 Good evening everyone and amongst us we have Justice Roshan Dalvi a former judge from Bombay High Court and as usual we all look forward for the knowledge sharing. And we have always seen that the session has always been going to see. And in fact someone said that it's quite a long time that when Justice Roshan Dalvi has not shared her knowledge. And in one of the marriages I was sharing that we will be talking about the topic on distinctions between a joint ownership and a ownership in property matters. And he's a quite seasoned lawyer and he said, is it so Mr. Vikas, is there any distinction or you are just joking. I said, no, we'll have to join the session. He said, okay, I will join it on the YouTube. I'd share the specific link with him. So be that as it may, since we all know that it's a weekend, but hopefully we are doing primary decisions on the weekend. We'll ask ma'am to share her knowledge. What do you mind? Brilliant Vikas and friends. You see this topic is one of the topics which has not caused much controversy and that is why someone in the wedding told you with us about whether there is any distinction or not. That's a very good sort of information that we have that people don't know that there is any distinction and then need not be. But in law there is and we have come in by way of practice in many of the things into essentially and only co ownership. Now you see properties are of two types as we all know immuable and movable and the law of joint ownership and co ownership would apply equally to both actually. For example, if you have a bank account in two names husband and wife or two brothers or whatever or father and son, it's a joint account. We say correct. It's a joint account. But if we have an immuable property, let us say a bungalow or a flat. We may not say it is a joint property. We say we are co owners. These are the usual expressions. Now how did these expressions come about? We must understand first a little history. Our laws are derived from the common law of England. Then we have had statutes just as they have had in England. Common law is the law of justice, equity and good conscience. So whatever at the relevant time would be the ongoing trust practice would be by way of precedence determined as law. Now in England, there were neighbors, there were friends who would buy immuable property together. We don't have that concept in India because we all the time take our properties in Western properties exclusively for our families, not even for our close friends. So we have to understand this law as a distinction from the English law from which it developed. Now joint ownership in England was that if two persons own a property, let us say a field which they are killing their neighbors. They have two cottages side by side and they are as agricultural is they have a plot of land. What happens is that they are joint owners unless they say that they are co-owners. And as joint owners, the property would survive to the other party when one joint owner dies. Now therefore if A and B own a property when A dies, B gets the entire of the property. A's, heirs and legal representatives cannot claim a share. If and only if A had a property in his single name, it would devolve upon the heirs as his separate exclusive property. Now this provision in law is not so strange in India. We had the HUFs, we still have HUFs, joint Hindu, united, joint, undivided, Hindu, undivided family. This applies to the majority community of our country and therefore we generally take this as the law of the land. And that is how the law has developed even for others, sort of unrestricted by the others I would say. Now when you have an HUF, you have co-personers in the property. Until 2005, these co-personers were only male survivors. So you had a propositors and his sons, sons, sons and sons, sons, sons. In this three generation after the propositors would constitute one HUF. In that HUF, now of course we have the daughters also being co-personers. So it wouldn't be the sons, sons, sons and sons, sons, sons. It would be the children, children's children and children's children's children. And all of them would be co-personers in an HUF property. This is the property that devolves upon you by survivorship. And it goes on for three generations after the propositors. Now when it devolves upon a person by survivorship means that as soon as one person is born into that HUF, the shares of all other co-personers would to that extent diminish. And when one person of the HUF dies similarly the shares of all others will augment. So they survive the deceased co-personer and they don't get the property by succession. This is what was the Hindu uncodified law prior to 1956 when we had the Hindu code. Now in 1950 after the coming of the constitution and after and Hira are sharing in gender equality, we had what was called the Hindu code or the great Hindu code. So we had the Hindu marriage act, the Hama that is the Hindu adoption and guardianship act, the adoption and maintenance act, the Hindu minority and guardianship act and the Hindu succession act. The first was of 1955, the remainder three were of 1956. Now in this aside from other codifications, the codification always took into account the gender perspective because women did not have absolutely any share, any say anything in any of these four aspects. Marriages were not permitted and therefore the Hindu woman had to remain like that and there was no video, the remarriage, etc. Then in adoption a Hindu woman could not adopt, only the man could adopt and when she adopted it was only after her husband died and only for his funeral rites and ceremonies. In the succession, a woman never got the equal share of her predecessor in title whom she succeeded. Now there were all joint Hindu families or Hindu undivided families, each one. And therefore in 1937 we got the law called the Hindu women's right to property act in which she got the share which her husband had in the HUF. This got diminished and repealed by the Hindu succession act section 14. We are not dealing with gender rights now and we are not dealing with those successions but her wife got succeeded to be a state of her husband and that state did not only survive upon her. So the HUF properties in which her husband