 Hello everyone and amongst us we have Justice Hari A. Prashat and who is a former judge from Kerala High Court. Now a designated senior who is practicing not only the Supreme Court and the other parts of the state. We have taken a lot of sessions with him and today he would be explaining the nuances of governorship and thank you sir for accepting and I invite over to you. Thank you. Thank you my dear friend Gus. See the concept governorship is of great importance across the length and breadth of our country because questions relating to partition directly emanate from governorship. So we will see what are the the classifications and the different types of governorship that is conceivable in our country. Now before going into the subject I think it is better to understand the fundamental principle that ownership consists of a bundle of rights over some property. Now that is the concept called ownership. It gives to the owner some claims, privileges, powers and of course immunities and limitations. These may vary according to the nature of the property over which the ownership is claimed. So it depends on the nature of the property. The ownership is a bundle of rights having various privileges powers and immunities. Now going by the definition of jurist Austin ownership is a right over a determinate thing indefinite in point of user unrestricted in point of disposition and unlimited in point of duration. This is the definition. But this definition normally is applicable to the absolute ownership. It is not in respect of a limited ownership because as all of us know ownership is a concept which is of limited ownership because when two or more persons have ownership in respect of the same subject matter then only we call it a ownership. So the ownership in the going by the Austin's definition it is sold the ownership of a person sold owner of the property but there is a slight distinction in the case of ownership. Then the main facets or rather the predominant features of ownership are one right to possession. That is very important because there is a saying that possession right to possession is nine points in law. So right to possession right to enjoy and right to dispose. So these are the fundamental rights available to an owner of a property. Right to possession right to enjoy and right to dispose. So these are the this is applicable in the case of soul ownership as well as in partnership. Then if an owner of a property I'm speaking about the mobile property for the time being if the owner of an immobile property is wrongfully dispossessed or even a owner of a mobile property is wrongfully dispossessed he has a right to get it repossessed or recovery of possession possible but an absolute soul owner of a property if he so desires can share his interest with some other person. That is I mean suppose one acre of property exclusively belongs to one individual and he decides to sell half of his right over the entire one acre of property not 50 cents by partition. The entire property is half right is sold to a second person. Then he becomes a co-owner with the original app sold owner and that way he can create a derivative right. Then in other words suppose a person is the complete owner in the legal sense absolute owner property the expression absolute owner requires some clarification. There is nothing absolute in law but then for the time being let us assume that he has all the power conceivable in respect to all the powers conceivable in respect of the property. Then he can if he holds the property by himself he is this old owner. There is no question of partnership but he may decide to as I told you earlier he may decide to give away a portion of his right say half or one third or one fourth whatever it is. If it is transferred to one person or other persons then he becomes a co-owner along with the transferees. In the other way round suppose he creates these mortgage license whatever it is that is called the derivative right because then there is a concept called a superior right and an inferior right. So if that is created it is not a corner ship it is actually another dual relationship of an absolute right on one person and the derivative right in respect of the other person. So the difference between corner ship and derivative right is that in the case of corner ship the the what you call the the interest transferred by one person to another person is a coordinated interest. Coordinate interest means at the same level not a superior or an inferior in the same level coordinate interest when it is transferred the transfer is called a corner along with the original owner and if a derivative right like lease mortgage etc. are created then the the the holder of the property is called having a superior right and the for whom it is transferred will have a smaller right or an inferior right which is called a derivative right. So that is the essential distinction between corner ship on one hand and derivative rights on the other hand. Then assume that a is the owner of a parcel of land he dies leaving behind his wife and children. The moment he dies the property right which was available with a devolves on the legal heirs. So that devolves according to the shares claimable under the personal law Hindus according to the succession act Muslims according to their personal law Christians according to the succession act whatever it is. So whatever personal law applicable to them the property of the deceased owner devolves on the legal heirs and they becomes the moment they becomes co-owners. Similarly suppose two persons or three persons purchase property by pooling their resources. They are not related by blood or they are they are total strangers as you suppose three persons who are total strangers purchase property by contributing different sums going by certain the the sub provision the TP act you will find your type your