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Gurdip Singh (Accountant)     04 June 2023

Status of co-owner after intestate death of other coowner

The Supreme Court has held in two judgments that "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot he said that he is only a part-owner or a fractional owner of the property. The position will, change only when partition takes place.”

and ....

"We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is." ... and 

"It is not correct to say that property owned by co-owners is divided between them, each of them owning a sepa- rate part. It is an undivided unity, which is vested at the same time in more than one person ...... The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co- ownership involves the undivided integrity of what is owned".

and ....:Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others."

MY QUESTION IS, and I need the help of someone who understands the legal complexity of this, and is an expert on wills, 

"What is the status of a co-owner if the other co-owner dies intestate? Husband survives but wife dies ... can husband now will their co-owned property to heirs, or he can only give the percentage that belongs to him ? This has serious implications for all such owned property. Have Indian courts dealt with this ????

Does s/he cease to be owner suddenly ? How can you be owner of entire property one day and not be owner when the other owner is dead? This has implications for making a will. 



Learning

 3 Replies

T. Kalaiselvan, Advocate (Advocate)     04 June 2023

Your case is very simple and not as complicated as what you observe.

The property was co-owned by two people, which means each of the owners have equal rights in the property and sudenly one of the owners died intestate, then the share of the deceased owner shall devolve on his/her legal heirs as per personal law of succession. 

The other owner shall be entitled to one such share in the co-owned property if he/she is one of the legal; heirs of the deceased owner besides his/her own share in the property.

 

Dr. J C Vashista (Advocate )     05 June 2023

Well analysed, opined and advised by learned expert Mr. T Kalaiselvan, I concur.

Gurdip Singh (Accountant)     06 June 2023

What about the concept of 'property in its entirety' ? Does it not apply where property has been acquired by a married couple at the same time ? 


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