Tuesday 19 May 2015

Types of Ownership of Immovable Property




The ownership of an immovableproperty may be broadly classified into six types. The property may be owned by an individual or a company. Apart from this, the property may also be owned by two or more persons, jointly called co-owners. Co-ownership is of three types (1) Joint tenants (2) tenants-in-common  (3) Co-parceners. The other type of ownership, are Benami Ownership, dual ownership, trustee and beneficiary, legal and equitable, ownership. We shall discuss each type:

(A) Joint ownership or Joint Tenancy

When a property is purchased by more than one person jointly and the deed does specify that each purchaser has no separate interest in the property, the ownership is called joint tenancy. Joint tenancy has four characteristics. Unity in title, unity in interest, unity in possession, and unity of time. Each owner has common interest in the property as a whole, the interest of each of the owners is similar in extent, nature and duration.

Similarly when the property is bequeathed jointly to more than one person, without specifying each beneficiary’s share, the owner-ship is joint tenancy and interest of each is similar in extent, nature, duration.
No single owner has priority of title interest, right over others or separate interest right or title.

In case of joint tenancy or joint ownership, the property goes to the other co-owners by survivorship and not to the legal heirs of deceased. This concept of joint tenancy is basically a British Concept, but unknown in India except in cases of joint family property of undivided family governed by Mithakshara law where the ownership passes by survivorship. It is to be noted that transfer of property act does not provide for formation of joint tenancy. However Section 45 of the act states that when a property is purchased for consideration by more than one person and when the consideration is paid out of a common fund, belonging to all, and when the terms of contract do not provide, how the property is to be shared, right, title and interest of all the purchasers is that which they are entitled to in the common fund and in the absence of evidence of share of each in common fund all are presumed to have equal interest. The joint tenancy in our country is an outcome of contract and not a matter of law. As such if in case of joint purchasers, if the purchasers wants to hold the property as joint tenants, where the succession is by survivorship, a specific clause to that effect needs to be added in the document. In the absence of such clause the courts may consider the title of tenancy in common. We may also refer to section 106 of succession act 1925, which recognises the joint tenancy. The section states that if an asset is given to two more persons, jointly and if one of the beneficiaries dies before the testator (one who makes the will), the other beneficiary takes the entire property. This section is applicable to Hindus also. Though this section refers to only two beneficiaries, it has been held that reference to more than one person jointly means and includes not just two persons.

This mode of joint tenancy is of only temporary nature and ceases when one of the owner assigns his undivided share to a third party or when one of the owner contracts to sell his share, by mutual agreement of all the owners, by severence of possession or partition, by notice by one or more owners to others or when the entire property vests with last surviving co-owner.

(B) Tenancy in common

This is different from joint tenancy or joint ownership. If joint ownership has four deciding parameters unity in interest, title, possession and time the tenancy is common and has two characters, unity of possession and time. Unlike in joint tenancy where the owners do not have distinct share and own the property as a whole in tenancy in common, each owner has some specific undivided share in the property. This right, is passed to their legal heirs or beneficiaries under will and not to other tenants in common. Their share in the property is as per the terms of contract, or linked to their investment in property. In the absence of any evidence of terms to share in investments, all the owners have equal shares in the property.

(C) Hindu co-parcenary

Hindu co-parcenary is joint body of persons of Hindu undivided joint family. Each of the members are related to the head of the family within four degrees. The ownership of the property is like that of joint tenancy / ownership, where each co-parcener does not have specific, distinct separate share in the property, until partition is effected. On death of any co-parcener, the surviving co-parcener who is within four degrees to the head of the family succeeds to the property as a member of co-parcenary. Every member born in joint family, acquires the right in the family by birth.

(D) Benami Ownership

In Benami transaction, the person who invests is different, and the person to whom property is transferred is different. The substance of the Benami transaction is that the consideration for transfer must flow from one person and transfer is taken in the name of another person and the consideration so paid for transfer of the property is not a gift to the person to whose name the property is transferred. The Benami Transaction Prohibition Act, 1988 completely prohibits the Benami transaction. The act has come into effect from 18th May 1988. Section 3(1) of the Act provides that no person shall enter into a benami transaction, and subsections (3) and (4) makes benami transaction, a criminal offence. The only exception is the purchase of property, in the name of wife or unmarried daughter. However acquisition of the property in the name of the wife of co-parcener is benami transaction.

Section 4 of the Act does not allow any legal action by the real owner to enforce his right against benamidar with some exceptions. When a person in whose name the property is held as a co-parcener in Hindu Undivided family which is held for the benefit of such family, and when a person who is holding the property is trustee. Section 5 is more interesting. It provides that properties held in benami are subject to acquisition without compensation.

However, benami transactions made prior to the enactment of the Act are not illegal, but cannot be enforced as such by courts.

(E) Dual Ownership

In dual ownership the land belongs to one person and the structure on the land belongs to the other person. Thus the property has two owners, one for the land and another for the structure. This type of dual ownership is very common where the owner of the land leases the land to another with right to construct structures on the land and enjoy the fruits of such structures. The lease will be for certain specific period. The terms of the lease provide for as to how the ownership of the structure is to be determined after the expiry of the lease period. The ownership of structure may pass on the owner of the land or he may have to pay certain amount to the lessee of the land to acquire the ownership of the building. Generally in most cases the lease will be renewed.

(F) Trustee and beneficiary

The trust in fact is another mode of dual ownership. There are two owners to the property in trust, trustee and beneficiary. The trustee is the legal owner and the beneficiary is the beneficial owner. The ownership of trustee is of special type. In a way he is not the absolute owner, and he has to abide by the terms and conditions of trust deed, and the author of the trust. He cannot exercise his rights for his benefit but for the benefit of the beneficiary.
(G) Legal and Equitable Ownership

In English law the ownership may be of two types, legal ownership and equitable ownership. Legal ownership has originated from common law and equitable ownership from principles of equity. But Indian law does not recognise the ownership by equity though certain equitable principles are recognised at India.

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