this entitlement to property will depend upon the price the share in the price that you have paid. Suppose one person pays 1 lakh the other person pays 60,000 the other person pays 40,000 together all together 2 lakhs. And they purchase a property then their share interest may be different in the property. So the person who has paid the maximum amount will have a higher right then the middle man then the lowest person. So in that case even though their shares are different shares in the property are different. They are corners because there is no rule that each corner should have the same interest in the subject matter of the concept that is another principle. Then in theory every corner is assumed to be the entire assumed to be the owner of the entire property. Otherwise every corner has all the rights and privileges in respect of the property that can be claimed by the if he had been the sole owner of the property. That is why we go later there are certain extensions possible. I'm just telling you the principles for the time being. So fundamental test of corner ship is whether they have coordinate interest. Coordinate interest I will explain once more it is interest in the same level having the same nature. It is not a derivative right it is neither a superior right nor an inferior right at the same level. So the fundamental test is to determine whether there is a corner ship or not is to find out whether there is a coordinate interest. If the interest of one is subordinate or higher in degree than the other there is no corner ship between the parties. So that is why I again explain there is no corner ship between lesser and lessy. There is no corner ship corner ship between mortgage or a mortgage because their rights are at two different tiles. But suppose two brothers inherit from their father their interests are the same. So they are having coordinate interest that is the main incident of corner ship. Now generally we use joint property. Joint property is a loose expression where you can have corner ship and you can have this joint tendency. You can have co-personally these are all joint property but corner ship is a special feature of that joint property. Now straight away we will go to the forms of corner ship that can be conceived in our country. One that first one is joint tendency. Second one is tendency in common or corner ship in the normal usage. Then comes co-personally. So these are the three types of varieties of co-ownership or rather joint ownership possible in this country. First one is joint tendency then tendency in common and then co-personally. Joint tendency is a concept where the joint tenants form one body owning the properties. That is they are collectively they are one body owning the properties. Now actually joint tendency is said to be distinguished by four units. The characteristics of joint tendency is different from that of the corner ship. We will see what are the characteristics of joint tendency. Unity of possession. Unity of possession is essential because every joint owner is presumed to be in possession of the property. It's an extended even if one joint owner is staying away the other holding as in the case of corner ship. The other holding the properties presumed to be holding it for and on behalf of the other joint tenants. So unity of possession first thing. Then unity of interest. Their interests are also originate from the same source. Their interests are the same. So there is unity of interest. Then unity of title. They have unity. They have the same title. If it is not a derivative title or the joint owners have the same nature same extent right in respect of title. Then an unity of the time of commencement of such title because it's a legal fiction. So the commencement of title also takes place in respect of the joint tenants at the same time. So there are four unities in the case of joint tendencies. One unity of possession. Unity of interest. Unity of title and unity of the commencement of such title. I'll just explain. Suppose a person who is governed by Hindu succession act. Of course there is an amendment. I remember that there is an amendment to section 6 of the Hindu succession act including the daughters as co-personals and the co-personary. Assume a case before the amendment which was in 2001 or so. I don't remember the date of amendment. Anyway recent amendment within one or two decades. Before the Atlantis is 2005 if I remember correctly. Now before that suppose a person dies. A co-personer. Hindu co-personer dies. So if when the rule of survivorship was there. The property owned by the person. Will devolve on his persons. Entire persons entitled to the right according to the principles of section 6 of the Hindu succession act. As one unit. So suppose there are three persons claiming his right or rather entitled to claim his right. Then the right originally belong to the deceased Hindu co-personer. Will devolve on the three persons in equal proportion at the same time. So there is a creation of a joint tendency in respect of the right to the deceased person. So there are four unit is satisfied. One unit of possession. Then unity of interest. Unity of title. And unity of time of commencement of title. Because the title comes as the moment he dies. So these are the concepts relating to joint tendency. Then in the case of a joint tenant. They also have a right to joint possession. Every joint tenant is presumed to be in possession of the property for and on behalf of other joint tenants. But in the case of joint tendency. This as distinguished from the corner shape. Each joint tenant will have the same interest. Because if one is having one fourth all the other persons will be having one fourth right. So there cannot be a varied interest in the property. But in the case of corner shape the principle is different. And as I explained earlier the joint tenants right. Is