had some share would devolve upon her by succession and not by survivorship. This was section 6 of the Hindu succession act of 1956. It has been repealed by another section 6 in 2005 when the copartinary law came to be completely changed. There was a quantum leap and all the daughters also became coparteners. But there was a succession and that succession was very minimal before. So under the Hindu succession act when a man died, his self acquired property which was taken separately devolved upon his wife, his children and his mother in equal shares. When the woman died, her property devolved upon her husband and children in equal shares but not her mother. This is the distinction between section 8 and section 15 and 16. Again we will not go deep into that. Our subject today is co-ownership or joint ownership. Now under section 19 of the Hindu succession act, the mode of succession of two or more heirs. I am reading the section. If two or more heirs succeed together to the property of an intestine, they shall take the property per capita and as tenants in common, not as joint tenants. We are concerned with the last aspect in this lecture. This was the beginning. Now what are tenants in common and what are joint tenants? Tenants in common in Black's law dictionary. A tenant in common is that he can possess the whole property but with no right of survivorship. And therefore it is deemed to be owned by himself or herself of course. So that person does not get the property jointly such that it would survive to the other co-person or to the other heir but whatever that two or more persons got, they got as their own separate property. Now this property could devolve again by succession upon their heirs. Succession is of two types. Tested and Intested. The Indian succession act deals with Intested succession, not Testamentary succession. Testamentary succession is under the Indian succession act which deals with wills, etc. of Hindus, of Parsis, of Jews, Christians and other sects in India. Not of Muslims. So far as Muslims are concerned again, there is succession is by way of inheritance essentially under the Hindu law or the Muslim law of succession applicable to Sunni Muslims. So far as Shia Muslims are concerned, they are governed by the Hindu law by way of custom. So again this section would apply and this law in that sense would apply subject to certain modifications which are set out in the law. Now again we come back to joint ownership and co-ownership. When the HOF has all male members only, it would still devolve by successor, by survivorship so that all the members would get their shares and who augmented when one member dies. It survives through the other members. Under section 6 of the Hindu succession act, there came to be an exception. The first exception which recognized the gender perspective that is the right of a woman. So when a man had anybody else who was a female relative claiming through him, then he would get by succession and not by survivorship. Now we know that in most of the families there is someone at least claiming through a female heir. It may be the wife, it may be the daughter, it may be the mother. In all of these cases whenever there was a female heir, the right of co-ownership, the right of joint ownership or survivorship became diluted and they took by succession. And therefore, the share of a man in even an HOF would devolve by succession to his heirs, that is to his wife, his children and his mother. It would not go to the other co-passeners who may be his brothers, his brother's children, his brother's grandchildren, whatever. So now we have the co-ownership principle settled into our statute and that makes it different from the British law. So we don't see the British law at all after 1956. We see the Indian law. Now so far as, as I told you right in the beginning, a bank account is concerned. FDRs are concerned, movable properties. What happens is if you own them together, you are deemed to be joint owners. They are called joint owners, I would say. And when you are joint owners, what happens is that the share advances to the other joint owner. So far as banks, so far as financial institutions who give out FDRs, etc., even life insurance policies, LIC, they are concerned. They are not concerned with your law of succession. They are not concerned with how many heirs you have. Each of these heirs would take per capita, which means that they would take equally and they would take as tenants in common. But they are not concerned. They apply the joint law, the joint ownership. And therefore when one person dies, the bank account can be used by the other person. So when there is a husband and a wife or two brothers or a father and son or mother and son who have joint bank accounts and when the person, one of the owners dies, the other owner, joint owner, becomes the sole owner. That is not the law of succession. Therefore when they become the sole owner, they won't have to hold that property in trust for the estate. The estate would comprise of all the heirs who are entitled to get, if they are entitled to get under the will, as per the will. And if not by interest succession under the Hindu Marriage Act or under any of the personal laws. Okay. So therefore banks and FDR financial companies, they actually make you fill up a form when you are applying for a bank account or an FDR. And you have to tell them whether it will devolve the joint owners, will operate the account jointly or they will operate the account by singly and how it will devolve first named holder or survivor. Anyone or survivor would be the options. Okay. Now this becomes a contract. So under a contract, persons can contract out of any other relationship and the contract would prevail. So therefore when a person dies in a bank account, the bank will accept the second holder. This is called the doctrine of advancement. This doctrine is again imported from the English law. The share advances to the other holder. Just as it survives to the other holder, just as any co-partner in India would get it in an HUF. Okay. And ultimately in the succession because they would take as tenants in common or as joint tenants or as co-owners or as owners in common and not as joint owners. Ultimately, this would have to be divided amongst