Joint Tenancy and Tenancy-in-Common

List of Cases

1. Biswanath v. Habija, 33 CWN 46; 56 Cal 616 7

2. Boddu Venkatakrishna Rao v. Boddu Satyavathi, AIR 1968 SC 751. 6

3. Budh Sen v. Sheel Chandra Agarwal, AIR 1978 All 88 8

4.Guruswami Asari v. Raju Asari, AIR 1973 Mad 73. 8

5.H.C. Pandey v. G.C. Gaul, AIR 1989 SC 1470. 10

6.Harish Tandon v. Addl. District Magistrate, AIR 1995 SC 676. 10

7.Jogashwar Narain Deo v. Ram Chand Dutt, 23 Ind. App. 37 (PC) 6

8.Kamaladebi Mukherjee v. Arun Dasgupta, 97 CWN 680. 11

9.Mohd. Azeem v. District Judge, AIR 1985 SC 1118. 9

10.Ram Charan Das v. Naurangi Lal, AIR 1933 PC 72. 6

11.Shridhar Ghose v. Harimohan Sahu, AIR 1964 Ori 141. 5

Introduction

Joint tenancy and tenancy-in-common are examples of concurrent estates which are held by more than one owner. Therefore, both are instances where property is owned by more than one owner. However, joint tenancy and tenancy-in-common, though similar in this respect, are inherently different and the nature of ownership and the rights and duties consequent thereto would vastly differ according to the nature of co-ownership. A co-ownership would be defined as concurrent ownership, possession and enjoyment of property. [1] Co-ownership might arise in various situations. When an estate devolves on its heirs, they hold it as co-owners. Similarly, when several people acquire property in equal or unequal shares they acquire that property as joint-owners. By virtue of English common law, co-owners in general, whether they are joint-owners or owners-in-common, shared a number of rights namely,

The right to unlimited access to property,

The right to accounts of profit made from that property,

The right to ask the other(s) for contribution towards maintaining the property [2] .

Co-ownership, according to English law, comprised joint-tenancy, tenancy-in-common and tenancy by the entirety. Tenancy by the entirety was a unique variety of co-ownership applicable to spouses. Husband and wife were regarded as one single entity in English law and when husband and wife acquired any property, they were said to take by entireties. However, since 1925, all tenancy by entireties have been converted into joint tenancies [3] .

In this project, I would seek to draw a comparative analysis between joint tenancy and tenancy-in-common and list out the differences in their application with respect to the Transfer of Property Act, 1882.. It must be remembered however, that when referring to ‘joint tenancy’ or ‘tenancy-in-common’, I would be referring to ‘joint ownership’ or ‘ownership-in-common’. In fact, the terms ‘joint tenancy’ and ‘tenancy-in-common’ have been referred to even while speaking about ownership for historical reasons as the word ‘tenant’ is derived from Latin via French which means ‘to hold’.