the rights are accrued to them from the same source. The source is also the same. Because they derive right from a person. Or rather from from an happening this from the same source they derive. But in the case of corner shape. The right can emanate from various sources. That is the difference I'll explain when I deal with the corner shape. And lastly each one of them should acquire interest in the property at the same time. Because the evolution of interest in the case of a joint tenant in the case of joint tenants. Happens at the same time. Now coming to corners. Tenancy in common the difference is that. The corner shape does not require. As in the case of joint tenancy. Because possession is a common ingredient for both joint tenancy as well as for. Tenancy in common. But there is no rule or there is it is not required in the case of corner shape. That there should be unity of right or unity of title and sorry. Unity of interest unity of title and unity of. Time of commencement of title. These these three ingredients are not required in the case of corner shape. I shall explain. Suppose I have a property. Say one acre of property. I decide to sell. See one third right each to two different persons. So I retain my one third right over the property and I sell. One third each to two separate persons. Assume that I am selling one third right to be. Two A today. So I'll be retaining two third right over the property and. A will get one third right as on 2D then after say six months. I sell my one third right for again I sell one third right to be B. Then B will get one third right after six months. So there is no identity of time. Time factor is not there for either the commencement of title. Does not depend on single time it at different times it happens. So still there is a concept. I have a one third right the other two persons have one third right each. So there is no rule in the case of corner shape that the title should come at the same point of time. And as in the case of joint tendency I told you earlier the joint tenants must have equal right in respect of the property concern. But in the case of concept there is no room that everyone should have a same interest. Suppose I sell one tenth right over my property to a person. I'll be retaining 9 by 10 and the the Bendy will get only one by 10 still we are corners. So different shares possible in the case of corner shape. The other aspect regarding corner shape is that even if even if the the corner is not in possession of the entire property or even if he does not have the entire right of the property. He is presumed in law to be the absolute owner of the property for all practical purposes. For example, suppose somebody is trying to trespass upon the property. One corner can file a suit against the other the the the the apprehending trespass against the person who is likely to trespass upon the property for an injunction or other release as law may require in this case that the property should be protected. So he has a very right to see that it is enjoyed in a manner as if he is the full owner of the property. That is one incident of corner shape. Then before coming to other aspects of corner shape let me explain co-personary also. Now co-personary is a concept even available in English common law principle because we are we speak co-personary mainly in the context of Hindu law pristine Hindu law. But even in under English system co-personary is recognized but there is a slight distinction between Hindu co-personary and the English concept of co-personary. Co-personary arose in English common law wherever land descended to two or more persons who together constituted an air. As in the case of our co-personary also the entire right devolved on co-personers was originally belonging to one individual from one individual they trace their right to to claim ownership over the property. Co-personers constitute a single air and they occupy a position intermediate between joint tenants and tenants in common. So co-personary in English law is a position between joint tenants on one hand and tenancy in common in the other hand because tenancy in common we have seen a need not be under the what you call under the same interest at the same point of time the title need not comments there are distinctions in the case of joint tenancy also even there are four unit is required but English common law says that it is this co-personary under the English concept is something in between joint tenancy and tenancy in common. Now coming to Hindu Midakshava co-personary the principle is slightly different because as we know the co-personary is recognized under Hindu law when all persons the when the co-personers are linearly descended from a common ancestor then only the co-personary will be recognized under Hindu law and you know co-personary is actually it is a it is a statutory prescription co-personary is formed by operation of law it can be created by contract between the parties it is a natural thing happens under the under the the relevant law applicable to the parties. Then the expression Hindu joint family has to be understood in the context that it takes in not only co-personers but also all the female members minor members those who are removed three degrees away from the the acquirer of the property. So all the all the members in the family collectively are called joint family and the co-personers normally according to Hindu law being the sons grandsons and great grandsons of the holder of the joint property for the time being. So co-personary or three generations sons grandsons and great grandsons of the holder of the joint family property for the time being. So that is the distinction between joint family and co-personary. Then of course if you if anybody is interested in understanding these concepts please refer to AER 1962 Supreme Court 287 AER 1962 Supreme Court 287 AER 