the property?

Reply by LawRato
Yes, you can bring the tenancy to an end as consent of all co-owners is essential before the property can be rented. Also, a legal notice can be issued to your sibling, not to rent the property without your consent in the future.

UVb
My sister and i a co owner of a flat .. she has kept a roommate without my consent and m not comfortable with him ..can I ask the roommate to leave as a 50 %owner or the property?

Lakshmi
My father and my father brothers having joint land now my fathers brother is selling whole land how to i get my share in that land

Reply by LawRato
A co-owner is entitled to the right to possess, use, and dispose off (sell) their share in the property. Please note that the co-owner can only sell their share in the property. If they want to sell the entire property they will have to obtain a consent agreement for partition of the property from the other co-owner. For best advice/consultation, please contact a property lawyer.

Alok Singh
I have a property in joint name with my wife, and I have been paying complete installments from my account. Can I legally get complete ownership of the same??

Reply by LawRato
Co-ownership or joint ownership indicates that two or more persons have an interest in a peoperty. Joint ownership can take the form of sole ownership when a co-owner transfer their share in property to the other co-owner or through partition. For best advice, you can consult a property lawyer.

Kunal kumar
Is it possible to purchase propert in greater noida in the name of wife and mother together?

Reply by LawRato
There is no law which specifically lists persons or relations who can be the co-owners of property jointly. Generally, both lenders and sellers prefer close relatives of a person such as a spouse, parents, and children as the co-owner. Although property can be bought in the name of the wife and the mother together, regardless of the area, it is ultimately at the discretion of the seller.

Vikas
Can wife (co-owner) restrict husband (co-owner) to collect handover of a jointly owned flat?

Madhu
Legal co owner are husband and wife .after husband death all legal heir like wife son and daughter are the legal heirof that property or it will be transferred to only wife

Kapuresh
Legal heirs are co owners, if after death of husband can wife and son are legal heirs of property, can one legal heir sell their undevided property

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what to do if co-owner is not ready to sell the property?

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do u require consent of partner to sell joint property?

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