Transfer of Property in India by a Co-Owner

Transfer of a property is generally initiated by the owner. The rules governing ownership transfer change when two or more individuals enjoy common ownership in a property. In such an instance, a co-owner may transfer his/her share of the property to another individual, who may even be another co-owner.

Who is a co-owner?

Co-ownership exists in different forms, the most common being in case of joint tenancy. Joint tenants hold a unified interest in the whole property, wherein when one joint tenant dies; his/her share is distributed among the remaining tenants. Besides, a joint tenant is legally qualified to transfer his/her share of the property to a third party. Additionally, joint tenancy is governed by the following laws:

• The interests of the tenants should vest at the same time.

• The tenants should have a unified interest in the property, and not divided interests in individual parts.
• The tenants must have a common deed or will.
• Each tenant must have similar estates for the same duration.

Tenancy by the entirety is another form of co-ownership, which is exclusively intended for husband and wife. Similar to joint tenancy, the ownership of a property passes to the surviving spouse in the event of a spouse’s death. However, unlike joint tenancy, in this form of co-ownership, a co-owner (spouse) may not convey his/her interest to transfer property to a third party. A tenancy by the entirety can only be terminated by death, divorce or mutual agreement by each spouse.

Rights of a co-owner on a property

Under the Transfer of Property Act, 1882, a co-owner is legally entitled to the following essentials of ownership:

• Right to possession
• Right to enjoy
• Right to dispose

Consequently, a co-owner may not be deprived of access to property, including the option to transfer his/her share of ownership; regardless of how insignificant or small it is.