Chapter I: Nature and Incidence of Joint Tenancy

Joint tenancy is an “estate in fee-simple, fee-tail, for life, for years, or at will, arising by purchase or grant to two or more persons. Joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. The primary incidence of joint tenancy is survivorship, by which the entire tenancy on the death of any joint tenant remains to the survivors, and at length to the last survivor.” [4] This incidence of survivorship ensures that there is no vacancy of possession and if there is only one tenant left, he survives to the entire possession and thus the principle is known as jus accrescendi and is the most important feature of joint tenancy. [5] Thus the interest of each tenant is identical in extent, nature and duration [6] . Therefore, joint tenancy comprises four ideas: unity of possession, unity of interest, unity of title and unity of commencement of title. [7] The right of survivorship is thus the primary incidence of any joint holding. Indeed, this incidence of survivorship would seem to be very unfair when one considers the entitlements of the heirs of the joint tenant. However, according to English law, joint tenancy can be converted into a tenancy-in-common through very simple means. A simple notice of severance from the joint tenancy would make any person relieved from the joint tenancy. Therefore, if A, B and C are joint tenants and A sends a severance notice to both of them, then A becomes a tenant-in-common with respect to both B and C and his interest in the property (one-third) would devolve on his heirs while B and C would still remain joint tenants with respect to each other with the right of survivorship. A severance by notice is mostly a cost-benefit analysis, that is, the individual who seeks to sever, will take the benefit of not being in a joint tenancy, but at the same time will forego on the right of survivorship [8] . Joint tenancy is primarily an English common law concept of ownership of property having very little resonance in the indigenous laws of India. In fact, Hindu law does not speak of joint tenancy except for in cases of Mitakshara coparcenary property. In Shridhar Ghose v. Harimohan Sahu [9] , the dispute arose on the issue whether the defendant’s parents succeeded as joint tenants to the disputed property so that by the doctrine of survivorship as one died; the other was entitled to the entirety. The court followed the decision of the Judicial Committee of the Privy Council in Jogashwar Narain Deo v. Ram Chand Dutt [10] and Ram Charan Das v. Naurangi Lal [11] and held that the concept of joint tenancy was wholly unknown to Hindu law except for a Mitakshara coparcenary property [12] . In the instant case the parents of the defendant had succeeded to the property by virtue of a deed of gift and no question of coparcenary property could arise. The Supreme Court in Boddu Venkatakrishna Rao v. Boddu Satyavathi [13] , reiterated this principle of joint tenancy. By following Jogashwar and Ram Charan Das [14] , the Court held that there could be no presumption of joint ownership on the interpretation of a will and the testatrix’s intention, as interpreted from the testate, went in favour of a tenancy-in-common [15] . This would not mean that joint tenancy is an unknown term in the Indian legal scenario. Far from it, joint tenancy could be conferred by contract, conveyance or settlement if the contracting parties, testator or settler so intended as illustrated by Shridhar Ghosh [16] . Therefore, it is amply clear that joint tenants hold the property as one body and there is community of interest and possession as between them. [17] As a result, it is imperative that they act jointly in any act pertaining to the property. Examples of joint tenants would include trustees as in the normal course of things, the death of any one of them results in the estate vesting at once with the surviving trustees. [18] The Indian Trusts Act does not explicitly provide for joint tenancy but in Section 76, it is clearly provided that on death or discharge of one or several co-trustees, the trust survives and the trust property passes to the others, unless the instrument of trust expressly declares otherwise. [19] Therefore, there is presumption of joint tenancy in a trust property unless otherwise provided. Even as it has been mentioned beforehand that joint tenancy is present in Hindu Mitakshara property, this is subject to certain qualifications. Though joint tenancy and Mitakshara coparcenary property are similar, they are not the same as one of the most important ingredients to form a Mitakshara coparcenary would be the incidence of sapindaship which is absent in English law. [20]