the F's. This principle has been applicable even for nominations. So when you nominate someone in a bank account, when you nominate someone in your insurance policy in your GPF, why is that done? Whatever is the amount which is in that account or in the FDR will be handed over to the person who is nominated. So you can have a single account and make a nomination. You can have a joint account and make a nomination. If it is a joint account after both the holder's diet and nomination would take effect and the nominee would be considered as the heir by that party, by the LIC, by the bank, by the financial institution, etc. And again, that nominee will hold a share in trust for the estate. This principle has then been incorporated in section 13 of the Co-operative Societies Act so that in a Co-operative Housing Society or in any other Co-operative Society when you own plots of land also you have to nominate someone and the society will recognize only the nominee, not all the heirs because the society doesn't want to get into all those disputes within the heirs if any. Nevertheless, the nominee will be able to be a member, will be treated as a member, will have to pay maintenance, etc. as a member but that nominee will not be able to transfer that share to a third party, to transfer the property to the third party. Only an owner can transfer under the Transfer of Property Act. Only an owner can gift under the Transfer of Property Act. So all those five modes of transfer under the Transfer of Property Act cannot be resorted to. They will have to get the probate or the letters of administration from the court in any of the presidency towns Madras, Calcutta, Bombay. In other towns they will have to prove either the succession by in-tested succession or by testamentary succession which is by will. After that is done only as two or more who are claiming will claim as co-owners and only the nominee will not get. If it was joint ownership it would just implicitly devolve upon the other person or even the nominee if there was a nominee. I hope this is very clear fortunately we don't have much problem with this in our country and everyone accepts that things will devolve by co-ownership or as co-tenants or as co-owners. Now when they become co-owners then they start using enjoying possessing the property they get juridical possession of the entire property. So if there is a flat, if there is a bungalow if there is a field they will start using it together and therefore if they want a specified share they will have to apply for partition. So this just says there are partitions for HUF properties where only male co-owners could ask for partition and the female even the wife could not ask for partition but could get a share if a male co-owner wanted partition now here anyone can ask for partition. So when there are any of the owners they can ask for partition thereafter if they can live peacefully together as co-owners they enjoy the entire of the property. So if there are three co-owners let us say the mother the wife and the son then they would claim together and even the wife can apply for partition because she has got a separate share in the section 19 which is as tenants in common and not as joint tenants. Very clear under our statute. I have seen friends even now in my consultations that even the Muslims want this to be their law it is not their law as per the Muslim personal law because there are sharers. Now sharers have a specified share so a wife for example has one fourth of the share in the property of her husband as a sharer if there are no children and one eight if there are children. There are shares of various other people this is also because in olden times there were joint families so they were not joint un-divided families or joint Hindu families they were joint Muslim families but they were joint and they till the land or they own the property or whatever that they did even in the desert in Arabia if they had any land they would hold it together and they got only that share amongst Muslim spices Christians generally the property is owned as a separate property and the brother's children or the cousin's children or somebody will not claim a share though they may be sharers only if the Muslim personal law is to apply they will claim the share in which case for one man there would be many sharers not only his wife and children and his mother as in Hindu law but there will be many sharers and similarly his heirs will claim in the property of his brothers or sisters or anyone else that is the Muslim personal law but since by way of kind of practice when a man dies in bank accounts in FDRs the contract would prevail therefore if he has got a bank account or an FDR with his wife then the wife would get that bank account to the exclusion of the other heirs who would be sharers under the Muslim law now so far as the Parsees and Christians are concerned the law of succession is in the Indian succession act and that law would prevail as to what would be the shares in the Hindu succession act what would be the shares are laid down if not then there would be the common law of England which would be applicable to them because there is no other law other than that succession law determining the shares not the law like section 19 of the Hindu succession act which specifically provides what they will get as tenants in common or as co-owners they don't have therefore when there is no law then the common law applies so it is not that the British law applies to these people it is a common law of justice, equity and conscience which would apply subject of course to the contract law because under the contract if there is any contact with a bank or a financial institution prevail so this friends is the whole of the law of co-ownership and joint ownership it is otherwise quite drab and I don't know how to make it more interesting but this are the fundamental principles thank you thank you ma'am as usual spot on though on the chat we have not received any query so far what's up on the YouTube one is can there be a joint tenant or a co-tenant in Pagri's system as joint owners or co-owners in ownership no no can there be a joint tenant or co-tenant in Pagri system as a joint owner or co-owner this Pagri system is actually an illegality