1985 Supreme Court 716 you will get the concepts clear regarding the co-personary because you will find a lot of litigations in the in the context of income tax loss. Then according to Hindu law there can be a joint family with a single co-personer provided there are other members entitled to maintenance from the estate because if soul person cannot be a co-personer if there are other females other members in the joint family though there are no other co-personers still a co-personary can be there can be a joint family possible please see 1970 AER 1970 Supreme Court 343 sorry AER 1970 Supreme Court 343 then even the death of the soul surviving co-personer does not necessarily put an end to the family because the co-personer suppose he survived joint family cannot be finally brought to an end while it is possible in the nature of law to add a male member to it for example if adoption is possible then if in the joint family suppose there is an adoption legal legally valid adoption takes place of a male then the co-personary can continue. So these are all some broad concepts may be not very relevant for the present context but I am just telling you the principles to understand what exactly the distinction between co-ownership and the co-personer then so going back to the subject co-ownership it need not be between the family members even strangers can be co-owners suppose a Hindu a Muslim and a Christian together by property by what you call pooling their resources then it's a co-ownership it can't be a joint family or it can't be a co-personary or it can't be a joint tenancy also because joint tenancy commences by devolution from one source common source so this can be a co-ownership it cannot be the other two concepts called joint tenancy or co-personary then what are the rights inter say between the co-owners let us see whether there is an agency possible one co-owner can be whether he can be presumed to be an agent of other corners the law says that merely as a corner one person is not an agent for other corners is not an agent for other corners but a corner maybe maybe an agent for others by any authority suppose there is an express or implied authorization given to one corner to act as the agent of other corners then of course an agency is created by either by contract or by this what you call act of the parties act of the corner who is authorized to act on behalf of others as I told you earlier one corner for protecting the interest of himself and of others can file a suit for preserving the property for injunction recovery of possession whatever it is required he can file it on behalf of others only thing is that in the plane he shall our that apart from him such and such other persons are also having the right because he can't file a suit or he can file a suit but then the other corners are not bound by his suit if he makes an argument in the plane that he is the sole owner of the property I shall explain because suppose there is a hostile assertion against other corners and he claims exclusive ownership of the property then the difficulty is that other the degree therein is not binding will not bind the other corners maybe even the stranger the defendant in the suit even can dispute that you are not the sole owner of the property that's it this is debatable proposition however in in other cases where the the the corner ship whether the whether the person the corner in position in order to preserve the property files a suit for and on behalf of other corners without negating their right such as who is maintainable and there is a kind of agency presumable under that situation then whether a corner is a trustee for other corners that question also arise and decided in very many cases you will find some decisions by the Supreme Court and other high courts a corner merely as a corner is not to be a not to be regarded as there is no fiduciary relationship as such as provided under the Indian Trust Act but chapter 9 of Indian Succession Act 1882 enumerates several cases in which obligation in the nature of a trust is created it is not a real trust in the in the in stuctose and so but obligations in the nature if you refer to sections 90 94 95 etc you will find the Indian Trust Act says a relationship in the nature of akin to trust of course those concepts may coming to play but there is no actual what you call express trust created by for the actions of one corner for a down be half of others the position therefore seems to be that as between the corners in a joint estate there is hardly any relationship of a fiduciary nature but if any corner by abuse of his position as such gains an advantage it is not only proper that he should not be allowed to enjoy the advantage to the exclusion of the others that this principle is called dis gorging the benefits suppose a corner by virtue of management of the partnership property acquires some benefits or advantages then he is liable to account for the say account the the profits or rather the benefit that he has derived to the other corners and there must be a sharing of profit that is the settle on this then if you speak on what you call adverse possession limitation and ousted that itself is a long subject large subject but I just make a mention that a corner's possession in law is presumed to be for and on be on behalf of other corners there is no hostility pres presumed by love unless it is specifically pleaded and proved in a litigation between the corners and one corner claiming absolute ownership over the partnership property by adverse possession limitation and ousted it is for him to plead and prove that he had excluded to the knowledge of the ousted corners that he is the absolute owner of the property so that's a different subject by itself so in principle there is that the law presumes that every corner is in possession for and on behalf of other corners it is for the