Chapter II: Nature and incidence of tenancy-in-common

Tenancy-in-common is a form of ownership whereby each tenant (ie, owner) holds an undivided interest in property. Unlike a joint tenancy or a tenancy by the entirety, the interest of a tenant in common does not terminate upon his or her prior death (ie there is no right of survivorship). Accordingly, tenants in common are those tenants who hold the same land together by several and distinct titles, but by unity of possession, because none knows his own severalty and therefore, they all occupy promiscuously. Where two or more hold the same land, with interests accruing under different titles or accruing under the same title, but at different periods or conferred by words of limitation importing that the grantees are to take in distinct shares [21] . A tenancy-in-common is similar to a joint tenancy in that it would require unity of possession. This would mean that there would have to be an equal right of possession to every part and parcel of the property. Thus possession need not be joint, even if there is only unity of possession; the co-ownership would be a tenancy-in-common. [22] Interest in the property might be unequal such that one co-owner would have ¾th interest in the property and even title in the property could have commenced at different times. By virtue of this, the tenant-in-common can transfer his share or on his death the share will pass on to his heirs as unity of title is not required. In effect, the only practical difference between joint tenancy and tenancy in common seems to be the incidence of unity of title and survivorship. In Hindu law, the concept of tenancy in common is very similar to that of a Dayabhaga coparcenary. In a Dayabhaga coparcenary, if a man dies intestate leaving sons, grandsons by predeceased sons, and great-grandsons whose fathers and grandfathers predeceased him, the inheritance would devolve on the sons, grandsons, and great-grandsons; the grandsons and great-grandsons taking respectively the shares of their predeceased fathers and grandfathers along with the sons [23] . Therefore, in both there is unity of possession but when the estates are dissolved the principles of jus accrescendi do not apply. Another important point has to be noticed with respect to tenancy in common. The old Mitakshara rule was that heirs took as joint tenants with right of survivorship in cases where heirs were sons, grandsons, great grandsons or when heirs were grandsons by a daughter who succeeded to their grandfather’s estate provided they were living as members of the joint family at the time of succession or when heirs were two or more widows of the intestate or when heirs were two or more daughters who succeeded to their father [24] . This established practice of Hindu Law was changed by the Hindu Succession Act, 1956, where §19 of the Act provides that these heirs will succeed to the estate not as joint tenants but as tenants in common. [25] This makes for far-reaching changes in the Hindu law of succession and read with §8 prevents any coparcenary from coming into existence.

Chapter III: An analytical difference between joint tenancy and tenancy in common

While the Transfer of Property Act, 1882. does deal with joint owners, the Act does not distinguish the nature and quality of the ownership. §45 of the Act talks about consideration being paid out of a fund belonging in common or separate funds belonging to them separately but this deals with the quantum but not the quality of the interest of the joint transferees. In Guruswami Asari v. Raju Asari [26] , the Court categorically held that §45 had nothing to do with the method of creating common ownership or the manner in which several persons could become common owners of a single item of property. [27]

Coming back to Shirdhar Ghosh [28] , the Court in that case also laid out fundamental differences between joint tenancy and tenancy-in-common apart from the obvious lack of right of survivorship in the latter kind. The mode of creation in the two different cases was different. Joint tenancy arose where a grant was made to several persons and there are no words indicating that the grantees were to take separate interests. On the other hand, if words used in the grant showed that they were to take either in equal shares or in some other proportion, a tenancy-in-common arises [29] and these words were called ‘words of severance’ [30] . In the absence of words of severance, a grant to a number of persons construed as conferring upon them the interests of joint tenants [31] . A joint tenancy can be created only by the acts of parties and not by operation of law. A tenancy in common on the other hand could arise by operation of law [32] .

In Budh Sen v. Sheel Chandra Agarwal [33] , a question arose whether a notice under §106 of the Transfer of Property Act, 1882. which purported to terminate the tenancy of one heir of a deceased sub-tenant could be relied upon as against the other heirs of the deceased sub-tenant. The appeal arose from a suit of ejectment filled by the appellant due to non-payment of rent by the respondent’s predecessor-in-interest [34] . The Court categorically stated that on the death of a tenant(or, sub-tenant), his heirs succeed not as joint tenants but as tenants in common [35] . A lease might be granted to several persons who may take as tenants in common or as joint tenants. In the case of joint tenants the interest of each person passed upon death to the survivors [36] . In the case of tenants in common, the interest of a deceased lessee passed at his death to his representatives. The Court reiterated that the basic difference between joint tenancy and tenancy in common was that even though there was unity of possession in both, there would be no unity of title in the case of tenancy in common. The Court therefore, concluded that while a notice served under §106 of the Act to joint tenant would be effective against all the tenants, no such notice to only one tenant would be effective against other tenants if the nature of the holding is tenancy-in-common as there was no unity of title. In the instant case, the Court observed that there was no joint tenancy and thus a notice to only one tenant would not be held to effective against other tenants [37] .

