Sole and Co-ownership

In property law, ownership signifies the most comprehensive right that a person can have over property. It includes the rights of possession, enjoyment, and disposal of a thing, subject only to legal restrictions. Ownership may reside in a single person or be shared among several persons. Accordingly, ownership is classified as sole ownership and co-ownership.

Meaning of Ownership

Ownership represents the legal relationship between a person and a thing that gives the person absolute control over the property, except as limited by law. It is an amalgamation of several rights—possession, use, enjoyment, destruction, and disposition.
When one person enjoys these rights exclusively, it is sole ownership. When two or more persons hold these rights jointly, it is co-ownership.

Sole Ownership

Sole ownership means ownership vested in a single individual who exercises exclusive control, possession, and enjoyment over the property. The owner alone can use, transfer, or dispose of it, subject to legal obligations.
Features of Sole Ownership:

1. Exclusive Right: The owner has absolute control over the property and its use.
2. Independence: No other person shares in the ownership or decision-making related to the property.
3. Right of Disposition: The owner may sell, mortgage, gift, or lease the property at will.
4. Liability and Benefit: The sole owner bears all liabilities and enjoys all profits arising from the property.
5. Duration: The right continues during the lifetime of the owner and may pass to heirs or successors upon death.

Example: If A purchases a piece of land in his own name, without any partner or co-owner, A is the sole owner of that property. He alone has the right to possess, use, and transfer it.

Co-ownership

Co-ownership (or joint ownership) means that two or more persons simultaneously own the same property, each having a proprietary interest in the whole property, not merely in a divided portion of it.
Each co-owner is entitled to possess and enjoy the entire property in proportion to his or her share, though not to the exclusion of the others.
Co-ownership arises through various means such as inheritance, contract, joint purchase, or operation of law (e.g., partnership or marriage).

Characteristics of Co-ownership

1. Unity of Possession: Every co-owner is entitled to possession and enjoyment of every part of the property, subject to the equal rights of others.
2. Unity of Interest: Each co-owner’s interest in the property, although distinct in proportion, is of the same nature and quality.
3. Unity of Title: The title of all co-owners originates from the same act or event, such as a single transaction, inheritance, or agreement.
4. Unity of Time: The interest of co-owners arises at the same time unless otherwise provided by law or agreement.
5. No Exclusive Ownership of Parts: No co-owner can claim a specific physical portion unless a partition is lawfully carried out. Each holds an undivided share in the whole property.
6. Right of Transfer: A co-owner can transfer, mortgage, or lease his share, but such transfer is subject to the rights of other co-owners.
7. Right to Partition: Any co-owner may demand partition of the property, converting joint ownership into separate ownership.
8. Liability for Expenses: All co-owners share responsibility for taxes, maintenance, and other legal obligations in proportion to their interest.

Types of Co-ownership

Different legal systems recognise various forms of co-ownership, depending on how the rights and shares are structured.

1. Joint Tenancy

In a joint tenancy, the co-owners together form a single legal entity. Their ownership is characterised by the four unities—possession, interest, title, and time.

• There is no division of shares; all co-owners hold the property jointly as one unit.
• The most distinctive feature is the right of survivorship (jus accrescendi)—on the death of one joint tenant, his share passes automatically to the surviving joint tenants, not to his heirs.
• A joint tenant cannot bequeath his share by will, as it ceases upon death.

Example: If A, B, and C jointly purchase a house as joint tenants, and A dies, his interest automatically passes to B and C.

2. Tenancy in Common

In a tenancy in common, co-owners hold property jointly, but each has a distinct, though undivided, share.

• There is no right of survivorship. On the death of one tenant, his share passes to his legal heirs or as per his will.
• Shares may be equal or unequal depending on the contribution or agreement.
• The four unities are not essential here—only unity of possession is required.

Example: If A, B, and C jointly own property, each having one-third share as tenants in common, on A’s death, his one-third share passes to his heirs, not to B or C.

3. Tenancy by Entirety

This form of co-ownership exists only between husband and wife in some jurisdictions (not common in Indian law).

• Both spouses are regarded as a single legal entity.
• Neither can transfer or alienate the property without the consent of the other.
• It includes the right of survivorship—the surviving spouse automatically becomes the sole owner upon the other’s death.

Differences between Joint Tenancy and Tenancy in Common

Modes of Creation of Co-ownership

Co-ownership may arise in the following ways:

1. By Act of Parties:
   • Through agreement, purchase, or contract between individuals.
2. By Operation of Law:
   • Through inheritance, succession, or marriage.
3. By Joint Labour or Contribution:
   • When two or more persons contribute to the acquisition or improvement of property.
4. By Statute:
   • Certain laws (e.g., partnership laws or trust laws) create co-ownership rights by legislative provision.

Rights of Co-owners

Each co-owner is entitled to:

1. Possession and Enjoyment: Right to possess and use the whole property jointly.
2. Income and Profits: Right to share profits or rent in proportion to ownership.
3. Partition: Right to demand division of property into separate shares.
4. Transfer: Right to transfer or mortgage one’s share.
5. Prevention of Waste: Right to restrain other co-owners from actions causing damage or waste to the property.
6. Right of Accounting: Right to claim accounts for rents, profits, or expenses from other co-owners.

Duties of Co-owners

1. Contribution to Expenses: Must share the cost of maintenance, taxes, and repairs.
2. Respect for Rights of Others: Must not exclude or injure the equal rights of other co-owners.
3. No Alteration without Consent: Cannot alter, sell, or encumber the property without mutual agreement, except for one’s share.

Termination of Co-ownership

Co-ownership may end in the following ways:

1. Partition: Physical or legal division of property, giving each owner an exclusive portion.
2. Release or Transfer: When one co-owner transfers or releases his share to another.
3. Merger: When one co-owner acquires the shares of others, leading to sole ownership.
4. Destruction of Property: By loss or destruction of the property itself.

Legal Position in India

Under Indian law, co-ownership is recognised under the Transfer of Property Act, 1882, the Indian Succession Act, 1925, and various personal laws. Indian courts generally presume tenancy in common rather than joint tenancy, unless a clear intention to create joint tenancy is expressed.
Thus, in India:

• Co-owners are presumed to hold distinct shares, not as joint tenants.
• There is no automatic right of survivorship; the deceased’s share devolves upon heirs.

Significance of Sole and Co-ownership

Understanding these distinctions is essential for:

• Determining rights and liabilities in property transactions.
• Managing inheritance, succession, and partnership matters.
• Avoiding disputes regarding possession, use, and division of property.