person who asserts an independent right to plead and prove that is the principle then another right available to corners is that he is entitled to claim contributions for the improvement of the property that is the general principle but that principle is subject to certain conditions you can't suppose a corner voluntarily improves without the without asking permission or without the concurrence or without even informing the other corners he voluntarily out of his gratification he does it then probably he may not be able to claim it if there is a dispute between the other corner between himself and other corners but if in the following three conditions in a corner improving the property or doing good things for the property to increase the value of the property can claim reimbursement when three things are in existence one if there is an express contract for such improvement and then there is a decision for contribution to the person who is doing this for the benefit of the property there must be an express contract for contribution to if the money was spent the express are implied request of other corners there is a specific request either express or implied from other corners to improve the property then the improving corner is entitled to get contribution and three if the case falling under section 70 of the Indian contract act is made out then also he is entitled to get reimbursement or rather contribution for the proportionate contribution from other corners under section 70 of the Indian contract act there are three situations work done should not be unlawful 70 says you can't claim contribution if the work done is unlawful so it must not be unlawful activity then second one that he should not have intended to do the work gratuciously suppose the corner does a gratucious act then there is no question of claiming contribution then three that the other corners should have enjoyed the benefits of improvement suppose they have enjoyed the other corners by act of the improving corner have benefited and they enjoyed the benefit then of course they are morally and legally about to pay contribution to the person who caused the improvement so these are the situations so contributions generally if it is voluntary gratuciously and without either against the other corners or without asking them then the corner is not entitled to get contribution but in other situations he may be entitled to get contribution for improving the ownership property then suppose the corner discharges a common liability suppose there is a liability on the estate on the property and three owners are there one corner out of his pocket clears the debt so there is a revenue recovery proceedings or some liability on the property one corner discharges the liability certainly he is entitled to get contribution from other corners who are benefited by this man's act so these are the concepts regarding corner ship in the in the real practice life experience these are the these are the characteristics of this right and we have seen three different types of corner ship consumable in India joint tenancy tenancy in common and cooperation this tenancy in common is known as corner ship joint tenancy is as I told you earlier there are four units which is not required in the case of corner ship or tenancy in common and the co-personary and the English law is different from Hindu co-personary and Hindu co-personary of course the wider definition as of now because the act has been Hindu succession act has been amended and it takes in doctors also co-personary right is in respect of persons had removed three degrees from the joint holder of the property and these are the incidents because we will stop it here and if there is any question probably I can answer yes sir I think it wouldn't have been explained in a much better way than what you have explained just taking few questions have come on the whatsapp is there any concept of absolute ownership co-ownership okay I will explain that because I told you at the outside that absolute ownership if you go to any any this what the world says almond on Nourish Prudence or any standard textbook on Nourish Prudence you will find that nothing is absolute in this world the world is imperfect so the concept called absolute ownership is only a misnomer actually assume that I have one acro property I can't do it and I can't enjoy the property in my own way so with disregarding the entire laws relating to the enjoyment of property for example I have to pay municipal taxes I'll add to this respect the easements right available to the other persons if you read section 7 of the easements act you will find that natural rights that section 7 deals with natural rights no easements are restrictions not restrictions on ownership that is what the section itself says section 4 definition itself says so absolute ownership is a concept in law because you have a right to enjoy right to possess right to sell right to mortgage right to lease whatever transactions in law permissible you can do that and you can sell out the property you can make a gift you can create a will so these are all absolute these are all incidents of absolute right but still you have to follow certain other laws or rather other other conditions in enjoyment of property while you are enjoying the property so theoretically there is an absolute right but in practice your rights are controlled by other statutes and others rights that is why we say that absolute right is only a bit yes because yes sir next question is in what manner the tenancy rights of a deceased tenant devolves on his no see the tenancy right of a tenant tenancy right it can be in respect of a building tenancy or it can be in respect of a land whatever it is no tenancy right is as I told you earlier it is a derivative right owner of the property or the we call it owner of the property or a person having right