The question whether the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, provided for the concept of joint tenancy on an interpretation of the various provisions came up for discussion in Mohd. Azeem v. District Judge [38] . In this case, the appellant was the eldest member of the family of the original tenant and was the person who was paying the rent [39] . The Rent Control Inspector submitted a report that the appellant’s brother, had built a house four or five years before and, therefore, the tenancy must be deemed to have terminated in view of the provisions contained in § 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 [40] . On issuance of notice, the appellant objected by stating rent was being collected from him following the death of his father. Merely because the brother had built a house, the tenancy in favour of the other heirs would not terminate and in such circumstances the premises cannot be held to become vacant and available for allotment to some other person. The Prescribed Authority did not accept the contention of the appellant and the appellant carried a revision before the District Judge, the first respondent, which was dismissed and then the appellant filed a writ petition under the High Court which on being dismissed, came up before the Supreme Court. The Court held that the definition of the word ‘tenant’ in the Act did not warrant the view that heirs of a tenant would become a body of tenants so as to give rise to a joint tenancy [41] . Therefore, each heir became a tenant-in-common, under separate title, and thus became a tenant in his own right and ‘tenant’s family’ referred to the family of this tenant [42] . Therefore, in the instant case, even if one heir had built a house that would not have severed the tenancy of other heirs as they were all heirs in their own right having been tenants in common.

However, in H.C. Pandey v. G.C. Gaul [43] , while dealing with the same act, the Court came to a different conclusion. The respondent’s father was the tenant of the premises in question and on his death, he left behind his mother, brother and sisters who inherited the tenancy [44] . A notice of ejectment under §106 of the Transfer of Property Act, 1882. was served on the respondent only but not on the other tenants. It was contended by the respondent that the notice, to be valid, had to be served on all the tenants as they were separate tenants in their own rights, the tenancy being a tenancy-in-common. [45] The Court held that it was well settled that on the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenant [46] . The incidence of the tenancy is the same as those enjoyed by the original tenant and it was a single tenancy devolving on the whole body of heirs [47] . That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. Therefore, in the circumstances of the case, the notice served on the respondent was sufficient.

This apparent conflict was resolved in Harish Tandon v. Addl. District Magistrate [48] where the Court after perusing §12, 20 and 25, held that the interest devolving on the heirs after the death of the original tenant would devolve upon them as joint tenants and for any breach committed by one tenant would be deemed to have been a breach committed by all of them and it was not necessary under §20 to establish grounds for breach against all of the tenants individually [49] .

Under the earlier West Bengal Premises Tenancy Act, 1956, the definition of ‘tenant’ included the ‘heirs of the original tenant’ [50] and it was held in Kamaladebi Mukherjee v. Arun Dasgupta [51] that the tenants succeeded to a single incidence of tenancy and thus the nature of the tenancy was joint. Now a question would arise whether the same principle will apply on account of the new Act in 1997. It is submitted that in the absence of the word ‘heirs’, the definition of the word ‘tenant’ does not envisage that the persons who would succeed to the tenancy would succeed as joint tenants but will do so under separate title as tenants in common. [52]

Conclusion

The difference between joint tenancy and tenancy in common is not a difference in the nature of tenancy as ordinarily understood. Quite on the contrary, it is a difference in the nature of ownership or more correctly, interest. Therefore, whether the nature is joint or separate is an important consideration as the two envisage different consequences. In this paper, I have dealt with the theoretical difference between joint tenancy and tenancy in common and have applied the difference to see where the Hindu Law stands. Moreover, I have analysed how the difference bears practical consequences with the help of several case law. Now, as has been seen, the nature of the tenancy also has an effect on how to deal with the rights of the parties. In joint tenancy, acts of one party would bind the other as they hold under the same title but this is not so in the case of tenancy in common. I have also proposed that there has been a difference in the nature of tenancy that dependents succeed to under the West Bengal Premises Tenancy Act, 1997, from the old Act and this will have important repercussions in future cases.