you cannot take a Pagri Pagri is black money which the landlord takes from his tenants when the tenants want to transfer the property so he would say that I will get one third of it now that was the position until 1999 and these laws are more or less the same in all states but it's a state law and formally we had the Bombay rent act now we have the Maharashtra rent control act under the Maharashtra rent control act he can take a premium and he can have a separate contract so it is not that under the Pagri when a tenant dies you would have either joint tenants or co-tenants the rent act would have applied the Bombay rent act would have applied and the person living with the disease at the time of the death of the disease becomes a tenant because that is a separate law this is can society make the eldest son or the first name holder in a shared certificate as member of the society without taking any NOC from the other members no there is nothing like first named holder that is the doctrine of primogeniture which is not applicable to Indians today we had this primogeniture in trusts and all that in earlier times but the society must insist on and do insist on nominations because it is the first name holder in a shared certificate do insist on nominations because under section 30 you have to nominate someone he may not be your first born son or anything like that you can nominate anyone you can nominate even your friend and the society will only transfer the membership to the nominee that is all the nominee can get into possession but cannot get all ownership rights the nominee will hold it in trust for the aspect this is so many questions have been posted on the whatsapp chat on the zoom chat whether live interest holder and interested and vested can file a suit for partition against another life interest holder and a vested reminder see life interest you mean if there are two life interest holders they would get not a life interest in an interstate evolution that is done away with only the women had a life interest under the hindu women's right to property act this has been done away under section 14 of the hindu succession act so that if she is in possession of any part of any property she takes that as a complete owner under section 14 and she gets it but if there is a life interest created under a will or a trustee then that life interest would prevail over whatever is the other interest which could be created so if you have say my wife will use it for her lifetime and after that two out of my three sons will become the owners then that would be allowed and applicable if it is in a trust or in a will for a person who has died in tested there is no question of such life interest property always devolves by succession under section 8 of the hindu succession act for males of 15 and 16 for females ma'am see as she said ma'am there is a poverty system still prevalent in Mumbai in the old heritage structures building in Kulapa if residents of the flats want to transfer yes that is the practice but that practice is an illegal practice it cannot be done the thing is when a tenant to transfer the property the landlord can say I will not make the transfer in the name of a third party at all I refuse because now under the ma'am and control act the landlord would say that your entire tenancy comes to an end if you want to transfer if you transfer it you created a sub tenancy or anything else it is not recognizable the landlord will only recognize the tenant living with the disease at the time of the death of that tenant and he will have to make them a tenant of course that also actually in this old premises the landlords don't do and the rent receipts continue to be in the name of the old tenant sometimes the grandfather grandmother like that but that is not the law that is the practice this is Anita she says ma'am as far as insurance nomination the 2015 amendment of the insurance act made the nominee having full right on the claim of money excluding other years in terms of section 39 sub clause 7 of the insurance act of which act insurance act another insurance act under section 39 there has to be a nomination to be made now you may have five years you cannot nominate all five years the insurance company would insist that you nominate anyone so you can nominate anyone the insurance company will give the entire policy majority value to that nominee and get out of the frame this is so that the insurance company is not involved in unnecessary litigation between heirs who are contesting parties in a suit in a civil suit but that nominee will again hold that property in trust for the aspect so the nominee will take the money but the nominee cannot throw away all the money and blow it up and if the nominee blows it up also if there are five heirs and if the other heirs claim their share he will have to pay that share to the other heirs out of his own pocket that is section 39 it is equal to the same as section 30 of the Hindu of the cooperative societies act and it is like any of the practices under the contract with banks etc for any monies because that is movable property this is madame if a daughter gets a share in the property as a co-pastner yes sir her heirs will get co-pastner rights in the said property or will it be a separate individual separate property yes the daughter would get only the share in an HUF property not in a self acquired property as such now when she becomes a co-pastner under section 6 of the Hindu succession act of 2005 from the 9th September 2005 when she becomes a co-pastner therefore when she dies her share will survive to the other co-pastners all the other co-pastners so her heirs may be the co-pastners if she has got her own children and if there is the propositors for each generations they would become co-pastners and that is only in the HUF property not in separate self acquired property so thank you to all those participants who have been watching us live on the facebook youtube and also the zoom meeting stay connected with us and you can share your any topic which you like over the speaker we will request them to take forward and thank you namaskar and on sunday we will connect on the partition and the avenue in the agricultural lands by this is Parumjit Singh Dhaliwal at 6pm so do stay