title and interest over the property creates a lease in favor of a person who had no other right over the property prior to this creation so only by virtue of a lease the leslie gets a right over the property before that he had no right so such a person the leasehold right holder the holder of a leasehold right suppose he dies the leasehold right devolves on his legal years as one package because there was only one single person holding the right the moment he breathes his last that single person's right will devolve on the legal essay assume that the tenant has two children and the wife so the whole tenancy will devolve on these two children and wife as one package and devolution of tenancy right is a joint tenancy they are by devolution a joint tenancy is created in favor of the legal years of the deceased tenant so the devolution is not in the form of partnership but in the form of joint tenancy this is a classic distinction between partnership on one hand and joint tenancy on the other hand yes because now this is what are the differences between the adverse position and out still yes adverse position is a concept if you refer to article 64 and 65 of the Indian reputation act that the rights lost after 12 years adverse position means somebody holds your land with a hostile intention to exclude you from enjoyment so just one more aspect as Mr. Vikas already asked me a question regarding absolute ownership absolute ownership is a concept where you can have all the rights position saleability all things are there apart from that you have a right to exclude others from possession also that is also a right for some not only that you can possess but you can also exclude others from interfering with your position so but in the case of adverse position suppose somebody trespasses upon another man's property and retains possession of the property for this statutory period of 12 years without allowing the owner of the property to enter or enjoy the property then after the period of 12 years going by article 65 the limitation act you get right over the property so the right of the original owner is extinguished and that is given that is attached to the trespasser now that is called the concept of adverse position but in the case of ownership the essential difference is that every corner is presumed to be owner of the property for all practical purposes he can hold the property and enjoy the same as if he is the full owner in the case of ownership if you want to have a hostile right established against other corner or corner then the it is the burden of the corner claiming exclusive right to show that he has negated right of other corners he has denied the right of other corners he has rendered the property with a hostile animus to others and to exclude them and he has prescribed the right of title he has prescribed the title to the property for holding it in a hostile position for more time 12 years so the essential difference between a stranger trespasser claiming title by adverse position and a corner claiming right and title by adverse position against other corners is that in the case of a stranger there may not be a stranger because ouster is a concept which under law is that the fact that you are holding it with a hostile animus or that you are negating the right of other corners in the case of ouster has to be brought to the notice of the other corners so you can do it in a clandestine manner you can do it in what you call stealthily you can do that you have to by your gesture either by words of actions you must convey to the other corner that you are holding it as your own not on for and on behalf of the other corners and there must be an express indication going from you to the others that you are excluding them from your right so ouster is a thing which requires an a what do you call it which requires an express communication that you are negating is right but in the case of adverse position that is not required because everyone is under a legal obligation to consider to what you call the vigilant in respect of his property if somebody stranger proposes it up and you do not do anything with it 12 years your idea is lost but in the case of partnership since they have a dual relationship as equal owners the law requires that ouster which is a communication of your hostility to the other person in express terms which is not required in the case of strangers yes we will just take the last question because I know that you are pressed with time can a co-owner seek eviction of a tenant from the lease would yes no a corner as I told you is presumed to be the absolute owner of the entire assets entire property for for all practical purposes therefore he can seek eviction of a tenant from the premises for and on behalf of other corners but one rider is that he cannot claim that it is his exclusive property if he must recognize or respect the rights of other corners and he represents the whole body of the owners joint owners or rather sorry let us use the correct expression corners he represents the the body of corners and he can seek eviction and that is covered by a direct decision of the Supreme Court by Justice V.R. Krishna here in 1976 that is a very interesting decision please refer to am 1976 Supreme Court I don't remember the page now which is clearly laying down the law and dealing with the rights of corners in respect of seeking eviction from tenants so thank you sir for sharing your knowledge and those who are not subscribed to the channel they can do that and we will request that we have got all knowledgeful sessions of Justice a Harry Prasad you can watch them they are on the playlist and even otherwise if you google with beyond law so to take connected with us thank you everyone and thank you sir for sharing your knowledge and we keep on pressing you and you have always been kind enough to share your life thank you